# Jurisdictional Statement — Shouse v. Pierce County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 929

## Text

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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1755%3A1. Public record. Not legal advice.