Petition for Writ of Certiorari — Lyndsey Ballinger, et al., Petitioners v. City of Oakland, California

No. _________

In The

Supreme Court of the United States

____________________

LYNDSEY BALLINGER; SHARON BALLINGER,

Petitioners,

v.

CITY OF OAKLAND,

Respondent.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

J. DAVID BREEMER*

*Counsel of Record

BRIAN T. HODGES

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

BHodges@pacificlegal.org

Counsel for Petitioners

i

QUESTIONS PRESENTED

1. Whether the unconstitutional conditions tests

in Nollan v. California Coastal Commission, 483 U.S.

825 (1987), and Dolan v. City of Tigard, 512 U.S. 374

(1994), apply to an ordinance that requires rental

owners to make a payment to a tenant before the

owners may end the tenancy and reoccupy their home.

2. Whether “state action” sufficient to justify a

Fourth Amendment “seizure” claim exists when a law

directs the transfer of property from one private

citizen to another.

ii

LIST OF ALL PARTIES

Lyndsey and Sharon Ballinger were the plaintiffs

in the district court and appellants in the Ninth

Circuit Court of Appeals and are the petitioners

herein.

The City of Oakland, California, is the municipal

respondent.

STATEMENT OF RELATED CASES

The proceedings identified below are directly

related to the above-captioned case in this Court.

Ballinger v. City of Oakland, No. 18-cv-07186HSG, 398 F. Supp. 3d 560 (N.D. Cal. Aug. 2, 2019).

Ballinger v. City of Oakland, No. 19-16550,

__ F.4th __, 2022 WL 289180 (9th Cir. Feb. 1, 2022).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

LIST OF ALL PARTIES ............................................. ii

STATEMENT OF RELATED CASES ....................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS AND

STATUTES AT ISSUE ............................................... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE.................................... 6

A. The Ballingers’ Lease and Enactment

of the Tenant Payment Requirement ........... 6

B. The Ballingers’ Payment and Federal

Suit for Reimbursement ................................ 8

C. The Ninth Circuit Opinion .......................... 10

REASONS FOR GRANTING THE PETITION ....... 11

iv

I.

THE DECISION BELOW RAISES AN

IMPORTANT CONSTITUTIONAL

QUESTION ABOUT THE REACH OF

NOLLAN AND DOLAN AND

DEEPENS A PERSISTENT

CONFLICT ON THE ISSUE ......................... 13

A. The Decision Below Conflicts With

the Court’s Precedent .................................. 14

1. The Nollan/Dolan tests ......................... 14

2. The Ninth Circuit decision is

irreconcilable with this Court’s cases .... 16

B. The Decision Below Conflicts With

the Decisions of Other Federal and

State Courts ................................................. 20

1. The decision below conflicts with

the Sixth Circuit’s approach ................. 21

2. The decision below conflicts with

state court decisions ............................... 22

II.

THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENT

AND THE DECISIONS OF OTHER

CIRCUITS IN HOLDING THAT A LAW

THAT COMPELS A SEIZURE OF

PROPERTY IS INSUFFICIENT TO

CREATE “STATE ACTION” ......................... 25

v

A. The Decision Below Conflicts With

This Court’s Emphasis on the Role of

Coercive Law in the “State Action”

Analysis ....................................................... 26

B. The Decision Below Exacerbates a

Conflict Among the Circuits on the

Proper “State Action” Analysis

When Laws Authorize a Private

Seizure of Property ...................................... 29

1. The Third, Fourth, Fifth, Eighth,

and Tenth Circuits give weight

to the authority of state law in

gauging whether a seizure by a

private party involves “state action” ..... 30

2. The First and Ninth Circuits

discount the force of state law ............... 33

CONCLUSION.......................................................... 35

APPENDIX

Opinion, U.S. Court of Appeals for the

Ninth Circuit (filed Feb. 1, 2022) ........................... A-1

Order Granting Motion to Dismiss,

U.S. District Court for the Northern

District of California (filed Aug. 2, 2019)............... B-1

Oakland Municipal Code Sections 8.22.800

through 8.22.870 ..................................................... C-1

vi

TABLE OF AUTHORITIES

Cases

Adams v. S. California First National Bank,

492 F.2d 324 (9th Cir. 1973) ............................... 34

Adickes v. S. H. Kress & Co.,

398 U.S. 144 (1970) ............................................. 27

Alabama Ass’n of Realtors v.

Dep’t of Health & Human Services,

141 S. Ct. 2485 (2021) ......................................... 18

Am. Furniture Warehouse Co. v. Town of Gilbert,

425 P.3d 1099 (Ariz. Ct. App. 2018).................... 23

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ............................................... 10

Anderson Creek Partners, L.P. v. Cty. of Harnett,

854 S.E.2d 1 (N.C. Ct. App. 2020)....................... 23

Apartment Ass’n of Greater Los Angeles v.

City of Beverly Hills,

No. CV 18-6840, 2019 WL 1930136

(C.D. Cal. Apr. 17, 2019) ....................................... 3

Ballinger v. City of Oakland,

__ F.4th __, 2022 WL 289180

(9th Cir. Feb. 1, 2022) ........................................... 1

Ballinger v. City of Oakland,

398 F. Supp. 3d 560 (N.D. Cal. 2019) ................... 1

Better Housing for Long Beach v. Newsom,

452 F. Supp. 3d 921 (C.D. Cal. 2020).................. 35

vii

Blum v. Yaretsky,

457 U.S. 991 (1982) ........................................ 27-28

Brentwood Academy v.

Tennessee Secondary School Athletic Ass’n,

531 U.S. 288 (2001) ........................................ 26-27

California Bldg. Indus. Ass’n v. City of San Jose,

136 S. Ct. 928 (2016) ........................... 5, 14, 20, 25

California Bldg. Indus. Ass’n v. City of San Jose,

351 P.3d 974 (Cal. 2015) ..................................... 23

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) .............................. 14, 16-19

Coleman v. Turpen,

697 F.2d 1341 (10th Cir. 1982) ...................... 30-31

Cox Bakeries of North Dakota, Inc. v.

Timm Moving & Storage, Inc.,

554 F.2d 356 (8th Cir. 1977) ............................... 31

Dabbs v. Anne Arundel Cty.,

182 A.3d 798 (Md. 2018) ..................................... 23

Dolan v. City of Tigard,

512 U.S. 374 (1994) .............................. 3, 13, 15-18

Douglass Properties II, LLC v. City of Olympia,

479 P.3d 1200 (Wash. Ct. App. 2021) ................. 23

F.P. Dev., LLC v. Charter Twp. of Canton, Mich.,

16 F.4th 198 (6th Cir. 2021) ................................ 21

Flagg Bros., Inc. v. Brooks,

436 U.S. 149 (1978) .................................. 25, 27-28

viii

Frost v. R.R. Comm’n of Cal.,

271 U.S. 583 (1926) ....................................... 14, 17

Highlands-In-The-Woods, L.L.C. v. Polk Cty.,

217 So. 3d 1175 (Fla. Dist. Ct. App. 2017) ......... 24

Hollis v. Itawamba County Loans,

657 F.2d 746 (5th Cir. 1981) ............................... 32

Home Builders Ass’n of Dayton & the

Miami Valley v. Beavercreek,

729 N.E.2d 349 (Ohio 2000) ................................ 22

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ........................................ 16-17

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ....................................... 25, 27

