# Petition for Writ of Certiorari — Rahmoeller v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0997%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 382 U.S. 975 ## Text oS A Office-Supreme Court, U.S. Limit: 456 ¢ FILED GBT 7 1965 SUPREME COURT. U. = 5 IN THE JOHN F. DAVIS, CLERK Supreme Court of the United States wa ie ERVIN RAHMOELLER, Petitioner, US. PEOPLE OF THE STATE OF CALIFORNIA. Petition for a Writ of Certiorari to the Superior Court of the State of California, in and for the County of Los Angeles. WILLiaMs & WILLIAMS, 612 South Flower Street, Suite 409, Los Angeles, Calif. 90017, Attorneys for Petitioner. Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171. SUBJECT INDEX | : Page Citations to Opinions below 1 Jurisdiction 2 Questions presented ........ 3 Statutory and Constitutional provisions involved ...... 3 Statement of the case . 3 A. Testimony of petitioner (offer of seed thereof) ve 3 B. Expert SEP REEE ese McCune (offer of proof thereof) 8 How the federal questions were presented and de- cided 10 Reasons for granting the writ 10 Argument ; 11 P ° 1. The petitioner has been prosecuted and convicted for violation of a City Ordinance which rezoned . a dairy out of business ; the constitutionality was _ challenged because the period of time allowed by - . the city for the amortization of the improve- ments thereon was unrealistic, arbitrary and un- reasonable; and furthermore, petitioner was de- ’ nied the opportunity to introduce as part of his defense, evidence regarding the remaining life use of the said improvements 11 Conclusion 19 BRN tI NOIR ARIE Sit Matas inl aK nidh 4 ots ~ / TABLE OF AUTHORITIES CITED gape Cases Page American Surety Co. v. Baldion, 287 U.S. 156, 77 : LB Ai,.53 S.C BB ... . 18 Beckley v. Reclamation Board, 205 Cal. App. 2d 734, Be CO, FR Ie caspcicsistmnmrsentees AS Bloch v. Hirsh, 256 U.S. 135, 65 L. Ed. 865, 14 S. Ct. 458 14 Gage v. City of Los Angeles, 127 Cal. App. 2d 442, 274 P. 2d 34 12 Livingston Rock and Gravel v. County of Los An- geles, 43 Cal. 2d 121, 272 P. 2d 4 12, 18 Love v. Wolf, 226 A.C.A. 482, 38 Cal. Rptr. 183 .... 15 Morris v. City of Los Angeles, 116 Cal. App. 2d ~, 856, 254 P. 2d 935 12, 18 People v. Amdur, 123 Cal. App. 2d Supp. 951, 267 P. 2d 445 cin 16 People v. Harris, 182 Cal. App. 2d Supp. ‘aie 5 Cal. Rptr. 852 17 Robertson v. City of Salem, 191 F. Supp. 604 .......... 12 Ronkendorff v. Taylor’s Lessee, 29 U.S. 349, 7 L. Ed. 882 11 State of Washington, ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 73 L. EA. 210, 49 S. Ct. 50 ) 12 4 —_— Statutes Page California Constitution, Art. I, Sec. 1 12 > California Constitution, Art. I, Sec. 13 .............. 11, 12 California Constitution, Art. I, Sec. 14 12 California Penal Code, Sec. 370 5 California Penal Code, Sec. 371 5 California Penal Code, Sec. 372 5 Gardena City Ordinance, Ordinance No. 482 ........ 3, 4 United States Code, Title 28, Sec. 1257(3) .............--- 2 United States Constitution, Fifth Amendment .......... 12 United States — Fourteenth Amendment ) 2, 3, 11, 12 Textbook 50 California Law Review, p. 896 14 9 } IN THE Supreme Court of the United States October Term, 1965 | ee ERVIN RAHMOELLER, Petitioner, US. . PEOPLE OF THE STATE OF CALIFORNIA. Petition for a Writ of Certiorari to the Superior Court of the State of California, in and for the County of Los Angeles. Petitioner, Ervin Rahmoeller, prays that a writ of certiorari issue to review the judgment of the Superior Court of the State of California, in and dF the County of Los Angles, entered in the above-entitled cause on July 22, 1965. Citations to Opinions Below. The memorandum of opinion and judgment al the Superior Court of the-State of Califdtnia, in and for the County of Los Angeles, was not reported; how- ever, it is set forth in appendix attached hereto (Memo- randum Opinion and Judgment, Superior Court No. CRA 6222, Trial Court No. M 59687). . A ALA RE ALY ELE AES A CA hI te MO 0 OR away a : Jurisdiction. Petitioner, on January 18, 1965, appeared and entered a plea of not guilty before the Municipal Court of the Seuth Bay Judicial District, Couaty of Los Angeles, State of California; was tried before a jury and found guilty (People of the State of California v. Irvin Rah- moeller, No. M 59687, transcript attached hereto) [Tr. 88}. - j Petitioner appealed to the