Opposition Brief — Whitcomb v. Sanitary Commission of Anne Arundel County

In THE

Supreme Court of the United States

Ocroser TERM, 1969

No. 1506

MARTIN WHITCOMB, Er Al.,

Petitioners,

v.

THE SANITARY COMMISSION OF ANNE ARUNDEL

COUNTY, Er Al.,

Respondents.

On Petirion For A Writ or CERTIORARI TO THE UNITED

States Court OF APPEALS FOR THE FOuRTH CIRCUIT

BRIEF FOR JOSEPH W. ALTON and

FRANK J. RICE IN OPPOSITION

STATEMENT OF ISSUES PRESENTED

FOR REVIEW

The allegation in petitioners’ first “question”, that the

Court of Appeals “abused its discretion in refusing to grant

a meaningful hearing”, appears on the record to be so pre-

sumptuous as not to warrant comment here. Plainly but

one issue has been considered below and that may be simply

stated as follows:

Does the Complaint, as amplified in response to the

Motion for More Definite Statement, properly state a cause

of action against the Defendants which is within the juris-

diction of the District Court?

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STATEMENT OF THE CASE

The central question here is whether a landowner ag-

grieved by the construction of a public facility near his

lands can collaterally attack the same in Federal District

Court through public officers of the municipality involved,

under the Civil Rights Act, for carrying out the project

therefor after it has been authorized by the local govern-

ment and upheld in a state court determination in which

the landowner participated. The District Court dismissed

this action on motion of the Defendants, Respondents here,

primarily on the ground that the deprivation of property

rights is not protected under the Civil Rights Statute.

The complaint here in controversy has been brought in

District Court by Maryland residents (I.R. 3-11, 17, 18)

against two individuals, Respondents here, who are alleged

to be administrative officers of a Maryland county. Federal

jurisdiction was there invoked under 28 U.S.C. 1343, 42

U.S.C. 1983 (Civil Rights Act) and the Fifth and Four-

teenth Amendments to the Federal Constitution. The sub-

stance of the purported cause of action appears to be that

Joseph Alton, as County Executive, and Frank Rice, as

Superintendent of the County’s Department of Public

Works, violated the civil and constitutional rights of the

Complainants “by authorizing, superintending and over-

seeing the construction of the sewage plant” complained of,

in that (when constructed) the said plant:

a. will decrease the fair market value of Plaintiffs’

real property in the same vicinity by an amount in

excess of $10,000.00,

b. will deny or interfere with Plaintiffs’ alleged civil

or constitutional rights to peaceful enjoyment of their

property,

c. will deny or interfere with Plaintiffs’ alleged civil

or constitutional rights to breathe “clean air” and to

enjoy an unpolluted environment.

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Further the complaint alleges that the individual De-

fendants:

d. failed to follow procedures prescribed in local law

in determining the location of the proposed sewage

disposal plant,

e. failed to provide a proper design of plant,

f. failed to honestly explain the plant proposal to

the public and to comply with “warranties” alleged to

have been given in arranging for the financing for the

project.

The relief demanded is:

(1) a declaration “that the proceedings heretofore

had concerning the construction of a sewage disposal

plant” are null and void;

(2) that mandamus issue requiring Defendants to

“cancel all contracts for construction” of said plant, and

(3) that Defendants be enjoined from continuing to

construct a sewage plant in the proposed location.

The District Court granted the Defendants’ Motion to

Dismiss the Complaint, as amplified, on the grounds as-

serted in the Motion, i.e., that it had no jurisdiction of the

controversy either in the official capacity of the Defendants

as agents of Anne Arundel County, or, in their individual

capacity, as residents of Maryland. The District Court’s

oral explanation (I. R. 40, 41) of its ruling stresses that the

alleged deprivation relates to property rights only and it

distinguishes the same from those personal rights protected

by the federal law invoked for jurisdictional purposes. The :

F

Court of Appeals affirmed summarily after consideration

of memoranda from counsel anent the motions and after

receipt of printed briefs on the merits.

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ARGUMENT

THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION

AGAINST THE DEFENDANTS WHICH IS WITHIN THE

JURISDICTION OF THE COURT BELOW.

The Complaint as drawn (I. R. 3-11, 17, 18) reveals that

the real targets in this litigation are not the individual

Defendants who are party to the suit, but rather the State

of Maryland and its subdivision, Anne Arundel County.

These governmental bodies are not party to the suit and

appear to have been omitted in order to bring the action

within the ambit of the Civil Rights Statute, 42 U.S.C.

§ 1983, which is applicable only to “persons”. Monroe v.

