Petition — City of South Lake Tahoe v. California Tahoe Regional Planning Agency
Supreme Court brief1980
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In the Supreme Court of the
United States
OcTOBER TERM, 1980
City OF SOUTH LAKE TAHOE, ROGER CAPRI, as
Mayor of the City of South Lake Tahoe; JoHN
' WYNN, ROBERT KAUFMAN, WILLIAM MOYER
and PATRICIA Lowe, as City Councilmembers of
the City of South Lake Tahoe,
Petitioners,
vs.
CALIFORNIA TAHOE REGIONAL PLANNING AGENCY,
and GORDON Hooper, GERALD M. POZNANO-
VICH, JAN CHATTEN-BROWN and KENNETH L.
WoopwapD, individually and as members of the
Governing Body of the California Tahoe Re-
gional Planning Agency,
Respondents.
Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
STEPHEN GRANT
J. THOMAS RoscH
LEE A. THOMPSON
Three Embarcadero Center
San Francisco, California 94111
(415) 393-2000
Attorneys for Petitioners
McCutTcHEN, DoyLe, BROWN & ENERSEN
Three Embarcadero Center
San Francisco, California 94111
J. DENNIS CRABB
P.O, Box 1210
South Lake Tahoe, California 95705
Of Council
SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105
i
QUESTIONS PRESENTED FOR REVIEW
1. Wo city officials have standing to sue for a declaration of
their rights and obligations with respect to regulations which they
believe violate the United States Constitution but which they are
required by law to enforce?
2. Does a municipality have standing to sue for a declaration
of its rights and obligations with respect to regulations which it
believes violate the United States Constitution but which it is
required by law to enforce?
LIST OF PARTIES
Petitioners are City of South Lake Tahoe (the “City’”’), a gen-
eral law city duly organized and existing under the laws of the
State of California, its Mayor, Roger Capri, and the members of
its City Council, John Wynn, Robert Kaufman, William Moyer
and Patricia Lowe (collectively, “Councilmembers” ).
Respondents are California Tahoe Regional Planning Agency
(“CTRPA”), which is a separate legal entity and political sub-
division of the State of California organized and existing under
the laws of the State of California, and individual members of
its Governing Body, Gordon Hooper, Gerald M. Poznanovich,
Jan Chatten-Brown and Kenneth L. Woodward.
il TABLE OF CONTENTS
Pages
<Pacstsons Presented For Review .............-.....-..---c-ss-ccsscseses ice
GN i I AE SS RE TRB Ey OE ee ANCES 9 i
I os vansacecnlasps bapscbeadeannbiehagienbngeoosions ili
cosas concrh ean ponies eaes ancsinggeeesan habe 2
Nias ial iars eestieclioneiucetinsendunciehinasiosecupseons 2
Statutes And Constitutional Provisions Involved .................... 2
Statemient Of The Case .....---.-.ssscescccccceecsceseecssssssssssssssessssesesee 2
messens For Granting The Writ ..............-0....-...-csescoccsesesonensesene 4
I. In Denying Standing to the Councilmembers, the
Court of Appeals’ Decision Conflicts With This
Court’s Decisions In Board of Education v. Allen,
392 U.S. 236 (1968) and Owen v. City of Indepen-
dence, Missouri, ........ IB sspucecne , 100 S.Ct. 1398
(1980) and With Decisions of the Second, Sixth
I ANI adc stcrvccininiarnsakinpcnrnedsbensiclgadintie 4
II. In Denying Standing To The City, The Court of
Appeals’ Decision Misconstrues Williams v. Mayor
of Baltimore, 289 US. 36 (1933) and Frustrates
Efforts of Municipalities to Protect the mana aed
tional Rights of Their Constituents ..........0.20.222..... ae |
III. The Court of Appeals’ Decision Presents Dacpeochin
Questions Respecting the Rights and Obligations of
Municipalities and Public Officials in the Discharge
SSE TENE AINA LT MIN 16
2 inde saiesirsnuadeshacncoeianl dumubiammaien 17
i ac geacadnstrenceinceSesnvnepsoncecrvess following page 17
Court of Appeals’ Opinion -....22......2..2....eeeeeceeeeeee Appendix A
District Court’s Opinion and Order .................... Appendix B
Statutes and Constitutional Provisions .................... Appendix C
Samples of Statutes That Arguably Could Give
Rise to Section 1983 Actions -...........2...2-.-2---0-2-0--- Appendix D
TABLE OF AUTHORITIES ill
CASES |
Pages
Aguayo v. Richardson, 473 F.2d 1090 (2nd Cir. 1973) cert.
PO, GEA ID, LBB CIITA Sse scessrsitininnstntcenspcwrenens 5
Akron Board of Education v. State Board of Education,
490 F.2d 1285 (6th Cir.) cert. denied, 417 US. 932
EL, EMG DER Lead Sia ee net EW ARERR, Oreste ve 6, 15
Athanson v. Grasso, 411 F.Supp. 1153 (D. Conn. 1976) .... 6
Damer ‘v. Cast, 369 /UG. 106 (1962) ncn pen oncssiscccccemcnsvesenee 14
Barrows v. Jackson, 346 U.S. 249 (1953) .....-...-c0c-se+eseses0e0s 9
Board of Education v. Allen, 392 U.S. 236 (1968)...4, 5, 6, 7, 16
City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975)... 14
City of New York v. Richardson, 473 F.2d 923 (2nd Cir.),
Cert, BemieH, 412 OS. G90 (1979) oc ccesecntscncnsnicosesceseaensen 5
City of Trenton v. New Jersey, 262 U.S. 182 (1923) ........ 12
Coleman v. Miller, 307 U.S. 433 (1939) -.....-...-:s-:ssseseesseeee 9
Finch v. Mississippi State Medical Ass’n Inc., 585 F.2d
Te Pe TO Cities ed ee 6
Hunter v. City of Pittsburgh, 297 U.S. 161 (1907)............ 12
Kovacs v. United States, 355 F.2d 349 (9th Cir.), cert.
Combed, VOUT, GAh CIO) assists phos k soesndeccsrmsanes 7
Morrell v. New York City Department of Social Services,
WG SIR TO CI ending 13
NAACP vy, Alabama ex rel. Patterson, 357 U.S. 449 (1958) 9
Owen v. City of Independence, .... U.S. ...., 100 S.Ct. 1398
DI on csciciseiitede satiate? Giese staat eae 4, 11, 13, 14,16
iv TABLE OF AUTHORITIES
Pages
Pierce v. Society of Sisters, 268 U.S. 570 (1925) .........------- 15
Poenees 7. eng, SOG WD. SAT CEOGT nics ssncecsrincnsnieenicn 10
Regents of the Univ. of Minn. v. NCAA, 560 F.2d 352 (8th
Cir.), cert. dismissed, 434 U.S. 978 (1977) «....2-2.--0-0000--- 6
Rogers v. Brockette, 588 F.2d 1057 (Sth Cir.), cert. denied,
ey EN etic 12, 13, 14
Scheuer v. Rhodes, 416 U.S. 232 (1974) -...--...-s::s:s2-eee-+0- 10
Schlesinger v. Reservists to Stop the War, 418, U.S. 208
{QR eeONRD HSIN WRDCCHIS S>-INALNEN Weer Grete 7,8
Sierra Club v. Morton, 405 U.S. 727 (1972) -....--2.2-0--000-000-0+ 8
Solerno v. American League of Prof. Baseball Clubs, 429
F.2d 1003 (2nd Cir.), cert. denied, 400 U.S. 1001 (1970) 7
State of Maine v. Thiboutot, .... U.S. ...., 48 U.S. L.W. 4859
I ne aaa tcc bree aos 16
Trustees of Dartmouth College v. Woodward, 17 U.S. 518
LEE er eM EMS i SACO cect en ints CDROM ER 12
United States ex rel. Chapman v. F.P.C. 345 U.S. 153 (1953) 9
United States v. Richardson, 418 U.S. 166 (1974) ............ 7,8
Warth v. Seldin, 422 U.S, 490 (1975) -.....-.-------000--0--- 7, 8,9, 13, 14
Washington Utilities & Transp. Comm'n v. F.C.C, ,513 F.2d
CO A es 8,9
Williams v. Mayor of Baltimore, 289 U.S. 36 (1933) ....11, 12, 13
Wood v. Strickland, 420 U.S. 308 (1975) .........-..2..00-00-+ 10
UNITED STATES CONSTITUTION Vv
Pages
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STATUTES
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ORS Eee en yea nad Merron Se eee SP 16
a ee ee ee Se, ee 13
ae Ser ee ee i anc ceiiddadiei cel 13
Cal. Gov't Code § 66801, art. VI(a) ..........-.---..--s-sssceceeceseees 3
Cal. Gov't Code §§ 67000 to 67130 .0..2..2-.eeeceeeeeee es Sila aalaaiaes 3
mT | SRI lan onan em ont anh 3
a ie I CIIITE sci sinecisdvcotinscontipeerspnabebteenstaneaee 3
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i Ee I TID ickitcinctiincccenpecsienstien eden leiaaee 4
OR eg | RRR a lien eK ser 4
Ce SRE Dee Se Se OO ei eee 3
California Senate Bill No. 82, 1980 2020... eeeeeeeeeeeeeeee 3
Nevada Assembly Bill No. 1, Special Session, 1980 ............ 3
Act of Dec. 18, 1969, Pub.L. No. 91-148 o00...2..eceeceeeeeeeeeeeeeeee 2
re oe A bs | LE TIELEE SEMA in RD he 2
BA pies scaaconniaaiaies
In the Supreme Court of the
United States
OcTOBER TERM, 1980
City oF SouTH LAKE TAHOE, ROGER CAPRI, as
Mayor of the City of South Lake Tahoe; JoHN
WYNN, ROBERT KAUFMAN, WILLIAM MOYER
and PATRICIA Lowe, as City Councilmembers of
the City of South Lake Tahoe,
Petitioners,
vs.
CALIFORNIA TAHOE REGIONAL PLANNING AGENCY,
and GORDON Hooper, GERALD M, POZNANO-
VICH, JAN CHATTEN-BROWN and KENNETH L.
WoopwarbD, individually and as members of the
Governing Body of the California Tahoe Re-
gional Planning Agency,
Respondents.
Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
Petitioners respectfully pray that a writ of certiorari issue to
review the judgment and opinion of the United States Court of
Appeals for the Ninth Circuit entered in this proceeding on June
25, 1980. The Court of Appeals held that Petitioners lacked
standing to maintain this action and affirmed a judgment of dis-
missal entered by the United States District Court for the Eastern
District of California.
2
OPINIONS BELOW
The opinion of the Court of Appeals is unreported; a copy is
attached as Appendix A. The opinion and order of the District
Court, dismissing Petitioners’ action on grounds different from
those relied upon by the Court of Appeals, is unreported; a copy
is attached as Appendix B,
JURISDICTION
The Court of Appeals’ judgment was entered on June 25, 1980.
This Petition is filed within 90 days of that date. This Court has
jurisdiction to review the judgment in question by writ of certio-
rari under 28 U.S.C. § 1254(1).
STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED
The statutes involved are 28 U.S.C, §§ 1331 and 2201 and 42
U.S.C. § 1983. The constitutional provisions involved are Ar-
ticles III and VI and the Fifth and Fourteenth Amendments to
the Constitution of the United States. The relevant portions of
these provisions are set out verbatim in Appendix C.,
STATEMENT OF THE CASE
This is an action for injunctive and declaratory relief brought
by the City and its Councilmembers against CTRPA and members
of its Governing Body pursuant to 28 U.S.C, §§ 1331, 2201.
In 1968, the states of California and Nevada entered into the
Tahoe Regional Planning Compact (the “Compact’’) which was
approved by Congress. Act of Dec, 18, 1969, Pub. L. No. 91-148,
83 Stat. 360. In accordance with the Compact, the Tahoe Regional
Planning Agency (‘“TRPA’’) was created as a separate legal
entity. It exists as a political subdivision of both the State of
California and the State of Nevada.
Between February, 1972 and August, 1975, TRPA enacted a
number of regulations and ordinances establishing minimum stand-
ards for land use and transportation in the Lake Tahoe Region
3
(the “TRPA Regulations”). These regulations, as amended from
time to time, are in effect at present, the City and its Councilmem-
bers are required to enforce them, and the City has amended its
ordinances to conform to them.
On August 29, 1975, the Governing Body of CTRPA voted to
enact its own scheme of regulation governing land use and trans-
portation in the portion of the Lake Tahoe Region which is located
within the State of California, including all of the City of South
Lake Tahoe (the “CTRPA Regulations’’) .' The City and its Coun-
cilmembers are required by law to enforce the CTRPA Regulations.
Cal. Gov't Code §§ 67072, 67102.
The CTRPA Regulations impose restrictions upon land use and
transportation which are not contained in the TRPA Regulations.
