Petition — Cougar Business Owners Ass'n v. Washington

SUPREME COURT OF THE UNITED STATES

October Term 1982

COUGAR BUSINESS OWNERS ASSOCIATION,

et 21.

Petitioners,

Ve

STATE OF WASHINGTON; DIXIE LEE RAY,

Governor; JOHN DOE ONE and JOHN DOE TWO,

Respondents.

On Certiorari from the Sup-eme Court

of the State of Washington

Barry J. Dahl

WALSTEAD, MERTSCHING,

HUSEMOEN, DONALDSON & BARLOW

1000 Twelfth Avenue, Suite 2

P. O. Box 1549

Longview, WA 98632

Telephone: (206) 423-5220

Of Attorneys for Petitioners

QUESTIONS PRESENTED POR REVIEW

1. Has a state governor exceeded

her authority and wrongfully confiscated

private property by declaring a state of

emergency and restricting property use,

prior to any property destruction, and by

failing to terminate such restrictions

after order is restored, even though such

destruction and termination of emergency

are required by statute,

2. Has a person been deprived of

property without due process when a

governor's emergency declaration, that

restricts use of private property, is

held by the state supreme court to be

totally discretionary and immune from

review in a tort action, and which

declaration is held unimpeachable by the

emergency statute,

4 ‘ ‘

„ 1 * .

* é . * N is 4

ii

IDENTIFICATION OF PETITIONERS

COUGAR BUSINESS OWNERS ASSOCIATION,

consisting of DONALD p. and MARILYN J.

PLATT, husband and wife, and EARL and G,

BARCUS, husband and wife, d/b/a LONE FIR

RESORT; RONALD and ANNETTE L. KATZER,

husband and wife, 4/b/a A & R GROCERY;

EUGENE H. and DAWN MORTINSEN, husband and

wife, d/b/a THE WILDWOOD INN AND CAFE;

JOHN B. and b. KELLEY, husband and wife,

d/b/a KELLEY'S REPAIR & WELDING; DAVID K.

and LAURAL FISHER, husband and wife,

d/b/a ARIEL STORE & TAVERN; ELVIN n. and

DOROTHA L. ELMIRE, husband and wife, and

LOIS LIVINGSTON, d/b/a THE COUGAR STORE;

RPM CONSTRUCTION, INC., d/b/a COUGAR

UNION SERVICE STATION; and JAMES v. and

NEOMI GIPE, husband and wife,

. e pA, oe ~~ © o rn An. 1 “ 1 9 1

iii

QUESTION PRESENTED FOR REVIEW... i

IDENTIFICATION OF PETITIONERS .. . ii

OFFICIAL OPINION «46 «e+ se ee-s 1

GROUNDS OF JURISDICTION . . «+ « « « 2

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED ... 2

STATEMENT OF THE CASE . .« « «+ «+ + « 8

ARGUMENT AND REASONS FOR

GRANTING THE WRIT 7 * > > * * * * * 10

A. State Police Poder 12

B. State Statute Defining

Disaster Limits

Governor's Ability to

Declare Emergency ..++e+-+ 13

C. A Governor's Uninhibited

Exercise of Police Power

Exceeds Constitutional

Safeguards .s«e«e-eerec 15

D. Governor's Liability for

Exceeding her Authority .. 21

APPENDIX A Uno OS) Ow eee ee OO. @ A-1

APPENDIX B O° OO Piensa Fe ¢€ 51

iv

Table of Cases

. 342 U.S. 421 (1952),

denied, 343 U,.8. 921

(195 ) ee) a8) @ Ce 6 are ve @ @ @ 12

Dobbins X- Los Angeles, 195

U. 8, 223 (1904) «e+ oe we we ow 18

, 247 Md,

Goldman yv. Crowther

262, 128 A. 50, 38 K. L. R. 1455

(1925) — > * — — — > * — — = > > . * 16

Grenada Lumber Co, v.

Mississippi, 217 U.S. 433 (1910) . 15

STITT Tee 290 J. 8. 398 (1933). . 13, 20

RWIN 170 Wash.

