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CONSTITUTIONAL CHALLENGE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK AMENDED VERIFIED COMPLAINT Civil Action No. 98-CV-0393 LEK RWS - Plaintiffs - against - US DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, - Defendants.
JURISDICTION 1. Plaintiffs Robert L. Schulz and Burr V. Deitz are citizens of the United States and of New York State. They reside in this judicial district. The principal offices of all defendants with the exception of HUD are located in this judicial district. This court has jurisdiction under 28 USC Section 1331. The claim arises under Article IV, Section 4 of the US Constitution, 42 USC S. 1983, and Articles VIII and VII of the NY Constitution. 2. The action is timely commenced. 3. The court has jurisdiction in claims against public officials who act without delegated power. Defendants are acting in ways that are repugnant to the United States (and New York) Constitutions. Plaintiffs’ claims are, in effect, ultra vires claims that rest on the defendants lack of delegated power; the defendants are, in fact, constitutionally prohibited from engaging in the challenged behavior. 4. Plaintiffs are not claiming error in the exercise of delegated powers. 5. The court has jurisdiction under 28 USC Section 1331 and 1343(3) to determine claims against state officials for alleged violations of the federal Constitution. Florida Dept. Of State v Treasure Salvors, Inc., 458 US 697. 6. The court also has jurisdiction under 42 USC Section 1983. An unconstitutional act is "void", and, therefore, does not "impart to [the officer] any immunity from responsibility to the supreme authority of the United States." Ex Parte Young, 209 US123, 160. Since the State could not authorize the actions complained of, each State defendant was "stripped of his official or representative character and [was] subjected in his person to the consequences of his individual conduct." Id.
RELIEF REQUESTED 7. The relief requested herein is a preliminary injunction and a final order: a) declaring that HUD’s loan to the Steuben Place Partners, which loan was guaranteed by funds of the City of Albany, was violative of plaintiffs’ fundamental right to a government republican in form and substance as expressed in Article IV, Section 4 of the United States Constitution, and b) declaring that the City’s 1985 resolution pledging the existing and future Community Development funds of the City of Albany to provide a guarantee of said $1.7 million HUD loan to the Steuben Place Partners was violative of plaintiffs’ fundamental right to a government republican in form and substance as expressed in Article IV, Section 4 of the United States Constitution, and c) declaring that City defendants’ use of public funds in 1997 and 1998 to pay the debt obligations of Steuben defendants was violative of plaintiffs’ fundamental right to a government republican in form and substance as expressed in Article IV, Section 4 of the United States Constitution, and d) directing Steuben defendants to immediately repay $121,000 to the City of Albany, with interest at the rate of 8% per annum, and e) preliminarily enjoining and prohibiting City defendants from giving or loaning public funds to Steuben defendants until a final order is issued by the court and f) for costs and disbursements, and g) for such other and further relief as to the court may seem just and proper.
PARTIES 8. Robert L. Schulz is a citizen-taxpayer-voter of New York State and the United States of America. He resides in the Town of Fort Ann, Washington County. His mailing address is 2458 Ridge Road, Queensbury, New York 12804. He is an individual taxpayer and property owner liable to pay taxes upon an assessment of more than $1,000 in the Town of Fort Ann, Washington County, and in Queensbury, Warren County, New York. He pays State income and sales tax. He pays federal taxes. He is a registered voter registered to vote in the Town of Fort Ann, Washington County, New York. 9. Burr V. Deitz is a citizen-taxpayer-voter of New York State and the United States of America. He resides in the City of Albany, Albany County. His mailing address is 444 Whitehall Road, Albany, New York 12208. He is an individual taxpayer and property owner liable to pay taxes upon an assessment of more than $1,000 in the City of Albany, Albany County, New York. He pays State income and sales tax. He pays federal taxes. He is a registered voter registered to vote in the City of Albany, Albany County, New York. 10. The US Department of Housing and Urban Development ("HUD") is a Department of the federal government of the United States of America. HUD has an office located at 465 Main Street, Buffalo, NY 14203. Kenneth LoBene is the Area Coordinator. 11. The Common Council of the City of Albany is the chief legislative body of the City of Albany. 12. Gerald D. Jennings is the duly elected Mayor (Chief Executive/Administrative Officer) of the City of Albany. His office is located at City Hall, 24 Eagle Street, Albany, NY 12207. The City of Albany received at least one million dollars in financial aid from the State of New York in State fiscal year 1997-1998. On information and belief the City co-mingles State aid with revenues derived from taxes and fees imposed by the City. 13. George Leveille is an employee of the City of Albany. On information and belief he is the Commissioner of the Department of Economic Development and Chairman of the Albany Local Development Corporation. 14. The Albany Industrial Development Agency is a public corporation, created by the State Legislature, with principal offices located at City Hall, 24 Eagle Street, Albany, NY 12207. 15. The Albany Local Development Corporation is a not-for-profit corporation incorporated under Section 1411 of the NY State Not-For-Profit Corporation Laws, with principal offices located at City Hall, 24 Eagle Street, Albany, NY 12207. 16. Steuben Place Partners is a private organization and the owner of the building located at 1 Steuben Place, Albany, NY 12207. On information and belief, the following are among the partners: Herbert S. Ellis, Annmarie M. Ellis and Peter B. Ellis. 17. Steuben Place Recreational Corporation is a private organization which rents the building located at 1 Steuben Place in Albany from Steuben Place Partners. On information and belief the following are the officers of Steuben Place Recreational Corporation: Herbert S. Ellis, Annmarie M. Ellis and Peter B. Ellis.
