Jurisdictional Statement — Shouse v. Pierce County

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Me a

. ° Supt: yurt, U. S

Sone oe

| FEB 20 ite |

~» CLERK

IN THE

SUPREME COURT OF THE UNITED STATES i

~ €07 1194

JACK SHOUSE, DAVID ROMER,

—. A: BAXENDALE, AND ALICE M. BAXENDALE,

Appellants,

Vv.

PIERCE COUNTY, A political

subdivision of the State of

Washington, CLAY HUNTINGTON,

PATRICK J. GALLAGHER, and

GEORGE E. SHERIDAN, County Commissioners,

; Appellees.

JURISDICTIONAL STATEMENT

RICHARD B. SANDERS

Attorney at Law

224 Dexter Avenue North

Seattle, Washington 98109

Attorney for Appellants

i

|

SUBJECT INDEX

Page

IN THE

Jurisdictional Statement ...... 1

SUPREME COURT OF THE UNITED STATES

Opinions Below. ......+-+«+«-. M1

No. pe) ae ae ee

Primary Statutes and Constitutional

Provisions Involved. 3

JACK SHOUSE, DAVID ROMER,

E. A. BAXENDALE, AND ALICE M. BAXENDALE, Questions Presented. 3

Appeilants, Statement of the Case. .....-s..- 95

Vv. The Questions are Substantial s)

PIERCE COUNTY, A political | ae ae ar 14

subdivision of the State of

Washington, CLAY HUNTINGTON, Appendices:

PATRICK J. GALLAGHER, and ?

GEORGE E. SHERIDAN, County Commissioners, A. Judgment and Memorandum Orders

of the Court Below A-1

Appellees.

B. Washington State Statutes A-16

JURISDICTIONAL STATEMENT , C. Federal Statutes A-21

D. The Fourteenth Amendment to

RICHARD B. SANDERS the Constitution of the United

Attorney at Law States, Section l A-25

224 Dexter Avenue North

Seattle, Washington 98109

Attorney for Appellants

1i iii

TABLE OF AUTHORITIES State Statutes Page

Cases Page . Washington Laws 1881, Sec. 33. ..... 3

Washington Laws 1927, c. 137, Sec. 1... 3

Cipriano v. Houma, 395 U.S. 701,

ge Sapee) « «6 o © © «0 hey O3

Washington Laws 1967, c. 72, Sec. 23... 3

Holmberg v. Ambrect, 327 U.S. 392

(1945) . a. <4 a6 a a 6 shbe Bee 23

Phoenix v. Kolodziejski, 399 U.S.

bio.) rere saa Sa Da SS

Washington Laws 1971. c. 96, Sec.1l1 3,5,9

Royster Guano Co. v. Virginia, 253

Wells SEs San Caeeesy «6 @ « 14

Constitutional Provisions

+ eae PS Po Me og

¥ a a el ae

United States Constitution, Amendment

Revs Ges BO & 6 M8 So 6 © oe Se Oe

Federal Statutes

28 U.S.C. Sec. 1253 3

28 U.S.C. Sec. 1331 2, 3

28 U.S.C. Sec. 1343(3) | 3

28 U.S.C. Sec. 2201 i 3

28 U.S.C. Sec. 2281 3

42 U.S.C. Sec. 1983 2, 3

IN THE

SUPREME COURT OF THE UNITED STATES

No.

JACK SHOUSE, DAVID ROMER,

E. A. BAXENDALE, AND ALICE M. BAXENDALE,

Appellants,

Vv.

PIERCE COUNTY, A political

subdivision of the State of

Washington, CLAY HUNTINGTON,

PATRICK J. GALLAGHER, and

GEORGE E. SHERIDAN, County Commissioners,

Appellees.

ON APPEAL FROM THE DISTRICT COURT

OF THE UN: TED STATES FOR THE

WESTERN DISTRICT OF WASHINGTON

JURISDICTIONAL STATEMENT

This appeal is taken by Jack Shouse and

other plaintiffs from a judgment of dismis-

sal entered on November 7, 1975, in accord-

ance with the Memorandum Opinion dated

November 6, 1975, of the District Court of

Tee Y =

Se eR

1

the United States for the Western District

of Washington, sitting as a three-judge

statutory court specially envoked by

virtue of the provisions 28 U.S.C. § 2281.

