Respondents Brief — Billmeyer v. Tovar

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Supreme Court, U.S.

So Re ee

AUG 138 1984

No. 83-2041

ALEXANDER |. SPEVAS

BLERK

—=

IN THE SUPREME COURT OF THE UNITED STATES

C.G. BILLMEYER, MELVIN MORGAN, f.W.

"BILL" ROSKELLEY, JOHN EVANS, DONNA BOE,

WAYNE ELLIS, and the CITY OF POCATELLO,

an Idaho Municipal Corporation,

Petitioners,

vs.

JOSEPH TOVAR and DEBORAH ANN MOORE,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

William G. Walker

STOMPOLY & EVEN, P.C.

P. O. Box 3017

Tucson, AZ 85702

(602) 792-2781

Attorneys for Respondents

No. 83-2041

IN THE SUPREME COURT OF THE UNITED STATES

C.G. BILLMEYER, MELVIN MORGAN, F.W.

"BILL" ROSKELLEY, JOHN EVANS, DONNA BOE,

WAYNE ELLIS, and the CITY OF POCATELLO,

an Idaho Municipal Corporation,

Petitioners,

vs.

JOSEPH TOVAR and DEBORAH ANN MOORE,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

William G. Walker

STOMPOLY & EVEN, P.C.

P. O. Box 3017

Tucson, AZ 85702

(602) 792-2781

Attorneys for Respondents

QUESTIONS PRESENTED

Zs Whether or Not this Court Should

Exercise Jurisdiction to Grant the Petition

for Writ of Certiorari in Light of

Petitioners' Failure to Make Timely

Application.

2. Whether or Not Respondents' Claims

Pursuant to 42 U.S.C. §1983 Can Be Heard

When Those Claims were Reserved by

Respondents at the Time of Pursuing a State

Court Action.

3 Whether the District Court's

Granting cf Petitioners' Motion for Summary

Judoment was Proper in Light of Facts

Demonstrating Unconstitutional Motivation.

TABLE OF CONTENTS

Table of Authorities i

Statement of the Case 1

Summary of Arguments 3

Reasons for Denying

the Petition 7

Argument One

This Court Should Deny

The Petition As Being Juris-

dictionally Out Of Time Pursuant

To Rules Of The Supreme Court 7

Argument Two

Respondents Properly Pre-

served Their Federal Rights In

Federal Court And Must Be Allowed

To Litigate Those Rights In The

Federal District Court 21

Argument Three

The Court Of Appeals

Properly Relied Upon And

Applied The Decision In

Ebel v. City of Corona 38

Conclusion 40

Appendix "Q"

Appendix “R"

(1)

TABLE OF AUTHORITIES

CASES

Allen v. McCurry, 449 U.S. °C (1980)

Cipriano v. City of Houma, 395 U.S.

701 (1969)

Ebel v. City of Corona, 698 F.2d

340 (9th Cir., 1983)

England v. Louisiana State Board

of Medical Examiners, 375 U.S.

411 (1964)

Fair Assessment in Real Estate

Ass'n. v. McNary, 454 U.S.

100, 112 (1981)

Federal Trade Comm. v. Colgate-

Palmolive Company, et al.,

380 U.S. 374 (1965)

Federal Trade Comm. v. Minneapolis-

Honeywell Regulator Co.,

344 U.S. 206 (1952)

Huffman v. Pursue, Ltd., 420 U.S.

592 (1975)

Juidice v. Vail, 430 U.S. 327 (1977)

Juncker v. Tinney, 549 F.Supp.

574 (D.C. Md., 1982)

Middlesex County Ethics Committee

v. Garden State Bar

Association, 457 U.S. 423

(1982)

35,36

6,38,39,

28,32

5,26,28,

31,32,

(ii)

Migra v. Warren City School Dist.

Bd. of Ed., U.S. ,

79 L.Ed.2d 56 (1984)

Moore v. Sims, 442 U.S. 415 (1979)

Ohio Bureau of Employment Services

v. Hodory, 431 U.S. 471

(1977)

Parratt v. Tavlor, 451 U.S. 527

(1981)

Railroad Comm'n. of Texas v.

Pullman, 312 U.S. 496 (1941)

Scoggin v. Schrunk, 552 F.2d 436

(Sth Cir., 1975)

Tovar v. Billmeyer, 98 Idaho 891,

575 P.2d 489 (S.Ct., 1978)

Tovar v. Billmeyer, 609 F.2d 1291

(9th Cir., 1979)

Tovar v. Billmeyer, 1721 F.2d 1260

(9th Cir., 1983)

Trainor v. Hernandez, 43] U.S. 434

(1977)

U.S. v. Zirpolo, 450 F.2d 424

(3rd Cir., 1971)

Vicory v. Walton, 721 F.2d 1062

(6th Cir., 1983)

Village of Belie Terre v. Borras,

416 U.S. 1 (1974)

34,35

2,18,

37,38

(iii)

Young v. American Mini-Theaters, 38

427 U.S. 50 (1976)

Younger v. Harris, 401 U.S. 37 24,26,

(1971) eieate

29 ,30,31

STATUTORY PROVISIONS AND RULES

28 U.S.C. §2102 11 ,18,i9

42 U.S.C. §1983 5

20 Am. Jur. 2d, §233 31

Rules of the Supreme Court

Rule 17 7

Rule 20 Pe hs Pe |

Rule 21 20

Rule 29 11

Rule 33 20

Ninth Circuit Court of Appeals Rules 13

Federal Rules of Appellate Procedure

Rule 35 12

Rule 40 12,433,414

Vol. II, Federal Procedure, 13

Lawyer's Edition §3:751

Stern & Gressman, Supreme Court Adsae

Practice, 5th Ed., §6.3

-j-

STATEMENT OF CASE

In the Petition for Writ of

Certiorari, Petitioners set forth the

factual and procedural history of this

case. However, there are additional facts

which will be helpful in the consideration

of Petitioners’ arguments.

