# Amicus Curiae Brief — PFZ Properties, Inc. v. Rodriguez

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0171%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 257

## Text

upreme Court, U.S.

i’ i - I D
| DEC 27 19
No. 91-122 91
pei CLERK
In The

Supreme Court of the United States
October Term, 1991
S

PFZ PROPERTIES, INC.,

Petitioner,

RENE ALBERTO RODRIGUEZ, et al.,

Respondents.

7.

On Writ Of Certiorari To The
United States Court Of Appeals
For The First Circuit -

.

BRIEF OF THE INSTITUTE FOR JUSTICE AS AMICUS
CURIAE IN SUPPORT OF PETITIONER

¢

Witutam H. Me tor, III

*CuINT BOLicK

JONATHAN W. EmMorp

Scott G. BuLLoOcKk

Institute for Justice

1001 Pennsylvania Avenue, NW
Suite 200 South

Washington, DC 20004

(202) 457-4240

Attorneys for Amicus Curiae

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

A

TABLE OF CONTENTS

Page
INTEREST OF AMICUS CURIAE .................. 1
STATEMENT OF THE CASE..............ccceeees: 2
SUMMARY OF ARGUMENT.....................08 3
I SURE chk os eas aaa dena es BVAN we ees 0 5

I. A CORE PURPOSE OF THE FOURTEENTH
AMENDMENT IS TO PROTECT PRIVATE
PROPERTY RIGHTS AGAINST ARBITRARY
AND OPPRESSIVE ACTIONS OF STATE OFFI-
erento cuwaraeecaersneheeeed oe eens ine ys 5

Il. A PATTERN OF DECEPTION, DELAY, AND
POLITICALLY MOTIVATED. MANIPULATION
OF THE BUILDING PERMIT PROCESS STATES
A CLAIM UNDER THE FOURTEENTH
AMENDMENT AND 42 U.S.C. § 1983......... 9

A. The Dichotomy Between Property Rights
and Other Rights is a False One.......... 9

B. The Facts As Alleged State a Substantive
Due Process Cause of Action.............. 12

C. The Substantive Due Process Claim Alleged
Here is Complementary to, But Not Duplica-
tive of, a Takings Claim Under the Fifth
ES rhe ae f6skke tie ek ada elenssees 15

se cae ceuwd nen anes ce ee ae ka eee CONS 18

ii

TABLE OF AUTHORITIES
Page(s)

Cases

Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d
1029 (5th Cir. 1980), rev'd in part and remanded,
455 U.S. 283 (1982), opinion extended, 713 F.2d

1S Ga Cae Bes 66 ic citiececdecn eee 8
Amsden v. Moran, 904 F.2d 748 (1st Cir. 1990), cert.
Gentea, 111 G42. TID GOR ohddccaxasnen eee 15

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988)
0000 cee 6s 6b 6ORs babe bees eee eee 14, 15, 16, 17

Bello v. Walker, 840 F.2d 1124 (3rd Cir.), cert. denied,

GOB UD. Get CHRP 6. 0s sc cccscsveceseeeeee 13, 14
Brady v. Town of Colchester, 863 F.2d 205 (2nd Cir.

| Pree rrerr rr ee 13
Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823)..... 6
Daniels v. Williams, 474 U.S. 327 (1986)........... 12, 13
Davidson v. Cannon, 474 U.S. 344 (1986) .......... 13, 16
First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ...... 16
Hawaii Housing Authority v. Midkiff, 467 U.S. 229

| PS rr 17
Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.

rarer 14
Lochner v. New York, 198 U.S. 45 (1905)............... 8

Moore v. City of East Cleveland, 431 U.S. 494 (1977) .... 11
Nebbia v. New York, 291 U.S. 502 (1934).............. 13

New Burnham Prairie Homes, Inc v. Village of Burn-
ham, 910 F.2d 1474 (7th Cir. 1990)................. 10

ili

TABLE OF AUTHORITIES - Continued

Page(s)

PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28 (Ist
eee SG Unt sev evecececsccecces 9, 10
Poe @ Gee, oer US. O97 (1961)............6.6---. 11

Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882
F.2d 1398 (9th Cir. 1989), cert. denied sub nom.
Doody v. Sinaloa Lake Owners Ass‘n, 110 S.Ct.

