# Opposition — Siller v. Hartz Mountain Associates

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 961

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0437%3A2. Public record. Not legal advice.