Opposition Brief — Snohomish County v. Lutheran Day Care

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No. 92-751

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SNOHOMISH COUNTY; THE SNOHOMISH

COUNTY COUNCIL; and the SNOHOMISH COUNTY

HEARING EXAMINER,

Petitioners,

LUTHERAN DAY CARE,

A NON-PROFIT CORPORATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

GREGORY L. BERTRAM

GREGORY L. BERTRAM &

ASSOCIATES, P.C.

4343 Two Union Square

601 Union Street

Seattle, Washington 98101

(206) 292-1985

December 22, 1992 Counsel for Respondent.

Washington, 0.C. « THIEL PRESS + (202) 328-3286

(:)

QUESTIONS PRESENTED

1. Does the inability of a party to demonstrate that it

has sustained a redressable injury irrevocably barr

that party from successfully applying for a Writ of

Certiorari to this Court?

2. Is willful, arbitrary and capricious governmental mis-

conduct sufficient to establish a violation of the sub-

stantive due process provision of 42 U.S.C. § 1983?

3. Where a conditional use permit application consti-

tutes a vested property right under applicable state

law, is a governmental entity liable in damages under

42 U.S.C. §1983 for a violation of that property

right?

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Page

TABLE OF CONTENTS

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TABLE GE Gees ccc ce cca seve ce reste escsecs ii

TABLE Ge Gap eae 0 56s Beebe hee eee eee eenees ii

ips i en oe are a ee ee ae 1

REASONS FOR DENYING THE WRIT:

I. The County’s Petition For Writ of Certiorari

Should Be Denied Because Petitioner Cannot

Demonstrate a Redressable Injury As Required

By Article III of the Constitution of the

Cin GU o.w'c kee ER ERED ES ESOC Sec eee seoees 2

II. Petitioners’ Constitutional Claims Are Not

Sufficiently Ripe For Judicial Review.............. 9

IIL Petitioners’ Wilful, Arbitrary and Capricious

Governmental Misconduct Clearly Violates

The Substantive Due Process Protections Of

ge PO rr ee eee eee eee 10

IV. Respondent Has A Property Interest As An

Owner And Conditional Use Permit Appli-

cant Sufficient To Invoke The Substantive

Due Process Protections Of 42 U.S.C.

i are merino ror rr yaaa eae ae 18

CARVUAPEEUES be cc ccbe es see se eeaebabeeeneaeaae 23

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardiner, 387 U.S. 136 (1967)....... 9

American-Arab Anti-Discrimination Committee v. |

Thornburgh, 940 F.2d 445 (9th Cir. 1991)............. 9

Beach v. Board of Adjustment, 73 Wn.2d 343 (1968). ...... 22

Bishop v. Houghton, 69 Wn.2d 786 (1966).............. 16

Bishop v. Wood, 426 U.S. 341 (1976). .........2.224.. 20

(wt)

Cases, continued: Page

Board of Regents v. Roth, 408 U.S. 565

(2) eee 19, 20, 22, 23

Brady v. Town of Colchester, 863 F.2d 205 (2d Cir.

PTT er ee ee 22

Califano v. Sanders, 430 U.S. 99 (1977)... 2... eee eee eees 9

Collins v. Harker Heights, 112 S.Ct. 1061 (1992)....... 13, 16

Daniels v. Williams, 474 U.S, 327 (1986)... 2... - 2-2 eee 14

Eastlake Community Council v. Roanoke Associates, 82

Wn.2d 475 (1978)... 2 ce eee ee eee ee eens 15-16, 21

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91

FETUS Soc cee senreresecsersesssseesesens 6,7

Hull v. Hunt, 53 Wn.2d 125 (1958). 2... ee ee ee eee 21

Lutheran-Day-Care v. Snohomish Co., 50 Wn.App. 1058

(1988)... ccc r ccc cece vessrcccesesesececes 23

Lutheran Day Care v. Snohomish County, 119 Wn.2d 91

ee 2, 7, 10, 16, 18, 23

Mackenzie v. City of Rockledge, 920 F.2d 1554 (11th

Gir. BOBL) 0 ccc wc cr scccccrscesesccesenseses 21

Mercer Enterprises v. Bremerton, 93 Wn.2d 624 (1980) ..... 21

Norco Construction v. King County, 97 Wn.2d 680

(ROBB). occ cc cece secesesesswesssesesvesens 22

Owen v. City of Independence, Missouri, 445 U.S. 621

(|) 11,17

Pennell v. City of San Jose, 485 U.S. 1 (1988) .......-++-- 9

Perry v. Sindermann, 408 U.S. 593 (1971).......-.--- 19, 20

R/L Assoc., Inc. v. Seattle, 113 Wn.2d 402, 412, 780

P.2d 838 (1989)... 1. wee eee ee eee ener eeees 21, 22

Shelley v. Kraemer, 334 U.S. 1 (1948). . 6... - +22 eee eees 18

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26 (1975)... 2. cece cee errr er cerees 2, 4,5

Valley Forge College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464 (1981).........- 5

(tv)

Cases, continued: _Page

Warth v. Seldin, 422 U.S. 490 (1974) ..............4..- 2,3

Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d

Ge BU Co 6 OOo ee SOE KHER OC OREO HE ERE EOS OOS 22

Constitution, Statutes, and Ordinances:

MR CE SINE CHI, 6 no a ow nics ce ccc esccace 2,3

PI I occas vcccscvevcrbsccece 2,3

OU I gb.c cvs rcccvcccccvenses passim

Wash. Rev. Code 64.40 et seg... 0... ce eee eee eee passim

Fre

No. 92-751

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SNOHOMISH COUNTY; THE SNOHOMISH

COUNTY COUNCIL; and the SNOHOMISH COUNTY

HEARING EXAMINER,

Petitioners,

LUTHERAN DAY CARE,

A NON-PROFIT CORPORATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

Petitioner lacks the necessary standing to litigate con-

stitutional issues concerning Respondent before the

Court because it cannot demonstrate that it has sustained

a redressable injury. The Supreme Court of Washington

found Petitioner concurrently liable to the Respondent

pursuant to RCW 64.40, et seq., a decision Petitioner can-

not appeal further. Alternatively, Petitioner's claims are

]

not sufficiently ripe to be justiciable in under the facts

and circumstances surrounding Petitioner’s conduct con-

cerning Respondent.

In addition, the Supreme Court of Washington in

Lutheran Day Care v. Snohomish County, 119 Wn.2d 91

(1992), correctly determined that Petitioner’s deliberate,

wilful, arbitrary and capricious conduct with respect to

Respondent was sufficient to establish its liability for vio-

lations of substantive due process under 42 U.S.C. § 1983.

Finally, the Supreme Court of Washington specifically

and correctly found that Respondent had a protectable

property interest of constitutional dimension in its right

to a conditional use permit from Petitioner.

REASONS FOR DENYING THE WRIT

THE COUNTY’S PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE PETITIONER CANNOT

DEMONSTRATE A REDRESSABLE INJURY AS RE-

QUIRED BY ARTICLE III OF THE CONSTITUTION OF

THE UNITED STATES

As an element of standing necessary to litigate matters

before the Supreme Court of the United States, the Court

has consistently required the demonstration of a redress-

able injury from the party seeking judicial relief. See gen-

erally, Warth v. Seldin, 422 U.S. 490 (1974), Simon v.

Eastern Kentucky Welfare Rights Organization, 426 U.S.

26 (1975). In Warth v. Seldin, supra, the petitioners, resi-

dents and organizations in the Rochester, New York,

area, brought an action against the town of Penfield, New

York, and members of Penfield’s zoning, planning and

town boards asserting that the town zoning ordinance

impermissibly excluded individuals of low and moderate

income from living in the town in violation of 42 U.S.C.

§ 1981, §1982 and §1983. The Court dismissed the

complaint on the grounds that the petitioners lacked

necessary standing in order to proceed.

In Warth v. Seldin, supra, the Court stated with respect

to standing:

We address first the principles of standing relevant

to the claims asserted by the several categories of

petitioners in this case. In essence the question of

standing is whether the litigant is entitled to have

the court decide the merits of the dispute or of par-

ticular issues. This inquiry involves both constitu-

tional limitations on federal court-jurisdiction and

prudential limitations on its exercise. £.g., Barrows

v. Jackson, 346 U.S. 249, 255-256 (1953). In both

dimensions it is founded in concern about the

proper—and properly limited—role of the courts in a

democratic society. See, Schlesinger v. Reservists to

Stop the War, 418 U.S. 208, 221-227 (1974); United

States v. Richardson, 418 U.S. 166, 188-197 (1974)

(POWELL, J. concurring).

In its constitutional dimension, standing imports

judiciability: whether the, plaintiff has made out a

“case or controversy” between himself and the de-

fendant within the meaning of Article III. This is

the threshold question in every federal case, deter-

mining the power of the court to entertain the suit.

As an aspect of judiciability, the standing question

is whether the plaintiff has “alleged such a personal

stake in the outcome of the controversy” as to war-

rant his invocation of federal-court jurisdiction and

to justify exercise of the court’s remedial powers on

his behalf. Baker v. Carr, 369 U.S. 186, 204 (1962).

The Art. III judicial power exists only to redress or

otherwise to protect against injury to the complain-

ing party, even though the court’s judgment may

benefit others collaterally. A federal court-jurisdic-

tion therefore can be invoked only when the plain-

tiff himself has suffered “some threatened or actual

injury resulting from the putatively illegal action

.... Linda R. S. v. Richard D., 410 U.S. 614, 617

(1973). See, Data Processing Service v. Camp, 397

U.S. 150, 151-154 (1970).

Id., at pp. 498, 499 [footnotes omitted].