EE POTEET ET TEE 11, 15, 17
Slaughter-House Cases, 83 U.S. 36 (1873) .............. 7
United States v. General Motors, 323 U.S. 373 (1945).... 11
Yick Wo v. Hopkins, 118 U.S. 356 (1886)......... 7, 8, 17
Youngberg v. Romeo, 457 U.S. 307 (1982) ............. 13
CONSTITUTIONS
U.S. Constitution, Amendment XIV ............. passim
STATUTES
es cscs ccc ssvencesesss ~~ ta
IE 5 nc cc ccc csssenacsccccccvess 6
NS EEE ee eee 8

MISCELLANEOUS

H. Belz, Emancipation and Equal Rights: Politics and

Constitutionalism in the Civil War Era (1978)........ 6
C. Bolick, Unfinished Business: A Civil Rights Strat-
egy for America’s Third Century (1990) .............. 7

Civil Rights and the American Negro (A. Blaustein
and R. Zangrando, eds. 1968)...................+-. 5

iv

TABLE OF AUTHORITIES - Continued

Page(s)
M. Curtis, No State Shall Abridge (1986) .............. 7
R. Higgs, Competition and Coercion (1977)............. 5
G. Myrdal, An American Dilemma (1944).............. 5
Roback, Southern Labor Law in the Jim Crow Era:
Exploitative or Competitive?, 51 Univ. of Chicago
Ry Ct WE SUE vO een suVonscececeucdunkaanel ss‘ 5
B. Siegan, Economic Liberties and the Constitution
SUNY 6-0). 40 ba phd dNe ens ceeencesuuasseReanbeusebanens< 7
Siegan, “Economic Liberties and the Constitution:
Protection at the State Level,” in Economic Liber-
ties and the Constitution (J. Dorn and H. Manne,
eg PE Peer rr Fey fe eo ieee 6

No. 91-122
.

In The

Supreme Court of the United States

October Term, 1991
. m

PFZ PROPERTIES, INC.,

Petitioner,

RENE ALBERTO RODRIGUEZ, et al.,

Respondents.

S

On Writ Of Certiorari To The
United States Court Of Appeals
For The First Circuit

e

BRIEF OF THE INSTITUTE FOR JUSTICE
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

¢
INTEREST OF AMICUS CURIAE

— rt...

The Institute for Justice is a public interest law center
committed to strengthening three constitutional pillars of
a free society: economic liberty, private property rights,
and the free marketplace of ideas.

This case involves the viability of the “substantive
due process” doctrine as a restraint on oppressive and
arbitrary government actions that significantly impair the
exercise of an individual’s private property rights. The
Institute for Justice represents individuals across the

nation whose liberty and property rights have been vio-
lated by abusive government actions. The outcome in this
case is of direct and immediate concern to the Institute’s
clients and to its mission of strengthening the constitu-
tional protections of economic liberty and private prop-
erty rights. We believe our expertise in this area of law
can provide the Court with context and historical per-
spective that may be helpful in resolving the important
legal issues at stake.

STATEMENT OF THE CASE

The district court and court of appeals held that
petitioner failed to state a substantive due process claim
under the Fourteenth Amendment and 42 U.S.C. § 1983
for the delay and denial of building permits by the
respondent government officials. Review is limited to the
question “Whether an arbitrary, capricious or illegal
denial of a construction permit to a developer by officials
acting under color of state law can state a substantive due
process claim under 42 U.S.C. § 1983.”

Since this petition involves a dismissal for failure to
state a cause of action, petitioner’s allegations are taken
as true. Petitioner alleges that respondent officials have
intentionally engaged in a 15-year pattern of delay,
deception, and politically motivated manipulation of the
building permit process, with the ultimate consequence
of denying petitioner the opportunity to develop his
property.

In 1976, the Planning Board of Puerto Rico adopted a
resolution approving a development project proposed by

petitioner. The proposal was forwarded to the Regula-
tions and Permits Authority (ARPE), which performs
ministerial functions and issues building permits. In Feb-
ruary 1981, ARPE approved petitioner’s development
plans by formal resolution. Petitioner filed construction
drawings as required in February 1982. Thereafter, the
project encountered years of unexplained delay. In Febru-
ary 1987, the administrator of ARPE prepared a letter
establishing further conditions for the proposed develop-
ment, but his successor as administrator secretly locked
the letter in a drawer where it remained until disclosed in
discovery in this lawsuit. The reason for the delay and
deception was political opposition to the proposed devel-
opment.

