Reply Brief — Atchison, Topeka & Santa Fe Railway Co. v. Southern California Rapid Transit District

Rupreme Court, U.S.

No. 91-1741 OFFICE OF THE CLERK

ee Lars ——

In The

Supreme Court of the United States

October Term, 1991

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THE ATCHISON, TOPEKA AND SANTA FE

RAILWAY COMPANY, et al.,

Petitioners,

VS.

SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT,

HELEN M. BOLEN,

Respondents.

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Petition For Writ Of Certiorari

To The California Supreme Court

+

PETITIONERS’ REPLY MEMORANDUM

— 4

Hitt, Farrer & Burrice

WituraM M. BittiInc

Counsel of Record

Kevin H. BROGAN

DeaAN E. DENNIS

Attorneys for Petitioners

445 S. Figueroa Street

34th Floor

Los Angeles, CA 90071

(213) 620-0460

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

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No. 91-1741

¢

In The

Supreme Court of the United States

October Term, 1991

*

THE ATCHISON, TOPEKA AND SANTA FE

RAILWAY COMPANY, et al.,

Petitioners,

VS.

SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT,

HELEN M. BOLEN,

Respondents.

.

Petition For Writ Of Certiorari

To The California Supreme Court

+

PETITIONERS’ REPLY MEMORANDUM

¢

This Petition squarely presents the discrete issue of

whether the number of votes allocated in a special pur-

pose election creating a benefit assessment district must

bear any relation to the burden of the assessment in order

to satisfy the Fourteenth Amendment's Equal Protection

Clause.

Hoping that the less said the better, Respondent

Southern California Rapid Transit District (“RTD”) makes

no effort to explain or justify the random and arbitrary

vote allocation scheme of California Public Utilities Code

§§ 33000, et seq., based on assessed (i.e., acquisition)

value, other than to reiterate its greater “convenience”

over the logical and rational method of using the same

1

2

basis as the levy (square footage) to allocate the votes. Yet

a Constitutional analysis requires a more detailed, almost

surgical application of the law. Thus, far, the RTD has

succeeded with a blunderbuss, not a scalpel. What is to

RTD an “opportunistic attack on an important public

measure,” is a $200 million dollar bill to the property

owners of downtown Los Angeles, often doubling or

tripling owners’ existing property taxes. What is to RTDa

“narrow” issue, is an issue of extreme importance to

hundreds of property owners along the subway line yet

to be assessed and, indeed, property owners throughout

the state who may subject to this increasingly common

“benefit assessment” taxation. Whether an utterly sham

election format in this huge assessment district is “good

enough for government work” merits this Court’s atten-

tion.

RTD’s opposition raises two new arguments that

deserve comment:

I. RTD ARGUES FOR THE FIRST TIME IN THIS

COURT THAT THE CASE RAISES NO ISSUES OF

GENERAL SIGNIFICANCE. RTD’S OWN STATE-

MENTS BELIE ITS ELEVENTH HOUR ATTEMPT

TO DIMINISH THE IMPORTANCE OF THIS CASE.

This Court recognized the importance of the equal

protection question in special purpose elections by

reviewing the litany of cases cited in the Petition begin-

ning in 1969 with Kramer v. Union Free School Dist. No. 15,

395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583, and continu-

ing to 1989 with Quinn v. Millsap, 491 U.S. 95, 109 S. Ct.

2324, 105 L. Ed. 2d 74. Nor is it, as RTD asserts, mere

“coincidence” that this Court agreed to hear and decide a

rationality challenge on equal protection grounds to

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Proposition 13 in Nordlinger v. Hahn, No. 90-1912. No

matter how that case is decided, this case presents the

distinct question of whether the deference inherent in the

taxation area, inheres as well when a voting scheme is

challenged.