Jarvis v. Village Gun Shop, Inc.,

805 F.3d 1 (1st Cir. 2015) .................................... 33

Koontz v. St. Johns River Water

Management Dist.,

570 U.S. 595 (2013) ...................................... passim

Lambert v. City & County of San Francisco,

529 U.S. 1045 (2000) ....................................... 5, 13

Levin v. City & County of San Francisco,

71 F. Supp. 3d 1072 (N.D. Cal. 2014) ................... 3

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............................................. 17

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) .................................. 25-28, 34

ix

Melara v. Kennedy,

541 F.2d 802 (9th Cir. 1976) .......................... 33-34

Mira Mar Development Corp. v. City of Coppell,

421 S.W.3d 74 (Tex. Ct. App. 2013) .................... 22

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ............................................... 3

Owen v. City of Portland,

497 P.3d 1216 (Or. 2021) ....................................... 3

Parking Ass’n of Georgia, Inc. v. City of Atlanta,

515 U.S. 1116 (1995) ............................ 5, 14, 19-20

Parks v. “Mr. Ford,”

556 F.2d 132 (3d Cir. 1977) ............................ 32-33

Presley v. City of Charlottesville,

464 F.3d 480 (4th Cir. 2006) .......................... 31-32

Puce v. City of Burnsville,

__ N.W.2d __, 2022 WL 351119

(Minn. Ct. App. Feb. 7, 2022) ............................. 22

Simpson v. North Platte,

292 N.W.2d 297 (Neb. 1980) ............................... 16

Skinner v. Ry. Labor Executives’ Ass’n,

489 U.S. 602 (1989) ............................................. 29

Spencer v. Lee,

864 F.2d 1376 (7th Cir. 1989) ............................... 5

United States v. Classic,

313 U.S. 299 (1941) ....................................... 12, 28

x

Washington Townhomes, LLC v.

Washington Cty. Water Conservancy Dist.,

388 P.3d 753 (Utah 2016)............................. 4-5, 24

Yee v. City of Escondido,

503 U.S. 519 (1992) ............................................. 18

United States Constitution

U.S. Const. amend. IV ............................................. 1-2

U.S. Const. amend. V .................................................. 1

U.S. Const. amend. XIV, § 1 ....................................... 2

Statutes

28 U.S.C. § 1257(a) ..................................................... 1

Oakland Mun. Code § 8.22.850.D.1.......................... 28

Oakland Mun. Code § 8.22.860 ............................ 8, 28

Other Authorities

Callies, David L., Public and Private Land

Development Conditions: An Overview,

52 UIC J. Marshall L. Rev. 747 (2019) ............... 20

Mulvaney, Timothy M.,

The State of Exactions,

61 Wm. & Mary L. Rev. 169 (2019) ......... 12, 20-21

Niles, John Dorsett, et al.,

Making Sense of State Action,

51 Santa Clara L. Rev. 885 (2011) ...................... 30

xi

Rosenthal, Deborah, Nollan, Dolan,

and the Legislative Exception,

66 Plan. & Envtl. L. No. 3 (2014) ....................... 20

Sullivan, Kathleen M.,

Unconstitutional Conditions,

102 Harv. L. Rev. 1413 (1989) ....................... 14-15

Turner, Christian, State Action Problems,

65 Fla. L. Rev. 281 (2013) ................................... 30

1

PETITION FOR WRIT OF CERTIORARI

Lyndsey and Sharon Ballinger respectfully

request that this Court issue a writ of certiorari to

review the judgment of the Ninth Circuit Court of

Appeals.

OPINIONS BELOW

The opinion of the Ninth Circuit is published and

reported at Ballinger v. City of Oakland, __ F.4th __,

2022 WL 289180 (9th Cir. Feb. 1, 2022), and is

reproduced in Petitioners’ Appendix (App.) at A. The

district court’s opinion is published and reported at

Ballinger v. City of Oakland, 398 F. Supp. 3d 560

(N.D. Cal. 2019), and appears at App. B.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a). The Ninth Circuit Court of Appeals

dismissed this federal constitutional case in an

opinion issued on February 1, 2022.

CONSTITUTIONAL PROVISIONS

AND STATUTES AT ISSUE

The Takings Clause of the United States

Constitution provides that “private property [shall

not] be taken for public use, without just

compensation.” U.S. Const. amend. V.

The Fourth Amendment states, in part: “The right

of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

2

and seizures, shall not be violated . . . .” U.S. Const.

amend. IV.

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, that no state

shall “deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV,

§ 1.

Oakland Municipal Code Sections 8.22.8008.22.870, the text of which is attached as App. C.

INTRODUCTION

Lyndsey and Sharon Ballinger (Ballingers) are

nurse practitioners in the United States Air Force. In

2016, while living in Oakland, California, they were

assigned to temporary military duty on the East

Coast. App. B-4-5. Prior to leaving California, they

leased their three-bedroom home to a pair of software

engineers. Knowing their East Coast duty would be

short, they agreed only to a year-long lease with the

tenants, one which could be terminated at the end of

the year with a 60-day notice. Id. In 2018, they were

ready to give that notice as they prepared to return to

Oakland with a new baby. App. B-5.

However, the Ballingers soon learned that, while

they were away, the City of Oakland (City) passed a

law requiring rental property owners to pay between

$6,500 and $10,000 to their tenants—sometimes

called a “relocation payment”—before the owners

could lawfully end a tenancy and move home. App. B3-4. Oakland is one of approximately a dozen West

Coast cities that have adopted such ordinances in the

last decade. The tenant payments required by these

3

laws can range from a few thousand dollars to more

than a hundred thousand dollars. See Owen v. City of

Portland, 497 P.3d 1216, 1219 (Or. 2021) (“The

amount of relocation assistance required varies from

$2,900 for a studio to $4,500 for larger units.”); Levin

v. City & County of San Francisco, 71 F. Supp. 3d

1072, 1078-79 (N.D. Cal. 2014) (noting payment

amounts of “$117,958.89” and “$223,782.25”). Such

requirements are typically justified as a means to

mitigate for the high cost of acquiring rental housing

in West Coast cities. Levin, 71 F. Supp. 3d at 1085

(payments meant to mitigate high, open market

rental costs); Apartment Ass’n of Greater Los Angeles

v. City of Beverly Hills, No. CV 18-6840, 2019 WL

1930136, at *1 (C.D. Cal. Apr. 17, 2019) (relocation

payment scheme meant to address “the shortage of

affordable housing in the City, to halt the dramatic

rise in rent”).

The 2018 enactment of Oakland’s tenant payment

provisions meant that the Ballingers had to pay

$6,582.40 to their tenants before they could end their

tenancy according to the lease and return to their

home. Subject under the law to stiff penalties for

noncompliance, the Ballingers made the payment.

App. B-5; App. A-5.

The Ballingers then sued, claiming, in part, that

the ordinance provision requiring the transfer of their

money to their tenants was an unconstitutional

condition on their right to exclusively possess and use

their home. App. B-5-6. The Ballingers relied

significantly on this Court’s decisions in Nollan v.

California Coastal Commission, 483 U.S. 825 (1987),

and Dolan v. City of Tigard, 512 U.S. 374 (1994),

4

which hold that “a unit of government may not

condition the approval of a land-use permit on the

owner’s relinquishment of a portion of his property

unless there is a ‘nexus’ and ‘rough proportionality’

between the government’s demand and the effects of

the proposed land use.” Koontz v. St. Johns River

Water Management Dist., 570 U.S. 595, 599 (2013)

(restating the Nollan/Dolan inquiry). The Ballingers

further claimed that the tenant payment requirement

amounted to an unreasonable seizure of their

property; i.e., the $6,582.40 sum transferred to their

tenants under the law. App. B-22-24.