In August 1988, after petitioner filed his initial action
in this matter, ARPE finally informed petitioner it would
not issue a construction permit and rescinded the prior
resolutions approving the project. The reasons given for
these actions were wilfully false. Review of these actions
by Puerto Rico courts is discretionary, and the courts
declined to exercise such discretionary review in this
case. Petitioner filed the present amended complaint in
October 1988. The district court granted respondent's
motion to dismiss, and the court of appeals affirmed that
decision.

SUMMARY OF ARGUMENT

The Fourteenth Amendment was enacted to protect
individuals in their lives, liberty, and property against
oppressive and arbitrary actions of state governments.

—_—

During the Reconstruction era in which the amendment
was adopted, state officials enforced laws that were
faciaily reasonable in a manner that nonetheless had the
intent and effect of depriving individuals of their rights.
So today do state and local officials sometimes manipu-
late the machinery of government in a manner offensive
to the Fourteenth Amendment's core purpose.

Substantive due process protects liberty and property
by ensuring that actions of state officials that have the
intent and effect of diminishing liberty or property must
rationally serve a legitimate government purpose even if
those actions are taken in conformity with appropriate
procedures. This doctrine leaves wide latitude for the
state’s police powers, even if exercised in mistaken or
misguided fashion. Substantive due process thus protects
against only the most outrageous abuses of government
power; but the doctrine is nonetheless vitally important,
since it provides one of the few substantive restraints on
oppressive actions of state officials.

The ruling below would extinguish this protection in
the context of property rights. Petitioner has alleged a
pattern of pernicious and abusive actions by government
officials that have prevented him from developing his
property. The ruling by the court below that these allega-
tions do not even state a cause of action under the Four-
teenth Amendment and 42 U.S.C. § 1983 is a serious
departure from the jurisprudence of this Court and other
circuits, as well as from the Fourteenth Amendment's
clear objectives. If upheld, the decision below would have
the effect of singling out property rights for non-protec-
tion under substantive due process, thereby depriving

.ndividuals of an important constitutional safeguard of
their property rights.

°

ARGUMENT

I. A CORE PURPOSE OF THE FOURTEENTH
AMENDMENT IS TO PROTECT PROPERTY
RIGHTS AGAINST ARBITRARY AND OPPRES-
SIVE ACTIONS OF STATE OFFICIALS

The southern states did not take lightly their defeat
in the Civil War. They determined that if they could not
perpetuate the institution of slavery as such, they would
maintain it as closely as practicable by denying to the
recently freed slaves the most basic rights of free individ-
uals.

The southern governments unleashed a torrent of
laws aimed at restricting freedom of contract, private
property rights, and the right to pursue trades and busi-
nesses. These measures included occupational licensing
laws, vagrancy laws, and “debt peonage” laws, many of
which were facially neutral but evil in intent and devas-
tating in effect. Together, they comprised a pervasive,
interlocking system of economic restraints designed to
maintain a servile labor supply and inhibit true emanci-
pation of blacks. See, e.g., G. Myrdal, An American
Dilemma 228-229 (1944); Civil Rights and the American
Negro 223-224 (A. Blaustein and R. Zangrando, eds.,
1968); R. Higgs, Competition and Coercion 7 and 134 (1977);
Roback, “Southern Labor Law in the Jim Crow Era:
Exploitative or Competitive?” 51 Univ. of Chicago L. Rev.
1161, 1163-1164 (1984).

Congress responded to these abuses by passing the
Civil Rights Act of 1866, which was designed, in the
words of its floor manager, Rep. James F. Wilson, to
secure “the absolute rights of individuals, such as ‘the
right of personal security, the right of personal liberty,
and the right to acquire and enjoy property.’ ” Blaustein
and Zangrando at 224-225. The act was quite specific in
guaranteeing to all citizens the right to

make and enforce contracts, to sue, be parties,
and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal prop-
erty, and to full and equal benefit of all laws
[for] the security of persons and property... .

