Amicus Curiae Brief — Carson Harbor Village, Ltd. v. City of Carson

No. 04-115

In The

Supreme Court of the Gnited States

A

vv

CARSON HARBOR VILLAGE, LTD.,

Petitioner,

Vv.

CITY OF CARSON, CALIFORNIA, et al.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

e

BRIEF AMICUS CURIAE OF

WESTERN MANUFACTURED HOUSING

COMMUNITIES ASSOCIATION IN

SUPPORT OF PETITION FOR CERTIORARI

oo

vy

MICHAEL M. BERGER*

BERGER & NORTON

*Counsel of Record

12121 Wilshire Blvd.

Suite 1300

Los Angeles, CA 90025

(310) 979-2500

A A ae ti SRN Amt I Ie tae A

TABLE OF CONTENTS

~_

Page

BRIEF AMICUS CURIAE OF WESTERN MANUFAC-

TURED HOUSING COMMUNITIES ASSOCIATION

IN SUPPORT OF PETITION FOR CERTIORARI.....

INTEREST OF AMICUS CURIAE..................cecceeeees

SUMMARY OF ARGUMENT... ee ceessstreeeeees

ee NN SIO sicstctiaiexicanrtulencs Waianioninedataponacienenite

AE saaiicasnsncerpscanedpcmnawsiaancenmanhiennaasaneesenensi

I THE NINTH CIRCUIT HAS PRECLUDED

MOBILE HOME PARK OWNERS AS A

CLASS FROM THE BENEFITS OF 42 U.S.C.

D> won — -

II CALIFORNIA’S MAVERICK FIFTH AMEND-

MENT JURISPRUDENCE PROVIDES NO

REMEDY FOR PROPERTY OWNERS, LEAV-

ING THE FEDERAL COURTS AS THE ONLY

FORUM CAPABLE OF PROVIDING PETI-

IIE IE esas sicsstissccetaaninalbvechinktinaanansanins 11

III AS A MATTER OF POLICY, A STATE PRO-

CEDURE THAT REDUCES THE HOUSING

SUPPLY - PARTICULARLY A KIND OF

HOUSING NEEDED BY LOW INCOME

FAMILIES - CANNOT BE CONDONED.......... 15

PR) ER RN NA Melee eed RT rene ORS AION 17

TABLE OF AUTHORITIES

Page

CASES

Armendariz v. Penman, 75 F.3d 1811 (9th Cir.

EE) O00 BN sia iiesincsisacdicaecianaenietoneineans 7

Bank of U.S. v. Deveaux, 5 Cr. (9 U.S.) 87 (1809)............. 10

Burnett v. Grattan, 468 U.S. 42 (1984)... eee eee 8

City of Monterey v. Del Monte Dunes, 526 U.S. 687

CIID sv sksiickaxicicianrevessseesvaanendeevaiaaenmana cased 7,18

Dodd v. Hood River County, 136 F.3d 1219 (9th Cir.

BND ovcvinciniiseresocaccsvacenteviseptuatasmneaee ee con ace aaa 7

Dolan v. City of Tigard, 512 U.S. 374 (1994)... ee. 13

Felder v. Casey, 487 U.S. 131 (1988)...............ccssesssecceeees 3,9

First English Evangelical Lutheran Church uv.

County of Los Angeles, 482 U.S. 304 (1987)........ 2, 11,13

Galland v. City of Clovis, 16 P.3d 130 (2001)........... 4,6,14

Golden State Transit Corp. v. City of Los Angeles,

GOS UB. FOB CGD nviscsivivisensivicicenedtnligetatuien 8

Greenwood v. Peacock, 384 U.S. 808 (1966)..............000..... 10

Heck v. Humphrey, 512 U.S. 477 (1994) ...........eeeseseeeeeeees 7

Inyo County v. Paiute-Shoshone Indians, 123 S.Ct.