The City and its Councilmembers believe that they conflict with
and frustrate material provisions of the TRPA Regulations and
that they infringe upon the federal domain in violation of the
Supremacy Clause of Article VI of the Constitution.* Additionally,
Petitioners believe that the CTRPA Regulations constitute a taking
of property for public use without payment of just compensation,
that they deprive persons subject to them (including Petitioners’
residents and constituents) of the equal protection of the laws, and
1. CTRPA was created by the California Legislature in 1967, Cal.
Gov't Code $§ 67000 to 67130. When the Compact was approved by the
California Legislature in 1968, the language of the legislation creating
CTRPA which provided for its dissolution + yr ratification of the Compact
was deleted. 1968 Cal. Stats. Ch. 988, § 6. Additionally, the California
Legislature enacted legislation providing that CTRPA would be included
in the Compact provision that “any political subdivision may adopt and
enforce an equal or higher standard i ape to the same subject of
regulation in its territory.’’ Cal. Gov't Code § 66801, art. VI(a); § 67040.
2. California Senate Bill No. 82, 1980 Cal. Stats. Ch. ........, amends
the Compact in several material respects, e.g., it adopts existing CTRPA
Regulations, effective ay 1, 1980 (subject to TRPA amendment or
repeal) and it suspends CTRPA funding. These amendments have also
been adopted by the Nevada Legislature (Nevada Assembly Bill No. 1,
Special Session, 1980 Nev. Stats. Ch. ................ ) but, to become effective,
must also be ratified by the Congress of the United States.
4
that they unlawfully infringe upon the right to travel—all in viola-
tion of the Fifth and Fourteenth Amendments to the Constitution
of the United States.
Notwithstanding their belief in the illegality and unconstitu-
tionality of the CTRPA Regulations, Petitioners are required by
law to enforce them and their refusal to do so would subject them
to the risk of civil litigation and criminal charges since a violation
of the CTRPA Regulations is a misdemeanor. Cal. Gov't Code
§§ 67102, 67105, 67106. On the other hana, enforcement of the
CTRPA Regulations requires Petitioners to violate their oaths of
office to uphold the United States Constitution and subjects them
to personal liability for violation of the constitutional rights of
those affected by the CTRPA Regulations.
Because of this dilemma, the City and its Councilmembers ini-
tiated the present action seeking a declaration of their rights and
obligations and injunctive relief against tiie enforcement of the
unconstitutional CTRPA Regulations. The District Court, on mo-
tion of CTRPA, dismissed the action, holding that it should abstain
from resolving what it viewed as a dispute between two state
agencies over the proper application of state law. (Appendix B.)
The Court of Appeals did not reach the abstention issue, but
instead affirmed the dismissal of the action on the ground that
neither the City nor its Councilmembers had standing to sue.
(Appendix A.)
REASONS FOR GRANTING THE WRIT
1. In Denying Standing To The Councilmembers, The Court of
Appeals’ Decision Conflicts With This Court's Decisions In
Board of Education v. Allen, 392 U.S. 236 (1968) and Owen
v. City of Independence, Missouri, U.S... , 100 S.Cr.
1398 (1980) and With Decisions of the Second, Sixth and
Eighth Circuits.
In Board of Education v. Allen, 392 U.S. 236 (1968), this Court
affirmed the standing of a local school board to bring suit against
the State Commissioner of Education challenging the constitution-
5
ality of a state statute requiring school boards to lend textbooks to
private and parochial schools as violative of the Establishment
Clause. Since the Board of Education believed the state statute was
unconstitutional, it faced the dilemma of either enforcing the
statute and violating the oath to uphold the constitution, or refus-
ing to enforce the statute and violating the State’s directive to
furnish the textbooks. This Court held that such a dilemmia, by
itself, was sufficient to confer standing:
“Appellees do not challenge the standing of appellants to
press their claim in this Court. Appellants have taken an oath
to support the United States Constitution. Believing Section
701 to be unconstitutional, they are in the position of having
to choose between violating their oath and taking a step—
refusal to comply with Section 701—that would be likely to
bring their expulsion from office and also a reduction in state
funds for their school districts. There can be no doubt that
appellants thus have a ‘personal stake in the outcome’ of this
litigation. Baker v. Carr, 369 U.S. 186, 204 (1962).” 392
US. at 241 n.5.
That is this case.
Allen was followed by the Court of Appeals for the Second
Circuit in City of New York v. Richardson, 473 F.2d 923, 933 (2d
Cir.), cert. denied, 412 U.S. 950 (1973), an action by the Mayor
and Commissioner of Social Services of the City of New York
challenging certain provisions of the New York Social Services
Law,? and in Aguayo v. Richardson, 473 F.2d 1090, 1100 (2d Cir.
1973) cert. denied, 414 U.S. 1146 (1974), an action by the Com-
missioner of the New York City Department of Social Services,
3. In finding that the city officials had standing to sue, the Court of
Appeals for the Second Circuit stated:
“With respect to standing, those plaintiffs who sued in their official
capacities may assert constitutional claims against the state under the
rule announced in Board of Education v. Allen. . .. This is so
because of the conflict each of these officials must face between the
sworn duty to uphold the Constitution of the United States and his
responsibility for administrating New York's alleged unconstitutional
Social Services Laws.” 473 F.2d at 933.
6
among others, seeking to enjoin certain experimental work pro-
grams on constitutional and statutory grounds.
Allen also was followed by the Court of Appeals for the Sixth
Circuit in Akron Board of Education v. State Board of Education,
490 F.2d 1285, 1291 (6th Cir.), cert. denied, 417 U.S. 932 (1974)
(finding that the municipal school board had standing to chal-
lenge an order of the state school board on the basis of the “‘author-
itative statement on this score” in Allen); and by the Court of
Appeals for the Eighth Circuit in Regents of the Univ. of Minn. v.
NCAA, 560 F.2d 352, 363-364 (8th Cir.), cert. dismissed, 434
U.S. 978 (1977) (holding that officials responsible for enforcing
regulations have standing to chailenge their constitutionality)
The Court of Appeals below acknowledged that A//en applied
four-square to the facts of this case:
“Were Allen the last word from the Supreme Court on
standing, we could simply adopt the rationale of the quoted
footnote and determine that the Councilmembers in the case
before us have standing on the basis that they believe that
enforcing the CTRPA’s ordinances would violate their oaths
of office.” (Appendix A, p. 9.)
But the Court of Appeals below refused to follow A//en. Thus, its
decision stands alone among the Circuits in its refusal to apply
Allen in circumstances where the enforcement of a regulation
allegedly would constitute a violation of the Constitution of the
United States and subject the plaintiffs to civil liability.* The Court
4. Allen was discussed, but not applied, in Finch v. Mississippi State
Medical Ass'n. Inc., 585 F.2d 765, 773-774 (Sth Cir. 1978) where the
plaintiff, the Governor of the State of Mississippi, had no pecuniary interest
in the outcome of the litigation in that he was not threatened with ouster
from office or with civil liability since he elected to disregard the provisions
of the law he believed were unconstitutional.
Similarly, in Athanson v. Grasso, 411 F.Supp. 1153, 1156-1161 (D.
Conn, 1976), Allen was discussed, but not applied. However, in that
challenge to the constitutionality of Connecticut’s educational financing
system, the formula in question did not require enforcement action by the
Hartford City Council so that plaintiffs were not being forced to violate
anyone’s constitutional rights.
7
of Appeals did not believe that A//en represented the “last word
from the Supreme Court.” To the contrary, it concluded that
Allen could no longer be regarded as “binding Supreme Court
precedent” (Appendix A, p. 10) in view of the subsequent deci-
sions of the Court in Schlesinger v. Reservists to Stop the War,
418 U.S. 208 (1974) ; United States v. Richardson, 418 US. 166
(1974); and Warth v. Seldin, 422 US. 490 (1975).° In particu-
lar, it considered the A//en rule to be inconsistent with the state-
ments in Schlesinger and Richardson that standing cannot be based
on the “generalized interests of all citizens in constitutional gov-
ernment’’ (Appendix A, p. 11), or with, “just abstract outrage
at the enactment of an unconstitutional law.” (/d., p. 11).
It concluded that the Councilmembers’ interest in the litigation
was “official” rather than “personal” (Jd., p. 13), that the
threat of civil liability was too “attenuated and conjectural” (/d.,
p. 16) and that, therefore, their claim to standing was deficient.
But, contrary to the view of the Court of Appeals, this case
differs significantly from Warth, Schlesinger and Richardson. In
each of those cases, the legal interests of the plaintiffs were too
remote and generalized to satisfy the ‘cases or controversies”
requirement of Article III of the Constitution. For example, in
Schlesinger, the plaintiff class lacked standing as “citizens” to
challenge the Department of Defense's policy of permitting
Members of Congress to hold posts in the Armed Forces Reserve
on the ground that this policy violated the Incompatibility Clause.
The Court *eld that the Secretary’s nonobservance of the Incom-
patibility Clause “would adversely affect only the generalized
5. The Court of Appeals is not free to depart from binding Supreme
Court precedent unless it has clear directions from this Court to do so.
Solerno v. American League of Prof. Baseball Clubs, 429 F.2d 1003, 1005
(2d Cir.), cert. denied, 400 U.S. 1001 (1970) (“[Wle continue to
believe that the Supreme Court has the exclusive privilege of overruling its
own decisions.””); Kovacs v. United States, 355 F.2d 349, 351 (9th Cir.),
cert. denied, 384 U.S. 941 (1966) (“Until the Supreme Court chooses
to depart from its pronouncements [Courts of Appeals] are obligated to
follow [them].’’)
8
interest of all citizens in constitutional governance. . . .” 418 U.S.
at 217. Similarly, in Richardson, the Court held that a taxpayer's
generalized grievance regarding the CIA’s failure to issue a public
Statement of Accounts and Expenditures pursuant to Article I, § 9,
Clause 7 of the Constitution did not clear the threshold of Article
III. 418 U.S. at 178. And in Warth, the Court held that a group
of plaintiffs consisting of not-for-profit corporations interested in
housing problems, taxpayers and residents lacked a sufficiently
direct, monetary interest in local zoning practices to meet the
constitutional prerequisite to standing.
Unlike the plaintiffs in those actions, Petitioners here have a
fundamental relationship with the parties whose constitutional
rights are violated by the CTRPA Regulations. They are the
elected representatives of the citizens of the City of South Lake
Tahoe and their obligation to protect the rights of their constitu-
ents rests upon a legal duty, not a generalized “motivation”,
Schlesinger v. Reservists to Stop the War, supra, 418 US. at
225-226; or because of a mere “interest in a problem’, Sierra
Club v. Morton, 405 U.S. 727, 739 (1972); and their concern
is not a kind shared by citizens generally. Schlesinger v. Reservists
to Stop the War, supra, 418 US. at 216-217; United States v.
Richardson, supra, 18 U.S. at 176-179.°
Moreover, the interference by CTRPA with the Councilmem-
bers’ ability to protect the rights and interests of their constituents
constitutes “injury in fact.” See, Washington Utilities & Transp.
6. That the Councilmembers’ interest in the outcome of the proceedings
is significantly different from citizens generally was peters yi by the
Court of Appeals below: “It may be argued that a public official charged
with the enforcement of an allegedly unconstitutional state law does have
a greater and more specific stake in the law's yelidity than the ordinary
citizen. For example, the Councilmembers here must vote whether to en-
force the CTRPA ordinances. While the ordinary citizen may remain
passive and silent until he or she is actually victimized by an unconstitu-
tional law, officials charged with a law’s enforcement must, on pain of
criminal liability, actively execute the law's commands.”” Appendix A,
p. 11.
9
Comm'n v, F.C.C., 513 F.2d 1141, 1148-1151 (9th Cir. 1975) .’ The
standing of a litigant who is forced to violate the constitutional
rights of others has been recognized by this Court. For example,
in NAACP v, Alabama ex rel, Patterson, 357 U.S. 449 (1958),
the NAACP had been held in contempt for refusing to comply
with an order requiring it to disclose its membership lists. It was
allowed to raise its members’ constitutional right of association as
a basis for contesting the validity of the order. Similarly, in
Barrows v. Jackson, 346 U.S. 249 (1953), a party to a restrictive
covenant in a deed which denied non-Caucasian vendees their
constitutional rights was allowed to challenge its validity.
The Court expressly acknowledged the continued validity of
this line of cases in Warth v. Seldin:
“In several cases, this Court has allowed standing to litigate
the rights of third parties when enforcement of the chal-
lenged restriction against the litigant would result indirectly
in the violation of third parties’ rights. See, e.g., Doe v.
Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d
205 (1973); Griswold v. Connecticut, 381 U.S. 479, 481, 85
S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965); Barrows v, Jack-
son, supra.” Warth v. Seldin, supra, 422 US. at 510.
Here, the Councilmembers have alleged that enforcement of the
CTRPA Regulations adversely affects their existing relationship
with the very persons whose rights are violated: the citizens of the
City of South Lake Tahoe. Those citizens elected the Council-
members, among others, to uphold the Constitution of the United
States and the Councilmembers have a fiduciary duty to those
citizens to do so. The existence of such a direct, continuing rela-
tionship distinguishes the cases relied upon by ihe Court of
7. This Court itself has suggested that the impairment of an agency’s
discharge of its official duties would support standing. See, e.g., Coleman v.