Similarly, in Simon v. Eastern Kentucky Welfare Rights

Organization, supra, the Court dismissed claims of peti-

tioners alleging violations of certain provisions of the

Internal Revenue Code of 1954 as amended and the

Administrative Procedure Act as a result of issuance by

the Internal Revenue Service of a revenue ruling allow-

ing favorable tax treatment to a non-profit hospital that

offered emergency room services but not other hospital

services to indigents. The claims of petitioners were dis-

missed on the basis that they lacked standing to assert

their claims. The Court commented upon the absolute

necessity of the redressability requirement as follows:

No principle is more fundamental to the judiciary’s

proper role in our system of government and the

constitutional limitation of federal court-jurisdiction

to actual cases or controversies. See, Flast v. Cohen,

392 U.S. 83, 95 (1968). The concept of standing is

part of this limitation. Unlike other associated doc-

trines, for example, that which restrains federal

courts from deciding political questions, standing

“focuses on the party seeking to get his complaint

before a federal court and not on the issues he

wishes to have adjudicated.” Jd., at 99. As we reiter-

ated last Term, the standing question in its Art. III

aspect “is whether the plaintiff has ‘alleged such a

personal stake in the outcome in the controversy’ as

to warrant Ais invocation of federal court-jurisdic-

tion and to justify exercise of the court’s remedial

powers on his behalf.” Warth v. Seldin, 422 US.

490, 498-499 (1975), (emphasis in original). In sum,

when a plaintiff’s standing ts brought into tssue, the

relevant inquiry ts whether, assuming judiciability of

the claim, the plaintiff is shown an injury to himself

that ts likely to be redressed by a favorable decision.

Absent such a showing, exercise of its power by a

federal court would be gratuitous and thus inconsis-

tent with Art. III limitation.

The necessity that the plaintiff who seeks to invoke

judicial powers stand to profit in some personal

interest remains an Art. III requirement. The federal

court cannot ignore this requirement without over-

stepping its assigned role in our system of adjudicat-

ing only actual cases in controversy.

Id., at pp. 37-39 [emphasis added] [footnotes omitted].

In Simon v. Eastern Kentucky Welfare Rights Organt-

zation, supra, the Court determined that the assertion as

to whether the desired exercise of the Court’s powers

would result in the availability of additional medical or

hospital services to the petitioners was speculative at

best. The Court further determined that it was equally

speculative whether any alleged denials of hospital ser-

vices to indigents were proximately caused by the tax

benefits afforded to the respondent hospitals. The case

was thereupon remanded with instructions to the Dis-

trict Court to dismiss the complaint.

Similarly, in Valley Forge College v. Americans United

for Separation of Church and State, Inc., 454 U.S. 464

(1981), the Court found that an association of taxpayers

lacked standing to challenge a Department of Health,

Education and Welfare transfer of certain real property

ci i

to the respondent college, an institution whose primary

purpose was to provide instruction of religion. The Court

determined that the respondent association of taxpayers

was unable to demonstrate any personal injury sustained

by them as a result of an alleged violation of the Estab-

lishment Clause of the First Amendment. In so holding,

the Court stated:

But neither the counsels of prudence nor the policy

is implicit in the “case or controversy” requirement

that should be mistaken for the rigorous Article III

requirements themselves. Satisfaction of the former

cannot substitute for a demonstration of “distinct

impalpable injury” . . . that is likely to be redressed

if the requested relief is granted. Gladstone Realtors

v. Village of Bellwood, 441 U.S., at 100 (quoting

Warth v. Seldin, supra, at 501). That requirement

states a limitation on judicial power, not merely a

factor to be balanced in the swing of so-called “pru-

dential”’ considerations.

Id., at p. 475.

The Court rejected the claim of the respondent taxpayer

associations that the Establishment Clause created in each

citimen a personal constitutional right such that any citi-

zen could contest federal administrative as well as con-

gressional expenditures under the Establishment Clause.

The Court’s repudiation of that contention was eloquent:

Implicit in the foregoing is the philosophy that the

business of the federal courts is correcting constitu-

tional errors, and that “‘cases and controversies” are

at best merely convenient vehicles for doing so and

at worst nuisances that may be dispensed with when

they become obstacles to that transcendent endeav-

or. This philosophy has no place in our constitu-

tional scheme.

Id., at p. 489.

See also, Gladstone Realtors v. Village of Bellwood, 441

U.S. 91 (1979).

Petitioner cannot reasonably demonstrate that it has

suffered a redressable injury under the circumstances

here. The Supreme Court of Washington imposed liability

for damages against Petitioner in favor of Respondent

upon alternative grounds. In addition to having imposed

liability against Petitioner for violations of 42 U.S.C.

§ 1983, the Supreme Court of Washington in Lutheran

Day Care v. Snohomish County, supra, imposed concur-

rent and alternative liability against Petitioner for the

latter’s violation of RCW 64.40, et seg., a State of Wash-

ington statute that imposes monetary liability against

governmental entities for arbitrary and capricious or

otherwise unlawful processing of permit applications. In

rejecting the Petitioner County’s challenge to a trial court

level finding that its conduct was arbitrary, capricious or

unlawful in violation of RCW 64.40, et seg., the Supreme

Court of Washington stated:

Since the issues are identical in application of the

doctrine and will not work an injustice on the

County, we hold collateral estoppel prevents relitiga-

tion of Judge Kezshner’s finding that the County

acted arbitrarily and capriciously in denying the

conditional use permit. The effect of this holding is

that, for purposes of this action, such arbitrary and

capricious conduct is conclusively established. Since

this is all that is required to establish a cause of

action under RCW 64.40.020(1), appellant has dem-

onstrated that it does have a cause of action against

the County under that statute. Appellant’s motion

for partial summary judgment, establishing the

County’s liability under RCW 64.40.010(1) should

therefore be granted. Accordingly, we reverse the

trial court’s denial of appellant’s summary judgment

motion and remand to the trial court with instruc-

tions to grant the motion.