Be CRO O) vivisersuikctmenioseamanenandeeknaiaieds 8

Jefferson v. City of Tarrant, 522 U.S. 75 (1997).............6. 7

Kalina v. Fletcher, 522 U.S. 118 (1997) ..................cccssssseees 8

i

TABLE OF AUTHORITIES - Continued

Page

Kavanau v. Santa Monica Rent Control Bd., 941

Se UN BO sissy sanesuncosarvasssanincvernsve 4,5, 6, 14

Lake Country Estates v. Tahoe Reg. Plan. Agency,

I ed cigs ccnhaias cnc ees eateasneiia 8

Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304

(a SRE a SIERO A 10

Lynch v. Household Fin. Corp., 405 U.S. 538 (1972).......... 8

McNeese v. Board of Education, 373 U.S. 668 (1963)......... 9

Mitchum v. Foster, 407 U.S. 225 (1972)...........ccccccceeceees 8,9

» Monell v. Department of Social Services, 436 U.S.

a ie edad liecices 7

Monroe v. Pape, 365 U.S. 167 (1961) oo... eee eee 8, 10

Nollan v. California Coastal Commn., 483 U.S. 825

as a nEE dus Rls Cis chck caegabh unsagisdbenkasacdesenarshass 2,11, 13

Owen v. City of Independence, 445 U.S. 622 (1980).......... 14

Patsy v. Florida Board of Regents, 457 U.S. 496

a NAN AEE TIE Es SOAR ae OR a Ee 3,9

San Diego Gas & Elec. Co. v. City of San Diego, 450 |

a cic siiaissachak Saevebdenacisibanisnscchunsas 12

Santini v. Connecticut Haz. Waste Mgmt. Serv., 342

F.3d 118 (2d Cir. 2003), cert. pending............0.ccccccccceeeees 7

CONSTITUTIONS

I io scds ad ccantanandateesasssenunnekdonss ....passim

iii

TABLE OF AUTHORITIES - Continued

; Page

STATUTES

Oe We BREE fasereciestniaecsenomenelaniesaee 16

OR ees OF SR essere enesbaxsenccunterenetnin 3, 6, 7, 8, 10

Cal. Govt. Code § 65589.5(a)(2)...........cccccescecsccsscsecesseeees 15

OTHER AUTHORITIES

Babcock & Siemon, The Zoning Game Revisited 263

(Lincoln Inst. of Land Policy 1985) .0.0........cccccccccee, 13, 15

Bauman, The Supreme Court, Inverse Condemna-

tion, and the Fifth Amendment, 15 Rutgers LJ.

PIS AAO isnrcnisiernicalsccaoubuanihaninetrcstagaspistatisbeusscaecobudiaeiick 12

Bosselman, Callies, & Banta, The Taking Issue

NR atl Ce eo Bee) 12

Callies, The Taking Issue Revisited, 37 Land Use

Law & Zoning Digest 6 (July 1985) ......cccccccccccccceesecees 12

Coyle, Property Rights and the Constitution 11

(tate TY. OE IV... Prem: ROBB) inc sos cusicnssssnsenccececcsscccec 13

DiMento, et al., Land Development and Environ-

mental Control in the California Supreme Court:

The Deferential, the Preservationist, and the

Preservationist-Erratic Eras, 27 U.C.L.A.L. Rev.

Ne ID accra chnhcicchaaks unorue meen ae te baler b 11

Epstein, Rent Control Revisited: One Reply to Seven

Critics, 54 Brooklyn L. Rev. 1281 (1989) ..........cccccccee. 16

Fischel, Regulatory Takings: Law, Economics, and

Politics 226 (Harvard U. Press 1995)...........cccccccccceeseees 12

TABLE OF AUTHORITIES - Continued

Hirsch & Hirsch, Legal-Economic Analysis of Rent

Controls in a Mobile Home Context: Placement

Longtin, Avoiding and Defending Constitutional

Attacks on Land Use Regulations (Including In-

verse Condemnation) 38B NIMLO Municipal L.

SRT. Te CINE sin ccituisecocmndaeanc anita camen:

The Report of the President’s Commission on

PINE WE Cede cccaveemtrndsintcicua

Williams, American Land Planning Law §6.03

CON. Bes, CI, BIND nes haincenceciericccentae cue

Page

BRIEF AMICUS CURIAE OF :

WESTERN MANUFACTURED HOUSING

COMMUNITIES ASSOCIATION

IN SUPPORT OF PETITION FOR CERTIORARI

The Western Manufactured Housing

Communities Association has received the consent of

the parties to file this brief as Amicus Curiae in

support of the Petitioner and has filed the letters of

consent with the Clerk of this Court.1

INTEREST OF AMICUS CURIAE

The Western Manufactured Housing

Communities Association represents 1700 mobile

home park operators. It is the largest such

organization in California and, indeed, in the United

States. The Association has a vital interest in the

issues raised by this case because its members face

those same issues continuously — particularly in

California, where mobile home _ rent control

ordinances are ubiquitous and the courts are

inhospitable to the claims of park owners to a fair

return on their investments. As shown in the Petition

1 Amicus states that its counsel authored this brief

and Amicus paid for it. This brief was not written in

whole or in part by counsel for a party, and no one

other than Amicus made a monetary contribution to its .

preparation. (Supreme Court Rule 37.6.)