President Andrew Johnson vetoed the act on the
grounds that Congress lacked authority to enact it.
Though Congress overrode the veto, it moved at once to
safeguard the act’s provisions by “constitutionalizing”
them in the Fourteenth Amendment. See Siegan, “Eco-
nomic Liberties and the Constitution: Protection at the
State Level,” in Economic Liberties and the Judiciary 137-150
(J. Dorn and H. Manne, eds., 1987). The amendment’s
framers “viewed the trilogy of privileges and immunities,
due process, and equal protection of the laws as a caption
for the rights enumerated in the Civil Rights Act [of
1866].” H. Belz, Emancipation and Equal Rights: Politics and
Constitutionalism in the Civil War Era 122 (1978). The
amendment’s framers repeatedly defined the substantive
content of these provisions by reference to Justice Bush-
rod Washington's decision in Corfield v. Coryell, 6. F. Cas.
546, 551-552 (C.C.E.D. Pa. 1823), which included among
the “fundamental” rights of citizens “the enjoyment of
life and liberty, with the right to acquire and possess

property of every kind, and to pursue and obtain happi-
ness and safety, subject, nevertheless, to such restraints as
the government may justly prescribe for the general good
of the whole.” See Slaughter-House Cases, 83 U.S. 36, 75-76;
id. at 97-98 (Field, J., dissenting); id. at 114-118 (Bradley,
J., dissenting).' Congress subsequently enacted the Civil
Rights Act of 1871, creating a private cause of action,
codified as 42 U.S.C. § 1983, for deprivations of these
rights inflicted “under color of state law.”

This Court traditionally has protected property rights
and economic liberty under the due process and equal
protection clauses. The facts presented in Yick Wo v. Hop-
kins, 118 U.S. 356 (1886), are paradigmatic of the abuses
the Fourteenth Amendment was intended to remedy. In
that case, the San Francisco city government enacted an
ordinance requiring licenses, granted at the discretion of
the board of supervisors, for laundry businesses except
those in buildings made of brick or stone. Though the law
appeared benign, it was enforced to deny licenses to
Chinese entrepreneurs even though they “complied with
every reasonable condition demanded by any public
interest.” Id. at 366. Concluding that the power exercised
by the board of supervisors was “purely arbitrary, and
acknowledges neither guidance nor restraint,” the Court
struck down the city’s license denials as a violation of

' These rights were included among the “privileges or
immunities” of citizenship, but this clause of the Fourteenth
Amendment was eviscerated in the Slaughter-House Cases. This
decision is the subject of extensive criticism. See, e.g., C. Bolick,
Unfinished Business: A Civil Rights Strategy for America’s Third
Century 60-68 (1990); M. Curtis, No State Shall Abridge (1986); B.
Siegan, Economic Liberties and the Constitution 47-54 (1980).

due process and equal protection. The nature, theory, and
institutions of our government, the Court declared, “do
not mean to leave room for the play and action of purely
personal and arbitrary power.” Id. at 369-370.

The Court’s declaration in Yick Wo of what has come
to be the essence of substantive due process - that
oppressive government actions infringing on basic rights
are contrary to our constitutional system - continues to
have resonance today. Indeed, the proliferation at every
level of government of unelected bureaucrats? and regu-
latory agencies makes the exercise of government power
ever more susceptible to abuse and ever less accountable
through ordinary democratic processes.

The Fifth Circuit noted with alarm this propensity in
Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029 (5th
Cir. 1980), rev'd in part and remanded, 455 U.S. 283 (1982),
opinion extended, 713 F.2d 137 (5th Cir. 1983). In Aladdin's
Castle, the city government induced a comf .y to make a
major investment in a local business, only to then deny it
a business license. The court invalidated the city’s actions
as a violation of due process and equal protection, declar-
ing that

We certainly have no wish to challenge the legit-
imacy of many, even most of the statutes, ordi-
nances and regulations issued by the
innumerable legislatures and agencies in our
modern and complex society. The era of Lochner
v. New York, 198 U.S. 45 [1905], is happily long

* Respondent Rodriguez, administrator of respondent
ARPE, is a political appointee who serves at the pleasure of the
governor. P.R. Laws Ann., tit. 23, § 7Ic.

ended. Nevertheless, recognition of the multiple
problems and needs of our contemporary world
does not oblige us to discard the basic principles
of constitutional government to which we have
always been committed... .

It is not the courts alone who are bound to
respect these freedoms. Executives and legisla-
tures, from the nation’s capital to the smallest
village . . . are called upon by our Constitution
to respect, enforce and cherish these principles
of liberty and personal autonomy.

