Opposition Brief — Director, Department of Community Development v. Guimont

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

JAN 5 1994

prsic THE CLERK

No. 93-927

In The

Supreme Court of the United States

October Term, 1993

THE DIRECTOR OF THE DEPARTMENT

OF COMMUNITY DEVELOPMENT,

Petitioner,

ROBERT PATRICK GUIMONT, ET AL.,

Respondents.

Petition For A Writ Of Certiorari

To The Supreme Court Of Washington

BRIEF IN OPPOSITION

JOHN D. BLANKINSHIP

MONTGOMERY, PURDUE,

BLANKINSHIP & AUSTIN

Counsel of Record for

Respondents

JANE R. KoLer

Casey & PRUZAN

Counsel for

Bear Creek Associates,

Intervenor in the State

Court

Office Address:

5800 Columbia Center

701 Fifth Avenue

Seattle, WA 98104

(206) 682-7090

COCKLE LAW BRIEF PRINTING CO., (800) 225-69¢

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF FACTS................. 1

pee eee eT eer eee rere rer ee eer Te 2

1. The decision in Guimont v. Clarke, 121 Wn.2d 586,

854 P.2d 1 (1993), is consistent with decisions of

the United States Supreme Court on the due pro-

RE Fe ee Se ee a mer ae er ed ere

2. The rule of Lawton v. Steele should remain intact. .

3. The national public policy of government fairness

and justice requires preservation of the constitu-

tional prohibition against government acts which

are “unduly oppressive” on a few .............

fe ek | error rer tras: e reere re pee rer rey

TABLE OF AUTHORITIES

Page

Armstrong v. United States, 364 U.S. 40,41 L.Ed. 2d |

1554, 60 S.Ct. 1569 (OGD), onnccsa scence 5,9

Daniels v. Williams, 474 U.S., 88 L.Ed.2d 662, 106

S.Ct. 662 (1906)... 5. ceeds eee 7

Davis v. Mills, 194 U.S. 451, 457, 48 L.Ed. 1067, 24

S.Ct. 92 (1908)... oc ciacaca cco eee 9

Ferguson v. Skrupa, 372 U.S. 726, 10 L.Ed. 2d 93, 83

S.Ct. 1028 GAGRD). ...5 s kas sae eee 3, 4

First English Evangelical Lutheran Church of Glendale

v. Los Angeles County, 482 U.S. 304, 96 L.Ed. 2d

280, 107 S.Ct. 2376 (UGG). «6 écaccacvwanseeneeeeuanse 9

General Motors v. Romein, 112 S.Ct. 1105 (1992)..... 4.5

Giaccio v. Pennsylvania, 382 U.S. 399, 15 L.Ed. 2d

447, 66 S.Ct. 518 (T9863 cach etiowews 7

Goldblatt v. Town of Hempstead, 369 U.S. 590, 8

L.Ed. 2d 130, 82 SAE. GRP GOOD e ose sca ccastasas 3

Guimont v. Clarke, 121 Wn.2d 586, 584 P.2d 1 (1993) ..3, 10

International Shoe Co. v. Washington, 326 U.S. 310,

91 L.Ee. 9, G6 SAX. Tae Ces s tacaceaeeeeecce: 7

Lawton v. Steele, 152 U.S. 133, 137, 38 L.Ed. 385, 14

See | rene rer nr fh er St 3, 4

Lynch v. Household Fin. Corp., 405 U.S. 538, 31 L.Ed.

2 424, 92 SAR. TDD CAPR s «os csc sterncaseaavesy: 8

Nollan v. California Coastal Commission, 483 U.S.

825, 97 L.Ed. 2d 677, 107 S.Ct. 8141 (1987)....... >>

Ochoa v. Hernandez y Morales, 230 U.S. 139, 57

Ld. 2027, BS GS. WD COPE oss ko csks cw axedacnns 8

ili

TABLE OF AUTHORITIES - Continued

Pennell v. San Jose, 485 U.S. 1, 99 L.Ed. 2d 1, 108

te a 5 sas ea besa bewie’ed's )

Presbytery of Seattle v. King County, 114 Wn.2d 320,

787 P.2d 090 (1990), cert. denied 498 U.S. 911

EEE AE ere rr eye rr rr rr eT rr rrr ere ere 2

Secretary of Agriculture v. Central Roig Refining Co.,

338 U.S. 604, 94 L.Ed. 381, 70 S.Ct. 403 (1950) ..... 7

United States v. Carolene Products Co., 304 U.S. 144,

oe tee. Baoe, SO DAL. 776 (1937)... 222s sccccess a, 4

Webb’s Fabulous Pharmacies, Inc. v. Beckwick, 449

U.S. 155, 66 L.Ed. 2d 358, 101 S.Ct. 446 (1980)..... 4

COUNTERSTATEMENT OF FACTS

As invited by Rule 15.1, the following are perceived

misstatements of fact in the State’s petition which have a

significant bearing on the issues presented.