In a published decision, the Ninth Circuit

dismissed the Ballingers’ claims, holding that the

Nollan and Dolan tests do not apply to the ordinanceimposed payment condition. See App. A-20-23. The

court dismissed the Ballingers’ unreasonable seizure

claim on the ground that the loss of their money was

not “state action.” App. A-23-25.

The Ninth Circuit’s decision thus presents this

Court with the opportunity to address two important

and persistent questions. First, it raises an issue as to

the scope of the Nollan and Dolan unconstitutional

conditions tests and, particularly, whether those tests

apply to generally applicable regulations that impose

monetary conditions on the exercise of traditional

property rights. Many lower courts have adopted an

improperly narrow view of Nollan and Dolan, leaving

property owners without protection from regulations

that unconstitutionally extract property interests as a

condition of the exercise of a protected property right.

Further, courts are in conflict on the issue, a problem

that “stems in part from the Supreme Court’s lack of

5

clear guidance.” Washington Townhomes, LLC v.

Washington Cty. Water Conservancy Dist., 388 P.3d

753, 758 n.3 (Utah 2016).

Justices of this Court have accordingly expressed

a desire to address the issue. Lambert v. City &

County of San Francisco, 529 U.S. 1045 (2000) (Scalia,

J., dissenting from denial of certiorari); California

Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928,

928 (2016) (Thomas, J., concurring in denial of

certiorari); Parking Ass’n of Georgia, Inc. v. City of

Atlanta, 515 U.S. 1116 (1995) (Thomas, J., and

O’Connor, J., dissenting from denial of certiorari).

That this Court has not yet done so “casts a cloud on

every decision by every local government to require a

person seeking a permit to pay or spend money.”

Koontz, 570 U.S. at 627-28 (Kagan, J., dissenting).

Second, the decision below raises an important

issue as to whether a legally required transfer of

private funds from one private party to another

involves sufficient “state action” to justify a 42 U.S.C.

§ 1983 claim under the Fourth Amendment. “Despite

the great number of cases and the seemingly wellhoned lexicon of ‘tests,’ the concept of ‘state action’

remains a difficult one.” Spencer v. Lee, 864 F.2d 1376,

1382 (7th Cir. 1989) (Ripple, J., concurring in part and

dissenting in part). The Ninth Circuit’s failure to find

that state action arises when a law directly compels

the transfer of property from one party to another

highlights the continuing problem and conflicts with

this Court’s precedent and with the decisions of other

circuits.

The Court should grant the Petition to decide that

the unconstitutional conditions doctrine applies when

6

a regulation requires a property owner to cede

property prior to engaging in a traditional use of

property, such as the right to occupy one’s home,

thereby resolving the disagreement among lower

courts. It should further grant the Petition to hold

that when a law compels one private party to transfer

property to another, the law itself creates “state

action” subject to redress under the Fourth

Amendment. Since both issues were addressed below

on the merits, and without procedural impediment,

this case presents a clean vehicle for resolving the

questions presented.

STATEMENT OF THE CASE

This Petition arises from the Ninth Circuit’s

conclusion that the Ballingers have no viable claim,

under the unconstitutional conditions doctrine or

Fourth Amendment, against an ordinance requiring

them to transfer $6,582.40 to their tenants before they

could end a tenancy and reoccupy their home for

personal use.

A. The Ballingers’ Lease and Enactment of the

Tenant Payment Requirement

In 2015, while serving in the Air Force as nurse

practitioners, the Ballingers owned and lived in a

single-family home in Oakland. App. B-4. When the

Ballingers were notified that they were being

temporarily assigned to the Washington, D.C., area,

they decided to rent their home to a pair of local

software engineers. App. B-4. Knowing they would

have to return to the Bay Area before too long, the

Ballingers entered into a one-year lease that ended in

September of 2017. At that point, the lease converted

7

to a month-to-month tenancy which either party could

terminate. Id.

In January 2018, the City of Oakland amended

prior ordinances to include new sections requiring

rental property owners to make a tenant “relocation

payment” before ending a tenancy and moving back

into a home. See App. C. As part of a “Uniform Tenant

Relocation Ordinance,” the new provisions directed

rental owners to make payments according to a

schedule that calculates the amount due based on the

size of the unit. App. B-3-4. Tenants are entitled to a

$6,500 payment if they leave a one-bedroom unit,

$8,000 when departing a two-bedroom unit, and

$9,875 for a three-bedroom unit. App. C-3. Tenant

households that “include lower income, elderly or

disabled Tenants, and/or minor children shall be

entitled to a single additional relocation payment of

two thousand five hundred dollars ($2,500.00) per

unit from the Owner.” Id. at C-4.

In enacting the ordinance, the City explained that

the mandated payments are necessary to mitigate for

displaced tenants’ relocation costs and related “social

equity” issues. Excerpts of Record on Appeal at 42-43,

67-70 (Ninth Circuit Docket No. 8). More particularly,

the tenant payment is designed to mitigate for the

high cost of new tenant housing in Oakland. App. B-3.

However, the ordinance does not require a departing

tenant to use the payment for housing needs. A tenant

may use a “relocation” payment for any personal

purpose. App. A-5.

Owners who fail to make the required tenant

payment are subject to criminal, administrative, and

8

civil penalties. App. C-8-9 (Oakland Mun. Code

§ 8.22.860).

B. The Ballingers’ Payment and Federal Suit

for Reimbursement

In 2016, when the Ballingers executed a one year

lease to rent their home, the tenant payment

requirement did not exist. App. B-4. However, by the

time the Ballingers were ready to return to the Bay

Area from their East Coast assignment, the ordinance

was in force. Needing to return to their home

immediately, the Ballingers complied with the

ordinance. They gave their tenants a 60-day notice of

termination of the lease, in accordance with the lease,

and paid the tenants $6,582.40, as required by the

City ordinance. Id. at B-5.

On November 28, 2018, the Ballingers sued the

City of Oakland in the U.S. District Court for the

Northern District of California. Two months later,

they filed a First Amended Complaint (FAC), the

operative complaint. In that pleading, the Ballingers

asserted six claims: (1) a facial claim for a per se,

physical taking of private property for a private

purpose, (2) an as-applied claim for an uncompensated

and unconstitutional physical taking, (3) facial and

as-applied

claims

under

the

Nollan/Dolan

unconstitutional conditions doctrine, (4) facial and asapplied claims for an unreasonable seizure under the

Fourth Amendment, (5) an as-applied claim for

violation of due process, and (6) a claim for

unconstitutional interference with the obligation of

9

contract. The Ballingers sought damages (just

compensation) and equitable relief.1 App. B-5-6.

The City moved to dismiss the FAC under Federal

Rule of Civil Procedure 12(b)(6). In the ensuing

litigation, the Ballingers argued that the tenant

payment requirement violates the Nollan/Dolan

unconstitutional conditions doctrine because it forces

them to surrender property (money) to exercise their

right to occupy their home, without any connection

between the monetary demand and the impact of their

property use. In response, the City argued that the

Nollan/Dolan tests are inapplicable to the tenant

payment mandate because “generally applicable

legislation is not subject to” such tests, App. B-14. It

also contended that the Ballingers’ Fourth

Amendment seizure claim fails due to the absence of

“state action.” App. B-22.