Id. at 1044-1046. Despite its modest sweep in curtailing
only those oppressive actions that fall clearly outside a
state’s legitimate police powers, the doctrine of substan-
tive due process is a vitally important safeguard protect-
ing the lives, liberty, and property of individuals.

Il. A PATTERN OF DECEPTION, DELAY, AND
POLITICALLY MOTIVATED MANIPULATION OF
THE BUILDING PERMIT PROCESS STATES A
CLAIM UNDER THE FOURTEENTH AMEND-
MENT AND 42 U.S.C. § 1983

A. The dichotomy between property rights and other
rights is a false one. The First Circuit in its decision below
acknowledges that “ ‘substantive due process prevents
“governmental power from being used for purposes of
oppression,” or “abuse of government power that shocks
the conscience,” or “action that is legally irrational in that
it is not sufficiently keyed to any legitimate state inter-
ests.” PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28,
31-32 (Ist Cir. 1991)(citations omitted). However, the
court appears to carve out a special exception to this

10

protection for the exercise of certain property rights,
holding as a matter of law that “refusals to issue building
permits do not ordinarily implicate substantive due pro-
cess.” Id. at 31. This is true, in the First Circuit’s view,
“le]lven where state officials have allegedly violated state
law or administrative decisions,” id., and even if such
violations are committed in bad faith. Id. at 32. This
doctrine of nonprotection of property development rights
allowed the court to conclude here that “[e]ven assuming
[respondent] engaged in delaying tactics and refused to
issue permits for the . . . project based on considerations
outside the scope of its jurisdiction under Puerto Rico
law, such practices, without more, do not rise to the level
of violations of the federal constitution” under substan-
tive due process. Id.

Although the court did not explain its rationale, the
only distinguishing factor between this case and other
cases in which similar abusive and oppressive actions of
government officials would trigger substantive due pro-
cess analysis is the species of rights involved - in this
case, the right to develop one’s property. Similarly, the
Seventh Circuit has created a special category for non-
protection of property rights under substantive due pro-
cess. New Burnham Prairie Homes, Inc. v. Village of Burn-
ham, 910 F.2d 1474 (7th Cir. 1990). Stating that “the
Supreme Court has yet to set the contours of any substan-
tive due process right with respect to property interests,”
id. at 1480 n.5, the Seventh Circuit held that in order to
state such a claim for the denial of a building permit, “in
addition to alleging that the decision was arbitrary or
irrational, ‘the plaintiff must also show either a separate

11

constitutional violation or the inadequacy of state law
remedies.’ ” Id. at 1481 (citation omitted).

The notion that property rights somehow do not rise
to the level of other rights with respect to substantive due
process protection has no support either in the decisions
of this Court or in the clear intent of the Fourteenth
Amendment. To the contrary, the preceding section illus-
trates that property rights were of foremost concern to
the amendment’s framers, who sought to protect those
rights against precisely the type of arbitrary and oppres-
sive interference at issue in this case.

Moreover, this Court has made clear that property
rights are not limited to mere ownership of property, but
the “right to possess, use, and dispose of it.” United States
v. General Motors, 323 U.S. 377-378 (1945). Indeed, as
Justice Harlan observed, the concept of due process
encompasses “a rational continuum which, broadly
speaking, includes a freedom from all substantial arbi-
trary impositions and purposeless restraints. ... ” Poe v.
Ullman, 367 U.S. 497, 543 (1961)(Harlan, J., dissent-
ing)(cited with approval in Moore v. City of East Cleveland,
431 U.S. 494, 502 (1977)(plurality)).

The Ninth Circuit has rejected the dichotomy sug-
gested by the court below. In Sinaloa Lake Owners Ass‘n v.
City of Simi Valley, 882 F.2d 1398 (9th Cir. 1989), cert.
denied sub nom. Doody v. Sinaloa Lake Owners Ass‘n, 110
S.Ct. 1317 (1990), the Ninth Circuit applied the same
substantive due process analysis it uses in police brutality
cases to allegations that local government officials mali-
ciously and unnecessarily violated private property

12

rights. In an opinion by Judge Alex Kozinski, the court
held that

the fourteenth amendment’s due process clause
protects property no less than life and liber-
ty... . To the extent that arbitrary or malicious
use of physical force violates substantive due
process, there is no principled basis for exemp-
ting the arbitrary or malicious use of other gov-
ernmental powers from similar constitutional
restraints.

