Amicus Curiae Brief — Sparks v. City & County of San Francisco

2

21-1972

In The .

Supreme Court of the United States

October Term, 1991

¢

In the Matter of ADAM SPARKS,

Petitioner,

On Habeas Corpus.

¢

Petition for Writ of Certiorari

to the Ninth Circuit Court of Appeals

¢

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT

OF PETITIONER ADAM SPARKS

+

RONALD A. ZUMBRUN

James S. BuRLING

*R. S. RADFoRD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

COCKLE LAW BRIEF PRINTING CO, em) 225-6964

OR CALL COLLECT (402) 342-283

No. iv

I

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED.................. ii

VRE SAW MU AEN sb hs imnce veviedecaven te cees 1

or Yes ae arn 3

SUMMARY OF ARGUMENT...................000- 4

ARGUMENT

I. A PROFOUND CONFLICT EXISTS AMONG

THE JURISDICTIONS AS TO THE CONSTITU-

TIONALITY OF ENFORCING UNCONSTITU-

pee PTT TT TTR eT Tee TTT eee a

II. CALIFORNIA COURTS MAY NOT ENFORCE

CRIMINAL CONTEMPT PENALTIES STEM-

MING FROM THE VIOLATION OF AN

UNCONSTITUTIONAL ORDINANCE ......... 6

III. SAN FRANCISCO’S HOTEL ORDINANCE

TRANSPARENTLY VIOLATES PETITIONER’S

FUNDAMENTAL RIGHTS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION............ 7

IV. BY FAILING TO APPLY THE CALIFORNIA

RULE ALLOWING COLLATERAL ATTACK ON

THE CONSTITUTIONALITY OF THE RESIDEN-

TIAL HOTEL ORDINANCE, THE COURT

BELOW IMPROPERLY FORCES PETITIONER

TO UNDERGO CRIMINAL PENALTIES FOR

FAILING TO ACQUIESCE IN THE VIOLATION

OF HIS FEDERAL CONSTITUTIONAL RIGHTS 10

SET 0805 5A Cds reckon nakbeWbesee enech keen 11

ii

TABLE OF AUTHORITIES CITED

Page

Cases

Bullock v. City and County of San Francisco,

S21 CAL AG. Oe PP ANNE eibsk iste ccc scsonsces 9

Chicago, Burlington & Quincy Railroad Co. v.

City of Chicago, 166 U.S. 226 (1897)............... 8

Corenevsky v. Superior Court of Imperial

County, 36 Cal Sel Day (IPM Gpe sae cc ccc cccnesecccss 6

Erie Railroad Co. v. Tompkins, 304 U.S. 64

ti Pe Peee Ee ety Tiirt Tre te tr tee eee 6

Ex Parte Purvis, 382 So. 2d 512 (Ala. 1980) .......... 5

First English Evangelical Lutheran Church of

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

DOR MET Deck aeess vc cenrebelaedsathsdanssescscceess 2

Hodel v. Irving, 481 U.S. 704 (1987).................. 2

In re Berry, 68 Cal. 2d 137 (1968)....5, 6, 7, 10, 11, 12

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) .................. 2

Nollan v. California Coastal Commission,

G63 155. TE GR vain ee bab an de sek 2, 8, 9, 12

Walker v. City of Birmingham, 388 U.S. 307

(ISGZ) 2 nevis cnsw pene yweeeeeed ais waaes 3, 5, 6, 10, 11

RULES AND REGULATIONS

San Francisco Administrative Code, Chapter 41...... 3

Supsome. Coat. SE BP iis eietec sl scs cw cecdsesce. 1

UNITED States CONSTITUTION

No.

¢

In The

Supreme Court of the United States

October Term, 1991

*

In the Matter of ADAM SPARKS,

Petitioner,

On Habeas Corpus.

*

Petition for Writ of Certiorari

to the Ninth Circuit Court of Appeals

¢

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT

OF PETITIONER ADAM SPARKS

¢

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus

curiae in support of the petition for writ of certiorari.

Written consent to the filing of this brief has been granted

by counsel for all parties. Copies of the letters of consent

have been lodged with the clerk of this Court.

¢

INTEREST OF AMICUS

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in

matters affecting the public interest. PLF has over 20,000

contributors and supporters located throughout the coun-

try and maintains its principal office in Sacramento, Cali-

fornia. The Foundation’s policy is set by a Board of

Trustees composed of concerned citizens, the majority of

whom are attorneys. PLF’s Board evaluates the merits of

any contemplated legal action and authorizes such action

only where the Foundation’s position has broad support

within the general community.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in

support of private property rights will provide an addi-

tional viewpoint with respect to the constitutional issues

presented. PLF has participated in numerous cases

involving issues arising under the Takings and Due Pro-

cess Clauses of the Fifth and Fourteenth Amendments to

the United States Constitution. Its attorneys were counsel

of record in the landmark United States Supreme Court

case, Nollan v. California Coastal Commission, 483 U.S. 825

(1987), and PLF participated as amicus curiae in Keystone

Bituminous Coal Association v. DeBenedictis, 480 U.S. 470

(1987), Hodel v. Irving, 481 U.S. 704 (1987), and First

English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987).