1

for Certiorari, the California courts provide no real

remedy for park owners, making their ability to

litigate their claims in federal court a necessity.

SUMMARY OF ARGUMENT

California has always marched to the beat of

its own Fifth Amendment drummer. That is why its

land use regulations have, for years, provided a

stream of constitutional cases for this Court's

decision that is out of scale, even given California's

status as the most populous state in the Nation.

Twice in the space of two weeks, for example,

this Court reined in the California judiciary, noting

that it had been deciding just compensation cases

"inconsistently with the requirements of the Fifth

Amendment" (First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 311

[1987]), and that its decisions about development

exactions smacked of "extortion" (Nollan v. California

Coastal Commn., 483 U.S. 825, 837 [1987]) and were

out of step with "every other court that has

considered the question" (Nollan, 483 U.S. at 839).

California did not take to heart those clear

messages from this Court. As shown in the Petition,

it has spent the years since 1987 painstakingly

evading this Court's teachings, and reestablishing its

old, discredited position that landowners claiming

regulatory takings of their property have no

constitutional compensatory remedy.

The Ninth Circuit Court of Appeals has

exacerbated the situation by closing the federal

courthouse doors to aggrieved property owners who

happen to own mobile home parks.

Notwithstanding the total absence of a Fifth

Amendment remedy in the California courts, the

Ninth Circuit has banned such plaintiffs from

seeking redress in federal court.

Ironically, the law the Ninth Circuit refused to

enforce, 42 U.S.C. § 1983, was enacted for the specific

purpose of allowing aggrieved citizens to bypass

obstructionist state procedures and __ secure

expeditious vindication of their federal constitutional

rights. (E.g., Felder v. Casey, 487 U.S. 131, 138 [1988];

Patsy v. Florida Board of Regents, 457 U.S. 496, 503-505

[1982]. See further discussion post, pp. 6-10.)

It is time to call a halt. California's mobile

home park owners need some court in which to seek

vindication of their Fifth Amendment rights to

compensation. California has plainly said it will not

provide effective relief. That being so, the doors to

the federal courthouse must be open. Certiorari

should be granted to redress this constitutional lapse.

FACTUAL SUMMARY

Carson Harbor Village (CHV) owns a mobile

home park, where it rents spaces to mobile home

occupants. It sought permission from the City of

Carson's Mobilehome Park Rental Review Board

(Rent Board) to make a modest rent increase that

2

would allow it a fair return on its investment. The

Rent Board said it would allow an increase of only six

percent of what CHV had requested. Because such a

miniscule rental adjustment meant that the rent level

was not adequate to provide a fair return, CHV

decided it had to sue to vindicate its Fifth

Amendment right to just compensation.

CHV decided to sue in federal court for a

number of reasons, including these. First, it believed

its federal constitutional rights had been violated and

that the place to seek redress was in federal court.

Second, that belief was fortified because the cause

arose in California. California courts have

historically shown a hostility to the rights of property

owners in general, and have largely refused to

protect those rights. (See post, pp. 11-15.)

In the specific context of mobile home rent

control, the California Supreme Court has invented a

"remedial" system that not only fails to provide relief,

it exacerbates the problem. (See Kavanau v. Santa

Monica Rent Control Bd., 941 P.2d 851 [Cal. 1997];

Galland v. City of Clovis, 16 P.3d 130 [2001].) Here's

how it works. (1) A mobile home park owner must

first seek approval of a rent increase from a body like

the Rent Board. If dissatisfied, (2) the owner must

appeal to the city council.? If still dissatisfied, (3) the

2 If the city council remands to the Rent Board

that, of course, would revert the process back to step

one to begin again, adding more administrative steps.