Appellate Department of the Superior Court, in and for the County of Los Angeles (Los Angeles County Superior Court No. CRA 6222). Said Appellate Department affirmed the judgment of the court below and entered judgment on Judy 22, 1965, pursuant to: its memorandum opinion and judgment (attached hereto). Petitioner then duly filed a petition for rehearing and/or certification to the District Court of Appeal on July 28, 1965, and gaid petition was denied by the Appellate Department of the Superior Court on August 4, 1965. With said denial the petitioner had exhausted all remedies by way of appeal. Petitioner filed a petition for writ of habeas corpus in the Qistrict’Court of Appeal of the State of Cali- fornia, Second Appellate District, dn September 14, 1965. Said petition was denied on September 24, 1965. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. Section 1257(3), petitioner having asserted below and claiming here a denial of his rights, to wit: denial of due process of law, as secured by the Four- teenth Amendment to the Constitution of the United States. —3— Questions Presented. 1. Whether petitioner is-denied due process of law under the Fourteenth Amendment when he is denied the right to introduce evidence in support of his de- fense that a city ordinance rezoning a pre-existi use ‘is unconstitutional by reason of the fact that the period of time allocated for amoritization was arbitrary and unreasonable bearing no reasonable relationship to the true remaining life of said use. | Statutory and Constitutional Provisions Involved. 1. This case involves the due process clause of ‘the Fourteenth Amendment to the Constitution of the United States. 2. This case also involves City of Gardena Ordi- nance No. 487; (attached hereto). bya Statement of the Case. On November 13, 1958, the.City of Gardena enacted Ordinance No. 482 (attached hereto), which in effect provided that after December 1, 1963, it would be un- lawful to maintain upon any premises in the City of Gardena any bulls, steers, cows, or other bovine animals of any kind [Tr. 45, 71]. Petitioner, Ervin Rah- moeller, as a lessee, had operated a dairy (cow herd) within the City of Gardena, on* premises which had - been used for dairy purposes since 1927, and has main- tained a herd of cows of approximately 180 in num- ber [Tr. 28, 37-40]. The petitioner was charged with violation of the above ordinance. wiwilvices At the outset of the trial, the petitioner moved for dismissal of the complaint on the grounds: 1. That the ordinance was unconstitutional in that it was unreasonable, arbitrary and discriminatory ; 2. That City of Gardena was attempting to de- prive the petitioner of the lawful use of his property without due process of law or adequate compensation for same; 3. That the period of five years, which the Gardena City Council found to be the reasonable remaining pe- riod of life for the improvements and the leasehold premises, was too short and unrealistic and arbitrary; 4. That the California State Legislature has adopted a general scheme relating to the entire manufacture, production, operation, marketing and sale of dairy products so as to exclude local regulation regarding same, and that the ordinance in question was void be- cause it attempts to declare to be a public nuisance that which has been preempted by the State [Tr. 3-24, 33-36]. The Court denied the Sabionies motion to dismiss, and the People then introduced the following evidence: 1. That after the date set by the ordinance, to wit, from December 1, 1963, to August 26, 1964, the peti- tioner maintained a herd of approximately 180 cows upon the premises known as 2013 Redondo Beach Boule- vard, in the City of Gardena [Tr. 39, 41-42]. 