# Petition — Cougar Business Owners Ass'n v. Washington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 971

## Text

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

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

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

aa Wash, Rev. Code | a
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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

---

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