In a published opinion, the district court granted

the City’s motion. Explaining that the Nollan/Dolan

unconstitutional conditions doctrine only “exists to

prevent the government from using its coercive power

to demand unconstitutional conditions in adjudicative

settings, not to impede the enforcement of generally

applicable laws,” the district court held that the

tenant payment requirement was outside the scope of

Nollan/Dolan. App. B-15-16. With respect to the

seizure claim, it held that “the Ballingers . . . have not

met the preliminary requirement of alleging that a

state actor caused the deprivation.” App. B-23.

1 Because the Ballingers have recently moved out of the City of

Oakland, they no longer press their request for equitable relief.

They continue to seek reimbursement and damages under 42

U.S.C. § 1983.

10

Relying on Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999), the court explained, “The City’s

mere authorization [of a seizure], as opposed to

encouragement, is not state action.” App. B-24. The

district court accordingly dismissed the Ballingers’

claims.

The Ballingers timely appealed to the Ninth

Circuit. In so doing, they relied solely on their federal

takings,

unconstitutional

conditions,

and

unreasonable seizure claims.

C. The Ninth Circuit Opinion

In an opinion issued on February 1, 2022, the

Ninth Circuit affirmed the district court judgment.

App. A. With respect to the unconstitutional

conditions claim, the Ninth Circuit held that the

tenant payment is not the type of land use condition

subject to Nollan and Dolan. The court’s reasoning

varied. It pointed first to the “landlord/tenant”

regulatory context, App. A-7, 9, and the payment

mandate’s character as a general “monetary

obligation,” rather than a demand for a “specific,

identifiable pool of money,” App. A-10-11, as a basis

for concluding that no taking of property or actionable

claim under Nollan and Dolan existed. App. A-18. The

court later held that Nollan and Dolan also do not

apply because the payment mandate is not tethered to

a “government benefit, such as a permit.” App. A-23.

While the court recognized that Nollan and Dolan

might theoretically apply to legislation, it concluded

that the absence of an explicit “government benefit,

11

like a permit,” defeated the Ballingers’ Nollan and

Dolan claims. App. A-22-23.

In affirming dismissal of the “unreasonable

seizure” claim, the Ninth Circuit concluded that the

tenant payment mandate did not involve “state

action.” It stated:

The City did not participate in the monetary

exchange between the Ballingers and their

tenants. Neither did it “exercise[ ] coercive

power” . . . . At most, the City was only

involved in adopting an ordinance providing

the terms of eviction and payment. But

enacting the Ordinance of this nature is not

enough—entitling tenants to demand a

relocation payment is a “kind of subtle

encouragement . . . no more significant than

that which inheres in [a government entity]’s

creation or modification of any legal remedy.”

Adopting the Ballingers’ expansive notion of

state action would eviscerate the “essential

dichotomy between public and private acts.”

App. A-24-25 (citations omitted).

REASONS FOR GRANTING THE PETITION

Although this Court has affirmed the applicability

of the unconstitutional conditions doctrine to property

regulation, through the Nollan and Dolan “nexus” and

“rough proportionality” tests, lower courts remain

confused about the scope of those standards. Many

courts limit Nollan and Dolan to only certain contexts,

such as when a condition arises from a formal “permit”

decision. This conflicts with this Court’s broader

12

articulation of the doctrine, and with other court

decisions that give Nollan and Dolan a broader reach,

including to generally applicable conditions.

Timothy M. Mulvaney, The State of Exactions, 61 Wm.

& Mary L. Rev. 169, 219 (2019) (observing that

“application of Nollan’s and Dolan’s ‘nexus’ and

‘proportionality’ standards generally has been

confined to a narrowly construed set of ‘concrete and

specific,’ ad hoc demands”).

This case also raises a fundamental constitutional

question as to whether a legally required transfer of

property from one person to another involves “state

action” sufficient to justify a claim under 42 U.S.C.

§ 1983. Long ago, this Court recognized that state

action exists where a challenged wrong occurs “by

virtue of state law and [is] made possible only because

the wrongdoer is clothed with the authority of state

law,” United States v. Classic, 313 U.S. 299, 326

(1941). Yet, some circuits, including the Ninth Circuit

in this case, have failed to apply this core principle.

This is troubling. If a law that authorizes and directs

a private citizen to appropriate another’s property is

not constitutionally actionable as “state action,” as the

decision below holds, governments can escape the

property rights protections found in the Constitution

by the expedient of authorizing private parties to

directly appropriate property for a public good.

Moreover, the decision below adds to a conflict among

lower courts on the effect of coercive law in the state

action inquiry.

This Court should grant the Petition to confirm

that Nollan/Dolan broadly apply to government

actions, including generally applicable regulation,

13

that require citizens to surrender property as the price

of exercising basic property rights. See, e.g., Lambert,

529 U.S. at 1045 (Kennedy, J., dissenting from denial

of certiorari). It should also grant the Petition to hold

that state action exists when a law compels a transfer

of property from one party to another.

I.

THE DECISION BELOW RAISES AN

IMPORTANT CONSTITUTIONAL

QUESTION ABOUT THE REACH OF

NOLLAN AND DOLAN AND DEEPENS A

PERSISTENT CONFLICT ON THE ISSUE

Under Nollan and Dolan, the government may

require a person to cede a property interest as a

condition of using real property when necessary to

mitigate for the impact of the proposed use. There

must be an “essential nexus” and “rough

proportionality” between the condition and the impact

of the property use. Koontz, 570 U.S. at 604-05; see

also Dolan, 512 U.S. at 385 (“[G]overnment may not

require a person to give up a constitutional right . . .

to receive just compensation when property is taken

for a public use [ ] in exchange for a discretionary

benefit [that] has little or no relationship to the

property.”); Koontz, 570 U.S. at 604 (the doctrine

prevents “the government from coercing people into

giving [rights] up”).

As the following shows, this Court has portrayed

the Nollan/Dolan inquiry as a broadly applicable

means to separate conditions that are properly

tailored to mitigate negative externalities related to

property use from those that improperly force

14

property owners to solve public problems. See, e.g.,

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072

(2021). The Ninth Circuit’s decision in this case is

inconsistent with this view and conflicts with other

lower court decisions that apply the Nollan and Dolan

tests to property rights conditions that arise from

generally applicable regulation. Parking Ass’n of

Georgia, 515 U.S. at 1117 (Thomas, J., dissenting from

denial of certiorari) (recognizing a nationwide split of

authority); California Bldg. Indus. Ass’n, 136 S. Ct. at

928 (Thomas, J., concurring in denial of certiorari).

A. The Decision Below Conflicts With the

Court’s Precedent

1.

The Nollan/Dolan tests

In its most general sense, the unconstitutional

conditions doctrine enforces constitutional limitations

on state power by forbidding the government from

doing indirectly, through conditions on private

activity, what it cannot accomplish directly. Koontz,

570 U.S. at 606. As this Court explained nearly a

century ago,

the power of the state . . . is not unlimited,

and one of the limitations is that it may not

impose conditions which require the

relinquishment of constitutional rights. . . .

It is inconceivable that guarantees embedded

in the Constitution . . . may thus be

manipulated out of existence.