On April 12, 1976, the United States

District Court entered an Order granting a

Motion to Abstain. See Appendix Q-1l, et

seg., Memorandum decision of Judge J.

Blaine Anderson, United States District

Judge. As indicated in that Memorandum,

and not disputed by Petitioners, the

Respondents filed a Reservation of Rights

in state court. This Reservation of Rights

and the District Court's reliance upon

Railroad Comm'n. of Texas v. Pullman, 312

U.S. 496 (1941) reserved for Respondents

the right to return to federal court on

guestions of federal law after the state

-?-

court had the opportunity to rule on state

claims. Appendix Q-l, et seq. See also

Appendix J, Petitioners’ Petition, at J-4.

In 1979, upon the first consideration

of this case, the United States Court of

Appeals for the Ninth Circuit upheld

Responcents' right to reserve federal

guestions and recognized the validity of

federal abstention uncer Pullman. Tovar v.

Billmeyer, 609 F.2d 1291 (9th Cir., 1979).

The Court of Appeals for the Ninth

Circuit based its reversal of the District

Court's Order granting Petitioners’ Motion

for Summary Judgment upon the following

facts: the primary purpose of the City

Council's zoning decision was to prevent

Respondents’ adult theater from operating

in Pocatello; the building inspector wes

ordered by the Mayor to deny the building

permit; no other City Council meeting had

ever been held to deny a building permit

=3-

prior to the submission of an application;

and finally, the new interpretation given

to the City's zoning code in light of the

above facts. Tovar v. Billmeyer, 721 F.2d

1260 (9th Cir. 1983). Appendix _#

Petitioners' Petition, K-13-16.

The remaining facts necessary to

resolve this Petition are adequately set

forth in Petiticners' Petition.

SUMMARY CF ARGUMENTS

A Petition for Writ of Certiorari must

be brought within ninety days of the date

of decision and order of the Court of

Appeals. This rule is only modified where

a timely Petition for Rehearing is filed.

Petitioners failed to timely file a

Petition for Rehearing and dic not file

their Petition for Writ of Certiorari

within the ninety day time period between

the date of judgment and the expiration

date for filing the Petition.

Furthermore, Petitioners did not file

a Petition for Writ of Certiorari from the

first decision of the Ninth Circuit Court

of Appeals in 1979 and because that

decision resolved issues unrelated to the

seconc appeal and decision, this Court

cannot reopen the questions decided

therein. The first appeal decided the

questions of abstention anc reservation of

federal claims.

Petitioners have also failed to

indicate a conflict between any decision of

this Court and the results reached below.

Respondents at all times reserved their

right to proceed in federal court on their

federal claims. This reservation of rights

was recognized by both the Federal District

Judge and the Ninth Circuit Court of

Appeals. The Respondents did not seek to

-5-

enjoin or otherwise interfere with any

state proceeding. Therefore, the courts

below properly applied the Railroad Comm'n

of Texas v. Pullman, 312 U.S. 496 (1941),

abstention doctrine, allowing Respondents

to first litigate claims in state court and

then proceed in federal court on the

federal claims.

It would be inequitable for this Court

to retroactively apply a new procedural

standard in Respondents’ case, as

Respondents relied upon the previous

procedural rules and findings of the courts

in question. Additionally, abstention

under Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423

(1982), is also not required because two

of the four prongs of the test are not met

in this case.

Respondents are entitled to bring

their §1983 claims in federal court because

-6-

they specifically reserved those claims in

the state proceedings. Respondents' §1983

claims state a cause of action as they

concern an infringement of a fundamental

right unrelated to due process.

Finally, the Ninth Circuit Court of

Appeals properly applied the Ebel v. City

of Ccrona, 698 F.2d 340 (9th Cir., 1983),

rule to this case as zoning procedures and

reculations are subject to constitutional

scrutiny.

-~ Ps

REASONS FOR DENYING THE PETITION

A review on Writ of Certiorari is not

a matter of right, but of judicial

discretion. As indicated in Rule 17, Rules

of the Supreme Court, it will be granted

"only when there are special and important

reasons therefor." Rule 17, Rules of the

Supreme Court. The Fetitioners have failed

to indicate any special or important

reasons as to why this Court should grant

their Petition.

THIS COURT SHOULD DENY THE

PETITION AS BEING JURISDICTIONALLY

OUT OF TIME PURSUANT TO

KULES OF THE SUPREME COURT.

THE PETITION FOR WRIT OF

CERTIORARI WAS FILED AFTER TEE

EXPIRATION OF THE APPLICABLE

TIME LIMITS FOR FILING A PETITICN

FOLLOWING THE DECREE OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT ISSUED ON

DECEMBEP. 15, 1983.

-§s-

As indicated in the Petition in this

case, on May 4, 1984, Associate Justice W.

H. Rehnquist signed an Order extending the

time for filing a Petition for Writ of

Certiorari to and including June 11, 1984,

reserving for the Court's later

consiceration the question of whether the

time for filing the Petition for Writ of

Certiorari ran from the Order of the United

States Court of Appeals for the Ninth

Circuit on February 7, 1984, or from the

Opinion and Judgment of the United States

Court of Appeals for the Ninth Circuit

dated December 15, 1983. An analysis of

the applicable rules and facts in this case

indicate that the time limitations ran from

December 15, 1°83, and therefore, the

Petition was filed jurisdictionally out of

time and cannot be considered pursuant to

Rule 20.3 of the Rules of the Supreme

Court.

=-9-

The opinion and decision upon which

this Petition for Writ of Certiorari is

based was entered December 15, 1983, by the

Court of Appeals for the Ninth Circuit.

See Appendix J, Petitioners' Petition.