Id,, at pp. 116 and 117.

RCW 64.40.020(2) also entitled the prevailing parties

to an award of reasonable costs and attorney’s fees in

addition to money damages. The Supreme Court of Wash-

ington quite clearly deemed Respondent, Lutheran Day

Care, the prevailing party under 42 U.S.C. §1983 and

RCW 64.40.020 and awarded Respondent attorney’s

fees under both statutes. /d., at p. 128. In so holding,

the Court stated:

Appellant has conclusively established causes of ac-

tion under RCW 64.40.020(1) and 42 U.S.C. § 1983.

We therefore reverse and remand with instructions

for the trial court to enter partial summary judg-

ment in favor of appellant on the issue of liability

under RCW 64.40.020(1) and 42 U.S.C. § 1983.

Id., [emphasts added].

Thus, the Petitioner has been found liable to Respond-

ent for both money damages and attorney’s fees upon

alternative statutory grounds. Petitioner can no longer

appeal from the Supreme Court of Washington decision

imposing liability against it in favor of Respondent under

RCW 64.40. Petitioner is, therefore, entitled to collect

damages and attorney’s fees from Respondent in an

amount to be established by Respondent at trial.

Under these circumstances, even if this Court is in-

clined to grant the relief requested by Petitioner, Peti-

tioner’s legal liability to Respondent remains fixed. Thus,

Petitioner has failed to properly demonstrate a “‘case or

controversy” concerning Respondent that is an absolute

necessity under the Court’s consistent interpretation of

Article II] standing requirements. Its Petition for Wnt

of Certiorari should, therefore, be denied upon this

ground alone.

Il.

PETITIONERS’ CONSTITUTIONAL CLAIMS ARE NOT

SUFFICIENTLY RIPE FOR JUDICIAL REVIEW

In addition to lacking the necessary standing to prop-

erly bring its constitutional claims before this Court,

Petitioners’ claims are also insufficiently ripe for judicial

review. See, Pennell v. City of San Jose, 485 U.S. 1

(1988); American-Arab Anti-Discrimination Committee

v. Thornburgh, 940 F.2d 445 (9th Cir. 1991). The matter

of “ripeness” has been held to involve two principal con-

siderations: (1) whether the issues are fit for judicial deci-

sion and (2) whether the parties will suffer hardship if

the Court declines to consider the issues. See, Abbott

Laboratories v. Gardiner, 387 U.S. 136 (1967) (overruled

on other grounds, Califano v. Sanders, 430 U.S. 99

(1977); American-Arab Anti-Discrimination Committee

v. Thornburgh, supra, at p. 453.

Here, Petitioner cannot show that it will suffer hard-

ship in the event this Court declines to reach the merits

of Petitioners’ constitutional claims. First, Petitioner has

already been found liable to Petitioner in damages and

attorney’s fees for having violated the proscriptions of a

Washington statute, RCW 64.40, et seq., against arbitrary

and capricious governmental agency conduct in a land use

context, Petitioner has not appealed from this determina-

tion of the Supreme Court of Washington. Thus, Peti-

tioner cannot possibly demonstrate that it will suffer any

hardship within the parameters of its dispute with Re-

spondent irrespective of whether the Court addresses its

constitutional claims on the merits.

Petitioner, like Macbeth, is fully aware of its unclean

hands as it presents its petition to this Court. However,

Petitioner is unable to demonstrate that it will sustain

any redressable hardship in the future in the event this

Court declines to entertain Petitioners’ constitutional

claims. Petitioner has no legal right under any known

state or federal law, whether statutory law or derived

from the common law, to engage in arbitrary or capri-

cious conduct in the course of its administrative decision-

making. As Petitioner cannot conceivably demonstrate a

constitutionally protectable interest in conducting itself

in an arbitrary and capricious manner in any case, present

or future, Petitioner cannot properly claim hardship in

the event this Court declines to revisit the question of

whether arbitrary and capricious governmental miscon-

duct is without more sufficient to trigger a violation of

42 U.S.C. § 1983. Thus, not only are Petitioners’ specific

claims not ripe for judicial review under the facts pre-

sented to the Court by this case, Petitioners’ § 1983

claims could never be justiciable when their arbitrary and

capricious misconduct has already been judicially estab-

lished as a matter of fact and law.

Il.

PETITIONERS’ WILFUL, ARBITRARY AND CAPRI-

CIOUS GOVERNMENTAL MISCONDUCT CLEARLY

VIOLATES THE SUBSTANTIVE DUE PROCESS PRO-

TECTIONS OF 42 U.S.C. § 1983

Petitioner errs in its assertion that the substantive due

process component of 42 U.S.C. §1983 somehow re-

quires more than arbitrary or capricious governmental

entity. In Lutheran Day Care v. Snohomish County,

supra, the Supreme Court of Washington accurately

summarized this Court’s holdings with respect to the

degree of required governmental misconduct under 42

U.S.C. § 1983 as follows:

The Supreme Court has held in Parratt v. Taylor,

451 U.S. 527, 68 L.Ed.2d 420, 101 S.Ct. 1908

(1981), overruled in part on other grounds in Dan-

tels v. Williams, 474 U.S. 327, 88 L.Ed.2d 662, 106

S.Ct. 662 (1986), that § 1983 imposes no state of

mind requirements beyond that necessary to estab-

lish the constitutional violation involved. Therefore,

if a constitutional violation is shown, relief is avail-

able under § 1983, assuming that other prerequi-

sites stating a § 1983 claim have been met.