(1) The statements on page 4 of the petition that

“tenants lose both their housing and their investment

when forced to relocate” and that tenants are at “a dis-

tinct economic disadvantage when a park owner decides

to close a park” are the argumentative conclusions of the

State’s attorneys and are not legislative findings because

the Acts in question contain no statement of purpose or

legislative findings.

(2) On page 5 of its petition, the State correctly

summarizes the requirements of the Acts and notes that

section 2, subsection 6, of the 1990 Act requires the park

owner to pay the full amount of assistance to low income

tenants if there are insufficient monies in the state fund.

The State omits the fact that the legislature never appro-

priated money to the fund and as a result it was broke

when the intervenor, Bear Creek Associates, closed its

park and was required to pay tenants the full amount of

relocation assistance in the sum of $108,000.

(3) The State refers to a fee imposed by the 1990 Act

on transfers of titles of mobile homes, $50 of which went

to the state fund. The State then says: “Through the title

transfer fee, the burden of relocation assistance was

spread over the entire industry, not just onto park

owners.” (page 5 of petition) That statement is patently

untrue because the state Acts expressly require payments

by park owners independent of the fund, and Bear Creek

Associates singly bore the burden of relocation assistance

on closure of its park without help from the industry.

(4) It is significant, but not mentioned by the State,

that the 1990 Act required that “the park-owner shall pay

park tenants who do not qualify as low-income tenants

the same amount of relocation assistance that low income

park tenants are entitled to from the park-owners under

this section.” Section II, subsection (7), of the Act set forth

in Appendix F-5 of petition. Thus, as the price of going

out of business, a park owner may be required to pay

relocation assistance to some tenants who are in better

financial shape than he is.

(5) The State cites Presbytery of Seattle v. King

County, 114 Wn.2d 320, 787 P.2d 909 (1990), cert. denied

498 U.S. 911 (1990), as an example of how “the Washing-

ton State Supreme Court has used the vague contours of

the due process clause to invalidate economic regulations

more times in the past three years than the United States

Supreme Court has in the past 55 years.” (Footnote 6 on

page 11 of petition.) Presbytery is a poor example because

the regulation in that case was upheld by the court.

ARGUMENT |

The State’s petition raises questions only as to the

State Supreme Court’s decision based on due process. It

does not deal with the Washington State Supreme Court

formulation of its own unique rule on the takings issue,

challenged in respondent's cross petition as inconsistent

with decisions of this court.

1. The decision in Guimont v. Clarke, 121 Wn.2d 586,

854 P.2d 1 (1993), is consistent with decisions of the United

States Supreme Court on the due process issue. The State’s

petition does not meet the criteria for review by the

United States Supreme Court set forth in Rule 10 because

the decision of the Washington State Supreme Court on

the issue of due process is consistent with decisions of

this court. See footnote 10 to the court’s opinion set forth

in Appendix A-31 of the petition, citing Lawton v. Steele,

152 U.S. 133, 137, 38 L.Ed. 385, 14 S.Ct. 499 (1894), and

Goldblatt v. Town of Hempstead, 369 U.S. 590, 8 L.Ed. 2d

130, 82 S.Ct. 987 (1862), which require the means of

accomplishing a legislative objective to be “reasonably

necessary for the accomplishment of the purpose, and not

unduly oppressive upon individuals.”

That rule has never been overruled by this court. To

the contrary, in 1962 in Goldblatt v. Town of Hempstead this

court said the “Classic statement of the rule in Lawton v.

Steele [citation omitted] is still valid today.” In 1987 Jus-

tice Brennan in Nollan v. California Coastal Commission,

repeated the statement that the rule in Lawton v. Steele “is

still valid today.” 483 U.S. 843, footnote 1. Since the state

court decision is consistent with decisions of this court on

the due process issue, there is no basis for review by this

court.

2. The rule of Lawton v. Steele should remain intact.

The State now asks this court to eliminate the rule set

forth in Lawton v. Steele, arguing that statements in such

cases as United States v. Carolene Products Co., 304 U.S.

144, 82 L.Ed. 1234, 58 S.Ct. 778 (1937), Ferguson v. Skrupa,

372 U.S. 726, 10 L.Ed. 2d 93, 83 S.Ct. 1028 (1963), and

General Motors v. Romein, 112 S.Ct. 1105 (1992), render the

rule of Lawton v. Steele out of date.