Petitioners filed a "Suggestion for En Banc

Consideration" on cr about December 22,

1983. See Appendix M-l, Petitioners'

Petition. On January 31, 1984, Petitioners

filed a "Supplemental Suggestion, Petition

for Rehearing, and Request for Hearing En

Banc See Appendix M-2, Petitioners’

Petition. Subsequently, on February 3,

1984, Petitioners filed their "Motion to

Enlarge the Time for Filing and to Late

File the Supplemental Suggestion, Petition

for Pehearing and Request for Hearing En

Banc". See Appendix M-3, Petitioners'

Petition. The Court of Appeals on February

Ty 1984, issued an Order denying

Petitioners’ December 22, 19€&3, Suggestion

~10=

for En Banc Consideration. See Appendix N,

Petitioners' Petition. On February 21,

1984, the United States Court of Appeals

for the Ninth Circuit denied Petitioners'

Motion to Enlarge the Time for Filing and

to Late File Supplemental Suggestion,

Petition for Rehearing and Request for

Hearing En Banc. See Appendix O,

Petitioners' Petition. The Court of

Appeals did not consider Petitioners'

January 31, 1984, Supplemental Suggestion,

Petition for Rehearing and Request for

Hearing En Banc.

Rule 20 of the Rules of the Supreme

Court establishes the time for petitioning

for review on certiorari. Subdivision 20.4

of that rule indicates:

"The time for filing a

petition for writ of certiorari

runs from the date the judgment

or decree sought to be reviewed

is rendered, and not from the

date of the issuance of the

mandate (or its equivalent

-ll-

under local practice).

However, if a petition for

rehearing is timely filed by

any party in the case, the time

for filing a petition for writ

of certiorari for all parties

(whether or not they requested

rehearing or joined in the

petition for rehearing) runs

from the date of the denial of

rehearing or on the entry of a

subsequent judgment entered on

the rehearing." Rule 20.4,

Rules of the Supreme Court.

(emphasis added)

In this case, the applicable time limit for

filing the Petition for Writ of Certiorari

is ninety (90) days. See Rule 20.2, Rules

of the Supreme Court; 28 U.S.C. §2101(c).

Any application for extension of time in

which to file a Petition for Writ of

Certiorari, besides setting forth the

specific reasons why extension of time

should be granted, must be applied for at

least ten days before the specified final

filing date. See Rules 20.6 and 29, Rules

of the Supreme Court. Petitioners maintain

their Writ of Certiorari was timely by

-l]2-

starting the ninety day limit on the date

the appellate court denied their

"Suggestion for En Banc Consideration" by

asserting that such Suggestion was

equivalent to a Petition for Rehearing.

However, such assertion cannot stand in

light of the Federal Rules of Appellate

Procedure.

Under the Federal Rules, there is a

clear distinction between a Petition for

Rehearing and a Suggestion for a Rehearing

En Banc. Rule 35 of the Federal Rules of

Appellate Procedure provides in pertinent

part:

"A suggestion for a rehearing

en banc must be made within the

time prescribed by Rule 40 for

filing a petition for

rehearing, whether the sugges-

tion is made in such petition

or otherwise. The pendency of

such @ suggestion whether or

not included in a petition for

rehearing shall not effect the

finality of the judgment of the

Court of Appeals or stay the

issuance of the mandate." Rule

i lr ll

a} 93«

35(c), Federal Rules of

Appellate Procedure. See also

Vol. Il, Lawyer's Edition,

§3:751.

Rule 12 of the Ninth Circuit Court of

Appeals Rules requires if one desires to

combine a sucagestion cf rehearing en banc

with a petition for’ rehearing, that

reference must be made to both~ the

suggestion for rehearing en banc as well as

the petition for rehearing on the cover of

the combined petition and suggestion. Rule

12, Ninth Circuit Court of Appeals Rules,

Appendix R.

Petitioners' Suggestion for En Banc

Consideration filed on December 22, 1983,

is just that and not a Petition for

Rehearing. It does not comply with Rule 12

set forth above. See Appendix M-l,

Petitioners' Petition. Furthermore, it

does not satisfy the Rule 40 requirements

for a Petition for Rehearing. In fact,

-14-

Petitioners filed their suggestion pursuant

to Rule 35 and not Rule 40 of the Federal

Rules of Appellate Procedure. A review of

the record pertaining to the first appeal

to the Ninth Circuit in this case, which

occurred in the fall of 1979, indicates

that the Petitioners in this case

understood the requirements of the rules by

filing the appropriate Petition for

Rehearing and Suggestion of the

Appropriateness of Rehearing En Banc

concerning the first appeal.

Therefore, the filing by Petitioners

of a Sucoestion for En Banc Consideration

on December 22, 1983, does nct constitute

the filing of a Petition for Rehearing and

had no effect on the applicable time

limits.

A Petition for Rehearing must be filed

fourteen days after entry of judgment.

Rule 40(a), Federal Rules of Appellate

21S

Procedure. The Petitioners’ "Supplemental

Suggestion, Petition for Rehearing and

Request for Hearing En Banc" was filed on

January 31, 1984, well after the expiration

of the fourteen day time limit. On

February 3, 1964, Petitioners attempted to

cure their late filing of the Petition for

Rehearing by filing a “Motion to Enlarge

the Time for Filing and to Late File

Supplemental Suggestion, Petition for

Rehearing and Request for Hearing En Banc".

See Appendix M-3, Petitioners' Petition.

The Court of Appeals for the Ninth Circuit

denied Petitioners' Motion to Late File.

Appendix O, Petitioners' Petition.

Petitioners cite to Stern & Gressman,

Supreme Court Practice, 5th Ed., §6.3, pps.

398-400, to support the proposition that

the time limits for filing the Petition for

Writ of Certiorari began on February 7,

1984. However, that reliance is based upon

o16<

the incorrect assumption that the

Suggestion for En Banc Consideration

constituted a Petition for Rehearing.