4

owner must seek a writ of administrative mandate

from the superior court to review the city council's

decision. If such a review determines that the denial

of a rent increase was confiscatory, then (4) return to

the Rent Board to seek a "Kavanau adjustment," Le.,

an increase in future rent from future tenants that is

sufficient to compensate for the increase not granted

in step (1), plus interest and costs. If turned down

again (by the same Rent Board that made the initially

inadequate adjustment — here, allowing CHV only

six percent of what it sought), then (5) appeal again

to the city council.‘ If still dissatisfied, then (6) seek

another writ of administrative mandate from the

superior court to determine whether the result (even

with a "Kavanau adjustment") is still confiscatory.>

This nightmarish process, which places mobile

home park owners in a pointless and virtually

endless loop, caroming among administrative

agencies and courts like crazed billiard balls, is no

remedy. It is a thinly disguised scheme to exhaust

the owner: and their bank accounts and _ to

discourage them from even trying to protect rights

guaranteed by the Fifth Amendment.

3 This could, of course, lead to two additional ~

litigational steps in the court of appeal and the state

supreme court — a process that consumes years.

4 See footnote 2.

3 See footnote 3.

Facing that prospect, which the California

Supreme Court candidly conceded eliminated any

right to just compensation for a Fifth Amendment

taking (Kavanau, 941 P.2d at 854, 865, 867; Galland, 16

P.3d at 134), CHV sought relief in federal court.

And the federal courts, rather than throwing

CHV a lifeline, slammed the door, leaving no remedy

for the violation of its constitutional rights. Use the

California courts, said the Ninth Circuit; the federal

courts are not open for your business.

This Court's attention is needed. There is no

state law remedy. Federal court access is essential.

ARGUMENT

I

THE NINTH CIRCUIT HAS PRECLUDED

MOBILE HOME PARK OWNERS AS A CLASS

FROM THE BENEFITS OF 42 U.S.C. § 1983

By demanding that property owners like

Carson Harbor Village seek relief in the California

courts under California law, the Ninth Circuit has

effectively removed from that entire class of citizens

the protection intended by 42 U.S.C. § 1983.

As the Petition aptly shows, there is no remedy

available under California law for a_ Fifth

Amendment taking under these circumstances. (See

Kavanau, 941 P.2d 851; Galland, 16 P.3d 130.)

Moreover, if a property owner seeks relief in

California's courts, the Ninth Circuit will not permit

later litigation of any federal claims, as due process

claims will be subsumed within the takings claim

(Armendariz v. Penman, 75 F.3d 1311 [9th Cir. 1994] [en

banc]) and the state court takings decision will create

collateral estoppel in federal court (Dodd v. Hood

River County, 136 F.3d 1219 [9th Cir. 1998]).¢

Thus, the California courts have eliminated

any ability for these property owners to recover just

compensation for Fifth Amendment violations, and

_ the federal courts in California have eliminated any

federal avenue for redress. That makes a mockery of

this Court's consistent application of 42 U.S.C. § 1983.

The California courts' defiance of federal

constitutional standards will have to await a

certiorari petition from a California decision. The

Ninth Circuit's closure of the federal courthouse

doors can — and should — be remedied here.

A Section 1983 case is a "species of tort

liability,"7 a statutorily created "constitutional tort"S

6 The Ninth Circuit conflicts in these matters with,

e.g., Santini v. Connecticut Haz. Waste Mgmt. Serv., 342

F.3d 118 (2d Cir. 2003), cert. pending.

7 City of Monterey v. Del Monte Dunes, 526 U.S. 687,

709 (1999); Heck v. Humphrey, 512 U.S. 477, 483 (1994).

8 Jefferson v. City of Tarrant, 522 U.S. 75, 78-79

(1997); Monell v. Department of Social Services, 436 U.S.

658, 691 (1978).

that sweeps within its ambit all governmental actions

that impair Bill of Rights protections. Section 1983

was intended to provide "a uniquely federal remedy"?

with "broad and sweeping protection"!® "to secure

private rights against government encroachment,"!1

"read against the background of tort liability that

makes a man_ responsible for the natural

consequences of his actions,"!2 so that individuals in

a wide variety of factual situations are able to obtain

a federal remedy when their federally protected rights

are abridged.13_ While read against the general

common law tort background, "[t]he coverage of the

statute [§ 1983] is . . . broader". than tort law,14 and

must be broadly and liberally construed to achieve its

goals.15 Its "goals" are straightforward: "to provide

9 Mitchum v. Foster, 407 U.S. 225, 239 (1972);

emphasis added.