This statement is submitted by appellants

to show that the Supreme Court of the

United States has jurisdiction of the

appeal and that a substantial question is

presented.

OPINIONS BELOW

The judgment of dismissal dated November

7, 1975, the Memorandum Opinion dated

November 6, 1975, and the order denying

reconsideration dated November 25, 1975,

are unreported and are attached hereto as

Appendix A. The Opinion of the United

States Court of Appeals for the Ninth

Circuit dated March 17, 1975, is also in-

cluded in Appendix A.

2 ; 3

JURISDICTION Kolodziejski, 399 U.S. 204 (1970).

This action was brought under 28 U.S.C. PRIMARY STATUTES AND CONSTITUTIONAL

§ 1331, 1343 (3), 2201, 2281; and 42 U.S.C. PROVISIONS INVOLVED

R -

§ 1983 seeking injunctive and other appro- elevant portions of § 36.94.230, 36.94.

240, 4.16.040, 4.16. 16.

priate relief to restrain as unconstitution- ? » 4.16.080, 4.16.130 of the

Revised Code of Washingto

al the enforcement, operation or execution - gton are set forth

of state statutes and to redress the depri- in Appendix B (A-16 - A-20, infra).

vation under color of state law, statute, 28 U.S.C. § 1253, 1331 (a), 1343 (3),

regulation, ordinance, custom and usage 2201, 2281, and 42 U.S.C. § 1983, are set

of federal constitutional rights. The forth in Appendix C (A-21 - A-24, infra).

The Fourteenth Amendment t =

judgment of the District Court was entered o the Constitu

tion of the United St

on November 7, 1975, rehearing was denied ates, Section 1, is

set forth in A = :

on November 25, 1975, and notice of appeal n Appendix D (A-25, infra)

was filed in that court on December 24, QUESTIONS PRESENTED

1. Wh

1975. The jurisdiction of this court to ether the Washington statutes

chall d 94. , ,

review the decision by direct appeal is enged herein (RCW 36.94.230, .240;

(A-16 - A-18 f

conferred by 28 U.S.C. § 1253. The fol- » infra) unconstitutionally

and unlawfully de i + -lz

lowing decisions sustained such juris- y deny resident but non-land

owning appellants

diction in this case: Phoenix v. & app the equal protection of

the laws guaranteed to them by the Four-

4

teenth Amendment to the Constitution of the

United States in that said statutes permit

only owners of real property to divest the

action of county commissioners in the form-

ation of a Utility Local Improvement Dis-

trict (ULID).

2. Whether the aforementioned statutes

violate the same constitutional provision

by weighting a landowner's vote in propor-

tion to the area of land owned and thus

constitute a denial of equal protection by

diluting the franchise of those who own

small parcels.

3. Whether the aforementioned statutes

violate the Equal Protection Clause of the

Fourteenth Amendment by diluting the fran-

chise of resident citizen landowners by

weighing their vote against non-residents

and "non-persons" such as corporate and

governmental owners.

4, Whether a state statute of limita-

tions is applicable to a federally created

right enforceable only in equity; or, in

the alternative, whether the 30-day statute

of limitations provided for in RCW 36.94.

240 (A-17, infra) is the applicable state

statute of limitations; or, in the alterna-

tive whether the aformentioned special

30-day statute of limitations, if applica-

ble, violates appellants' constitutional

rights guaranteed by the Equal Protection

and Due Process Clause of the Fourteenth

Amendment. to the United States Constitution.

5. Whether this action is barred by

laches.

STATEMENT OF THE CASE

Appellants, residents of ULID 73-1,

brough this action against Pierce County

6

and its respective county commissioners

to restrain the enforcement, operation

or execution of certain state statutes

(A-16 - A-18, infra) which permit the

creation of a ULID by resolution of

county commissioners and further provide

for divestiture of jurisdiction to pro-

ceed upon a "protest" vote of owners

of at least forty per cent of the land

area within the proposed ULID.