PRELIMINARY STATEMENT 18. Plaintiffs’ fundamental federal right to a republican form of government (footnote 1: Article IV, Section 4 of the US Constitution reads, "The United States shall guarantee to every State in this Union a republican form of government....") is violated whenever an act of state or local government official is repugnant to the will and intent of the citizens of New York State as expressed in the New York Constitution. 19. In other words, when State or local government officials violate the will and intent of the sovereign people as expressed in the New York Constitution, those officials are undermining the Republic of the State of New York and violating the right of the citizens of New York to a government republican in form and substance. 20. By the plain language of the New York Constitution, neither State nor local money or credit can be given or loaned to a private individual, private corporation, private association, or in aid of a private undertaking (Article VII, Section 8 and Article VIII, Section 1). 21. In violation of the N.Y. Constitution, City defendants gave the City’s credit to and gave or loaned approximately $121,000 to or in aid of the Steuben defendants. 22. Plaintiffs, as citizens-taxpayers-voters of New York State, are strong State’s rights advocates who believe the federal court and the U.S. Supreme Court should not interfere with the policies, programs and activities of the government of any state. However, if the State is routinely turning a blind eye toward the will of the people as expressed in the State Constitution, making a mockery of the phrase republican form of government, then plaintiffs are forced to turn to the federal courts to nullify the obnoxious policies, programs or activities as violative of the federal guarantee clause and the federal privileges and immunities clause. 23. It is to be expected, given the element of "politics" in any state’s system of governance, that policies, programs and activities that will abridge the privileges and immunities of citizens of the United States residing in that state, will develop under the color of state law. If unchecked, however, such a practice could and would lead to willfully wayward states and to the dissolution of the Union. 24. Thus, one of the most welcome and important roles of the federal court is, in the interest of the Union, to protect the privileges and immunities of all its citizens from tyranny in any of its forms, especially governmental tyranny, no matter where in the Union it is found and challenged. 25. Most reluctantly and unfortunately, from the viewpoint of State’s rights, New York State plaintiffs are forced to turn to the federal courts for protection against governmental tyranny in the State of New York. 26. The unconstitutionality of the acts of a state are equally within the jurisdiction of the courts, whether they be acts of the legislature or executive department or of the people themselves, adopting their constitutions or amending them. 27. Plaintiffs reliance on the "privileges and immunities" and "guarantee" clauses is supported by law and logic. 28. Logically, these two clauses are designed to reign in what plaintiffs refer to as "willfully wayward states". A very brief historical analysis confirms plaintiffs’ right to rely on these two clauses to restrain their State, which they argue has willfully become wayward. 29. In 1787, a full ten years after the sovereign people of the colony of New York created their government by adopting the New York State Constitution, New Yorkers agreed to become part of the Union of States and to distribute more of their power to those who would be responsible for running the day-to-day affairs of the Union. In so doing, the sovereign people of the State of New York agreed to the "one for all, all for one" principles enunciated in the federal Constitution, particularly in Article IV, Section 4 (the guarantee clause) and, later, in Section 1, Clause 2, of the Fourteenth Amendment thereto (the privileges and immunities clause). 30. These two clauses (as well as the Ninth and Tenth Amendments), give the federal judicial department the jurisdiction, on petition by any citizen of the United States residing in any one of the states, to protect that citizen from tyrannical governmental action designed and administered by a willfully wayward State government. 31. In light of the human frailties of the love of power and money, plus the propensity of those wielding governmental power to innovate, it is entirely possible, in these United States, that, over time, the republicanism in one State would become a matter of form over substance, thus denying its true meaning and original intent. It is possible, in other words, for the people of a State to have a constitution which, by design: recognizes the people as the absolute sovereignty; obviously has the people distributing the power to govern; the distributed power is, by design, sufficient to govern but insufficient to oppress; this power is distributed to three (by design) independent and co-equal branches. 