Reply Brief — Mission Oaks Mobile Home Park v. City of Hollister

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Buprems Court, U.S.

| |

No. 93-756 |

In the

Supreme Court of the United States

October Term, 1993

‘{ISSION OAKS MOBILE HOME PARK, a California

General Partnership,

Petitioner,

CITY OF HOLLISTER; HOLLISTER CITY COUNCIL;

and HOLLISTER MOBILEHOME RENT COMMISSION,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER’S REPLY BRIEF

,’

RONALD A. ZUMBRUN

* JAMES S. BURLING

Victor J. WOLSKI

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Petitioner

BEST AVAILABLE COPY

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TABLE OF CONTENTS

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THE YOUNGER ABSTENTION REQUIREMENT

THAT THE FEDERAL PLAINTIFF NOT BE

THE PARTY THAT INITIATED THE STATE

PROCEEDINGS WAS RAISED BELOW ............ 2

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE GRANTED SO THIS COURT

CAN EXTEND THE REASONING OF ENGLAND

BEYOND THE CONTEXT OF PULLMAN

ie SE PRE er A a 5

SI saa ae eee Wide a il a Wt 7

TABLE OF AUTHORITIES CITED

Page

Adickes v. S. H. Kress and Co.,

ee ies OE RIO ok es ON ee eee 4

England v. Louisiana State Board

of Medical Examiners, 375 U.S.

BOP CEE se hack PO oe ee ee eee a |

Fields v. Sarasota Manatee Airport

Authority, 953 F.2d 1299

pee ea Wee oc a a eee 5-6

Growe v. Emison, 507 U.S. __,

ee x Se ee Se COMED nc ok ld ee ee eee 4

Nollan v. California Coastal

Commission, 483 U.S. 825 (1967) .............6. 6

Palomar Mobilehome Park Association v.

City of San Marcos, 989 F.2d 362

EE 620 No ae a ee ee a ee 6-7

Railroad Commission of Texas v.

Pumen €o., 512 U.S. GO CIS4)) .. wd i cs a Cake 5,7

Williamson County Regional Planning

Commission v. Hamilton Bank of

jJohasos Cay, €73 U.S. 172 (1965) ... . we ck ees 5-7

Yee v. City of Escondido,

503 U.S. _, 118 L. Ed.

ee Cee ee oe ek Oe eee ee eee 3

Younger v. Harris, 401 U.S. 37 (1971) ........... 2-4,7

No. 93-756

In the

Supreme Court of the United States

October Term, 1993

MISSION OAKS MOBILE HOME PARK, a California

General Partnership,

Petitioner,

CITY OF HOLLISTER; HOLLISTER CITY COUNCIL;

and HOLLISTER MOBILEHOME RENT COMMISSION,

Respondents.

sa.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER’S REPLY BRIEF

INTRODUCTION

Respondents City of Hollister, Hollister City Council,

and Hollister Mobilehome Rent Commission (collectively,

respondents or City) in their Brief in Opposition under-

standably tried to use to their advantage the procedural

confusion that currently permeates litigation in defense of

property rights.

However, this procedural confusion does not justify

the City’s incorrect assertion that one of the major issues in

the case was not argued below. Respondents’ Brief in

Opposition (Opposition) at 15. At the same time, the City

implies that issues that were decided against the City and

were not appealed constitute grounds for denying the petition

for writ of certiorari. Opposition at 14 n.15. These matters,

and the confusion under which the City seeks solace, require

a reply.

THE YOUNGER ABSTENTION REQUIREMENT

THAT THE FEDERAL PLAINTIFF NOT BE

THE PARTY THAT INITIATED THE STATE

PROCEEDINGS WAS RAISED BELOW

It is the law that a federal plaintiff subject to Younger

abstention, see Younger v. Harris, 401 U.S. 37 (1971), must

have been the target and not the initiator of the state

proceedings. The Ninth Circuit’s departure from the

decisions of this Court and of other circuits on the issue is so

glaring that it cannot be countered. Perhaps this is why the

City asserts that petitioner Mission Oaks Mobile Home Park

(Mission Oaks) failed to raise the argument on appeal.

Opposition at 15. The record will show that this assertion is

wrong.

In Mission Oaks’ opening brief filed in the Ninth

Circuit, the following argument was made:

Even before the court can determine whether

each of three (3) elements set forth above is

present, it should determine whether the

federal court action falls within the type of

cases subject to Younger Abstention. ... [T]he

court’s focus has never shifted from the policy

of stopping a federal court from enjoining a

state court’s proceedings.

This is not a case in which a defendant in

the state court becomes a plaintiff in the

federal court seeking an injunction.

Thus, the policy underlying Younger,

Middlesex and Fresh Int’l Corp. is absent

here. Accordingly, this court need not go

further in its analysis to determine that

application of Younger Abstention in this

instance was inappropriate.

Brief of Appellant (Appellant Brief) at 7-8 (emphasis added).

Mission Oaks’ reply brief in that court returned to this

theme. See Reply Brief of Appellant (Reply Brief) at 4

("[t]he doctrine is, in essence, a procedural device to

preclude a defendant from ‘hedging’ against a potentially

adverse ruling in state court. Those policies are not

applicable here") (emphasis added).

In any event, even were the exact legal argument not

made below, this Court could still entertain any arguments on

the validity of Younger abstention under the circumstances of

the case--as this was undeniably an issue below. See Yee v.

City of Escondido, 503 U.S. __, 118 L. Ed. 2d 153, 169-70

(1992) (parties not limited to precise arguments made below).

