Reply Brief — Hotel & Motel Ass'n v. City of Oakland

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IN THE

Supreme Court of the Gnited States

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,

Petitioners,

. ' F

CITY OF OAKLAND, et al.,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF OF PETITIONERS

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

May 24, 2004 * Counsel of Record

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

Page

BABE OF AUTHIORD TG oisciscsisiscicssciscsevecedecessessocee: ii

REPLY BRIEF OF PETITIONERS ..........cccccccccccccecececes. l

I. A SINGLE STANDARD SHOULD GOVERN

FACIAL CONSTITUTIONAL CHALLENGES

TO GOVERNMENT ENACTMENTS.........0c0cc0000. J

Il. THE CONFLICT BETWEEN THIS COURT’S

COMPETING STANDARDS IN SALERNO

AND MORALES IS SQUARELY PRESENTED... 3

A. Petitioners’ Claim Under Morales Was

Properly Presented To The Court of Appeals..... 4

B. The Court Of Appeals’ Rejection Of Morales

Is Outcome Determinative ............ccccccccccescessecee. 6

C. The Absence Of A Limiting Construction

Does Not Undermine The Need For Certiorari

I oes tasiesstccasiechuccasacaddebinternntincesrisiece cee. 8

RN MNUIUE scisiicinegsicegnuitiscet unisaaucl <rendiaes suc ck 10

TABLE OF AUTHORITIES

CASES Page

Board of Regent: v. Roth, 408 U.S. 564 (1972)...... 8

City of Chicago v. Morales, 527 U.S. 41

CE cessciccnisnicidienadenianaiicobaaadeleiaamnaa aes 1,7, 8,9

City of Houston v. Hill, 482 U.S. 451 (1987).......... 9

City of Lakewood v. Plain Dealer Publ’g Co., 486

Rais. FO 0 FE saxncadssunciaceiseleemeniaumaandaapaaian 9

United States v. Salerno, 481 U.S. 739 (1987)... l

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982) .........ccccccceeeees 9

REPLY BRIEF OF PETITIONERS

In our petition, we demonstrated that review by this Court

is necessary to resolve an issue of recurring national

importance concerning the appropriate standards that apply to

assess facia! challenges to the constitutionality of a statute.

Pet. 11-25. We showed that there is a conflict among this

Court’s decisions regarding the proper standard for evaluating

such a challenge, and that this conflict is reflected most

clearly in this Court’s decisions in United States v. Salerno,

481 U.S. 739 (1987), and City of Chicago v. Morales, 527

U.S. 41 (1999). Pet. 12-17. Moreover, we demonstrated that

the conflict between these standards presents an issue of

Surpassing national importance, that has generated debate

among Justices of this Court, as well as confusion among the

courts of appeals, which have struggled to reconcile this

Court’s competing approaches, id. at 12-21.

Finally, we showed that this case is a proper vehicle for

resolving this conflict because the court below (i) recognized

the conflict between Salerno and Morales, Pet. App. 17a-18a,

(ii) made clear that it would remain bound by this Court’s

decision in Salerno (“{uJntil a majority of the Supreme Court

directs otherwise”), id. at 19a, and (iii) applied the Salerno

test to reject petitioners’ challenge to two ordinances enacted

by the Council of the City of Oakland that impose criminal

liability when hotel operators are deemed to be “contributing

to nuisance activities on or in ‘close proximity to’ the

property,” id. Further, petitioners showed that the court of

appeals’ adoption of the Salerno test was outcome

determinative because the court below could not have reached

the same judgment if it had applied this Court’s decision in

Morales. Pet. 22-25.

Respondents’ Opposition (“Opp.”) narrows the area of

dispute io a single issue. They do not (and can not) deny that

there is a tension between this Court’s decisions in Salerno

and Morales, or that the proper standard for addressing facial

challenges presents an issue of surpassing importance that

should be resolved by this Court. Nor do they dispute that

this conflict has generated significant confusion among the

federal courts of appeals struggling to reconcile this Court’s

inconsistent pronouncements. Opp. 2. Instead, they argue

that further review is not warranted in this case because the

decision below “does not fairly present” this issue, id. at 1, in

that court of appeals “applied both standards,” id. at 2.

In making that argument, respondents cannot dispute that

the court of appeals devoted significant effort to explaining

why it felt bound by this Court’s decision in Salerno rather

than Morales. Pet. App. 17a-19a. That predicate

determination was essential because, as _ respondents

acknowledge, the court of appeals never addressed, under

Morales, petitioners’ core claim whether the challenged

Ordinances were invalid because they subject to criminal

penalties otherwise innocent conduct that law-enforcement

officials deem to have “contribute[d]” to “nuisance” activity

on or “in close proximity” to hotel property. Jd. at 7-10.