Pape, 365 U.S. 167, 188-191; Sires v. Cole, 320 F. 2d 877;

Hawley v. Sadler, 331 F. 2d 387.

The relationship of the respondents, as individuals, to the

central controversy here appears merely incidental and

passive. It should be noted that the damages which the

Appellants alleged in their complaint were prospective only

and not actual. Further, since the individual respondents

are not parties to the contract sought to be voided, the relief

demanded is non-sequitur and entirely beyond the scope

of the suit. One might, with equal logic, attempt to sue

the Commandant of Marines in order to enjoin prosecution

of the war in Viet Nam; in short, the objective may be

admirable and the grievance real, but the legal remedy

attempted is inadequate, extraneous and implausible, and

no proper cause of action has been stated against the

respondents here.

The District Court efficiently disposed (I. R. 34, 35) of

the “personal liberty” concept advanced by the Appellant

as his “main thrust argument”. We will not attempt here

to embellish that reasoning but move on to the other

grounds advanced for remand.

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Throughout the original Complaint, there appears the

inference that the Appellant was denied justice in adminis-

trative and judicial proceedings in the State of Maryland

and so has no recourse other than in Federal Court on

federal grounds yet no appeal was prosecuted from those

proceedings through the State Courts, and no attempt

appears to have been made even to identify the supposed

constitutional issues in that forum. Respondents submit

that the Appellant had his day in Court and failed to avail

himself of it. Bennett v. Commissioner of Internal Reve-

nue, 113 F. 2d 837, 130 A.L.R. 369. We think the District

Court (I. R. 33, 34) misapprehended England v. Medical

Examiners, 375 U.S. 411, and call the attention of this Court

to the language at page 418 thereof, where it is stated:

“On oral argument in the instant case, we were advised

that appellants’ submission of their federal claims to

the state courts had been motivated primarily by a

belief that Windsor* required this. The District Court

likewise thought that under Windsor a party is re-

quired to litigate his federal question in the state

courts and ‘dare not restrict his state court case to

local law issues.’ 194 F. Supp., at 522. Others have

read Windsor the same way. It should not be so read.

The case does not mean that a party must litigate his

federal claims in the state courts, but only that he

must inform those courts what his federal claims are,

so that the state statute may be construed ‘in light of’

those claims. See Note, 73 Harv. L. Rev. 1358, 1364-

1365 (1960).”

In the England case, the issue was whether to remand

the case to the State Court for an interpretation of con-

stitutional issues, as the District Court had attemped to

do, and the majority opinion was that it was not necessary,

and that if the complaint had been originally filed with

* Employees Organizing Comm. v. Windsor, 347 U.S. 901 (af-

firming 116 F. Supp. 354) (N. D. Ala. 1953).

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the Federal Court (as it had) it could be pursued there.

Here the question of the location of the disposal plant was

originally litigated in the Maryland Courts, and there lost

and abandoned without mention of constitutional issues.

We assert that it would be a grievous distortion of public

policy now to entertain a collateral attack on those pro-

ceedings, Baldwin v. Traveling Men’s Assn., 283 U.S. 522

E275

at 525.

The petitioners allege deprivation of environmental

rights” in their brief (pp. 14-17) and attempt to support

the existence of this right, citing DDB Realty Co. v. Merrill,

232 F. Supp. 629, which deals with freedom of associa-

tion“. We fail to perceive, after study of that case, how

it is in point in the alleged controversy here; there is no

allegation whatever that the respondents have interfered

with the petitioners freedom of association.“

Petitioners next attempt to persaude the Court that the

mere construction of a sewage disposal plant, per se, is a

denial of equal protection to the inhabitants of the area

in which it is situated. No authority is eited for this novel

conclusion of law. Respondents submit that the equal

protection” argument in petitioners’ brief is not consistent

with the allegations of his complaint, paragraphs 9 and 13

(I. R. 5, 6), and appears to raise a purely conjectural issue.

As stated in Gully v. First National Bank, 299 U.S. 109,

at 117 and 118, 57 S. Ct. 96, 81 L. Ed. 70 (1936) and cited

with approval in Ream v. Handley, 359 F. 2d 728, at 730

(1966) :

“This Court has had occasion to point out how futile

is the attempt to define a ‘cause of action’ without ref-

erence to the context. United States v. Memphis Cotton

Oil Co., 288 U.S. 62, 67, 68. To define broadly and in

the abstract ‘a case arising under the Constitution or

laws of the United States’ has hazards of a kindred

order. What is needed is something of that common-

BLEED THROUGH POOR COPY

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sense accommodation of judgment to kaleidoscopic

situations which characterizes the law in its treatment

of problems of causation. One could carry the search

for causes backward, almost without end. Bird v.