By operation of the challenge statute

non-landowning: residents are completely

disinfranchised and the votes of land-

owners are weighed (1) by land area and

(2) against non-resident, non-human owners

such as corporations and governmental

entities. Appellants are composed of

both landowners and non-landowning resi-

dents. All are United States citizens and

registered voters.

The area in question is suburban to

urban in character, has approximately

75,000 residents, and covers about

20,000 acres of land. It is currently

unsewered. The ULID was created for the

purpose of constructing a sewer system and

levying a variety of taxes, including assess-

ments on real property, to underwrite the

costs of construction.

Appellants will be affected in impor-

tant respects by the decision making pro-

cess which either excluded them completely

or discriminated against them in terms of

land area of real property ownership. Be-

sides being fundamentally interested in

the political decision to creete a public

utility which will service their homes,

apartments, and businesses, they must

8

necessarily bear their share of the

seventy-five million dollar cost of con-

" struction and will be affected by environ-

mental changes necessitated by the project

as well.

Pierce County Resolution 16500 creating

the ULID was passed on June 18, 1973. This

action was commenced on September 5, 1973.

The defendants were not prejudiced by the

date of filing, nor had they changed their

position in the interim.

A single District Court Judge initially

assigned the case refused to convene 4a

special three-judge court as prayed. This

initial determination was appealed and re-

versed by the United States Court of Appeals

Ninth Circuit in an unpublished opinion.

(A-1, infra).

Thereafter, the case was tried to a

9

three-judge court. Judgment of dismissal

was entered for the stated reason that the

action was barred by the 30-day statute

of limitations set forth in RCW 36.94.240

(A-17, A-18, infra). This appeal follows.

THE QUESTIONS ARE SUBSTANTIAL

As stated by the United States Court of

Appeals for the Ninth Circuit:

"The claim in this case falls

somewhere in between the claims

presented in Phoenix v. Kolodziejski,

399 U.S. 204 (1970), and Sayler Land

Co. v. Tulare Water District, 410

U.S. 719 (1973)." (A-1, infra)

The Kolodziejski case involved an Ari-

zona statute restricting the franchise in

municipal bond elections to property

owners. Sayler permitted the exclusion

of non-landowning residents from participa-

tion in elections of flood control dis-

trict directors. Kolodziejski states

the general rule that property ownership

10

prerequisites to participation in the

governmental process are presumptively

unconstitutional, 399 U.S. 209, While

Sayler carves out a narrow exception (but

not without three justices in dissent).

The District Court in the instant case

chose to follow the Sayler precedent even

though the Sayler case didn't involve a

municipal utility and concerned a land

area virtually undeveloped with only 77

residents. The wisdom of this decision

presents the basic question of substance.

The question is not only important to the

75,000 residents of the affected area, but

to the voters all over America who have

been similiarly disinfranchised. |

The second basic line of constitutional

inquiry must necessarily concern the

availability of the federal court system

11

to redress constitutional grievances as

outlined above. The District Court chose

to apply the 30-day statute of limitations

set forth in the very statute under attack

and then, by way of dicta, to mechanically

apply the doctrine of laches by analogy.

From the outset one should remember that

the appellants sought to enforce a right in

equity created by the United States Con-

stitution. Whether any state may bind and

limit the equitable powers of a federal

court by a local statute of limitations

itself presents a substantial question.

Holmberg v. Ambrecht, 327 U.S. 392 (1945),

expressly refused to apply the applicable

statute of limitations and held

"The present case concerns not

only a federally created right but

a federal right for which the sole

remedy is in equity. [citing cases]

- we do not have the duty of a

12

Federal Court, sitting as it were

as a court of the state, to approx-

imate as closely as may be state

law in order to vindicate without

discrimination a right to rise

solely from a state. We have the

duty of federalcourts, sitting as

national courts throughout the .

country to apply their own principles

in enforcing an equitable right

created by congress. When congress

leaves to the Federal Courts the

formulation of remedial details, it

can hardly expect them to break with

historical principles of equity in

the enforcement of federally -

created equitable rights."