Id., at p. 124.

This Court has long held that in § 1983 actions that a

governmental entity may not assert the defense of good

faith if the facts establish wilful, arbitrary or capricious

misconduct by its officials. Owen v. City of Independ-

ence, Missourt, 445 U.S. 621 (1980). There, this Court

expressly held that a municipality could not assert a

defense of good faith with respect to the conduct of its

officers or agents in response to a claim of liability under

§ 1983. Id., at p. 409. Owen, supra, involved an action

by the city’s former Chief of Police for wrongful dis-

charge in alleged violation of his constitutionally pro-

tected procedural and substantive due process rights.

This Court reversed a determination by the District Court

and Court of Appeals that the respondent city was en-

titled to qualified immunity from § 1983 liability based

upon the good faith of the city’s officers or agents. In so

holding, the Court reflected upon the common law his-

tory of municipality liability prior and subsequent to

the enactment of § 1983:

In sum, we can discern no “tradition so well

grounded in history and reason” that would warrant

the conclusion that enacting § 1 of the Civil Rights

Act, the 42d Congress sub silentio extended to

municipalities a qualified immunity based on the

good faith of their officers. Absent any clearer indi-

cation that Congress intended to limit the reach of a

statute expressly designed to provide a “broad rem-

edy for violations of federally protected civil rights,”

Monell v. New York City Dept. of Soctal Services,

436 U.S. 685, 98 S.Ct., at 2033, we are unwilling to

suppose that injuries occasioned by a municipality’s

unconstitutional conduct were not also meant to be

fully redressable through its sweep.

Our rejection of a construction of § 1983 that would

accord municipalities qualified immunity for their

good-faith constitutional violations is compelled by

the legislative purpose in enacting the statute and by

considerations of public policy. The central aim of

the Civil Rights Act was to provide protection to

those persons wronged by the “[m]isuse of power,

possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the

authority of state law.” Monroe v. Pape, 365 U.S.

at 184, 81 S.C. at 482 (quoting United States v.

Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85

L.Ed. 1368 (1942). By creating an express federal

remedy, Congress sought to “enforce provisions of

the Fourteenth Amendment against those who carry

a badge of authority of a state and represent it in

some capacity, whether they act in accordance with

their authority or misuse it.” Monroe v. Pape, supra,

365 US. at 172, 81 S.Ct., at 476.

“How uniquely amiss’ it would be, therefore, if the

government itself—‘“‘the social organ to which all in

our society look for the promotion of liberty, jus-

tice, fair and equal treatment, and the setting of

worthy norms and goals for social conduct”—were

permitted to disavow liability for the injury it has

begotten. See, Adickes v. Kress Co., 398 U.S. 144,

190, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (opin-

ion of BRENNAN, J.). A damages remedy against

the offending party is a vital component of any

scheme for vindicating cherished constitutional

guarantees and the importance of assuring its effi-

cacy is only accentuated when the wrongdoer is

the institution that has been established to protect

the very rights it has transgressed.

Id., at pp. 650 through 651 /footnote omitted].

The foregoing principles have not been eroded by any

subsequent decisions of the Court.

Contrary to the Petitioner’s assertions, Collins v.

Harker Heights, 112 S.Ct. 1061 (1992), neither expressly

nor impliedly entitles governmental agencies to rely upon

a good-faith defense to a § 1983 substantive due process

challenge. Instead, in Collins v. Harker Heights, supra,

the Court declined to grant the widow of a municipal

worker fatally injured in the course of his employment a

§ 1983 substantive due process remedy merely because

the respondent city may have failed to train or warn its

employees about known hazards in the work place. This

Court found that the city was at most negligent as a

result of its failure to train its employees or to warn them

about known risks of harm:

We are not persuaded that the city’s alleged failure

to train its employees, or to warn them about known

risks of harm, was an omission that can properly be

characterized as arbitrary, or conscience-shocking, in

a constitutional sense.

Id., at p. 1070 [emphasis added].

The Court’s use of the disjunctive “or” affirms that “arbi-

trary” conduct is sufficient to ground a substantive due

process challenge under § 1983 and that aggravated or

“conscience-shocking” conduct is an alternative ground

rather than a necessary prerequisite for establishing a vio-

lation of constitutional proportion. The Court in Collins

v. Harker Heights, supra, relied heavily upon Daniels v.