Stern & Gressman specifically indicate that

a denial of a Motion for Leave to File a

Petition for Rehearing Out of Time does not

extend the time for filing appeals. Stern

& Gressman, Supreme Court Practice, 5th

Ed., §6.3, p. 399. The fact that the Court

of Appeals intended to deny Petitioners’

Application to Late File their Petition for

Rehearing is further buttressed by the fact

that the Court of Appeals did not to

consider the January 31, 1984, Supplemental

Suggestion, Petition for Rehearing and

Reguest for Hearing En Banc.

The Petitioners did not file a

Petition for Rehearing within fourteen days

from the date of judgment. The Court of

Appeals denied Petitioners' Motion to

Enlarge the Time for Filing and tc Late

=17=}

File Supplemental Suggestion, Petition for

Rehearing and Request for Hearing En Banc.

Because a Petition for Rehearing was not

filed within the first fourteen days

following judgment, Petitioners’ time limit

for filing a Petition for Weit of

Certicrari must be computed from the date

judgment was entered. That date is

December 15, 1983. Pursuant to the

applicable rules, Petitioners were required

to file their Petition for Writ of

Certiorari by March 14, 1984, or request an

extension of time to file that petition on

or before March 4, 1984. Petitioners

failed to comply with either time limit

and, thus, their Petition for Writ of

Certiorari should not be accepted by the

Court.

THIS COURT SHOULD NOT

REOPEN ISSUES DECIDED IN THE

FIRST APPEAL TO THE UNITED

-18-

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT WHICH WERE

DECIDED ON NOVEMBER 6, 1979.

Petitioners failed to file a Petition

for Writ of Certiorari from the Opinion of

the United States Court of Appeals for the

Ninth Circuit dated November 6, 1979.

Tovar v. Billmeyer, 609 F.2d 1291 (9th

Cir., 1979). That Opinion dealt with the

question of abstention and the ability of

Respondents to assert their §1983 claims in

federal court. The questions raised and

decided in that appeal were not affectec by

the subsequent decision by the United

States Court of Appeals for the Ninth

Circuit dated December 15, 1983.

Therefore, even if this Court feels that

the Petitioners did not violate the time

limits discussed above, the Petiticn must

be limited to a consideration of only those

issues which were discussed and decided by

the United States Court of Appeals in its

=19-

second decision. See Federal Trade Comm'n.

v. Minneapolis-Honeywell Regulator Co., 344

.s. 206 (1952); Federal Trade Comm'n.

v. Colgate-Palmolive Company, et al., 380

U.8. 374 (1965).

Thus, all issues in this Petition for

Writ of Certiorari pertaining to abstenticn

or the question of the ability of federal

courts to entertain the §1983 action relate

to the first appeal, and since the

subsequent appellate decision dic not have

any affect cn that first appeal, this Court

shoulda refuse to entertain any questions or

issues relating to the propriety of the

District Court deciding the §1983

questions.

Cc.

THIS COURT SHOULD EXERCISE

ITS DISCRETION AND DENY

CONSIDERATION OF THE PETITION

BECAUSE OF THE NATUFE OF

PETITIONERS' PETITION.

-20-

Rule 21.5 of the Rules of the Supreme

Court provides that a petitioner's failure

to present with accuracy, brevity, and

clearness whatever is essential to the

ready and accurate understanding of the

points requirina consideration may be

sufficient reason for denying a petition.

Rule 21.5, Rules of the Supreme Court.

In this case, the questions presented

in the Petition for Writ of Certiorari are

unclear and the issues muddled.

Additionally, Petitioners' inexplicably

numbered three pages 26(a), 26(b) and

26(c), making their Petition three pages

over the limitation imposed by Rule 33.3 of

the Rules of the Supreme Court. Therefore,

Respondents request this Court exercise its

discretion and deny the Petition.

RESPONDENTS PROPERLY PRESERVED

THEIR FEDERAL RIGHTS IN FEDERAL

COURT AND MUST BE ALLOWED TO

-271-

LITIGATE THOSE RIGHTS IN TRE

FEDERAL DISTRICT COURT.

The Ninth Circuit Court of Appeals in

an Opinion rendered December 1S, 1983,

remandec this case to the District Court

for a trial upon the merits after finding

that Responcents had properly reserved

thei! federal] claims and instructed the

trial court to examine the question of

whether or not there was an

unconstitutional] motivation uncerpinning

the zoning decisions made in this case in

violation of the First Amendment to the

United States Constitution. See Appendix

K, Petitioners' Petition. This issue,

along with the related issues of whether or

not the regulations in question ar

aa)

reasonable pursuant to the First Amendment

protections of speech in question, does not

require the interpretation or the

PE OU

=3%-

application of any state statutes or local

ordinances.

The procedural history of this case is

such that the state courts have had full

opportunity to litigate various issues.

Petitioners' Petition, pps. 3-25. The

state courts, however, from the various

decisicns rendered, never directly

addressed the freedom of speech claims

presented by Respondents even though such

gquesticns were raised before them. See

Tovar v. Billmeyer, 98 Idaho 891, 575 P.2d

469 'S.Gess 1978). Appendix Ae

Fetitioners' Petition. The state courts’

decisions in this case concern the general

arbitrary and capricious stancard of review

applied in zoning cases. Respondents have

at all times reservec their right to bring

the federal questions, including the First

Amendment question, before the federal

ee s

court. Appendix K-25, Petitioners’

Petition.