2. A certified copy of the Gardena Municipal Code Ordinance No. 482, introduced as People’s Exhibit 4 [{Tr. 45]. Pe aad , The People thet rested their case [Tr. 46]. Petitioner then moved to dismiss the complaint on the grounds that: 1. The People had failed to establish a corpus delicts ; 2. This was in fact an action to prosecute a nuisance * under the Municipal Code ordinance, which nuisance ordinance had been preempted by the California Penal Code, Sections 370, 371 and 372 [Tr. 47]. The Court denied the petitioner’s motion to dismiss [Tr. 47]. The Court further ruled that there would be no evidence introduced by the petitioner regarding whether the dairy was in fact a nuisance or whether or not the remaining pariod of five years, used by the City Council to amortize the assets on the premises, was a reasonable period of time [Tr. 47]. The Court, having made its ruling prior to the introduction of evidence by the People, granted petitioner’s counsel per- mission to excuse all of his witnesses regarding the matters which petitioner contended should be raised, and further stated that petitioner could make his offer of proof without -the necessity of the witnesses being present. This was done with the express cotisent of the People [Tr. 48-49, 57]. The .petitioner excused his witnesses, and after the People rested, the petitioner then made the following offer of proof: — A. Testimony of Petitioner (Offer of Proof Thereof). 1. That the petitioner, Ervin Rahmoeller, leased the premises of 2013 Redondo Beach Boulevard for the operation of a dairy, consisting of approximately 180 cows; that he had a lease on the premises, which was in existence prior to the enactment of the ordinance in quescion ; that this lease expires on April 1, 1967; that sili the monthly rent was $400, plus another $1,200 per year for one-half of the property taxes [Tr. 49]. 2. That the leased premises have a 40-cow barn, which is used for milking cows; that this barn is specifically designed and constructed as a cow barn and has no other use; that the barn has a cement base, designed for the milking of cows; that there are special electrical units affixed to the barn for milking ma- chines; that there are special partitions and stalls for the milking of 20 cows on each side of the barn as each other [Tr. 49-50]. 3. That there was a storage stand tank proc- essing, warming, cooling, and pasteurization on the premises, together with corrals and fences specially built and designed for dairies, which would have no other purpose or value [Tr. 50]. _ 4, That the reasonable remaining life for the physi- cal improvements upon the dairy would be estimated at another 7 to 10 years from the date of the trial, to wit, January, 1965 [Tr. 50]. ‘\ 5. That in order to duplicate the leasehold premises at some other location, the rental would *be $800 per month [Tr. 50]. 6. That the petitioner purchased 180 cows for $108,- 000, or $600 per cow; that the market value of’ the cows’varies depending upon whether there is a milk contract [Tr. 50]; that if you sell the cow without a milk contract, the value of a cow is only $250 to $300; however, with a milk contract, such as petitioner had, the fair market value is approximately $600 per cow [Tr. 51]. == 7. That in the event that petitioner’s lease is ter- minated by the ordinance, petitioner’s milk contract is likewise terminated [Tr. 52]. 8. That the petitioner purchased thé leasehold and cows for $108,000, payable $18,000 down and the bal- ance on a chattel mortgage; that over the last 7 years petitioner had reduced the balance of the chattel mort- gage to $60,000’[Tr. 54]. 9. That the reasonable value of the corrals, the cement drains, and the barns at the present time is approximately $35,000 [Tr. 55]. 10. That the reasonable value of the loss of the milk contract prorated over the life of the lease is approxi- mately $27 per year per cow for the remaining period of the lease after December 1, 1963 to April 1, 1967 [Tr. 55]. 11. That during the past 13 months petitioner had looked at some 15 to 20 dairies in an attempt to move his dairy, and that he was unable~to locate a dairy with milk contract, which is within his financial means; that without a milk contract, he must sell his milk as surplus milk, which have very little value [Tr. 53]. - 12. That petitioner has invested in excess of $10,- 000 in milking equipment, electrical equipment and fix- tures, which are attached to the dairy premises and cannot be removed [Tr. 68]. 13. That outside of the investment in the dairy busi- ness, petitioner’s total net worth does not exceed $3,- 000 [Tr. 68]. inlaid B. Expert Testimony—Robert McCune (Offer of Proof Thereof). 