Opposition — Siller v. Hartz Mountain Associates

Tice Susreme Court, US

No. 83-439 | r 1 LED we

«OT A?

In The re 1983

ce HOER a STEVaS,

Supreme Court of the United States—

October Term. 1983

SIDNEY SILLER and SHIRLEY SILLER, his wife; IRVING

GAINES and CORALIE GAINES, his wife; MARSHALL

NATAPOFF and JANET NATAPOFF, his wife; FRANCIS

CLARK and LUCILLE CLARK, his wife; and JOEL KRAMER,

single,

Petitioners,

and

HARMON COVE CONDOMINIUM II ASSOCIATION, INC.,

Intcrvenor,

vS.

HARTZ MOUNTAIN ASSOCIATES, a corporation; HARMON

COVE I CONDOMINIUM ASSOCIATION, INC., a

corporation; and HARMON COVE RECREATION

ASSOCIATION, INC., a corporation,

Respondents.

BRIEF FOR RESPONDENT HARTZ MOUNTAIN

ASSOCIATES, INC. IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW JERSEY

HERMAN JEFFER

JEFFER, HOPKINSON & VOGEL

Attorneys for Respondent

Hartz Mountain Associates, Inc.

Law Building, Route 208

P.O. Box 507

PATRICK X. AMORESANO Hawthorne, New Jersey 07507

On the Brief (201) 423-0100

14

*NJ (201) 257-68S0eNY (212) 840-94) "9A (215) 563-5587

MA (617) 542-11149OC (202) 783-7288¢..A (800) 221.0008

QUESTIONS PRESENTED

1. Whether or not this Court has jurisdiction pursuant to

78 U.S.C. §1257(3); and

2. Whether or not review should be granted pursuant to U.S.

Sup. Ct. R. 17.

ii

TABLE OF CONTENTS

BE OE a noc evasvdvcdcceprcdenvveccesssees

Constitutional, Statutory and Rule Provisions Involved...

ee et cet ect vodecdoebobones

EPC SOUT TEE eee eee

Reasons for Denying the Writ:

I.

Il.

This Court does not have jurisdiction pursuant to 28

U.S.C. §1257(3) because the decision below rests upon

adequate and independent state grounds..........

There are no special and important reasons for granting

review pursuant to U.S. Sup. Ct. R. 17..........

A. There is no interstate conflict of decisions about

ey SIA vs wan'dn oc ode caneecedebes

B. The New Jersey Supreme Court has not decided

a substantial federal question unsettled by or in

conflict with decisions of this Court.........

i. The adoption of the New Jersey

Condominium Act did not impair the

obligations of contract between petitioners

OE Gt DGS vines oc cctcndeaeesds

10

iii

Contents

ii. Petitioners have not been deprived of equal

protestion Of LG. .cccccccksntivuseese

iii. Petitioners have not been deprived of due

OSES OF GPs a sons cccccvesectannnene

CeO 8 a os kn nkd de Seed de ctsuewesennedl eee

TABLE OF AUTHORITIES

Cases Cited:

Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978)

“ee eee nee eee eee eee ee

eee eee eee eee eee reer eee eee ee OO He

Casey v. Biphun,; 4335 U.S. 267 CRT + vcacsccs daneners

Charleston Federal Savings & Loan Asso. v. Alderson, 324

U.S. 182, reh. den., 324 U.S. 888 (1945) ...........

Consolidated Turnpike Co. v. Norfolk & O.V.R. Co., 228

U.S. 326, reh. den., 228 U.S. 596 (1913) ...........