Id. at 1408-1409. We urge the Court to adopt the Ninth
Circuit’s uniform approach to substantive due process
analysis as the rule most consistent with the theory of
rights embraced by the Fourteenth Amendment, and with
the overwhelming weight of precedent as discussed
below.

B. The facts as alleged state a substantive due process
cause of action. This Court has established the contours of
substantive due process scrutiny in a series of cases. In
Daniels v. Williams, 474 U.S. 327, 331 (1986), this Court
observed that “by barring certain government actions
regardless of the fairness of the procedures used to
implement them,” substantive due process “serves to
protect governmental power from being ‘used for pur-
poses of oppression’ .. . ” (citation omitted). The Court
noted that “[h]istorically, this guarantee of due process
has been applied to deliberate decisions of government
officials to deprive a person of life, liberty, or property”
(emphasis in original), in such contexts as real estate
assessment, driver’s license suspension, student corporal
punishment, and intentional destruction of a prison
inmate’s property. Id. By the same token, substantive due

13

process does not restrain negligent acts of state officials
which cause unintended loss or injury, see Daniels, id.; or
to lack of due care by prison officials. Davidson v. Cannon,
474 U.S. 344 (1986). Rather, substantive due process oper-
ates to prevent public officials from “abusing govern-
mental power, or employing it as an instrument of
oppression. ...” Id. at 348.

In such situations, the Court consistently has
weighed “the individual’s interest in liberty against the
State’s asserted reasons for restraining individual lib-
erty.” Youngberg v. Romeo, 457 U.S. 307, 321 (1982). This
analysis consists of a two-part test, which demands that a
law “shall not be unreasonably arbitrary or capricious,
and that the means selected shall have a real and substan-
tial relation to the object sought to be attained.” Nebbia v.
New York, 291 U.S. 502, 525 (1934).

Apart from the First and Seventh Circuits, the courts
of appeals have applied these standards in property
rights cases analogous to the present litigation, consis-
tently holding that facts like those alleged here state a
substantive due process cause of action under 42 U.S.C.
§ 1983. In Brady v. Town of Colchester, 863 F.2d 205 (2nd
Cir. 1988), for instance, the Second Circuit overturned
summary judgment that was granted against a claim that
a building permit was impermissibly revoked. Caution-
ing that “ ‘federal courts should not become zoning
boards of appeal’ ” and that a § 1983 cause of action is not
established “every time a local zoning board makes an
incorrect decision,” the court nonetheless held that the
plaintiffs had alleged facts that could allow them to
“prove that they were denied a permit not because of a

14

good faith mistake . . . but because of indefensible rea-
sons such as impermissible political animus.” Id. at
215-216 (citation omitted). Accord, Littlefield v. City of
Afton, 785 F.2d 596, 605-607 (8th Cir. 1986)(reviewing like
holdings of the Third, Fourth, Fifth, Sixth, Seventh,
Ninth, and Eleventh Circuits).

Likewise, in Bello v. Walker, 840 F.2d 1124, 1129-1130
(3rd Cir.), cert. denied, 488 U.S. 851 (1988), the Third
Circuit overturned a summary judgment award in favor
of a municipality that allegedly delayed consideration of
a building permit, since the plaintiffs

presented evidence from which a fact finder
could reasonably conclude that certain council
members . . . improperly interfered with the
process by which the municipality issued build-
ing permits, and that they did so for partisan
political or personal reasons unrelated to the
merits of the application for the permits. These
actions can have no relationship to any legiti-
mate governmental objective, and if proven, are
sufficient to establish a substantive due process
violation actionable under section 1983.

In Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988), the
Ninth Circuit held that a denial of a building permit
under circumstances similar to the present case amounted
to a constitutional violation. As the court summarized the
facts,

The City Council voted to withhold Bateson’s
building permit without providing Bateson with
any process, let alone “due” process. This sort of
arbitrary administration of the local regulations,
which singles out one individual to be treated

15

discriminatorily, amounts to a violation of that
individual’s substantive due process rights.

Id. at 1303.

