# Petition for Writ of Certiorari — Hotel & Motel Ass'n v. City of Oakland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 904

## Text

1) Supreme Court,U.8. °
- FILE®

03 1405 APR 01 2004
No. 03-

IN THE

Supreme Court of the Gnited States

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,
Petitioners,
We

CITY OF OAKLAND, et al.,
Respondents.

Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

FRANK A. WEISER CARTER G. PHILLIPS*
ATTORNEY AT LAW PAUL J. ZIDLICKY

3460 Wilshire Boulevard CASSIDY KESLER PINEGAR
Suite 903 - SIDLEY AUSTIN BROWN &
Los Angeles, California 90010 WOOD LLP

(213) 384-6964 1501 K Street, N.W.

Washington, D.C. 20005
(202) 736-8000

Counsel for Petitioners

April 1, 2004 * Counsel of Record

SO RRO ERR EE NNEC ERRATA RN
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether the court of appeals properly refused to apply this
Court’s decision in City of Chicago v. Morales, 527 U.S. 41
(1999), to address a facial constitutional challenge to a city
ordinance and instead applied a conflicting standard reflected
in United States v. Salerno, 481 U.S. 739 (1987).

(1)

- on

LIST OF PARTIES AND AFFILIATES

The parties to the proceedings in the Ninth Circuit are listed
in Appendix A at Pet. App. la.

Pursuant to Rule 29.6 of the Rules of this Court, petitioner
Hotel and Motel Association of Oakland states that it has no
parent corporation and it has issued no publicly held stock.

TABLE OF CONTENTS

STATEMENT OF THE CASE ..uuw..cccccscscscececsssscsceseees

A. City Of Oakland Ordinances No. 12136 And
eels ciciesssicsasnsnodcebdsuvnsasusanee

B. Petitioner’s Vagueness Challenge ................6060-.

C. The District Court’s Decision.............................

THE DECISION BELOW WARRANTS FURTHER
REVIEW BY THIS COURT BECAUSE IT IMPLI-
CATES AN ISSUE OF RECURRING NATIONAL
IMPORTANCE CONCERNING THE APPROPRI-
ATE STANDARDS THAT APPLY TO A FACIAL
CHALLENGE TO THE CONSTITUTIONALITY OF
A GOVERNMENT ENACTMENT ..........ccccccccscececcessees

A. This Court’s Decisions Reflect Competing
Standards That Have Been Applied To
Resolve Facial Challenges To Government
Ordinances That Are Claimed To Be
I sien satasirivestssnsctiiscnsesseveniocercontases

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iv

TABLE OF CONTENTS —continued

Page
B. The Appropriate Standard For Resolving
Facial Challenges Has Been A Source Of
Significant Confusion Among The Courts Of
PIE icsicuuiasssioladccusctindvanccdnddabenanniiencingstianoitionats 17

C. The Decision Betow Is An _ Appropriate
Vehicle For Resolving The Conflict And
Confusion Reflected In This Court’s Decisions

~ And In The Decisions Of Lower Courts............. 22

ea SAI vhinseissiasipntinedbuanbiaxctainarsadeteennnenesianabiseen 25

Vv

TABLE OF AUTHORITIES
CASES Page

Amfac Resorts, L.L.C. v. United States Dep't of
Interior, 282 F.3d 818 (D.C. Cir. 2002),
vacated on other grounds, Nat’l Park
Hospitality Ass'n v. Dep't of Interior, 538 U.S.

a RI icsninschsstihervscsmanuicecentoniniact ota 14

A Women’s Choice-East Side Clinic v. Newman,

305 F.3d 684 (7th Cir. 2002), cert. denied, 537

Ed | | A ees eens 4, 10, 19, 20
Anderson v. Edwards, 514 U.S. 143 (1995)....c..06... 14
Bd. of Regents v. Roth, 408 U.S. 564 (1972) .......... 25
Caterpillar, Inc. v. Comm’r of Revenue, 568

IN. We OPS (ia, TGF) os eesssssasnsisniisiaccccsvatians, 21
Caterpillar inc. v. N.H. Dep't of Revenue Admin.,

FRE PAG FG UT. TODO) visser serssibtindisceicctiasticvicel, 21

City of Chicago v. Morales, 527 U.S. 41 (1999)... passim
Conoco, Inc. v. Taxation & Revenue Dep't, 931

Fe FI TIN I, COD sins ssstvesanssaisveasiinincibincibcsess 21
Fla. League of Prof. Lobbyists, Inc. v. Meggs, 87

FW OF CEPT, FOOD cscs csesvscecerspervesuadseecce, 14
Horton v. City of St. Augustine, Fla., 272 F.3d

BOED CE FG Ce, DOTY a isisscnceccssccinccrevonsenusonnces 3,10, 19
Janklow v. Planned Parenthood, Sioux Falls

Clinic, 5317 U.S. 1174 (1996)..........c0cccsecccsccseseess 14
Kolender v. Lawson, 461 U.S. 352 (1983) ....ccccec0e:. 13
Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30

Ec SY Sint ininensineincanab ili tees enn 20
New York State Club Ass’n v. City of New York,

OT Ci FE octiisvscciasitinciacieacee 14
Planned Parenthood v. Casey, 505 U.S. 833

Pe iiicchvacesunliaclghabucatianattoninianne Seg aaitaeniie ae 16
Reno v. Flores, 507 U.S. 292 (1993)...ccccccccccscccesece. 14
Romer v. Evans, 517 U.S. 620 (1996)......cccccccceseees 16

S.D. Myers, Inc. v..City & County of S.F., 253
F Sle OS COU OW, BEY nissiivsvcsncncusisoninswosnrnnannes 20

vi

TABLE OF AUTHORITIES-—continued

Page

United States v. Frandsen, 212 F.3d 1231 (11th
Rai sD sndeneasrivetcceeniiaiaeannlieaenemamaamnaae 19

United States v. Rybicki, 354 F.3d 124 (2d Cir.
EE scisascomnuninamnniemaamammaandl 3, 10, 18
United States v. Salerno, 481 U.S. 739 (1987) ..... passim

United States v. Sampson, 275 F. Supp. 2d 49 (D.

Bs, Bea censelancrichidekans seevdecceshdughinasiaaner anaes 20
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982)... eee iz, $3

Washington v. Glucksberg, 521 U.S. 702 (1997)..... 14

CONSTITUTION AND STATUTES

ee eR. IEE, FEE WN iistenncsicscesiecereteneiee 2
Oe er ise IM aasiscinnscdcemedenovesniasenmuenennenaaenns 2
Oakland, Cal., Ordinance 12136 C.M.S. (May 11,

PIE 5 ns cuveseinsdnvicch i cedeiacdiosticaniesaiameiaaemaaiaain etal passim
Oakland, Cal., Ordinance 12137 C.M.S. (May 11,

PTT cise'svinviscecossicajeubsabocbiceeettaale needs 2, 5, 24

RULE

A RA Gn. BP ckcdversetsiccteceieecanniaannonaaian 3, 4, 17

SCHOLARLY AUTHORITIES

Matthew D. Adler, Rights, Rules, and the
Structure of Constitutional Adjudication, 113

Seney. 1. BOW. EST Ce esiscistidvcnsenceen 21
Michael C. Dorf, Facial Challenges to State and
Federal Statutes, 46 Stan. L. Rev. 235 (1994)..... 15

Richard H. Fallon, Jr., As-Applied and Facial
Challenges and Third-Party Standing, 113
Boar. 1. Bev. FICE Ce iekish addceesares 21

Vii

TABLE OF AUTHORITIES—continued

Page
Michael C. Steel, Constitutional Law—The
Vagueness Doctrine: Two-Part Test, or Two
Conflicting Tests? City of Chicago v. Morales,
119 S. Ct. 1849 (1999), 35 Land & Water L.
Rev. 255 (2000)

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eden Reet CAR BEE ot eet ERIS T Pe

' PETITION FOR WRIT OF CERTIORARI

Petitioners Hotel and Motel Association of Oakland and its
members respectfully request that this Court grant their
petition for a writ of certiorari to review the decision of the
United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is published at 344 F.3d
959 (9th Cir. 2003) and is reproduced in the Appendix to this
Petition (“Pet. App.”) at la to 21a. The court of appeals’
order denying the petition for rehearing and rehearing en banc
is unpublished and is reproduced at Pet. App. 50a to 5la. The
relevant orders of the United States District Court for the
Northern District of California are unpublished. That court’s
order granting in part, denying in part, defendants’ motion to
dismiss plaintiffs’ first amended complaint is reproduced at
Pet. App. 25a to 49a. The district court’s stipulation and
judgment of dismissal is reproduced at Pet. App. 22a to 24a.

JURISDICTION

The court of appeals entered judgment on September 17,
2003, and denied timely petitions for rehearing and rehearing
en banc on November 13, 2003. On February 4, 2004, Justice
O’Connor granted an extension of time within which to file a
petition for a writ of certiorari, up to and including March 12,
2004. On March 4, 2004, Justice O’Connor granted a second
extension of time, up to and including April 1, 2004. This
Court has jurisdiction over this petition under 28 U.S.C.
§ 1254(1).

RELEVANT STATUTORY PROVISIONS

Title 42 U.S.C. § 1983 provides, in pertinent part,

aes ae

2

Every person who, under color of. any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress... .

42 U.S.C. § 1983.

The Fourteenth Amendment provides, in pertinent part, that
no State shall “deprive any person of life, liberty, or property,
without due process of law.”

The complete texts of Oakland Municipal Ordinances No.
12136 and No. 12137 are reproduced at Pet. App. 52a to 82a.

STATEMENT OF THE CASE

This case presents the issue of what is the appropriate
standard for addressing a facial challenge to a government
ordinance that is impermissibly vague and that imposes
expansive and open-ended law enforcement responsibilities
upon private individuals.

Applying this Court’s standard in United States v. Salerno,
481 U.S. 739 (1987), the court of appeals upheld the city
ordinances against a facial attack based upon unconstitutional
vagueness because “‘the challenger must establish that no set
of circumstances exists under which the [statute] would be
valid.” Pet. App. 17a (alteration in original) (quoting
Salerno, 481 U.S. at 745). In doing so, the court of appeals
recognized—as have other courts of appeals—that this
Court’s “most recent discussion of facial vagueness
challenges has cast some doubt on the ‘no set of
circumstances’ requirement” set forth in Salerno. Id.
Specifically, the court below explained that in City of

3

Chicago v. Morales, 527 U.S. 41 (1999), “the Court did not
apply the Salerno test in reviewing, and ultimately upholding,
a facial challenge to an ordinance banning gang members
from loitering in public places after being ordered to
disperse.” Pet. App. 17a-18a. Nevertheless, the court of
appeals refused to apply Morales and instead held that until
“a majority of the Supreme Court directs otherwise, a party
challenging the facial validity of an ordinance on vagueness
grounds outside the domain of the First Amendment must
demonstrate that ‘the enactment is impermissibly vague in all
of its applications.’” /d. at 19a (quoting Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982)).

The court of appeals’ refusal to apply the standards set forth
in this Court’s Morales decision warrants further review.
This Court-has acknowledged its competing lines of precedent
and the seemingly inconsistent application of these varied
approaches in a host of contexts. Morales, however, is this
Court’s most-recent decision setting forth the standards for
assessing a vagueness challenge to a criminal ordinance that
contains no mens rea requirement. The court of appeals
refusal to apply this Court’s decision in Morales—which the
court below justified based upon its confusion whether
Morales or Salerno reflected the binding standard for
resolving a facial challenge to the constitutionality of a
government enactment, Pet. App. 19a—itself warrants further
review by this Court because this is the only Court that can
clarify the inconsistency between its decisions. See Sup. Ct.
R. 10(c).

Moreover, confusion over what standard applies to the
resolution of facial challenges has permeated the federal
courts of appeals, which have struggled to reconcile this
Court’s competing commands. See United States v. Rybicki,
354 F.3d 124, 131 (2d Cir. 2003) (en banc) (holding that court
was “not required to apply /Morales]”); Horton v. City of St.
Augustine, Fla., 272 F.3d 1318, 1330 (11th Cir. 2001) (noting

Leen eee

4

“inroads into Salerno’s rule have developed”); cf. A Women's
Choice-East Side Clinic vy. Newman, 305 F.3d 684, 687 (7th
Cir. 2002) (rejecting Salerno as dicta), cert denied, 537 U.S.
1192 (2003). Legal commentators as well have highlighted
the competing threads in this Court’s precedent and
underscored the importance of providing necessary guidance
to the lower courts. Absent a uniform standard, similarly
situated cases will result in different outcomes based solely
on the happenstance of geography, rather than on the merits
of their underlying claims. Simply put, resolution of the
proper standard to apply in addressing a facial challenge to
- the constitutionality of a government enactment is an
important and recurring issue of federal law that warrants
further review by this Court. See Sup. Ct. R. 10(a), (c).

What is more, this case presents an appropriate vehicle for
the Court to resolve this confusion because the ordinance at
issue here cannot be upheld under the standard reflected in
Morales. Specifically, a violation of City Ordinance No.
12136 subjects private individuals operating their businesses
to criminal penalties for failing to prevent others from
engaging in a laundry-list of objectionable conduct not only
on their property, but also in “close proximity” thereto. Here,
imposition of criminal penalties is authorized, without any
mens rea requirement, if the “operation of the property .. .
result[s] in repeated nuisance activities on the property or
contribute[s] to nuisance activities in close proximity to the
property.” Pet. App. 62a. “[N]uisance activities” are listed to
include “illegal drug activity,” “prostitution,” and “public
drunkenness,” as well as “harassment of passers by,” “illegal
parking,” “traffic violations, curfew violations, lewd conduct,
or police detentions and arrests.” Jd.