Page

12

13

15

11

iv

Contents

Page

Copperweld Steel Co. v. Industrial Com., 324 U.S. 780 (1945), 7

Cox v. Valley Fair Corp., 83 N.J. 381, 416 A. 2d 809 (1980)

TEURURVENRdES sda De deesceccddseedcccvdcvesonecoon 7

Crane v. Hahlo, 258 U.S. 142 (1922) .......cseeeeeeeee 1]

Crescent Pk/Tenants Asso. v. Realty Eq. Corp. of N.Y., 58

ENED 4s Sie gib'vh cbc debe deldscevsesoe veacuye 10

Denny v. Bennet, 128 U.S. 489 (1888) ........... 0 eee. 1]

Dohany v. Rogers, 281 U.S. 362 (1930) ............005. 12, 14

Durley v. Mayo, 351 U.S. 277 (1956) .........eeeeues 8

East New York Savings Bank v. Hahn, 326 U.S. 230 (1945)

i ttenva siete Cheese) 6ocnceerrinetisegues 12

Edelman v. California, 344 U.S. 357 (1953)............. 7

Fleming v. Fleming, 264 U.S. 29 (1924) ..........e0000: 1]

Gagnon v. Scarpelli, 411 U.S. 778 (1973)........000000 13

G.D. Searle & Company v. Cohn, 455 U.S. 404 (1982) :

De dN S ODEO CETED Do ved eodecreceDoseeocecouseoeeses ]

Gibbes v. Zimmerman, 290 U.S. 326 (1933) ........... 12, 14

Gladstone Realtors v. Bellwood, 441 U.S. 91 (1979) ..... 9

Greenholtz v. Nebraska Penal Inmates, 442 U.S. | (1979)

v

Contents

Page

Hardware D. Mt. F. Ins. Co. v. Glidden Co., 284 U.S. 151

CFE E pe ccdccccccctvdesecesvetasessseeenteesedpvees 14

Hathorne v. Lovorn, 457 U.S. 255 (1982) ........00uees 7

Home Building and Loan Asso. v. Blaisdell, 290 U.S. 398

Gs op disbakenebbaccchscnstickwaWeeetsecneonens 12

Honeyman v. Hanan, 302 U.S. 375 (1937)..........+.. 12, 14

Horsman Dolls v. Unemployment Compensation Commission,

7N.J. 541, 82 A. 2d 177 (1951), appeal dismissed, 342

RA soa duh cb cde eed eeata be aleecideedaceehs <

Hortonville District v. Hortonville Education Asso., 426 U.S.

Ge CEs bo ved de Cawdtecncipcbocteeetecedaccesse 14

Hunt v. Washington Apple Advertising Commission, 432 U.S.

Se Ce CRs nod edb bad cake Cans stkbhnedacuccetusiwne 9

Ingraham v. Wright, 430 U.S. 651 (1977)......00ccee0e: 13

Jones v. Union Guano Co., 264 U.S. 171 (1924)........ 13

Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922) ........ 11

Lindsey v. Normet, 405 U.S. 637 (1976).........000uees 13

Louisiana v. Pilsbury, 105 U.S. 278 (1882) ............. 11

Lynch v. New York, 293 U.S. $2 (1934) ............05- 8

Mental Hygiene Dept. of Cal. v. Kirchner, 380 U.S. 194 (1965)

vi

Contents

Page

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)

Loon Cubans abaeer uss aWenbebeber eds 600d deneeceoete 11

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928) ;

Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229, 300

i OD BE Ces o's cad dwne cedvinseseveccstesenene 7

Peper v. Princeton University Bd. of Trustees, 77 N.J. 55,

SED A, BE GES CIGTE) oo csc cccccccicccscdoodcdecct 8

Plyler v. Doe, 457 U.S. 202 (1982) .......ceeeeeeeeeees 12

Schwelker v. McClure, 456 U.S. 188 (1982)............. 14

Stembridge v. Georgia, 343 U.S. 541 (1952) ............ 7

Street v. New York, 394 U.S. 576 (1969) .........55505 6

Veix v. Sixth Ward Bldg. and Loan Asso. of Newark, 310

SL EME cc teewccensdstececbarhveseaes dawes 11

Warth v. Seldin, 422 U.S. 490 (1975) ........ccceeeeees 10

Webb v. Webb, 451 U.S. 493 (1981)... ... cece cece eens 6

Wick v. Chelan Electric Co., 280 U.S. 108 (1929)....... 9

Williams v. Georgia, 349 U.S. 375 (1955).........0000es 7

Wood v. Lovett, 313 U.S. 361 (1941) ....... eee eens 11

vii

Contents

Page

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562

MELE CS colnet adededednws cies voesonvece 9

Zadig v. Baldwin, 166 U.S. 485 (1897) ....... ccc ce uuee 3, 8

Zac ¥. King, 260 U.S. 174 (1922) 0.0. cccccccccccscess 9

Statutes Cited:

EEE Nvcboccceccsoccesesscccocens i, 2, 3, 4, $

ES M EEIED oo dc cccescevccccccoocccesess 13

N.J. Stat. Ann. §§46:8B-1 et seq. (West, 1983)...... 5, 10, 14

Constitution Cited:

ee errr rer er eee Peer 6, 10, 11

U.S. Const. Fourteenth Amendment ............ $, 12, 13, 14

i is obo nt se cacetecvscvcogsececout 2, 8

Rule Cited:

MET h arcs vcecvecsdcvcces vOsested i, 2, 3, 4, 8

No. 83-439

In The

Supreme Court of the Anited States

October Term, 1983

SIDNEY SILLER and SHIRLEY SILLER, his wife; IRVING

GAINES and CORALIE GAINES, his wife; MARSHALL

NATAPOFF and JANET NATAPOFF, his wife; FRANCIS

CLARK and LUCILLE CLARK, his wife; and JOEL KRAMER,

single,

Petitioners,

and

HARMON COVE CONDOMINIUM II ASSOCIATION, INC.,

Intervenor,

vs.

HARTZ MOUNTAIN ASSOCIATES, a corporation; HARMON

COVE I CONDOMINIUM ASSOCIATION, INC., a

corporation; and HARMON COVE RECREATION

ASSOCIATION, INC., a corporation,

Respondents.

BRIEF FOR RESPONDENT HARTZ MOUNTAIN

ASSOCIATES, INC. IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW JERSEY

CONSTITUTIONAL, STATUTORY AND RULE PROVISIONS

INVOLVED

U.S. Const. Art. I, §10, Cl. 1 and the Fourteenth

Amendment, §1 (in pertinent part) appears at page

3 of the petition for writ of certiorari.

N.J. Const. Art. I, §1:

‘*All persons are by nature free and independent,

and have certain natural and unalienable rights,

among which are those of enjoying and defending

life and liberty, of acquiring, possessing, and

protecting property, and of pursuing and obtaining

safety and happiness.’’

28 U.S.C. §1257(3):

‘*By writ of certiorari, . . . where the validity of

a State statute is drawn in question on the ground

of its being repugnant to the Constitution, . . . of

the United States, ...’’

N.J. Stat. Ann. §§46:8B-1 ef seg., appears at page

54a of the appendix to the petition for writ of

certiorari.

U.S. Sup. Ct. R. 17.1(b), (c):

**1, A review on writ of certiorari is not a

matter of right, but of judicial discretion, and will

be granted only when there are special and

important reasons therefor. 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 the decision of another

state court of last resort or of a federal

court of appeals.

3

(c) When a state court or a federal court

of appeals has decided an important

question 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.’’

STATEMENT OF THE CASE

This respondent hereby adopts the Statement of the Case

set forth in the opinion of the Supreme Court of New Jersey and

appearing at pages 2a-4a of the appendix to the subject petition

for writ of certiorari.

This respondent also regards pages la-4la and 47a-53a of

the appendix to the subject petition for certiorari as a complete

and accurate reproduction of those portions of the record below

which are material to the consideration of the questions presented

for review, while regarding the oral arguments of counsel for

petitioners, albeit accurately transcribed at pages 42a-46a of said

Appendix, as forming no part of the record for the purpose of

determining whether or not a federal question had been timely

and properly raised below. See Zadig v. Baldwin, 166 U.S. 485

(1897).

This respondent makes no independent reference to the record

below as material to the questions presented for review inasmuch

as it is unaware of any recitation or discussion of a federal question

contained therein.