112, 15 F. 10 696 (21932) 13

Karagek v. Peier, 22 Wesh.

419, 61 . 32 (1900) ~2 2 we we oe ow wo © 16

Lawton vy. Steele, 152 U.S.

133: (1894) 2 eee 10

. 262 U. 8.

3 11923) * * * 7 . - * . * * * * * 15

405 (1 5) 7 ee Ae Tee, Gr Be © Ort 15

Nebbia-—v. New York, 291 b. 8. :

/ ] melee « 6 6 1

Otis v. Parker, 187 U.8.

607 (1902) * * * * e * * * * * * *

Re Aubrey, 36 Wash. 308,

78 P. 90 (1904) eee @ 8.8 \e

„ 152 Wash, 221,

227 P. 837 (1929) «© «+ e+ e+ eo we wo we

gen. 37, 120 P. 901 f

Washington ex rel, Seattle

Title Trust Co, v. Roberge

Wr Wee Ue CLUE cb ole ce bee

Constitutional Provisions

U.S. const., amend. v. . . 2, 15,

U.S. Const. amend XIV,

SB Re eke e 0 eee 6 6 oe Be 285 10.

Wash. Const. art. 1,

§ 3 sale ete.s ¢ 8 aneve 80 bbe 2ee

Wash. Const, art. 1, § 16 . 3, 15,

Statutes

28 U.S.C. 4 1257(3) re ne ene

Wash. Rev. Code § 63.

Wash, Rev. Code § 43.06.010(12). . 4,

Wash, Rev. Code § 43.06.200 .. 353,

16

13

16

12

18

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. d Wash. Rev. Code § 43.06.210 . .5, 8, 20 N..

1 code a 2

men. u, 300 88

i

8 38.52.010(7) « i 6, 14, 17

1 ; ’

BY» § 36.00.060 „„ 2 „ . „ „ „„ „6, 19, 22 25

Wash, Rev. code § 356.06. 0 ͥ ... 7, 8

aa Wash, Rev. Code | a

* 1 76% „, 10, Bh, 23 ze

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228 Se .

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In THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

COUGAR BUSINESS — ASSOCIATION,

et al.,

Petitioners,

Ve

STATE OF WASHINGTON; DIXIE LEE RAY,

Governor; JOHN DOE ONE and JOHN DOE TWO,

Respondents.

On Certiorari from the Supreme Court

of the State of Washington

OFFICIAL OPINION

The reported opinion by the

Washington State Supreme Court in the

instant case can be found at 97 Wash. 2d

466, 5. 2d (1982). (see

Appendix A.)

hy er

Rs

*

GROUNDS OF JURISDICTION

The judgment which is sought to be

reviewed is that of the Washington State

Supreme Court which was filed on June 10,

1982. The jurisdiction of this court to

review the decision of the Washington

State Supreme Court is conferred by 28

9. 8. C. § 1257(3).

1. U.S. Const. amend. v.

No person shall be held to

answer for a capital, or

otherwise 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

offence to be twice put in

rw of life or limb; nor

shall be compelled in any

criminal case to be a witness

5 himself, nor be deprived

of life, liberty, or property,

without due process of law; nor

shall private 3 de taken

for public use, without just

compensation.

r ** 4

2. U.S. Const. amend. XIV, 5 1.

Section 1. 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 jurisdiction the equal

protectica of the laws,

3. Wash. Const. art. 1, § 3.

Personal Rights. No person

shall be deprived of life,

liberty, or property, without due

process of law.