Miller, 307 U.S. 433, 441-442 (1939) (recognizing “the legitimate in-
terest of public officials . . . to resist the endeavor to prevent the enforce-
ment of statutes in relation to which they have official duties.”’); United
States ex rel. Chapman v. F.P.C., 345 U.S. 153 (1953).
10
Appeals and underscores the propriety of according standing to
the Councilmembers to protect the constitutional rights of those
affected by the CTRPA Regulations.
However, the interest of the Councilmembers in the con-
troversy is not limited to a concern for the constitutional rights of
the residents of the City of South Lake Tahoe. Their own indi-
vidual economic interests are also directly involved. Public officials
enjoy a qualified immunity from liability under 42 U.S.C. § 1983,
provided they act in good faith with a reasonable belief in the
constitutionality of their actions.* But, good faith immunity from
liability for damages under Section 1983 is lost if the official,
“knew or reasonably should have known that the action he took
within his sphere of official responsibility would violate the con-
stitutional rights of [others}.. . .” Wood v. Strickland, 420 US.
308, 323 (1975).
In this case, Petitioners could not demonstrate a good faith,
reasonable belief in the constitutionality of the CTRPA Regula-
tions. The opposite is the case. They believe the CTRPA Regula-
tions are unconstitutional. If they enforce them notwithstanding
that belief, they forfeit their qualified immunity in any subsequent
Section 1983 suit brought against them. They will be liable for
having been right. That is not only unreasonable and unjust, but
it also frustrates two of the purposes for the qualified immunity:
to encourage decisiveness of judgment in the exercise of the
official’s public duties, Schewer v. Rhodes, 416 U.S. 232, 240
(1974), and to attract the most capable individuals to elected
office, Wood v. Strickland, supra, 420 US. at 320.
8. Pierson v. Ray, 386 U.S. 547, 557 (1967) (“{I]}f the jury found
that the officers reasonably believed in good faith that the arrest was
constitutional, then a verdict for the officers would follow even though the
arrest was in fact unconstitutional.”’); Scheuer v. Rhodes, 416 U.S. 232,
248 (1974) (“It is the existence of reasonable grounds for the belief
formed at the time and in light of all the circumstances, coupled with good
faith belief, that affords a basis for qualified immunity of executive officers
for acts performed in the course of official conduct.” ); Wood v. Strickland,
420 U.S. 308, 323 (1975) (‘The official himself must be acting sincerely
and with a belief that he is doing right .. .”).
11
There is another persuasive reason for recognizing standing in
the circumstances of this case. In Owen v. City of Independence,
aoe US. ........, 100 S.Ct. 1398 (1980), this Court denied a
qualified immunity to municipalities in suits brought under the
Civil Rights Act, It did so because it believed that the denial of
immunity would further the objective of Section 1983 of deterring
future constitutional deprivations, 100 S.Ct. at 1416. The Court
observed that the imposition of liability without regard to the
good faith of the municipality's public officials would create ‘‘an
incentive for officials who may harbor doubts about the lawfulness
of their intended actions to err on the side of protecting citizens’
constitutional rights.” [bid. It also recognized that consideration
of a municipality's prospective liability is a proper concern of
public officials and that, ‘a decisionmaker would be derelict in
his duties, if, at some point, he did not consider whether his
decisions comport with constitutional mandates, . . .” 100 S.Ct.
at 1418.
Here, the Councilmembers have been attentive to the constitu-
tional rights of the individuals affected by their actions. They
have sought a declaration of their rights and obligations with
respect to regulations they are bound to enforce, but which they
believe are unconstitutional. The opinion of the Court of Appeals
denies them standing to obtain that declaration and thus under-
cuts the efforts of the Councilmembers ‘to comport [their actions}
with constitutional mandates.” The decision below thus under-
mines important objectives of Section 1983. This Court should
review it for that reason alone.
Il. In Denying Standing To The City, The Court of Appeals’ Deci-
sion Misconstrues Williams v. Mayor of Baltimore, 289 U.S.
36 (1933) and Frustrates Efforts of Municipalities to Protect
the Constitutional Rights of Their Constituents.
The Court of Appeals’ decision, denying standing to the City,
is not based on an application of the normal criteria governing
12
Standing to sue in federal court. To the contrary, it results from
a blanket rule that deprives a municipality of standing to chal-
lenge on constitutional grounds regulations it is required to
enforce. The Court of Appeals believed its decision to disregard
normal standing principles was mandated by Williams v. Mayor
of Baltimore, 289 U.S. 36 (1933) and its progeny.
Williams involved a challenge by the Mayor and City Council
of Baltimore of a Maryland statute exempting property of a
particular railroad from taxation, The Court of Appeals for the
Fourth Circuit had declared the statute invalid under the equal
protection clause of the Fourteenth Amendment. This Court re-
versed, stating: “A municipal corporation, created by a state for
the better ordering of government, has no privileges or immu-
nities under the Federal Constitution which it may invoke in op-
position to the will of its creator.’ 289 U.S, at 40.°
However, Williams presents no bar to the City’s claims here.’
Whatever the limitations may be on the power of a municipality
to sue the state creating it, cf. Rogers v. Brockette, 558 F.2d 1057
9. This decision follows a line of cases holding that municipal corpora-
tions are mere creations of the state and may exercise only those powers
conferred upon them which the state may expand or withdraw at will.
See, e.g., City of Trenton v. New Jersey, 262 U.S, 182, 187 (1923) ("A
municipality is merely a department of the State, and the State may with-
hold, grant or withdraw powers and privileges as it sees fit. However great
or small its sphere of action, it remains the creature of the State exercising
and holding powers and privileges subject to the sovereign will.”) See
also, Hunter v. City of Pittsburgh, 207 U.S. 161, 179 (1907) (“[In its
dealings with municipalities of its creation] the State is Supreme, and its
Legislative Body, conforming its action to the state constitution, may do
as it will, unrestrained by any provision of the Constitution of the United
States.’’).
10. Williams, together with Hanter v. Pittsburgh, 207 U.S. 161,
(1907) and City of Trenton v. New Jersey, 262 U.S. 182 (1923), have
been construed by the Court of Appeals for the Fifth Circuit as descend-
ants of Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1918).
Viewed in this light, Williams merely reflects the proposition that the
United States Constitution does not interfere in states’ internal political
organization; it is not, strictly speaking, a decision about a municipality's
standing to sue. See, Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th
Cir.) cert. denied, 444 U.S, 827 (1979).
13
(Sth Cir.), cert. denied, 444 U.S. 827 (19°79) (distinguishing
cases denying standing to a municipality), they have no application
to these proceedings since the State is not a party to them.
The City does not contend that any powers of the State over it
are restrained by the prohibitions of the Fifth or Fourteenth
Amendments. The City does not attack the California statutes
creating CTRPA, the State's delegation of authority to CTRPA
to promulgate land use regulations, or any State law. Instead, its
attack is limited to the CTRPA Regulations themselves, which
the City contends are unlawful and unconstitutional. Since CTRPA
is not the equivalent of the State itself, see, e.g., Cal. Gov't
Code §§ 940.4, 945, Williams is inapplicable.
If the general principles established by this Court to govern
standing to sue in federal court are applied, it is clear that
the City has standing. It has alleged ‘a distinct and palpable”
injury to itself; it has asserted its own legal rights and interests;
and it has presented a genuine, live case or controversy. Warth v.
Seldin, 422 U.S, 490, 501 (1975).
For example, the City has alleged specifically (and CTRPA
has never denied) that enforcement of the CTRPA Regulations
will decrease property values and thereby decrease property tax
revenues necessary to support public facilities and governmental
operations. It also alleges that enforcement of the CTRPA Regu-
lations will subject it to civil claims and litigation.”
Municipalities are “persons” within the meaning of the Civil
Rights Act, 42 U.S.C. § 1983; Morrell v. New York City Depart-
ment of Social Services, 436 U.S. 658, 700-701 (1978), and thus
subject to suit for damages under its terms. As indicated above,
in Owen v, City of Independence, supra, this Court held that
municipalities did not enjoy a good faith immunity, and that their
liability would depend solely on whether they had conformed
11. For purposes of ruling on a motion to dismiss for want of stand-
ing, “both the trial and reviewing courts must accept as true all material
allegations of the complaint, and must construe the complaint in favor of
the complaining party.” Warth v. Seldin, 422 U.S, 490, 502 (1975).
14
their actions to the requirements of the Federal Constitution and
Statutes. 100 S.Ct. at 1409. Accordingly, in seeking a judicial
declaration of the correctness of its views, the City also seeks to
protect its own rights, and not just the legal rights or interests of
third parties. See Warth v. Seldin, supra, 422 U.S. at 499, In
short, the sort of injury alleged by the City is sufficiently direct
and immediate to show the requisite “personal stake in the out-
come of the controversy.” Baker v, Carr, 369 U.S. 186, 204
(1962). See, Rogers v. Brockette, supra, 588 F.2d at 1060-1061;
and City of Davis v. Coleman, 521 F.2d 661, 670-672 (9th Cir.
1975).
Moreover, in Owen, the Court reasoned that to impose strict
liability and to deny good faith immunity would serve as a deter-
rent against future constitutional deprivations:
“The knowledge that a municipality will be liable for all of
its injurious conduct, whether committed in good faith or
not, should create an incentive for officials who may harbor
doubts about the lawfulness of their intended actions to err
on the side of protecting citizens’ constitutional rights.”
100 S.Ct. at 1416,
Indeed, in Owen, this Court observed that an official would be
“derelict” in his duties, “if he did not consider whether his actions
comport with constitutional standards.” 100 S.Ct. at 1418.
The Court of Appeals’ decision in this case has frustrated the
City’s attempt to do precisely what this Court said it should do.
The City reviewed the CTRPA Regulations, concluded they in-
fringe upon the constitutional rights of its residents and visitors
to the City of South Lake Tahoe, and it filed suit for a declaration
that the offending regulations need not be enforced. But the deci-
sion of the Court of Appeals below deprives the City of a judicial
determination of the correctness of its views and risks the viola-
tion of constitutional rights. Thus, the decision conflicts with
Owen and prevents the City from discharging one of its important
obligations—the protection of its citizens’ constitutional rights.
15
The close relationship between the City and the iandowners
whose constitutional rights are threatened by the CTRPA Regu-
lations is an additional reason to recognize its stake in the con-
troversy. In Akron Board of Education v. State Board of Educa-
tion, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974)
the Court of Appeals held,
“We believe here that in terms of loss of territory and tax
dollars and in terms of identity of interest with the asserted
rights of the pupils and their parents, the Akron Board of
Education and its Superintendent are true adversary parties
and that their complaint states a ‘case’ or ‘controversy’ within
the intendment of Article III of the U.S. Constitution.” 490
F.2d at 1290.
See, also, Pierce v. Society of Sisters, 268 U.S. 570 (1925) (hold-
ing that a school could defend the constitutional rights of the
~ pupils of the school and their parents).
In this case, the relationship between the City and its residents
is at least as close as the relationship between the school board
and the pupils of the school district in Akron and in Pierce v.
Society of Sisters. In fact, the relationship is closer, The City and
its elected officials are directly responsible for the promotion of
the health, safety and welfare of all persons within the City’s
jurisdiction, yet they are compelled by law to enforce the CTRPA
Regulations which they believe are violative of the constitutional
rights of city residents and visitors.
Not only does the City have the same or closer relationship
with the persons whose constitutional rights are violated as the
plaintiffs in both Akron and Pierce v. Society of Sisters, but since
it also alleges it will lose tax dollars as a result of the CTRPA
Regulations and be subject to claims and litigation, it has the
same or greater stake in the litigation. The Court of Appeals’
decision conflicts with the holdings in Akron and Pierce, and it
is contrary to the principles of standing that this Court has
established.
16
lll. The Court of Appeals’ Decision Presents Important Questions
Respecting the Rights and Obligations of Municipalities and
Public Officials in the Discharge of their Duties.
Recently, this Court held that Section 1983 encompasses claims
based on purely statutory violations of federal law, as well as
civil rights and equal protection laws; and that under 42 U.S.C.
§ 1988, attorneys fees may be awarded to the prevailing party in
all such actions, whether brought in state or federal court. State
of Maine v. Thiboutot, ............ SR italascie , 48 US.L.W. 4859
(June 25, 1980). As recognized by the dissenting Justices in that
case, the holding ‘dramatically expand{s]} the liability of state
and local officials. . . .” Id., at 4862. A sample of the federal
cooperative regulatory and social welfare enactments which estab-
lish “rights” arguably protected under the Court’s construction
of Section 1983 is contained in the Appendix to the Dissent of
Justice Powell in Thiboutot and is reproduced in Appendix D
hereto. !