SUMMARY OF ARGUMENT

1. This Court does not have jurisdiction pursuant to 28

U.S.C. §1257(3) because no federal question was decided below,

the record revealing that petitioners did not raise a federal question

in a timely and proper manner and that none was expressly or

impliedly addressed .y any of the courts below, each of which

grounded their respective judgments in opinions which interpreted

and applied the subject state statute as if its presumption of validity

had never been challenged.

Petitioners did not forge any challenge to the constitutional

validity of the statutory construction favored by respondents while

before the trial court, and those challenges supposedly couched

in their briefs to the New Jersey Appellate and Supreme Courts

invoke the authority of the New Jersey Constitution as readily

as they do the Constitution of the United States.

Thus, to the extent that a judgment which silently applies

a prima facie presumptively valid statute would otherwise be

deemed by this Court to have decided in favor of the kinetic

constitutional validity of said statute by necessary implication,

this respondent then contends that the judgment of the New Jersey

Supreme Court in the case at bar in fact rested upon adequate

and independent state grounds in that it either treated the question

of constitutional validity as having been waived by lack of timely

presentation at the trial level in accordance with legitimately and

consistently applied state procedure, or as having been raised within

the context of New Jersey constitutional provisions governing but

not prohibiting the intended application of the statute.

2. Assuming that this Court has jurisdiction pursuant to 28

U.S.C. §1257(3), there are no special and important reasons to

compel this Court to exercise its judicial discretion in favor of

review pursuant to U.S. Sup. Ct. R. 17 because the New Jersey

Supreme Court has not decided a federal question in a way which

conflicts with decisions of other state courts of last resort or with

applicable decisions of this Court.

The decision of the New Jersey Supreme Court in the case

at bar, like those of other state courts of last resort having had

occasion to consider the standing of individual condominium

owners versus condominium associations, was based upon an

interpretation of state statutory provisions and court rules

governing local procedure in such cases made and provided. Like

the New Jersey Supreme Court, none of the other state courts

of last resort expressed their decisions in terms of federal

constitutionality and the conflict among them, if any, arises purely

from legitimate differences in the exercise of legislative police

powers and judicial supervisory powers peculiar to each of the

states which this Court has repeatedly recognized as consistent

with the Due Process and Equal Protection Clauses of the

Fourteenth Amendment to the United States Constitution; such

that petitioners’ claims of constitutional violations do not rise

to the level of substantiality necessary to compel review by this

Court.

REASONS FOR DENYING THE WRIT

I.

THIS COURT DOES NOT HAVE JURISDICTION

PURSUANT TO 28 U.S.C. §1257(3) BECAUSE THE DECISION

BELOW RESTS UPON ADEQUATE AND INDEPENDENT

STATE GROUNDS.

The subject petition for certiorari dictates that this Court’s

power to review the final judgment rendered by the Supreme Court

of New Jersey in the case at bar depends exclusively upon whether

or not the validity of the New Jersey Condominium Act, N.J.

Stat. Ann. §§46:8B-1 ef seg. (West, 1983), was drawn in question

on the ground of its being repugnant to the Constitution of the

United States. 28 U.S.C. §1257(3) (LCP, 1977). Although no

particular form of words or phrases is essential to obtain this

end, the record must clearly show that a claim of invalidity and

the ground therefor was brought to the attention of the state court

with fair precision and in due time. New York ex rel. Bryant v.

Zimmerman, 278 U.S. 63, 67 (1928); Street v. New York, 394

U.S. 576, 580 (1969); Webb v. Webb, 451 U.S. 493, 496-499 (1981).

Such was not the case here.

Petitioners’ own references to the record below fail to clearly

demonstrate that their present claims of constitutional infirmities

were brought to the attention of the trial court with fair precision

(40a). Indeed, the trial court opinion directly responded to

petitioners’ broadly couched argument by focusing upon the proper

construction to be given to the Condominium Act and not upon

whether such construction was in any way repugnant to the

Constitution of the United States (27a-28a), and the judgment

of the trial court was affirmed by the Appeilate Division per curiam

on opinion below (18a) despite the fact that petitioners had made

reference to ‘‘equal rights’’ and ‘‘due process of law’’ in their

appellate brief (47a-50a).