4. Wash. Const. art. l, N 16.

Eminent Domain. Private

property shall not be taken for

private use, except for private

ways of necessity, and for

drains, flumes or ditches on or

across the lands of others for

agricultural, domestic or sani-

tary purposes. No private

property shall be taken or

damaged for public or private use

without just compensation having

been first made, or paid into

court for the owner, and no

right-of-way shall be

appropriated to the use of any

*

— other than municipal,

1 full com tion therefor

be first ma in money, or

ascertained — paid into the

court for the owner, irrespective

of any benefit from an

improvement — gpa by suc

corporation, which compensation

shall be ascertained by a jury,

unless a jury be waived as in

other civil cases in courts of

record, in the manner prescribed

by law. Whenever an attempt is

made to take private property for

a use alleged to be public, the

question whether the contemplated

use be really public shall be a

judicial question, and determined

as such without regard to any

legislative assertion that the

use is public,

5. Wash. Rev. Code § 43.06.010(12)

General powers and duties.

In addition to those

prescribed by the Constitution,

the governor may exercise the

powers and perform the duties

ere in chi and the

Cllowing sections:

(12) The governor may,

after finding that a public

Gisorder, disaster, energy

emergency, or riot exists within

this state or #5 zest thereof

which affects li health,

property, or the ic peace,

proclaim a state emergency in

Md

x 22 is 1

3 N ‘ 11

the area affected, and the powers

granted the governor during a

state of emergency shall be

effective only within the area

deecribed in the proclamation;

6. Wash. Rev. Code § 43.06.200

Definitions.

Unless a different meaning

is plainly required by the

context, the following words and

phrases as hereinafter used in

RCW 43.06.010, and 43.06.200

through 43.06.270 each as now or

hereafter amended shall have the

following meaning:

"State of emergency" means

an emergency proclaimed as such

BY the governor pursuant to RCW

43.06.010 as now or hereafter

amended.

7. Wash. Rev. Code § 43.06.210

Proclamation of state of emergency--

Termination.

The proclamation of a state

of emergency and other

roclamations or orders issued by

he governor pursuant to RCW

43.06.010, and 43.06.200 through

43.06.270 as now or hereafter

amended shall be in writing and

shall be signed by the governor

and shall then be filed with the

secretary of state, The gover-

nor shall give as much public

notice as practical through the

news media of the issuance of

proclamations or orders rsuant

to RCW 43.06.0110, and 43.06.200

through 43.06.270 as now or

hereafter amended. The state of

emergency shall cease to exist

upon the issuance of a proclama-

tion of the governor declaring

its teraination: Provided, That

the governor must terminate said

state of emergency proclamation

when order has been restored in

the area affected,

8. Wash. Rev. Code § 38.52.010(7)

Definitions.

As used in this chapter:

(7) “Disaster” as used in

this chapter shall mean events,

arising out of either enemy

attack, sabotage, or other

hostile action, cr natural

causes, which reach such a

Gimension or degree of destruc-

tiveness as to warrant the

governor declaring a state of

emergency pursuant to RCW

43.06.010.

9. Wash. Rev. Code § 38.08.060

Governor's decision final.

Whenever any portion of the

militia is ordered to duty by the

governor, the decision of the

governor shall be final,

incontrovertible, and uniwpeach-

able,

10. Wash. Kev. Code § 38.08.040

Governor may order out organized militia.

In event of war, insurrec-

tion, rebellion, invasion,

tumult, riot, mob or body of men

acting together by force with

intent to commit a felony or to

offer violence to persons or

property, or by force and

violence to break and resist the

laws of this state, or the United

States, or in case of the

imminent danger of the occurrence

of any of said events, or

whenever responsible civil

authorities shall, for aay

reason, fail to preserve law an

order, or protect life or

property, or the governor

believes that such failure is

imminent, or in event of public

disaster, the governor shall have

power to order the organized

militia of Washington, or any

part thereof, into active service

of the state to execute the laws,

and to perform such duty as he

shall deem proper.

11. Wash, Rev. Code § 4,92.090

Tortious conduct of state--Liability

for damages.

The state of Washington,

whether acting ‘n its

governmental or proprietary

9

E.

Gamages otieing out of ite

tortious conduct to the same

extent as if it were a private

person oc corporation.