The District Court's only response to

Ambrecht was that it didn't involve a

statute of limitations specifically made

part of the statute under attack. No

authority is cited for the proposition

that Ambrecht may be so limited and the

reasoning inherent in the "distinction"

runs contra to the basic considerations

underlying the Ambrecht rule. Language

about retroactivity in Cipriano v.

13

v. Houma, 395 U.S. 701, 706 (1969) and Kolo-

dziejski, supra, serve only to limit the

effect of those particular decisions to

actions which could be commenced under the

existing state statute of limitation

rather than abandoning the general rule as

set forth in Ambrecht. An invasion of

the traditional equitable domain of the

federal court by state legislation limit-

ing access to federal equitable remedies

raises questions of substance and import.

Moreover, the subject special statute of

limitations is, in itself, subject to

constitutional challenge. The general

statutes of limitation in Washington are

either three years (A-19, infra), six

years (A-18, infra) or, where no other

statute applies, two years (A-19, A-20,

infra). This statute, in essence,

14

arbitrarily makes a special class of

defendants (1i.e., local governmental

units) immune from claims which would

otherwise lawfully be made against all

other defendants under the general statutes

of limitation.

Statutory classifications which sub-

Stantially burden the exercise of rights as

to some individuals, but not others, are

permissible under the Equal Protection

Clause of the Fourteenth Amendment only

if they are

"Reasonable, not arbitrary, and

. rest upon some ground of

difference having a fair and sub-

stantial relevance to the object

of the legislation, so that all

persons similarily circumstanced

shall be treated alike." Royster

Guano Co. v. Virginia, 253 U.S.

412, 415 (1920).

CONCLUSION

No one concern is greater to a democra-

ae

15

tic people than the availability of the

franchise. The simple axion of "one man,

one vote" stands at loggerheads with the

governmental discrimination based on

property ownership. The case at bar

raises substantial and important questions

in an area of the law marked by opposing

signposts.

A second basic inquiry concerns the

access to the federal court in the first

instance. May an individual state curtail

the enforcement of a federally created

right, in equity, in federal court - and

discriminate in favor of local govern-

mental defendants at the same time?

The case merits briefing in depth and

a hearing on the merits.

16

Respgct full

Attorney for Appellants

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK SHOUSE, DAVID

ROMER, E. A. BAXENDALE,

AND ALICE M. BAXENDALE, No. 74-2660

laintiffs-Appellants Memorandum

Vs.

PIERCE COUNTY, a poli-

tical subdivision of

the State of Washing-

ton, et al.,

Defendants-Appellees.

)

)

)

)

>)

)

)

)

)

)

)

)

)

)

)

(March 17, 1975]

On Appeal from the United States

District Court for the Western

District of Washington

Before: CHAMBERS, DUNIWAY and CHOY,

Circuit Judges.

The claim in this case falls some-

where in between the claims presented in

Phoenix v. Kolodziejski, 399 U.S. 204

(1970),and Sayler Land Co. v. Tulare

Water District, 410 U.S. 719 (1973). We

cannot say that the claim is an insubdstan-

tial one under the test enunciated in

A=-2

Goosby v. Osser, 409 U.S. 512 (1973). A

three-judge district court should be con-

vened to consider the claim. Remanded for

proceedings consistent herewith.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JACK SHOUSE, et al.,

Plaintiffs,

Vv.

PIERCE COUNTY, et al.,

Defendants.

)

)

)

)

)

)

)

)

)

)

Before: KILKENNY, Circuit Judge, and

BOWEN and BEEKS, District Judges

OPINION

PER CURIAM:

Plaintiffs seek a declaration that Sec-

tion 36.94.2302’ and .2402’or the Revised

Code of Washington are unconstitutional

insofar as they permit only owners of real

property to divest the action of county

commissioners in the formation of a Utility

Local Improvement District (ULID). As non-

A-3

land owning residents within the ULID

created by defendants, 2’ plaintiffs con-

tend that their ability to vitiate the cre-

ation by protest, as could landowners,

amounts to a denial of equal protection of

laws under the Fourteenth Amendment.