Frost v. R.R. Comm’n of Cal., 271 U.S. 583, 593-94

(1926); see generally Kathleen M. Sullivan,

Unconstitutional Conditions, 102 Harv. L. Rev. 1413,

15

1421-22 (1989) (noting that unconstitutional

conditions problems arise when government imposes

a condition that requires one to “forego an activity

that a preferred constitutional right normally protects

from government interference”).

This Court has described the Nollan and Dolan

tests as a “special application” of the unconstitutional

conditions doctrine in the property rights context. In

Koontz, the Court explained that the “nexus” and

“rough proportionality” tests supply a balanced and

fair method for gauging the constitutionality of

conditions on the exercise of property rights. While

the tests allow government to impose conditions that

mitigate the negative externalities of a proposed

property use, they ferret out and reject property use

conditions that are vehicles for taking property for a

public good. 570 U.S. at 604-06.

To ensure that Nollan and Dolan fulfill their

intended purposes, the Court has repeatedly turned

back attempts to limit their tests to only certain kinds

of conditions or government actions. For instance, in

Dolan, this Court applied the standards to invalidate

two development conditions required by a generally

applicable regulatory scheme. 512 U.S. at 377-78. The

Dolan Court rejected the dissent’s claim that the

commercial nature of the property immunized the

conditions from the unconstitutional conditions

doctrine. Id. at 392 (“[S]imply denominating a

governmental measure as a ‘business regulation’ does

not immunize it from constitutional challenge.”). The

Dolan Court also rejected the dissent’s insistence that

application of Nollan and Dolan to the ordinancemandated conditions would interfere with the

16

“necessary and traditional breadth of municipalities’

power to regulate property development.” Id. at 407

n.12 (Stephens, J., dissenting), id. at 390 (quoting

Simpson v. North Platte, 292 N.W.2d 297, 301 (Neb.

1980)).

Subsequently, in Koontz, this Court rejected the

argument that the Nollan/Dolan tests are

inapplicable to conditions requiring monetary

payments as a predicate to the exercise of a real

property interest. 570 U.S. at 612. And in Cedar Point,

the Court made clear that Nollan and Dolan apply to

common property use conditions found in generalized

health and safety regulatory schemes. 141 S. Ct. at

2079. Thus, the Court has articulated the Nollan and

Dolan tests as a broadly applicable means to enforce

the principles of fairness and justice—a central

purpose

of

the

Takings

Clause—whenever

government imposes conditions on “basic and familiar

uses of property.” Id. at 2080 (quoting Horne v. Dep’t

of Agric., 576 U.S. 350, 366 (2015)).

2.

The Ninth Circuit decision is

irreconcilable with this Court’s cases

In contrast, in the decision below, the Ninth

Circuit adopted a narrow view of the unconstitutional

conditions doctrine by refusing to apply Nollan and

Dolan to a law requiring rental owners to pay tenants

before the owner may lawfully reoccupy their home for

their exclusive use. The court concluded that the

Nollan/Dolan

“essential

nexus”

and

“rough

proportionality” tests are inapplicable because the

condition (1) is a regulation of tenant/landlord

relations, App. A-7, 9, (2) does not take a “specific pool”

of funds, but only imposes a general monetary

17

obligation, id. at A-9-11, id. at A-18, and (3) arises

from a general regulatory scheme, rather than a

specific permit decision. Id. at A-23.

This exception-riddled conception of Nollan and

Dolan is inconsistent with this Court’s understanding

of the unconstitutional conditions doctrine. Indeed, in

its early and foundational decision in Frost, the Court

applied the doctrine to a state law that required

trucking companies to dedicate personal property as a

condition of using highways. 271 U.S. at 593-94. The

Court did not consider it necessary for a formal permit

to be at issue to apply to invalidate the legislated

requirements.

More recently, the Court has repeatedly refused

to adopt the idea, accepted below, that property

owners can be subject to otherwise objectionable

conditions if they put property into “business” or

“commercial” use. Cedar Point, 141 U.S. at 2080

(“basic and familiar uses of property” are not a special

benefit that “the Government may hold hostage, to be

ransomed by the waiver of constitutional protection”

(quoting Horne, 576 U.S. at 366)); see also Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419,

439 n.17 (1982) (“a landlord’s ability to rent his

property may not be conditioned on his forfeiting the

right to compensation” for a physical occupation).

There is no basis for the Ninth Circuit’s conclusion

that Nollan and Dolan do not apply if a condition can

be characterized as “a regulation of the landlordtenant relationship.” Dolan, 512 U.S. at 392 (rejecting

an exemption for conditions rooted in “business

regulation”).

18

To be sure, property owners may expect some

regulation when they rent, but they do not

permanently cede their right to occupy their own

property because of that (temporary) business

decision. Id.; see also, Yee v. City of Escondido, 503

U.S. 519, 528 (1992) (“A different case would be

presented were the statute, on its face or as applied,

to compel a landowner over objection to rent his

property or to refrain in perpetuity from terminating

a tenancy.”); Alabama Ass’n of Realtors v. Dep’t of

Health & Human Services, 141 S. Ct. 2485, 2489

(2021) (confirming that restrictions on an owner’s

ability to recover possession of rental property are

subject to substantial scrutiny because they burden

the protected “right to exclude” others). By the same

token, owners should not be deprived of the

protections afford by the unconstitutional conditions

doctrine when the exercise of a basic property right—

such as the right to personally occupy one’s home—is

subject to an unrelated or disproportionate condition.

But that is exactly where the decision below leaves the

law.

The Ninth Circuit’s other reasoning is equally out

of line with this Court’s jurisprudence. The Ninth

Circuit’s conclusion that Nollan and Dolan do not

apply when a condition arises without a formal

“permit” decision conflicts with Cedar Point’s

application of the doctrine to health and safety

regulations. 141 S. Ct. at 2079. To be sure, the Ninth

Circuit disclaimed any intent to rely on the

“legislative” nature of Oakland’s tenant payment

requirement as a sole basis for declining to apply the

Nollan and Dolan tests. Yet, its subsequent

conclusion, that the tests do not apply unless there is

19

a “grant of a government benefit, such as a permit,”

renders the former disclaimer of no effect. After all,

legislatures rarely grant “permits;” that task is left to

executive branch agencies acting in an administrative

or adjudicative capacity. The court’s conclusion that a

formal “permit” is required to trigger Nollan and

Dolan is just a more subtle way of holding Nollan and

Dolan inapplicable to legislative demands, and that is

unsupportable. Parking Ass’n of Georgia, 515 U.S. at

1117-18 (Thomas, J., dissenting from denial of

certiorari) (“the general applicability of the ordinance

should not be relevant”).

Finally, the Ninth Circuit’s holding that a

condition must take a “specific, identifiable” pool of

money to trigger Nollan and Dolan is inconsistent

with Koontz. There, of course, this Court applied

Nollan and Dolan to a condition that required the

payment of an amount of money that could come from

any source; the same type of monetary demand in this

case. Koontz, 570 U.S. at 612.

This Court should grant the Petition to explicitly

hold what its precedent already implies: the Nollan

and Dolan tests apply to conditions that demand a

concession of property as the price of exercising a

traditional property right—whether they arise from

an individualized permit decision or a generally

applicable regulatory scheme, whether in the land

development context or the rental regulatory arena.

Taking this step would not render all tenant

payments or other conditions constitutionally infirm.

Cedar Point, 141 S. Ct. at 2079. It would simply allow

courts to distinguish between conditions that are

properly tailored to mitigate negative externalities

20

and those that wrongly force property owners to solve

problems that are more properly remedied by the

public as a whole. The Ninth Circuit’s decision leaves

the Ballingers and other property owners within the

Ninth Circuit’s jurisdiction devoid of that sensible

protection.