STATEMENT OF THE CASE

On. March 3, 1980, the governor of

the state of Washington declared a state

of emergency pursuant to Wash. Rev. Code

§ 43.06.210 and Wash. Rev. Code

§ 38.08.040, due to the reactivation of

the volcano, Mt. St. Helens. This

declaration was made prior to any

destruction of property “ron volcano

activity. On April 30, 1980, again prior

to any damage from the volcano's

reactivation, the governor, by Executive

Order No. 80-05, created two restricted

zones around the mountain, Petitioners’

home town was placed in the red“ zone,

Access to the areas was restricted to

official government, law enforcement,

scientific, and search and rescue

activity. on May 18, 1980, Mt. St.

2 atk * 7 ‘Ss 5

. n „ e 1 me asl 9e N 1

E

r EN OR ORE OI yy Be ee WW’ ys

Helens erupted, causing property damage

and loss of life. On May 25, 1980, the

governor, by executive order, extended

the red zone and restricted access to the

areas co those mentioned above, plus the

news media, individual property owners,

persons with businesses within the zone,

and others by special permit. Eruptions

continued throughout the summer causing

no further loss of life, nor significant

property damage. On October 1, 1980, the

town of Cougar was removed from the red

zone by a governor's executive order, but

the emergency order was not terminated,

The Petitioners brought suit against

the State of Washington, Governor Ray,

and two unnamed individuals based upon

Governor Ray's declaration of emergency

on April 3, 1980. The Petitioners sought

damages based on the governor declaring

the emergency too soon, for her including

Cougar in the restricted zone, and for

10

her failing to remove the restricted zone

soon enough, Petitioners alleged that

the governor's power to declare an

emergency was limited to specifically

definable events. However, the Cowlitz

County Superior Court granted a summary

judgment in favor of the Respondent, and

the Washington State Supreme Court

affirmed, reasoning that a governor's

declaration of emergency is totally

discretionary and therefore precludes any

state liability under Wash. Rev. Code

§ 4.92.090. [Appendix A at A~-14--A~-15.]

ere THE WRIT

This case presents important federal

and state constitutional issues which

aust be decided since 48 other states

have emergency legislation similar to

Washington, [See Appendix B.]

Petitioners assert that the

Washington State governor lacked the

8 Nee . : n ad

11

power to declare an emergency prior to

May 18, 1980, under either Wash. Rev.

Code § 43.06 or Wash, Rev. Code § 38.52,

and that the Washington Supreme Court

erred in holding that the determination

of the existence of an emergency is a

wholly discretionary decision by the

governor. The argument is based on:

1. That the state's exercise of

its emergency police power must be

reasonable and meet constitutional

safeguards,

2. That the emergency statute

defining "disaster" limits a governor's

discretionary power to declare a state of

emergency only when such an event occurs.

3. That a governor's uninhibited

exercise of emergency police power

exceeds the constitutional safeguards.

4. A governor's decision exceeding

her authority creates liability on the

part of the state.

12

A. State Police Power

It is a general rule that a state

may use its police power to reasonably

regulate property use to protect public

safety and welfare. HNebbia v. New York,

291 U.S. 502 (1934). However, a state

cannot use its police power to

arbitrarily invade property rights,

Washington ex rel, Seattle Title Trust

CO. vo ROberge, 278 U.S. 116 (1928), and

must exercise its power within state and

federal constitutional limitations appii-

cable to all governmental action, Day-

Bright Lighting, Inc, v. Missouri, 342

U.S. 421 (1952), Zahl denied, 343 U.S.

921 (1952).

None of the 49 states with emergency

legislation specifically define ener-

gency" within their statute. [See

Appendix B.] Generally, the decision

regarding the existence of an emergency

situation is left to the discretion of

13

the governor and/or state legislature,

with such decision being reviewable by

the Court. Home Bldg. & Loan Assn. va

Blaisdell, 290 U.S. 398 (1933); State ex

cel. .faiterthwaite v. Hinkle, 152 Wash,

221, 227 P. 837 (1929). All principles

regarding a state legislature's exercise

of its police power apply to decisions of

state governors. Inman vy. Sandwig, 170

Wash. 112, 15 P.2d 696 (1932).