Plaintiffs also seek to enjoin defendants

from proceeding with construction of the

sewer system authorized for the ULID. As

a second cause of action, plaintiff Jack

Shouse, both a landowner and resident

tenant within the ULID, contends that the

statute's provision for weighting a land-

owner's vote in proportion to the area of

land owned works a denial of equal protec-

tion by diluting the franchise of those who

own small parcels.

Five issues are presented: first,

whether this court has jurisdiction over

the dispute; second, whether the action is

barred by the thirty-day limitation period

established in Section 36.94.240; third,

A-4

whether the action is barred under the

principle of laches; fourth, whether the

challenged statute denies non-landowners

the equal protection of laws by limiting

the right of divestment to property owners;

and fifth, whether the weighting of votes

according to land area represented denies

the equal protection of laws to owners of

small parcels. Our resolution of the first

three issues makes unnecessary an examina-

tion of the last two.

I. JURISDICTION

Plaintiffs plead 28 U.S.C. §1331 and 42

U.S.C. §1983 in support of this court's

jurisdiction. No individual plaintiff has

shown that he has a claim in excess of

$10,000, exclusive of interest and costs,

and claims of this type may not be aggre-

gated to reach the jurisdictional amount . 4/

Accordingly, Section 1331 does not confer

jurisdiction as to any defendant. Sec-

tion 1983 is not a jurisdictional

statute.

Where, however, the cause of action is

predicated on Section 1983, as here,

jurisdiction is conferred by 28 U.S.C.

§1343 (3) as to all defendants except

Pierce County. Pierce County is not a

person subject to suit under Section 1983,

2/ and the action against it is dismissed

with costs.

II. STATUTORY LIMITATION PERIOD

The resolution forming the ULID was

adopted on June 18, 1973, and this action

was filed on September 5, 1973. Defendants

contend that the suit is thus barred by

the thirty-day limitation period of R.C.W.

36.94. 240.

Plaintiffs vigorously contend that

because this is a case involving equitable

relief the statutory period is inapplic-

able. We disagree.

The statute involved is health and wel-

fare legislation. Substantial delays in

A-6

4

implementing the resolution adopted by the

—_—

commissioners pursuant to it could serious-

ly jeopardize the well-being of all of the

residents within the ULID. Where a statute

creates substantive rights affecting the

health and well-being of a community and

the legislature chooses to define the pro-

cedures for exercising those rights, the

legislative scheme should not be disrupted.

It is a long established principle that

such statutes be given a liberal construc-

tion for the accomplishment of their ob-

jectives./ The Washington legislature,in

its wisdom, has determined that "no action

whatsoever" challenging any proceedings

under R.C.W. 36.94.240 should be maintained

after thirty days following adoption of a

ULID resolution. A strict application of

this limitation period maximizes the pub-

lic _ purposes of the statute.

Additionally, in this era of double

digit inflation, an extended delay in con-

A-7

structing the approved utility could signifi-

cantly increase its cost, possibly to the

extent of making it prohibitive.

None of the cases cited by plaintiffs in

support of their contention that the statu-

tory limitation period is inapplicable in-

volved limitation periods specifically in-

corporated into the statue at issue so as

to become an integral part thereof, as is

the situation here. 9/ Where a period of

limitation is part of the statute under

constitutional attack, the Supreme Court

has given effect thereto. In Cipriano v.

Houma, 2/ the Court found unconstitutional

a statute limiting the right to vote in

revenue bond elections, but it limited

the effect of its decision to circumstances

"where, under state law, the time for

challenging the election result has not

expired. ..." A similar result on the

merits was reached in Phoenix v. Kolodziej-

/

ski,>2 and once again the Court limited

A-8

its holding to suits filed within the chal-

lenge period specified by the state elec-

tion statute. Both of these cases were

suits in equity, with the respective

plaintiffs seeking only injunctive and

declaratory relief. Thus, we hold that the

thrity-day limitation period bars plain-

tiffs' claim.