32. However, notwithstanding these arrangements, it is possible for that State’s Constitution to be routinely ignored by those in the Executive, Legislative and Judicial branches as the branches cooperate in a "we know better" constructive conspiracy to govern in contravention to, and without respect for, the will of the people as expressed in the State Constitution, particularly when it comes to issues of public power, public debt and the use of tax revenues for purposes that are largely private. 33. It is possible in such a situation: for the people to lose control of their government; for governmental dependency to displace individualism, self-reliance and private charity; for the public debt to become overburdensome and oppressive; for the level of government-imposed taxes and fees to become the highest in the nation, eating out 60% or more of a laborer’s wages; and, for the State to drop from its position as a leading creditor state to a debtor state with the lowest credit rating in the Union. 34. Finally, it is possible for the forces in power to stay in power by making it virtually impossible for the people to achieve governmental reform through the use of the ballot. This is possible by restricting ballot access to those chosen by those forces – the leading political parties – particularly in a situation where the State Constitution is silent on the subject of ballot access. In such case, whoever controls ballot access controls the governors, the legislators and the judges. This vise-like control is exacerbated if the judges owe their advancement within the Judicial Department to the good will of the Governor and the Legislature, rather than to the people. Also, whoever controls ballot access controls the delegates to the State Constitutional convention. 35. It can be fairly stated that the situation portrayed in this list of "possibilities" is not an Orwellian fantasy; rather it fits the hand of government in New York State like a glove – and the hand of government, being human, likes it that way and wants to keep it that way. 36. The Union now has, in New York, a willfully wayward state. We have three branches and a State Constitution, but for all intents and purposes, we do not have a constitutional republic – government based on the consent of the people as expressed in the State Constitution. The two major political parties are, in effect, the government of New York State and through their control over ballot access they control the governors, the legislators and the judges, many of whom have, since 1977, shown a propensity to turn a blind eye toward the will of the people as expressed in the Constitution of the State of New York. Moreover, the last (1967) constitutional convention was stacked with and controlled by delegates representing the three branches of the government and the state’s two major political parties. Small wonder the people rejected its product. It provided no discernible needed reforms. 37. By careful design, the "guarantee" clause and the "privileges and immunities" clause establish standards that are inescapable and that speak to the problem of the willfully wayward state. They mean no state will be permitted to scorn our most basic "founding" constitutional principles: government deriving their just powers from the consent of the governed; the separation of powers; checks and balances; maximum possible individual liberty and personal freedom; the pursuit of happiness; the right to petition and to free elections; equal protection of the law; and, no taking of property, including money property, through taxes and fees, without constitutional due process. 38. Seven states discovered this when they sought to go their own way and secede from the Union, bringing about the civil war (South Carolina, Alabama, Mississippi, Florida, Georgia, Louisiana and Texas). 39. The courts of New York, rather than defending these basic rights are finding against them. The federal court constitutes the U.S. citizen’s last line of defense against the actions of a willfully wayward state, short of civil disobedience or violence.
STATEMENT OF THE FACTS 40. In or about 1985, HUD loaned $1.7 million to the Steuben Place Partners. The loan was guaranteed by funds of the City of Albany. 41. In or about 1985, the Common Council of the City of Albany passed a resolution to give or lend its credit to the Steuben Place Partners by pledging the existing and future Community Development funds of the City of Albany to provide a guarantee of said $1.7 million HUD loan to the Steuben Place Partners. 42. On or about August 1, 1997, City defendants gave or loaned about $60,700 to the Steuben defendants. 43. On or about January 1, 1998, City defendants gave or loaned about $58,700 to the Steuben defendants.