Williams, 474 U.S. 327 (1986), in which a §1983 sub-

stantive due process claim of a prisoner injured by the

negligence of a deputy employed by the respondent City

of Richmond, Virginia, was rejected because of the claim-

ant’s failure to prove deliberate governmental miscon-

duct:

Historically, this guarantee of due process has been

applied to deliberate decisions of governmental

officials to deprive a person of life, liberty and prop-

erty. . . . No decision of this Court before Parratt

supported the view that negligent conduct by a state

official, even though causing injury, constitutes a

deprivation of the Due Process Clause. This history

reflects the traditional and common-sense notion

that the Due Process Clause, like its forbear in the

Magna Carta /sic], See, Corwin, The Doctrine of

Due Process of Law Before the Civil War, 24 Harv.

L. Rev. 366, 368 (1911), was exercised with the

powers of governmental, “Hurtado v. California,

110 U.S. 516, 527 (1884) (quoting Bank of Colum-

bia v. Okely, 4 Wheat. 235, 244 (1819))” the touch-

stone of due process ts protection of the individual

against arbitrary action of government, Dent v. West

Virginia, 129 U.S. 114, 123 (1889) “‘([Parratt, supra,

at 549] )”.

Id., at p. 331 [emphasis added].

Here, of course, the conduct complained of against

Petitioner was arbitrary or “deliberate” within the mean-

ing of Daniels v. Williams, supra. The Supreme Court of

Washington found as a matter of fact and law that the

County’s conduct was wilful, arbitrary, capricious and

unlawful:

Judge Kershner heard the case (the second Superior

Court hearing to this point) and held that there was

no factual basis for the hearing examiner’s conclu-

sions, nor was “there reference to standards, if any,

that support the Examiner’s decision.” Order on

Wnit of Certiorari, Clerk’s Papers of Plaintiff, at 303.

The Superior Court therefore remanded the matter

to the hearing examiner for detailed findings of fact

and identification of the standards being applied.

The hearing examiner without further hearing, filed

supplemental findings of fact and conclusions in

support of denial.

Upon review of this action, Judge Kershner held:

[b] findings and conclusions by the Hearing

Examiner constitute wilful and unreasonable

action without consideration and in disregard

of the relevant facts and circumstances. The

denial of the Conditional Use Permit on these

grounds is arbitrary, capricious and unlawful.

Clerk’s Papers of Plaintiff, at 304. He therefore or-

dered the immediate issuance of the permit. The

County did not appeal this holding and the permit

was issued.

119 Wn.2d, at p. 97 [emphasis added]. ©

The arbitrary and capricious misconduct of which Peti-

tioner has been found liable is the converse of negligence.

Doctrinally, arbitrary and capricious misconduct is an in-

tentional wrong. Washington’s courts have consistently

defined arbitrary and capricious conduct as “Being willful

and unreasoning action, without consideration and in dis-

regard of the facts or circumstances .. .”. See, Eastlake

Community Council v. Roanoke Associates, 82 Wn.2d

475 (1973); Bishop v. Houghton, 69 Wn.2d 786 (1966).

Here, the Petitioner was expressly found liable of “‘. . .

wilful and unreasonable action without consideration and

in disregard of the relevant facts and circumstances. The

denial of the conditional use permit on these grounds is

arbitrary, capricious and unlawful.” Lutheran Day Care

v. Snohomish County, supra, at p. 97.

Petitioner never appealed from tnis final trial court

determination and the Supreme Court of Washington

properly held that it was collaterally estopped from be-

latedly raising the issue on Respondent’s appeal from an

adverse trial court decision of its motions for summary

judgment concerning 42 U.S.C. § 1983 liability. At page

12 of its Petition for Certiorari, Petitioner correctly notes

that the guarantee of due process has been applied to

“deliberate” decisions ot governmental officials depriv-

ing persons of life, liberty or property. Petitioner further

notes that in Collins v. Harker Heights, supra, the com-

plainant did not allege any ‘“‘wilful” violation of its rights.

In this case, however, it has been repeatedly established

as a matter of fact and law that Petitioner did in fact

continually wilfully, arbitrarily and capriciously denied

Respondent the conditional use permit to which Respond-

ent was at all relevant times legally entitled. Even when

ordered by a Snohomish County Superior Court Judge to

justify its continued denial of Respondent’s conditional

use permit application, Petitioner failed or refused to

comply with the express order of the Court. The magni-

tude of Petitioner’s continued defiance of judicial author-

ity throughout the litigation has been transparently wil-

ful irrespective of the arbitrary and capricious conduct

imposed by Petitioner upon Respondent.

The sound policy reasons for denial of a good-faith

defense to municipal entities in § 1983 actions was care-

fully explained by the Court in Owen v. City of Independ-

ence, Missouri, supra, as follows:

Moreover, § 1983 was intended not only to provide

compensation to the victims of past abuses, but to

serve as a deterrent against future constitutional

deprivations as well. . . . The knowledge of the

municipality will be liable for all of its injurious con-

duct, whether committed in good faith or not,

should create an incentive for officials who may har-

bor doubts about the lawfulness of their intended

actions to err on the side of protecting citizens’ con-

stitutional rights, Furthermore, the threat that dam-

ages might be levied against the city may encourage

those in a policy making position to institute internal

rules and programs designed to minimize the likeli-

hood of unintentional infringements on constitu-

tional rights. Such procedures are particularly bene-

ficial in preventing those “systemic” injuries that

result not so much from the conduct of any single

individual, but from the interactive behavior of sev-

eral governmental officials, each of whom may be

acting in good faith.

