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July 2, 1990


The opinion of the court was delivered by: Conboy, District Judge:



This case concerns "640 Broadway" a loft building located in an area of Manhattan north of Houston Street known as NOHO. Plaintiff, the owner of the building, has brought this action pursuant to 42 U.S.C. § 1983 to challenge the constitutionality of Article 7-C of the New York State Multiple Dwelling Law, commonly known as the "Loft Law," N.Y. Multiple Dwelling Law §§ 280-87 (McKinney Supp. 1989), on various grounds.

  The Honorable John Walker, formerly a judge of this Court
and now a member of the United States Court of Appeals for
this Circuit and to whom this case was previously assigned,
wrote a comprehensive opinion dismissing the pendent state law
claims against the twenty-three individually named tenant
defendants. 640 Broadway Renaissance Co. v. Cuomo, 714 F. Supp. 686
 (S.D.N.Y. 1989). The factual background of the litigation
was fully set forth in that opinion and, thus, we will not
repeat the facts here, save for those necessary to add context.
The remaining defendants are the governmental defendants: the
Governor of the State of New York, the former Mayor of the City
of New York, and the members of the New York City Loft Board,
an entity established by the contested legislation charged with
the duty of enforcing the law and overseeing the conversion of
certain lofts from commercial to residential use. We will refer
to the Mayor and the Loft Board defendants collectively as the
"City defendants."

In June 1982, in response to the illegal conversion of many New York City loft buildings from commercial to residential uses, the New York State Legislature enacted the Loft Law. As stated in section 280 of Article 7-C, the legislative findings section, the Law's purpose is to preserve residential housing and to effectuate legalization of loft units which had been previously converted from commercial to residential use without compliance with the New York City building codes and zoning resolutions. The Loft Law requires owners to bring affected buildings into compliance with previously-ignored building codes, with much of the costs being passed on to the tenants in the form of temporary rent adjustments. An owner who might suffer unjustifiable hardship because of legalization costs was given an opportunity to gain an exemption from the Loft Law by filing a hardship application with the New York City Loft Board within nine months of passage of the Law.

By order dated April 28, 1988, the Loft Board determined that 640 Broadway was an "interim multiple dwelling" as described in section 281 of Article 7-C, and therefore, subject to the provisions of Article 7-C. Once a building is determined to be an "interim multiple dwelling", the owner is required to effect the legal conversion of the property by performing certain acts within the timetable set down by the law.

Plaintiff complains that the law has "numerous confiscatory effects" and thus that the law is constitutionally infirm. Specifically, in Counts 1 through 9 of the complaint the plaintiff alleges the following constitutional violations: (1) that the Loft Law, in conjunction with other related state and city laws effects a taking of private property for public use without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution [Counts 1, 2, 4 and 5]; (2) and that in violation of the Fourteenth Amendment, the Loft Law deprives the plaintiff of liberty and property without due process of law, and denies the plaintiff the equal protection of the law [Counts 6, 7 and 8]; and (3) that in violation of Article I, Section 10 of the United States Constitution, the Loft Law causes a substantial impairment of the obligation of contracts [Count 3] and (4) that the Law constitutes an unlawful Bill of Attainder [Count 9]. The complaint seeks declaratory, injunctive and monetary relief from the defendants for these constitutional violations.

Plaintiff now moves for summary judgment on each of these constitutional claims. The City defendants have cross moved for summary judgment on essentially two grounds: (1) that because the United States Supreme Court rejected nearly all of the plaintiff's claims in a different case, the claims must be dismissed; and (2) that if the Court were not to dismiss the claims, it must find that Article 7-C is constitutionally valid as it represents a reasonable exercise of the state's legislative authority.

