Opposition — Cougar Business Owners Ass'n v. Washington

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NO. 82-403

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1982

COUGAR BUSINESS OWNERS ASSOCIATION,

et al.,

Petitioners,

Vv.

STATE OF WASHINGTON; DIXIE LEE RAY,

Governor; JOHN DOE ONE anu JOHN DOE TWO,

Respondents.

On Certiorari from the Supreme Court

of the State of Washington

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

KENNETH O. EIKENBERRY

Attorney General

Scott C. Neilson

Assistant Attorney General

Temple of Justice

Olympia, WA 98504

Telept-ae: (206) 459-6600

Attorneys for Respondents

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11.

111.

TABLE OF CONTENTS

FACTS AND PRIOR PROCEEDINGS....

SUMMARY OF PETITIONER'S

Wund

ARGUMENTS AGAINST GRANTING

RTI I

A. The state court's decision

did not address heretofore

undecided issues of federal

law and was not in conflict

with applicable decisions

Of other COUTTS. ..csssveses

B. Petitioners’ due process

rights have not been

violated by the Governor's

restricting public access

to the town of cougar

C. Petitioners have net been

denied their righte to

procedural due process

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TABLE OF AUTHORITIES

Page

Table of Cases

ae v. Commonwealth, 215 S.E.2d

a. see eeeneeeeeeeeeeneeeee 10, ll

ar Business Owners

(1962).....sc0%. 2, 14, 18

Ass'n v.

Euclid v. Ambler Realty, 272

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688 8905 v. N 369

5 > eee eeneeeneneeeneeneteneeeee 13

Hodel v. Virginia Surface Minin

A 2 has’, O87 UE

7 e*eeereeeeeeeneeeeeeeeee 13

Moyer v. Peabody, 212 U.S. 78,

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Shell V. Kraemer, 334 U.S. 1

eeeeweeeeeeeeeeeeeeeeeeeeeeenee 16

578 139 v. Constantin, 287 U.S.

* ore —— „4 Bie 8, 9

Valdez v. Black, 446 F.2d 1071,

TO76-1077 (l0th cir. 19717. 4

ii

of

„ 64 Mich. L. Rev. 290

PV ²˙ Ae Pe 10

„ J. 41st Legis. Wash.

— „60 15

NO. 82-403

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

COUGAR BUSINESS OWNERS ASSOCIATION,

et al.,

Petitioners,

V.

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

PETITION FOR CERTIORARI

I. FACTS AND PRIOR PROCEEDINGS

Petitioners, property owners in the

town of Cougar, Washington, seek damages

for economic losses suffered to their

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businesses after former Governor Dixy

Lee Ray included their town in a

restricted zone around Mt. St. Helens

during its eruptive activity between

April-October, 1980.

A summary of the sequence of events

which are subject matter of this law

suit appears in the Washington State

Supreme Court's opinion in this case.

Cougar Business Owners Ass'n v. State,

97 un. 2d 466, 5p. 24 (1982), 822

Petition for Certiorari, Appendix A. At

the time of the challenged decisions the

nature and extent of the threat posed by

Mt. St. Helens was largely unknown. Id.

97 Wn.2d at 469-471; Petition. Appendix

at A-4--A-5.

Petitioners brought suit for money

damages against the State of Washington,

Governor Ray and two unnamed individuals»

¢

after the restrictions had been li.ted.

The Washington Supreme Court upheld a

summary judgment granted in favor of

defendants. The court held that the

Governor's actions were authorized by

Statute, entirely discretionary and

therefore, immune from suit. The court

also ruled that the Governor's actions

failed to constitute a taking of

property without compensation and that

no liability for her actions could be

established under 42 U.S.C. § 1983.

II. SUMMARY OF PETITIONERS’ ARGUMENTS

Arguments for granting certiorari

rests heavily upon claims that the

Washington court has erroneously

interpreted State law. Petitioners

claim that state statutes restrict the

exercise of the Governor's emergency

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powers to situations where events of a

specified nature have actually resulted

in some property damage or loss of life.

They further claim the statutes reguire

an end to emergency measures sooner than

it occurred in the case.

The state court refused to accept

this narrow view of when emergency

powers may be exercised, pointing out

that under this interpretation:

The Governor would have had no

power to act before the actual

eruption to save lives or

property. In other words,

nothing of a preventive nature

could have been done. Such a

contention is contrary to the

legislative intent of the

statutes on which the

Governor's actions were based.

97 Wn.2d at 475; Petition, Appendix at

A-17 .