Furthermore, enforcing an integrated

limitation obviates the necessity of

attempting to apply by analogy state

Statutes of general limitation varying

greatly in length. Plaintiffs cite one

general statute of three years and one

of six years as possibly applicable. By

so doing they acknowledge that Washington

has no general statutory provision which

would clearly and unquestionably apply

here. The integrated thirty-day limita-

tion not only applies, it simplifies and

resolves the problem.

III. LACHES

A-9

Assuming, arguendo, that this case

should be governed by the doctrine of

laches rather than by a statutory limita-

tion period, the result must be the same.

Because the action was filed after the an-

alogous statutory period, plaintiffs not

only have the burden of excusing their delay

but of establishing that delay has caused

11/

no prejudice to defendants. They have

12/

done neither.

IV. EQUAL PROTECTION

As indicated, we do not reach the consti-

utional questions. If we were to decide

them, however, we would resolve them

against plaintiffs. On the issue of non-

landowners' rights, Field v. Barber Asphalt

13/

Paving Co. would be controlling, and

not the election cases cited by plaintiffs.

The weighted vote question would be govern-

ed by Salyer Land Co. v. Tulare Lake Basin

Storage District.24/

This action must be dismissed as not

timely filed.

A-10

15/

22 The Clerk shall enter

Judgement for defendants, with costs.

DATED this 6th day of November, 1975.

s/ JOHN F. KILKENNY

United States Circuit Judge

s/ JOHN C. BOWEN

United States District Judge

s/ WILLIAM T. BEEKS

United States District Judge

See Appendix B [RCW 36.94.230, A-16]

See Appendix B [RCW 36.94.240, A-17]

The ULID was created by Pierce County

Resolution No. 16500.

Potrero Hill Community Action Commit-

tee v. Housing Authority, 410 F.2d 974

978 (9th Cir. 1969).

Kenosha v. Bruno, 412 U.S. 507,511-13

(1973).

See note 2 supra.

United States v. Antikamnia Chemical

Co., 231 U.S. 654, 666-70 (1914); A.

O. Andersen & Co. v. United’ States,

284 F. 542 543 (9th Cir. 1922).

Czaplicki v. S/S HOEGH SILVERCLOUD,

351 U.S. 525, 533 (1956) (general

tort statutes of limitation); As-

sociation of Westinghouse Salaried

Employees v. Westinghouse Electric

Corp., 345 U.S. 437, 463 (1955) (no

limitation period at issue); Gardner

v. Panama R.R., 342 U.S. 29, 30 (1951)

A-1)

(jeneral one-year statute of limita-

tion); Angel v. Bullington, 330 U.S.

183, 192 (1947)(no limitation period at

issue); Holmberg v. Armbrecht, 327 U.S.

392, 393 (1946) (reneral ten-year

statute of limitation); Jerome v.

United States, 318 U.S. 101, 101-02

(1943) (no limitation period at issue).

9/ 395 U.S. 701, 706 (1969).

10/7 399 U.S. 204, 214 (1970).

11/ Brown v. Kayler, 273 F.2d 588, 591

(9th Cir. 1959); Shell v. Strong, 151

F.2d 909, 911 (10th Cir. 1945).

12/ The only excuse offered by plaintiffs

for the delay was that their original

attorney failed to timely institute

the action. Deposition of John Shouse

et 18.

13/ 194 U.S. 618 621 (1904).

14/ 410 U.S. 719, 734 (1973).

15/ The attorney who ably represented

plaintiffs at trial did not commence

*he action.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JACK SHOUSE, et al)

) Civil Action

vs. ) File No. 165-73C3

)

PIERCE COUNTY, et al) JUDGMENT

)

This action came on for trial (hearing)

vefore the Court, Honorable John F.

A-12

Kilkenny, Circuit Judge and John C. Bowen

and W. T. Beeks, United States District ;

Judges, presiding, and the issues having

been duly tried (heard) and a decision

having been duly rendered,

It is Ordered and Adjudged that this

action be and hereby is dismissed, and

judgment is entered for the defendants,

with costs.