Id., at 445 U.S. 651-652 [citations omitted] [footnotes

omitted].

Thus, under Owen v. City of Independence, Missoun,

supra, and other authorities, Petitioner has no legal en-

titlement to engage in the wilful, arbitrary and capri-

cious exercise of governmental power. Its conduct has

been deemed wilful, unreasonable, arbitrary and capri-

cious by every court before whom Respondent’s claims

have been considered. Respondent has, therefore, signifi-

cantly exceeded the proof requirements of § 1983 sub-

stantive due process constitutional injury on the record

before the Court.

IV.

RESPONDENT HAS A PROPERTY INTEREST AS AN

OWNER AND CONDITIONAL USE PERMIT APPLICANT

SUFFICIENT TO INVOKE THE SUBSTANTIVE DUE

PROCESS PROTECTIONS OF 42 U.S.C. §1983

At the outset, Petitioner raises the issue of the valid-

ity of Respondent’s property interest with respect to

its conditional use permit application for the first time

in its Petition for Writ of Certiorari. Petitioner neither

briefed nor argued this issue on appeal to the Supreme

Court of Washington. As a result, Petitioner is estopped

from raising this issue for the first time on appeal under

Shelley v. Kraemer, 334 U.S. 1 (1948). There, the Court

declined to hear presentation of constitutional issues that

had not been previously raised at lower appeallate levels.

Shelley v. Kraemer, supra, involved this Court’s invalida-

tion of restrictive covenants governing the sale of real

property which were based upon race and determined

that the covenants violated Fourteenth Amendment

proscriptions because state judicial action was necessary

for their enforcement.

With respect to the proper criteria for establishing a

substantive due prccess violation of 42 U.S.C. § 1983,

the Supreme Court of Washington in Lutheran Day Care

v. Snohomish County, supra, in addition to reaffirming

the arbitrary and capricious standard of liability also

clearly held that Respondent’s conditional use permit

constituted a sufficiently protectable property interest

for invocation of § 1983 substantive due process protec-

tions:

‘Along with the vast majority of federal courts, we

recognize that denial of a building permit, under

certain circumstances, may give rise to a substantive

due process claim” (citations omitted). R/L Assoc.,

Inc. v. Seattle, 113 Wn.2d 402, 412, 780 P.2d 838

x Pee ye ern ee eee Petree Abetits

sit Pacacle kash ea

(1989). We see no reason to treat denial of a condi-

tional use permit any differently. Such denial there-

fore can constitute a due process violation. Such a

violation is made out, however, only if the decision

to deny the permit is “invidious or irrational” or

“arbitrary or capricious”. R/L Assoc., Inc,, at 412.

In the present case, the trial court can be interpreted

as denying appellant’s due process claim based on

the fact that the county did not act knowingly or

recklessly in denying the permit. This is the wrong

standard. The standard is arbitrary or capricious

and as already discussed, Judge Kershner finding in

the certiorari action that the County acted arbi-

trarily and capriciously in denying the permit con-

clusively satisfies that standard. Appellant therefore

has established as a matter of law and fact that the

County violated substantive due process when it

denied the conditional use permit.

Id., at 125 [footnote omitted].

Therefore, Petitioner’s contention that Respondent

lacks a sufficiently protectable property interest under

the due process provisions of 42 U.S.G. § 1983 is ground-

less. The Court has quite clearly elucidated the proper

scope of a constitutionally protected property interest

for purposes of § 1983. See, Perry v. Sindermann, 408

U.S. 593 (1971); Board of Regents v. Roth, 408 U.S.

565 (1971). In both Perry, supra, and Roth, supra, the

Court was presented with challenges from college pro-

fessors whose employment had been terminated allegedly

without procedural due process safeguards. Neither of the

professors in question was “tenured” according to the

formal policies of tenure followed by each institution in

question. In Board of Regents v. Roth, supra, the Court

determined that the respondent professor had no claim

of entitlement to re-employment because he had only

previously managed to secure employment agreements

with the Wisconsin State University—Oshkosh—for one-

year terms. The facts there supported “. . . no possible

claim of entitlement to re-employment.” 408 U.S. at p.

578.

In Perry v. Sindermann, supra, however, the Court af-

firmed the Fifth Circuit Court of Appeals’ determination

with respect to the respondent’s procedural due process

claim that the college in question, Odessa Junior College,

may have had a de facto, informal tenure policy arising

from both rules and more amorphous understandings. In

concluding that this de facto policy could give rise to

§ 1983 procedural due process protections, the Court

stated:

We have made clear in Roth, supra, at 571-572, that

“property interests” subject to procedural due pro-

cess protection are not limited by a few rigid, tech-

nical forms. Rather, “property” denotes a broad

range of interests that are secured by “existing rules

or understandings.” /d., at 577.

A person’s interest in a benefit is a “property” inter-

est for due process purposes if there are such rules

or mutually implicit understandings that support

his claim of entitlement to the benefit and that he

may invoke at a hearing.” /d., at p. 601.

Cf. Bishop v. Wood, 426 U.S. 341 (1976) (discharge of

police officer without a hearing did not violate any con-

stitutionally protected procedural due process claim of

the officer because under North Carolina state law, there

was insufficient evidence that the officer was entitled to

any guaranteed form of employment).