To fully appreciate the significance of this challenge

to a statutory violation of equal protection in the voting

rights area, one need look no further than RTD’s own

appeals to the California Supreme Court to exercise its

discretionary review. In its Petition for Review below,

RTD wrote:

“The decision also imperils the very existence of

a time tested assessment device frequently

employed in California and elsewhere to finance

public improvements and recapture the windfall

benefits flowing from those improvements. . . .

This Petition presents significant issues of law

and public policy.” (Petition for Review at 3.)

“The Court of Appeal’s decision in this case, if

allowed to stand, has profound implications for

special purpose elections ef all kinds.” (Petition

for Review at 6.) -

“Granting review in this case is necessary and

appropriate because the Court of Appeal’s deci-

sion creates a conflict among the courts on a

constitutional issue implicating special purpose

elections and an important social tool for public

improvements: the benefit assessment.” (Peti-

tion for Review at 24.)

In its brief on the merits in the California Supreme

Court, RTD wrote:

“In an era of increasing competition for the

dwindling public monies available to fund pub-

lic improvements and betterment projects of all

sorts, this case presents unique public policy

considerations and has potentially sweeping

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practical implications.” (RTD’s Opening Brief at

2.)

RTD’s new argument is that this is a case of little

moment. Certainly to the property owners who must foot

the $200 million bill under an unfair election scheme, it is

a case of extreme significance. As to the implications

beyond this case, RTD’s own words speak for themselves.

The significance of this case was not lost on the California

Supreme Court in granting review, and certiorari is

appropriate here.

II. PETITIONERS HAVE PERFECTED THEIR CHAL-

LENGE TO THE ELECTORAL PROCEDURES.

Without citing a single case or other authority, RTD

raises the new argument that Petitioners’ claims are “aca-

demic” and have somehow not been perfected for review

because they did not file the petition with the required

signatures to secure a vote under California Public Util-

ities Code § 33002.2.! It is unclear whether this is a

ripeness argument, exhaustion of remedies claim, or

some other unnamed defense. What is clear is that RTD’s

position has no merit whatsoever. RTD made this argu-

ment in both the California Court of Appeal and the

California Supreme Court. In deciding the case on the

merits, neither court even mentioned the issue.

Petitioners are obviously interested parties by virtue

of their obligation to pay the assessments. Beyond that

threshold standing requirement, there are no prerequi-

sites to making a facial challenge to the validity of a

1 In its amicus curiae brief, the Los Angeles County Trans-

portation Commission makes the same argument, referring to

the Petitioners’ challenge as “hypothetical.”

5

statute. Where a statute such as Public Utilities Code

§§ 33000, et seq., is unconstitutional on its face, a plaintiff

is not barred from seeking judicial relief without exhaust-

ing administrative remedies [Ebel v. City of Garden Grove,

120 Cal. App. 3d 399, 409 (1981)], or on ripeness grounds.

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386, 47

S. Ct. 114, 71 L. Ed. 303, 310 (1926); Agins v. City of

Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106

(1980); Martino v. Santa Clara Valley Water Dist., 703 F.2d

1141, 1146-47 (9th Cir. 1983).

The petition process suffered from the same constitu-

tional infirmities as the vote allocation scheme: to qualify

for an election, the statute required a petition of at least

25 percent of the assessed value (i.e., acquisition value) of

real property within the district while the basis of the tax

was square footage. Pub. Util. Code §§ 33002, 33002.2.

Petitioners are not required to exhaust an unconstitu-

tional remedy in order to challenge it.

There simply is no justification to support the alloca-

tion of votes in this poorly conceived statutory scheme.

The opinion of the Supreme Court of California stands as

an example of the worst kind of rationalization of an

unfair burden on constitutional voting rights. It should

not be permitted to stand as an example of what govern-

ment can do, to wit, whatever it wants.

Respectfully submitted,

WiItuiAM M. BitTTING

Counsel of Record

Kevin H. BRoGAN

Dean E. DENNIS

Hitt, Farrer & Burrite