Petitioners Reply Brief — Brennan v. City of Los Angeles

JUL IE 1983

NO. 82-1960

IN THE sip —

SUPREME COURT OF THE UNITED STATES

October Term, 1982

EARL BRENNAN, et al.,

Petitioners,

vs.

CITY OF LOS ANGELES,

Respondent.

PETITIONERS’ REPLY BRIEF

JERROLD A. FADEM,

MICHAEL M. BERGER

of FADEM, BERGER & NORTON

A Professional Corporation

Suite 600

501 Santa Monica Boulevard

P.O. Box 2148

Santa Monica, California 90406

(213) 451-9951

Attorneys for Petitioners.

The Brief Shop * Legal Printers * (213) 877-8620

NO. 82-1960

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

EARL BRENNAN, et al.,

Petitioners,

VS.

CITY OF LOS ANGELES,

Respondent.

PETITIONERS’ REPLY BRIEF

JERROLD A. FADEM,

MICHAEL M. BERGER

of FADEM, BERGER & NORTON

A Professional Corporation

Suite 600

501 Santa Monica Boulevard

P.O. Box 2148

Santa Monica, California 90406

(213) 451-9951

Attorneys for Petitioners.

TOPICAL INDEX

Table Of Authorities

INTRODUCTION

THE FEDERAL CONSTITUTIONAL ISSUES

WERE PROPERLY RAISED

THERE IS NO ADEQUATE NON-FEDERAL

GROUND FOR THE DECISION

CONCLUSION

Page

ii

TABLE OF AUTHORITIES

Agins v. Tiburon (1979)

24 Cal.3d 266

Brookes v. City of Oakland (1911)

160 Cal. 423

City of Los Angeles v. Tilem (1983)

142 Cal.App.3d 694

Drakes Bay Land Co. v. United States

(Ct Cl 1970) 424 F.2d 574

Enterprise Irrig. Dist. v.

Farmers’ Mut. Canal Co. (1917)

243 U.S. 157

Foster v. City of Detroit

(E.D. Mich. 1966) 254 F.Supp. 655,

aff'd (6th Cir 1968) 405 F.2d 138

Jacobs v. United States (1933)

290 U.S. 13

Klopping v. City of Whittier (1972)

8 Cal.3d 39

Madison Realty v. City of Detroit

(E.D. Mich. 1970) 315 F.Supp. 367

New York ex rel. Bryant v.

Zimmerman (1928)

278 U.S. 63

Page

5, 6

*e

Pruneyard Shopping Center v.

Robins (1980)

447 U.S. 74

Seaboard Airline R. Co. v.

United States (1922)

261 U.S. 299

Shoshone Tribe v. United States (1936)

299 U.S. 476

Smyth v. United States (1937)

302 U.S. 329

United States v. Klamath & Modoc Tribes (1937)

304 U.S. 119

United States v. Rogers (1920)

255 U.S. 163

Constitution

California Constitution

Art. I, §19

Art. I, §§ 2 and 3

United States Constitution

14th Amendment

Page

5, 6

2, 4, §

NO. 82-1960

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

EARL BRENNAN, et al.,

Petitioners,

VS.

CITY OF LOS ANGELES,

Respondent.

PETITIONERS’ REPLY BRIEF

INTRODUCTION

The City’s Brief in Opposition does not dispute the

facts, nor the trial court’s eventual conclusion that the

City’s decade long delay in acquiring the subject properties

resulted in a de facto taking of property which Constitu-

tionally requires compensation.

1/ The City’s factual statement does appear to dwell unduly on an in-

itial trial court ruling (later vacated) that there was no de facto taking.

However, as a matter of California procedural law, the second trial

judge acted within his power by vacating that holding and making a

contrary one. (City of Los Angeles v. Tilem [1983] 142 Cal.App.3d 694,

706.) The City’s brief also distracts by discussing state law issues not

brought here by the Petition.

a.

Nor does the City’s Brief dispute the nationally chaotic

state of the law as to what constitutes a de facto taking of

property in the Constitutional sense, or the California

courts’ erroneous application of the law developed by this

Court.

Rather, the City contends that the federal Constitutional

issues were neither raised nor ruled on below.

The City is wrong.

THE FEDERAL CONSTITUTIONAL ISSUES

WERE PROPERLY RAISED

State procedure generally governs how Federal questions

are to be raised, although as a matter of Federal Constitu-

tional law, no particular form is necessary:

“*liJf the record as a whole shows either expressly

or by clear intendment that this was done, the

claim is to be regarded as having been adequately

presented.’’ (New York ex rel. Bryant v. Zimmer-

man [1928] 278 U.S. 63, 67; emphasis added.)

With respect to 14th Amendment deprivation of property

questions, California has dispensed with the necessity to

differentiate between the State and Federal Constitutional

guarantees by holding itself bound to apply this Court’s

rulings in all circumstances:

“The constitution of California provides that no

person shall be deprived of his property without

due process of law. (Art. I, § 13.) [Now Art. I,

§ 19.] This is also declared by the fourteenth

i.

amendment to the constitution of the United

States. The question whether or not this act

operates to deprive persons of property without

due process of law, is therefore, a federal ques-

tion, upon which the decisions of the supreme

court of the United States are controlling

authority.’’ (Brookes v. City of Oakland [1911]

160 Cal. 423, 427; emphasis added.)

In conformity with California practice, the Property

Owners’ initial pleadings alleged that their properties had

been taken by the City’s actions, without compensation

and without due process of law.