To avoid criminal sanction, owners of hotels or motels
subject to this ordinance must, in effect, prevent any and all
illegal or potentially illegal activity from occurring on or in
close proximity to their property. As a result, Ordinance No.
12136 criminalizes a broad swath of purely innocent

ee ees ae

3

conduct—e.g., failing to stop nuisance activities about which
a person has no knowledge and/or control—and requires
private individuals to take on a broad range of traditional law
enforcement responsibilities simply to avoid criminal
prosecution and to pursue their chosen livelihood.

A. City Of Oakland Ordinances No. 12136 And No.
12137.

At issue in this case are two ordinances, No. 12136 and No.
12137, which were enacted on May 11, 1999, by the Council
of the City of Oakland to establish “Operating Standards for
Hotels, Motel and Rooming Houses.” Pet. App. 52a
(capitalization omitted).' Taken together, they provide
“minimum standards related to room furnishings, linens,
housekeeping services and security.” /d. In particular,
Ordinance No. 12136 creates minimum standards applicable
to hotels and motels on such diverse topics as “management
practices,” “inspection of records and facilities,” “property
security,” “housekeeping conditions in excess of normal
‘Wear and Tear,”’” “room furnishings,” “exterior of property,”
and “common areas.” /d. at 56a-62a (capitalization omitted).
Adoption of these minimum standards was designed to
“promote the health, safety, comfort, convenience, prosperity,
and general welfare by requiring that businesses that offer
shelter to visitors, transient guests, and other residents provide
a minimum level of cleanliness, quality, and security.” /d. at
55a. None of those various minimum standards is at issue
here.

99 «#66

99 66

Ordinance No. 12136, however, requires substantially more
from private owners of hotels and motels. In particular,
Ordinance No. 12136 amends the Oakland Municipal Code to
add Section 8.03.120, which is entitled “Criminal and
Nuisance Activity.” Pet. App. 62a. Under Section 8.03.120,

' Specifically, Ordinance No. 12137 creates the “Deemed Approved”
program whereby formerly non-conforming uses are subjected to the
requirements reflected in Ordinance No. 12136. Pet. App. 67a-82a.

a

6

to avoid criminal penalties, owners of hotels and motels are
required to ensure that “(t]he operation of the property shall
not result in repeated nuisance activities on the property or
contribute to nuisance activities in close proximity to the
property.” /d.* Section 8.03.120 contains no mens rea
requirement. To avoid criminal prosecution, owners of hotels
and motels are subjected to an almost impossible burden by
requiring them to engage in law enforcement activities not
only on their own property, but also in areas deemed to be in
close proximity to their property. /d. What is more, Section
8.03.120 vests law enforcement officials with virtual carte
blanche in determining whether there has been a violation of
this strict liability provision.

There can be no question that adoption of Section 8.03.120
was motivated by a belief that property owners should be
forced to engage in police-enforcement activities traditionally
undertaken by public police enforcement entities. Indeed, to
justify Ordinance No. 12136, the City Council candidly noted
that “the Oakland Police Department has expended an
inordinate amount of time and resources in policing certain of
these businesses, in order to limit or control widespread use
of the properties for the purpose of narcotics and prostitution
activity,” Pet. App. 52a, and that there was evidence that, in
the City Council’s view, “the operators of problem properties
take minimal action to screen or monitor the activities of their
patrons,” id. at 53a.

? Nuisance activities “includ[e],” but are not “limited to”:

disturbance of the peace, illegal drug activity, prostitution, public
drunkenness, drinking in public other than at a licensed facility,
harassment of passers by, gambling, sales of stolen goods, public
urination, theft, assaults, batteries, acts of vandalism, illegal parking,
excessive loud noises, especially in the late night or early morning
hours, traffic violations, curfew violations, lewd conduct, or police
detentions and arrests.

Pet. App. 62a.

~
B. Petitioner’s Vagueness Challenge.

In August 1999, petitioner Hotel and Motel Association of
Oakland, which represents the interests of various owners and
operators of hotels and motels in Oakland, California, brought
suit along with its individual members under 42 U.S.C.
§ 1983, and challenged, among other things, the enactment of
the Criminal and Nuisance Activity section of Ordinance No.
12136. Petitioners explained that Ordinance No. 12136
adopted operating standards that imposed “various criminal
and civil penalties and fines for violations” of those standards.
See Complaint for Damages and Injunctive Relief § 7.
Petitioners highlighted that these new standards required
property owners and operators to “prevent[] . . . criminal and
nuisance activity on or in the vicinity of the properties,” id.,
and that the Ordinance “places legal burdens on the
hotel/motel owner and operator to correct nuisance activities
that occur both on and off the property with no reasonable
standards for administrative and legal guidance and
enforcement.” Jd. J 8; see also First Amended Complaint for
Damages and Injunctive Relief (“First Am. Compl.”) §§ 16-
17 (same). Petitioners explained that violation of Ordinance
No. 12136 subjects owners and operators of hotels and motels
“to criminal prosecution.” First Am. Compl. 4 28.
Accordingly, petitioners sought injunctive and other relief
because Ordinance No. 12136 was “‘void for vagueness.””
Id. 4 55.

C. The District Court’s Decision.

The district court rejected petitioners’ claim at the pleading
stage pursuant to Federal Rule of Civil Procedure 12(b)(6).
Pet. App. 26a, 40a. The district court explained that
petitioners’ challenge “must be construed as a facial attack
only” because there had been no allegation that the
“challenged ordinances have been applied to anyone yet.” /d.
at 36a n.7. The district court concluded that petitioners’
challenge could succeed only “‘if the enactment is

impermissibly vague in all of its applications.’” Jd. at 37a

8

(quoting Hoffman Estates, 455 U.S. at 494-95). The district
court noted that the “presence of criminal penalties in the
ordinances raises the level of scrutiny somewhat,” id. at 38a-
39a, but rejected petitioners’ showing that the ordinance
impermissibly subjected them “to criminal sanctions for
‘contributing’ to ‘nuisance activities in close proximity to the
property,’ instead of restricting the ordinances to activities
occurring on the properties,” id. at 37 n.8. According to the
district court, “the ordinances are not impermissibly vague.”
Id. at 40a.

D. The Court of Appeals’ Decision.

The court of appeals affirmed. Pet. App. 2a. At the outset,
the court below noted that petitioners’ facial challenge
“present[ed] a hurdle that is difficult for the Association to
scale.” Jd. at 16a. Applying this Court’s decision in United
States v. Salerno, 481 U.S. 739 (1987), the court of appeals
explained that to prevail in a facial challenge outside the First
Amendment context, “‘the challenger must establish that no
set of circumstances exists under which the [statute] would be
valid.”” Pet. App. 17a (alteration in original) (quoting
Salerno, 481 U.S. at 745). The court of appeals recognized,
however, that this “Court’s most recent discussion of facial
vagueness challenges has cast some doubt on the ‘no set of
circumstances’ requirement” of Salerno. Id. Specifically, the
court of appeals explained that in City of Chicago v. Morales,
527 U.S. 41 (1999), this Court “did not apply the Salerno test
in reviewing, and ultimately upholding, a facial challenge to
an ordinance banning gang members from loitering in public
places after being ordered to disperse.” Pet. App. 17a-}8a.
The court below noted that the Morales plurality “stated that
the Salerno formulation was dictum.” /d. at 18a. Although
Section V of the Morales decision was joined by a majority of
the Court, the court of appeals declined to be bound by
Morales, explaining that “[u]ntil a majority of the Supreme
Court directs otherwise, a party challenging the facial validity
of an ordinance on vagueness grounds outside the domain of

9

the First Amendment must demonstrate that ‘the enactment is
impermissibly vague in all of its applications.’” /d. at 19a
(quoting Hoffman Estates, 455 U.S. at 495) (emphasis added).

Because it concluded that “[n]o such showing was made
here,” the court of appeals rejected petitioners’ facial
vagueness challenge. Pet. App. 19a. The court below
acknowledged that petitioners took “issue with the
requirement in Ordinance No. 12136 that prohibits hotel
operators from contributing to nuisance activities on or in
‘close proximity to’ the property.” /d. Although the court of
appeals acknowledged that there was no mens rea
requirement, it nevertheless rejected that challenge because
there had been no showing that “every (or any) application of
that provision would qualify as unconstitutionally vague.” /d.
The court of appeals never purported to apply the competing
vagueness standards set forth in Morales, and _ instead,
applying the “all-or-nothing principle” embodied in Salerno,
held that Ordinance No. 12316 was not “unconstitutionally
vague on its face.” Jd. at 21a.

| REASONS FOR GRANTING THE PETITION

This case presents the recurring issue of what standard
should be applied by federal courts addressing a facial
challenge to the constitutionality of a government enactment
that subjects private individuals to criminal sanction for
engaging in wholly innocent conduct. A majority of this
Court in City of Chicago v. Morales ruled that a criminal
Statute that contains no mens rea requirement will be
adjudged unconstitutionally vague if “reach[es] a substantial
amount of innocent conduct” and fails to “‘establish minimal

guidelines to govern law enforcement.’” 527 U.S. 41, 60-61
(1999) (Stevens, J., writing for Court in Section V). The
court of appeals, after discussing the tension between this
Court’s decisions in Salerno and Morales, refused to apply
this Court’s controlling decision in Morales. That ruling by
itself warrants further review by this Court.

10

Moreover, the cou.t of appeals is not alone in expressing
confusion regarding the applicability of this Court’s
competing decisions in Morales and Salerno. Indeed, the
Second, Eleventh and Seventh Circuits likewise have
highlighted the difficulty of determining which of this Court’s
competing commands should be followed on the threshold
question of the appropriate legal standard to apply in
resolving facial challenges to government enactments. See
United States v. Rybicki, 354 F.3d 124, 131 (2d Cir. 2003) (en
banc) (holding that court “not required to apply /Morales/]’’);
Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329-30
(11th Cir. 2001) (applying Salerno but noting that “inroads
into Salerno’s rule have developed”); cf. A Women’s Choice-
East Side Clinic v. Newman, 305 F.3d 684, 687 (7th Cir.
2002) (rejecting Salerno as dicta), cert. denied, 537 U.S. 1192
(2003). In these cases, the Second Circuit (over a vigorous
dissent), Rybicki, 354 F.3d at 131; see also id. at 155-65
(Jacobs, J., joined by Walker, Jr., C.J., and Cabranes and
Parker, J.J., dissenting), and the Eleventh Circuit, Horton, 272
F.3d at 1330, both have concluded that Salerno remains the
governing standard, whereas the Seventh Circuit, in a related
context, has declined to follow Salerno in light of conflicting
and more recent precedent from this Court, Newman, 305
F.3d at 687. There can be no question that the issue presented
is a recurring one that can only be resolved by this Court, and
that it should be decided to provide necessary guidance to
federal and state courts. Absent a uniform, nationwide
standard, litigants from across the country will be subject to
irreconcilable rulings based not on the underlying merits of
their claims but instead on the fortuity of where they brought
suit.

What is more, this case presents an appropriate vehicle for
resolving this conflict because the court of appeals squarely
rejected petitioners’ vagueness challenge under the “all-or-
nothing” standard reflected in Salerno, and made clear that
the Ninth Circuit would continue to apply Salerno (rather

1]

than Morales) until directed to do otherwise by this Court.
Ordinance No. 12136, like the ordinance in Morales, imposes
criminal sanctions on private individuals engaging in wholly
innocent conduct and vests substantial discretion in law
enforcement officials to determine whether a violation of the
ordinance has occurred. Specifically, to avoid a criminal
sanction, private individuals must affirmatively ensure that no
“nuisance” conduct occurs on or in close proximity to their
property. As in Morales, private individuals can be subjected
to criminal sanction, without any finding of mens rea, for
simply standing around and doing nothing. Indeed, to avoid
criminal sanction, owners and operators of hotels and motels
have the impossible affirmative burden of ensuring that no
“nuisance” activity occurs not only on their property, but also
on the property of others deemed to be in “close proximity” to
a hotel or motel.

THE DECISION BELOW WARRANTS FURTHER
REVIEW BY THIS COURT BECAUSE IT IMPLI-
CATES AN ISSUE OF RECURRING NATIONAL
IMPORTANCE CONCERNING THE APPROPRIATE
STANDARDS THAT APPLY TO A_ FACIAL
CHALLENGE TO THE CONSTITUTIONALITY OF A
GOVERNMENT ENACTMENT.

The decision below warrants certiorari because it implicates
an exceedingly important issue of federal law that demands
uniform treatment throughout the country. Specifically,
review of this case is necessary to resolve the dispute that has
emerged as a result of conflicting pronouncements by this
Court as to the standard for assessing a facial chailenge to the
constitutionality of a government enactment. The divergent
rules advanced in Salerno and Morales have resulted in
significant confusion among the federal courts of appeals.
Moreover, this case implicates that conflict because the
ordinance at issue here could not pass muster under Morales.
It criminalizes a broad swath of purely innocent conduct and
vests virtually unlimited discretion in law enforcement

:
;
:

12

officials to determine whether a property owner’s failure to
prevent nuisance activity (of which he or she may have no
knowledge) constitutes a violation of the ordinance.

A. This Court’s Decisions Reflect Competing
Standards That Have Been Applied To Resolve
Facial Challenges To Government Ordinances
That Are Claimed To Be Unconstitutional.