. e

mits Governor's Abili

Declare Emergency

None of the 49 different emergency

statutes define "emergency." [See

Appendix B.] Washington's general power

Statute merely defines “state of

emergency” as an “emergency proclaimed as

such by the governor pursuant to RCW

43.06.010 as now or hereafter amended,"

Wash, Rev. Code § 43.06. 200. However,

Washington is unique in that its specific

Emergency Service Statute, Wash, Rev,

14

Code § 38,52, which Governor Ray invoked

to restrict the use of Petitioners’

property, defines disaster to mean

"events arising out of either enemy

attack, sabotage, or other hostile

action, or natural causes, which reach

such a dGimension or degree of

destructiveness as to warrant the

governor declaring a state of emergency

pursuant to RCW 43.06.010." Wash. Rev.

Code § 38.52.010(7). Therefore, by

statute itself, the governor was unable

to declare an emergency absent some

property destruction or loss of human

life. Her declaration of emergency prior

to any such events in anticipation of an

assumed future disaster exceeded her

authority granted by the state

legislature. The Washington Supreme

Court, however, ignores the definitional

section under Wash. Rev. Code § 38.52 and

justifies its decision on the statute’s

7

8 oe Ax * ns | ;

15

broad-stated policy and sympathetic

approval of the governor's action. [See

Appendix A at A-13, A-14.] The

governor's action, however, was an

improper exercise of police power and

violated Petitioners’ due process rights

protected by federal and state

constitutions. Nashville. Cc. &£ St. L.

Railway vy. Walters, 294 U.S. 405 (1935);

Grenada Lumber Co, vy. Mississippi, 217

U.S. 433 (1910); (See, U.S. const. amend.

V; U. 8. Const. amend, XIV; Wash. Const.

art 1, § 3; Wash, Const. art. 1, § 16],

and such exercise resulted in an

arbitrary and unreasonable interference

with personal rights under the guise of

police power; Meyer vy. Nebraska, 262 U.S,

390 (1923).

Cc. A Governor's Uninhibited

16

interprets the state's emergency power

statute as giving the governor unbridled

power to declare an emergency based on a

presumed future disaster and regardless

of whether an actual disaster exists,

[See Appendix A at pages A-10-~-A-14,]

They justify their decision under the

state's broad police power. [See

Appendix A at A-14]) However, police

powers cannot be invoked as universal

remedies nor arbitrarily interfere with

rights guaranteed by the constitution,

Goldman vy. Crowther, 147 Md. 282, 128 A.

50, 38 A. L. R. 1455 (1925); Qtia v.

RParkex, 187 U.S. 607 (1902); State

excel. Webster v. Superior Court of King

County, 67 Wash. 37, 120 P. 861 (1912);

Karasek vy. Peier, 22 Wash. 419, 61 P. 33

(1900).

The Washington court failed to

address the isene of whether a disaster

existed when the emergency power was

ie

9 a 8 85 r

S o A a 4 „„ -.

17

invoked [See Appendix A at A-13-~-A-14],

even though the emergency power used

depends on existence of a disaster to

bring it into operation, Wash. Rev. Code

§ 43.06.010(12) states:

The governor may, af tel

finding that a public disorder,

disaster, energy emergency, or

riot exists within the state or

any part thereof which affects

life, health, property, or the

public peace, proclaim a state of

emergency in the area affected,

and the powers granted the

governor during a state of

emergency shall be effective only

within the area described in the

proclamation.

Additionally, the court ignored the

definitional section under Wash. Rev.

Code § 38.52, which defines a disaster to

include “natural causes which reach such

a dimension or degree of destructiveness

as to warrant the governor's declaring a

state of emergency pursuant to RCW

43.06.210." Wash. Rev. Code

§ 38.52.010(7). [See Appendix A at A-

13--A-14.] This section clearly requires

r Serre.