Unquestionably, municipalities and local public officials face
the prospect of litigation involving a wide variety of complex
federal laws and regulations. Yet, the opinion of the Court of
Appeals below denies them standing to seek a judicial determina-
tion of their rights and obligations under those laws—even when
they believe that enforcement of local ordinances may conflict
with federal laws or constitutional provisions.
The opinion of the Court of Appeals below is at odds with
the objectives of the Civil Rights Act identified in Owen v. City
of Independence as it unreasonably restricts the ability of public
officials to avoid infringing upon important statutory and con-
stitutional rights of persons affected by their actions, Additionally,
it conflicts with the explicit ruling of this Court in Board of
Education v. Allen, and with the decisions of Courts of Appeals
of at least three other Circuits. The Court should grant certiorari
to settle the important questions presented and to eliminate the
conflicts in decisions.
17
CONCLUSION
A writ of certiorari should issue to review the judgment and
opinion of the Court of Appeals for the Ninth Circuit.
Respectfully submitted,
STEPHEN GRANT
J. THOMAs RoscH
LEE A. THOMPSON
Three Embarcadero Center
San Francisco, California 94111
(415) 393-2000
Attorneys for Petitioners
McCuTcHEN, DoyLe, BROWN & ENERSEN
J. DENNIS CRABB
Of Council
September 19, 1980,
Appendix A—Court of Appeals’ Opinion
Appendix A
Court of Appeals’ Opinion
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 77-3191
City of South Lake Tahoe, Roger Capri, as Mayor
of the City of South Lake Tahoe, et al.,
Plaintiffs-Appellants,
vs.
California Tahoe Regional Planning Agency, and
Gordon Hooper, et al.,
Defendants-Appellees.
{June 25, 1980]
OPINION
Appeal from the United States District Court
for the Eastern District of California
Before: WALLACE and SNEED, Circuit Judges,
and SOLOMON, * District Judge
WALLACE, Circuit Judge:
The City of South Lake Tahoe (City), and its mayor and mem-
bers of its city council (collectively councilmembers) appeal from
the district court’s dismissal of their action against the California
Tahoe Regional Planning Agency and four of its individual mem-
bers (collectively CTRPA) for injunctive and declaratory relief.
The district court ruled in response to two motions to dismiss
brought by CTRPA, which separately raised both standing and
*Honorable Gus J. Solomon, United States District Judge, District of
Oregon, sitting by designation.
Appendix A—Court of Appeals’ Opinion
2
abstention issues. In its order of dismissal, the district court relied
on the rule that federal courts should, as a matter of discretion,
abstain from exercising jurisdiction in cases where the federal
constitutional claims that support jurisdiction would be mooted or
altered by a state court interpretation of state law. The district
court did not reach the question whether the City and council-
members had standing, although this issue was fully briefed and
argued. We do reach the standing question, because we find that
standing must be ascertained before a court proceeds to exercise
its discretion to abstain. Because we conclude that the City and
councilmembers lacked standing, we affirm the dismissal of their
action without reaching the abstention questions which would be
posed only if jurisdiction were properly established.
I.
The CTRPA is a political subdivision of the State of California
charged with creating and enforcing plans for land and resource
development in the Lake Tahoe region. Cal. Gov't Code § 67040
et seq. (West Supp. 1979). The City and councilmembers allege
that the land use regulations and regional and transportation plans
adopted by the CTRPA are unconstitutional in several respects.
Specifically, they allege that these plans and regulations so dras-
tically limit residential development of unsubdivided property in
the Tahoe basin, including the City, as to take property without
just compensation and arbitrarily discriminate between similarly
situated property owners in violation of the Fifth and Fourteenth
Amendments of the Constitution. The City and councilmembers
further allege violations of the right to travel guarantee inherent
in the Constitution, and that the CTRPA’s actions conflict with the
plans and ordinances of a similar administrative body, the Tahoe
Regional Planning Agency—a bi-state agency established by Com-
Appendix A—Court of Appeals’ Opinion
3
pact between California and Nevada and approved by Congress—
in violation of the Supremacy Clause of the Constitution.
The City alleges that enforcement of the CTRPA regulations
has a substantial and injurious effect on its municipal finances and
claims standing on this basis. The councilmembers claim standing
in that they are required by law to enforce the CTRPA’s regula-
tions, Cal. Gov't Code §§ 67072, 67102 (West Supp. 1979), and
yet by voting to enforce these regulations would violate their oaths
of office to uphold the U.S. Constitution and expose themselves to
civil liability (pursuant to 42 U.S.C. § 1983) for enforcing an
unconstitutional law. Violation of any of the CTRPA’s ordinances
is a misdemeanor, Cal. Gov't Code § 67106 (West Supp. 1979),
as is a government official’s willful failure to perform his duty,
Cal. Gov't Code § 1222 (West 1966). The councilmembers thus
allege that failure to enforce the CTRPA’s regulations could result
in personal criminal liability, plus possible exposure to civil claims
for non-enforcement (e.g., mandamus actions authorized by Cal.
Code Civ. Pro. § 1084 et seg. (West 1970) ). They argue that their
dilemma—they will be criminally and civilly liable for non-eh-
forcement, and civilly liable for enforcement—generates standing.
II.
Standing is a necessary element of federal-court jurisdiction.
Warth v. Seldin, 422 U.S. 490, 498 (1975). A threshold question
in every federal case is, therefore, whether at least one plaintiff has
standing. Construction Indus. Ass’n of Sonoma County v. City of
Petaluma, 522 F.2d 897, 903 (9th Cir. 1975), cert. denied, 424
U.S. 934 (1976). Only after a court is satisfied that standing and
the other jurisdictional prerequisites are met may it determine,
within its discretion, whether to abstain. See Miller-Davis Co. v.
1. Neglect or violation of official duties may also result in a public
official being removed from office. Cal. Penal Code § 661 (West 1970).
Appendix A—Court of Appeals’ Opinion
4
Illinois State Toll Highway Auth., 567 F.2d 323, 326 (7th Cir.
1977). Although the district court passed over the standing issue
we must consider it because it governs our jurisdiction as well.
Jenkins v. McKeithen, 395 US. 411, 421 (1969) (opinion of
Marshall, J.). We therefore examine whether the City and council-
members have stafiding to bring this case.
A. The City’s Standing
It is well established that “{ p Jolitical subdivisions of a state may
not challenge the validity of a state statute under the Fourteenth
Amendment.” City of New York v. Richardson, 473 F.2d 923, 929
(2d Cir.), cert. denied, 412 U.S. 950 (1973). See Williams v.
Mayor of Baltimore, 289 US. 36, 40 (1933); Newark v. New
Jersey, 262 US. 192, 196 (1923); Trenton v. New Jersey, 262
US. 182, 188 (1923); Aguayo v. Richardson, 473 F.2d 1090,
1100-01 (2d Cir. 1973), cert. denied, 414 US. 1146 (1974).
This is true whether the defendant is the state itself or another of
the state’s political subdivisions. See New Orleans v. New Orleans
Water Works Co., 142 U.S. 79 (1891); Akron Bd. of Educ. v.
State Bd, of Educ., 490 F.2d 1285, 1297-98 (6th Cir.) (Weick,
J., dissenting), cert. denied, 417 U.S. 932 (1974). Thus, the City
may not challenge CTRPA’s plans and ordinances on constitutional
grounds.” Because all of its claims are based on the Constitution,
the City’s challenge was properly dismissed.
B. The Councilmembers’ Standing
The essence of the standing question “is wnether the litigant
is entitled to have the court decide the merits of the dispute or of
2. The City argues that two of our decisions, City of Davis v. Coleman,
521 F.2d 661 (9th Cir. 1975), and Washington Util. & Transp. Comm'n
v. FCC, 513 F.2d 1142 (9th Cir. 1975), undermine the rule stated in,
e.g., Williams v. Mayor of Baltimore, supra. But both cases are materially
distinguishable from the facts in Williams and the case before us. The rule
stated in Williams disables only constitutional challenges brought against
state defendants. The challenges in both Davis and Washington Utilities
were based on statutory grounds; further, in Davis there was at least one
federal defendant.
Appendix A—Court of Appeals’ Opinion
5
particular issues. This inquiry involves both constitutional limita-
tions on federal-court jurisdiction and prudential limitations on its
exercise... . In both dimensions it is founded in concern about the
proper—and properly limited—role of the courts in a democratic
society.” Warth v. Seldin, supra, 422 U.S. at 498 (citation omit-
ted).
As a constitutional minimum, standing requires that a plain-
tiff allege
“such a personal stake in the outcome of a controversy” as to
to warrant /is invocation of federal-court jurisdiction and to
justify exercise of the court’s remedial powers on his behalf.
Baker v. Carr, 369 U.S. 186, 204 (1962). The Art. III judicial
power exists only to redress or otherwise to protect against
injury to the complaining party, even though the court’s
judgment may benefit others collaterally. A federal court's
jurisdiction therefore can be invoked only when the plaintiff
himself has suffered “some threatened or actual injury result-
ing from the putatively illegal action....” Linda RS. v.
Richard D., 410 U.S. 614, 617 (1973). See Data Processing
Service v. Camp, 397 US. 150, 151-154 (1970).
Id. at 498-99 (footnotes omitted) (emphasis in original). This
consitutional minimum is sometimes described as the requirement
that a plaintiff must allege “injury in fact.” Schlesinger v. Reserv-
ists to Stop the War, 418 US. 208, 218 (1974); Association of
Data Processing Service Organizations, Inc. v. Camp, 397 US.
150, 152 (1970).
Beyond this ‘‘minimum constitutional mandate,” Warth v. Sel-
din, supra, 422 U.S. at 499, the Supreme Court has developed, as
a prudential matter of self-governance, certain ‘‘other limits on the
class of persons who may invoke the courts’ decisional and remedial
powers.” Id, Precisely which categories of plaintiffs are excluded
on constitutional grounds, and which on prudential grounds, how-
ever, is not always easy to ascertain. For example, in Schlesinger v.
Appendix A—Court of Appeals’ Opinion
6
Reservists to Stop the War, supra, the Court held that a plaintiff
class lacked standing, as “‘citizens,” to challenge the Department
of Defense's policy of permitting Members of Congress to hold
posts in the Armed Forces Reserve on the ground that this policy
violated the Incompatibility Clause. The Court said that the
Secretary's nonobservance of the Incompatibility Clause ‘would
adversely affect only the generalized interest of all citizens in
constitutional governance, and that is an abstract injury.” 418 U.S.
at 217. In addition, the Court explicitly stated that such an “‘ab-
stract injury’ does not satisfy the Article III “cases or con-
troversies” requirement. Jd. at 227. Similarly, in United States v.
Richardson, supra, 418 U.S. 166, 173-78 (1974), the Court said
that a taxpayer's generalized grievance regarding the CIA’s al-
legedly unconstitutional failure to issue a public Statement of
Accounts and Expenditures pursuant to Art. I, $9, cl. 7 of the
Constitution* did not ‘‘clear the threshold [Article III} hurdle of
Baker v. Carr, 369 U.S. [186,} 204 [ (1962) }.” 418 US. at 178.
Warth v. Seldin, supra, was decided the following term. There
the Court, citing Schlesinger and Richardson, included in its list
of prudential limitations the rule that standing should be denied
when the only “asserted harm is a ‘generalized grievance’ shared
in substantially equal measure by all or a large class of citizens.”
422 U.S. at 499. Accord, Duke Power Co. v. Carolina Environ-
3. Article I, § 6, cl. 2 of the U.S. Constitution states:
No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of
the United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time; and no Person
holding any Office under the United States, shall be a Member of
either House during his Continuance in Office.
4. Art. 1, § A, cl. 7 of the Constitution provides:
No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law; and a regular Statement and
Account of the Receipts and Expenditures of all public Money shall
be published from time to time.
Appendix A—Court of Appeals’ Opinion
:
mental Study Group, 438 U.S. 59, 80 (1978).* Since the Court in
Schlesinger and Richardson had explicitly grounded its holdings
on Article III, the statements in Warth and Duke Power that
plaintiffs who allege “abstract injuries” are barred. as a prudential
matter are perplexing. We thus admit to some confusion as to
whether the ‘‘abstract injury’ standing bar is constitutional, or
instead prudential.®
One further complication adds to the complexity of our review.
Until 1968 it was well established that state officials lack a
sufficient personal interest in vindicating the Federal Constitu-
tion to grant them standing to challenge state statutes on consti-
5. The Court has made it clear, in Richardson, Schlesinger, and Warth,
that generalized grievances are insufficient to confer standing to sue. A
second cases or controversy requirement, which is different from but often
associated with standing, is that a case be justiciable. While standing
“focuses on the party seeking to get his complaint before a federal court,”
justiciability involves “the issues he wishes to have adjudicated.” Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38 (1976),
quoting Flast v, Cohen, 392 U.S. 83, 99 (1968). The question whether
the councilmembers have brought us a case or controversy is a matter of
standing rather than justiciability. The deficiency in the instant action lies
not in the nature of the issues: the issue whether the CTRPA ordinances
violate the constitution is of a traditionally justiciable sort. The problem,
as we discuss infra, is that the councilmembers’ interest in these justiciable
issues is too abstract; thus, they are the wrong litigants.