Respondents argue that the court of appeals’ failure to address

this claim under Morales should be excused because

petitioners’ never advanced this claim on appeal.

Respondents’ argument is demonstrably wrong. Petitioners

expressly argued to the court of appeals that the Ordinances

were unconstitutionally vague under Morales because they

lacked a mens rea requirement and carried criminal penalties

for “contributing” to “nuisance” activities that occurred on or

in close proximity to their property. Opp. 7-10. Petitioners

explained that this combination of factors rendered the

challenged ordinances unconstitutionally vague under

Morales by creating “a ‘trap for those who act in good faith,’”

Appellants’ Opening Br. 29, and allowing “law enforcement

to arbitrarily enforce the ordinance,” Appellants’ Reply Br. 9.

The suggestion that this issue was not presented to the court

of appeals is thus directly refuted by the appellate record.

a aad mena

ee ee ee

The court of appeals’ strict reliance upon Salerno to reject

petitioners’ claims implicates an issue that has generated a

conflict among this Court’s decisions on an issue of national

importance. The petition for certiorari should be granted.

I. A SINGLE STANDARD SHOULD GOVERN

FACIAL CONSTITUTIONAL CHALLENGES TO

GOVERNMENT ENACTMENTS.

There is no dispute that there are two competing standards

in this Court’s decisions for assessing facial constitutional

challenges to government statutes, and that these conflicting

standards have generated confusion among the courts of

appeals. Pet. 12-21. Respondents do not quarrel with the

claim that this Court’s decisions in Salerno and Morales

reflect irreconcilable tests for assessing facial challenges to

the constitutionality of a statute. Further, respondents

acknowledge that this conflict has led to “discussion” in the

courts and the academy, including an extensive discussion by

the court below in this case. Opp. 2.

The resulting confusion among lower courts concerning the

appropriate standard to apply to facial constitutional

challenges is an important and recurring question of federal

law. Given the importance of this issue, the only argument

that respondents provide for opposing further review by this

Court is their claim that the question whether Salerno or

Morales provides the appropriate standard is not “properly

presented in the record.” Opp. 4. As shown below, that

argument is incorrect and should be rejected.

Il. THE CONFLICT BETWEEN THIS COURT’S

COMPETING STANDARDS IN SALERNO AND

MORALES IS SQUARELY PRESENTED.

Respondents predicate their opposition to certiorari by this

Court almost exclusively on their claim that the court of

appeals rejected petitioners’ vagueness claim under both

Salerno and Morales. Opp. 1-4. In doing so, respondents

rely on the court of appeals’ statement that “‘even if the all-

ee ee ee

or-nothing principle were inapplicable, the Association’s

challenge cannot succeed.’” Opp. 3 (emphasis and alteration

omitted) (quoting Pet. App. 19a.). Respondents, however,

acknowledge that the court of appeals’ statement was directed

solely to petitioners’ challenge to the “close proximity”

language of Ordinance No. 12136. /d. at 7-10. They argue

that the court of appeals’ failure to address the vagueness

claims highlighted by petitioners before this Court should be

ignored because they contend that “the ‘close proximity’

language was the only provision that petitioners specifically

challenged and actually presented to the Court of Appeals for

its review.” Jd. at 7. That claim is contrary to the record.

A. Petitioners’ Claim Under Morales Was Properly

Presented To The Court Of Appeals.

Petitioners’ challenge to the impermissible vagueness of

Ordinance Nos. 12136 and 12137 was not limited to the

phrase “close proximity.” That conclusion is confirmed by a

review of petitioners’ briefs before the court of appeals.

In those briefs, petitioners clearly argued that the absence

of a mens rea requirement made “a facial challenge

particularly appropriate.” Appellants’ Opening Br. 28.

Specifically, petitioners challenged the “performance

standards under Ordinance No. 12136,” which required that

“the operation of the property shall not result or contribute to

nuisance activities in ‘close proximity’ to the property.” /d. at

29. Petitioners explained that the ordinances set “a ‘trap for

those who act in good faith’” because, “[w]ithout a mens rea

standard,” one could be held strictly “liable for contributing to

such [nuisance] activity in close proximity to the property,”

Id. Indeed, petitioners underscored the vagueness of the

standards to which property owners were required to adhere

to avoid criminal sanctions: “What is the standard for the

terms ‘contribute’ or ‘close proximity to the property’?” /d.