When the de facto taking issue was tried, the brief filed

by the Property Owners was based heavily on Federal Con-

stitutional law urging that:

(1) A de facto taking occurs when the actions of a

government agency severely interfere with an owner’s abil-

ity to sell or use his property, citing Foster v. City of

Detroit (E.D. Mich. 1966) 254 F.Supp. 655; Drakes Bay

Land Co. v. United States (Ct Cl 1970) 424 F.2d 574; and

Shoshone Tribe v. United States (1936) 299 U.S. 476;

(2) In de facto taking cases, the date of value is the date

of the de facto taking, citing Foster; Drakes Bay; and

Madison Realty v. City of Detroit (E.D. Mich. 1970) 315

F.Supp. 367; and

(3) Deprivation of the ability to use property is compen-

sated by awarding interest from the date of deprivation,

citing Jacobs v. United States (1933) 290 U.S. 13; United

States v. Klamath & Modoc Tribes (1937) 304 U.S. 119;

Smyth v. United States (1937) 302 U.S. 329; Shoshone

Tribe v. United States (1936) 299 U.S. 476; Seaboard

— ae

Airline R. Co. v. United States (1922) 261 U.S. 299; and

United States v. Rogers (1920) 255 U.S. 163.

The Property Owners based their right to recover on

these arguments and these authorities throughout the litiga-

tion — in trial and on appeal.

The Federal Constitutional issues were thus central to the

Property Owners’ presentation of the case, both through

the extensive reliance on Federal law, and through the

California Supreme Court’s holding in Brookes that

Federal law is controlling.

THERE IS NO ADEQUATE NON-FEDERAL

GROUND FOR THE DECISION

Alternatively, the City suggests that the Petition be

denied because the decision below was based on non-

Federal grounds:

“‘The California Court of Appeal decision was

clearly based upon Article I, §19, of the Califor-

nia Constitution and the California Supreme

Court decision in Klopping v. City of Whittier

(1972) 8 Cal.3d 39.’ (Br. in Opp., p. 10.)

The City is wrong.

First. A decision based on Cal. Const. Art I, §19 is not

independent from the 14th Amendment. As noted above,

the California Supreme Court has held itself bound by this

Court’s 14th Amendment decisions in property deprivation

cases. (Brookes, 160 Cal. at 427.) Recent California taking

cases show the California Court’s continuing attempt

ee

(though not always free from error) to apply this Court’s

decisions. (See, e.g., Agins v. Tiburon [1979] 24 Cal.3d

266, 273-275.)

Lack of an imdependent state ground gives this Court

jurisdiction. (Enterprise Irrig. Dist. v. Farmers’ Mut. Canal

Co. [1917] 243 U.S. 157, 164.)

Second. An interpretation of the California Constitution

which deprives the Property Owners of rights guaranteed

by the Federal Constitution is a reason to take this case,

not reject it. (See, e.g., Pruneyard Shopping Center v.

Robins (1980) 447 U.S. 74, 79-80.) In Pruneyard, the

California Supreme Court based its decision on Article I,

§§ 2 and 3 of the California Constitution. This Court took

jurisdiction because that interpretation adversely affected

property rights protected by the 14th Amendment.

Third. The de facto taking concept of AKlopping v. City

of Whittier (1972) 8 Cal.3d 39 was drawn directly from

Federal Constitutional jurisprudence, i.e., Foster v. City of

Detroit (E.D. Mich. 1966) 254 F.Supp. 655, aff'd (6th Cir

1968) 405 F.2d 138 (see Klopping, 8 Cal.3d at 46).

Thus, the de facto taking part of Klopping, which was

central to the decision below, is not independent of Federal

law either.

Finally. It is precisely because California’s interpretation

of Constitutional precepts conflicts with those made by this

Court that jurisdiction appropriately rests in this Court to

review the decision. In purported reliance on this Court’s

rulings, California has:

* concocted a rigid rule requiring physical invasion

or legal restraint before a de facto taking may be

found, where this Court’s actua/ rule rests on

flexible examination of all facts;

a.

¢ held that years of stultification of land use can-

not result in a taking, creating direct conflict

with the Ninth Circuit Court of Appeals; and

¢ denied compensation for unreasonable delay in

consummating a taking, in conflict with the

theory of numerous decisions of this Court.

The decision below is at least so interwoven with Federal

law as not to be independent of it. (Enterprise Irrig. Dist.)

Review is not only proper, it is necessary to bring Califor-

nia’s decisions on Federal Constitutional issues in line with

this Court’s paramount teachings. (Pruneyard.)

CONCLUSION

The City cannot deny the discord between this Court’s

holdings and the decision below.

The City’s lame attempt to forestall review and rectifica-

tion of the erroneous California position (and resolution of

the unseemly nationwide conflict) ought not prevail.

The Property Owners pray that a writ issue.

Respectfully submitted,

JERROLD A. FADEM

MICHAEL M. BERGER

FADEM, BERGER & NORTON

Attorneys for Petitioners