Dated At Seattle, Washington, this

7th day of November, 1975.

s/ Edgar Scofield

Clerk of Court

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JACK SHOUSE, et al.,

Plaintiffs, NO. 165-73C3

vw. J) QORDER

PIERCE COUNTY, et al.,

Defendants.

we rerwerwrwwruervwrv

1.)

8)

oO

a

8]

The motion of plaintiffs for retrial,

reconsideration or reopening of judgment

A-13

is denied.

Plaintiffs, in denying that the statu-

tory limitation period was applicable, in-

jected the issue of laches into the case

by discussing it in their reply brief,

their supplemental trial brief and at oral

argument.

Furthermore, the laches issue was not

dispositive.

The opinion filed herein on November 6,

1975 shall constitute the court's findings

of fact and conclusions of law in accordance

with Fed.R.Civ.P. 52(a). The Clerk is

directed to enter judgment of dismissal,

with costs, in favor of defendants.

DATED this 25th day of November, 1975.

s/ JOHN F. KILKENNY

United States Circuit Judge

s/ JOHN C. BOWEN

United States District Judge

s/ WILLIAM T. BEEKS

United States District Judge

A-14 . A-15

UNITED STATES DISTRICT COURT This appeal is taken pursuant to 28

WESTERN DISTRICT OF WASHINGTON ‘

AT SEATTLE U.S.C.A. §1253.

s/ Richard B. Sanders

Attorney for Plaintiffs

JACK SHOUSE, DAVID

ROMER, E.A. BAXENDALE

and ALICE M. BAXENDALE,

[Proof of Service Omitted]

Plaintiffs, NO. 165-73C3

vs.

PIERCE COUNTY, a poli-

tical subdividison of the

State of Washington, CLAY

HUNTINGTON, PATRICK J.

GALLAGHER, and GEORGE

E. SHERIDAN, County

Commissioner,

Defendants.

ll ee eee ee eee

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES ,

Notice is hereby given that Jack Shouse,

David Romer, E.A. Baxendale and Alice M.

Baxendale, the plaintiffs above-named,

hereby appeal to the Supreme Court of the

United States from Judgment of Dismissal

entered in this action on November 7,

1975; and the Order Denying Plaintiffs'

Motion for New Trial/Reconsideration

entered on November 25, 1975.

A-16

APPENDIX B

Revised Code of Washington:

36.94.230 [Pertinent language includes the

following]:

Utility local improvement districts

may be initiated .. . by resolution

of the board of county commissioners

In case the board shall desire to in-

itiate the formation of a utility local

improvement district by resolution, it

shall first pass a resolution declaring

its intention to order such improvement,

setting forth the nature and territorial

extent of such proposed improvement.

Notice of the adoption of the resolu-

tion of intention . . . shall be published

in at least two consecutive issues of a

newspaper of general circulation in the

proposed local district... . Notice

of the adoption of the resolution of in-

tention shall also be given each owner

or reputed owner of any lot, tract, par-

A-17

cel of land or other property within the

proposed improvement district by mailing

and in the case of improvements ini-

tiated by resolution, said notice shall .

state that all persons desiring to

object to the formation of the proposed

district must file their written protests

with the clerk of the board of county

commissioners.

36.94,.240 [Pertinent language includes the

following]:

. . . the board shall conduct a public

hearing at the time and place designated in

the notice to the property owners.

After said hearing the commissioners

shall have jurisdiction to overrule protests

and proceed with any such improvement in-

itiated by petition or resolution: Pro-

vided, That the jurisdiction of the commis-

sioners to proceed with any improvement

initiated by resolution shail be divested

by protests filed with the clerk of the

board prior to said public hearing

A-18

signed by the owners, according to the

records of the county auditor, of at

least forty percent of the area of land

within the proposed local district. No

action whatsoever may be maintained chal-

lenging the jurisdiction or authority of

the county to proceed with the improve-

ment and creating the utility local im-

provement district or in any way chal-

lenging the validity thereof or any pro-

ceedings relating thereto unless that

action is served and filed no later than

thirty days after the date of passage

of the resolution ordering the improvement

and creating the local district.

