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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0902%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 874

## Text

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

17

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0902%3A4. Public record. Not legal advice.