The State contends that the courts will not review

“economic regulations” but defer to the legislature. Close

examination of the cited cases discloses that they do not

support the broad conclusions which the State draws

from them. For example, in Carolene Products the court

upheld a regulation prohibiting interstate shipment of

adulterated milk products. The decision was not based

solely on a presumption of constitutionality of the statute.

The court said: “Affirmative evidence also sustains the

statute” and the court described that evidence as showing

that “the use of filled milk as a substitute for pure milk is

generally injurious to health and facilities fraud on the

public.” 304 U.S. 148 and 149. Ferguson v. Skrupa upheld a

Kansas statute which restricted “debt adjusting” to law-

yers. In discussing an equal protection argument the

court did not rely solely on a conclusive presumption of

the propriety of legislative acts but listed factual reasons

why a non-lawyer cannot perform the service to the same

standards which a lawyer can. In General Motors v. Romein

the court said that due process requires economic legisla-

tion to have a legitimate legislative purpose furthered by

rational means. In footnote 7 on page 13 of its petition,

the State quotes a portion of the court’s statement but

omits the following, which is particularly relevant to this

case:

Retroactive legislation presents problems of

unfairness that are more serious than those

posed by prospective legislation because it can

deprive citizens of legitimate expectations and

upset settled transactions.

112 S.Ct., at 112. That statement is relevant to this case

because the Relocation Assistance Act imposed on park

owners retroactively a price for going out of business

which did not exist when they went into business, a

factor the Washington State Supreme Court mentioned in

its opinion. See Appendix A-35 and A-36 in petition. It is

significant in that case that the court does review “eco-

nomic legislation” to see that the means selected to accom-

plish a legislative objective are fair and reasonable. This

court has said that fairness and justice bar government

from forcing some to bear a public burden which should

be shared by all. Armstrong v. U.S., 364 U.S. 40, 41 L.Ed.

2d 1554, 80 S.Ct. 1563 (1960).

The state Act in this case does not fit the category of

“economic regulation” as used by the State in its petition.

The Act recites no public evil which it purports to elimi-

nate and contains nothing which “regulates” park

owners’ conduct. Instead, it purports to enact a public

welfare program at the expense of a few. As a price of

going out of the mobile home park business, park owners

are required to pay tenants, including even those who are

not in financial need.

The State repeatedly claims that the State Supreme

Court improperly used a “worst case scenario” to invali-

date the state Act. Although the court gave an example of

a worst case, it immediately explained that under any

circumstance the state Act by its express language

imposes on park owners an unreasonable duty. That por-

tion of the State Supreme Court’s opinion might be char-

acterized as a “best case scenario” because at the same

time the State compelled park owners to pay the full

amount of relocation assistance “when there are insuffi-

cient monies to meet the demand for relocation assis-

tance,” it failed to appropriate any money to the “state

fund.” See Appendix F-5 of petition. Describing that

“best case scenario,” the court said:

Even if the fund has sufficient resources to share

the burden, the Act still requires park owners to

pay large sums of money, the amount of which

will vary depending on how much notice the

park owner gives to the tenants. Moreover, the

Act does not limit the payment of relocation

assistance to those who have a low income.

Although tenants who do not meet the Act’s

definition of “low income” are not entitled to

payments from the fund, they are entitled to

receive the same payments made directly by the

park owners to low income tenants. Thus, park

owners must directly pay relocation assistance

even to those tenants who are not financiaHy

burdened.

We also note the Act’s provisions are permanent

in nature.

See Appendix A-35 of petition. Under a “best case sce-

nario” the state Act is unreasonable, unfair and unduly

oppressive on park owners.

3. The national public policy of government fairness and

justice requires preservation of the constitutional prohibition

against government acts which are “unduly oppressive” on a

few. The State seems to argue that the public policy of the

United States now requires the Supreme Court to

announce a rule that in challenges to state enactments

under the due process clause the court will accept the

propriety of economic legislation if the court can imagine

any state of facts which can sustain it without regard to

the impact on an individual or a few as to whether it is

unduly oppressive on him or them.

As expressed in both the takings and due process

clauses, our national public policy requires government

to treat every person with fairness and justice, and the

courts cannot abdicate this constitutional duty to see that

that public policy is carried out. That public policy is

designed to prevent government from becoming tyranny.

That public policy requiring all persons to be treated with

fairness and justice has a great historical tradition traced

from the Magna Charta in 1215.!