6. A third standing limitation, the so-called ‘‘nexus” requirement an-
nounced in Flast v. Cohen, 392 U.S. 83 (1968), is also a shied of some
controversy in the Article III/prudential category debate. See Duke Power
Co. v. Carolina Environmental Study Group, 438 US. 59, 79 n.25
(1978); United States v. Richardson, 418 U.S. 166, 181 (1974) (Powell,
J., concurring). In Flast, the Court stated that to demonstrate standing a
plaintiff must allege a “nexus between the status asserted by the litigant
and the claim he presents.” Jd. at 102. The “nexus” requirement has not
been completely interred, see Schlesinger v. Reservists to Stop the War,
418 U.S. 208, 227-28 (1974); United States v. Richardson, 418 USS.
166, 171-74, but it has been confined to taxpayers’ suits challenging con-
gressional exercise of the taxing and spending power. Duke Power Co. v.
Carolina Environmental Study Group, supra, 438 U.S. at 79; Schlesinger
v. Reservists to Stop the War, supra, 418 U.S, at 225 n.15. It is thus
clearly inapplicable to the instant case.
Appendix A—Court of Appeals’ Opinion
8
tutional grounds, Columbus & Greenville Ry. v. Miller, 283 US.
96, 99-100 (1931); Braxton County v. West Virginia, 208 US.
192, 197-98 (1908); Smith v. Indiana, 191 U.S. 138, 148-49
(1903); P. Bator, P. Mishkin, D,. Shapiro, & H. Wechsler, Hart
and Wechsler’s, the Federal Courts and the Federal System 182
(2d ed. 173). For example, in Smith v. Indiana, supra, a county
auditor sued the state of Indiana in state court, alleging that a
state property tax statute violated the Fourteenth Amendment.
The Supreme Court stated on appeal from the Indiana Supreme
Court's judgment:
[T }he jurisdiction of this court. . . can only be invoked by
a party having a personal interest in the litigation. It follows
that he cannot sue out a writ of error in behalf of third
parties. . . . It is evident that the auditor had no personal
interest in “the litigation. He had certain duties as a public
officer to perform. The performance of those duties was of
no personal benefit to him, Their non-performance was
equally so, He neither gained nor lost anything by invoking
the advice of the Supreme Court as to the proper action he
should take. He was testing the constitutionality of the law
purely in the interest of third persons, viz., the taxpayers
. We think the interest of an appellant in this court
should be a personal and not an official interest... .
191 U.S. at 148-49 (citations omitted).
In 1968, however, the Supreme Court, without mention of the
Smith v. Indiana, Braxton, or Columbus & Greenville cases, held
in a brief footnote that members of a school board had standing
to challenge a state statute which they believed to violate the
Federal Constitution. Board of Educ, v. Allen, 392 U.S. 236, 241
n.5 (1967). Allen was an appeal from a state-court judgment
upholding the constitutionality of a statute which required school
districts to provide textbooks without charge to school children
in both public and private schools, The Court stated:
Appendix A—Court of Appeals’ Opinion
9
Appellees do not challenge the standing of appellants to
press their claim in this Court. Appellants have taken an oath
to support the United States Constitution, Believing [the
challenged statute} to be unconstitutional, they are in the
position of having to choose between violating their oath and
taking a step—refusal to comply with [the statute ]—that
would be likely to bring their expulsion from office and also
a reduction in state funds for their school districts. There
can be no doubt that appellants thus have a “personal stake
in the outcome” of this litigation. Baker v. Carr, 369 US,
186, 204 (1962).
Id, The quoted footnote comprised the extent of the Court's
discussion of the standing issue.
Were Allen the last word from the Supreme Court on standing,
we could simply adopt the rationale of the quoted footnote and
determine that the councilmembers in the case before us have
standing on the basis that they believe that enforcing the CTRPA’s
ordinances would violate their oaths of office. Indeed, this is the
approach taken by several of our sister circuits, See Regents of
the Univ. of Minn. v. NCAA, 560 F.2d 352, 363-64 (8th Cir.),
cert, dismissed, 434 US. 978 (1977); Aguayo v, Richardson,
supra, 473 F.2d at 1100; City of New York v. Richardson, supra,
473 F.2d at 933. Contra, Finch v, Mississippi State Medical Ass'n,
585 F.2d 765, 773-75 (Sth Cir. 1978); Athanson v. Grasso, 411
F. Supp. 1153, 1156-61 (D, Conn, 1976) °(three-judge court).
See also Akron Bd. of Educ. v. State Bd. of Educ., supra, 490
F.2d at 1289-91 (granting a school board standing to challenge
state districting and transfer policies which increased segregation
within school board's district on any of three theories: (1) jus
fertii representation of parents and students; (2) the board's
interest in preventing loss of territory and tax dollars; (3) the
board members’ desires not to violate their oaths of office and to
avoid exposure to civil liability.). But, A//en was followed by
Appendix A—Court of Appeals’ Opinion
10
Schlesinger, Richardson, Warth, and other cases which signifi-
cantly tightened standing requirements. See, e.g., O'Shea v.,
Littleton, 414 U.S. 488 (1974); Sierra Club v. Morton, 405 US.
727 (1972). Neither the Second nor the Sixth Circuit has had the
Opportunity to reconsider the impact of Allen since Schlesinger
and Richardson, The sum of recent Supreme Court teachings
indicates that the A//en theory of standing, which was itself an
abrupt departure from settled precedent, must be carefully con-
sidered. We thus proceed to determine what A//en now stands
for and to analyze the councilmembers’ standing to bring this
case.
1, The Allen Theory of Standing (by not enforcing CTRPA
regulations ),
Since virtually every public official is subject to severe, and
generally criminal, sanctions for non-performance of official
duties, and also takes an oath of office which requires him or her
to uphold the Constitution, the theory announced in A//en would
confer standing on any public official who believes that a statute
which he or she is charged with enforcing is unconstitutional.
Although the councilmembers here urge that they may be exposed
to civil liability should they choose to enforce the CTRPA ordi-
nances, Al/en does not demand anything more than a forced
choice between violation of the oath of office and poten’ 'al
expulsion from office. We begin our analysis by considering
whether A//en can properly be considered as binding Supreme
Court precedent. We conclude it cannot and therefore that the
councilmembers’ desire not to violate their oaths of office does
not confer standing. We then discuss whether standing is supplied
(\
\
Appendix A—Court of Appeals’ Opinion
11
by the councilmembers’ allegations’ regarding potential exposure
to civil liability.
The councilmembers do 10t seek here to represent the City’s
interests; if they did their claims would be barred along with the
City’s. Rather, the councilmembers assert that their personal
dilemmas generate standing. The fundamental premise of
Schlesinger and Richardson, however, is that a litigant’s stand-
ing cannot be based on the ‘‘generalized interest of all citizens
in constitutional governance.” Schlesinger v. Reservists to Stop
the War, supra, 418 US, at 217,
It may be argued that a public official charged with the en-
forcement of an allegedly unconstitutional state law does have
a greater and more specific stake in the law's validity than an
ordinary citizen, For example, the councilmembers here must vote
whether to enforce the CTRPA ordinances. While the ordinary
citizen may remain passive and silent until he or she is actually
victimized by an unconstitutional law, officials charged with a
law's enforcement must, on pain of criminal liability, actively
execute the law's commands, It is also true that the class of
public officials who might sue on an A//en theory is, relatively
speaking, smaller than the class of all citizens. Thus, although
each broadening of the courts focus brings charges of usurpation
of power by the judiciary and “government by injunction,” 418
U.S. at 222, standing for these public officials threatens our
legitimacy less than would general citizen standing.
But the source of the public official’s complaint, like that of the
ordinary citizens in Schlesinger and Richardson, is just abstract
outrage at the enactment of an unconstitutional law. Apart from
7. The facts which demonstrate a plaintiff's standing must be alleged
in the complaint. See Jenkins v. McKeithen, 395 U.S, 411, 422 (1969)
(opinion of Marshall, J.). In considering these allegations ‘| f]or pur-
poses of ruling on a motion to dismiss for want of — both the
trial and reviewing courts must accept as true all material allegations of
the complaint, and must construe the complaint in favor of the complain-
ing party.” Warth v. Seldin, supra, 422 US. at SOL.
Appendix A—Court of Appeals’ Opinion
12
the highly speculative potential exposure to civil liability which
we discuss infra, the councilmembers will lose nothing by enforc-
ing the CTRPA’s ordinances save an abstract measure of con-
stitutional princple. No consequences, save those of conscience
self-imposed by the councilmembers’ personal beliefs, flow from
the violation of the oath in performance of a statutory duty.
Compare Craig v. Boren, 429 U.S. 190, 194 (1976) (vendor who
was obliged by challenged statute to heed statutory discrimina-
tion against selling beer to males under 21 had standing because
of her direct economic injury through the constriction of her
buyers’ market); Barrows v. Jackson, 346 US. 249, 255-56
(1953) (vendor would suffer ‘‘direct, pocketbook injury’’).
Thus, the councilmembers have available a course of action
which subjects them to no concrete adverse consequences—they
can enforce the CTRPA ordinances. That an alternative course
exists—not enforcing the statute—which might result in criminal
liability does not transform the councilmembers’ abstract dis-
agreement with the legislature over land use into judicially
cognizable concrete injury. The criminal liability might support
standing to challenge the relevant criminal statutes, perhaps on
the theory that public officials should not be required to act con-
trary to their constitutional beliefs. But the councilmembers have
not shown any concrete personal injury—criminal liability or
otherwise—that results from the operation of the challenged
CTRPA ordinances. The lesson of Schlesinger and Richardson
is that constitutional principle divorced from concrete injury may
suffice to generate a spirited legislative or public debate, but will
not support a federal case.
This is not to denigrate constitutional principle, nor to urge
upon public officials the violation of their consciences. But the
difficulty with abstract constitutional grievances is that they lack
the specificity and adversarial coloration that transmute vague
Appendix A—Court of Appeals’ Opinion
13
notions of constitutional principle into “‘a form historically
viewed as capable of judicial resolution.’ Schlesinger v. Re-
servists to Stop the War, supra, 418 US. at 218 (quoting Flast v.
Cohen, 392 US. 83, 101 (1968)). See also id. at 220-22. We do
not have official ombudsmen in this country, although we do
have specially elected or appointed attorneys general. To confer
standing on public officials because they wish not to enforce a
statute due to private constitutional predilections, or because
their decision not to enforce the statute may result in criminal
liability, would convert all officials charged with executing stat-
utes into potential litigants, or attorneys general, as to laws within
their charge. Schlesinger and Richardson bar the courthouse door
until the victim of a law’s unconstitutional enforcement—in this
case most clearly the landowners—chooses to knock. We hold,
therefore, that the councilmembers’ interest here is “‘official”’
rather than “personal,” and therefore under the traditiona! rule
of Smith v. Indiana, supra, 191 U.S, 138, and the more recent
prohibitions expressed in Schlesinger and Richardson of standing
to assert abstract injuries, the councilmembers’ claim to standing
is deficient.
2. Councilmembers’ Exposure to Civil Liability (by enforcing
CTRPA regulations ).
Nor does the councilmembers’ alleged exposure to civil liability
provide a sufficiently concrete injury. In Warth v. Seldin, supra,
the Court stated that ‘the standing question . . . bears close
affinity to questions of ripeness—whether the harm asserted has
matured sufficiently to warrant judicial intervention. . . .”’ 422
US. at 499 n.10.
It must be alleged that the plantiff “has sustained or is im-
mediately in danger of sustaining some direct injury” as the
result of the challenged statute or official conduct. Massa-
chusetts v. Mellon, 262 U.S. 447, 488 (1923). The injury
Appendix A—Court of Appeals’ Opinion
14
or threat of injury must be both “real and immediate,” not
“conjectural” or “hypothetical.” Golden v. Zwickler, 394
U.S. 103, 109-110 (1969); Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273 (1941); United Public
Workers v. Mitchell, 330 U.S, 75, 89-91 (1947).
O'Shea v, Littleton, supra, 414 US. at 494.
The exposure to civil liability which the councilmembers con-
tend would be caused by their enforcement of the CTRPA ordi-
nances is wholly speculative. In O’Shea, the plantiff class claimed
that a judge and county magistrate were systematically violating
black citizens’ civil rights by discriminatory sentencing, setting of
bond, and requiring payment for jury trials. The Court declined
to grant an injunction against such activities, emphasizing that
only “if [the plantiffs} proceed to violate an unchallenged law
and if they are charged, held to answer, and tried in any pro-
ceedings before [the judge and magistrate}, 414 U.S. at 497
(emphasis in original), would the plaintiffs’ injury materialize.
The multiple contingencies precluded standing.
Similar multiple contingencies are present here. No lawsuit is
currently threatened. The facts of this case are unlike Sreffel v.