This Court has set forth competing standards to resolve
facial challenges to statutes that are claimed to violate the
United States Constitution. On the one hand, in United States
v. Salerno, 481 U.S. 739, 745 (1987), the Court provided that,
outside of the First Amendment context, a facial challenge
can succeed only when the challenger establishes that “no set
of circumstances” exists under which the ordinance or law
would be valid. On the other hand, the Court in City of
Chicago v. Morales, 527 U.S. 41 (1999), held that a city
ordinance was unconstitutionally vague on its face without
making a determination whether the ordinance was vague in
every application. /d. at 60-61. Moreover, a plurality of the
Court adopted a different standard based on various factors:
whether the challenged law (1) involved criminal penalties,
(2) contained a mens rea requirement, and (3) implicated
constitutionally protected conduct. /d. at 55 (Stevens, J.).
Consequently, Salerno and Morales have left the courts of
appeals to guess which of these competing standards should
be applied to resolve facial challenges to government
enactments.

The question of what standard should be applied to resolve
a facial challenge to a government enactment is a recurring
one that has been treated on a number of occasions by this
Court. For example, prior to Salerno, in Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 505
(1982), this Court held that an ordinance regulating the sale of
drug paraphernalia was not unconstitutionally vague on its
face. Reversing the court of appeals, which struck down the
law because it was “unclear in some of its applications,” id. at

13

495, the Court explained that a successful facial challenge to
a law that does not reach constitutionally protected conduct
requires “the complainant [to] demonstrate that the law is
impermissibly vague in all of its applications.” /d. at 497
(emphasis added). The Court distinguished this inquiry from
an overbreadth challenge, which would apply to a law that
reaches a substantial amount of “constitutionally protected
conduct.” /d.

The Court departed from this standard in Kolender v.
Lawson, 461 U.S. 352 (1983), where the Court held that an
anti-loitering statute was unconstitutionally vague on its face.
Id. at 361. In doing so, the Court rejected the notion that a
statute could not be held “‘unconstitutionally vague on its
face unless it is vague in all of its possible applications.”” /d.
at 358 n.8. Rather, the Court stated that a criminal statute
might be facially invalid even if it conceivably had some
valid application because “the standard of certainty is higher”
where criminal penalties are involved. /d.

In Salerno, the Court reverted back to the approach adopted
in Hoffman Estates by ruling that to prevail in a facial
challenge to a legislative enactment, “the challenger must
establish that no set of circumstances exists under which the
Act would be valid.” 481 U.S. at 745 (citation omitted).
Accordingly, the “fact that [the statute] might operate
unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.” /d.

Salerno itself involved a facial challenge to the
constitutionality of the Bail Reform Act, which allowed
courts “to detain an arrestee pending trial if the government
demonstrates by clear and convincing evidence after an
adversary hearing that no release conditions ‘will reasonably
assure . . . the safety of any. other person and the
community.”” /d. at 741 (quoting 18 U.S.C. § 3142(e) (1982
& Supp. III 1985)). The law was challenged as facially
violative of the Due Process Clause of the Fifth Amendment
and the Excessive Bail Clause of the Eighth Amendment. /d.

14

at 746. The Court held that, on its face, the Bail Reform Act
did not violate the Fifth Amendment because it contained
sufficient procedural safeguards to satisfy due process, and it
did not violate the Eighth Amendment because it was directed
toward a compelling interest different than the concern of the
Excessive Bail Clause. /d. at 751, 754.°

The Salerno standard, however, has been the subject of
much debate within the Court. For example, in Washington
v. Glucksberg, 521 U.S. 702, 740 (1997), Justice Stevens,
concurring in the judgment, argued that the Court has never
actually applied Sa/erno’s strict standard, not even in Salerno
itself. Jd. at 739 (Stevens, J., concurring in judgment) (stating
that application of Salerno standard is “the subject of debate
within this Court’). Conversely, Justice Scalia, joined by
Chief Justice Rehnquist and Justice Thomas, have expressed
their view that the applicability of the Salerno standard for
facial challenges is an issue that “cries out for [the Court’s]
review.” Janklow v. Planned Parenthood, Sioux Falls Clinic,
517 U.S. 1174, 1178 (1996) (Scalia, J., joined by Rehnquist,
C.J., and Thomas, J., dissenting from denial of petition for
certiorari).*

> Salerno’s “no set of circumstances” standard for facial challenges has
been followed in subsequent decisions of this Court. See, e.g., Anderson
v. Edwards, 514 U.S. 143, 155-56 n.6 (1995); Reno v. Flores, 507 U.S.
292, 301 (1993); New York State Club Ass'n v. City of New York, 487 U.S.
1, 11-12 (1988).

* See also Janklow, 517 U.S. at 1175-76 (Stevens, J., respecting the
denial of the petition for certiorari) (calling the Salerno standard
“draconian . . . dictum” that was “unsupported by citation or precedent”
and does not accurately characterize the standard for facial challenges).
Both lower courts and legal scholars have noted the disagreement
regarding the appropriate standards for resolving such claims. E.g., Amfac
Resorts, L.L.C. v. United States Dep't of Interior, 282 F.3d 818, 826 (D.C.
Cir. 2002) (noting debate among Justices regarding whether Salerno is
controlling), vacated on other grounds, Nat'l Park Hospitality Ass'n v.
Dep't of Interior, 538 U.S. 803 (2003); Fla. League of Prof. Lobbyists,
Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir. 1996) (noting “disagreement

ne

15

The debate about the applicability of Salerno to facial
challenges to government enactments culminated in City of
Chicago v. Morales, 527 U.S. 41 (1999). In Morales, a
municipal ordinance that prohibited “criminal street gang
members from loitering with one another or with other
persons in any public place,” id. at 45-46 (internal quotation
omitted), was challenged as unconstitutionally vague under
the Due Process Clause of the Fourteenth Amendment, id. at
46. A majority of the Court invalidated the anti-loitering
ordinance as unconstitutionally vague on its face even though
the Court did not conclude that the ordinance would be
invalid in every application. /d. at 60-61. Although Morales
generated a number of concurring opinions, a majority of the
Court joined Section V of Justice Stevens’ opinion to strike
down the anti-loitering statute because it “reach[es] a
substantial amount of innocent conduct” but fails to
“‘establish minimal guidelines to govern law enforcement,”
id. at 60 (quoting Kolender, 461 U.S. at 358).

Justice Stevens, writing for the plurality, went further by
both rejecting and distinguishing Salerno:

To the extent we have consistently articulated a clear
standard for facial challenges, it is not the Salerno
formulation, which has never been the decisive factor in
any decision of this Court, including Salerno itself... .

We need not, however, resolve the viability of
Salerno’s dictum because this case comes to us fram a
state—not a federal—court.

Id. at 55 n.22. The plurality characterized the Salerno
standard as a species of third-party standing that state courts
need not apply. Jd. The plurality acknowledged that

has appeared lately among members of the Supreme Court on exactly how
high the threshold for facial invalidation should be set”); Michael C. Dorf,
Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235,
239 (1994) (arguing that the Court has applied the Salerno standard
inconsistently and has failed to articylate why it departs trom Salerno).

Pa ee ee ee

16

prohibiting certain conduct, like intimidation of residents,
would be constitutional, but stated that “[u]ncertainty about
the scope of that additional coverage” of the ordinance
provided the basis for the vagueness claim. /d. at 52
(emphasis added). Instead of applying Salerno’s “no set of
circumstances” standard, the plurality adopted yet another
standard for assessing facial challenges: a facial challenge
was appropriate because the ordinance was a criminal law
that lacked a mens rea requirement and infringed on
constitutionally protected rights. /d. at 55. Specifically, the
plurality explained that the “right to remove from one place to
another according to inclination” was _ constitutionally
protected. /d. at 53 (internal quotation omitted). The
plurality explained that “[w]hen vagueness permeates the text
of such a law, it is subject to facial attack.” /d. at 55.

Justice O’Connor, concurring in part and concurring in the
judgment, agreed that the statute was unconstitutionally vague
because, as interpreted by the Illinois Supreme Court, it
lacked guidelines to prevent arbitrary and discriminatory
enforcement. /d. at 64-65. Similarly, Justice Kennedy
concurred in the judgment because the ordinance lacked
sufficient guidelines for enforcement. Jd. at 69-70. Justice
Breyer, for his part, concurred in the judgment, explaining
that the ordinance was invalid “because the policeman enjoys
tod much discretion in every case. And if every application of
the ordinance represents an exercise of unlimited discretion,
then the ordinance is invalid in all its applications.” Jd. at 71.

In dissent, Justice Scalia argued that the majority should
have applied the Salerno standard for facial challenges. /d. at
77-81. Justice Scalia admitted that the Court had adopted
exceptions to Salerno, such as in Romer v. Evans, 517 U.S.
620 (1996), and Planned Parenthood v. Casey, 505 U.S. 833
(1992), but he argued that no similar exception should apply
in Morales. 527 U.S. at 81. Justice Scalia explained that,
under Salerno, the challengers would have to prove that the
law is invalid in all of its applications, which could be

_—_— ae

17

defeated by the existence a single valid application. /d.
Justice Thomas, joined by Chief Justice Rehnquist and Justice
Scalia, also wrote separately in dissent to explain that isolated
instances of arbitrary and discriminatory law enforcement
were insufficient to meet Salerno’s standard for facial
challenges. /d. at 111.

Simply put, the appropriate standard for resolving a facial
challenge to the constitutionality of a government enactment
is “an important question of federal law that has not been, but
should be, settled by this Court.” See Sup. Ct. R. 10(c). On
the one hand, under Salerno, a facial challenge cannot
succeed unless the challenger shows that “no set of
circumstances exists under which the [statute] would be
valid.” Salerno, 481 U.S. at 745. Under Morales, however,
where a criminal statute with no mens rea requirement
infringes on constitutionally protected conduct, broadly
described, the statute may be ruled facially invalid if it
“reach[es] a substantial amount of innocent conduct.” 527
U.S. at 60 (opinion of Court).

Based on the decision in Morales, the continued
applicability of the Salerno standard to facial challenges is in
question, especially in the context of criminal statutes that
lack a mens rea _ requirement and that implicate
constitutionally protected conduct. This case presents the
doctrinal split clearly and directly and therefore the Court
should grant the petition for certiorari.

B. The Appropriate Standard For Resolving Facial
Challenges Has Been A Source Of Significant
Confusion Among The Courts Of Appeals.

Because of this Court’s conflicting decisions in Salerno and
Morales, the federal courts of appeals have lacked dispositive
guidance as to the proper standard for facial challenges to the
constitutionality of government ordinances, and as a result,
widespread confusion has resulted. The varying approaches

18

taken by the federal courts of appeals and other lower courts
underscore the need for further review by this Court.

For example, in United States v. Rybicki, 354 F.3d 124 (2d
Cir. 2003) (en banc), the Second Circuit openly struggled in
determining which standard to apply to a facial challenge of a
statute. At issue in Rybicki was a statute that extended the
coverage of the wire and mail fraud statutes to include
deprivation of the “intangible right of honest services.” /d. at
126 (internal quotation omitted). The en banc court
highlighted that “there is disagreement as to the nature” of
review of “facial vagueness challenges outside the First
Amendment context.” /d. at 131. Specifically, the Second
Circuit explained that in Morales, the “Court struck down an
anti-loitering statute as facially unconstitutional without first
considering whether the statute was unconstitutionally vague
as applied to the facts of the case or whether any set of
circumstances existed in which the statute would be valid.”
Id. The en banc court acknowledged that “[a]lthough panels
of [the Second Circuit] have noted that Morales may have
rejected the Salerno dicta, we have not concluded that a
majority of the Supreme Court has done so.” /d. Ultimately,
the en banc court ruled that the statute in question was
“sufficiently clear to survive a facial challenge under either
Morales or Salerno.” Id. at 131-32; see also id. at 150
(Raggi, J., concurring in the judgment) (describing the factors
considered in Morales and concluding that the statute at issue
is not “‘such a law’”’).

Judge Jacobs, joined by Chief Judge Walker, and Judges
Cabranes and Parker, dissented because “[t]he test for facial
invalidity of a criminal statute was articulated by the Supreme
Court in 1999: ‘Vagueness may invalidate a criminal law for
either of two independent reasons. First, it may fail to
provide the kind of notice that will enable ordinary people to
understand what conduct it prohibits; second, it may authorize
and even encourage arbitrary and _ discriminatory
enforcement.’” Jd. at 156 (Jacobs, J., dissenting) (quoting

19

Morales, 527 U.S. at 56 (opinion of Court)). After
concluding that the Second Circuit was “required to apply
Morales,” Judge Jacobs and the other dissenters explained
that, under Morales, “it is quite clear that the statute” was
unconstitutional because it “imposes insufficient constraint on
prosecutors, gives insufficient guidance to judges, and gives
insufficient notice to defendants.” /d. at 157.

Similarly, the Eleventh Circuit has grappled with the
conflicting standards in Salerno and Morales. After Morales,
the Eleventh Circuit described the Salerno rule as “subject to
a heated debate in the Supreme Court, where it has not been
consistently followed.” United States v. Frandsen, 212 F.3d
1231, 1235 n.3 (11th Cir. 2000) (citing Morales, 527 U.S. at
55 n.2 (Stevens, J.)). More recently, in Horton, 272 F.3d at
1329-30, the Eleventh Circuit addressed a facial challenge to
a municipal ordinance prohibiting street performances in a
four-block area of the city’s historic district. /d. at 1321. The
court held that the ordinance was not facially invalid under
Salerno because “circumstances exist under which it clearly
would not be unconstitutionally vague.” /d. at 1330. In doing
so, the Eleventh Circuit recognized that “inroads into
Salerno’s rule have developed.” Jd. As a result, the Horton
court felt compelled to analyze the challenged ordinance
under both the Salerno and Morales standards. /d. at 1330-
31.