18

some property destruction before an

emergency exists to justify the governor

invoking emergency legislation. The

court's affirmation of the governor's

acticn expanded the governor's power

beyond that granted by the state

legislature and, in effect, allows the

state's governor, under color of

emergency police power, to arbitrarily

restrict a person's use and enjoyment of

his property, without ability to be

compensated for an abuse of discretion,

and therefore in violation of a person's

constitutional rights. §ee, Dobbins x.

Los Angeles, 195 U.S. 223 (1904); Lawton

Mo Steele, 152 U.S. 133 (1894);

Re Aubrey, 36 Wash. 308, 78 P. 90 (1904);

(See, U.S. Const. amend, V; U.S. Const.

amend. XIV; Wash. Const. art. 1, §3;

Wash. Const. art. 1, §16]. This is true

since the governor's decision, according

to the Washington Supreme Court and Wash,

19

Rev. Code § 38.52, is immune from an

action in tort. [See Appendix A at A-

14--A-15.]

The court effectively denies

citizens the right to have the governor's

action reviewed at all. The court

exempts the governor's action from review

in a tort action, but states that a

mandamus proceeding could be maintained

by property owners as a means to

challenge the governor's actions,

However, such a proceeding, like a tort

action, under the court's reasoning,

would run into the bar of Wash. Rev. Code

§ 38.08.060, which states: “Whenever any

portion of the militia is ordered to duty

by the governor, the decision of the

governor shall be final, incontrovert-

ible, and unimpeachable." [See Appendix

A at A-12.1 Such a rule not only

violates a person's due prccess rights

protected by both federal and state

constitutions (See, U. 8s. Const. amend.

XIV; Wash. Co. st. art. 1, §3], but also

conflicts with the many cases holding

that the final determination of the

existence of an emergency is left to the

courts. Home Building 4 Loan Assn. vs

Blaisdell, 290 U.S. 398 1933).

Additionally, the Washington Supreme

Court summarily dismisses the issue that

the governor was required to terminate

the state of emergency when order in the

area was restored. [See Appendix A at A-~-

14.) Again, such a decision, like a

decision to declare an emergency, is not

totally discretionary under Washington's

statute, gee Wash, Rev. Code § 43.06.210,

but is tied to objective factors

regarding the continued destruction from

a previous disaster. The governor's

failure to terminate the emergency and

remove Petitioners’ property from the

restricted zones, shortly after damage

—

21

from the May 18th eruption subsided, by

early June, constitutes an abuse of power

by the governor, The retention of

Petitioners’ property in the restricted

zones until October, well after the

"emergency" ended, constituted an

unreasonable deprivation of Petitioners’

property. Such wrongful deprivation

without just compensation or possible

judicial review due to the tort immunity,

plus statutory prohibition against suits

to challenge the governor's decisions,

violated Petitioners’ due process rights

guaranteed by both federal and state

constitutions.

D. Governor's Liability for

Exceeding her Authority

The Washington Supreme Court

absolved the governor from any liability

under Wash. Rev. Code § 4.92.090, stating

that discretionary governmental decisions

are immune from tort liability, and

22

additionally cited Wash. Rev. Code

§ 38.08.060, which provides in part that

a governor's decision under that statute

is unimpeachable. [See Appendix A at A-

12.)

However, as noted above, declaration

of a state of emergency and its

termination are not wholly discretionary,

but involve specifically definable

events. :

Also, as shown above, the governor's

actions exceeded her authority and

therefore should make her liable for

damages suffered by Petitioners’ loss of

the use of their property.

In summary:

1. Exercise of emergency police

powers by a state governor must be

reasonable,

2. The governor's unlimited

ability to declare an emergency without

specific guidelines as to what is an

Va

1 A

23

emergency, and without judicial review,

allowed the governor to arbitracily

restrict the use of Petitioners’

property in violation of state and

federal protected constitutional rights.

3. Additionally, the governor

exceeded her authority under Wash, Rev.

Code § 38.52 by declaring the state of

emergency before any disaster occurred,

4. Such abuse of power is

amendable to a tort action under Wash,

Rev. Code § 4,.92.090.

Respectfully submitted,

Re Op Dats

* J. DAHL

Of Attorneys for Petitioners