The startling deviation of the Ninth Circuit on

Younger abstention explains why the City attempts to drop

the issue from the case and to enlist the aid of other

abstention doctrines. Opposition at 14 n.15. But these other

doctrines were rejected by the District Court, Petition for

Writ of Certiorari (Petition) at D-4, D-7, were not raised

before the Ninth Circuit, see Brief of Appellees at 15-20, and

should not now be resurrected. See Adickes v. S. H. Kress

and Co., 398 U.S. 144, 147 n.2 (1970) (this Court will not

ordinarily consider issues not raised before the Court of

Appeals).

Regardless of whether other abstention doctrines can

be utilized when a federal plaintiff initiated the on-going state

proceeding, only the Ninth Circuit applies Younger abstention

in these circumstances and Younger is the only abstention

doctrine at issue in this case. See Petition at A-6-10. The

City has not been able to cite one case outside the Ninth

Circuit to support the use of Younger abstention when the

federal plaintiff initiated the state proceeding.' See

Opposition at 15-17. This is a classic case of the dog that

did not bark. Review by this Court is necessary to bring the

Ninth Circuit into line with the rest of the federal courts.

' The City offers as its only example of “abstention in

similar circumstances," Opposition at 15, a case that did not

even involve Younger abstention and was in the special

context of the “highly political task" of congressional

redistricting, Growe v. Emison, 507 U.S. __, 122 L. Ed. 2d

388, 399 (1993). Our case involves rent control and

property rights, not reapportionment and voting rights.

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE GRANTED SO THIS COURT CAN

EXTEND THE REASONING OF ENGLAND BEYOND

THE CONTEXT OF PULLMAN ABSTENTION

The petition demonstrates that the procedure created

by this Court in England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411, 421 (1964), should not be

confined to cases involving Pullman abstention. Petition

at 17-25; see Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941). The need for such a procedure in

property rights cases that are filed first in state court to

satisfy the ripeness requirements of Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172, 194-97 (1985), should become clear

from the confusion that is at the root of the arguments raised

in respondents’ Brief in Opposition.

The City argues that an England reservation should

not apply based on questions of timing. The state case was

filed first, so the City reasons England cannot apply.

Opposition at 18. The state complaint contained federal

claims before the reservation was filed, so the City reasons

England cannot apply. Opposition at 22. But since

Williamson County requires that claims under the Just

Compensation Clause of the United States Constitution be

brought in state court first, under the City’s approach, these

claims bear the dubious distinction of being the only federal

constitutional rights that cannot be litigated in federal court.

The City attempts to distinguish Fields v. Sarasota

Manatee Airport Authority, 953 F.2d 1299, 1306 (11th Cir.

1992), Opposition at 21. The real distinction is that no

express reservation of rights was made on the record in that

case, resulting in the federal claims being extinguished, while

Mission Oaks made such a reservation in the state proceeding

relevant to this case, before any rulings on the merits.’

Compare Fields, 953 F.2d at 1309, with Petition at A-5, C-1-

2. If the Fields approach is adopted by this Court, property

owners in Mission Oaks’ position will have a clear and

unambiguous way to preserve their federal claims when first

filing a state court action. Without such a mechanism, the

confusion that resulted in the procedural posture of this case

will continue.

The City concedes that Williamson County forced

Mission Oaks to file its takings claim in state court,

Opposition at 22, but does not seem to grasp why the federal

due process and equal protection claims were initially

filed in state court. See Opposition at 13 n.13. Mission

Oaks has explained this, Petition at 5, 24, and respondent

itself notes the law behind the reason, Opposition at 20 n.19:

in California, claims that could have been brought are

merged into or barred by a final decision in state court.

> The City mischaracterizes the state writ proceeding,

claiming that federal issues were raised and that federal

law was relied upon in that proceeding. See Opposition at

7 n.4, at 13-14. Federal issues were not litigated in that

case. One Ninth Circuit case was cited, at most, as

analogous authority, see, e.g., Memorandum of Points and

Authorities in Support of Motion for Issuance of

Peremptory Writ at 17. Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), was cited for the

innocuous, general proposition that courts exist to protect

property rights, and Yee for the difficulty of making facial

challenges. Mission Oaks’ Reply Brief before the Sixth

District Court of Appeal at 12. The collateral estoppel

effect of the final decision in the writ action, Opposition at

23 n.21, is a matter for the District Court to decide upon

remand.

See Palomar Mobilehome Park Association v. City of

San Marcos, 989 F.2d 362, 364-65 (9th Cir. 1993). Once

Williamson County forces a party to file a takings claim in

state court, the property owner has the choice between filing

the rest of its federal claims in that case or filing them in a

federal court with the risk that the state case will conclude

first and extinguish the federal forum.

Under such circumstances, the choice to file the

federal claims is hardly voluntary. These procedural

problems will recur until England-type reservations are

allowed to preserve federal claims in the context of Just

Compensation Clause cases filed in state courts under

Williamson County. This Court should grant certiorari to

address this vital issue.

CONCLUSION

The Ninth Circuit alone among the Courts of Appeals

applies Younger abstention when the federal plaintiff initiated

the state proceeding. The Ninth Circuit resists the use of

England reservations outside of the context of Pullman

abstention. Other circuits have not been so rigid, and the

Eleventh Circuit has prescribed the use of an England-type

reservation for cases such as this one, in which Williamson

County forces a just compensation claimant into state court.

Review by this Court is necessary to resolve these important

issues and conflicts. For the reasons stated in the petition,

and for the reasons stated above, it is respectfully requested

that certiorari be granted.

DATED: December, 1993.

Respectfully submitted,