The following discussion will indicate

the propriety of a trial on the merits in

the Federal District Court in this action

as ordered by the Ninth Circuit Court of

Appeals. It is Respondents' contention

that this discussion is not necessary as

Petitioners failed to bring a Writ of

Certiorari concerning the abstention issues

decided in the first appeal to the Ninth

Circuit and, therefore, should be precluced

from raisina this argument in this

Petition. However, even if the Court feels

that this Petition was timely filed and

that the Petition can re-open arguments

settled on appeal in 1979, the following

analysis indicates the Court should not

grant the Writ of Certiorari.

o%hn~

RESPONDENTS' FULL RESERVATION OF

FEDERAL RIGHTS IN THE STATE

PROCEEDING COMBINED WITH THE

PULLMAN ABSTENTION EXERCISED

AND AFFIRMED BY THE DISTRICT

COURT AND THE NINTH CIRCUIT

COURT OF APPEALS PERMIT

CONSIDERATION OF RESPCNDENTS'

§1983 CLAIMS IN FEDERAL DISTRICT COURT.

stated by this Court, there are two

primary types of federal abstention --

Pullman abstention and Younger abstention.

Ohic Bureau of Employment Services v.

Hodory, 431 U.S. 471, 477 (1977). In this

case, the District Court and Court of

Appeals applied Pullman abstention by

withhclding jJucgment on Respondents'

reserved federal claim until after the

state courts had an oppcertunity to acaress

the issues. See Appendix Q, Opinion of the

District Court; Tovar v. Billmeyer, 609

F.2d 1291 (9th Cir., 1979); Appendix J,

Petitioners' Petition. A brief discussion

of the two primary doctrines of federal

-25-

abstention indicates the propriety of these

decisions.

Pullman abstention involves an inquiry

focused on the possibility that the state

courts may interpret a challenged state

statute or procedure so as to eliminate or

at least to alter materially a

constitutional question presented.

Railroac Comm'n v. Pullman Company, 312

U.S. 496 (1941); Hodory, supra, 431 U.S. at

477. In this case, it was possible that

the state courts would decide that the

statute or the procedures employec by the

City Council cf Pocatello were violative of

a state statutory or constitutional

provision which would obviate the necessity

cf the District Court proceeding on

Respendents' federal claims. Therefore,

abstention under Pullman was appropriate in

order to allow the state courts an

opportunity to resolve the issues.

=26<

The second type of abstention pursuant

to the doctrine is Younger abstention. In

Younger, the court is primarily concerned,

in an ecuitable setting, with

consicerations of comity and federalism,

both as they related to the state's

interest in pursuing an on-going state

proceeding, anc as they involved the

ability of the state courts to consider

federal constitutio..al claims in that

context. Younger v. Harris, 401 U.S. 37

(1971); Hodory, supra, 431 U.S. at 477. It

is this type of abstention which

Petiticners assert should have keen applied

in this case. See argument I, p. 29;

Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423 (1982).

There are three independent reasons why

this Court should not accept Petitioners'

assertion.

a2}~<

THE YOUNGER RATIONALE IS NOT

APPLICABLE TO THE FACTS AT BAR.

While it is true that the principles

of federalism recognized in Younger, supra,

have not been limited to federal court

interference in state criminal proceedings,

they have been specifically limited in

their application to federal cases which

seek to enjoin state judicial proceedings;

a limitation which has not been abandoned

by the Court. Fair Assessment in Real

Estate Ass'n. v. McNary, 454 U.S. 100, 112

(1981). It is evident, from a review of

the authorities in which the Younger

doctrine has been applied, that this Court

has limited the application of that

doctrine, even in cases involving §1983

actions, to factual situations wherein the

party seeking relief in the federal courts

was attempting to avoid some type of action

brought against them in state tribunals.

See Midclesex County Ethics Committee,

Supra (attempt to avoid New Jersey state

Sod

—<

discip proceedings); Younger, supra

(attempt to obtain Federal Court equitable

relief against prosecution in state court);

Trainor v. Hernandez, 431 U.S. 434 (1977)

pencing civil enforcement suit filed in

tc obtair Federal declaratcr anc

naunctiv elief coekina +-< mmaecir

injunctive relief seeking Eo enjcin

execution of a state court judament without

J .

ate remedies);

State-ccurt proceedings for a period of

more than nine (9) months sought to have

the statutory provisions authorizing

contempts enjoined as unconstitutional);

=-29—

Moore v. Sims, 442 U.S. 415 (1979) (parties

sought federal court injunctive relief of

state court Department of Human Resources

child custody actions); McNary, Supra

(requested federal action which would act

to enjoin state law tax collection).

Thus, Younger abstention hes no

application tc the case at bar in that

Responcents are not seeking to interfere

with any state proceeding; indeed,

Respondents have already exhausted all

state avenues cf relief.

RESPONDENTS HAVE ACTED IN

RELIANCE UPON THE PRIOR FINDING

OF PULLMAN ABSTENTION AND

APPLICATION OF YOUNGER ABSTENTION

AT THiS POINT WOULD BE INEQUITABLE.

Respondents, as stated previously,

reservea their right to proceed in Federal

court upon Federal claims. Based upon this

reservation and the Pullman abstention

exercised by the District Court, the Court

=30=

of Appeals ruled in its first decision that

the District Court must’ entertain the

federal claims of Respondent. Petitioners

now request, after allowing four years to

elapse, that this Court fashion a new

procedural] rule requiring that federal

courts, henceforth, apply Younger absention

cases. If such a rule were

acoptec by this Court, Respondents would be

precludec from litigating their First

Amendment claims b the enactment of a

procedural rule which did not exist anda

which was not applied by the courts at the

Thus, even if this Court decides that

Youncer abstention is appropriate in such

nadents', it should hold that

rn"

se 8

a @ |

ite decision is non-retroactive and does

not apply in Respondents’ case. See

Cipriano v. City of Houma, 395 U.S. 701

«3j<

(1969); 20 Am. Jur. 2d, §233, p. 562; U.S.

v. Zirpolo, 450 F.2d 424 (3rd Cir., 1971).

YOUNGER ABSTENTION, AS fCET FORTH

IN MIDDLESEX IS NOT SATISFIED

IN THIS CASE.