Thompson, 415 U.S. 452 (1974), in which the Court granted
standing to seek declaratory relief to a plaintiff who was threat-
ened on two occasions with criminal prosecution if he persisted
in passing out handbills at a shopping center. In Steffel the
plaintiff's companion at each of three previous efforts to pass out
handbills at the shopping center had already been arrested and
prosecuted, In the instant case there is no immediate threat of
suit nor reason to believe suit is inevitable. Moreover, the ex-
posure in Steffel was to a criminal statute; enforcement of the
statute here would expose councilmembers only to potential civil
liability.
Appendix A—Court of Appeals’ Opinion
15
Further, it is by no means clear that an official who personally
believes a statute to be unconstitutional, but enforces it anyway,
is civilly liable solely on the strength of his subjective concerns.
Under California law, public officials who act under the apparent
authority of an enactment that is unconstitutional are not civilly
liable if they acted “in good faith, without malice.” Cal. Gov't
Code § 820.6 (West 1966). Similarly, a public official is not liable
under 42 U.S.C. § 1983 for actions taken under the authority of
unconstitutional statutes unless he “ ‘knew or reasonably should
have known that the action he took within his sphere of official
responsibility would violate the constitutional rights of [the
plaintiff}, or if he took the action with the malicious intention
to cause a deprivation of constitutional rights or other injury to
[the plaintiff}.’”" O’Connor v. Donaldson, 422 U.S. 563, 577
(1975) (quoting Wood »v. Strickland, 420 U.S. 308, 322 (1975)).
See also Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974). More-
over, an official “has no duty to anticipate unforeseeable constitu-
tional developments.” O’Connor v. Donaldson, supra, 422 US.
at 577; see Wood v. Strickland, supra, 420 US. at 322.
This case, in which no California or section 1983 claim is
present, would be a particularly poor record upon which to decide
the difficult question whether an official who believes a statute
to be unconstitutional can, for immunity purposes, be deemed
nonetheless to act in good faith. The ripeness doctrine, particu-
larly as it affects the standing question, see O'Shea v. Littleton,
supra, 414 US. at 494, is designed primarily to avoid such con-
jecture. It is sufficient to point out the numerous contingencies
which might prevent the councilmembers from ever being actually
threatened with civil liability. We decide, therefore, that the
Appendix A—Court of Appeals’ Opinion
16
threat of civil liability is too attenuated and conjectural to supply
the councilmembers with a basis for standing.®
IV
Neither the City’s nor the councilmembers’ claims supply a
sufficient basis for standing to bring this action. Whether the
abstract, generalized nature of the councilmembers’ claims is
considered a constitutional, or instead a prudential disability,
their claims do not support federal-court jurisdiction. The action
should therefore have been dismissed for lack of standing.
AFFIRMED.
SNEED, Circuit Judge, (concurring) :
I concur in Judge Wallace’s opinion subject to two observa-
tions, It is clear to me that, as Judge Wallace's opinion holds,
the city council members have not brought themselves within the
strict letter of the A//en footnote 5. No palpable threat of expul-
sion is alleged and I would afford Allen no larger scope in the
operation of the law of standing. Second, standing should not
turn on whether a public official might lack immunity in a civil
proceeding under 42 U.S.C. § 1983. If Allen is to be extended to
instances in which one horn of the dilemma is civil liability as a
result of performance of the required duty, the probability of such
liability should be quite high. Avoidance of either horn of the
dilemma is always possible by a resignation with honor.
8. The City and the councilmembers also argue that they are closely
identified with and entitled to represent the interests of landowners and
other persons not parties to this action whose constitutional rights are
violated by the CTRPA’s regulations. Standing to raise constitutional rights
of third parties is available only where the litigant’s own injury is “con-
crete and particularized.”” Duke Power Co. v, Carolina Environmental
Study Group, supra, 438 U.S. at 81. Because the councilmembers’ personal
grievance is ‘‘abstract,”” the councilmembers’ own injury fails this test. The
City is absolutely barred by the rule in Williams v. Mayor of Baltimore,
supra, 289 U.S. 36. We therefore need not consider the litigants’ third-
party contentions.
Ap pendix B—District Court's Opinion and Order
17
Appendix B
District Court’s Opinion and Order
In the United States District Court
For the Eastern District of California
No. S-75-694
City ot South Lake Tahoe, Roger Capri, as Mayor
of the City of South Lake Tahoe; John Wynn,
Robert Kaufman, William Moyer and Patricia
Lowe, as City Councilmen of the City of South
Lake Tahoe,
Plaintiffs,
vs.
California Tahoe Regional Planning Agency, and
Gordon Hooper, Gerald M. Poznanovich, Jan
Chatten-Brown and Kenneth L. Woodward, indi-
vidually and as members of the Governing Body
of the California Tahoe Regional Planning
Agency,
Defendants.
[July 29, 1977}
OPINION AND ORDER
The City of South Lake Tahoe is seeking declaratory and
injunctive relief. The complaint asks to have critical provisions
of the Regional Plan and Land Use Ordinance enacted by the
California Tahoe Regional Planning Agency [hereinafter re-
ferred to as CTRPA} declared constitutionally infirm. The follow-
ing claims are set forth in the amended complaint: (1) Provi-
sions of the Regional Plan and the Land Use Ordinance enacted
by CTRPA have “taken property for public use without just com-
pensation and without due process of law, in violation of the Fifth
and Fourteenth Amendments to the Constitution.” (2) Provi-
sions of the CTRPA plans “deprive persons subject thereto of
equal protection of the laws in violation of the Fifth and Four-
teenth Amendments to the Constitution.” (3) The CTRPA plan
Appendix B—District Court's Opinion and Order
18
and ordinances “unreasonably infringe the right to travel in vio-
lation of the Fourteenth Amendment to the Constitution of the
United States. (4) The CTRPA plan, the land use ordinance
and the transportation plan “are in conflict with and frustrate
the purpose of the Tahoe Regional Planning Compact which was
approved by Congress, the Tahoe General Plan, the Tahoe Land
Use Ordinance and the Tahoe Transportation Plan, and other-
wise violate the Supremacy Clause in Article VI of the Constitu-
tion.”” (5) The fifth claim seeks to enjoin the enforcement of the
CTRPA plan, land use plan and transportation plan.
BACKGROUND FACTS:
In 1968, California and Nevada entered a Compact, the Tahoe
Regional Planning Compact, which was approved by Congress,
Public Law 91-148; 83 Stat. 360 (1969). Pursuant to the Com-
pact, the Tahoe Regional Planning Agency (TRPA) was created
as a separate legal entity and subdivision of both California and
Nevada.
Between April of 1972 and August of 1975, TRPA enacted
plans and ordinances which set minimum standards for govern-
ing land use and transportation with respect to land located in
the “Lake Tahoe Region.” During 1975, the governing body of
CTRPA! enacted a regional plan, a land use ordinance, and a
1. CTRPA was created by the California Legislature in 1967. Cal.Gov.
Code §§ 67000 to 67130. When the Tahoe Regional Planning Compact
was approved by the California Legislature in 1968, the language of the
legislation creating CTRPA which provided for CTRPA’s dissolution upon
ratification of the TRPA Compact was deleted. California Statutes 1968,
Ch. 988, § 6. Additionally, the California Legislature enacted legislation
providing that CTRPA would be included in the TRPA Compact provi-
sion that:
“[A]ny political subdivision may adopt and enforce an equal or
higher standard applicable to the same subject of regulation in its
territory.” (Article VI(a), Cal.Gov.Code § 66801; Cal.Gov.Code
§ 67040).
Appendix B—District Court's Opinion and Order
19
transportation plan, all of which affect the California portion of
Lake Tahoe, including the City of South Lake Tahoe. The
CTRPA Regional Plan, the CTRPA Land Use Ordinance, and
the CIRPA Transportation Plan impose requirements and re-
strictions which differ from, and which are not contained in, the
TRPA General Plan, Land Use Ordinances or Transportation
Plan. The difficulty in this case is that the CTRPA plans and
ordinances are generally more restrictive than the TRPA plans
and ordinances,
The CTRPA Land Use Ordinance prohibits further subdivision
of land in the South Lake Tahoe region and proscribes residen-
tial development after September 19, 1975, until 85% of all
vacant parcels of record have been employed either for residen-
tial or for commercial use, The plaintiffs claim that this restriction
will exist until at least 2002, if in fact it is not a perpetual re-
striction, Thus, it is claimed, the economic use of a substantial
portion of property in South Lake Tahoe is lost without just
compensation or the due process of law. To this end the plaintiffs
assert that each of the defendants intended by the enactment of
the CTRPA plans and ordinances to prohibit the economic and
beneficial use of the property in the City of South Lake Tahoe
and further intended to take such property for public use without
paying just compensation for it.
The equal protection claim urged by the plaintiffs is based on
a class distinction described as existing between ‘persons who
filed a subdivision map or otherwise divided property on or be-
fore September 19, 1975, and those who did not”. The CTRPA
Land Use Ordinance limiting the development of residential
Appendix B—District Court’s Opinion and Order
20
property to one single-family dwelling per parcel is claimed to
lack a reasonable relation to the protection of Lake Tahoe or the
region’s resources or any other legitimate governmental or public
purpose.
The allegations in support of the claim that the CTRPA plans
and ordinances violate the constitutionally protected right to
travel are general and do not indicate that any third party has
claimed that fundamental constitutional right to have been
violated.
The plaintiffs also claim that the CTRPA plans and ordinances
conflict with the TRPA plans and ordinances. If the plaintiffs
enforce the CTRPA plan as they are required by law to do, they
assert that they will be required to violate their oaths to uphold
the Constitution and suffer the threat of civil and criminal lia-
bility. The argument is made that enforcement of the CTRPA
plans will cause a decrease in property values within the City of
South Lake Tahoe with the concomitant decrease in tax revenues
or an increase in taxes.
The issues in this action are raised in two separate motions
made on behalf of the defendants. There is a motion requesting
the Court to abstain from the exercise of jurisdiction. There is a
second motion which seeks dismissal of the complaint because
the plaintiffs lack standing.
MOTION FOR ABSTENTION:
There are at least four recognized reasons for invoking the
judicial doctrine of abstention. They are: (1) to avoid decision
of a federal constitutional question where the case may be dis-
posed of on questions of state law; (2) to avoid needless conflict
with the administration by a state of its own affairs; (3) to leave
to the states the resolution of unsettled questions of state law;
and (4) to ease the congestion of the federal court docket.
Appendix B—District Court's Opinion and Order
21
Wright, Law of Federal Courts, §52, p. 218 (3rd Ed., West,
1976).
CTRPA contends that this Court should abstain from exercis-
ing jurisdiction because the regional plan and land use ordinances
(1) implement crucial California state governmental interests,
and (2) the plan and ordinances are based on state and local
considerations which should be separated from the federal con-
stitutional issues the City seeks to litigate.
In this case, the defendants contend that Burford v. Sun Oil
Co., 319 U.S. 315 (1943), type abstention is mandated by the
facts but they also urge that the elements of the other abstention
cases, including Railroad Commission v. Pullman Co., 312 US.
496 (1941), exist.
The plaintiffs, on the other hand, argue that abstention is an
extraordinary and narrow exception to the duty of a district court
to try a controversy before it. It is limited in application to cir-
cumstances which do not exist in this case. Thus, according to
the plaintiffs’ theory, this Court should exercise its jurisdiction.
The TRPA Compact provides that TRPA rules or regulations
establish a minimum standard for the Tahoe Basin but
“.,.any political subdivision may adopt and enforce an
equal or higher standard applicable to the same subject of
regulation in its territory.” Art. VI(a) [Govt. Code § 66801}
(emphasis added).
In turn, the CTRPA legislation provides that CTRPA is intended
by the Legislature to be ‘‘a ‘political subdivision’ as that term is
used in Article VI of the Tahoe Regional Planning Compact.”
Gov't Code § 67040. The equal or higher standard referred to
as used in the Compact means equal or higher in terms of pro-
tecting the environment.
TRPA was established as a powerful planning agency, with
authority to establish minimum land use standards and to ensure
Appendix B—District Court's Opinion and Order
22
compliance with the ordinances and plans passed. However,
CTRPA, acting as a political subdivision within the meaning of
the Compact, arguably may enact stricter standards if they are
enacted consistent with a rational and legitimate California gov-
ernmental interest. The resolution of these particular questions,
the determination of what interests of California underly the
particular statutes, plans and ordinances examined here, is a
decision which must be made by the California courts consistent
with their interpretation of the design of the TRPA and CTRPA
legislation. I find this case is a proper case to invoke the judicial
doctrine of abstention.
DISCUSSION:
Abstention is a judge-made doctrine sounding in the principles
of Federalism enunciated in the Constitution—principles which
have since been fleshed out by the federal courts. The doctrine
sanctions escape from immediate federal decision only those cases
which fall within narrowly limited special circumstances. Propper
v. Clark, 337 U.S. 472 (1949); Zwickler v. Koota, 389 U.S. 241
(1967). The request to invoke the doctrine must be balanced
against a justification of the expense and delay to which the
application of the doctrine inevitably gives rise. England v.
