Opposition Brief — Fields v. Rockdale County

o) Supreme Court, U.S.

FILED

No. 86-241

NOV % 1986

| CLERK

In The

Supreme Court of the United States

October Term, 1986

Ann P. Fields and Gerald Fields, Individually;

and Life For God's Stray Animals, Inc.,

Petitioners,

Vv.

Rockdale County, Georgia; et al.,

Respondents.

BRIEF IN OPPOSITION

TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Albert M. Pearson, III

University of Georgia

School of Law

Athens, Georgia 30602

C404) 542-5187

Counsel for Respondents

In The

Supreme Court of the United States

October Term, 1986

Ann P. Fields and Gerald Fields, Individually;

and Life For God's Stray Animals, Inc.,

Petitioners,

Vv.

Rockdale County, Georgia; et al.,

Respondents.

BRIEF IN OPPOSITION

TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Albert M. Pearson, III

University of Georgia

School of Law

Athens, Georgia 30602

C404) 542-5187

Counsel for Respondents

SERERBBBERESSSSS.

TABLE OF CONTENTS

Statement of Case

Summary of Argument

Argument

Conclusion

Certificate of Service

CITATIONS

Avant v. Douglas Co.,

253 Ga. 225, 319 S.E.2d 442 (1984)

Barrett v. Hamby,

235 Ga. 262, 219 S.E.2d 399 (1975)

Fields v. Rockdale Ls »

Jae Cee teen, 1561, nn. & Clith

Cir. 1986) “et Sea ae

Life for God's Stray Animals, Inc.

v. New North Rockdale Co. Homeowners

mESGC., ING. ,

amy > S.t.20 —-- (Case

Nos. 43638 & 43715, Oct. 23, 1986)

Life for God's Stray Animals, Inc.

v. North Rockdale Co. Homeowners

ASSOC... inc.,

253 Ga. 551, 322:S.E.2d 239 €1984)

Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 €1981)

Shoemake v. Woodland Equities,

252 Ga. 389, 313 S.E.2d 689 (1984)

11

12

ERERRIRARIES

STATEMENT OF CASE

A. Facts and Proceedings Below

Respondents accept the statement of facts

in the petition for certiorari, subject to one

clarification and to facts which have arisen after

the rendition of the Eleventh Circuit's opinion

in this case.

The clarification that Respondents would

offer relates to the extended legal proceedings

in state court that preceded the institution of

this lawsuit in federal district court. Since

1980, the Petitioners have operated a "no-kill"

animal shelter on Farmer Road in Rockdale County,

Georgia. The legality of that operation has

been the ‘subject of much litigetion. At issue

has been Petitioners' compliance with local zoning

ordinances and with the nuisance law of Georgia.

It is not an exaggeration to say that the Pe-

titioners have lost on all major issues in the

State courts. The most crucial finding through-

out these lengthy proceedings was that the Farmer

Rose shelter is a nuisance. As a result, it

has become necessary for Petitioners to vacate

BEEEREBEEEEEEEREEE

that location. They purchased an alternative 220

acre site on Miller Bottom Road (Calso in Rockdale

County) for their new animal shelter. Despite

these adverse state court rulings, the Farmer

Road shelter remains in operation; the Miller

Bottom Road shelter is a going concern now as

well.

Here Respondents would point out a funda-

mental fact: there is a continuing question of

state law over whether the Petitioners' attempt

to move their shelter to Miller Bottom Road

is in compliance with the Rockdale County

Superior Court nuisance decree. This decree

was affirmed by the Georgia Supreme Court in

Life for God's Stray Animals, Inc. v. North

Rockdale County Homeowners Assoc., Inc., 253

Ga. 551, 322 S.E.2d 239 (1984). The Petitioners'

challenge to the Rockdale County kennel ordinance

was and is an attempt to evade the effects of

this decree. The kennel ordinance is at this

point wholly peripheral to that controversy and

may never be invoked to bar the Petitioners'

attempt to move to the Miller Bottom Road lo-

cation.

a x

mv ‘

Since the Eleventh Circuit's decision in

the present case, the Petitioners have been held

in civil contempt for their failure to comply

with the nuisance decree. However, they fled

the state to avoid sanctions and their present

whereabouts are unknown. Very recently, the

Supreme Court of Georgia considered their appeal

from the contempt order and dismissed it be-

cause of their evasion of the jurisdiction of

the Rockdale County Superior Court in a matter

properly before it. Life for God's Stray

Animals, Inc. v. New North Rockdale County

Homeowners Assoc., Inc., Ga. P

S.E.2d __—s- CCase Nos. 43638 & 43715; October 23,

1986).