10 Lynch v. Household Fin. Corp., 405 U.S. 538, 543

(1972); quoting with approval.

11 Inyo County v. Paiute-Shoshone Indians, 123 S.Ct.

1887, 1894 (2003).

12. Monroe v. Pape, 365 U.S. 167, 187 (1961),

overruled in part in Monell, 436 U.S. 658, to expand

government liability.

13 Burnett v. Grattan, 468 U.S. 42, 50, 55 (1984).

14 Kalina v. Fletcher, 522 U.S. 118, 124-125 (1997).

15 Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103, 105 (1989); Lake Country Estates v. Tahoe

Reg. Plan. Agency, 440 U.S. 391, 399-400 (1979).

8

compensatory relief to those deprived of their federal

rights by state actors"16 by "interpos[ing] the federal

courts between the States and the people, as guardians

of the people's federal rights."17 To effectuate those

goals, Congress intended to "throw open the doors of

the United States courts" to those who had been

deprived of constitutional rights "and to provide

these individuals immediate access to the federal courts

"18 '

"We yet like to believe that wherever the

Federal courts sit, human rights under

the Federal Constitution are always a

proper subject for adjudication, and that

we have not the right to decline the exercise

of that jurisdiction simply because the

rights asserted may be adjudicated in some

other forum."19

This theory of protecting federal rights in federal

courts dates to the founding of the Republic, and

makes clear why the Ninth Circuit's decision below is

historically and doctrinally mistaken. As James

Madison bluntly put it, " . a review of the

16 Felder v. Casey, 487 U.S. 131, 141 (1988); emphasis

added.

17 Mitchum, 407 U.S. at 243; emphasis added

18 Patsy v. Florida Board of Regents, 457 U.S. 496, 504

(1982); emphasis added.

19 McNeese v. Board of Education, 373 U.S. 668, 674,

fn. 6 (1963); emphasis added; quoting with approval.

9

constitution of the courts in the many states will

satisfy us that they cannot be trusted with the

execution of federal laws."29 This Court itself has

noted that one reason for Section 1983 was to provide

a federal forum without recourse to state litigation.

"It is abundantly clear that one

reason the legislation was passed was to

afford a federal right in federal court

because, by reason of prejudice, passion,

neglect, intolerance or otherwise, state

laws might not be enforced and the

claims of citizens to the enjoyment of

rights, privileges, and immunities

guaranteed by the 14th Amendment

might be denied by the state agency."21

For whatever reason, the California state

courts have chosen to defy this Court's Fifth

Amendment jurisprudence and strike out on their

own course, one that precludes relief to victims of

takings like CHV. It is unconscionable to allow the

Ninth Circuit, in effect, to approve that state of affairs

by relegating property owners to a system that seems

designed to evade the Fifth Amendment's just

compensation guarantee.

20 Quoted in Greenwood v. Peacock, 384 U.S. 808, 836

(1966) (Douglas, J., dissenting). See also Martin v.

Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 347-348 (1816);

Bank of U.S. v. Deveaux, 5 Cr. (9 U.S.) 87 (1809).

21 Monroe, 365 U.S. at 167; emphasis added.

10

II

CALIFORNIA'S MAVERICK FIFTH

AMENDMENT JURISPRUDENCE PROVIDES NO

REMEDY FOR PROPERTY OWNERS, LEAVING

THE FEDERAL COURTS AS THE ONLY FORUM

CAPABLE OF PROVIDING PETITIONER RELIEF

California. has created its own _ Fifth

Amendment world by painstakingly recreating the

non-remedial regime this Court so highly criticized

in 1987 in First English and Nollan. (See Pet., pp. 5-

10.) The Ninth Circuit cannot banish mobile home

park owners (along with other property owners) to

that regime to protect their constitutional rights.

Commentators from around the country —

even those that generally sympathize with (or even

represent) government agencies — have _ long

recognized California's hostility to the rights of

property owners under the Fifth Amendment. They

have called California's attitude toward property

owners "more hostile . . . than any other high court in

the nation."22, They concluded that California's

22 DiMento, et al., Land Development and

Environmental Control in the California Supreme Court:

The Deferential, the Preservationist, and the Preservationist-

Erratic Eras, 27 U.C.L.A.L. Rev. 859, 872 (1980). The

eight highly knowledgeable authors were led by the

late UCLA law professor Donald G. Hagman, the

leading land use legal thinker and analyst of his time.