Medical Examiners, 375 US. 411 (1964).
The case law emanating from the United States Supreme Court
teaches that there are several distinct rationalizations for the
doctrine of abstention. The landmark Supreme Court decision
on abstention is the case of Railroad Commission of Texas vs.
Puliman Co., 312 US. 496 (1941). In that case, the railroad
company sought to enjoin the enforcement of an order of the
Texas Railroad Commission which required lines operating in the
State of Texas to have present in Pullman cars a Pullman con-
ductor. Because of the social conditions giving rise to statements
Appendix B—District Court's Opivion and Order
23
such as it is ‘... well known, porters on Pullmans are colored
and conductors are white’, Railroad Commission vs. Pullman,
supra at 497, a serious question of discrimination existed in the
Texas policy and the Pullman porters involved were allowed to
intervene, Justice Frankfurter noted that the issue raised by the
Pullman porters with respect to equal protection and due process
of law, as enunciated in the Fourteenth Amendment, raised a
substantial constitutional question touching
‘,..a sensitive area of social policy upon which the federal
courts ought not to enter unless no alternative to its adjudica-
tion is open.” Railroad Commission v. Pullman Co., supra
at 498.
The Pullman case involved a state statute subject to state court
construction and offering a possible resolution of the conflict while
concomitantly avoiding the constitutional issue. The Supreme
Court found the state court interpretive alternative in the Pu//man
case tipped the balance of judicial discretion in favor of absten-
tion principally because it avoided the necessity of reaching
the federal constitutional question unnecessarily or prematurely.
Pullman-type abstention is unwarranted in cases where the
relevant state law is settled, Lindsay v. Normet, 405 U.S. 56
(1972), neither is it required where the questioned state statute
is facially unconstitutional. Kasper v, Pontikes, 414 US. 51
(1973). The two recognized proscriptions against invoking Pw/I-
man abstention do not exist in this case. The CTRPA plans and
ordinances do not, on their faces, violate the United States Con-
stitution. Furthermore, there exists a potential resolution of at
least some of the issues raised by the amended complaint in this
action if the state courts of California are given the opportunity
to construe the legislation authorizing the creation of the Cali-
fornia Tahoe Regional Planning Agency, as well as the CTRPA
plans and ordinances.
Appendix B—District Court's Opinion and Order
24
The underlying principle articulated in the Pullman case is
that in the federal system the relationship between the states and
the federal government should be scrupulously observed in an
effort to maintain the harmonious relation between state and
federal authority and to avoid needless federal friction with state
policies. Although the City of South Lake Tahoe in this case
argues that there is nothing ambiguous about the CTRPA plans
and ordinances and that the mere fact that the state law is unset-
tled does not juistify abstention, there is a significant question
here about the scope and intent of the California statutes and
regulations governing the California portion of the Lake Tahoe
region. In particular, there appears to be a conflict between the
authority of CIRPA to enact the restrictive ordinances and regu-
lations, in compliance with its mandate to protect the environ-
ment, and the mandate of the TRPA agency to effect minimum
standards for the bi-state area through the auspices of the regu-
lations of the Tahoe Regional Planning Agency. As the Ninth
Circuit Court of Appeals stated in the case of People of State of
California, ex rel. Younger vs. Tahoe Regional Planning Agency,
516 F.2d 215 (9th Cir. 1975, cert. denied 423 U.S. 894:
‘“.. . [T]he Compact and the TRPA are sui generis off-
spring of a marriage between sovereign partners each ex-
tremely reluctant to relinquish its sovereignty over a portion
of its territory. The TRPA is a powerful planning agency
with authority to establish minimum land use standards
applicable throughout the Basin and to police the region to
ensure compliance with the general plan and any ordinances
passed. However, its sovereign creators did not envision it
as a super bi-state zoning board whose approval would be
a prerequisite to all land use development, or as an omnipo-
tent board which could enforce its will over the majority
vote of one state’s delegation, [Footnotes omitted. }
“The TRPA itself recognizes the image of its authority, and
Appendix B—District Court's Opinion and Order
25
has even delegated some of the authority to its local govern-
ment entities.”
People of State of California, ex rel. Younger v. TRPA,
supra at 218-219 (emphasis added).
The direct issue of authority, the nature of the sovereign’s com-
pact, and the reluctance to relinquish sovereignty over its territory
reflects a conflict which might be resolved by the effort of the
individual state courts.
A second, but not exclusive, abstention doctrine which has
developed is that a federal court should refrain from exercising
its jurisdiction in order to avoid needless conflict with the admin-
istration by a state of its own affairs. The leading case wherein
this doctrine was mentioned was the case of Burford v. Sun Oil
Co,, 219 U.S. 315 (1943). In the Earford case, the Sun Oil Com-
pany had attacked the validity of an order of the Texas Railroad
Commission granting Burford a permit to drill four wells on a
small parcel of land in an East Texas oilfield. The order, which
was contested, involved the general regulatory system devised
for the conservation of oil and gas in Texas. In that case, the
Court addressed the issue articulated by Justice Black, as:
“Assuming that the federal district court had jurisdiction,
should it, as a matter of sound equitable discretion, have
declined to exercise that jurisdiction here?” Burford v. Sun
Oil Co., supra at 318.
A divided Court held that the district court should have dis-
missed the complaint on the ground that the issues involved a
specialized aspect of a complicated regulatory system of local law
which should be left to the local administrative bodies and courts.
The defendants in this case argue that Burford-type abstention
is absolutely mandated by the complexity and the interrelation-
ships of the regulations, ordinances and statutes involving the
South Lake Tahoe region and that those matters are particularly
Appendix B—District Court’s Opinion and Order
26
susceptible to determination by the state. In Burford-type absten-
tion cases, where a federal court defers to the states, the action
is generally dismissed rather than the federal court retaining
jurisdiction pending a state determination of the issue. If the
state court to which deference is shown prejudices any federal
rights of the parties, ultimate review can be sought in the United
States Supreme Court.
The defendants also argue that the case of Alabama Public
Service Commission vs. Southern Railways, 341 US. 341 (1951),
supports Burford-type abstention in this case. In Southern Rail-
ways, a three judge federal district court had enjoined enforce-
ment of a state commission order requiring the Southern Railway
to continue intrastate train service. The railway company alleged
that the Public Service Commission order denied it due process
of law in that it confiscated the plaintiff's property by requiring
it to operate the train for certain services at a loss. The Court
found that the problems raised by the discontinuance of train
service depended predominantly upon the local factor of public
need for a continuation of service as opposed to the extent of
loss to the train company. Alabama Public Service Commission
vs. Southern Railway, supra at 347.
Here, the purpose of both the legislation creating CTRPA and
‘the regional planning ordinance enacted by CTRPA is to con-
serve natural resources at Lake Tahoe, California. The vital state
interest in this sitaution is the resolution of apparently conflicting
opinions in the Tahoe region as to the direction the State of Cali-
fornia, the bi-state Compact TRPA organization, and the CTRPA
subdivision should go in attempting to protect the environment
and economy inherent in that area of California. Another essen-
tial state interest intimately involved with this question of state
policy is the necessity for sounder planning in the area. As the
California Court said in Selby Realty Company vs. City of Santa
Buenaventura, 10 Cal.3rd 110, 120 (1973):
Appendix B—District Court's Opinion and Order
27
“The deletorious consequences of haphazard community
growth in this state and the need to prevent further random
development are evident to even the most casual observer.
The legislation has attempted to alleviate the problem by
authorizing the adoption of long-range plans for orderly
progress.”
In the case of Fralin and Waldron, Inc. v. City of Martinsville,
Virginia, 493 F.2d 481 (4th Cir. 1974), former Justice Clark
found that abstention was appropriate. The City of Martinsville
case involved an action for declaratory and injunctive relief
against the city and its agencies for refusing to grant the plaintiff
a special use permit. Even though a federal constitutional ques-
tion was presented, the three judge panel found that abstention
was appropriate because the state adjudication could well avoid
the necessity of determining the federal constitutional question
as well as avoiding the needless friction in federal-state relations
over the administration of purely state affairs. Although the
Martinsville case, supra, relied principally on the case of Louisiana
Light & Power Co. v. City of Thibodaux, 360 US. 25 (1959),
it is closely related to the questions raised by Burford-type absten-
tion.”
In the case of Rancho Palos Verdes Corp. v. City of Laguna
Beach, 390 F.Supp. 1004 (C.D. Cal. 1975), affirmed 547 F.2d
1092, Judge Kelleher found abstention to be appropriate in an
action brought against members of the City Council and Planning
Commission of the City of Laguna Beach for allegedly engaging
in a conspiracy to deprive the owners of certain property of its
use. The case was decided on the basis of Pa//man-type abstention
but the Court found that:
2. The Louisiana Power & Light Co. v. City of Thibodaux case, supra,
involved a question of the state’s eminent domain proceedings. The Court
noted in the Thibodaux case that the abstention doctrine can apply in
eminent domain cases, a question similar to the ultimate issue in this case.
Appendix B—District Court's Opinion and Order
28
“... Traditional notions of federal-state comity and the gen-
eral reluctance to decide prematurely and unnecessarily
federal questions make abstention at this time wholly appro-
priate.”
Judge Kelleher found that the Ninth Circuit Court of Appeals
had addressed the question of exceptional circumstances necessary
for abstention in the case of Canton vs. Spokane School District
#81, 498 F.2d 840 (9th Cir. 1974). The Judge noted:
“...{L]}and use planning is a very sensitive social and
political issue in California with which the state legislature
and judiciary are deeply concerned. The federal courts ought
not to intervene in the law-making process in this area unless
faced with no alternative.” Rancho Palos Verdes Corp. v.
City of Laguna Beach, supra at 1005.
The questions raised by the complaint in this action sound in land
use and ecological problems. The federal court ought not to
interfere with such problems when the local officials are able
to resolve them through the local sovereign without doing injus-
tice to any of the parties.
In the case of Sea Ranch Assn. v. California Coastal Zone
Conservation Commission, 396 F.Supp. 533 (N.D. Cal. 1975),
modified 537 F.2d 1058, a three judge court in California decided
an action brought by individual property owners challenging the
California Coastal Zone Conservation Act. In the case, the Court
held that in view of the ambiguities in the Act, which had not
been definitively interpreted by California courts, the challenge
presented an appropriate case for abstention. In its findings, the
Court stated that it found the Px//man-type abstention facts to
be present:
“The abstention doctrine rests upon policy considerations
of comity and judicial economy. First, abstention is appro-
priate for the avoidance of unnecessary interference with
Appendix B—District Court's Opinion and Order
29
state regulatory schemes on the premise that federal inter-
vention in such schemes would lead to conflicts in the
federal-state relationship....Second, abstention is appro-
priate to avoid a federal court making tentative or premature
decisions on issues of state law when a state court decision
may substantially eliminate or minimize the federal constitu-
tional issue.”” Sea Ranch Assn. v. California Coastal Zone
Conservation Commission, 396 F.Supp., supra at 537.
Although the Sea Ranch Assn. case as well as the Rancho Palos
Verdes Corp. case involved the Civil Rights Act, alleged to be
involved in this case, but not involved if the facts of the com-
plaint are struck against the usual elements of such a claim, the
principles articulated in the cases which involve the policies of the
California courts, maintain here.
SUPREMACY CLAIM:
The fourth claim of the amended complaint alleged that a
violation of the Supremacy Clause of the United States Con-
stitution exists here because of the conflict between the more
restrictive provisions of the CTRPA plans and ordinances and the
minimum standards set by the TRPA plans and ordinances, The
plaintiffs argue that the resolution of this conflict must be in the
federal forum. |
The apparent conflict, if it exists, is one of form and not of
substance. Article VI, Cl. 2, provides:
“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; ... shall be the supreme
Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.”
By this clause the Supreme Court has determined that the federal
government is entitled to remove impediments to its action within
Appendix B—District Court's Opinion and Order
30
the federal sphere and to assert an immunity from state regulatory
acts in carrying out the federal constitutional function. Pxblic
Utility Commission vs. United States, 355 U.S. 534 (1958). Every
conflicting state law and policy must yield except where the fed-
eral authority leaves room for concurrent state action. Pennsylvania
v. Nelson, 350 US. 497 (1956).
Public Law 91-148, 83 Stat. 360 (1969), is an affirmative Act
of the Congress only to the extent that Congress approved joint
legislation submitted to it by the states of California and Nevada.
Approval was pursuant to Article I, Section 10, Cl. 3, of the
Constitution, which provides that “‘[n}Jo State shall, without the
Consent of Congress,...enter into any Agreement or Compact
with another State,....’’ The execution of a valid interstate
compact, though an act of sovereignty, places the subject matter
under federal jurisdiction and makes it subject to federal enforce-
ment.® Petty v. Tennessee-Missouri Commission, 359 U.S. 275
(1959). It does not, however, on this ground alone, give rise to
the kind of conflict envisioned by Article VI, the Supremacy
Clause. There is room for state policy and law where the matters
at issue go to the heart of the concept of Federalism; policies
involving predominant state concerns are left to the states them-
selves. Ultimately, the language of Article VI literally binds state
judges to follow the Acts of Congress when a conflict between
state and federal interests exists.