SUMMARY OF ARGUMENT

Respondents believe that the Eleventh

Circuit's decision below does not merit con-

sideration by this Court. Specifically, the

decision to vacate the district court's order

declaring the kennel ordinance unconstitutional

and to remand for presentation of the question

to state court is consistent with Pullman

abstention principles. In any event, should the

constitutional merits be reached in this case,

the kennel ordinance is constitutionally valid.

Respondents believe that it withstands scrutiny

under the rational basis test.

ARGUMENT

i Pullman Abstention Issue Correctly Decided

It would be difficult to discuss this

issue without mentioning that the Petitioners'

resort to federal court in this case is at

least puzzling, if not somewhat disingenuous.

Petitioners challenged the constitutionality

of the kennel ordinance on Fourteenth Amend-

ment due process and equal protection grounds.

Nowhere in their federal complaint do they men-

tion a pendent state claim based on the Georgia

Constitution. At first glance, this might

seem totally unexceptional. Petitioners' po-

sition, however, begins to become unusual when

note is taken of the case authority they rely

upon. Instead of citing and discussing this

Court's many zoning and economic regulation

cases applying the rational basis test, they

relied entirely on three Georgia cases, Avant

v. Douglas County, 253 Ga. 225, 319 S.E.2d 442

C1984); Shoemake v. Woodland Equities, 252

Ga. 389, 313 S.E.2d 689 (1984); Barrett v.

Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975).

What makes these three cases especially note-

wrothy is the clear suggestion that the kennel

ordinance violates Article I, section 1, para-

graph 1 of the Georgia Constitution --

the Georgia due process clause.

Essentially, the Petitioners tried to

make the federal district court a surrogate

state court to rule on the validity of the

kennel ordinance on state constitutional grounds.

What else can explain the authority which they

cited? Having relied upon it, however, the Pe-

titioners found themselves trapped. They wanted

the Eleventh Circuit to follow the Georgia cases

in deciding the merits of the constitutional

question -- despite the fact that the Georgia

due process standard in this instance is

BEEERREBREEEEEES

stricter than the federal! -- and yet ignore

those same cases in considering Pullman ab-

stention.

Basically, the Eleventh Circuit ruled

that since state constitutional law was arguably

so much in Petitioners' favor, they ought to

take their contention back to state court to

press it. Federal judicial intervention, the

court suggested, would seem pointless if state

law provides for the relief that Petitioners

sought. This is the general policy behind

Pullman abstention. Adding support to the

Eleventh Circuit's reasoning are two factors:

C1) the kennel ordi:ance has never been in-

terpreted judicially and there are several

uncertainties about its app!ication to the

animal shelters operated by the Petitioners;

and €2) land use questions tend to involve

matters of intensely local concern and hence

lthe Eleventh Circuit correctly noted this fact.

Fields v. Rockdale County, 785 F.2d 1558, 1561, n. 4

(llth Cir. 1986). To have accepted Petitioners’ invi-

tation would have run afoul of this Court's decision

in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

(1981).

|

there is a real potential for unnecessary fric-

tion between federal and state courts.

ee Kennel Ordinance Valid Under Rational

Basis Test

Should this Court decide that Pullman ab-

stention was unwarranted, the Petitioners can-

not prevail on the merits In any event. The

challenge to the kennel ordinance must be

assessed under the rational basis test which Is

essentially the same under federal due process

or equal protection analysis. This means

that the kennel ordinance enjoys a strong pre-

sumption of constitutional validity and that

the burden is on the challenger to displace

this presumption. The kennel ordinance must

be upheld as long as it serves some legitimate

purpose. To prove otherwise, the Petitioners

in this case had to demonstrate the lack of

any conceivable relationship between the kennel

ordinance as enacted and the purnoses it might

be said to promote. Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 464 (1981).