“etitioners claim this is wrong and

has resulted in a denial of their rights

to due process guaranteed by the federal

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Constitution. This interpretation is

said to permit arbitrary actions by the

Governor with no recourse for persons.

damaged thereby. The state court noted

that an action in mandamus would be

available to challenge unlawful exercise

of executive emergency powers, but the

Cougar Business Owners failed to make

use of the remedy. Petitioners now

claim it would have been futile to bring

such an action, and argue they have been

effectively denied their right to have

the Governor's actions reviewed.

Petition at 19.

III. ARGUMENTS AGAINST

GRANTING CERTIORARI

A. The state court's decision did not

address heretofore undecided issues of

federal 1 and was not in conflict with

applicable decisions of other courts.

Petitioners seek discretionary

review of the denial of their right to

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recover damages for Governor Ray's

actions. U.S. Sup. Ct. R. 17 provides:

1. A review on writ of

certiorari is not a matter of

right, but of judicial

Giscretion, and will be

granted caly when there are

special and important reasous

therefore. The following,

while neither controlling nor

fully measuring the Court's

discretion, indicate the

character of reasons that will

be considered.

(b) When a state court of

last resort has decided a

federal question in a way

‘in conflict with a

decision of another state

court of last result or of

a federal court of

appeals.

(c) When a state court or

a federal court of appeals

has decided an important

guestion of federal law

which has not been, but

should be, settled by this

Court or has decided a

federal question in a way

in conflict with |

applicable decisions of

this Court.

The United States Supreme Court has

long recognized the broad authority of a

chief executive to take necessary

measures in times of emergency. Because

the precise nature of én impending

emergency cannot be predicted in advance

and because effective response must

depend upon quick action with less than

complete information, the Washington

court was correct in refusing to define

the executive emergency powers narrowly.

This decision was wholly in keeping with

existing Supreme Court authority.

As stated in Sterling

v. Constantin, 287 U.S. 378, 399-400

(1932):

By virtue of his duty to

"cause the laws to de

faithfully executed," the

Executive is appropriately

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vested with the discretion to

determine whether an exigency

requiring military aid for

that purpose has arisen. His

decision to that effect is

conclusive. That

construction, this Court has

said, in tn of the power

constitutionally conferred by

the Congress upon the

President to call the militia

to actual service,

"necessarily results in the

nature of the power itself,

and from the manifest object

contemplated." The power "is

to be exercised upon sudden

emergencies, upon great

occasions of state, and under

circumstances which may be

vital to the existence of the

Union." (Citing authority.)

Similar effect, for

the Governor of a state of his

discretion in calling out its

* tary forces to suppress

insurrection an sorder.

ting authorities.) The

nature of the power also

necessarily implies that there

is permitted range of honest

judgment as to the measures to

be taken in meeting force with

force, in suppressing violence

and restoring order, for

without such liberty to make

immediate decisions. the power

itself would be useless. Such

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measures, conceived in good

faith, in the face of the

emergency and directly related

to the quelling of the

Gisorder or prevention of its

continuance, fall within the

discretion of the Executive in

the exercise of his authority

to maintain peace. [Emphasis

supplied.)

See also Moyer v. Peabody, 212

U.S. 78, 85 (1909). Moyer and Sterling

continue to be viable authority for the

exercise of a Governor's emergency

powers. See Valdez v. Black, 446 F.2d

1071, 1076-1077 (10th Cir. 1971).

Petitioners have cited no cases in

which the position of another state

court of last resort or a federal court

of appeals is in conflict with the

Washington decision. Rather, courts and

legislatures have generally recognized

the need to provide for a chief

executive's prompt, effective response

to emergencies of all kinds:

In times of natural

catastrophy or civil disorder,

immediate and decisive action

by some component of state

government is essential. The

legislative police power can

of course be exercised to deal

with crises affecting the

public health, safety, and

welfare. In practice,

however, the ravages of nature

and exigencies of rioting,

labor strife, and civil rights

emergencies usually

necessitate prompt

governmental zesponse. Since

the executive is inherently

better able than the

legislature to provide this

immediate response, the state

chief executives have

frequently been given

substantial discretionary

authority in the form of

emergency powers to deal with

anticipated crises.

Consequently, when public

emergencies arise, the center

of governmental response is

usually the Governor's office.

Comment, Constitutional and Statutory

Bases of Governor's Emergency Powers, 64

Mich. L. Rev. 290 (1956).

For example, in Boy

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(Va. 1975), the court was unwilling to

restrictively interpret a similar state

lew. In Boyd, as in this case, the

disaster was not a single incident but

rather a temporary condition which

existed over a period of time.