Even if this Court decides that the

Younger abstention doctrine as put forth in

Middlesex should generally be applied in

this type of case, and even if the Court

decices that such doctrine can be applied

retroactively, the specific facts in this

case dc not satisfy the Middlesex four-part

test.

Petitioners first indicate that

Middlesex sets forth a four-part test.

Petitioners then attempt to modify this

test by claiming that only the first three

parts neec be met, if the provision in

cuestion is susceptible of a constitutional

construction in state court. See

Petitioners' Petition, pps. 40-41.

-32-

However, this reading misconstrues’7~ the

language of Huffman cited on p. 40 of

Petitioners’ Petition. Huffman, ‘in the

cited lanaquage, held that the District

Court could intervene if it finds a state

proceeding 1s motivatecd by a desire to

herass or 1s conecucted in bad faith or

where the statute is flagrantly violative

of express constitutional prohibitions.

Huffman, Supra, at 496. Petitioners

attempt tc assert that if one of these

exceptions is not met in the case, then the

fourth part of the Middlesex test is

isfied. However, it is clear that what

the Court has ruled is that any one of the

exceptions, if they exist, are sufficient

to justify feceral intervention.

Therefore, This case does not satisfy

two of the four prongs of the Middlesex

test. It does not satisfy the first prong

which requires the existence of a state

-~33-

action. There is no state action pending

with which federal court action would

interfere. Furthermore, if this Court

orders abstention at this juncture,

Respondents would be precluded from seeking

relief in any tribunal.

This case does not meet the fourth

part of the test as the Ninth Circuit Court

of Appeals has already held that the facts

on record indicate that there is evidence

of unconstitutional bad faith. See

Appendix K, Fetitioners' Petition, K-18-25.

This evidence renders abstention

inappropriate. Therefore, because two of

the four parts of the Middlesex test are

not satisfied in this case, abstention

under that doctrine is inappropriate and

there is no error in the decision of the

Court of Appeals.

wien

RESPONDENTS ARE ENTITLED TO BRING

THEIR §1983 ISSUES IN FEDERAL COURT.

Petitioners urge that this Court's

recent decision in Migra v. Warren City

School Dist. Bd. of Ed., U.S. » we

L.Ed.2c 56 (1984) recuires this Court to

hola that Respondents are precluded from

raising any issues which were or could have

been raised in the state court proceeding.

However, Petitioners' assertion is not

valid as Respondents reserved their federal

rights and were informed by both the

Federal District Court and the Court of

Appeals for the Ninth Circuit that such

Federal rights had been reserved. See

Appendix Q; Appendix K, Petitioners'

Petition.

The significance of this reservation

in relation to the Migra Gecision is

evident when one considers footnote 7 of

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-36-

Schrunk, 522 F.2d 436 (9th Cir., 1975) is

Similarly misplaced. In Allen, the Court

specifically noted the exception to the

preclusion rule when a party reserves its

right to proceed in federal court’ cn

federal issues. See Allen, supra, 449 U.S.

at 102, foctnote 17. Scoggin likewise did

not involve a case where the party seeking

relief hac previously reserved the right to

proceec in federal court on federal issues.

This doctrine of issue preservation

anc its effect on preclusion was applied by

the Court of Appeéels for the Ninth Circuit

in its second decision at footnote 8. See

Appendix K, Petitioners’ Petition at K-25.

Therefore, because Respondents reserved

their right to proceec in federal court on

federal questions, they are entitled to do

so at this time.

Petitioners alco assert that this

Court’s decision in Parratt v. Taylor, 45]

o37=

U.S. 527 (1981), requires a finding that

Respondents’ §1983 action fails to state a

Claim upon which relief can be based.

However, Petitioners have misapplied the

Parratt decision.

In Parratt, this Court set forth three

prerequisites which must be met in order to

bring due process claims under §1983.

Parratt, supra, 451 U.S. at 536. If the

complaint states a claim under §1983 based

upon any constitutional or statutory

provision other than the due process clause

of the Fourteenth Amendment, a clai:r under

§1983 anc the Parratt requirements co not

have to be met. Juncker v. Tinney, 549

F.Supp. 574, 582 (D.C. Md., 1982). Because

Respondents’ claim is based upon a First

Amendment violation anc not due process,

Parratt and Petitioners’ analysis do not

apply in this case. Petitioners’ reliance

upon Vicory v. Walton, 721 F.2d 1062 (6th

=-38-

Cir., 1983) is also subject to the same

limitation as Vicory concerned a claim of

Genial of procedural due process. Vicory,

supra, 721 F.2d at 1065.

ee i

THE COURT OF APPEALS PROPERLY

RELIED UPON AND APPLIED THE

DECISION IN EEEL V. CITY OF

CORONA.

Petitioners assert that the Court of

Appeals lacked jurisdiction over the

subject matter to incuire into the

motivation of the City Council in enacting

zoning legislation. See Petitioners'

Petition, pps. 61-63. However, the Court

has long analyzed zoning regulations and

their effect on fundamental rights such as

those under the First Amendment. Village

of Belle Terre v. Boraas, 416 U.S. 1

(1974); Young v. American Mini-Theaters,

427 U.S. 50 (1976).

»39=

Even if this Court is inclined to

agree with the concurring opinion of

Circuit Judge Wallace that the "real

purpose” test of Ebel should be applied as

opposed to "a motivating factor test", the

decisior of the Court of Appeals must still

be upheld as Judce Wallace agreed, even

under his stancard, that the facts

precludec granting summary judgment. See

Appencix K, Petitioners’ Petition, K-26-27.

The Petitioners assert that the

factual record indicates that all the

official proceedings, including the

meetings of the City Council, were fair on

their face. Petitioners' Petition, p. 62.

However, as found by the Court of Appeals

for the Ninth Circuit, there exist numerous

facts which would indicate that the zonina

restriction in this case unconstitutionally

violates the First Amendment. See Appendix

K, Petitioners’ Petition, pps. 18-25.