1. That in addition to petitioner’s testimony, an ex- pert by the name cf Robert McCuné, located in Nor- walk, who has been in the dairy business for 20 years and who has been selling real estate, primarily dairy operations, for the same period of time, and who is familiar with the Gardena Dairy and is also a member of the Milk Control Board, would testify to substantially the same as the petitioner regarding the remaining value of the premises, the value of the cows, without the milk contract, and the reasonable monthly replacement value of a similar leasehold [Tr. 63-65]. This testimony was to be introduced by way of de- fense to show that the period of time established by the City Council of five years was arbitrary, capricious, un- reasonable and discriminatory, and that the ordinance was unconstitutional in that it attempts to deprive petitioner of his property without due process of law. Petitioner further attempted to introduce testimony to the effect that the operation of the premises was not a nuisance, and in support of this, petitioner of- fered the following witnesses : 1. The petitioner [Tr. 51-52]. - 2. Fred Stevens, realtor, residing next door at 1927 Redondo Beach Boulevard [Tr. 58]. ’ 3. Ernest Bunten, dairy inspector for Los An- geles County Health Department [Tr. 49]. ~ ile 4. Rev. R. Murray Jones, pastor of the First Pres- -byterian Church in Gardena, located immediately next door to the dairy [Tr. 60]. 5. George Liebsok, who operates auto shop at 1928 Redondo Beach Boulevard in Gardena [Tr. 60]. 6: Mrs. John Lack [Tr. 61]. : 7. Walter L. Wilson, chief of the dairy division in Los Angeles with the State Department of Agriculture and Supervisor of Gardena [Tr. 65]. 8. Mr. Hausenbuiller, deputy to Walter L. Wilson [Tr. 66]. The Court rejected the entire offer of proof on the grounds that it was immaterial, and the petitioner rested. The Court ruled as a matter of law that the ordi- nance was constitutional and would not permit the in- troduction of evidence by petitioner as to the. question of fact of whether or not the five-year period of amorti- zation set forth in the ordinance was reasonable [Tr. 33-44]. : rae The Court ruled that the-only issue, therefore, before the jury was whether or not petitioner maintained cows on his premises after December 1, 1963 [Tr. 82]. Petitioner was found guilty [Tr. 84]; sentenced to six months in the County Jail and fined $500, Execu- tion of sentence was suspended pending appeal, and petitioner placed on probation for a period of three years on condition that he remove the cows on or be- fore March 1, 1965 [Tr. 88]. iil Following petitioner’s exhaustion of appeal to the Su- perior Court, in and for the County of Los Angeles, the petitioner again appeared before the South Bay Municipal Court for resentencing on August 12, 1965, and was sentenced as noted above with the exception that the condition of removing the cows was now set ‘i for October 1, 1965. For purposes of submission of this -writ of certiorari, the South Bay Municipal Court on September 29, | 1965 extended the compliance to October 8, 1965 (exteggion of time attached hereto). _ tHow the Federal Questions Were Presented 4 “, and Decided. ‘Throughout the proceedings petitioner has maintained it his prosecution and alleged violation of the instant fdinance was unconstitutional and consisted of the fol- «4 & > lowing, to wit: 1.- That the petitioner was prosecisied by an uncon- stitutional ordinance; and - 2. By ameans denying him due process of law. Reasons for Granting the Writ. This case involves substantial ‘Ashlie affecting im- ‘portant constitutional rights, , ‘resolved by the Court below in conflict with principles expressed by this Court. ¢ 7 a a ae ARGUMENT. ; I. The Petitioner Has Been Prosecuted and Convicted for Violation of a City Ordinance Which Re- zoned a Dairy Out of Business; the Constitu- tionality Was Challenged Because the Period | of Time Allowed by the City for the Amortiza- tion of the Improvements Thereon Was Un- realistic, Arbitrary and Unreasonable; and Furthermore, Petitioner Was Denied the Op- portunity to Introduce as Part of His Defense, Evidence Regarding the Remaining Life Use of the Said Improvements. | te “ Under the Fourteenth Amendment to the United States Constitution and Article I, Section 13 of the California Constitution, a defendant is guaranteed due process of law in prosecutions by the state. This is true regardless of how one classifies an ordinance, i.