The United States Supreme Court

should not take on the task of defining

or limiting a state chief executive's

emergency powers and circumstances

justifying use of these powers. There

is no indication of substantial

controversy among jurisdictions on these

issues. Nor is there any indication

that the various state statutes have yet

been subject to judicial interpretation

in the applicable state courts. Absent

this showing, especially since no

important issues of federal law are

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presented, certiorari should not

granted.

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Sic access t6 the tovr

The Petition for Certiorari 2

at page 15: |

The governor's action,

however. was an improper

exercise of police power and .

violated Petition rs’ due

process rights protected by

federal and state

constitutions.

It is not altogether clear whether

petitioners are cléiming that their

rights to “procedural” or “substantive* ;

due process are infringed. Although the

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Constitution protects individuals right ;

to own, use, and enjoy property, the

Supreme Court has long recognized that :

government can regulate or restrict the

use of private property in its —

of its police power without requiring -

ee

payment of compensation. The analysis

applied is whether the exercise of

police power is “reasonable”. Hodel

Reclamation Ass'n, 452 U.S. 264, 300

(1981); Goldblatt v. Hempstead, 369

U.S. 590 (1962); Euclid v. Ambler

Realty, 272 U.S. 365 (1926).

In the instant case, petitioners’

economic interest in keeping their

businesses open to the public must give

way to the important interest of the

government in emergency regulation to

protect sge int loss of life and

property in a potential disaster

itu tion. In view of the fact the

Governor exercised her best judgnent

after consultation with experts and that

no one could predict when or what

Mt. St. Helens would do, the Governor's

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actions were reasonable. Cougar

Business Owners Ass'n v. State, 97 Wn.2d

at 469-470; Petition, Appendix at

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A-4--A-6. Furthermore, the Governor's

affidavit describing the acii‘ns taken

ad the reasons therefore was

uncontroverted by petitioners.

Petitioners have not, and cannot,

make the requisite showing that the

Washington court's decision is in

conflict with other authorities.

C. Petitioners have not been denied

their rights to procedural due process.

Petitioners claim that the

Washington court's decision leaves

persons aggrieved by a Governor's

exercise of emergency powers without

remedy. The legislative history of the

Emergency Powers Act makes clear that

the remedy for citizens aggrieved by a

Governor's declaration of an emergency

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is an action in the State Supreme Court

for a writ of mandamus of prohibition.

1969 Sen. J. ist Legis. Wash. at )066.

Petitioners never attempted to have

any of the Governor's decisions

concerning Cougar reviewed under this

ar Business Owners Ages'n

procedure. Cou

v. State, 97 Wn.2d at 471; Petition,

Appendix at A-6. They argue instead

that such action would have been futile

because the Governor's decision to call

out the state militia is dy statute,

"final, incontrovertible and

unimpeachable." in fact, there is no

reason to believe the Washington Court

would consider itself powerless to

prevent truly arbitrary and unreasonable

actions of a chief executive.

The United States Supreme Court

should not pass upon whether a remedy

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would or would not have been effective

when the remedy was never used by

petitioners and, in fact, petitioners

have left unchallenged the Governor's

affidavit establishing the necessity and

reasonableness of her acts.

Review of the appended decision

will reveal that petitioners failed to

raise federal Constitutional issues for

the state court concerning the adequacy

of the mandamus remedy. Thus, this

issue should not be addressed by this

Court. Shelley v. Kraemer, 334 U.S. 1

(1948).

IV. SUMMARY

The Petition for Certiorari should

be denied. Petitioners are seeking

review of issues of state law touching

important powers of the state chief

ay

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executive. There has been no showing

that the Washington court's decision is

in conflict with Supreme Court or other

authority. It is not violative of due

process to take reasonable steps to

protect life and property threatened by

a natural disaster. The reasonableness

of measures prescribed by Governor Ray

was established in her affidavit and was

unchallenged by petitioners.

Federal law does not entitle

petitioner to money damages under the

facts of this case when the highest

state court has eld no such remedy

available under state law. This does

not mean persons are left with no

recourse against future arbitrary and

unreasonable exercise of emergency

powers. Rights to procedural due

process are protected by the

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prohibition in the courts, o ces

. never pursued by petitioners in| ;

N case. eo: x

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DATED this 0 h 9

September , 1982. 7

a Respectfully submitted,

; KENNETH O. “IKENBERRY

5 Attorney General

. SCOTT c. NEILSON |

4 Assistant Attorney Genera

| Attorneys for Respondent