Petitioners’ first legitimate reference to the Constitution of

the United States was coupled with the New Jersey Constitution

in a portion of its petition to the New Jersey Supreme Court

wherein due process and equal protection were briefly discussed

as protections provided by both Constitutions (52a). No express

or implied reference to the constitutional provision prohibiting

state laws impairing the obligation of contracts, U.S. Const. Art.

I, §10, cl. 1, was ever placed upon the record below.

Had the New Jersey Supreme Court expressly decided that

the New Jersey Condominium Act passed United States

constitutional muster, then the question whether petitioners had

timely and properly raised the issue on the record below would

be of no moment. Charleston Federal Savings & Loan Asso. v.

Alderson, 324 U.S. 182, reh. den., 324 U.S. 888 (1945). However,

the conspicuous absence of any reference to the Constitution of

the United States in the decision of that Court causes the method

of petitioners’ constitutional challenges to bear heavily upon the

critical question whether the New Jersey Supreme Court based

its decision upon adequate and independent state grounds which

would thereby deprive this Court of jurisdiction. See, e.z.,

Stembridge v. Georgia, 343 U.S. 541 (1952).

It is a well-settled principle of New Jersey procedural law

that appellate courts will decline to consider questions or issues

not properly presented to the trial court when an opportunity

for such a presentation is available, unless the questions so raised

on appeal go to the jurisdiction of the trial court or concern matters

of great public interest. Nieder v. Royal Indemnity Insurance Co.,

62 N.J. 229, 234, 300 A. 2d 142 (1973); see, e.g., Cox v. Valley

Fair Corp., 83 N.J. 381, 386-387, 416 A. 2d 809 (1980).

A state procedural rule which forbids the raising of federal

questions at late stages in the case, or by any other than a

prescribed method, has been recognized as a valid exercise of state

power. Williams v. Georgia, 349 U.S. 375, 382-383 (1955). Indeed,

the failure to present a federal question in conformance with state

procedure constitutes an adequate and independent state ground

of decision barring review in this Court, so long as the state has

a legitimate interest in enforcing its procedural rule. Michigan

v. Tyler, 436 U.S. 499, 512 at n.7 (1978); Hathorne v. Lovorn,

457 U.S. 255 (1982).

It should be clear, then, that this Court is without power

to decide whether petitioners’ constitutional rights have been

violated since those rights were not raised in accordance with

established New Jersey practice, see, e.g., Copperweld Steel Co.

v. Industrial Com., 324 U.S. 780 (1945); Edelman v. California,

344 U.S. 357, 358-359 (1953), the failure of the New Jersey

Supreme Court to discuss the same calling for this Court’s exercise

-

of judicial discretion in favor of the abstentionary presumption

that the judgment in this case rested upon state rather than federal

grounds. Cf., Lynch v. New York, 29? U .. $2 (1934); Durley

v. Mayo, 351 U.S. 277 (1956); Black v. Cutter Laboratories, 351

U.S. 292 (1956).

A parallel presumption pertains where, as here, petitioners’

ultimate references to due process and equal protection were made

in connection with both the United States and New Jersey

Constitutions, see N.J. Const. Art. I, Sec. 1, cl. 1; see generally,

Horsman Dolls v. Unemployment Compensation Commission,

7N.J. 541, 82 A. 2d 177 (1951), appeal dismissed, 342 U.S. 890;

Peper v. Princeton University Bd. of Trustees, 77 N.J. 55, 389

A. 2d 465 (1978) and the judgment of the New Jersey Supreme

Court, by its silence, could have as readily rested upon the latter

as upon the former. C/., Zadig v. Baldwin, 166 U.S. 485 (1897);

Consolidated Turnpike Co. v. Norfolk & O.V.R. Co., 228 U.S.