B. The Decision Below Conflicts With the

Decisions of Other Federal and State

Courts

Review is additionally warranted because the

Ninth Circuit’s decision deepens a longstanding split

among the courts on the question whether and when

generally applicable permit conditions are subject to

review under Nollan and Dolan. See Parking Ass’n of

Georgia, 515 U.S. at 1117 (Thomas, J., dissenting);

California Bldg. Indus. Ass’n, 136 S. Ct. at 928

(Thomas, J., concurring); David L. Callies, Public and

Private Land Development Conditions: An Overview,

52 UIC J. Marshall L. Rev. 747, 767-69 (2019)

(discussing conflicts among courts); Deborah

Rosenthal, Nollan, Dolan, and the Legislative

Exception, 66 Plan. & Envtl. L. No. 3, p. 4 (2014)

(discussing the difficulty that courts have in applying

the doctrine to regulatory exactions and their

inconsistent results). This split of authority is firmly

entrenched and cannot be resolved without this

Court’s intervention. Koontz, 570 U.S. at 628 (Kagan,

J., dissenting) (noting that Court’s “refusal ‘to say

more’” about the doctrine’s application to generally

applicable conditions injects uncertainty into local

government decisions to impose monetary conditions);

see also Mulvaney, 61 Wm. & Mary L. Rev. at 194

(describing the issue of the scope of Nollan/Dolan as

21

“[o]ne of the most pressing questions across the entire

realm of takings law”).

1.

The decision below conflicts with the

Sixth Circuit’s approach

In F.P. Dev., LLC v. Charter Twp. of Canton,

Mich., 16 F.4th 198, 206 (6th Cir. 2021), the Sixth

Circuit held that an ordinance-mandated condition on

the development of private property violated Nollan

and Dolan. At issue was a municipal ordinance that

requires property owners to either plant trees or pay

a mitigation fee as a condition of approval of

development actions that will remove trees. Id. at 20102. The quantity of mitigation was preset by the

ordinance. Id. As a result of clearing activities on the

plaintiff’s property, the township demanded that it

either plant 187 new trees or pay $47,898 into a tree

fund. Id. at 202.

On appeal, the Sixth Circuit applied Nollan and

Dolan to the requirement, holding that the Township

had failed to show that the ordinance-mandated

conditions were roughly proportional to the impacts of

the development. Id. at 206-07. The court did so

despite the fact the conditions did not arise from an

individualized permit decision.

In contrast, in this case, the Ninth Circuit refused

to apply Nollan and Dolan to the tenant payment

requirement in part because “the Ordinance does not

conditionally grant or regulate the grant of a

government benefit, such as a permit, and therefore

does not fall under the unconstitutional-conditions

umbrella.” App. at A-22-23.

22

2.

The decision below conflicts with state

court decisions

The Ninth Circuit’s decision is also in conflict with

state court decisions that broadly apply Nollan and

Dolan to generally applicable monetary conditions,

including decisions from courts in Minnesota, Texas,

and Ohio.

In the recent case of Puce v. City of Burnsville, a

Minnesota appellate court held that a law requiring

developers to pay a park impact fee of 5% of a project’s

value was subject to the Nollan and Dolan tests. See

__ N.W.2d __, 2022 WL 351119, at *8 (Minn. Ct. App.

Feb. 7, 2022). In Texas, an appellate court reached a

similar result in Mira Mar Development Corp. v. City

of Coppell, 421 S.W.3d 74, 95-96 (Tex. Ct. App. 2013).

There, the Texas court held that Nollan/Dolan apply

to generally applicable monetary conditions and that

a tree mitigation fee violated the doctrine, because it

was based on a formula that was not related to actual

development impacts. Id. Finally, the Ohio Supreme

Court held that Nollan and Dolan applied to an

ordinance establishing a system of impact fees

payable by developers of real estate to aid in the cost

of new roadway projects. Home Builders Ass’n of

Dayton & the Miami Valley v. Beavercreek, 729 N.E.2d

349 (Ohio 2000).

The tenant payment requirement in this case is

comparable to the generally applicable monetary

conditions in Puce, Mira Mar, and Beavercreek. In

each case, the condition was mandated by legislation

and a payment amount preset by a generally

applicable formula. App. A-4-5. But, unlike the

aforementioned state court decisions, the decision

23

below holds that Nollan and Dolan do not apply to

such conditions. As a result, the court below refused

to even consider whether the $6,582.40 payment

required of the Ballingers—most of which is supposed

to mitigate the high cost of replacement housing—is

reasonably related to the Ballingers’ reoccupation of

their home. App. A-19-23.

In this respect, the Ninth Circuit’s decision is in

line with other lower court decisions that evade

Nollan and Dolan. Such decisions allow the

government to impose conditions that do not address

any adverse impact from property use and which

consequently function as an indirect means to acquire

private property interests for public use. Indeed, since

Koontz, numerous state courts have found ways to

exclude generally applicable monetary conditions

from Nollan and Dolan. These decisions include:

Douglass Properties II, LLC v. City of Olympia, 479

P.3d 1200, 1203 (Wash. Ct. App. 2021) (“the

Nollan/Dolan test does not apply to . . . generally

applicable fees”); Anderson Creek Partners, L.P. v. Cty.

of Harnett, 854 S.E.2d 1, 13-14 (N.C. Ct. App. 2020) (a

generally applicable fee does not invoke the

unconstitutional conditions doctrine); Dabbs v. Anne

Arundel Cty., 182 A.3d 798, 811 (Md. 2018) (“fees

imposed on a generally applicable basis are not

subject to a rough proportionality or nexus analysis”);

California Bldg. Indus. Ass’n v. City of San Jose, 351

P.3d 974, 998, 990 n.11 (Cal. 2015) (exempting general

“conditions that require an applicant to pay a

monetary fee as a condition of obtaining a permit”

from heightened scrutiny); Am. Furniture Warehouse

Co. v. Town of Gilbert, 425 P.3d 1099, 1106 (Ariz. Ct.

App. 2018) (holding that generally applicable

24

conditions are

Nollan/Dolan).

not

subject

to

scrutiny

under

Still other courts are so confused on the issue of

whether Nollan and Dolan extend to generalized

regulatory conditions on the use of property that they

have largely given up trying to resolve the issue until

this Court addresses the issue. See Highlands-In-TheWoods, L.L.C. v. Polk Cty., 217 So. 3d 1175, 1178 n.3

(Fla. Dist. Ct. App. 2017) (“[I]t is unclear whether the

Nollan and Dolan standard applies to generally

applicable legislative determinations that affect

property rights[.]”); Washington Townhomes, LLC v.

Washington Cty. Water Conservancy Dist., 388 P.3d

753, 758 & n.3 (Utah 2016) (noting confusion among

the courts after Koontz and remanding the case to the

lower court to determine the “difficult” question of

whether an impact fee regime is subject to

Nollan/Dolan).