Supreme Court decisions dealing with due process

have repeatedly described fairness and justice to be its

essence. International Shoe Co. v. Washington, 326 U.S. 310,

91 L.Ed. 95, 66 S.Ct. 154 (1945); Giacco v. Pennsylvania, 382

U.S. 399, 15 L.Ed. 2d 447, 86 S.Ct. 518 (1966); Secretary of

Agriculture v. Central Roig Refining Co., 338 U.S. 604, 94

L.Ed. 381, 70 S.Ct. 403 (1950), referring to“... those

deeply rooted notions of justice which the Due Process

Clause expresses.” 338 U.S., at 617. In Daniels v. Williams,

474 U.S., 88 L.Ed. 2d 662, 106 S.Ct. 662 (1986), the Court

repeated that “the touchstone of due process is protection

of the individual against arbitrary action of the govern-

ment” and that due process “serves to prevent govern-

mentat power from being used for purposes of

1 “While this provision of the Amendment (Fourteenth) is

new in the Constitution of the United States as a limitation on

the power of the States, it is old as a principle of civilized

government. It is found in Magna Charta...” Munn v. Illinois,

94 US., at 123.

oppression.” In Ochoa v. Hernandez y Morales, 230 U.S.

139, 57 L.Ed. 1427, 33 S.Ct. 1033 (1913), the court said:

Without the guaranty of “due process,” the right

of private property cannot be said to exist, in the

sense in which it is known to our laws. The

principle, known to the common law before

Magna Charta, was embodied in that chapter

(Two Coke Inst., 45, 50), and has been recog- _

nized since the Revolution as among the safest

foundations of our institutions. Whatever else

may be uncertain about the definition of the

term “due process of law,” all authorities agree

that it inhibits the taking of one man’s property

and giving it to another contrary to settled

usages and modes of procedure, and without

notice or an opportunity for a hearing. 230 U.S.,

at 161.

There is in the State’s petition an innuendo in its

reference to “economic legislation” that ‘ property rights”

are entitled to less protection than “individual rights.”

There is no such thing as “property rights,” there are only

“individual rights,” a distinction explained by this court

in Lynch v. Household Fin. Corp., 405 U.S. 538, 31 L.Ed. 2d

424, 92 S.Ct. 1113 (1972):

[T]he dichotomy between personal liberties and

property rights is a false one. Property does not

have rights. People have rights. The right to

enjoy property without unlawful deprivation,

no less than the right to speak or the right to

travel, is in truth a “personal” right, whether the

“property” in question be a welfare check, a

home, or a savings account. In fact, a fundamen-

tal interdependence exists between the personal

right to liberty and the personal right in prop-

erty. Neither could have meaning without the

other. That rights in property are basic civil

rights has long been recognized.

Justice Holmes described the reason: “Property is pro-

tected because such protection answers a demand of

human nature, and therefore takes the place of a fight.”

Davis v. Mills, 194 U.S. 451, 457, 48 L.Ed. 1067, 24 S.Ct. 92

(1904).

The takings clause is based on the same principle of

fairness and justice. Thus, it is said that the purpose of

the takings clause is “to bar Government from forcing

some people alone to bear public burdens, which, in all

fairness and justice, should be borne by the public as a

whole.” Armstrong v. United States, 364 U.S. 40, 41 L.Ed.

2d 1554, 80 S.Ct. 1563 (1960); First English Evangelical

Lutheran Church of Glendale v. Los Angeles County, 482 U.S.

304, 96 L.Ed. 2d 250, 107 S.Ct. 2378 (1987); Webb’s Fabulous

Pharmacies, Inc. v. Beckwick, 449 U.S. 155, 66 L.Ed. 2d 358,

101 S.Ct. 446 (1980). The court has indicated that fairness

and justice bar the government from singling out one or a

few to remedy a public problem. Nollan v. California

Coastal Commission, 483 U.S. 825, 97 L.Ed. 2d 677, 107

S.Ct. 8141 (1987). In a dissenting opinion in Pennell v. San

Jose, 485 U.S. 1, 99 L.Ed. 2d 1, 108 S.Ct. 849 (1988), Justice

Scalia explained that one or a few landlords do not create

tenants’ poverty any more than the rest of society does

and that those landlords should therefore not be singled

out to provide a welfare program for poor tenants. He

warned that if a principle is established that one or a few

can be singled out to provide remedies to public prob-

lems which they do not cause or benefit from, “there is no

end to the social transformations that can be accom-

plished by so-called ‘regulation’ at great expense to the

democratic process” because that process can be achieved

“off budget” invisibly and thus with relative immunity

from normal democratic processes. 485 U.S. at 22.

The national public policy should be preserved pro-

tecting the few from government demands that they solve

public problems which society in general has created. The

Washington State Supreme Court in Guimont v. Clarke

properly applied the federai cases which implement that

public policy under the due process clauses.

CONCLUSION

The State’s petition should be denied.

Respectfully submitted,