¢., be it classified as a zoning ordinance, or a penal statute. To- divest an individual of his property against his consent, every substantial requisite of the law must be shown to have been complied with. Ronkendorff v. Taylor's Les- see, 29 U.S. 349, 7 L. Ed. 882 (1830). To hold other- wise is a denial of due process of law. The petitioner ‘herein has sought to raise by defense the constitutional- ity of the ordinance and the unreasonableness of the re- maining life use of the improvements, but was denied the opportunity to put on evidence of this fundamental defense [Tr. 33-44]. The petitioner sought to raise the defense that the five-year amortization period set forth in the ordinance was arbitrary and unreasonable [Tr. 3-5, 10-12, 28-30, 47, 49-57]. The trial court summar- ily ruled that the period determined by the City Council a. om was conclusive, and refused to permit petitioner the right to introduce any evidence of the remaining life use of the improvements [Tr. 33-44]. It has long been recognized. that zoning regulations in order to be valid mist bear a substantial relationship to public health, safety, morals or general public welfare. State of Washington, ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 73 L. Ed. 210, 49 S. Ct. 50 (1928). It must likewise be recognized that in determin- ’ ing the validity of an ordinance which rezones a valid pre-existing use out of business, the constitutionality of such an ordinance can only be determined by all the sur- rounding circumstances. Robertson v. City of Salem, 191 F. Supp. 604-(1961) ; Morris v. City of Los Ange- les, 116 Cal. App. 2d 856, 254 P. 2d 935 (1953); Liv- ingston Rock and Gravel v. County of Los Angeles, 43 . 2d 121, 272 P. 2d 4 (1954); Gage v. City of Los les, 127 Cal: App. 2d 442, 274 P. 2d 34 (1954). It is for these reasons that the Fifth and Fourteenth Amendments to the United States Constitution and Ar- ticle I, Sections 1, 13 and 14 of the California Consti- tution have been held to provide guarantees that a zon- ing ordinance cannot unfairly be mata ame unrea-. sonable, nor arbitrary. ’ The ordinance herein provided for a five-year amor- tization period within which time petitioner was to cease doing operations on his premises. Therefore, it is neces- sary to consider the facts and circumstances of petition- er’s dairy business in reaching a decision as to whether the amortization period was a reasonable one or not. Each individual case involving a valid pre-existing use must be closely examined to determine whether the pe- riod of time is or is not reasonable. Among other things, \ (ee po, ee the petitioner ‘was not allowed to introduce evidence of. the improvements upon the said land. Petitioner was prepared to show that he would now be required to sell his dairy herd, and his milk contract would be imme- diately terminated; that the value of cows sold without a milk contract is less than one half the market price of cows sold with a milk contract. Such loss alone would - approximate $54,000. Further, that the petitioner’s im- provements to the dairy facilities and eqitipment were valued in excess of $35,000 and had a remaining eco- nomic life of seven to ten years. The effect of the or- dinance would make such improvements valueléss. The aforesaid losses which will be brought about are indica- tive of the unreasonableness of the mere five-year amor- tization period. It is submitted that if the City f Gardena, or ~ other municipality, in exercise of a police power, de- signs to “zone out” a citizen’s busi and livelihood, then it must do so in accordance with constitutional safeguards. If a government should exercise its, power of eminent domain, then the Constitution guarantees one will be duly compensated for taking of his property.” On the other hand, it is likewise settled that incidental damage to property resulting from zoning laws is not considered a’ taking of property for which compensation ". must be paid. However, if a governmental agency, under the guise of enacting a zoning ordina pe, attempts to circumvent the constitutional guarantee of just cotnpen- sation by rezoning a lawful existing use, such. circum- vention can only be avoided by permitting one to raise this question of fact as a defense to the constitutional- ity_of the ordinance. It is this reason that has prompted this Court in the past to state that there comes a point ? _ 4 when police power ceases and eminent domain must be used to justly