326, reh. den., 228 U.S. 596 (1913); Mental Hygiene Dept. of

Cal. v. Kirchner, 380 U.S. 194 (1965).

I.

THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING REVIEW PURSUANT TO U.S.

SUP. CT. R. 17.

A. There is no interstate conflict of decisions about a federal

question.

Just as jurisdiction arises only if implications of constitutional

validity must be derived from the New Jersey Supreme Court

judgment otherwise silent on the subject, U.S. Sup. Ct. R. 17.1(b)

can be invoked only if contrary implications are necessarily derived

from the equally silent judgments of the other state courts of last

resort relied upon by petitioners (Petition at pp. 19-21); that rule

regarding such conflicts in constitutional decision-making as

material to the question whether or not there exist special and

important reasons for a discretionary gram of review by this Court.

However, petitioners’ argument in favor of the existence of

such a conflict cannot withstand analysis, for each of those state

courts which gave standing to condominium unit owners expressly

did so because they found that their respective state rules of local

procedure so provided and not because a contrary interpretation

of such rules would have proven unconstitutional. Reasoning of

the latter respect would have required equal expression and would

have, in any event, transcended those boundaries of judicial review

firmly established by the immutable doctrine of abstention

(citations too numerous to mention).

B. The New Jersey Supreme Court has not decided a substantial

federal question unsettled by or in conflict with decisions of this

Court.

This Court’s power over state courts is confined to the

correction of erroneous adjudications of federal rights. It is not

in the business of rendering advisory opinions. Zacchini v. Scripps-

Howard Broadcasting Co., 433 U.S. 562, 566 (1977). Jurisdiction

should therefore be exercised only when the federal questions

presented for review are real and substantial, Consolidated

Turnpike Co. v. Norfolk & O.V.R. Co., 228 U.S. 596 (1913);

Zucht v. King, 260 U.S. 174 (1922); Wick v. Chelan Electric Co.,

280 U.S. 108 (1929), characteristics not apparent herein.

An individual may lack standing under the prudential

principles by which the judiciary seeks to limit access to the courts

to those litigants best suited to assert a particular claim. Gladstone

Realtors v. Bellwood, 441 U.S. 91, 99-100 (1979). For example,

in Hunt v. Washington Apple Advertising Commission, 432 U.S.

333 (1977), it was held that an association has standing to bring

10

suit on behalf of its members when (1) its members would

otherwise have standing to sc in their own right; (2) the interests

it seeks to protect are germane to the organization’s purpose; and,

(3) neither the claim asserted nor the relief requested requires the

participation in the lawsuit of each of the individual members,

432 U.S. at 342-343, citing Warth v. Seldin, 422 U.S. 490, 499

(1975).

It was just such a policy of judicial procedure which embodied

the opinion in Crescent Pk. Tenants Asso. v. Realty Eq. Corp.

of N.Y., 58 N.J. 98 (1971) and which the New Jersey Supreme

Court found to be favorably inherent in the New Jersey

Condominium Act (9a). Thus, its judgment in the case at bar

can hardly be said to pose a substantial conflict with the decisions

of this Court or to raise a federal question of sufficient novelty

or import to warrant this Court’s attention.

i. The adoption of the New Jersey Condominium Act did

not impair the obligations of contract between petitioners and

this respondent.

Ignoring for a moment the fact that the impairment of

contractual obligations was never raised in arguments anywhere

below, review and application of the case law interpreting U.S.

Const. Art. I, Sec. 10, cl. 1, not only reveals the frivolous nature

of such a claim, but serves as an important prelude to the

consideration of due process and equal protection principles.

Because the ownership of New Jersey condominiums is

governed by the statute under which this respondent planned,

designed and developed the subject Harmon Cove complexes,

petitioners’ rights thereto perforce arose subsequent and subject

to said statute. See Petition at page 3-4; N.J. Stat. Ann., §§46:8B-1

et seq.