11

attitude was '"extreme,"23 "onerous [and]

draconian"24 — in short, "the most restrictive state in

the country with respect to land use."25 California's

courts have applied this bias "consistently."26

23“ Fischel, Regulatory Takings: Law, Economics,

and Politics 226 (Harvard U. Press 1995), by a

nationally recognized land economist at Dartmouth.

24 Callies, The Taking Issue Revisited, 37 Land Use

Law & Zoning Digest 6, 7 (July 1985). The author, a

professor of law at the University of Hawaii, co-wrote

one of the most influential books on land use —

unequivocally pro-regulation. (Bosselman, Callies, &

Banta, The Taking Issue [CEQ 1973].)

25 Bauman, The Supreme Court, Inverse

Condemnation, and the Fifth Amendment, 15 Rutgers L.J.

15, 70 (1983). The author has seen both sides, having

served, at different times, as litigation counsel to the

National Association of Home Builders and as

Chairman of the Maryland-National Capital Park and

Planning Commission (regulating land use in

Montgomery County, Md.).

26 1 Williams, American Land Planning Law § 6.03

at 184 (rev. 1988, supp. 2000). Others openly gloated.

See Longtin, Avoiding and Defending Constitutional

Attacks on Land Use Regulations (Including Inverse

Condemnation), 38B NIMLO Municipal L. Rev. 192-193

(1975), quoted with disapproval in San Diego Gas &

Elec. Co. v. City of San Diego, 450 U.S. 621, 655, fn. 22

(1981) (Brennan, J., dissenting, but apparently

expressing the substantive views of five Justices).

12

This Court responded to California in 1987,

with its double-barreled First English and Nollan

rebuke of its Fifth Amendment jurisprudence. One

would have thought that would suffice.

This Court's admonitions notwithstanding,

Californians' property rights remain very much a

constitutional "poor relation." (Compare Dolan v.

City of Tigard, 512 U.S. 374, 392 [1994].) A poll of land

use experts on both sides ‘found "California was a

near unanimous choice as the state least likely to

protect landowner rights. California municipalities

are accustomed to meeting little resistance from the

state courts."27 Two knowledgeable commentators

concluded that, "[i]n California, the courts have

elevated governmental arrogance to a fine art."28

One mechanism devised by the California

courts in that process involves mobile home park

rent adjustments (described ante, p. 4). That is the

system to which the Ninth Circuit relegated CHV for

constitutional relief. It can provide nothing of the

sort. The system — as candidly conceded by its

creators on the California Supreme Court — will not

27 —« Coyle, Property Rights and the Constitution 11

(State U. of N.Y. Press 1993).

28 = Babcock & Siemon, The Zoning Game Revisited

263 (Lincoln Inst. of Land Policy 1985). The late

Richard Babcock was then the recognized dean of the

Nation's land use bar and — significantly — a vigorous

defender of expansive government regulatory control.

13

provide any Fifth Amendment just compensation

from the government agency responsible for the

violation. (Kavanau, 941 P.2d at 854, 865, 867; Galland,

16 P.3d at 134.) The most it can do is permit CHV

and others in the same boat to go hat in hand to the

same rent controllers and city councils that have

refused to provide them adequate rental adjustments

in the past and beg for reconsideration.

The California system provides no incentive to

the government to provide relief, as there is no Fifth

Amendment compensation available against the

regulators. (Compare Owen v. City of Independence,

445 U.S. 622, 651 [1980] [monetary remedy against

government is a "vital component" of constitutional

vindication].) Instead, even assuming the Rent Board

and the city council agree that the existing rent is not

adequate, all they can do is authorize CHV to

attempt to make itself whole by increasing the rent in

the future to future tenants who may not be willing

to pay the increased rents to make up for past losses

with which they had nothing to do and for which

they received no benefit.