compensate the person involved. Regula- tions should not be pressed to a point where they would amount to a taking of property without due process of law. Block v. Hirsh, 256 U.S. 135, 65 L. Ed. 865, 41 S. Ct. 458 (1921). It is submitted that the Appellate Department of the Superior Court did not adequately rule on the direct question imvolved herein. Instead, it set forth an en- lightening distinction regarding “the issue of “reason- abileness” as not being a question of fact for the jury but rather a question of “constitutional fact” for the court’s sole determination (Memorandum Opinion and Judgment, pp. 5-6). Said distinction completely ignores the trial court’s determination that the question of rea- somableness was a “matter of law” and that no evi- _ @ence regarding this question was allowed to be intro- duced either fu; the Court or jury’s guidance prior to the Court’s ruling. The question of reasonableness in zoning ordinances was recently discussed in an article in 50 Calif. L. Rev. at 896. Therein four situations were reviewed as regards zoning ordinances being a basis for exercise of the po- lice power. One of such situations was the same as here- in imvolved, i.e., where the ordinance prohibits existing and established “uses” that do not constitute a public nuisance. Therein it is pointed out-that ordinances pro- viding an amortization period must be reasonable in the determination of the length of the amortization period. Otherwise, “governmental action in the form of regula- tion can be so oppressive as to constitute a taking that constitutionally requires compensation.” .. <<. The Appellate Department of the Superior Court sub- mitted that the trial court could have exercised the doc- trine of judicial notice and determined that the findings of the City Planning Commission and City Council “were well supported” relevant to the reasonableness question (Memorandum Opinion and Judgment, pp. 8-9). Whether or not the trial court did exercise such judicial notice does not appear on the record. The Ap- pellate Department did exercise such judicial notice and in so doing proceeded to limit the scope of the evidence upon which to “buttress” its findings as to the reason- ableness question. Through the exercise of judicial no- tice the Appellate Department conducted its own inves- tigation, ostensibly limiting the scope of its inquiry to the review of “findings” made by agencies of the gov- ernment. This was the only evidence which the Appellate De- _ partment referred to in reaching its determination as to the question of reasonableness. It is submitted that the dottrine of judicial-notice should not be invoked where _ there is a key controversy as regards the existence of a factual question of “reasonableness” and upon which the validity of the ordinance ultimately rests. If a court takes judicial notice of public records, then it should not likewise take judicial notice as to the truth of all mat- ters stated therein. Love v. Wolf, 226 A.C.A. 482, 38 Cal. Rptr. 183 (1964); Beckley v. Reclamation Board, 205 Cal. App. 2d 734, 23 Cal. Rptr. 428 (1964). Fur- thermore, the Appellate Department, through the exer- cise of judicial notice, cited records representing appear- ance of the petitioner before the City Council of Gar- dena from which the Appellate Department had “in- ferred” that the petitioner bargained for, obtained, and ane ae accepted a five-year period of amortization in lieu of a three-year period originally proposed. It is then stated that one who accepts the benefits of a statute, even if it be unconstitutional, is estopped from later questioning its constitutionality. It must be stressed that we are not dealing with an abstract principle of law. To sustain a conviction solely upon the basis of conclusions drawn from records which are not a part of the criminal pro- ceeding is tantamount to a summary proceeding, where- by the defendant is not confronted by his accusers, nor permitted to examine the evidence and witnesses for the prosecution. ~ It was suggested by the Appellate Department that the petitioner could have obtained judicial ruling on the issues involved, through the exercise of mandamus pro- ceedings, by certiorari, injunction, declaratory relief, or writ of prohibition. Be this true or not, the crucial fact remains that this is a criminal