In contrast, in a related context, the Seventh Circuit has
declined to follow Salerno because it is inconsistent with
subsequent precedent from this Court. See Newman, 305
F.3d at 687. There, the court of appeals upheld a state statute
regulating abortion against a facial challenge. /d. at 693. In
doing so, the court of appeals, through Judge Easterbrook,
noted that it was presented “with irreconcilable directives
from the Supreme Court” regarding the appropriate standard
to apply to a facial challenge to state regulation. /d. at 687.
The court of appeals highlighted its dilemma: “We cannot
follow Salerno without departing from the approach taken [in

20

more recent decisions]; yet we cannot disregard Salerno
without departing from the principle that only an express
overruling relieves an inferior court to follow decisions on the
books.” /d. In the end, the Seventh Circuit concluded that
Salerno’s discussion of the standards for a facial challenge
was “not essential to Salerno’s judgment” and therefore the

court of appeals would follow the more recent holding of this
Court. /d.

The Ninth Circuit likewise has discussed the confusion
resulting from the differing standards set forth in Salerno and
the more recent decision in Morales. See Pet. App. 16a-19a.
In this case, the court recognized that Morales has “cast some
doubt on the ‘no set of circumstances’ requirement.” Jd. at
17a. However, the court of appeals refused to depart from the
Salerno standard, stating: “Until a majority of the Supreme
Court directs otherwise, a party challenging the facial validity
of an ordinance on vagueness grounds outside the domain of
the First Amendment must demonstrate that ‘the enactment is
impermissibly vague in all of its applications.’” /d. at 19a
(quoting Hoffman Estates, 455 U.S. at 495). See also S.D.
Myers, Inc. v. City & County of S.F., 253 F.3d 461, 467-68
(9th Cir. 2001). Consequently, the court held that the
ordinances at issue were facially valid because the challengers
failed to allege or show that the ordinances were
impermissibly vague in all applications. Pet. App. 19a-21a.°

* Federal district courts and state courts have also struggled with this
issue. In Mineral Policy Center v. Norton, 292 F. Supp. 2d 30, 40
(D.D.C. 2003), the court declined to apply Salerno to a claim that a
federal mining regulation was, on its face, contrary to the Federal Land
Policy and Management Act. The court stated that “confusion in this
Circuit remains” regarding the applicability of Salerno and that “other
courts have also wrestled with the Salerno standard.” /d. at 39.
Describing “the Supreme Court’s application of Salerno [as] spotty, at
best,” the court was “left with little to guide it.” /d. See also United
States v. Sampson, 275 F. Supp. 2d 49, 58 (D. Mass. 2003) (finding that
the “dicta from Salerno” did not provide the proper test for deciding
whether the Federal Death Penalty Act was facially unconstitutional).

21

This confusion has generated significant discussion from
legal commentators, who have underscored the conflict
among the decisions of this Court. Scholars have debated
whether or not Salerno actually provides the standard for
addressing facial challenges. Professor Matthew D. Adler, in
Rights, Rules, and the Structure of Constitutional
Adjudication, 113 Harv. L. Rev. 1371, 1390 (2000), identified
and analyzed the tension between the Salerno standard and
the Court’s actual pattern of facial invalidation, and argued
that this tension reflects a “continuing and vigorous
disagreement” on the Court about the meaning and
correctness of the Salerno standard. See also Richard H.
Fallon, Jr., As-Applied and Facial Challenges and Third-
Party Standing, 113 Harv. L. Rev. 1321, 1322 (2000) (noting
the development of a debate in the Court about the necessary
conditions for facial challenges to prevail). Similarly,
Professor Michael C. Steel argued that the Salerno standard
cannot be reconciled with either the Kolender or the Morales
decision. See Constitutional Law—The Vagueness Doctrine:
Two-Part Test, or Two Conflicting Tests? City of Chicago v.
Morales, 119 S. Ct. 1849 (1999), 35 Land & Water L. Rev.
255, 271 (2000).

In the end, there can be no question that there is substantial
confusion among the lower courts regarding the appropriate
standard that should be applied in resolving a claim that a
government enactment is facially invalid. The confusion
engendered by this Court’s decisions in Salerno and Morales
can only be corrected this Court and thus cries out for a clear
ruling on this issue.

Similarly, state courts of highest resort have rejected the Salerno standard
for facial challenges to certain categories of state enactments. See, e.g.,
Caterpillar Inc. v. N.H. Dep't Revenue Admin., 741 A.2d 56 (N.H. 1999)
(declining to apply the Salerno standard to a facial challenge to a state tax
statute); Caterpillar, Inc. v. Comm’r of Revenue, 568 N.W.2d 695 ( Minn.
1997) (same); Conoco, Inc. v. Taxation & Revenue Dep't, 931 P.2d 730
(N.M. 1996) (same).

22

C. This Case Is An Appropriate Vehicle For
Resolving The Conflict And Confusion Reflected
In This Court’s Decisions And In The Decisions
Of Lower Courts.

This case presents an appropriate vehicle for resolving the
confusion and conflict that have resulted from this Court’s
competing pronouncements as to the standards applicable to
facial challenges to government enactments. In this case, the
court below recognized that there were two competing
standards for a facial challenge to a government ordinance:
“{Morales| has cast some doubt on the ‘no set of
circumstances’ requirement.” Pet. App. 17a. The court then
expressly applied Salerno to the case at hand. /d. at 19a. The
court confirmed that “[uJntil a majority of the Supreme Court
directs otherwise” it will apply the Salerno standard to facial
challenges outside of the First Amendment context. /d.

What is more, the court below never purported to apply
fully the standards adopted by the majority in Morales,
because, if it had, the outcome surely would have been
different. With regard to Ordinance No. 12136, the court
found that the Association “fails to allege that every (or any)
application of that provision would qualify as
unconstitutionally vague.” Pet. App. 19a. Similarly, the
court found that the Association did not allege that Ordinance
No. 12137 “is impermissibly vague in all of its applications.”
Id. at 21a.

The court did state that “even if the all-or-nothing principle
were inapplicable, the Association’s challenge cannot
succeed.” /d. at 19a. However, the court of appeals did not
actually apply the Morales standard in full. In its discussion
of Ordinance No. 12126, the court suggested that the
ordinance provides sufficient notice of the prohibited conduct
and gives law enforcement sufficient guidance to avoid
discriminatory and arbitrary enforcement. Pet. App. 19a-20a.
But this discussion was limited to the court’s analysis of the
phrase “close proximity.” Jd. Likewise, in its discussion of

23

Ordinance No. 12137, the court dismissed the idea that the
absence of a mens rea requirement in a criminal statute could

be a determinative factor in determining facial vagueness. /d.
at 20a-2 1a.

Under Morales, the governing inquiry is whether the
ordinance -“reach{es] a substantial amount of innocent
conduct” but fails to “‘establish minimal guidelines to govern
law enforcement,” 527 U.S. at 60 (quoting Kolender, 461
U.S. at 358). Here, there can be no question that the first
prong is satisfied. In effect, the owners and operators of
hotels and motels in the city of Oakland are conscripted by
the ordinance to police “nuisances” not only on their own
property, but in areas deemed by law enforcement officials to
be in close proximity to their property. Accordingly, hotel
and motel owners are subject to criminal penalties if conduct
by third persons that qualifies as a “nuisance” occurs on or in
“close proximity” to their property. In other words, if
nuisance activity occurs on or in close proximity to their
property, property owners or operators may be held
criminally liable even if they are wholly unaware of that
conduct. Just as the ordinance in Morales was defective
because it subjected broad swaths of innocent conduct to
criminal sanction, here too the challenged ordinances subject
property owners to criminal prosecution for failing to
eliminate nuisance conduct of which they may be unaware
and over which they may have absolutely no control.

Second, the ordinance gives law enforcement officials
unbridled discretion to interpret whether the operation of a
hotel “results in” or “contributes to” nuisance activity.
Presumably, an officer will not be able to make this
determination based on any personal knowledge or
observation of the internal workings of the hotel, which are
not necessarily visible to the public. Instead, the officer will
infer a violation based on the existence of a nuisance activity.
As was the case in Morales, the ordinance provides “absolute
discretion” to decide what activities constitute a violation. Id.

24

at 61 (internal quotation omitted). This type of standardless
discretion permits and even encourages arbitrary and
discriminatory enforcement of the ordinance. Thus, in effect,
the owners and operators of hotels and motels will be held
criminally responsible for all nuisance activity on or near
their property, whether or not the operation of their property
has caused or contributed to such activity.

Taken together, the ordinances at issue, and specifically
Section 8.03.120(A) of Ordinance No. 12136, are
unconstitutionally vague. First, a virtually impossible burden
is imposed on individuals seeking to conform their conduct to
the requirements of the ordinance. Although the ordinance
lists examples of nuisance activity, it expressly states that the
list is not comprehensive. More importantly, the ordinance
requires that the operation of a hotel property not “result in”
or “contribute to” nuisance activity on or in close proximity to
the property. Like the ordinance in Morales, this ordinance is
vague because “‘no standard of conduct is specified at all.’”
527 U.S. at 60 (quoting Coates v. Cincinnati, 402 U.S. 611,
614 (1971)). :

In addition, the formulation by the Morales plurality further
makes clear that a law may be unconstitutionally vague on its
face if it (1) involves criminal penalties, (2) lacks a mens rea
requirement, and (3) implicates constitutionally protected
conduct. /d. at 55 (Stevens, J.). “When vagueness permeates
the text of such a law, it is subject to facial attack.” Jd. The
ordinances at issue here suffer from the same defects as the
ordinance struck down in Morales. First, Ordinances No.
12136 and No. 12137 establish criminal penalties for
violations of the operating standards for hotels and motels as
amended by Ordinance No. 12136. See Pet. App. 63a, 81a.
Second, neither ordinance includes a mens rea requirement.
Specifically, Section 8.03.120(A) of Ordinance No. 12136,
which requires that “[t]he operation of the property shall not
result in repeated nuisance activities on the property or
contribute to nuisance activities in close proximity to the

25

property,” lacks any scienter requirement. /d. at 62a. Third,
the ordinance implicates the constitutionally protected right to
earn a living. See Bd. of Regents v. Roth, 408 U.S. 564, 572
(1972) (the liberty guaranteed by the Fourteenth Amendment
includes “‘the right of the individual . . . to engage in any of
the common occupations of life’”’) (quoting Meyer v.
Nebraska, 262 U.S. 390, 399 (1923)). Because the
ordinances satisfy these three elements from Morales, the
court should have inquired whether vagueness “permeates”
the text of the ordinances.

In sum, had the court below applied the Morales standard
instead of the Salerno standard, it could not have upheld the
dismissal of petitioners’ facial vagueness claim.

CONCLUSION

For these reasons, the petition for writ of certiorari should
be granted.

Respectfully submitted,
FRANK A. WEISER CARTER G. PHILLIPS*
ATTORNEY AT LAW PAUL J. ZIDLICKY
3460 Wilshire Boulevard CASSIDY KESLER PINEGAR
Suite 903 SIDLEY AUSTIN BROWN &
Los Angeles, California 90010 WOOD LLP
(213) 384-6964 1501 K Street, N.W.

Washington, D.C. 20005
(202) 736-8000

Counsel for Petitioners
April 1, 2004 * Counsel of Record

APPENDICES

la
APPENDIX A

UNITED STATES COURT OF APPEALS
NINTH CIRCUIT

No. 02-15220

HOTEL & MOTEL ASSOCIATION OF OAKLAND; Balu K. Patel;
Usha B. Patel; Navin Patel; Tara N. Patel; Bharat Patel;
Niketa Patel, Parsottam B. Patel; Gita Patel; Vinod P.
Patel; Madhuben V. Patel; Jagdish Patel; Bharti J. Patel;
Ramesh D. Patel; Thakorbhai G. Patel; Manjuben T. Patel;
Kirit S. Patel; Ranjan K. Patel; Manubhai L. Patel;
Shardaben M. Patel; Pravin Patel; Sima Patel; Natwarbhai
Patel; Jagdishkumar B. Patel; Jayeshkumar D. Patel;
Hasmukh B. Patel; Bhisma Patel; Babubhai K. Patel;
Kalaben B. Patel; Vallabh H. Patel; Jamanaben V. Patel;
Ranchodbhai D. Patel; Parbhubhai V. Patel; Kamuben P.
Patel; Govindbhai Z. Patel; Madhuben G. Patel; Jotindra
Patel; Rekha J. Patel; Dilip P. Patel; Kalpana D. Patel: Anil
P. Kumar; Sunita A. Kumar; Rajendra K. Kalyan; Pushpa
R. Kalyan; Bhupendra K. Kalyan; Bhartiben B. Kalyan;
Narbada Kalyan Kalyan; Harish Sharma; Naresh Patel;
Bobby Newman,

Plaintiffs-Appellants,
V.

CITY OF OAKLAND, a municipal corporation; City of Oakland
Police Department; City of Oakland Police Officer D.
Martinez Sued As Doe 1; City of Oakland Police Officer T.
Martin Sued as Doe 2; Oakland Housing Inspector Ronald
Abab sued as Doe 3; City Housing Inspector Gerald
Donahue Sued as Doe 4,

Defendants-Appellees.

2a

Argued and Submitted April 10, 2003.
Filed Sept. 17, 2003.

Appeal from the United States District Court for the
Northern District of California; Thelton E. Henderson,
District Judge, Presiding. D.C. No. CV-99-03758-THE/JCS.

Before NOONAN, McKEOWN, and RAWLINSON,
Circuit Judges.

OPINION
McKEOWN, Circuit Judge.