In addition, Governor Cuomo has moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure to dismiss on two grounds.*fn1 First, he contends that he is not a proper defendant in the action. Second, he joins in the City defendants' contention that the complaint fails to state a cause of action against the constitutionality of the challenged state statute. We note that the second branch of the Governor's motion is analyzed in more explicit, and exquisite, detail than the corresponding section of the City's motion. The Governor argues that we need not, and indeed, must not independently decide the constitutionality of the law "in view of the binding precedential effect" of Spring Realty Co. v. New York City Loft Board, 127 Misc.2d 1090, 487 N.Y.S.2d 973 (Sup.Ct. N.Y.Co. 1985), aff'd, 117 A.D.2d 1029, 498 N.Y.S.2d 241 (1st Dep't 1986), aff'd as modified on other grounds, 69 N Y2d 657, 511 N.Y.S.2d 830, 503 N.E.2d 1367 (1986), appeal dismissed for want of a substantial federal question, 482 U.S. 911, 107 S.Ct. 3179, 96 L.Ed.2d 668 (1987), and "the need to discourage repetitive litigation commenced in violation of the principle of stare decisis." Governor Cuomo's Memorandum of Law in Support of His Cross Motion For Judgment on the Pleadings ("Governor's Main Mem.") at 30 n. 10. With respect to those claims not raised in Spring Realty, the Governor claims they are meritless as a matter of law and that therefore, they must be dismissed. We agree with the second branch of the Governor's motion for the reasons elaborated upon below.*fn2


Although the constitutionality of the Loft Law was previously upheld in Spring Realty, plaintiff's initial 68-page memorandum of law nonetheless relegates this case to a single footnote. Plaintiff's Memorandum of Law in Support of its motion for Summary Judgment ("Pltf. Main Mem.") at 21 n. 6. In this footnote, plaintiff conclusorily claims that Spring Realty "present[s] [no] barrier to this action. The constitutional challenges to the Loft Law both facially and as applied to this plaintiff are substantially different than those raised in Spring Realty." Id.

The defendants assert that we, as a federal court, are bound by the Supreme Court's dismissal of the Spring Realty appeal "for want of a substantial federal question." They further state that a comparison of the arguments presented to the United States Supreme Court in Spring Realty with those made by plaintiff here reveals that they are for the most part precisely the same, and indeed are often phrased in nearly identical language. As to those claims that were not decided in Spring Realty, the bill of attainder and the "vested property right" claims, defendants contend that they are meritless, even bordering on frivolous.

Defendants are correct regarding the precedential effect of a Supreme Court dismissal for want of a substantial federal question. In the seminal case of Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the plaintiffs therein challenged the constitutionality of California's obscenity statute, and a three-judge federal district court held the statute to be unconstitutional. Several weeks later, in Miller v. California, 418 U.S. 915, 94 S.Ct. 3206, 41 L.Ed.2d 1158 (1974) (Miller II,) the Supreme Court dismissed "for want of a substantial federal question" the appeal from a California state court decision sustaining the constitutionality of the same statute. The Hicks defendants thereupon moved for reconsideration in the district court. The district court denied this motion, holding that it was not bound by the Supreme Court's dismissal of the Miller II appeal, and reaffirming its previous ruling that the statute was unconstitutional.

The Supreme Court chastised the district court for this holding:

  [T]he District Court was in error in holding that
  it could disregard the decision in Miller II. That
  case was an appeal from a decision by a state court
  upholding a state statute against federal
  constitutional attack. A federal constitutional
  issue was properly presented, it was within our
  appellate jurisdiction under 28 U.S.C. § 1257(2),
  and we had no discretion to refuse adjudication of
  the case on its merits as would have been true had
  the case been brought here under our certiorari
  jurisdiction. We are not obligated to grant the
  case plenary consideration, and we did not; but we
  were required to deal with its merits. We did so by
  concluding that the appeal should be dismissed
  because the constitutional challenge to the
  California statute was not a substantial one. The
  three-judge court was not free to disregard this
  pronouncement. . . . "[V]otes to affirm summarily,
  and to dismiss for want of a substantial federal
  question, it hardly needs comment, are votes on the
  merits of a case. .," [citations omitted]. The
  District Court should have followed the Second
  Circuit's advice, first, in Port Authority
  Bondholders Protective Committee v. Port of New
  York Authority, 387 F.2d 259, 263 n. 3 ([2d Cir.]
  1967), that "unless and until the Supreme Court
  should instruct otherwise, inferior federal courts
  had best adhere to the view that if the Court has
  branded a question as unsubstantial, it remains so
  except when doctrinal developments indicate
  otherwise"; and, later, in Doe v. Hodgson,
  478 F.2d 537, 539 [2d Cir.], cert. denied, 414 U.S. 1096, 94
  S.Ct. 732, 38 L.Ed.2d 555 (1973), that the lower
  courts are bound by summary decisions by this Court
  "`until such time as the Court informs [them] that
  [they] are not.'"