ZEERRESEEREEREREES

It is difficult to understand how the Pe-

titioners could believe that the record in this

case satisfies federal due process or equal pro-

tection requirements for invalidating the

kennel ordinance. Petitioners have never dis-

puted the difference between "kill" and "no-

kill" animal shelters. The Humane Society is

an example of the former. After animals are

kept for a specified period, they are put to

death. The animal population at such a shelter

is kept under control in this way. A "no-

kill" animal shelter such as those run by Pe-

titioners takes stray animals that people would

be unlikely to want as pets and attempts to

sustain them for the rest of their natural

lives. The animal population at such shelters

tends to be quite large. Respondents believe

that the presence of a "no-kill" animal shelter

im a county with a rapidly Increasing popula-

tion necessitated a general ordiance dealing

with the animal population in all kennels. The

specific aim of the ordinance was to minimize

the noise, odor and sanitation problems associ-

ated with kennels. Surely that is a legitimate,

if not a substantial, regulatory purpose.

Did Rockdale County have any conceivable

factual basis for believing that the population

limits would advance this purpose? All kennels

were limited to 150 dogs and 50 cats. To the

extent that noise, odor and sanitation problems

are a function of kennel size, Rockdale County

plausibly could have found that smaller is

better. Admittedly, that Is not an especially

Inspiring defense of the ordinance, but it is

accurate and well above the minimum set under

the rational basis standard. Perhaps encouraged

by the contrary-to-fact hypothetical in the

trial judge's opinion, “ Petitioners suggested

“The trial judge apparently believed the ordinance

lead to absurd results. To prove his point, he gave

this example using the tract at Miller Bottom Road:

"[U]nder the ordinance, plaintiffs could keep only 150

dogs and 50 cats on their new, 220-acre property. The

same area, if subdivided and owned separately, could,

consistent with the ordinance, contain over 8,000 dogs

and 2,400 cats even allowing for the effect of set-back

requirements." Significantly, the trial judge stopped

short of saying that the purpose of the ordinance was

to achieve that result. In effect, his reluctance to

take that final step made the hypothetical irrelevant

under rational basis analysis.

below that the kennel ordinance would limit the .

size of their operations, but would allow

separately owned kennels to operate side-by-

side from one end of the county to the other

-- mexing a mockery of the population limits.

This alleged loophole to the ordinance is truly

an academic contrivance. It assumes that a per-

haps imperfectly drawn law will be construed

in a manner that defies common sense. The ar-

gument reveals more about the weaknesses of

Petitioners’ case than it does the flaws in the

Rockdale County kennel ordinance. The presump-

tion of constitutionality that attaches to

economic and social legislation -- of which

the kennel ordinance is an example -- gives

the benefit of the doubt to the statutory

drafters and to those responsible for enforcing

and interpreting the law.

CONCLUSION

The Eleventh Circuit correctly ruled on the

Pullman abstention ground. Respondents at oral

argument actually preferred to get a ruling on

the due process and equal protection issues to

bring the Petitioners' federal court diversionary

maneuver to an end. Either way, Respondents

believe that the law favors their position.

In the last analysis, even if the Eleventh Circuit

erred, the issues In this case have significance

in the main only for the citizenry of Rockdale

County, Georgia. The criteria for certiorari

are not met.

Respectfully submitted,

WL aY~ wr, Penoe%

Albert M. Pearson, III _

University of Georgia

School of Law

Athens, Georgia 30602

C404) 542-5187

Counsel for Respondents

CERTIFICATE OF SERVICE

As a member of the Bar of the United

States Supreme Court, I certify that on the

24 th day of November, 1986, a copy of the

preceding BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI was mailed first-class,

postage prepaid to:

Kathleen Kessler

Carr & Kessler

3384 Peachtree Road

Suite 250

Atlanta, GA 30326

I further certify that all parties required

to be served have been served.

Glad we Cox cill

Albert M. Pearson, III

University of Georgia

School of Law

Athens, Georgia 30602

C404) 542-5187

Counsel for Respondents