This case arises from a constitutional challenge to a pair of
city ordinances that place maintenance and _habitability
restrictions on hotels, motels, and rooming houses (“hotels”)
located in Oakland, California. One ordinance requires all
hotels to comply with certain maintenance, habitability,
security and record-keeping standards. The other ordinance
reclassifies those hotels with so-called “non-conforming use”
status to “Deemed Approved” status, and requires Deemed
Approved hotels to comply with the new standards in order to
retain that status. Appellants, the owners and operators of
various Oakland hotels as well as their trade association,
challenge the ordinances as an unconstitutional taking under
the Fifth Amendment. They also claim that the ordinances
violate their Fourteenth Amendment rights to procedural due
process and equal protection and are unconstitutionally
vague. We conclude that the ordinances pass constitu-
tional muster and thus affirm the district court’s dismissal of
the action.

BACKGROUND

In spring of 1999, the Oakland City Council enacted two
ordinances for the express purpose of improving the physical
conditions in and around hotels within Oakland. The Council

3a

had found over the preceding several years a continuing
pattern of illegal activity, including prostitution and drug use,
associated with many -hotels that were poorly maintained.
Steps to control the problem activities, including increased
policing and the filing of civil abatement actions by the City
Attorney, resulted in little success. The Council concluded
that regular maintenance and adequate property management
would lead to better outcomes.

The first of these ordinances, Ordinance No. 12136,
amends the Oakland Municipal Code (“OMC”) to add
Chapter 8.03 (“Operating Standards for Hotels, Motel[sic]
and Rooming Houses”),' which sets forth in detail various
regulations with respect to housekeeping conditions, prop-
erty security, and prevention of criminal and nuisance ~
activity.” The ordinance also amends Chapter 5.34 of the
OMC to add specific record-keeping requirements relating to
guest receipts.

The companion measure, Ordinance No. 12137, amends
the Oakland Planning Code (“OPC”) to create a “Deemed
Approved Hotel Program” at Chapter 17.157. The ordinance
reclassifies as “Deemed Approved Hotel Activities” all of

' The terms “hotel” and “rooming house” are defined by statute. See
OMC § 8.03.040. A “hotel” is “any public or private space or structure for
living therein, including but not limited to any: inn, hostelry, tourist home
or house, motel rooming house, mobile home or other living place within
the city, offering the right to use such space for sleeping or overnight
accommodations. . . .” OMC § 4.24.020. The term “rooming house” is
defined by the Oakland Planning Code (“OPC”) to include certain
buildings accommodating guests on a weekly or longer basis as well as
those accommodating “partly on a weekly or longer basis and partly for a
shorter time period. . . .” OPC §§ 17.10.690, 17.10.110, 17.10.120.

: Specifically, Chapter 8.03 contains individual subsections covering:
management practices, inspection of records and facilities, property
security, housekeeping conditions in excess of normal “wear and tear,”
room furnishings, exterior of property, common areas, and criminal and
nuisance activity.

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those hotels that previously had “legal nonconforming use”
status’ and requires that Deemed Approved hotels comply
with the new performance standards established by Ordinance
No. 12136. Failure to abide by the new performance
standards constitutes an infraction, and may result in
misdemeanor prosecution, fines, and enforcement actions.
OPC § 17.157.180. Violations may ultimately lead, after a
public hearing and administrative review, to revocation of a
hotel’s Deemed Approved status. OPC § 17.157.120.

The-Hotel & Motel Association of Oakland and a number
of individual hotel owners and operators (collectively the
“Association”) brought this action challenging the ordinances
under both the United States and California Constitutions.
After various interim rulings in which the district court
dismissed certain of the Association’s claims, the parties
agreed to a Stipulation and Judgment of Dismissal, which was
entered by the district court. Under the Stipulation and
Judgment of Dismissal, certain claims were “dismissed with
prejudice with no right of appeal,” while the remaining claims
were “preserved for appeal.”

As a result of these proceedings, the only claims remaining
on appeal are: a claim alleging an unconstitutional taking of
property under the Fifth Amendment, claims alleging
violations of the procedural Due Process and Equal Protec-
tion clauses of the Fourteenth Amendment, and a facial
challenge alleging that the Oakland ordinances are uncon-
stitutionally vague.

3 Under California law, “{a] legal nonconforming use is one that
existed lawfully before a zoning restriction became effective and that iS
not in conformity with the ordinance when it continues thereafter.”
Hansen Bros. Enters., Inc. v. Board of Supervisors, 12 Cal.4th 533, 540 n.
1, 48 Cal.Rptr.2d 778, 907 P.2d 1324 (Cal.1996).

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DISCUSSION

I. JURISDICTION

Although the parties did not question appellate jurisdiction,
we raised the issue sua sponte and requested supplemental
briefing. See WMX Techs., Inc. v. Miller, 104 F.3d 1133,
1135 (9th Cir.1997) (en banc) (“[W]e have raised [the ques-
tion of jurisdiction] sua sponte, as we must.”). Our concern
arose because of the posture of the district court’s initial order
granting in part the City’s Rule 12(b)(6) motion to dismiss.
Some of the claims addressed by the order were dismissed
“without prejudice,” and it was not clear from the parties’
initial briefing whether the court had entered a final judgment
dismissing the action in its entirety.

“A ruling is final for purposes of [28 U.S.C.] § 1291 if it
(1) is a full adjudication of the issues, and (2) clearly
evidences the judge’s intention that it be the court’s final act
in the matter.” Nat’! Distrib. Agency v. Nationwide Mut. Ins.
Co., 117 F.3d 432, 433 (9th Cir.1997) (internal quotation
marks omitted). The record before us demonstrates that the
district court intended to dismiss the action in its entirety after
an adjudication of all the issues, despite the fact that some
claims were originally dismissed without prejudice. By its
terms, the Stipulation and Judgment of Dismissal signed by
the district court served as an “entry of dismissal of the. . .
action.” The procedural history leading up to that order
documents the court’s intent. After several of the claims in
the First Amended Complaint were dismissed without
prejudice, the Association reincorporated those claims in a
Second Amended Complaint. Following the court’s sub-
sequent order granting judgment on the pleadings as to the
Second Amended Complaint, the only claims that remained
were a Fourth Amendment claim brought by individual
plaintiffs against the City and an Equal Protection claim
based on discriminatory intent. Both claims were dismissed
with prejudice with no right of appeal in the Stipulation and

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Judgment of Dismissal. Accordingly, the district court’s
dismissal of the action constituted a reviewable final decision
and we have jurisdiction pursuant to 28 U.S.C. § 1291. See
De Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir.1998)
(“[D]ismissal of an action, even when it is without prejudice,
is a final order.” (emphasis added)).

If. FIFTH AMENDMENT TAKINGS CHALLENGE

We first address the facial takings claim brought under the
Takings Clause of the Fifth Amendment. “A facial challenge
involves a claim that the mere enactment of a statute con-
stitutes a taking,” and is to be distinguished from an “as
applied” challenge, which “involves a claim that the
particular impact of a government action on a specific piece
of property requires the payment of just compensation.”
Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686 (9th
Cir.1993) (citation and internal quotation marks omitted). The
Association, which faces an “uphill battle” in bringing this
facial attack, Keystone Bituminous Coal Ass’n v. DeBene-
dictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 94 L.Ed.2d 472
(1987), urges that the mere enactment of Ordinance
No. 12137 constituted a “regulatory taking” of property by
the City.

As we have explained previously, “[a] regulatory taking
occurs when the value or usefulness of private property is
diminished by a regulatory action that does not involve a
physical occupation of the property.” Levald, 998 F.2d at
684. In contrast to condemnations and physical takings,
which find their origin in the plain language of the Fifth
Amendment, regulatory takings are “of more recent vintage”
in the Supreme Court’s jurisprudence and do not easily lend
themselves to the straightforward application of set formulas
and categorical rules. Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency, 535 U.S. 302, 322, 122 S.Ct.
1465, 152 L.Ed.2d 517 (2002). Nevertheless, “the contours
have been established: a land use regulation does not con-

Ta

stitute a taking if the regulation does not deny a landowner all
economically viable use of the property and if the regulation
substantially advances a legitimate government interest.”
Buckles v. King County, 191 F.3d 1127, 1140 (9th Cir.1999).

The district court appropriately rejected as “unripe” the
Association’s contention that its members are being denied
economically viable use of their land. “Under our precedents,
a facial takings claim alleging the denial of the economically
viable use of one’s property is unripe until the owner has
sought, and been denied, just compensation by the state.”
San Remo Hotel v. City and County of San Francisco, 145
F.3d 1095, 1101 (9th Cir.1998). This jurisdictional predicate
is grounded in the text of the Fifth Amendment and in the
Supreme Court’s admonition that “no constitutional violation
occurs until just compensation has been denied.” Williamson
County Reg’! Planning Comm'n v. Hamilton Bank, 473 U.S.
172, 194 n. 13, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). As
the district court correctly pointed out, nowhere in its
pleadings does the Association aver that it has pursued state
administrative or judicial remedies to seek just compensation.
Accordingly, the takings claim, insofar as it alleges a denial
of economically viable use, is unripe for review.*

The Association also pursues an alternative facial taking
theory, namely that Ordinance No. 12137 does not sub-
stantially advance a legitimate state interest. The just
compensation ripeness requirement does not apply to this
claim, as it does not depend on the extent to which the

* As we noted in San Remo Hotel, this ripeness requirement does not
apply “where the state does not have a ‘reasonable, certain, and adequate
provision for obtaining compensation’ at the time of the taking, in which
case the facial takings claim is instantly ripe.” 145 F.3d at 1101-02
(quoting Williamson County, 473 U.S. at 194, 105 S.Ct. 3108). But the
Association cannot avail itself of this exception as “we have expressly
held that, post-1987, California’s inverse condemnation procedures are
adequate to address a regulatory takings claim.” /d. at 1102.

8a

Association was compensated. See Sinclair Oil Corp. v.
County of Santa Barbara, 96 F.3d 401, 406 (9th Cir.1996)
(citing Yee v. City of Escondido, 503 U.S. 519, 533-34, 112
S.Ct. 1522, 118 L.Ed.2d 153 (1992)). Rather, the claim is
based on the assertion that the municipality never had
constitutional authority to adopt the ordinance, regardless of
any compensation that might be offered. See Daniel v.
County of Santa Barbara, 288 F.3d 375, 385 (9th Cir.2002),
cert. denied, 537 U.S. 973, 123 S.Ct. 466, 154 L.Ed.2d 329
(2002). We therefore address this claim on the merits.

The Association’s central contention is that whether the
challenged ordinances substantially advance a legitimate state
interest presents a factual question incapable of resolution on
a motion to dismiss prior to discovery. The Association relies
heavily on language by the Supreme Court in Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 124, 98
S.Ct. 2646, 57 L.Ed.2d 631 (1978), where the Court
characterized regulatory takings cases as “essentially ad hoc,
factual inquiries.” The Association argues that because it has
alleged that there is neither specific evidence of a legitimate
government purpose nor any evidence that the regulation is
reasonably related to such a purpose, the district court was
premature in dismissing its claim.

The Association’s reading of the regulatory takings juris-
prudence, as well as the record in this case, is unduly
restrictive. The Supreme Court phraseology seized upon by
the Association does not stand for the position that every
inquiry into the appropriateness of a regulation’s purpose or
adopted means of implementation requires the development
of a sophisticated factual record or, as the argument implies,
resolution by a jury. Far from it. As.the Court recently
explained in 7ahoe-Sierra, “ad hoc, factual” determinations
frequently arise in regulatory takings cases because these
cases, unlike those involving physical appropriation or
condemnation (where the fact of a taking is typically obvious

9a

or undisputed), do not easily lend themselves to broad
categorical rules. 535 U.S. at 321-326 & n: 17, 122 S.Ct.
1465. Regulatory takings claims, in short, do not easily fit
into a pre-ordained construct or little box; individualized
scrutiny of such claims does not foreclose resolution on a
motion to dismiss or a motion for summary judgment.

Our decision in Buckles is instructive. In that case, land-
Owners whose property was redesignated for residential use
argued that whether the decision substantially advanced a
legitimate government interest was a jury question incapable
of resolution on summary judgment. 191 F.3d at 1140.
Following the district court’s dismissal of the case, the
Supreme Court decided City of Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687, 721, 119 S.Ct. 1624, 143
L.Ed.2d 882 (1999), in which the Court approved of a trial
court’s decision to let a jury decide whether, in light of the
context and history of the development application process, a
city’s decision to reject a particular development plan
substantially advanced a legitimate state purpose. We
rejected the broad reading of Del Monte Dunes urged by the
landowners and concluded that the Supreme Court did not
intend to “swallow long-standing summary judgment prin-
ciples and always require a jury trial to determine whether the
government’s interests were legitimate and substantial.”
Buckles, 191 F.3d at 1140.

We decline to adopt the remarkable position that deter-
mining whether an ordinance, on its face, substantially
advances a legitimate state interest can never be decided on a
motion to dismiss. We also reject the Association’s position
that the record before us is not sufficiently developed to
warrant disposition at this stage. See Agins v. City of ~
Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138, 65 L.Ed.2d 106
(1980) (looking to the state’s justifications provided in the
Statute to conclude zoning ordinances substantially advanced
legitimate interests).

10a

Although the Association’s takings challenge is directed to
Ordinance No. 12137 and whether it advances a legitimate
state interest, it is useful to discuss the ordinances in tandem.
Both ordinances are supported by the same legislative find-
ings and are intended to dovetail one another in enforcement.
The ordinances, on their face, are directed toward protecting
the health and welfare of citizens and visitors in Oakland.
Based on legislative findings, the ordinances target an
increasing concentration of illegal activity, unsanitary and
dangerous conditions, and a variety of nuisances associated
with problem hotels. The purpose is undeniably legitimate,
see Keystone Bituminous Coal, 480 U.S. at 492, 107 S.Ct.
1232 (explaining that the “public interest in preventing
activities similar to public nuisances is a substantial one” that
rarely results in a taking), and the means chosen substantially
advance that purpose.