11

However, the inhibition of the Contract Clause is wholly

prospective, i.e., only those contracts in existence when the hostile

law is passed are protected from its effect, Denny v. Bennet, 128

U.S. 489 (1888); Allied Structural Steel Co. v. Spannaus, 438 U.S.

234 (1978), whereas contracts made subsequent to an enactment

of a statute are subject to its terms, see Denny v. Bennet, supra;

Blackstone v. Miller, 188 U.S. 189 (1903); Levy Leasing Co. v.

Siegel, 258 U.S. 242 (1922); Wood v. Lovett, 313 U.S. 361 (1941),

and to the construction given them by the highest state court.

Louisiana v. Pilsbury, 105 U.S. 278 (1882).

Moreover, a vested property right of statutory origin is not

a contract right subject to the Contract Clause, Crane v. Hahilo,

258 U.S. 142 (1922), and purchases governed by statute are not

impaired by amendments to that statute, Veix v. Sixth Ward Bidg.

and Loan Asso. of Newark, 310 U.S. 32 (1940); Merrion vy.

Jicarilla Apache Tribe, 455 U.S. 130 (1982). Nor are contractual

obligations entered into on the faith of a certain construction of

a statute impaired by a different construction given to the statute

by the state’s highest court. Fleming v. Fleming, 264 U.S. 29

(1924).

Thus, petitioners’ present claims of contract impairment are

contrary to this Court’s controlling case law and to the New Jersey

Supreme Court’s construction of the Condominium Act itself,

whereby the protection of common element ownership rights

created and arising thereunder is exclusively entrusted to the

statutorily mandated associations designed for such purposes

(Sa-14a).

Indeed, when a widely diffused public interest has become

enmeshed in a network of multitudinous private arrangements,

the authority of the state to safeguard the vital interests of its

people is not to be gainsaid by abstracting one such arrangement

from its public context and treating it as though it were an isolated

12

private contract constitutionally immune from impairment. East

New York Savings Bank v. Hahn, 326 U.S. 230, 232 (1945); see,

e.g., Home Building and Loan Asso. v. Blaisdell, 290 U.S. 398

(1934); Honeyman v. Hanan, 302 U.S. 375 (1937).

ii. Petitioners have not been deprived of equal protection

of law.

The Equal Protection Clause directs that all persons similarly

circumstanced should be treated alike, but does not require that

things which are different in fact or opinion be treated in law

as if they were the same. The initial discretion to determine what

is different and what is the same resides in the Legislature of the

states. A legislature must have substantial latitude to establish

classifications that roughly approximate the nature of the problem

perceived, that accommodate competing concerns, both public

and private, and that account for limitations on the practical ability

of the state to remedy every ill. In applying the Equal Protection

Clause to most forms of state action, this Court thus seeks only

the assurance that the classification at issue bears some fair

relationship to a legitimate public purpose. Plyler v. Doe, 457

U.S. 202 (1982).

As construed by the New Jersey Supreme Court, the New

Jersey Condominium Act is one such form of legitimate state

action inasmuch as it rationally distinguishes condominium

common element ownership from purely individual forms of real

estate ownership for the purpose of promoting the economical,

expedient, judicial administration and resolution of disputes arising

out of such ownership (8a-14a), for the Equal Protection Clause

does not exact uniformity of procedure. The legislature may

classify litigation and adopt one type of procedure for one class

and a different type for another. See Dohany v. Rogers, 281 U.S.

362, 369 (1930); Gibbes v. Zimmerman, 290 U.S. 326 (1933).

13

For example, in G.D. Searle & Company v. Cohn, 455 U.S.

404 (1982), it was held that N.J. Stat. Ann. §2A:14-22, which

tolls the limitation period for an action against a fureig..

corporation which is amenable to jurisdiction but has no agent

for service in New Jersey, does not violate the Equal Protection

Clause because of the existence of a rational basis for treating

such corporations differently from others due to the difficulty

in effectuating lawful service of process upon them. See also, e.g.,

American Motorists Ins. Co. v. Starnes, 425 U.S. 637 (1976)

(upholding venue statute); Lindsey v. Normet, 405 U.S. 56 (1972)

(upholding statute limiting time within which to bring actions based

upon out-of-state judgments); Jones v. Union Guano Co., 264

U.S. 171 (1924) (upholding conditions precedent to institution

of certain types of litigation).

iii. Petitioners have not been deprived of due process of law.