422 U.S. at 343-45, 95 S.Ct. at 2288-90.

Thus, while it is true that a summary affirmance or a summary dismissal for want of a substantial federal question is not of the same influence and impact as a signed opinion, Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974), such summary decisions are nevertheless decisions approving the merits. Hicks, supra, 422 U.S. at 344, 95 S.Ct. at 2289. Spring Realty, like Miller II, was an appeal from a state court decision upholding a state statute against federal constitutional attack, and was thus within the Supreme Court's obligatory appellate jurisdiction under 28 U.S.C. § 1257(2).*fn3 See Spring Realty Co. v. New York City Loft Board, Jurisdictional Statement (U.S.Sup.Ct. Mar. 12, 1989) (attached as Appendix to the Governor's Main Mem.) at 2.*fn4 The Court's summary dismissal of the appeal in Spring Realty is therefore as binding upon this court in the present case as its summary dismissal of the Miller II appeal should have been upon the district court in Hicks.

The next question we must examine is just what binding effect Spring Realty is entitled to. Although the Hicks court relegated discussion of the exact scope of the summary dismissal's effect on a subsequent case to a footnote, 422 U.S. at 345 n. 14, 95 S.Ct. at 2290 n. 14, the Court, a few years later, focused on the parameters of such dispositions as set out in footnote fourteen of Hicks, see Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977), (per curiam), and, in doing so, gave the lower federal courts instruction on how to "[a]scertain the reach and content of summary actions." Hicks, 422 U.S. at 345 n. 14, 95 S.Ct. at 2290 n. 14.

The Court stated that:

  [b]ecause a summary affirmance is an affirmance
  of the judgment only, the rationale of the
  affirmance may not be gleaned solely from the
  opinion below. . . . Summary affirmances and
  dismissals for want of a substantial federal
  question without doubt reject the specific
  challenges presented in the statement of
  jurisdiction and do leave undisturbed the
  judgment appealed from. They do prevent lower
  courts from coming to opposite conclusions on the
  precise issues presented and necessarily decided
  by those actions.

Mandel, 432 U.S. at 176, 97 S.Ct. at 2240. Accord Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 182, 99 S.Ct. 983, 989, 59 L.Ed.2d 230 (1979) (summary affirmance has no precedential effect with respect to issue not presented in appellant's jurisdictional statement). Thus, the precedential effect of a summary affirmance extends only to the issues presented to the Court and actually and necessarily decided by the lower courts. Mandel, supra. The Supreme Court has cautioned, however that "questions which `merely lurk in the record' are not resolved, and no resolution of them may be inferred." Socialist Workers, supra, 440 U.S. at 183, 99 S.Ct. at 989.

It is, therefore, clear that we must, at the very least, carefully examine the appellant's jurisdictional statement in order to ascertain which specific challenges were presented to and, thus, decided by the Supreme Court. See League of Women Voters v. Nassau County Board of Supervisors, 737 F.2d 155 (2d Cir. 1984), cert. denied, 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 (1985); Delta Air Lines, Inc. v. Kramarsky, 650 F.2d 1287, 1295 (2d Cir. 1981), aff'd in part and vacated in part, 666 F.2d 21 (2d Cir. 1981), aff'd in part, vacated in part and remanded sub nom., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The Governor contends that we may look only to the jurisdictional statement. Plaintiff asserts that, in addition to examining the jurisdictional statement, we must also look at the opinions and at the actual documents which form the litigation record to determine whether the precise issues as stated in the jurisdictional statement "were necessarily decided in the prior court opinions." Plaintiff's Reply Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment and In Opposition to Defendant's Cross Motions ("Pltf. Reply Mem.") at 16. In other words, plaintiff claims that we are to ascertain whether "the facts of the case plainly reveal a basis for the lower court's decision more narrow than the issues listed in the jurisdictional statement" see Hardwick v. Bowers, 760 F.2d 1202, 1203 (11th Cir. 1985), rev'd on other grounds, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and, if so, we should assume that the "Supreme Court decided the issue on that narrow ground." Id. The rationale underlying this conclusion in Hardwick was that "if the jurisdictional statement could expand a summary affirmance beyond the scope of issues necessarily decided, it would give the litigants considerable control over the scope of summary dispositions." Id. at 1208.