Petitioners further took issue with the district court’s

rejection of their vagueness claim because it was “focused on

the type of nuisance activity,”—i.e., the conduct that could

qualify as a nuisance—but was “devoid of any meaningful

analysis in relation to these terms or the Jack of a mens rea

requirement.” /d. (emphasis added). In reply, petitioners

explained that, in light of absence of a mens rea requirement,

“vagueness ‘permeates’ throughout the regulation in failing to

provide one with fair notice, and the ability of law

enforcement to arbitrarily enforce the ordinance and make it a

trap for the unwary.” Appellants’ Reply Brief 9.

These are precisely the same claims that petitioners have

advanced before this Court and are precisely the same claims

that respondents acknowledge were not addressed by the

court of appeals under Morales. Both here, and in the court

of appeals, petitioners challenged Ordinance No. 12136

because it “criminalizes a broad swath of purely innocent

conduct.” Pet. 4-5; cf. Appellants’ Opening Brief 29 (arguing

that ordinance “is a ‘trap for those who act in good faith’”).

Both here, and in the court of appeals, petitioners showed that

Ordinance No. 12136 was unconstitutionally vague because

the interplay between terms such as “nuisance” and

“contribute,” coupled with the absence of any mens rea

requirement, give law enforcement officials “unbridled

discretion” to “decide what activities constitute a violation.”

Pet. 23; cf. Appellants’ Reply Br. 9 (explaining that

“vagueness ‘permeates’ throughout the regulation in failing to

provide one with fair notice, and the ability of law

enforcement to arbitrarily enforce the ordinance and make it a

trap for the unwary”).

In light of the appellate record, respondents are thus

mistaken when they argue that further review should be

denied because petitioners’ claims of unconstitutional

vagueness were limited to a challenge to the “close

proximity” language of Ordinance No. 12136. To the

contrary, respondents’ tacit (and correct) acknowledgement

that any application of Morales by the court of appeals’ was

limited solely to an assessment of the “close proximity”

language of Ordinance No. 12136, confirms that the court of

appeals applied only Salerno (and not Morales) to the core of

petitioners’ vagueness challenges.

The court of appeals’ failure to apply Morales is

underscored separately by its treatment of petitioners’

challenge to the omission of a mens rea requirement.

Specifically, when addressing petitioners’ argument that the

lack of a mens rea element rendered the ordinance hopelessly

vague, the court of appeals ruled only that this Court’s

decisions “never suggested that the absence of a mens rea

requirement, by itself, renders a statute unconstitutional.”

Pet. App. 20a-21a. As support, the court of appeals held that

the absence of a mens rea element did not trump Salerno’s

requirement “that the complainant establish that the law is

impermissibly vague in all its applications.” Jd. at 21a. That

is, the court of appeals rejected as irrelevant the absence of a

mens rea requirement based solely upon Salerno. Id.

(rejecting petitioners’ facial vagueness challenge because,

under Salerno, “[t]he Association does not allege that [the

ordinance] is impermissibly vague in all of its applications”).'

B. The Court Of Appeals’ Rejection Of Morales Is

Outcome Determinative.

As petitioners demonstrated previously, the court of

appeals’ decision to apply Salerno rather than Morales is

outcome determinative because if the court below had applied

the Morales standard, it would have concluded that Ordinance

No. 12136 is unconstitutionally vague. Respondents dispute

that conclusion, arguing that petitioners’ reliance upon the

criminalization of innocent conduct and the absence of any

' Respondents contend that this case is not amenable to review because

the findings challenged have been affirmed by two lower courts. Opp. 5.

That principle has no application here because the court of appeals made

no findings under Morales with regard to the heart of petitioners’

challenges to Ordinances Nos. 12136 and 12137.

mens rea requirement are “misplaced.” Opp. 5. These

arguments cannot be reconciled with Morales.

First, although Morales generated a number of separate

Opinions, a majority of the Court agreed that a statute that

“reach[es] a substantial amount of innocent conduct” and fails

to “establish minimal guidelines to govern law enforcement”

is unconstitutionally vague even when challenged on its face.

527 U.S. at 60 (opinion of Court) (internal quotation marks

omitted). Nevertheless, respondents insist that the question

whether “the Ordinance reaches a substantial amount of

innocent conduct” is relevant only to the “overbreadth”

doctrine which applies solely “to laws restrictirg First

Amendment rights.” Opp. 5, 6. That argument is wrong

under Morales, which held that the “broad sweep” of a

criminal statute is central to vagueness challenges outside the

First Amendment context. 527 U.S. at 60 (opinion of Court).