Allowing the constitutional wrongdoer to shift

liability to innocent third parties is no way to enforce

a constitutional right. But the Ninth Circuit has

given it its imprimatur. California's system has — as

noted above — become the butt of black humor on a

14

national scale.29 This may not be an appropriate

vehicle in which to deal with that problem, but it is

surely an appropriate vehicle to tell the federal courts

that sit in California that they should no longer defer

to that jurisdiction's subversion © _ federal

constitutional rights, and should provide some

effective protection of the Fifth Amendment rights of

property owners.

III

AS A MATTER OF POLICY, A_ STATE

~ PROCEDURE THAT REDUCES THE HOUSING

SUPPLY — PARTICULARLY A_ KIND OF

HOUSING NEEDED BY LOW INCOME

FAMILIES — CANNOT BE CONDONED

It is an open secret that California's supply of

housing has been shrinking in relation to the growth

of its population while the cost of housing has

escalated. The situation is such that the State

Legislature has commented on it. (Cal. Govt. Code §

65589.5[a][2] ["California housing has become the

29. ___ As Babcock and Siemon put it, "What can one

say about the California courts other than that one has

to be a madman to challenge a government regulation

in that bizarre jurisdiction?" "[Why] sue a California

community when it would cost a lot less and save

much time if [the property owner] simply slit his

throat." (Babcock & Siemon, supra, at 257, 293.)

15

most expensive in the nation"].) One of the few kinds

of housing available for low income families is -

manufactured housing, i.e., the so-called "mobile

homes" that are rarely "mobile" any more. Ending

"the serious housing shortage" has been declared

National policy by Congress. (42 U.S.C. § 1441.)

Ironically, as the need for housing has grown,

the pressure on those who supply housing has also

increased. As the dockets of both state and federal

courts in California attest, ordinances like the one at

issue here are proliferating. Designed to protect the

interests of those who are already tenants in mobile

home parks, the impact of these laws is that new

parks are not being opened in sufficient numbers and

park owners have less and less incentive to remain in

business.

Absent efforts to control rent by municipal fiat,

the market would provide additional competition —

and competition would increase the housing supply

while making rents tend to fall of their own accord.

(See Epstein, Rent Control Revisited: One Reply to

Seven Critics, 54 Brooklyn L. Rev. 1281, 1304 [1989].)

Economists generally agree that the

unfortunate effect of rent controls like the severe

illustration at bench is that it reduces the housing

stock. (See, most notably, The Report of the

President's Commission on Housing 91 [1982]; see,

for a study of the first decade of stringent California

mobile home rent control laws, Hirsch & Hirsch,

Legal-Economic Analysis of Rent Controls in a Mobile

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Home Context: Placement Values and Vacancy

Decontrol, 35 U.C.L.A.L. Rev. 399, 463 [1988].)

In a nutshell, overzealous rent control defeats

its ostensible purpose. It drives landlords out of the

market, it increases housing cost, and it denies

housing to those most in need of it. |

This case involves not only a substantial injury

to CHV (which is significant and deserves redress),

and a threat of ongoing injury and frustration to this

Amicus and _ its many members, it involves

significant public policy issues as well. If state and

_ local governments use their enormous regulatory

powers not to encourage the development of much

needed housing, including mobile home park

housing, but to frustrate such development by

making investment in it economically unfeasible, the

critical need for housing — particularly affordable

housing for low and middle income families — will

never be satisfied.

CONCLUSION

This Court's attention is sorely needed.

California's courts provide no protection to the rights

of those who own property. As they will not protect

those rights, the responsibility is that of the federal

courts. This is all the more true in the application of

a federal statute that was expressly enacted and has

been consistently enforced to allow citizens direct

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access to federal court for the vindication of federal

rights.

This is hardly an unusual request. Indeed, it

was only a few years ago that this Court

acknowledged the settled practice before 1987, when

regulatory taking cases in California were routinely

handled in federal court because California clearly

provided no remedy. (See City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 699 [1999].) California has

reconstructed that shameful scenario — casting itself

in the role of latter-day diehard southern states

invoking a doctrine they once called "interposition,"

using state law in an attempt (shot down by this

Court) to deny constitutional rights to some of their

citizens. The idea plays no better today; only the

victims have changed.

Certiorari should be granted and the lower

courts instructed to take jurisdiction of the merits of

this case.

Respectfully submitted,

Michael M. Berger*

BERGER & NORTON

* Counsel of Record

12121 Wilshire Blvd.

Suite 1300

Los Angeles, CA 90025

(310) 979-2500

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