# Opposition Brief — Snohomish County v. Lutheran Day Care

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 1079

## Text

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?

(tt)
Page
TABLE OF CONTENTS
ett yy | Fy: + ee a ee i
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

]

2

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

I,
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:

3

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

4

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-

5

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

6

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.

7

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

8

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

9

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.

10

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

11

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

12

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

13

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

14

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

15

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

16

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-

i.

17

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.

18

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

BS

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19

(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

20

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

21

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

23

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

24

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,

GREGORY L. BERTRAM
GREGORY L. BERTRAM &
ASSOCIATES, P.C.
4343 Two Union Square
601 Union Street
Seattle, Washington 98101
(206) 292-1985

Counsel for Respondent.

December 22, 1992

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1558%3A3. Public record. Not legal advice.