The conflict between the CTRPA Plan and the TRPA Plan, as
it arises from the facts in this case, involves questions of state
3. The execution of a valid interstate compact makes questions arising
thereunder subject to federal enforcement. This notion is, however, quite
distinct from a notion which would make interstate compacts subject to
exclusive federal enforcement. Such a policy would be inconsistent with the
constitutional principle of Federalism, The Ninth Circuit Court's finding
that the TRPA interstate compact involved a statute of the United States
within the meaning of 28 U.S.C. § 1331(a), League to Save Lake Tahoe
v. Tahoe Regional Planning Agency, 507 F.2d 517, 522 (9th Cir, 1974),
is not inconsistent with the ruling made in this case,
Appendix B—District Court's Opinion and Order
31
policy and law, regardless of the congressional stamp of approval.
As such, the resolution of the conflict can better be left to the
state of California and its courts. The policy behind the doctrine
of abstention still predominates. A compact is a contract.
Ordinarily, in the interpretation of a contract, the meaning the
parties attribute to the words governs the obligations and signfiic-
ance of the provisions in the agreement. Thus, since California
and Nevada were free to draft the terms of the TRPA Compact,
the language of the Compact should be limited to the legal
significance that either state has placed on the language when
there is an intrastate conflict in its meaning.
CONCLUSION:
This Court should abstain from exercising jurisdiction. What
is involved here is an extensive state regulatory scheme which
is intimately involved with the social, political and economic
policies of the State of California and regions within that state.
Thus, abstention is appropriate to avoid the needless conflict
with the administration by the State of California with its own
affairs. Burford v. Sun Oil, supra.
However, even if argument against abstention is not eclipsed
by the Burford abstention reasoning, abstention must be favored
when the Burford reasoning is coupled with the Pallinan philos-
ophy. There is a potential conflict here between the authority
vested in the CTRPA agency to exercise more restrictive regula-
tions of the use of land within the South Lake Tahoe region and
the authority of the Tahoe Regional Planning Agency to set the
absolute standards for the region, California’s participation in
4, The Court expresses no opinion, nor is the issue raised by the facts
of this case, concerning the propriety of the exercise of federal jurisdiction
where there is a conflict between the interpretation given the TRPA
Compact by the courts of California and the interpretation given the
Compact by the courts of Nevada.
Appendix B—District Court's Opinion and Order
32
the bi-state Compact is approved in the same legislation in which
the state of California authorized the continuation of the CTRPA
agency and empowered it as a political subdivision to act within
the minimum guidelines established by the TRPA plan. This
Court could resolve the state conflict or potential conflict of pol-
icy; however, such a decision might later be resolved contrary to
this Court’s decision by the courts of the State of California and
thus a decision in this case would be premature and at best tenta-
tive. Resolution of the questions raised by the potential conflict
of authority between TRPA and CTRPA might eliminate the
necessity of reaching the constitutional decision and thus absten-
tion is appropriate on the basis of the Railroad Commission v.
Pullman case, supra.
The case law that has developed since the Supreme Court's
opinion in Pu//man has been along distinct lines. Even though
each case may be factually distinguished, it is necessary to look
beyond to the facts of the cases and consider the underlying
policy upon which the principle of abstention is based. The doc-
trine of Federalism allows the states to exercise authority in those
areas of state concern and reserves to the federal government
those areas which are of national concern. Certainly an argument
of national import along the lines of ‘the house that John built”
can be made, but national consequences are not the overriding
concern here. The fundamental questions raised by the facts of
this case invuive the policy and administration of the State of
California. The plaintiffs have previously taken their causes to
the state courts. Those actions are technically still in existence.
The state forum is better equipped, in conjunction with the state
legislature and the state executive departments’ policies, to re-
solve the questions at hand.
Having decided to invoke the doctrine of abstention, it is un-
necessary to address the questions raised by the motion to dismiss
Appendix B—District Court's Opinion and Order
33
for lack of standing. Standing is a constitutional requirement and
as such involves the determination of a constitutional question.
Abstention, on the other hand, involves a question of a court-
made doctrine founded on the constitutional principle of Feder-
alism. A determination on the basis of the court-made doctrine
precludes the necessity of reaching the constitutional question,
a course sanctioned on many occasions by the Supreme Court.
Therefore,
IT IS ORDERED that the defendants’ motion to dismiss this
case by invoking the doctrine of abstention be, and the same
hereby is, granted. The Clerk is directed to dismiss this case and
to inform the parties of the entry of this Opinion and Order.
Done arid dated this 26th day of July, 1977.
James F. Battin
United States District Judge
34
Appendix C—Statutes and Constitutional Provisions Involved
Appendix C
Statutes and Constitutional Provisions Involved.
28 US.C. § 1331(a) provides as follows:
(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 Constitution, laws or treaties of the
United States, except that no such sum or value shall be re-
quired in any such action brought against the United States,
any agency thereof, or any officer or employee thereof in
his official capacity.
28 U.S.C. § 2201 provides as follows:
In a case of actual controversy within its jurisdiction, ex-
cept with respect to Federal taxes other than actions brought
under section 7428 of the Internal Revenue Code of 1954,
any court of the United States, upon the filing of an appro-
priate pleading, may declare the rights and other legal re-
lations 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 effect of a final
judgment or decree and shall be reviewable as such.
42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privi-
leges, 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. For the
purposes of this section, any Act of Congress applicable ex-
Appendix C—Statutes and Constitutional Provisions Involved
35
clusively to the District of Columbia shall be considered to
be a statute of the District of Columbia.
Article III, Section 21, of the United States Constitution pro-
vides, in relevant part, as follows:
The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made,
under their Authority;—to all Cases affecting Ambassadors,
other public Ministers and Consuls;—to all Cases of ad-
miralty and maritime Jurisdiction;—to Controversies to
which the United States shall be a Party;—to Controversies
between two or more States;—between a State and Citizens
of another State;—between Citizens of different States,—
between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citi-
zens thereof, and foreign States, Citizens or Subjects.
Article VI of the United States Constitution provides, in rele-
vant part, as follows:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary
notwithstanding.
Appendix C—Statutes and Constitutional Provisions Involved
36
Amendment V to the United States Constitution provides as
follows:
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be
taken for public use, without just compensation.
Amendment XIV to the United States Constitution provides,
in relevant part, as follows:
All persons born or naturalized in the United States, and
subject to the jurisdiction 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 juris-
diction the equal protection of the laws.
Appendix D-Samples of Statutes That Arguably Could Give
Rise to Section 1983 Actions
10.
37
Appendix D
Samples of Statutes That Arguably Could Give
Rise To Section 1983 Actions.
A. Joint regulatory endeavors
. Federal Insecticide, Fungicide, and Rodenticide Act, 86 Stat.
973 (1972), as amended, 7 U.S.C. §§ 136 et seq.; see, e.g., 7
U.S.C. §§ 136u, 136v.
Federal Noxious Weed Act of 1974, 88 Stat. 2148 (1975),
7 U.S. C. §§ 2801-2813; see 7 U. S. C. § 2808.
Historic Sites, Buildings, and Antiquities Act, 49 Stat. 666
(1935), as amended, 16 U. S. C. §$§ 461-467; see 16 U. S.C.
§ 462(e).
Fish and Wildlife Coordination Act, 48 Stat. 401 (1934),
as amended, 16 U. S. C. § 661-666c; see 16 U. S. C. $661.
. Anadromous Fish Conservation Act, 79 Stat. 1125 (1965),
as amended, 16 U. S. C. §757a-757d; see 16 U. S. C.
§ 757a(a).
Wild Free-Roaming Horses and Burros Act, 85 Stat. 649
(1971), as amended, 16 U. S. C. §§ 1331-1340; see 16
U. S. C. § 1336.
Marine Mammal Protection Act of 1972, 86 Stat. 1027, as
amended, 16 U. S. C. §§ 1361-1407; see 16 U. S. C. § 1379.
Wagner-Peyser National Employment System Act, 48 Stat.
113 (1933), 29 U. S. C. §§ 49 et seq.; see 29 U. S.C. § 492
(employment of farm laborers).
Surface Mining Control and Reclamation Act of 1977, 91
Stat. 447, 30 U. S. C. §$§ 1201-1328; see 30 U. S. C. § 1253.
Interstate Commerce Act Amendments of 1935, 49 Stat. 548,
as amended, 49 U. S. C. §11502(a)(2) (enforcement of
highway transporation law).
Appendix D-Samples of Statutes That Arguably Could Give
Rise to Section 1983 Actions
38
B. Resource Management
1. Laws involving the administration and management of
national parks and scenic areas: e. g., Act of May 15, 1965,
§ 6, 79 Stat. 111, 16 U. S. C. § 281e (Nez Perce National
Historical Park); Act of Sept. 21, 1959, §3, 73 Stat. 591,
16 U. S. C. §410u (Minute Man National Historical Park) ;
Act of Oct. 20, 1972, § 4, 86 Stat. 1302, 16 U. S. C. § 460bb-
3(b) (Muir Woods National Monument).
2. Laws involving the administration of forest lands: e. g.,
Act of March 1, 1911, § 2, 36 Stat. 961, 16 U. S. C. §§ 563;
Act of Aug. 29, 1935, ch. 808, 49 Stat. 963, 16 U. S. C.
§§ 567a-567b.
3. Laws involving the construction and management of water
projects: e. g., Water Supply Act of 1958, § 301, 72 Stat.
319, 43 U. S. C. $390b; Boulder Canyon Project Act, §§ 4,
8, 45 Stat. 1058, 1062 (1928), as amended, 43 U. S. C.
§8§ 617c, 617g; Rivers and Harbors Act of 1988, § 9, 30 Stat.
1151, 33 U.S.C. § 401.
4. National Trails System Act, 82 Stat. 919 (1968), as amended,
16 U. S. C. §§ 1241-1249; see 16 U. S. C. § 1246(h).
5. Outer Continental Shelf Lands Act Amendment of 1978,
§ 208, 92 Stat. 652, 43 U. S. C. $1345 (oil leasing).
C. Grant programs
In addition to the familiar welfare, unemployment, and medical
assistance programs established by the Social Security Act, these
may include:
1. Food Stamp Act of 1964, 78 Stat. 703, as amended, 7
U. S. C. § 2011-2025; see e. g., 7 U. S.C. § 2020e-2020(g).
2. Small Business Investment Act of 1958, § 602(d)(1), 72
Stat. 698, as amended, 15 U. S. C. § 636(d).
Appendix D-Samples of Statutes That Arguably Could Give
6.
10.
11.
az.
13.
Rise to Section 1983 Actions
39
Education Amendments of 1978, 92 Stat. 2153, as amended,
20 U. S. C. §§ 2701 et seq.; see, e. g., 20 U. S. C. §§ 2734-2902.
Federal-Aid Highway legislation, e. g., 21 U. S. C. §§ 128,
131.
Comprehensive Employment and Training Act Amendments
of 1978, 92 Stat. 1909, 29 U.S. C. §§ 801 et $eq.; see, €. g.;
29 U. S. C. $§ 823, 824.
United States Housing Act of 1937, as added, 88 Stat. 653
(1974), as amended, 42 U. S. C. § 1437 et seq.; see, e. g.,
42 U. S. C. §§ 1437d(c), 1437). |
National School Lunch Act, 60 Stat. 230 (1946), as amended,
42 U. S. C. $§ 1751 et seq.; see, e. g., 42 U. S. C. § 1758.
Public Works and Economic Development Act of 1965,
79 Stat. 552, as amended, 42 U. S. C. §§ 3121 et seq.; see,
e. g., 42 U.S. C. 88 3132, 3151a, 3243.
Justice System Improvement Act of 1979, 93 Stat. 1167,
42 U. S. C. §§ 3701-3797; see, e. g., 42 U. S. C. §§ 3742,
3744(c).
Juvenile Justice and Delinquency Prevention Act of 1974,
88 Stat. 1109, as amended, 42 U. S. C. $$ 5601 et seq.;
see, e. g., 42 U. S. C. § 5633.
Energy Conservation and Production Act of 1976, 90 Stat.
1125, as amended, 42 U. S. C. §§ 6801 et seq.; see, €. g.,
42 U. S. C. §§ 6805, 6836.
Developmentally Disabled Assistance and Bill of Rights
Act, 89 Stat. 486 (1975), as amended, 42 U. S. C. §§ 6001
et seq.; see, e. g., $$ 6011, 6063.
Urban Mass Transportation Act of 1964, 78 Stat. 302, as
amended, 49 U. S. C. §§ 1601 et seq.; see, e. g., §§ 1602,
1604 (g)-(m).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.