St. Paul F. & M. Insurance Co., 224 N.Y. 47, 51, 120

NE. 86; Leyland Shipping Co. v. Norwich Fire Insur-

ance Society (1918), A.C. 350, 369; Insurance Co. v.

Boon, 95 U.S. 117, 130; Milwaukee & St. Paul Ry. Co.

v. Kellogg, 94 U.S. 469, 474. Instead, there has been a

selective process which picks the substantial causes out

of the web and lays the other one aside. As in prob-

lems of causation, so here in the search for the under-

lying law. If we follow the ascent far enough, count-

less claims of right can be discovered to have their

source or their operative limits in the provisions of a

federal statute or in the Constitution itself with its

circumambient restrictions upon legislative power. To

set bounds to the pursuit, the courts have formulated

the distinction between controversies that are basic

and those that are collateral, between disputes that

are necessary and those that are merely possible. We

shall be lost in a maze if we put that compass by.”

Again in those parts of the petitioners’ Brief styled “Bad

Faith”, citing Egan v. City of Aurora, 174 F. Supp. 794

(affirmed in 275 F. 2d 377) an attempt is made to raise an

issue of wilful conspiracy to “extort” not evident on the

face of the pleadings. We submit that the inference is

not sustained by the case cited in any sense and that the

whole fragile contrivance of the petitioners to make this

controversy a federal case at this juncture appears so re-

mote from the real issue that the language from Gully,

supra, disposes of it as beyond the reasonable consideration

of this Court.

In U. S. v. Causby, 328 U.S. 266, a case which more

closely approximates, in general situation, the problem

here than any of the others, the Court of Claims had

granted a landowner damages by reason of government

aircraft flights over his property which diminished the

TR in Me

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value of his property. The case was reversed and remanded

to require the trial court to spell out the nature of the

easement which the United States had acquired through

the payment of damages. In the instant case, it should be

noted that no prayer for damages has been made and the

taking of no specific easement is alleged.

We would call particular attention to the case of Bottone

v. Lindsley, 170 F. 2d 708 at 709, Cert. denied, 336 US.

994, 69 S. Ct. 810, 93 L. Ed. 1101, cited with approval in

Sarelas v. Sheehan, 326 F. 2d 490; where the Court says:

“To make out a cause of action under the Civil

Rights Statutes, the state court proceedings must have

been a complete nullity, with a purpose to deprive a

of his property without due process of law.

litigant in a state court and

set the federal courts up as an arbiter of the correctness

of state decision. The Fourteenth Amendment

and the national government * * * Nor does it ‘assure

uniformity of decisions or immunity from merely

erroneous action’.”

Here it should be noted that the relief sought is incon-

sistent with the alleged misconduct of the persons before

the Court. The petitioners demand that the construction

of a large sewage disposal plant jointly financed by the

Federal Government, the State and the County be enjoined

and abandoned, whereas the only role of the individual

Defendants lies in the fact that, under local law, they are

charged with the supervision of the plant after it has been

constructed and they participated administratively in the

events leading up to the decision to undertake the project.

No allegedly unconstitutional law or action of the State

of Maryland or of the County, administrative or judicial,

is identified in the complaint as required by Supreme Court

Rule 40(1)(c).

SUMMARY AND CONCLUSION

In essence, the respondents have demurred to the com-

plaint and pleaded in bar on jurisdictional grounds. Clearly

the case attempted to be stated is local and lies in equity

and not, as between the parties, in constitutional contro-

versy. The County, with State and Federal approval and

financial assistance, contracted to have a sewage disposal

plant constructed on lands contiguous to lands of the

petitioners. Its right to do so has been duly litigated through

the administrative and judicial processes of the State of

Maryland. Petitioners, having abandoned that contest after

a series of unfavorable results, now seek to attack the

County’s right to proceed with construction collaterally

in Federal District Court. The springboard of this attack

is the ingenious concept that the United States Constitution

guarantees to every citizen maintenance of a status quo

in the environment; that one who has, under color of

state law, participated in an undertaking which may,

prospectively, disturb that status quo, transgresses the

Civil Rights Act and thus through the individual agent,

the principal may be enjoined from exercising its right

to complete the project proposed. Respondents submit that,

regardless whether the proper defensive grounds be failure

to state a cause of action, lack of jurisdiction, res judicata,

or non-joinder, the complaint below was improperly

framed, and cannot be entertained. Therefore, the writ

of certiorari should be denied.

Respectfully submitted,

Puma F. Scere,

County Solicitor,

Joun M. Court,

Assistant County Solicitor,

Attorneys for Respondents.