¢

STATEMENT OF THE CASE

Petitioner, a small hotel operator, seeks federal

habeas corpus relief from an order of the San Francisco

County Superior Court sentencing him to jail for con-

tempt. Petitioner faces imprisonment for failing to com-

ply with injunctions issued pursuant to the San Francisco

Hotel Anti-Conversion and Demolition Ordinance, San

Francisco Administrative Code, Chapter 41. This ordi-

nance forces petitioner to devote 69 rooms of his 84-room

tourist hotel to sheltering homeless derelicts at drastically

discounted rates—or alternatively, to ransom his property

by making a cash payment to the City and County of San

Francisco. On its face, this measure transparently com-

prises a regulatory taking of petitioner’s property with-

out just compensation, in violation of the Fifth and

Fourteenth Amendments to the United States Constitu-

tion.

The Federal District Court acknowledged the patent

constitutional defects of the San Francisco hotel ordi-

nance but dismissed the habeas corpus petition because

of a misapplication of this Court’s ruling in Walker v. City

of Birmingham, 388 U.S. 307 (1967). In Walker, this Court

upheld an Alabama rule barring defendants from chal-

lenging the validity of unconstitutional enactments as a

defense to criminal contempt citations. However, this

Court did not adopt the Alabama rule as a uniform

standard, and California has expressly rejected the Ala-

bama rule. By misapplying Alabama’s procedural rule to

a California defendant, the Federal District Court has

added to the confusion surrounding these conflicting

rules and deprived petitioner of fundamental constitu-

tional safeguards.

SUMMARY OF ARGUMENT

Under California law, whether petitioner may right-

fully be subjected to criminal contempt sanctions

) depends on the constitutional validity of San Francisco’s

) Hotel Anti-Conversion and Demolition Ordinance. On its

; face, this ordinance comprises a transparent violation of

the Takings Clause. The Federal District Court acknowl-

edged this fact in considering petitioner’s habeas corpus

petition but failed to follow California law and declare

that the state court lacked jurisdiction to hold petitioner

in criminal contempt. Instead, the District Court appliéd

a conflicting Alabama rule barring challenges to the con-

stitutionality of directives as a defense to criminal con-

tempt citations. This ruling, affirmed by the Ninth Circuit

Court of Appeals, leaves petitioner in an unconscionable

position: the state courts have refused to protect his fed-

eral constitutional rights, and the federal courts have

failed to recognize petitioner’s procedural rights under

California law. Such an outcome is contrary to fundamen-

tal concepts of fairness and justice and will contribute to

further confusion and conflicts among the jurisdictions.

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ARGUMENT

I

A PROFOUND CONFLICT EXISTS AMONG

THE JURISDICTIONS AS TO THE

CONSTITUTIONALITY OF ENFORCING

UNCONSTITUTIONAL ORDERS

The use of criminal contempt to enforce compliance

or punish noncompliance with legitimate directives is an

_—_— ”

indispensable feature of our judicial system. However,

when the power of contempt is used in support of abu-

sive and unconstitutional enactments, it becomes a tool of

injustice. In such cases some rule is needed to prioritize

the conflicting values of judicial authority and the sanc-

tity of fundamental human rights.

The Constitution itself is silent as to whether the

contempt power may properly be invoked to enforce

compliance with unconstitutional mandates. In the

absence of a uniform directive from this Court, two

sharply conflicting rules have emerged from the various

state and federal jurisdictions.

Several states, such as Alabama, employ a collateral

bar rule under which the constitutional validity of an

ordinance may not be challenged as a defense to criminal

contempt sanctions arising from refusal to comply with

the ordinance. This is true even when the measure is

transparently unconstitutional and requires the irretriev-

able surrender of important constitutional rights. Ex Parte

Purvis, 382 So. 2d 512 (Ala. 1980).

Contrary to this policy, California law provides that

defendants appealing a criminal contempt citation may

challenge the constitutional validity of the underlying

directive. In re Berry, 68 Cal. 2d 137 (1968). Under the

California rule, courts lack jurisdiction to issue injunc-

tions enforcing unconstitutional directives, and “it is —

clearly the law that the violation of an order in excess of _

the jurisdiction of the issuing court cannot produce a

valid judgment of contempt.” Id. at 147.