-40-

CONCLUSION

Petitioners have failed to timely file

their Petition for Writ of Certiorari.

Petitioners have also failed to indicate

any conflict between the decisions reached

in this case and any decision of this Court

or other Federal Courts. Finally,

Petitioners have not demonstrated error in

the Court of Appeals application of the

Ebel standard of review. Therefore,

Respondents respectfully request that this

Court deny the Petition for Writ of

Certiorari.

DATED this 10th day of August, 1984.

STOMPOLY & EVEN, P.C.

if, Ml

i ’ J a [

/ Fs, “OT ei

William G. Walker

Attorneys’ for Respondents

APPENDIX "Q"

Memorandum decision in the United

States District Court for the District of

Idaho in Joseph Tovar and Deborah Ann

Moore v. C.G. Billmeyer, Melvin Morgan,

F.W. "Bill" Roskelley, John Evans, Les

Purce, Donna Boe, Earl Pond, Wayne Ellis,

and The City of Pocatello, an Idaho

municipal corporation, Civil No. 4-75-

59, April 13, 1976.

- « « Q=-l through Q-14.

(Reference: See Brief in Opposition

to Petition for a Writ of

Certiorari at page l.)

PROLELERAT Sen Vee nn ee

Q-1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

JOSEPH TOVAR and

DEBORAH ANN MOORE,

Plaintiffs, Civil No. 4-75-59

vs. MEMORANDUM

C.G. BILLMEVER;

MELVIN MORZUAN; F.

W. *“Biii”

EVANS; LES PURCE;

DONNA BOE; EARL

POND; WAYNE ELLIS;

and THE CITY OF

POCATELLO, an

Idaho municipal

corporation,

)

ROSKELLEY; JOHN )

)

Defendants. )

)

This action is presently before the

Court on defendants' motions to dismiss

and to abstain, filed on January 20, 1976,

by each of the nine named defendants. As

the motions filed are, in most respects,

identical, they will be treated as one

motion. The parties have filed original

briefs and a reply brief has been filed by

the defendants and the matter is submitted.

Q-2

On December 22, 1975, the present

action was filed in this Court under 42

U.S.C. §1983 seeking injunctive relief,

declaratory relief and damages. The

plaintiffs' prayer for relief asks this

Court to declare the zoning ordinance of

the City of Pocatello and its provisions

as unconstitutional on its face and as

applied, to declare invalid the City

Council's October 23, 1975, hearing and

decision, to reinstate the Board of

Adjustment's decision, to enjoin the

defendants from initiating any action

contesting that the plaintiffs' proposed

use is not in accordance or contrary to

the zoning ordinance, a judgment for lost

profits, attorneys’ fees and punitive

damages.

Concurrently, there was filed on

December 9, 1975, in the Sixth Judicial

District of Idaho, an action by one of the

present plaintiffs, Deborah Ann Moore,

Q-3

entitled Petition to Review Denial of

Variance. Named as defendants were eight

of the nine present defendants, with the

exception of defendant Wayne Ellis. On

February ll, 1976, the Honorable George W.

Hargraves issued his Memorandum Decision

and Order which reversed the City Council's

decision of October 23, 1975, and remanded

the matter back to the City Council for

further proceedings and consideration in

conformity with his Order. That is pre-

sently the status of the state court

action.

Both of these actions arise out of

the same following factual background. In

September, 1975, plaintiffs purchased

certain property, on which they sought to

house their proposed adult bookstore and

theater. On October 8, 1975, plaintiffs’

application for a conditional use permit

was approved by the Board of Adjustment

for the City of Pocatello. On October 9,

Q-4

1975, an appeal from that decision was

taken by the Downtown Merchants Association

to the City Council. On October 23, 1975,

the City Council held a hearing to review

that decision, which resulted in a reversal

of the Board of Adjustment's decision and

the Council refused to issue to plaintiffs

a conditional use permit for the operation

of their theater. Whereupon, the two

above actions were filed.

At the outset, we are mindful that

when the exercise of authority by state

officials is attacked, federal courts

must be constantly aware of the “special

delicacy of the adjustment to be preserved

between federal equitable power and

state administration of it own law."

Stefanelli v. Minard, 342 U.S. 117, 120,

72 S.Ct. 118, 96 L.Ed. 138 (1951). Also,

this Court must recognize that ours is

a system in which “the National Government,

anxious though it may be to vindicate and

Q-5

and protect federal rights and federal

interests, always endeavors to do so in

ways that will not unduly interfere with

the legitimate activities of the States.”

Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971), quoted in

Huffman v. Pursue, Ltd., 420 U.S. 592,

95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

With this background, we must scru-

tinize plaintiffs’ state court complaint

and the present complaint to determine

if it is proper for this Court to stay

its hand in deference to the state court

so as not to "unduly interfere" with the

state court action.

The declaratory relief sought by the

present plaintiffs has, at least in part,

been remedied by the state court. That

court has already reversed the October

23, 1975, decision of the City Council,

thereby reinstating the Board of Adjustment's

Gecision which mandates as unwarranted

Q-6

any declaration by this Court to that

effect. Similarly, it would appear unwise

for this Court to prematurely declare the

zoning Ordinance under which any condi-

tional use permit may be granted as

unconstitutional. This is so because the

state matter is on remand to the City

Council, and, while this Court cannot

prognosticate what action will be taken,

certainly, the City Council may reverse

itself and issue the desired conditional

use permit to the plaintiffs. Likewise,

if the City Council does not change its

position, the very able state court judge

may determine that the ordinance is uncon-

stitutional. Thus there are questions of

state law that may dispose of the necessity

for this Court to decide constitutional

questions. Railroad Commission of Texas

v. Pullman, 312 U.S. 496, 61 S.Ct. 643,

85 L.Ed. 971 (1941). Additionally, as

zoning is particularly of local concern,

Q-7

this Court would be interfering with the

administration by a state of its own affairs

if this Court were to grant the declaratory

relief sought. As the Supreme Court stated

in Alabama Public Service Comm. v. Southern

R. Co., 341 U.S. 341, 349, 71 S.Ct. 762,

95 L.Ed. 1002 (1951):

"As adequate state court review

of an administrative order based

upon predominately local factors

is available to appellee, inter-

vention of a federal court is

not necessary for the protection

of federal rights." 1/

The present plaintiffs also seek to

enjoin the defendants from instituting any

action challenging plaintiffs" use as being

contrary to the City's zoning ordinance.