FIRST CLAIM CITY DEFENDANTS VIOLATED THE "GUARANTEE 44. The U.S. Constitution reads in relevant part: "The United States shall guarantee to every State in this Union a Republican Form of Government...." 45. A "Republic" is defined as "the form of government of a state or nation in which the supreme power rests in all the citizens entitled to vote and is exercised by representatives elected, directly or indirectly by them and responsible to them." Websters New Twentieth Century Dictionary, unabridged, Second Edition. 46. New York State was "republicanized" by the American revolution. 47. By the terms of the New York Constitution, the People have formed their government and distributed some of their power to the government, sufficient to govern but insufficient to oppress. The N.Y. Constitution is a set of principles to govern the government. 48. The action that is the subject of this lawsuit is violative of the will of the people as expressed in the New York Constitution and is thus violative of one of our most basic republican constitutional principles, "Governments are instituted among men, deriving their just powers from the consent of the governed." Declaration of Independence. 49. In 1985 the Common Council of the City of Albany gave or loaned its credit to or in aid of the Steuben Place Partners in violation of Article VIII, Section 1 of the NY Constitution. 50. City defendants gave or loaned $121,000 to the Steuben defendants in violation of Article VIII, Section 1 and Article VII, Section 8 of the New York Constitution. 51. The New York Constitution reads in relevant part: "No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking...nor shall any county, city, town, village or school district give or loan its credit to or in aid of any individual or public or private corporation or association or private undertaking...." Article VIII, Section 1 New York Constitution "The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking...." Article VII, Section 8 New York Constitution 52. The purpose of Section 4 of Article IV, which guarantees to every state a republican form of government, is to protect the people against aristocratic and monarchical innovations, and to prevent the States from abolishing a republican form of government, in which the government governs based only upon the consent of the governed, whose will is expressed in the State Constitution. Van Sickle v Sharrahan, 1973, 511 P.2d 223, 212 Kan. 426. 53. The term "state" in section 4 of article IV is used in the idea of a people or political community as distinguished from a government, and is used in its geographical sense. Texas v White, Tex. 1869, 74 U.S. 700. Not even the people, acting through their elected representatives, can convert their system of governance from a republic form of government. 54. By the constitution, a republican form of government is guaranteed to every state in the Union and the distinguishing feature of that form is the right of people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative powers reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, national and state, have been limited by written constitutions. In re Duncan, Tex. 1891. 11 S. Ct. 573. 55. Section 4 of Article IV guarantees to every state in the Union a republican form of government, and every sentence and provision of the New York Constitution evidences principles of that form of government (including Articles VII, VIII, and X) declaring and guaranteeing liberties of the people. Harris v Shanahan, 1963. 387 P2d 771, 192 Kan.183. 56. The right to a "republican form of government" is a substantial right. It has always been held to be within the protection of the courts. 57. The courts, as the final interpreters of the Constitution, pass upon the constitutional powers of the legislatures and executives of the nation, and of the states. When called upon, they must exercise their function and determine the validity of the acts of a State so far as they effect the constitutional rights of the citizens or the powers of the national government. Schulz v Williams, 44 F.3d 48 (2nd Cir. 1994).
CONCLUSION 58. Based on the above, plaintiffs respectfully request a preliminary injunction and a final order: a) declaring that HUD’s loan to the Steuben Place Partners, which loan was guaranteed by funds of the City of Albany, was violative of plaintiffs’ fundamental right to a government republican in form and substance as expressed in Article IV, Section 4 of the United States Constitution, and b) declaring that the City’s 1985 resolution pledging the existing and future Community Development funds of the City of Albany to provide a guarantee of said $1.7 million HUD loan to the Steuben Place Partners was violative of plaintiffs’ fundamental right to a government republican in form and substance as expressed in Article IV, Section 4 of the United States Constitution, and c) declaring that City defendants’ use of public funds in 1997 and 1998 to pay the debt obligations of Steuben defendants was violative of plaintiffs’ fundamental right to a government republican in form and substance as expressed in Article IV, Section 4 of the United States Constitution, and d) directing Steuben defendants to immediately repay $121,000 to the City of Albany, with interest at the rate of 8% per annum, and e) preliminarily enjoining and prohibiting City defendants from giving or loaning public funds to Steuben defendants until a final order is issued by the court and f) for costs and disbursements, and g) for such other and further relief as to the court may seem just and proper. DATED: March 12, 1998 ROBERT L. SCHULZ, Pro Se, 2458 Ridge Road, Queensbury, NY 12804 (518)656-3578 BURR V. DEITZ, Pro Se, 444 Whitehall Road Albany, NY 12208 (518) 489-0167 |