The decision below continues the misguided

attempts by some courts to limit Nollan and Dolan to

the individualized permit context, in conflict with

courts that properly apply Nollan and Dolan to

extractive property conditions, regardless of the

source or generality of the demand. The central

purpose of the Nollan and Dolan tests—to ensure that

the government does not “thwart the Fifth

Amendment right to just compensation” by pressuring

a landowner to surrender constitutionally property

interests to use, or occupy, their property—can only be

satisfied if the doctrine is applied in a consistent

manner throughout the nation. This case provides the

Court with a clear, clean, and much-needed

opportunity to address the judicial split on the

25

applicability of Nollan and Dolan when a claim

targets generally applicable property use conditions

arising outside the permitting context. California

Bldg. Indus. Ass’n, 136 S. Ct. at 929 (Thomas, J.,

concurring) (noting the “compelling reasons for

resolving this conflict at the earliest practicable

opportunity”). The Court should accordingly grant the

Petition.

II.

THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENT

AND THE DECISIONS OF OTHER

CIRCUITS IN HOLDING THAT A

LAW THAT COMPELS A SEIZURE OF

PROPERTY IS INSUFFICIENT TO

CREATE “STATE ACTION”

The decision below also raises a significant

question about the proper “state action” analysis

when a law authorizes a private party to seize the

property of another. The understanding that

constitutional plaintiffs can contest “state actions,”

but not private actions, reflects the truth that “most

rights secured by the Constitution are protected only

against infringement by governments.” Flagg Bros.,

Inc. v. Brooks, 436 U.S. 149, 156 (1978). The state

action requirement helps ensure “the essential

dichotomy set forth in [the Fourteenth] Amendment

between deprivation by the State, subject to scrutiny

under its provisions, and private conduct, ‘however

discriminatory or wrongful,’ against which the

Fourteenth Amendment offers no shield.” Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 349 (1974).

Indeed, “adherence to the ‘state action’ requirement

26

preserves an area of individual freedom by limiting

the reach of federal law and federal judicial power” to

governmental action.2 Lugar v. Edmondson Oil Co.,

457 U.S. 922, 936 (1982).

Thus, seizures of property effectuated by the

government are subject to constitutional challenge

under 42 U.S.C. § 1983, in general, while those carried

out through private conduct are generally not. In the

decision below, the Ninth Circuit held that the

Ballingers could not raise a Fourth Amendment

“seizure” claim against the ordinance-mandated

transfer of money to their tenants because it was not

accomplished through “state action.” App. A-24-25.

This conclusion is irreconcilable with this Court’s

“state action” precedent and highlights a conflict

among the federal circuit courts on the role and weight

of coercive law in the state action inquiry in cases

where the law authorizes one private party to seize

the property of another.

A. The Decision Below Conflicts With This

Court’s Emphasis on the Role of Coercive

Law in the “State Action” Analysis

As a general guidepost, this Court has explained

that “state action may be found if . . . there is such a

‘close nexus between the State and the challenged

action’” that seemingly private behavior “may be fairly

treated as that of the State itself.” Brentwood

Academy v. Tennessee Secondary School Athletic

2 This Court has held that, in a § 1983 action, “the statutory

requirement of action ‘under color of state law’ and the ‘state

action’ requirement of the Fourteenth Amendment are identical.”

Lugar, 457 U.S. at 929.

27

Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson, 419

U.S. at 351). The Court has further noted that the

criteria which inform this test “lack rigid simplicity.”

Id. No “set of circumstances [is] absolutely sufficient.”

Id.; see id. at 296 (“Our cases have identified a host of

facts that can bear” on test.).

Nevertheless, the Court has repeatedly

emphasized that the government’s role in enacting a

law that compels a private party’s invasion of a

constitutional right is a critical, and sometimes

dispositive, factor. In Lugar, the Court stated that

state action could largely be determined by whether

the deprivation “resulted from the exercise of a right

or privilege having its source in state authority.” 457

U.S. at 939. The Court has similarly stated that a

challenged action is likely to qualify as state action

when it results from the exercise of “coercive power.”

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Thus,

while a state’s “mere acquiescence in a private action”

is not enough for state action, Flagg Bros., 436 U.S. at

164, “a State is responsible for the . . . act of a private

party when the State, by its law, has compelled the

act.” Id. (quoting Adickes v. S. H. Kress & Co., 398 U.S.

144, 170 (1970)). A seizure of property that results

from a “procedural scheme created by the statute” is

often “state action.” Lugar, 457 U.S. at 941.

The Ninth Circuit’s conclusion in this case, that

the Ballingers’ unreasonable seizure claim against the

City fails for lack of “state action,” is incompatible

with the Court’s framework for deducing “state

action.” In this case, the City enacted a law that

“requires landlords re-taking occupancy of their

homes upon the expiration of a lease to pay tenants a

28

relocation payment” of between $6,500-10,000. App.

A-2 (emphasis added). Under the ordinance, “[t]he

Owner must pay the tenant half of the relocation

payment . . . when the termination [of lease] notice is

given to the household and the remaining half when

the tenant vacates the unit.” App. C-6 (Oakland Mun.

Code § 8.22.850.D.1). Further, these payment

requirements are backed by the threat of criminal

penalties and substantial civil penalties outlined in

the law. App. C-8-9 (Oakland Mun. Code § 8.22.860).

The only reason the Ballingers paid their tenants

$6,500 was the command of the ordinance and the

threat of penalties. The tenants took the sum and left.

The Ninth Circuit should have quickly identified

this set of circumstances as a form of state action

subject to a Fourth Amendment claim. After all, the

City, “by its law, has compelled” the taking of money

from the Ballingers and its transfer to tenants. Flagg

Bros., 436 U.S. at 164. This transfer results solely

from a “procedural scheme” that exists and operates

by law. Lugar, 457 U.S. at 941. Yet, the Ninth Circuit

ignored the coercive role of the City’s ordinance in its

state action analysis, holding that it is “not enough”

that an ordinance compels a transfer of property from

one party to another. App. A-25.

The Court should take this case to affirm that a

seizure “by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of

state law, is state action taken ‘under color of ’ state

law.” Classic, 313 U.S. at 326; Blum, 457 U.S. at 100412 (indicating that “coercion” or “significant

encouragement,” would create a “nexus” between the

state and the action). Without such intervention, the

29

government will be able to evade constitutional limits

on property seizures designed to serve some public

purpose simply by passing laws that cause seizures to

occur directly between private parties. The Court

should close this constitutional loophole. Cf. Skinner

v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614-15

(1989) (when a search of property derives from the

encouragement of a statute or regulation and is thus

not “primarily the result of private initiative,” the

Fourth Amendment applies).

B. The Decision Below Exacerbates a Conflict

Among the Circuits on the Proper “State

Action” Analysis When Laws Authorize a

Private Seizure of Property

The Ninth Circuit’s resolution of the state action

requirement is also worthy of review because it

highlights, and adds to, a persistent conflict among

the circuit courts on the proper state action analysis

when a law allows a private party to seize property.

The decisions of some circuit courts, including the

Third, Fourth, Fifth, Eighth, and Tenth Circuits,

focus heavily on the role and force of state law in

considering whether a private seizure involves state

action. Under this approach, the courts typically find

that state action exists.

In contrast, the First Circuit focuses less on the

role of state law in authorizing a seizure and more on

the nature of the private party acquiring property in

deciding whether a seizure results from state action.

That approach does not result in a finding of state

action. The decision below sides with the First Circuit,

in conflict with the majority of other circuits

addressing the issue. In so doing, the decision below

30

deepens the split among federal courts on the proper

approach to the state action requirement when state

law authorizes a private party to seize the property of

another. See John Dorsett Niles, et al., Making Sense

of State Action, 51 Santa Clara L. Rev. 885, 886 (2011)

(noting that that judicial inconsistency in the weight

afforded to certain state action factors renders “state

action” issues difficult for practitioners and courts to

predict); Christian Turner, State Action Problems, 65

Fla. L. Rev. 281, 290 (2013) (The lower federal courts

have reached little agreement as to “which facts truly

matter, how much they matter, or why they matter.”).