That principle is especially relevant here, because Ordinance

No. 12136 conscripts the owners and operators of hotels and

motels in the city of Oakland to police potential “nuisance”

activities on or in close proximity to their property and

subjects them to criminal penalties based upon nuisance

activity in which they took no part and about which they may

have been wholly unaware.

Second, respondents never address the remaining prong of

the Morales standard: whether the law establishes minimal

guidelines to govern the exercise of law enforcement. See

527 U.S. at 60 (opinion of Court). Ordinance No. 12136

gives law enforcement officials unbridled discretion to

determine whether the operation of a hotel “results in” or

“contributes to” nuisance activity. It is not supported by any

type of limiting construction that might guide law

enforcement officials. Rather, as was the case in Morales, the

ordinance provides law-enforcement officials with “‘absolute

discretion’” to decide what activities or operations constitute

a violation. /d. at 60-61. Ordinance No. 12136 thus runs

afoul of both prongs of Morales because it criminalizes a

substantia! amount of innocent conduct and fails to provide

minimal guidelines for law enforcement.

Equally unavailing is respondents’ merits argument

regarding the relevance of a mens rea_ requirement.

Respondents assert that the absence of a mens rea

requirement is not independently sufficient to establish that a

statute is unconstitutionally vague. Opp. 6. Petitioners made

no such claim. To the contrary, both petitioners and

respondents recognize the test set forth by the plurality in

Morales: a law that involves criminal penalties, contains no

mens rea requirement, and infringes on constitutionally :

protected rights, is subject to facial attack “[w]hen vagueness

permeates the text.” 527 U.S. at 55; Pet. 24; Opp. 6.

Ordinance No. 12136 cannot pass muster under this test

because it suffers from the same defects as the ordinance

struck down in Morales. First, it imposes criminal penalties

for violations of operating standards for hotels and motels.

Second, the ordinance contains no mens rea requirement.

Third, the ordinance implicates the constitutionally protected

right to earn a living. See Board 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

ordinance satisfies these three elements from Morales, the

court below should have inquired whether vagueness

“permeates” the text of the ordinance.

C. The Absence Of A Limiting Construction Does

Not Undermine The Need For Certiorari Review.

Finally, respondents contend that review of this petition is

inappropriate because there has been no state court

construction of the ordinances at issue. Opp. 10-11. Of

course, respondents never suggested any limiting construction

in these proceedings, and the notion of such a limiting

construction is inconsistent with the “all-or-nothing” Salerno

standard that respondents advocated. But even if respondents

had offered such a construction, the absence of a state-court

construction limiting the scope of the ordinances does not

undermine the need for review.

Respondents properly recognize that the loitering ordinance

challenged in Morales had been construed by the state

supreme court, and this Court was bound by that construction.

Opp. 10; Morales, 527 U.S. at 61 (opinion of Court). To be

sure, when “evaluating a facial challenge to a state law, a

federal court must . . . consider any limiting construction that

a state court or enforcement agency has proffered.” Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 495 n.5 (1982). Yet this Court has never held that the

absence of a narrowing construction is a prerequisite for

review. To the contrary, as this Court explained in City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750

(1988), “we have never held that a federal litigant must await

a state-court construction or- the development of an

established practice before bringing the federal suit.” Jd. at

770 n.1l. As a result, if a statute is not “obviously

susceptible of a limiting construction,” the federal court

should evaluate the facial challenge even if the statute has

never been interpreted by a state tribunal. City of Houston v.

Hill, 482 U.S. 451, 468 (1987). As noted, respondents have

not suggested a construction that would limit the scope of

Ordinance Nos. 12136 and 12137.

Moreover, the vagueness of Ordinance No. 12136 is not

resolved through any obvious sort of limiting construction.

Because the operation of a hotel or motel will not be visible to

the public, law enforcement officials necessarily will be

obligated to infer violations of Ordinance No. 12136 based on

the existence of one or more nuisance activities on or near the

hotel property. Thus, hotel and motel owners and operators

can be held criminally liable for the conduct of others even if

they are wholly unaware of the conduct or have no control

over it. Considering the broad sweep of the ordinance and the

absence of guidelines for enforcement, further review by this

Court is appropriate.

CONCLUSION

For these reasons, and those set forth in the petition, a writ

of certiorari should be granted.

Respectfully submitted,