A review of the ordinances and the extensive legislative
findings reveals that the City documented the problems,
undertook various approaches and efforts to abate the illegal
activity and unsanitary conditions, and ultimately concluded
that Ordinance Nos. 12136 and 12137 were in the “best
interest” of the community. For example, the City Council
found that the existing housing code did not address the
problems and that the police spent inordinate time and
resources policing certain businesses. Further, the problem
businesses allowed open use of their property for drug and
prostitution activity and took minimal action to curb this
activity. The City also documented safety, security, health,
and other hazards and, notably, concluded that “there is a
correlation between high levels of drugs and prostitution
activity and the existence of substandard and public nuisance
conditions at the problem properties.”

Ordinance No. 12136 institutes basic maintenance, house-
keeping, and security regulations applicable to all hotels.
Recognizing that civil abatement actions and other attempts

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to improve conditions were unsuccessful in the past, and that
few legal nonconforming businesses have revocable land use
permits, Ordinance No. 12137 takes the further step of
refashioning nonconforming use status such that continued
operation is conditioned on a business’s compliance with the
new regulations. A reasonable relationship exists between
this regulatory action and the public purpose it is meant
to serve. Thus, the ordinance substantially advances a
legitimate government interest. See Chevron U.S.A., Inc. v.
Cayetano, 224 F.3d 1030, 1041 (9th Cir.2000) (discussing
Del Monte Dunes and explaining that a “challenged regu-
latory action ‘substantially advances’ its interest if it bears a
reasonable relationship to that interest.”).

The Association also raises the concern that Oakland’s
new ordinances were enacted against the backdrop of exist-
ing statutory protection for nonconforming uses. OPC
§ 17.114.040, in effect at the time the ordinances were
enacted, generally allows a nonconforming use to be
continued and maintained indefinitely and the rights to such
use run with the land. According to the Association,
Ordinance No. 12137 effectively extinguishes the non-
conforming use guarantees of that provision.

But Oakland’s new regulation does nothing of the sort.
Nothing in Ordinance No. 12137 suggests that the redesig-
nation of properties from “non-conforming” to “Deemed
Approved” status has any effect on the conditional guarantees
in Ordinance No. 12137 or any other Statutory provisions
applying to what were formerly known as legal noncon-

* Section 17.114.40 provides, in relevant part: A nonconforming use
which is in existence on the effective date of the zoning regulations or of
any subsequent rezoning or other amendment thereto which makes such
use nonconforming, and which existed lawfully under the previous zoning
controls . . . may thereafter be continued and maintained indefinitely, and
the rights to such use shall run with the land, except as otherwise specified
in the nonconforming use regulations.

12a

forming businesses.° Rather, the text of Ordinance No. 12137
mandates precisely the opposite. See OPC § 17.157.030(C)
(“The Nonconforming Use provisions of the zoning regu-
lations . . . shall apply to the Deemed Approved Hotel
regulations.”). Even if we were to accept the Association’s
contention that a conflict exists between Ordinance No.
12137 and § 17.114.040, there is no substantive change with
respect to the Association’s use of its property other than
compliance with basic health and safety regulations
applicable to all other hotels. See City of Oakland v. Superior
Court, 45 Cal.App.4th 740, 757, 53 Cal.Rptr.2d 120 (1996)
(upholding a similar “Deemed Approved” program for liquor
stores on the ground that “[a] municipality retains the right to
abate nuisances and enforce its criminal laws even in the face
of grandfather rights”); see also Bauer v. City of San Diego,
75 Cal.App.4th 1281, 1292-95, 89 Cal.Rptr.2d 795 (1999)
(discussing grandfather rights of nonconforming businesses in
context of deemed approved program). -

In sum, because Ordinance No. 12137 substantially ad-
vances a legitimate state interest and no other takings claim
was ripe for review, we conclude that the Association’s
takings claims were properly dismissed.

III. PROCEDURAL DUE PROCESS CLAIM

The Association’s procedural due process claim stems
from a complaint that it did not receive an individualized
hearing prior to the enactment of the ordinances. Whether the
Association was accorded procedural due process when the
new hotel regulations were enacted depends on the nature of
the decision leading to the City’s newly enacted regulations.
Generaliy, if the “action complained of is legislative in
nature, due process is satisfied when the legislative body
performs its responsibilities in the normal manner prescribed

° Section 17.114.040’s guarantees are not absolute. They apply “ex-
cept as otherwise specified in the nonconforming use regulations.”

13a

by law.” Halverson v. Skagit County, 42 F.3d 1257, 1260
(9th Cir.1995) (as amended) (internal quotation marks
omitted). This rule of thumb follows from the observation
made by Justice Holmes almost a century ago that, even
though an individual’s property rights may be affected by the
enactment of a general statute, “[w]here a rule of conduct
applies to more than a few people, it is impracticable that
everyone should have a direct voice in its adoption.” Bi-
Metallic Inv. Co. v. State Bd. of Equalization, 239 US. 441,
445, 36 S.Ct. 141, 60 L.Ed. 372 (1915).

Of course, public decision-makers cannot sidestep the
dictates of due process by simply giving their actions a
legislative moniker. Our cases have been careful to focus on
the “character of the action, rather than its label,” avoiding
“formalistic distinctions between ‘legislative’ and ‘adju-
dicatory’ or ‘administrative’ government actions.” Harris vy.
County of Riverside, 904 F.2d 497, 501 (9th Cir.1990). In
Harris, we held that, notwithstanding an action’s outward
appearance as a legislative act, greater procedural rights may
attach where only a few persons are targeted or affected and
the state’s action “exceptionally affect[s]” them “on an
individual basis.” Jd. at 502 (internal quotation marks
omitted). By contrast, “our cases have determined also that
governmental decisions which affect large areas and are not
directed at one or a few individuals do not give rise to the
constitutional procedural due process requirements of
individualized notice and hearing; general notice as provided
by law is sufficient.” Halverson, 42 F.3d at 1261.

The City Council’s actions constituted the purest of
legislative acts. Both ordinances are laws of general applic-
ability affecting a broad geographic area and the complete
range of hostelries, as opposed to one or a few individuals or
establishments. Ordinance No. 12136, which sets forth a
variety of operating standards, states that its provisions apply
to all hotels “which provide shelter, furniture, linens, and

l4a

housekeeping services, etc. within the guest room(s) and
throughout the property.” OMC § 8.03.030. Ordinance No.
12137, aimed at amending the non-conforming use regula-
tions, indicates that “[t]he Deemed Approved Hotel regula-
tions shall apply, to the extent permissible under other laws,
to all Legal Nonconforming Hotels and Rooming Houses
within the City.” OPC § 17.157.030(A) (emphasis added).

The Association seeks refuge in Harris by arguing that, in
adopting Ordinance No. 12137, the City targeted “a relatively
small number of persons” who were “exceptionally affected”
on an “individual basis.” 904 F.2d at 502 (internal quotation
marks omitted). But the mere fact that a subcategory of
hotels motivated the City Council to act does not change the
legislative quality of the ordinance. Unlike in Harris, where
a county specifically targeted a single individual’s property
for a zoning change after notice had been published for an
area-wide plan amendment, Ordinance No. 12137 is a garden
variety statute affecting an entire class of Oakland hotels.
None of the allegations made by the Association, or by the
forty-nine individual plaintiffs who brought this action,
support the claim that one or only a few individuals were
targeted or affected.

Nor were any of the members of the Association “ex-

ceptionally affected . . . on an individual basis.” Harris, 904

F.2d at 502. Unlike in Harris, where the zoning decision
completely altered the permissible uses of the individual’s
land by changing it from commercial to residential use, the
ordinances effect no substantive change in the legal status of
the hotels. The hotels still enjoy their non-conforming use
privileges, only with a different label and with the added
requirement that they abide by the most basic habitability and
nuisance standards. Significantly, in the event of claimed
non-compliance, a comprehensive administrative apparatus
ensures that violators have the right to a noticed public
hearing and an appeal. See OPC §§ 17.157.070-150.

Se hie eee

15a

When the City Council exercised its legislative functions in
a lawful manner, the Association received all the process that
was due. The Association’s constitutional rights were
“protected in the only way that they can be in a complex
society, by their power, immediate or remote, over those who
make the rule.” Bi Metallic, 239 U.S. at 445, 36 S.Ct. 141.
No additional individualized notice or hearing was required.

IV. EQUAL PROTECTION AND VAGUENESS
CHALLENGES

The Association raises two final constitutional challenges
to the Oakland ordinances: an equal protection claim and a
vagueness challenge.

A. EQUAL PROTECTION

The Association’s only equal protection argument on
appeal is that Ordinance No. 12137, unlike its counterpart
Ordinance No. 12136, impermissibly targets nonconforming
hotels. Because there is no allegation that the ordinance
burdens a suspect class or a fundamental interest, the City
must demonstrate only that the classification scheme is
“rationally related to a legitimate state interest.” City of New
Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49
L.Ed.2d 511 (1976).

Ordinance No. 12137 easily passes the “highly deferential”
rational basis standard of review for the reasons we addressed
in our analysis of the “substantially advance” requirement of
the facial takings claim. See S. Pac. Transp. Co. v. City of
Los Angeles, 922 F.2d 498, 507 (9th Cir.1990); see also
Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161,
165-66 (9th Cir.1993) (concluding, in context of takings and
equal protection challenges, that legislation both substan-
tially advanced and was rationally related to legitimate
State interest).

——

l6a

The direct links between the legislative findings and the
scope of the oidinances serve to distinguish Oakland’s
scheme from City of Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985),
the case relied upon by the Association. In that case, the
Supreme Court concluded that an ordinance requiring a
special use permit for homes for the mentally retarded did not
pass rational basis scrutiny because it was based on irrational
prejudices rather than a showing that the home would pose a
special threat to the city’s interests. Id. at 448-49, 105 S.Ct.
3249. Here, by contrast, Deemed Approved hotels are subject
to the same standards as all other hotels and, to the extent that
those standards are uniquely enforced as a “condition” of
Deemed Approved status, there is a reasonable justification
for doing so. Ordinance No. 12137, on its face, states that
“few or none of the legal nonconforming businesses have
land use permits with associated conditions that can be
revoked for violations of the conditions or public nuisance-
related activities.” This enforcement dilemma underscores
that, unlike the ordinance invalidated in Cleburne, Oakland’s
enforcement scheme stems not from an irrational prejudice
but rather from the unique traits of the target businesses.
Ordinance No. 12137 does not deny the Association equal
protection. See Board of Trustees v. Garrett, 531 U.S. 356,
366-67, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (“Under
rational-basis review, where a group possesses ‘distinguish-
ing characteristics relevant to interests the State has _ the
authority to implement,’ a State’s decision to act on the
basis of those differences does not give rise to a constitu-
tional violation.” (quoting Cleburne, 473 U.S. at 441, 105
S.Ct. 3249)).

B. VAGUENESS

The Association’s vagueness claim comes in the form of a
facial challenge, presenting a hurdle that is difficult for the
Association to scale. To bring a successful facial challenge

Be ent ed ld ad Ae He ls Ra a aR.

17a

outside the context of the First Amendment, “the challenger
must establish that no set of circumstances exists under which
the [statute] would be valid.” United States v. Salerno, 481
U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
Although Salerno itself was not a void-for-vagueness case,
the principle it articulated was a general one, and the
Supreme Court previously explicitly limited facial vagueness
claims under the same standard:

In a facial challenge to the overbreadth and vagueness of
a law, a court’s first task is to determine whether the
enactment reaches a substantial amount of constitu-
tionally protected conduct. If it does not, then the
overbreadth challenge must fail. The court should then
examine the facial vagueness challenge and, assuming
the enactment implicates no constitutionally protected
conduct, should uphold the challenge only if the
enactment is impermissibly vague in all of its
applications. ’

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)
(footnotes omitted).

We recognize that, despite the Supreme Court’s directive
in Hoffman Estates and Salerno, the Court’s most recent
discussion of facial vagueness challenges has cast some doubt
on the “no set of circumstances” requirement. In City of
Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144
L.Ed.2d 67 (1999), the Court did not apply the Salerno test in
reviewing, and ultimately upholding, a facial challenge to an

” The Association does not proceed under the overbreadth doctrine,
which “allows a plaintiff to challenge a statute . . . because of a judicial
prediction or assumption that the statute’s very existence may cause others
not before the court to refrain from constitutionally protected speech or
expression.” Nunez v. City of San Diego, 114 F.3d 935, 949 (9th
Cir.1997) (citation and internal quotation marks omitted). It claims only
that the ordinances are unconstitutionally vague on their face.

18a

ordinance banning gang members from loitering in public
places after being ordered to disperse. Rejecting the dissent’s
argument that Salerno’s all-or-nothing test applied to all cases
other than free-speech cases subject to the overbreadth
doctrine, the plurality stated that the Salerno formulation was
dictum. Id. at 55 n. 22, 119 S.Ct. 1849. The plurality further
noted that it did not need to resolve the viability of the
Salerno rule, which it characterized as a species of third-
party standing, because Morales arose from a state, rather
than a federal, court. Jd. (“Whether or not it would be appro-
priate for federal courts to apply the Salerno standard in some
cases—a proposition which is doubtful—state courts need not
apply prudential notions of standing created by this Court.”).