Due process is not a technical conception with a fixed content

unrelated to time, place and circumstances. Representing a

profound attitude of fairness, due process is compounded of

history, reason, the past course of decisions and strict confidence

in democracy. Jngraham v. Wright, 430 U.S. 651, 6/5 (1977).

It is not so rigid as to require that the significant interests in

informality, flexibility and economy must always be sacrificed.

Gagnon v. Scarpeili, 411 U.S. 778 (1973).

The Due Process Clause raises no impenetrable barrier to

the taking of a person’s possessions. Procedural due process rules

are meant to protect persons not from deprivations, but from

the mistaken or unjustified deprivation of life, liberty or property.

Thus, in deciding what process constitutionally is due in various

contexts, the Court repeatedly has emphasized that procedural

due process rules are shaped by the risk of error inherent in the

truth finding process. Carey v. Piphus, 435 U.S. 247, 259 (1978);

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979).

14

Due process is a term that negates any concept of inflexible

procedures universally applicable to every imaginable situation.

Dete; ining what process is due in a given setting requires the

Court to take into account the individual’s stake in the decision

at issue as well as the state’s interest in a particular procedure

for making it. Hortonville District v. Hortonville Education Asso.,

426 U.S. 482, 494 (1976); Schwelker v. McClure, 456 U.S. 188

(1982); see, e.g., Benz v. New York State Thruway Authority,

369 U.S. 147 (1962).

er

The Due Process Clause does not guarantee to the citizen

of a state any particular form or method of state procedure. Its

requirements are satisfied if he has reasonable notice and

opportunity to be heard and to present his claim or defense, due

regard being had to the nature of the proceeding and the character

of the rights which may be affected by it. Dohany v. Rogers,

281 U.S. 362, 369 (1930); Gibbes v. Zimmerman, 290 U.S. 326

(1933); Honeyman v. Hanan, 302 U.S. 375 (1937).

The procedure by which rights may be enforced and wrongs

remedied is peculiarly a subject of state regulation and control.

In the exercise of that power and to satisfy a public need, a state

may choose the remedy. best adopted, in the legislative judgment,

to protect the interests concerned, provided its choice is not

unreasonable or arbitrary and the procedure it adopts satisfies

the requirements of reasonable notice and opportunity to be heard.

The requirements of the Fourteenth Amendment are met if a

substitute remedy is substantial and efficient. Hardware D. Mt.

F. Ins. Co. v. Glidden Co., 284 U.S. 151, 158-159 (1931).

According to the New Jersey Supreme Court, the New Jersey

Condominium Act, N.J. Stat. Ann. §46:8B-1, ef seqg., in

conjunction with other applicable state procedural rules,

collectively assigns condominiuni common element owner redress

rights to the responsibility of a single association specifically

15

designed to safeguard such rights, while providing no bar to an

owner’s challenge to the exercise of that responsibility by the

association, nor to the institution of individual suits based upon

the exclusive ownership of a condominium unit (Sa-16a). So

construed, the Act represents an exemplary accommodation of

both individual and state interests consistent with the aforestated

principles of due process and presents no substantial federal

question requiring review by this Court.

CONCLUSION

For all of the foregoing reasons, this respondent respectfully

requests that the subject petition for writ of certiorari be denied

for lack of jurisdiction, declined for lack of special and important

reasons or summarily dismissed for failure to satisfactorily

demonstrate a violation of the United States Constitution.

Respectfully submitted,

HERMAN JEFFER

JEFFER, HOPKINSON

& VOGEL

Attorneys for Respondent,

Hartz Mountain Associates, Inc.

PATRICK X. AMORESANO

On the Brief