These precedents do not give courts open-ended
authority, but limit substantive due process scrutiny to
the most outrageous abuses of government power. As
Judge Kozinski summarized the applicable parameters in
Sinaloa Lake, 882 F.2d at 1409:

To be sure, governmental entities must have
much latitude in carrying out their police power
responsibilities; mere errors of judgment, or
actions that are mistaken or misguided, do not
violate due process. But malicious, irrational
and plainly arbitrary actions are not within the
legitimate purview of the state’s power.

As the First Circuit itself observed in Amsden v.
Moran, 904 F.2d 748, 754 n.5 (1st Cir. 1990), cert. denied,
111 S.Ct. 713 (1991), “In the substantive due process
context, the requisite arbitrariness and caprice must be
stunning, evidencing more than humdrum legal error.”
To characterize as “humdrum legal error” the facts
alleged in the complaint here - a 15-year pattern of delay,
deception, and politically motivated manipulation of the
building permit process - is to trivialize, and indeed to
negate altogether, the precious private property rights
that are at the core of the Fourteenth Amendment's guar-
antee. We therefore urge the Court to agree with the
precedents of the majority of circuits that facts such as

these state a substantive due process claim under 42
U.S.C. § 1983.

16

C. The substantive due process claim alleged here is
complementary to, but not duplicative of, a takings claim
under the Fifth Amendment. Many of the lawsuits challeng-
ing arbitrary denials of property development rights
allege both “takings” claims under the Fifth Amendment
as well as substantive due process claims under the Four-
teenth Amendment. While these claims often overlap, we
believe it essential to preserve a separate substantive due
process cause of action for arbitrary and oppressive
actions that impair property rights.

The first and most important distinction between the
two causes of action in this context is that the takings
clause generally “does not prohibit the taking of private
property, but instead places a condition on the exercise of
that power.” First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 314
(1987)(citations omitted). Unlike substantive due process,
which seeks to prevent government officials from “abu-
sing governmental power, or employing it as an instru-
ment of oppression,” Davidson, 474 U.S. at 348, the
takings clause “is designed not to limit the governmental
interference with property rights per se, but rather to
secure compensation in the event of otherwise proper
interference amounting to a taking.” First English, 482
U.S. at 314-315 (emphasis in original). Hence, while com-
pensation may be available even for temporary takings
that “deny a landowner all use of his property,” id. at 318,
a “substantive due process claim does not require proof
that all use of the property has been denied [citation
omitted], but rather that the interference with property
rights was irrational or arbitrary.” Bateson v. Geisse, 857
F.2d at 1303.

17

Moreover, although this Court has suggested that a
taking of private property may be proscribed if it is not
rationally related to a legitimate public purpose, Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 241 (1984),
substantive due process is more amenable to equitable
relief, such as writs of mandamus, that are often neces-
sary to vindicate the property rights at issue. This is
especially significant in light of a number of decisions
holding that takings claims are not ripe until state com-
pensation proceedings are exhausted, whereas federal
substantive due process claims are ripe the moment the
constitutional injury occurs. See, e.g., Sinaloa Lake, 882
F.2d at 1402-1404 and 1407; accord, Bateson v. Geisse, supra;
Littlefield v. City of Afton, supra. In the instant case, plain-
tiffs have alleged constant delays in processing their per-
mit applications and that state procedures are unavailing
to protect their constitutional rights; hence, immediate
equitable relief is the only meaningful remedy to vindi-
cate their rights.

Finally, takings claims offer limited recourse where
the governmental actions do not involve a physica! taking
of real property, but rather the opportunity to pursue a
profession or occupation. In these situations, substantive
due process and equal protection are among the few
available limitations of oppressive governmental actions
that impair economic liberties protected under the Four-
teenth Amendment. See Yick Wo, supra. As a consequence,
we urge the Court to preserve carefully defined substan-
tive due process protections for property rights.

¢

18

CONCLUSION

For all the foregoing reasons, amicus curiae Institute
for Justice respectfully requests that this honorable Court
reverse the opinion below.

* Counsel of Record

Respectfully submitted,

Wituiam H. Me tok, III

*CLINT BOLicK

JONATHAN W. Emorp

Scott G. BuLLOcK

Institute for Justice

1001 Pennsylvania Avenue, NW
Suite 200 South

Washington, DC 20004

(202) 457-4240

Attorneys for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0171%3A10. Public record. Not legal advice.