Although we have not had occasion to consider the impact
of Morales on facial challenges under the void-for-vagueness
doctrine, we have done so in another context. In S.D. Myers,
Inc. v. City and County of San Francisco, 253 F.3d 461 (9th
Cir.2001), we reviewed a facial challenge under the
Commerce Clause and rejected the argument that Salerno had
been undermined. Acknowledging the dicta of the Morales
plurality, we observed:

[A]nother plurality of Justices is equally adamant that
Salerno is the correct standard in every context, with the
exception of certain First Amendment cases. See
Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147
L.Ed.2d 743 (2000) (Thomas, J., dissenting, joined by
two justices); Planned Parenthood of S. Arizona v.
Lawall, 180 F.3d 1022, 1026 (9th Cir.1999). While we
have held that [Planned Parenthood v. Casey, 505 US.
833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)] ‘overruled
Salerno in the context of facial challenges to abortion
statutes,’ Lawall, 180 F.3d at 1027, we will not reject

* Sade:

Nace At Deca Kak sitio SS ante be

ss Hecagnts

19a

Salerno in other contexts until a majority of the Supreme
Court clearly directs us to do so.

Id. at 467. We subsequently applied the Salerno rule to
another facial challenge outside the First Amendment context.
See United States v. Bynum, 327 F.3d 986 (9th Cir.2003)
(facial challenge to anti-bribery statute).

We stand by our holding in S.D. Meyers. Until a majority
of the Supreme Court directs otherwise, a party challenging
the facial validity of an ordinance on vagueness grounds
outside the domain of the First Amendment must demonstrate
that “the enactment is impermissibly vague in all of its
applications.” Hoffman Estates, 455 U.S. at 495, 102 S.Ct.
1186.° No such showing was made here, and even if the all-
or-nothing principle were inapplicable, the Association’s
challenge cannot succeed. The ordinances are simply not
vague on their face or in their application.

The Association takes issue with the requirement in
Ordinance No. 12136 that prohibits hotel operators from
contributing to nuisance activities on or in “close proximity
to” the property, OMC § 8.03.120(A), but fails to allege that
every (or any) application of that provision would qualify as
unconstitutionally vague. Indeed, the Association fails even
to identify how the ordinance would be impermissibly vague
as applied to its own members. Without more, we have little
trouble concluding that Ordinance No. 12136 provides suf-
ficient notice to ordinary hotel owners of the conduct that is

* Although we address the Salerno rule in the context of a facial vague-
ness challenge, the rule’s fate may also have implications for Fifth
Amendment takings challenges. See Kittay v. Giuliani, 252 F.3d 645, 647
(2d Cir.2001) (applying Salerno to facial takings challenge); Gulf Power
Co. v. United States, 187 F.3d 1324, 1336 (11th Cir.1999) (same). Our
cases generally have not applied Salerno to facial takings challenges, and
because we uphold dismissal of the Association’s takings claim on other
grounds, see supra Part II, we need not resolve here the precise contours
of the rule’s application in that context.

20a

prohibited and gives law enforcement ample guidance to
enforce it in a non-arbitrary way. Nunez v. City of San Diego,
114 F.3d 935, 940 (9th Cir.1997) (explaining that “an
ordinance must (1) define the offense with sufficient defi-
niteness that ordinary people can understand what conduct is
prohibited; and (2) establish standards to permit police to
enforce the law in a non-arbitrary, non-discriminatory man-
ner.”) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103
S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

The phrase “close proximity” clarifies that hotels may not
contribute to nuisance activities “on” or “very near” the hotel
property. See Merriam-Webster’s Collegiate Dictionary 941
(10th ed.1993) (defining “close” as “being near in time,
space, effect, or degree” and “proximate” as “very near’’).
The provision in question provides no less than nineteen
specific examples of the types of conduct to which this
provision applies, such as harassment of passersby, gambling,
and prostitution. OMC § 8.03.120(A). When read in context
and applied to these forms of conduct, the phrase “close
proximity” identifies a “sufficiently fixed place” to provide
the type of notice and standards required by the Constitution.
Grayned v. City of Rockford, 408 U.S. 104, 111i, 92 S.Ct.
2294, 33 L.Ed.2d 222 (1972) (approving ordinance for-
bidding certain activity “adjacent” to school and citing Cox v.
Louisiana, 379 U.S. 559, 568, 85 S.Ct. 476, 13 L.Ed.2d 487
(1965), for the position that “near” a courthouse is not
impermissibly vague as applied).

The Association also claims that Ordinance No. 12137,
which contemplates criminal penalties, does not contain a
mens rea requirement. This omission, argues the Association,
conflicts with the Supreme Court’s instruction that the
absence of a scienter requirement is an important factor in
evaluating a vagueness challenge. See Colautti v. Franklin,
439 US. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). The
Court, however, has never suggested that the absence of a

a eee

2la

mens rea requirement, by itself, renders a Statute uncon-
Stitutional. Nor has the Court gone so far as to indicate that
the absence of a scienter requirement trumps Salerno’s
requirement that the complainant establish that the law is
impermissibly vague in all its applications. See Hoffman
Estates, 455 U.S. at 497-99, 102 S.Ct. 1186 (recognizing that
scienter requirement “may mitigate” a statute’s vagueness,
but stating that “[t]o succeed .. . the complainant must
demonstrate that the law is impermissibly vague in all of its
applications”); see also Staley v. Jones, 239 F.3d 769, 790-91
(6th Cir.2001) (observing that the Court has not unequiv-
ocally stated that a statute without a scienter requirement may
| be facially invalidated on vagueness grounds without con-
sidering whether the statute is invalid in all applications).
The Association does not allege that Ordinance No. 12137,
which applies the substantive requirements of Ordinance No.
12136 to Deemed Approved hotels, is impermissibly vague in
all of its applications. The absence of a scienter: requirement
does not alter our conclusion that neither ordinance is
unconstitutionally vague on its face.

CONCLUSION

In sum, we conclude that the ordinances do not result in an
unconstitutional taking of the Association’s property under
the Fifth Amendment. Nor were the Association’s rights to
procedural due process and equal pr ection violated by the
enactment of the challenged ordinar» :s. Finally, the Asso-
ciation has failed to demonstrate that the ordinances are
unconstitutionally vague on their face. Accordingly, we
affirm the district court’s judgment.

AFFIRMED.

22a
APPENDIX B

: UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

[Filed Jan. 15, 2002]

Case No. C-99-3758-THE(JCS)

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,
Plaintiffs,
V.

CITY OF OAKLAND, et al.
Defendants.

STIPULATION AND JUDGMENT OF DISMISSAL

Plaintiffs HOTEL -& MOTEL ASSOCIATION OF
OAKLAND; BALU K. PATEL; USHA B. PATEL, NAVIN
PATEL; TARA N. PATEL; BHARAT PATEL; NIKETA
PATEL; PARSOTTAM V. PATEL; GITA PATEL; VINOD
P. PATEL; MADHUBEN V. PATEL; JAGDISH PATEL;
BHARTI J. PATEL; RAMESH D. PATEL; THAKORBHAIT
G. PATEL; MANJUBEN T. PATEL; KIRIT S. PATEL;
RANJAN K. PATEL; MANUBHAI L._ PATEL;
SHARDABEN M. PATEL; PRAVIN PATEL; SIMA
PATEL; NATWARBHAI PATEL; JAGDISHKUMAR B.
PATEL; JAYESHKUMAR D. PATEL; HASMUKH B.
PATEL; BHISMA PATEL; BABUBHAI K. PATEL;
KALABEN' B. PATEL; VALLABH H._ PATEL;
JAMNABEN V. PATEL; RANCHODBHAI D. PATEL;
PARBHUBHAI V. PATEL; KAMUBEN P. PATEL;
GOVINDBHAI Z. PATEL; MADHUBEN G. PATEL;
JOTINDRA PATEL; REKHA J. PATEL; DILIP P. PATEL;
KALPANA D. PATEL; ANIL P. KUMAR; SUNITA A.
KUMAR; RAJENDRA K. KALYAN; PUSHPA R.
KALYAN; BHUPENDRA K. KALYAN; BHARTIBEN B.

bt OE NN ee IT cette a

dort Darr lar ab adel tae t

23a

KALYAN; NARBADA KALYAN; HARISH SHARMA;
NARESH PATEL; and BOBBY NEWMAN (hereinafter
“PLAINTIFFS”) and Defendants CITY OF OAKLAND;
OFFICER D. MARTINEZ; OFFICER T. MARTIN:
GERALD DONAHUE; and RONALD ABAD (hereinafter
“DEFENDANTS”) hereby stipulate to an entry of dismissal
of the above captioned action, upon the terms and conditions
set forth herein as follows:

DEFENDANTS agree to pay to PLAINTIFFS the sum of
FOUR THOUSAND DOLLARS ($4,000.00), payable in trust
to their attorney, Frank A. Weiser, California State Bar No.
89780 within thirty (30) days of the date of this stipulation;

PLAINTIFFS allege that the Defendant CITY OF
OAKLAND did not comply with local and state law with
respect to code enforcement, as set forth in the Second
Amended Complaint herein. The CITY OF OAKLAND
denies this assertion, and specifically asserts that it has
complied and will continue to comply with its own
ordinances and with state law with respect to code

any right by PLAINTIFFS, or any of them, to any claim
against the CITY OF OAKLAND for breach of contract
arising out of this settlement agreement.

The claims that are currently remaining, i.e., those arising
under 42 U.S.C. Section 1983 for alleged violations of
PLAINTIFFS’ rights under the Fourth Amendment of the
Constitution, and the claim for intentional discrimination
under the Equal Protection Clause of the Constitution are
hereby dismissed with prejudice with no right of appeal. The
Equal Protection claim based on legislative classification
under rational basis review regarding Ordinance Nos. 12136
and 12137 previously dismissed shall be preserved for appeal.

All other claims, including but not limited to the “facial
takings” and procedural due process claims previously dis-

a ST SMO IEE SLOTS

24a

missed by this Court pursuant to Motions to Dismiss and/or
for Judgment on the Pleadings shall be preserved for appeal.
Any “as applied” takings challenge, if it exists, shall be
preserved for challenge in a court of competent jurisdiction.

DATED: January 14, 2002 LAW OFFICES OF FRANK A. WEISER

By: Frank A. Weiser
FRANK A. WEISER
Attorney for Plaintiffs
DATED: January 14, 2002
JOHN A. RUSSO, City Attorney
RANDOLPH-W. HALL, Chief Assistant
City Attorney
ARLENE ROSEN, Deputy City Attorney

By: Arlene M. Rosen

ARLENE M. ROSEN

Attorney for Defendants, CITY OF
OAKLAND, et al.

ORDER
IT IS SO ORDERED.
DATED: 1/14/02 /s/ Thelton E. Henderson

THELTON E. HENDERSON
United States District Judge

SS a

25a
APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

[Filed Aug. 10, 2000]

NO. C 99-3758 TEH

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,
Plaintiffs,

V.

CITY OF OAKLAND, a municipal corporation; DOEs |
THROUGH 10 INCLUSIVE,
Defendants.

ORDER GRANTING IN PART, DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT

INTRODUCTION

The City of Oakland and Oakland Police Officers D.
Martinez and T. Martin (“Defendants”) move to dismiss this
action brought by the Hotel and Motel Association of
Oakland (“Association”) and its individual members (collec-
tively, “Plaintiffs”) pursuant to Fed.R.Civ.P 12(b)(6). Having
carefully considered the parties’ written arguments, and for
the reasons stated below, the motion is GRANTED in part
and DENIED in part.

BACKGROUND

Plaintiffs are owners of hotels, motels and rooming houses
(“hotels”) within the City of Oakland (“City”) which, until
recently, were nonconforming uses under the Oakland Plan-
ning Code (“OPC”). In May of 1999, the City adopted
Ordinance No. 12136 and Ordinance No. 12137. Ordinance

26a

No. 12136 requires hotel owners to comply with new
maintenance, habitability and record keeping standards.
Ordinance No. 12137 reclassified ali hotels with noncon-
forming use status to “Deemed Approved Hotel Activities”
and requires that Deemed Approved Hotels comply with the
new performance standards in order to retain their Deemed
Approved status.

Plaintiffs filed a lawsuit chailenging the ordinances in
August of 1999. Defendants moved to dismiss on October 8,
1999. In response, on November 4, 1999 plaintiffs filed their
First Amended Complaint, containing a litany of constitu-
tional challenges, along with a challenge to a warrantless
search of one of the individual plaintiff's hotels by two
Oakland police officers. Now before the Court is defendants’
motion to dismiss Plaintiffs’ First Amended Complaint in
its entirety.

LEGAL STANDARD

Dismissal is appropriate under Rule 12(b)(6) when a plain-
tiffs allegations fail to state a claim upon which relief can be
granted. FED. R. Civ. P. 12(b)(6). The Court must accept as
true the factual allegations of the complaint and indulge all
reasonable inferences to be drawn from them, construing the
complaint in the light most favorable to the plaintiff.
Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670
(9th Cir. 1993); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986). However, the Court need not necessarily
assume the truth of legal conclusions merely because they are
cast in the form of factual allegations. Western Mining
Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The Court
must construe the complaint liberally, and dismissal should
not be granted unless “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998); Johnson
v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); SA WRIGHT

Ss aceon The parties provide the Court with no guidance as to whether a fed-
eral court can satisfy the requirement that a party subjected to a
governmental taking must seek a judicial determination from the state
court that just compensation is due. Due to the conclusion above, the
Court need not address this issue at this time.