It has been held in Mitchum v. Foster, 407

U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705

(1972), that actions under 42 U.S.C. §1983

are within the expressly authorized excep-

tions to the anti-injunction statute, 28

U.S.C. §2283. The granting of such injunc-

tions, to be proper, must be within the

Q-8

certain exceptional circumstances laid down

in Younger, supra. One such circumstance is

where there is a showing of "bad faith,

harassment, or .. . other unusual circum-

stances that would call for equitable

relief." Younger, supra, 401 U.S. at 54.

The present plaintiffs have alleged bad

faith harassment on the part of the defen-

dants. The injunction plaintiffs seek is

for future actions. The question then

becomes whether any perceived threat to

plaintiffs is sufficiently real and immediate

to show an existing controversy. It appears

that plaintiffs are merely anticipating the

filing of future actions and have pre-

sented no evidence in the record other

than their allegations to establish such

a real threat. See, Gregory v. Gaffney,

322 F.Supp. 238 (D.C. N.C. 1971).

Additionally, there is another reason

why this Court should stay its hand in

granting any injunctive relief. As the

celal alll

Q-9

Supreme Court in Mitchum stated:

"In so concluding, we do not

question or qualify in any

way the principles of equity,

comity, and federalism that

must restrain a federal court

when asked to enjoin a state

court proceeding."

407 U.S. at 243.

For this Court to enjoin prematurely the

actions of these defendants would be to

deny them the effective administration of

their duties and be at serious odds with

the notions of comity and federalism.

The remaining claims by the plaintiffs

are those seeking money damages sounding

in tort and also money damages by virtue

of the alleged bad faith harassment pur-

Suant to 42 U.S.C. §1983. Clearly, the

state courts have concurrent jurisdiction

over Civii rights cases. Long v. District

of Columbia, 469 F.2d 927 (D.C. Cir. 1972).

Therefore, the present §1983 claims

arising out of a common nucleus of opera-

tive fact could have been brought in state

court. Again, the notions of comity and

Q-10

federalism would dictate that this Court

stay its hand and let the state court

render its decision. For the same reasons,

plaintiffs' claims sounding in tort which

seek to invoke the pendent jurisdiction

of this Court must also submit to the

notions of comity and federalism.

It should be noted that plaintiffs,

by their state court counsel, have filed

a Reservation of Constitutional Questions

in that state action. This was notice

filed on February 2, 1976, pursuant to

the authority of England v. Louisiana

State Board of Medical Examiners, 375 U.S.

411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

It would appear from a reading of England

that the notice filed was premature.

England held that if a litigant in federal

court is remitted to a state court under

the doctrine of abstention, he may preserve

his right to return to federal court by

refusing to litigate his federal conten-

Q-1l

tions in state court. (My emphasis). In

England the parties first filed their action

in federal court and a three-judge court

abstained, allowing the state courts an

opportunity to determine the issues pre-

sented, which is just the opposite

Situation here in the present case.

For this reason, it would be proper

for this Court to retain jurisdiction but

to stay its hand pending determination of

the issues in state court. The notice of

reservation was not filed until nearly two

months after the initiation of the state

court action and almost a month and a half

after the filing of this action. Having

chosen the state court forum initially,

this reservation only secures for plaintiff

his right to return to federal court should

the state court not resolve the federal

questions to his satisfaction. Clearly,

this notice does not prevent this Court

from exercising its discretion to await

Q-12

determination by a state court when the

principles of comity and federalism apply.

In conclusion, there does not appear

to be any compelling reason why this Court

should not observe the "special delicacy

of the adjustment to be preserved between

federal equitable power and state adminis-

tration of its own law." Stefanelli,

Supra. The litigants have chosen the

state court forum initially where there is

available full remedy for all of their

rights and the same factual background is

before that forum. For this Court to

proceed and make a determination on the

merits would have the possibility of

issuing conflicting decisions which would

thereby defeat the principles of comity

and federalism.

Accordingly,

IT IS HEREBY ORDERED that the defen-

Gants’ motions to dismiss are DENIED and

the defendants' motions to abstain are

GRANTED.

Q-13

IT IS FURTHER ORDERED that this

matter will be held in abeyance pending

further proceedings in the state district

court. Counsel for the parties will keep

this Court advised periodically as to the

progress of those proceedings.

DATED this 12th day of April, 1976.

/s/ 3. Blaine Anderson

J. BLAINE ANDERSON

United States District Judge

Q-14

FOOTNOTES

While this action involved an injunc-

tion against enforcement of a statute

which has not been sought in the

instant case, the underlying notions

of comity are relevant.

APPENDIX "R"

Rule 12. Suggestion of Appropriateness

of Rehearing En Banc

Where a suggestion of the appropriate-

ness of a rehearing en banc, made pursuant

to Rule 35(b), Federal Rules of Appellate

Procedure, is made as part of a petition

for rehearing, a reference to such sugges-

tion, as well as to the petition for

rehearing, shall appear on the cover of

the combined petition and suggestion; and

unless this is done the court shall not be

required to consider such suggestion. (As

amended June 9, 1971; March 1, 1979;

October 1, 1981.)

(Reference: Federal Procedure L. Ed.,

Appeal, Certiorari, and

Review, §3:750.)

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.