416.040 Actions limited to six years.

Within six years:

(1) An action upon a judgment or decree

of any court of the United States, or of

any state or territory within the United

States, or of any territory or possession

of the United States outside the boundaries

A-19

thereof, or of any extraterritorial

court of the United States.

(2) An action upon a contract in

writing, or liability express or implied

arising out of a written agreement.

4.16.080 Actions limited to three years.

Within three years:

(1) An action for waste or trepass

upon real property;

(2) An action for taking, detaining,

or injurying personal property, including

an action for specific recovery thereof,

or for any other injury to the person or

rights of another not hereinafter enumerat-

ed;

(3) An action upon a contract or lia-

bility, express or implied, which is not in

writing, and does not arise out of any

written instrument;

4.16.130 Actions for relief not otherwise

provided for. An action for relief not

hereinbefore provided for, shall be com-

A-20

menced within two years after the cause of

action shall have accrued.

A-21

APPENDIX C

28 United States Code:

§ 1343. Civil rights and elective

franchise

The district courts shall have original

jurisdiction of any civil action authorized

by law to be commenced by any person:

(3) To redress the deprivation, under

color of any State law, statute, ordinance,

reguiation, custom or usage, of any right,

privilege or immunity secured by the Con-

stitution of the United States or by any

Act of Congress providing for equal rights

of citizens or of all persons within the

jurisdiction of the United States;

§ 1331. Federal question; amount in con-

troversy; costs

(a) The district courts shall have

original jurisdiction of all civil actions

wherein the matter in controversy exceeds

the sum or value of $10,000, exclusive

of interest and costs, and arises under the

A-22

Constitution, laws, or treaties of the

United States.

§ 1253. Direct appeals from decisions of

three-judge courts

Except as otherwise provided by law,

any party may appeal to the Supreme Court

from an order granting or denying, after

notice and hearing, an interlocutory or per-

manent injunction in any civil action,

suit or proceeding required by any Act

of Congress to be heard and determined by

a district court of three judges.

§ 2201. Creation of remedy

In a case of actual controversy within

its jurisdiction, except with respect to

Federal taxes, any court of the United

States, upon the filing of an appropriate

pleading, may declare the rights and other

legal relations of any interested party

seeking such declaration, whether or not

further relief is or could be sought. Any

such declaration shall have the force and

A-23

ffect of a final judgment or decree and

shall be reviewable as such. As amended

May 24, 1949, c. 139, § 111, 63 Stat. 105;

Aug. 28, 1954, c. 1033, 68 Stat. 890; July

7, 1958, Pub.L 85-508, § 12(p), 72 Stat.

349.

§ 2281. Injunction against enforcement of

State statute; three-judge court

required

An interlocutory or permanent injunc-

tion restraining the enforcement, operation

or execution of any State statute by re-

straining the action of any officer of such

State in the enforcement or execution of

such statute or or an order made by an

administrative board or commission acting

under State statutes, shall not be granted

by any district court or judge thereof upon

the ground of the unconstitutionality of

such statute unless the application there-

for is heard and determined by a district

court of three judges under section 2284

of this title.

A=-?4

42 United States Code:

§ 1983. Civil action for deprivation

of rights

Every person who, under color of any

statute, ordinance, regulation, custom, or

usuage, of any State or Territory, sub-

jects, or causes to be subjected, any citi-

zen of the United States or other person

>

wr

wei

nin the jurisdiction thereof to the

ct

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured

in an action at law, suit in equity, or

other proper proceeding for redress. R.S.

§ 1979

LY |

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A= 2+)

APPENDIX D

United States Constitution:

AMENDMENT XIV.

§ 1. Citizenship rights not to be abridged

by states

Section 1. All persons born or natural-

ized in the United States, and subject to

the jurisidiction thereof, are citizens

of the United States and of the State

wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.