1.

The Third, Fourth, Fifth, Eighth, and

Tenth Circuits give weight to the

authority of state law in gauging

whether a seizure by a private party

involves “state action”

As noted above, decisions from the Third, Fourth

Fifth, Eighth, and Tenth Circuits give heavy weight to

the role of law in directing a seizure of property by a

private party when considering if state action is

present.

In Coleman v. Turpen, 697 F.2d 1341, 1345 (10th

Cir. 1982), the Tenth Circuit held that the seizure and

sale of a vehicle by a private party acting under

authority of state law involved “state action” sufficient

to justify a Fourth Amendment claim. In so holding,

the Tenth Circuit explained that “[t]he State, in

enacting section 7–210 [of a statute], created the right

exercised by [the private seller] when it sold the

truck.” Id. The court accordingly held that in thus

“allowing [the private party] to sell the camper, the

State . . . deprived [the vehicle owner] of his property

31

in joint participation with [the seller],” creating “state

action.” Id.

To the same effect is the Eighth Circuit’s decision

in Cox Bakeries of North Dakota, Inc. v. Timm Moving

& Storage, Inc., 554 F.2d 356, 360 (8th Cir. 1977).

There, a bakery owner asked a manager to store

$25,000 worth of business equipment after the

bakery’s closure. The equipment was soon stored with

a private moving and storage company. When that

company and the bakery could not agree on payment

for the storage, the storage company sold the disputed

equipment without notice at a public auction. It did so

under authority of a North Dakota statute. The

Eighth Circuit focused on this state law authority in

finding state action, ruling that “where a creditor is

given authority by the state to unilaterally act on the

resolution of legal disputes, his exercise of such

authority must be delimited by the restraints of due

process.” Id.

The Fourth Circuit also accords great weight to

the role of legal authorization in considering whether

an alleged seizure arises from state action. See Presley

v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006).

In Presley, a city published and distributed a map that

showed a public trail crossing private property. When

people began relying on the map to trespass, the

owner complained to the city, but it did not rescind the

map. Id. at 482. When the owner asserted an

unreasonable seizure claim, the Fourth Circuit held

that the claim was viable—even though the

trespassing and seizure was by private parties—

because the city

32

knew that the [ ] trail map would encourage

public use of the trail—this was, after all, the

map’s purpose . . . [and] also knew that the

City’s involvement would communicate to

trail users that there were no legal barriers

to their use of the entire trail, including the

portion that cut through Presley’s property.

Id. at 488.

The Fifth Circuit uses a similar analysis to the

state action issue. In Hollis v. Itawamba County

Loans, 657 F.2d 746 (5th Cir. 1981), an automobile

buyer claimed his car was unconstitutionally seized

when a creditor summarily took it under authority of

state law for nonpayment of debts. Id. at 750. The

court found that state action existed simply because

the creditor was acting pursuant to a statute that

permitted prejudgment seizures without a hearing.

Id.

The Third Circuit’s precedent is in the same vein.

In Parks v. “Mr. Ford,” 556 F.2d 132, 141 (3d Cir.

1977), a private repairmen retained and sold vehicles

when the owners refused to pay for repairs. The

owners asserted that this action violated their due

process rights. The Third Circuit held that state

action existed because the repairmen acted under the

state statutory authority. The court observed that a

“statute not only extended the power of sale to the

garageman but also directed him to follow the same

procedures employed by a sheriff or constable.” Id.

The court concluded: “by . . . authorizing sales to take

place, directing how they are to be carried out, and

giving them the effect of judicial sales,” “state action

33

exists when a garageman sells a customer’s vehicle

pursuant to [the statute].” Id.

2.

The First and Ninth Circuits discount

the force of state law

The decisions of the First Circuit and Ninth

Circuit afford less weight to the role of state law

authorization in considering the state action issue in

the private party seizure context. In Jarvis v. Village

Gun Shop, Inc., 805 F.3d 1 (1st Cir. 2015), for

instance, the First Circuit considered whether a gun

owner could challenge the transfer of his legally

confiscated gun from police to a gun shop as an

unconstitutional seizure. The court found no

actionable state action. It noted at the outset that “[i]t

is ‘[o]nly in rare circumstances’ that private parties

can be viewed as state actors.” Id. at 8 (citation

omitted). The First Circuit then discounted a

Massachusetts statute that authorized the police to

transfer the guns to a private business. It stated that,

“[t]aken alone, that statutory authorization is too

fragile a link: for purposes of demonstrating the

required nexus between state action and private

action, we think it insufficient simply to point to a

state statute authorizing the actions of the private

entity.” Id. at 9.

The Ninth Circuit’s precedent is consistent with

the First Circuit. In Melara v. Kennedy, 541 F.2d 802,

804-05 (9th Cir. 1976), the Ninth Circuit held that

there must be “significant state involvement” before

the due process guarantees of the Constitution will

attach to a seizure of property by a private person. It

further held that “[t]he authorization by statute of the

challenged conduct does not by itself require a finding

34

of state action.” Id. at 804. Instead, “the central

inquiry is whether the state of California is

significantly involved or entangled” in a loss of

property. Id.; see also Adams v. S. California First

National Bank, 492 F.2d 324, 330 (9th Cir. 1973).

The Ninth Circuit’s decision in this case is in the

same vein. Here, the Ballingers argued that “[t]he

transfer of thousands of dollars of the Ballingers’

funds occurs only because the City, a political

subdivision of the State, enacted a law that requires it

and penalizes owners who do not pay up. This act of

law is ‘obviously is the product of state action.’” 9th

Cir. Dkt. 29 at PDF pp. 29-30 (quoting Lugar, 457 U.S.

at 941).

The Ninth Circuit disagreed in the decision below,

explaining:

Because the tenants were not willful

participants in joint activity with the State,

they cannot be fairly treated as the State

itself. Nor did the City actively encourage,

endorse, or participate in any wrongful

interference by the tenants with the

Ballingers’ money. At most, the City was only

involved in adopting an ordinance providing

the terms of eviction and payment. But

enacting the Ordinance of this nature is not

enough . . . .

App. A-24-25 (citations omitted; emphasis added).

While this analysis is consistent with First Circuit

precedent, it conflicts with the approach of a majority

of other circuits. District courts within the Ninth

35

Circuit have already begun to follow the Ballinger

analysis, further adding to the confusion among

federal courts. See Better Housing for Long Beach v.

Newsom, 452 F. Supp. 3d 921, 936 (C.D. Cal. 2020).

There, a federal court held that “[t]he only state action

here is the Governor’s signature on AB 1482. But

passing or signing a bill that may lead to the transfer

of private property between private parties does not

gives rise to a Fourth Amendment Claim.” Id.

(emphasis added).

The Court should grant the Petition to hold that

the demands of state law are a primary factor in the

state action analysis and that state action exists when

a law mandates the transfer of property from one

private party to another.

CONCLUSION

The Court should grant the Petition.

DATED: February 2022.

Respectfully submitted,

J. DAVID BREEMER*

*Counsel of Record

BRIAN T. HODGES

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

BHodges@pacificlegal.org

Counsel for Petitioners