From Board of Regents v. Roth, supra, it is clear that

identification of a constitutionally protectable property

interest requires examination of applicable state law for

the source of that right:

To have a property interest in a benefit, a person

clearly must have more than an abstract need or

desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate

claim of entitlement to it. /t ts a purpose of the an-

cient institution of property to protect those claims

upon which people rely in their daily lives, reliance

that must not be arbitrarily undermined. It is a pur-

pose of the constitutional right to a hearing to pro-

vide an opportunity for a person to vindicate those

claims.

Property interests, of course, are not created by the

Constitution. Rather, they are created and their di-

mensions are defined by existing rules or under-

standings that stem from an independent source

such as state law—rules or understandings that

secure certain benefits and that support claims of

entitlement to those benefits.

Id., at p. 577 [emphasis added]. Thus, the question of

whether a party alleging a Civil Rights Act claim has a

constitutionally protected property interest is, therefore,

typically resolved by reference to state law. See for exam-

ple, Mackenzie v. City of Rockledge, 920 F.2d 1554

(11th Cir. 1991) (under Florida law, no property interest

is created in favor of one possessing a building permit).

Under Washington state law, the mere application of a

property owner for a building permit confers vested

rights, assuming the application is consistent with then

applicable zoning interests. R/L Assoc., Inc. v. Seattle,

113 Wn.2d 402 (1989); see also, Eastlake Community

Council v. Roanoke Associates, supra; Hull v. Hunt, 53

Wn.2d 125 (1958); Mercer Enterprises v. Bremerton, 93

Wn.2d 624 (1980).

22 .

The courts of Washington have consistently held that a

land owner obtains a vested right to develop land when

he makes a timely and complete building application.

This rule has also been expressly applied to conditional

use permits. See, Norco Construction v. King County,

97 Wn.2d 680 (1986); Beach v. Board of Adjustment,

73 Wn.2d 343 (1968).

Although the Court in Board of Regents v. Roth,

supra, was considering a procedural rather than a sub-

stantive due process claim, the steps for identifying a

property interest sufficient to invoke substantive due

process claims are identical. See, Brady v. Town of Col-

chester, 863 F.2d 205 (2d Cir. 1988). There, the Second

Circuit Court of Appeals reversed a District Court’s sum-

mary judgment of dismissal of the plaintiff’s substantive

due process claims because of a question of material fact

as to how the property in question was used at the time

plaintiff’s building permit was applied for. In so holding,

the Court cited Yale Auto Parts, Inc. v. Johnson, 758

F.2d 54 (2d Cir. 1985), for the proposition that in deter-

mining whether an applicant has a legitimate claim of

entitlement to the issuance of a license or certificate for

Fourteenth Amendment purposes depends upon whether

the applicant would have very likely been entitled to

issuance of the license or permit in question but for the

alleged improper conduct of the defendant or defendants.

In the case presently before the Court, Respondent,

Lutheran Day Care, clearly has a protectable property

interest in issuance of the conditional use permit in ques-

tion under Washington state law (see, R/L Assoc., Inc.

v. Seattle, supra). From the record, moreover, Respon-

dent’s right to issuance of the subject conditional use per-

mit was clearly acknowledged at the trial court level by

virtue of a clear order by the Court to the Petitioner

directing Petitioner to issue the conditional use permit

to Respondent. Petitioner never appealed from this final

order.

The Snohomish County Superior Court has twice held

that Respondent is entitled as a matter of law to issuance

of the conditional use permit. Division One of the Court

of Appeals in Washington has agreed (see, Lutheran-Day-

Care v. Snohomish Co., 50 Wn.App. 1058 (1988)) as has

the Supreme Court of Washington. Thus, at least four dif-

ferent Washington state judges or panels of judges have

unanimously and properly concluded that Respondent

has at all relevant times had within the meaning of Board

of Regents v. Roth, supra, a legitimate claim of entitle-

ment to issuance of the conditional use permit that has

been the subject matter of this litigation.

CONCLUSION

Having been found concurrently liable to Respondent

in damages for its wilful, arbitrary and capricious conduct

under RCW 64.40, et seg., Petitioner cannot establish

that it has suffered a redressable injury which is a neces-

sary component of standing to litigate its constitutional

claims before this Co»:+. Even if the Court grants the

relief requested by Petitioner, Petitioner’s liability to

Respondent will remain unchanged.

In addition, in Lutheran Day Care v. Snohomish

County, 119 Wn.2d 91 (1992), the Supreme Court of

Washington expressly found that Respondent, Lutheran

Day Care, had a sufficiently protectable property interest

in its right to a conditional use permit sufficient to

ground its substantive due process claims under 42 U.S.C.

§ 1983. That Court also properly determined as a matter

of fact and law that Petitioner’s deliberate, wilful, arbi-

trary and capricious conduct in its denial of Respondent’s

conditional use permit application constituted impermis-

sible state action in clear violation of constitutionally

mandated substantive due process requirements.

For the above reasons, Respondent respectfully re-

quests that the Court deny Petitioner’s Petition for Writ

of Certiorari.

Respectfully submitted,