prosecution, and the pe- titioner has been found guilty and currently faces a jail sentence. In the instant case the Appellate Department has in effect stated that petitioner could raise the issue of reasonableness and challenge the constitutionality of the ordinance in a civil proceeding, but that such chal- lenge is not available as a defense in a criminal prose-* cution. Such rationale is clearly contrary not only to the law of this state but also to the dictates of fairness and justice. Petitioner has challenged the constitutionality of the ordinance\under which he was prosecuted but has not been afforded his day in court.in this respect. In the case of People v. Amdur, 123 Cal. App. 2d Supp. 951, 267 P. 2d 445 (1954), the appellant was convict- ed of the violation of an ordinance of the city of Berke- a ee ley. He there contended that the ordinance in question was unconstitutional. Therein, the Court stated: “The fact that an-ordinance is unconstitutional as written * * * or that it has been unconstitutionally applied is always available as a defense. to a prose- cution for the violation thereof, and it is in this connection that the trial court committed error which necessitates a reversal.” The Appellate Department further drew heavily upon various rulings in civil pr ings; raising the infer- ence that the petitioner waived his right to question the constitutionality by not raising the- issue through in- junction, etc., at an earlier moment, or otherwise elect- ing to pursue one of the prementioned civil remedies as suggested by the Appellate Department. Such an anal- ogy can have no application to a criminal prosecution. Furthermore, the mere fact that equity may intervene to prevent discriminatory enforcement of an ordinance or enforcement of an unconstitutional ordinance is not a Prerequisite to a party’s squarely raising the constitu- tional defense in objection to a criminal prosecution. People v. Harris, 182 Cal. App. 2d Supp. 837, ‘5 Cal Rptr. 852 (1960). The prosecution duly pointed out that a presumption of validity exists in respect to legislative and quasi-judi- cial enactments of which the ordinance is a How- ever, the Court has in effect made such a i a conclusive one by refusing to allow the petitioner to put on evidence to overcome such presumption. It is sub- mitted that if such a presumption exists, then it is sub- ject to rebuttable evidence, and whether the amortiza- tion period under the ordinance is a reasonable one, and aes _{8— constitutional, must depend upon the facts and circum- stances of each individual case, with due consideration given to the type of business involved, whether the busi- ness is also in fact a public nuisance, and the purpose for which the ordinance was enacted in light of public policy. Moryis v. City of Los Angeles, 116 Cal. App. 2d 856, 254 P. 2d 935 (1953) ; Livingston Rock and Gravel v. County of Los ‘Angeles, 43 Cal. 2d 121, 272 P. 24 4 (1954). The appellate Department further submitted that had the proffered testimony submitted on behalf of the pe- titioner been allowed into evidence, then it “at most” could only have created a conflict in the evidence, and such would not have been sufficient to disturb the legis- lative determination. It is submitted that such a conclu- sion reflects prejudgment of the petitioner’s contentions without giving the petitioner his day in court to present his viewpoint. Since in fact petitioner’s evidence was not allowed in, then how could it be determined what weight the trial court would have given to such conflict? Whether the evidence proffered by the petitioner is suf- ' ficient to overcome any presumption or other evidence submitted on behalf of the prosecution, should only be resolved after weighing all the evidence and circum- stances of each individual case. To hold otherwise is a clear denial of due process of law. Due process requires that there by an opportunity to present every available defense. American Surety Co. v. Baldion, 287 U.S. 156, 77 L. Ed. 231, 53 S. Ct. 98 (1932). a Conclusion. Wherefore, for the following reasons, it is respect- fully submitted that the petition for a writ of certiorari should be granted. Respectfully submitted, Wit.iamMs & WILLIAMs, Attorneys for Petitioner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0997%3A1. Public record. Not legal advice.