Although the two cases on this issue in our circuit have looked to the jurisdictional statement to "ascertain the reach and content of the summary action." one of them, League of Women Voters, supra, 737 F.2d at 168-69, did suggest that in order to determine the issues "fairly comprised" within the jurisdictional statement, in accordance with Supreme Court Rule 15.1(a), a court might look at the other documents in the record of the earlier litigation. Indeed, in that case, the Second Circuit used the underlying documents in the record to determine that a particular issue was "fairly comprised" within the jurisdictional statement such that the summary adjudication was controlling on that issue. League of Women Voters, 737 F.2d at 168-172. In so doing, the court adopted the reasoning of another court that "`[a] summary disposition has precedential value in cases virtually indistinguishable from the case summarily disposed of . . . and in cases involving slightly different facts and issues. . . .'" Id., 737 F.2d at 170 (quoting Bangor Baptist Church v. Maine, 549 F. Supp. 1208, 1219 (D. Maine 1982); see also Delta Air Lines, supra, 650 F.2d at 1295 (issue precluded if "substantially similar" to the issue in the jurisdictional statement).

Thus, it can be said that the court in League, in utilizing the underlying documents to help determine the "reach and content" of the summary adjudication, relied on such documents to give a more comprehensive reach to the summary disposition than that evident from the fact of the jurisdictional statement. We do not see why, contrary to the assertion of the Governor, such documents cannot be used to demonstrate that an issue is not fairly comprised within the jurisdictional statement, that is, to show that the jurisdictional statement overstates the issues that were actually presented to and decided by the lower court. See Socialist Workers, supra, 440 U.S. at 183, 99 S.Ct. at 989 (no precedential effect of issues merely lurking in the record). We also see no reason why we should not look at the lower court opinions, although the Governor asserts that we should not, stating that the Supreme Court in Mandel took "great pains to dissociate" the jurisdictional statement from the opinion. Governor's Reply Mem. at 7. While the Supreme Court in Mandel did say that the rationale of a summary affirmance may not be gleaned solely from the opinion below, it did not say that the jurisdictional statement is to be looked at exclusively or that we may not look to the opinions at all.

Despite the fact that it was plaintiff who argued that we must look to the underlying record in addition to the jurisdictional statement, our decision to do so does not really aid the plaintiff here, as it has failed to provide the careful analysis of the documents necessary to show that the issues as set out in the jurisdictional statement are broader than what was actually presented to and decided by the New York Courts. Indeed, save for one issue addressed in its sur-reply memorandum, the so-called "per se taking" argument, plaintiff makes little use of the documents. We will approach the issues raised in plaintiff's complaint and moving memorandum which are potentially precluded by Spring Realty in the following order: the due process arguments, the equal protection contentions, the Contract Clause arguments and finally the "takings" claims. We will then discuss the other two issues which the defendants concede were not raised in Spring Realty: the contention that plaintiff had a "vested right" in the City's pre-Loft Law zoning regulation and the bill of attainder claim.

A. Claims Potentially Precluded By Spring Realty

1. Due Process Claims

In Point III(A) of its memorandum, plaintiff claims that the Loft Law exceeds the reach of the State's police power to regulate the use of private property, and thus violates the Due Process Clause. A similar due process claim was advanced in Spring Realty, see Question Presented 2, Jur.St. at ii; Jur.St. at 11-17; see especially id. at 17 ("present action offers this Court the opportunity to announce ...

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