3la

to provide individualized notice violates procedural due
process rights only when a “relatively small number of
persons [are] concerned [and] exceptionally affected, in each
case upon individual grounds... .” /d. at 446 (distinguishing
Londoner v. Denver, 210 U.S. 373 (1908)); see also Harris v.
County of Riverside, 904 F.2d 497, 502-04 (9th Cir. 1990).
The adoption of Ordinance No. 12136 and No. 12137 did not
“exceptionally affect” a “relatively small number of per-
sons.” Indeed, Ordinance No. 12136 is applicable to every
hotel and motel operator in the City, and Ordinance No.
12137 is applicable to every hotel and motel previously

recognized as a nonconforming use. Since plaintiffs could not

possibly amend the complaint in a way that would alter this
conclusion, plaintiffs’ procedural due process claim based on
lack of individualized notice is dismissed with prejudice.

2. Bias

Second, plaintiffs allege that their procedural due process
rights were violated due to bias in the administrative process
that led to the adoption of the ordinances. Specifically,
plaintiffs allege bias on the part of city council members and
planning commission officials stemming from unspecified
“deprecatory remarks made at the hearings by several Plan-
ning Commissioners and City Council members against
plaintiffs as owners and operators of hotels and motels
subject to the ordinance.” See First Amended Complaint,
para. 32. This claim is without merit.

Procedural due process claims stemming from allegations
of a biased decision maker must relate to an adjudicative
proceeding. In particular, due process ensures that all

* In contrast to the instant case, the Londoner ordinance affected a
small number of property owners with land adjacent to the location of a
street improvement. See Londoner, 210 U.S. at 374. In Harris, the
challenged ordinance specifically targeted and affected virtually one
property owner. See Harris, 904 F.2d at 502-03.

32a

“proceedings which adjudicate . . . interests in life, liberty, or
property [shall] be free from bias and partiality... .”
Clements y. Airport Authority of Washoe County, 69 F.3d
321, 333 (9th Cir. 1995). This impartial tribunal requirement
“helps to guarantee that life, liberty, or property will not be
taken on the basis of an erroneous or distorted conception of
the facts or the law.” Marshall v. Jerrico, 446 U.S. 238, 242
(1980) (citing Mathews v. Eldridge, 424 USS. 319, 344
(1976)). The term “adjudication,” as used in this due process
inquiry, has been interpreted to encompass administrative
proceedings that are quasi-judicial in nature. See generally
Gibson y. Berryhill, 411 U.S. 564, 578-579 (1973) (state
administrative board of optometrists hearing charges against
other optometrists is an adjudicative procedure that warrants
protection); Morrissey v. Brewer, 408 U.S. 471, 485-486
(1972) (impartial tribunal requirement extended to deter-
minations made by parol officer), Walker v. City of Berkeley,
951 F.2d 182, 184-85 (9th Cir. 1991) (post-termination
hearing before City Manager is an adjudication requiring
unbiased decision maker).

Plaintiffs allege that the administrative and legislative
process leading to the adoption of the ordinances constituted
such an adjudicative proceeding. However, plaintiffs fail to
cite authority establishing that this is so. It is clear from
plaintiffs’ description of the process that it was not quasi-
judicial in nature. See First Amended Complaint, para. 7-32;
Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 957
(9th Cir.1991), vacated on other grounds, 506 U.S. 802
(1992) (due process is satisfied when legislative acts are
performed in the normal manner prescribed by law); /n re
The Park Beyond the Park v. City of Torrance, 157 B.R. 887,
892 (9th Cir. 1993).

Plaintiffs fail to provide any specificity as to the content of
the comments or the identities of the persons who allegedly
made them. In fact, it is difficult to discern the basis upon

33a

which the comments were taken as “deprecatory,” as the only
basis apparent in the complaint is plaintiffs’ status as hotel
owners. As such, the purportedly biased statements would
appear to pertain to plaintiffs’ status as property owners,
where those properties, and others like them, were the very
matter under consideration at the hearings. The Court need
not, and should not, engage in any further speculation or
guesswork. It is patently clear that the allegation of bias is
insufficiently pled.

Since plaintiffs cannot cure the defect in their complaint
regarding the non-adjudicative nature of the proceedings
leading to the adoption of the ordinances, plaintiffs’
procedural due process claim founded on bias is dismissed
with prejudice.°

C. Equal Protection Claim

Plaintiffs challenge Ordinance No. 12137 and Oakland
Planning Code section 17.114, which create the Deemed
Approved program, on the ground that these provisions “are

* With respect to the bias claim, defendants also contend that the city
council members and planning commission officials are protected by
legislative immunity to the extent their alleged comments were made at
legislative hearings. Because these individuals have not been named as
defendants, and because plaintiffs’ bias claim is dismissed on other
grounds, the Court will not address this assertion.

° The complaint references the “liberty component” of the Fifth and
Fourteenth Amendments, in an apparent effort to trigger substantive due
process analysis. However, the analysis required here is not for sub-
stantive due process, but for the more specific constitutional violations
alleged, including improper takings, and due process and equal protection
violations. Where, as here, “a particular amendment provides an explicit
textual source of constitutional protection against a particular sort of
governmental behavior that amendment, not the more generalized notion
of substantive due process must be the guide for analyzing these claims.”
Albright v. Oliver, 510 U.S. 266, 273 (1993). The substantive due process
Claim is therefore dismissed with prejudice.

34a

directed and carried out against plaintiffs and are not directed
and carried out in a similar fashion against, [sic.] as to other
similarly situated hotel and motel operators within the City’s
borders.” See First Amended Complaint, para. 57. In support
of this claim, plaintiffs allege that the classifications
embodied in Ordinance No. 12137 and OPC 17.114 are
“pretextual” and improperly motivated with the intent to
drive out and close down plaintiffs’ businesses for private
developers,” and that the classifications target plaintiffs based
on their “Asian-Indian origin.” Jd. at para. 58-59; see also
Armendariz v. Penman, 75 F.3d 1311, 1326-37 (1996) (a pre-
textual, malicious, irrational, or plainly arbitrary classifica-
tion does not pass constitutional muster under rational
relation test).

In evaluating the facial validity of the ordinance, plaintiffs
concede that it is not racially discriminatory on its face. It is
equally clear that the ordinance is directed at a broad class of
hotel and motel owners, and that it does not distinguish
among individuals or groups within that class. Since neither a
suspect class nor a fundamental right is implicated on the face
of the enactments, the Court applies the rational basis test.
See Southern Pacific v. City of Los Angeles, 922 F.2d 498,
507 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991); Fry v.
City of Hayward, 701 F.Supp. 179, 181 (N.D. Cal. 1988). As:
the Supreme Court has stated:

When local economic regulation is challenged solely as
violating the Equal Protection Clause, this Court con-
sistently defers to legislative determinations as to the
desirability of particular statutory discriminations. Un-
less a classification trammels fundamental personal
rights or is drawn upon inherently suspect distinctions
such as race, religion, or alienage, our decisions presume
the constitutionality of the statutory discriminations
and require only that the classification challenged be
rationally related to a legitimate state interest. . . [I]n the

le

35a

local economic sphere, it is only the invidious dis-
crimination, the wholly arbitrary act, which cannot stand
consistently with the Fourteenth Amendment.

New Orleans vy. Duke, 427 U.S. 297, 303-04 (1976).

The governmental purpose behind the Oakland ordinance
is to protect the health and welfare of citizens and visitors in
the City of Oakland, as stated in the ordinance itself. The
means chosen by the City, through the enforcement of
standards designed to improve safety and cleanliness in the
areas of these hotels and motels, have an indisputably rational
relationship to that legitimate goal. To borrow from the
language of the Ninth Circuit in Southern Pacific, “the
ordinance displays no outward sign of irrationality.” Southern
Pacific, 922 F.2d at 508.

Plaintiffs’ only way around the rational basis test is to
allege discriminatory intent, which, if well pled, would
trigger strict scrutiny review. See Kawaoka v. City of Arroyo
Grande, 17 F.3d 1227, 1239 (9th Cir. 1994), However, plain-
tiffs allege nothing more than that the City has “maliciously
targeted and threaten[ed]” them with Over-enforcement “on
the basis of racial and national origin.” Plaintiffs provide no
Clue as to how the City has exhibited its alleged discrim-
inatory intent against the plaintiffs in a council meeting,
through an actual application of the ordinance, or by any
other means. Once again, the Court need not, and will not,
make leaps of faith in construing inferences to support
plaintiffs’ claims.

Plaintiffs also argue that the Court should view the equal
protection claim ‘as applied.’ However, the allegations in the
complaint to support an ‘as applied’ challenge are purely
conclusory. There are no allegations that the ordinance and
related code provisions have actually been applied in a
discriminatory manner.

36a

Therefore, plaintiffs’ equal protection claim is dismissed
without prejudice.

D. Fifth Amendment (Void for Vagueness) Claim

Plaintiffs have brought a facial challenge to the ordinances
on the ground that they are “void for vagueness” in viola-
tion of the Fifth and Fourteenth Amendments.’ Plaintiffs
specifically argue that Oakland Municipal Code section
8.03.120, as amended by Ordinance No. 12136, is imper-
missibly vague on its face. That code section siates:

8.03.120 Criminal and nuisance activity.

A. Nuisance Activity. The operation of the property
shall not result in repeated nuisance activities on the
property or contribute to nuisance activities in close
proximity to the property, including but not limited to
disturbance of the peace, illegal drug activity, prosti-
tution, public drunkenness, drinking in public other
than at a licensed facility, harassment of passers by,
gambling, sale of stolen goods, public urination, theft,
assaults, batteries, acts of vandalism, illegal parking, ex-
cessive loud noises, especially in the late night or early
morning hours, traffic violations, curfew violations,
lewd conduct, or police detentions and arrests.

See First Amended Complaint, Exh. 3. The ordinance further
provides that certain violations may be prosecuted as mis-
demeanors. /d. at Exh. 3 [OMC sec. 8.03.120] & Exh. 4
[OMC sec. 17.157.180].

’ Plaintiffs’ complaint confusingly claims that the “ordinances are
‘void for vagueness’ and ‘as applied’ under the liberty component of the
Fifth and Fourteenth amendments.” However, plaintiffs’ claim must be
construed as a facial attack only, as they do not allege that the challenged
ordinances have been applied to anyone yet. The only allegation of a
specific incident is the alleged search at one of the Plaintiffs’ hotels, as
discussed infra. However, plaintiffs do not allege that the search was
conducted pursuant to either of the challenged ordinances.

|

37a

It is nearly impossible to glean from the First Amended
Complaint just which provisions of the ordinances plaintiffs
allege are impermissibly vague. The complaint makes minor
reference to the lack of definition of the terms “transient” or
“occupancy.” In their opposition brief, Plaintiffs provide
some further specificity, arguing that the ordinances fail to
define what “close proximity to the property” means, what
constitutes “lewd conduct,” and how far from their properties
is an “adjacent public sidewalk.”® Plaintiffs also incorporate
into their argument the “additional vagueness claims which
“have been specifically delineated in the complaint,” and they
chastise defendants for failing to “specifically address” these
allegations. Plaintiffs are living in a glass house. The
complaint is anything but specific, and it must be at least as
challenging for defendants to decipher plaintiffs’ disor-
ganized and disjointed claims as it is for the Court.
Nonetheless, the Court will continue to view the allegations
in the light most favorable to plaintiffs, and will endeavor to
find legitimate claims wherever and however they exist in
the complaint.

The Supreme Court has expressly directed that the iswer
courts view requests to strike down statutes as facially vague
with extreme caution. As the Court has stated, “under our
constitutional system courts are not roving commissions
assigned to pass judgment on the validity of the Nation’s
laws.” Broadrick vy. Oklahoma, 413 U.S. 601, 610-11 (1973).
Thus, when examining a facial vagueness challenge, a court
“should uphold the challenge only if the enactment is
impermissibly vague in all of its applications.” Village of
Hoffman Estates vy. Flipside, 455 U.S. 489, 494-95 (1982). In

* Plaintiffs also argue that they should not be subjected to criminal
sanctions for “contributing” to “nuisance activities in Close proximity to
the property,” instead of restricting the ordinances to activities occurring
on the properties. However, this is a challenge to the substance of the
ordinance, not a vagueness argument.

38a

other words, the challenger must show that the law is “invalid
in toto—and therefore incapable of any valid application. . .”
Stoianoff v. State of Montana, 695 F.2d 1214, 1219 (1983),
quoting Steffel v. Thompson, 415 U.S. 452, 474 (1974). The
possibility that the ordinance will be enforced arbitrarily or
too broadly “is of no due process significance unless the
possibility ripens into a prosecution,” at which time the
injured party may attack the ordinance as it has been enforced
against him or her. Stoianoff, 695 F.2d at 1222.

To test for vagueness, the Court determines whether the
ordinance “‘fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by the
statute.’” Papachristou v. City of Jacksonville, 405 U.S. 156,
162 (1972) [citation omitted]; see also U.S. v. Austin, 902
F.2d 743, 745 (9th Cir. 1990). In particular, the Supreme
Court has stated that “[i]n reviewing a business regulation for
facial vagueness . . . the principal inquiry is whether the law
affords fair warning of what is proscribed [and that] this
emphasis is almost inescapable in reviewing a pre-enforce-
ment challenge to a law.” Flipside, 455 U.S. at 503. The
presence of criminal penalties in the ordinances raises the

® The only exception to this limitation is where the enactment impli-
cates constitutionally protected conduct, in which case “a more stringent
vagueness test should apply.” Flipside, 455 U.S. at 498-99. Here, plain-
tiffs do not contend that the activity prohibited in the ordinances is
constitutionally protected. Nonetheless, plaintiffs’ complaint about the
prohibition on “lewd” activity raises the Court’s attention to the possi-
bility of a First Amendment concern. However, the Supreme Court and
the Ninth Circuit have reviewed statutes in a number of instances where
“lewd” conduct is proscribed, and the clear teaching of th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1310%3A1. Public record. Not legal advice.