The Alabama collateral bar rule was upheld by this

Court in Walker v. Birmingham, 388 U.S. 307, and the same

rule is applied in federal courts dealing with contempt

actions arising from the violation of federal directives.

When state contempt citations are reviewed by the fed-

eral judiciary, however, the rule of the individual state

should govern. See Erie Railroad Co. v. Tompkins, 304 U.S.

64, 78 (1938) (“[e]xcept in matters governed by the Fed-

eral Constitution or by Acts of Congress, the law to be

applied in any case is the law of the State”).

II

CALIFORNIA COURTS MAY NOT ENFORCE

CRIMINAL CONTEMPT PENALTIES STEMMING

FROM THE VIOLATION OF AN

UNCONSTITUTIONAL ORDINANCE

In California, the rule is clear that no criminal sanc-

tions may lawfully be enforced for violating an injunction

if the underlying ordinance is unconstitutional. In re

Berry, 68 Cal. 2d at 145. The validity of the injunction

depends on the validity of the underlying enactment,

which may be challenged via contempt proceedings.

“{UJnder California law, a person may disobey an order

and raise his defenses when he is sought to be held in

contempt for such disobedience.” Corenevsky v. Superior

Court of Imperial County, 36 Cal. 3d 307, 327 (1984) (citing

Berry).

Berry was decided after Walker v. Birmingham and

embodies an express rejection of Alabama’s collateral bar

rule. The Berry rule was held to be “considerably more

consistent with the exercise of [constitutional] freedoms

than that adopted in Alabama, and it is therefore difficult

to perceive how the Walker decision is of relevance.” In re

Berry, 68 Cal. 2d at 150. This is a proper application of the

general policy that states are free to afford their citizens

greater constitutional safeguards than those guaranteed

by the Federal Constitution, but may not fall below federal

standards in protecting constitutional rights.

Ill

SAN FRANCISCO’S HOTEL ORDINANCE

TRANSPARENTLY VIOLATES PETITIONER’S

FUNDAMENTAL RIGHTS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION

The ordinance at issue in this case prohibits peti-

tioner from renting more than 15 rooms of his 84-room

tourist hotel to tourists. The remaining 69 rooms must be

devoted to what amounts to a public welfare program—

housing derelict residents of San Francisco’s Tenderloin

District.

The ordinance not only fails to compensate petitioner

for this confiscation of his private property, it requires

petitioner to discount his normal room rates so dras-

tically that his hotel would be forced into bankruptcy if

he complied. The predatory nature of the regulation is

most clearly revealed by a provision that excuses peti-

tioner from complying with its terms if he agrees to pay a

cash ransom to the City and County of San Francisco.

On its face, this measure comprises a transparent

regulatory taking of petitioner’s property without just

compensation, in violation of the Fifth and Fourteenth

Amendments to the United States Constitution. This fact

was forcefully acknowledged by the Federal District

ici

Court in which petitioner’s habeas corpus action was

filed. In those proceedings, the court described the sub-

ject ordinance as an “unconscionable and flagrantly

unreasonable imposition”; a “heinous and egregiously

horrid” measure that “runs afoul of the Takings Clause of

the United States Constitution.” Recorders Transcript

at 62-65.

This is a completely accurate characterization of San

Francisco’s residential hotel ordinance, as can be con-

firmed by the briefest glance at this Court’s regulatory

takings doctrine.

The Fifth Amendment to the United States Constitu-

tion provides that “private property [shall not] be taken

for public use, without just compensation.” U.S. Const.

Amend. V. This federal prohibition was extended to the

states through the Fourteenth Amendment. Chicago, Bur-

lington & Quincy Railroad Co. v. City of Chicago, 166 U.S.

226 (1897).

In its leading case on regulatory takings, this Court

has required that heightened judicial scrutiny be applied

to property regulations challenged under the Takings

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

at 834 n.3.! Applying heightened scrutiny to the San

1 Although California’s First District Court of Appeal has had

two opportunities to pass on the constitutionality of the resi-

dential hotel ordinance, it has refused to honor petitioner’s

right to heightened scrutiny under Nollan. When petitioner

brought this question before that forum, the state panel swept

aside petitioner’s carefully reasoned constitutional arguments, reit-

erating its own policy of extreme deference to abusive (continued)

Francisco ordinance, it is clear that this measure was

designed and enacted for the sole purpose of forcing a

politically powerless minority to bear the full costs of

providing a general public benefit. As such, the ordi-

nance transparently violates the Takings Clause on its

face.

The ordinance’s avowed purpose of providing low-

cost shelter for Tenderloin derelicts could no doubt be

construed as a general public benefit to the City and

County of San Francisco. But a general public benefit

cannot, under the Fifth Amendment, be financed by hold-

ing the constitutional rights of hotel owners to ransom.

The City and County of San Francisco has the authority,

under its police power, to allocate its general revenues to

subsidize any group it pleases. However, forcing one

small group of property owners to bear the full costs of

such a program is an affront to basic concepts of equity.

This is a classic, indeed a prototype, violation of the

Takings Clause, which “’bar[s] 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.” Nollan, 483 U.S. at 835 n.4 (quoting Armstrong v.

United States, 346 U.S. 40, 49 (1960)).

regulations: “In California there is an extensive body of prece-

dent rejecting such claims [i.e., federal takings claims invoking

Nollan] and displaying a generally tolerant attitude to munici-

pal ordinances in this area.” Bullock v. City and County of San

Francisco, 221 Cal. App. 3d 1072, 1089 (1990).

10

IV

BY FAILING TO APPLY THE CALIFORNIA RULE

ALLOWING COLLATERAL ATTACK ON THE

CONSTITUTIONALITY OF THE RESIDENTIAL

HOTEL ORDINANCE, THE COURT BELOW

IMPROPERLY FORCES PETITIONER TO

UNDERGO CRIMINAL PENALTIES FOR FAILING

TO ACQUIESCE IN THE VIOLATION OF HIS

FEDERAL CONSTITUTIONAL RIGHTS

The Federal District Court accurately described San

Francisco’s residential hotel ordinance as a “heinous and

egregiously horrid” violation of the Takings Clause.

Under California law, such a finding would mean that the

Superior Court lacked jurisdiction to compel petitioner to

comply with the ordinance, and the criminal contempt

sanctions levied against petitioner are therefore without

effect.

However, the District Court went astray in dismiss-

ing petitioner’s habeas corpus petition on the grounds

that “[t]he ruling of Walker indicates that a party may be

held in contempt for violation of a court order even

though the underlying order may be unconstitutional.”

See Recorder’s Transcript.

In fact, Walker merely upholds the constitutionality of

such a rule as applied in Alabama. This Court has never

held that the Alabama rule approved in Walker has man-

datory applicability in other jurisdictions. See In re Berry,

68 Cal. 2d at 150. Especially where—as in California—

other states have expressly rejected the Alabama rule, it

would be repugnant to the principles of federalism for

federal courts to gratuitously impose Alabama’s collateral

>

bar rule in reviewing state procedures arising in other

jurisdictions.

By incorrectly applying the Alabama rule to a Cali-

fornia proceeding, the court below deprives petitioner of

an important procedural right enunciated by the Califor-

nia Supreme Court in In re Berry. At the same time, the

court below acquiesces in the refusal of the California

courts to uphold petitioner’s federal constitutional rights.

This condemns petitioner to the worst of all possible

worlds—the state courts have refused to uphold his fed-

eral rights, and the federal courts have failed to recognize

his rights as a California citizen. In addition to its mani-

fest injustice, such an outcome can only add to the inter-

jurisdictional confusion and conflict that exists in this

area.

CONCLUSION

Califernia courts have expressly rejected Alabama’s

collateral bar to challenging the validity of unconstitu-

tional directives in criminal contempt proceedings. The

California rule of In re Berry does not conflict with this

Court’s decision in Walker v. Birmingham but simply

reflects a policy choice to extend greater constitutional

protections to California citizens than Alabama courts

extend to citizens of that state.

Ironically, in the case at bar California’s state courts

have refused to extend to petitioner fundamental consti-

tutional protections guaranteed to all Americans by the

Fifth and Fourteenth Amendments to the United States

Constitution. The failure of California courts to apply this

12

Court’s regulatory takings doctrine, set forth in Nollan v.

California Coastal Commission, leaves petitioner facing

imprisonment for failure to comply with a transparently

unconstitutional ordinance.

In proceedings below, the Federal District Court

acknowledged the transparent invalidity of the San Fran-

cisco hotel regulation but mistakenly applied Alabama’s

collateral bar rule to dismiss petitioner’s habeas corpus

action. The District Court should have applied Califor-

nia’s Berry rule, which would put at issue the constitu-

tionality of the subject hotel ordinance.

Allowing petitioner to be jailed as a result of a misap-

plication of conflicting procedural rules would work an-

unconscionable miscarriage of justice and contribute to

further confusion among the conflicting jurisdictions.

Accordingly, Pacific Legal Foundation respectfully urges

this Court to grant the writ of certiorari for the purpose

of remanding this case to the Federal District Court to

determine the constitutional validity of the challenged

regulation.

DATED: June, 1992.

Respectfully submitted,

RoNALD A. ZUMBRUN

James S. BurRLING

*R. S. RADFoRD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation