Opposition Brief — Allen v. City of Duarte

Ruweve Court, BE

RLu SD

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HOY 14 Bie

| onus O w ARG

No. 94-674 | Oras Os ee I

In The

Supreme Court of the United States

October Term, 1994

¢

ALICE ALLEN and LAURA FEINNER,

Plaintiffs and Petitioners,

VS.

CITY OF DUARTE and DUARTE

REDEVELOPMENT AGENCY,

Defendants and Respondents.

~@

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District, Division Four

— +

RESPONDENTS’ BRIEF IN OPPOSITION

JerFREY M. OpERMAN

RuTAN & TUCKER

611 Anton Blvd., Suite 1400

Costa Mesa, CA 92626

(714) 641-5100

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does this Court have jurisdiction under 28 U.S.C.

§ 1257 to grant certiorari to consider Petitioners’ due

process claim notwithstanding that claim was not pre-

sented to nor passed upon by the state courts below?

2. Does this Court have jurisdiction under the case

or controversy requirement in Article III of the United

States Constitution and the Court’s prudential standing

doctrine to entertain Petitioners’ due process and equal

protection claims in light of Petitioners’ failure to allege

or prove that they have any personal stake in the out-

come of the case?

3. Do the due process and equal protection clauses

of the Fourteenth Amendment require the California

courts to grant standing allowing Petitioners to challenge

an action of a municipality in which action the Petitioners

have no personal stake or interest?

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

DUNE kbs Ses ac bas danke cake bande seakeeuenes be 3

STATEMEENT OF THE CAGE. occ ccccscvescesvascens 4

A. The Redevelopment Plan Amendment ....... 4

B. The Three Lawsuits Challenging The

Redevelopment Plan Amendment............ 5

C. Settlement of the Other Two Lawsuits....... 5

D. Petitioners’ Lack of Standing and the Court of

App QBNIOR 66 ioiicsecc censncstaisccsgiuss 7

REASONS FOR DENYING THE WRIT............. 11

A. This Court Lacks Jurisdiction Under 28 U.S.C.

§ 1257 to Consider Petitioners’ Due Process

Claim Since That Claim was not Presented to

Nor Passed Upon by the State Courts Below 11

B. Petitioners Lack Standing to Raise Their Due

Process and Equal Protection Claims in This

COU aie 0k 65 ice cicedes dea Re teiienceeeneses 12

C. By Petitioners’ Own Admission, The Court of

Appeal Decision is an Isolated Case of No

Precedential Effect. No Significant Public Pur-

pose Would be Achieved by Devoting This

Court’s Precious Resources To a Reconsidera-

tion Of The Standing Issue................-. 14

iii

TABLE OF CONTENTS - Continued

Page

D. On the Merits, Petitioners Have Failed to Raise

a Substantial Federal Question............... 14

SI Be A Pada ewidovdbedéecoddodécdion 19

APPENDIX A: Order of the Court of hi oe of the

State of California, Second Appellate

District, Division Four re Partial Dis-

missal of Appeal and Directing

Superior Court to Enter New Judg-

ment in Favor of City of Duarte and

Redevelopment Agency of the City

of Duarte, dated April 14, 1994.... A-1

APPENDIX B: Relevant Statutory Provisions ...... A-8

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Associated Enterprises, Inc. v. Toltec Watershed

Improvement District, 410 U.S. 743 (1973) .......... 18

Bal GH fameee, BOL UD. BOS CIPS i os ca ccc vccccciices 17

Boddie v. Connecticut, 401 U.S. 371 (1971)......... 15, 16

Cipriano v. City of Houma, 395 U.S. 701 (1969)....... 17

City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) .... 17

Doremus v. Board of Education, 342 U.S. 429 (1952)...13, 18

Pinel @ Comem, Sia US. GD CROGB). osc cescccccnceatas 18

Illinois v. Gates, 462 U.S. 213 (1983) .................. 1

Kramer v. Union Free School District No. 15, 395 U.S.

ee CR 654 arb exh ended spe essdelcianaseca eared 17

Phillips Petroleum Company v. Shutts, 472 U.S. 797

to MPP orrrrr tree rere Terry Tier rr err rrr 12

Salyer Land Company v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973) ............... 18

United States v. Kras, 409 U.S. 434 (1973)............ 16

Village of Arlington Heights v. Metropolitan Housing

Development Corporation, 429 U.S. 252 (1977)....... 13

Warth v. Seldin, 422 U.S. 490 (1975) .............. 12, 13

Wedd vo. Webb, 451 US. S55 (1982)... 65.6. vec cccweess 1

TABLE OF AUTHORITIES - Continued

Page

STATE CASES

Redevelopment Agency v. County of San Bernardino

poo Pew Rh eee e er eer tre cr or rer Perey 4

Torres v. City of Yorba Linda (1993) 13 Cal.App.4th

Peer Pree vere rer err wy Perr rere 6, 10, 16

CONSTITUTIONAL PROVISIONS

U.S. Constitution

Pe ee ee re err errr 3

Fourteenth Amendment............ sects eteresee 3, 14

STATUTES

ye eM POPPE ST EEC ET ToT CC CEE ECT TEre 1, 3, 11

California Code of Civil Procedure § 526a...... 3, 9, 17

California Government Code § 65589.3............. 3, 8

California Health and Safety Code

bf BOOP eo ree Tee REET ECT T CTE e 4

Sc heaeu aes ce Sy ders eed cee athe dundeweiaes a

i EN ails s peeve edie cncererecstestueriluibeute 3, 8

isk aan a own 1a ca a0 ee ck ond waeetrs a, 3

LSI kia ad puuseeebenecccersaerccat eae eanenr 3

I del ie eee 3, 6

Respondents City of Duarte and Redevelopment

Agency of the City of Duarte (collectively, “Duarte”)

respectfully request that this Court deny Petitioners’ Peti-

tion for a Writ of Certiorari (the “Petition”) to review the

judgment of the California Court of Appeal, Second

Appellate District, Division Four, filed April 14, 1994.

+

OPINIONS BELOW

In addition to the lower court opinions set forth as

Appendices A-E to the Petition, Duarte is providing to

this Court as Appendix A to this Respondents’ Brief the

Court of Appeal’s April 14, 1994, Order Re Pariial Dis-

missal of Appeal and Directing Superior Court to Enter

New Judgment in Favor of City of Duarte and Redevelop-

ment Agency of the City of Duarte.

+

JURISDICTION

Petitioners have invoked the jurisdiction of this

Court pursuant to 28 U.S.C. § 1257.

Duarte respectfully submits that this Court does not

have jurisdiction under 28 U.S.C. § 1257 to consider Peti-

tioners’ due process claim. That statute requires that in

the state courts Petitioners have “specially set up or

claimed under the Constitution . . . of . . . the United

States” the right which they now seek to have this Court

enforce. Webb v. Webb, 451 U.S. 493, 495; see also, Illinois v.

Gates, 462 U.S. 213, 221-223 (1983).

The Petition correctly notes, in compliance with this

Court’s Rule 14.1(h), that Petitioners raised their equal

protection argument before both the California Court of

Appeal (in a Petition for Rehearing) and the California

Supreme Court (in a Petition for Review). Petitioners do

not contend, however, that they have previously raised

their due process claim. They did not. The claim is being

asserted for the first time in the Petition filed with this

Court.!

Neither the California Court of Appeal nor the Cali-

fornia Supreme Court passed upon Petitioners’ equal pro-

tection or due process claims.

Duarte also respectfully submits that Petitioners lack

standing to sue (as the Court of Appeal below correctly

found) and therefore that this Court lacks jurisdiction

under Article III of the United States Constitution and the

Court’s well-articulated standing doctrine.

¢

1 The due process claim that Petitioners now assert is that

the Court of Appeal’s rejection of Petitioners’ standing to sue

denied them their constitutional right of access to the courts. In

their Petition for Review to the California Supreme Court (at pp.

21-23), Petitioners did raise a different due process claim — that

they were denied a meaningful opportunity to brief and argue

the standing issue upon which the Court of Appeal decision was

based. Petitioners did not raise that other due process claim in

their Petition before this Court; accordingly, that issue has been

abandoned.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article III, Section 2 of the United States Constitution

provides in part:

The judicial Power shall extend to all Cases

. arising under this Constitution . . . ; — to

Controversies. ... ”

The Fourteenth Amendment to the United States

Constitution provides in part:

. .. [N]or shall any State deprive any per-

son of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

28 U.S.C. § 1257(a) provides in part:

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari . . . where any title,

right, privilege, or immunity is specifically set

up or claimed under the Constitu-

tion... of... the United States.

Duarte also refers in this Respondents’ Brief to sev-

eral California statutory provisions: California Code of

Civil Procedure § 526a; California Government Code

§ 65589.3; former California Health and Safety Code

§§ 33012 and 33367(d)(12), which were repealed by Stats.

1993, c. 942; and California Health and Safety Code

§§ 33334.2 and 33670. The pertinent text of these statutory

provisions is set forth in Appendix B hereto.

¢

STATEMENT OF THE CASE

A. The Redevelopment Plan Amendment.

This case involves Petitioners’ challenge to the val-

idity of a minor amendment to a redevelopment plan that

was adopted and approved by Duarte in June of 1990.

The only substantive change that Duarte made to the

original redevelopment plan at that time was the addition

of the optional provisions in the California Community

Redevelopment Law (California Health and Safety Code

§ 33000 et seq.) authorizing Duarte to implement the plan

with the help of property tax increment financing.? Based

on its experience in attempting to implement its original

redevelopment plan without tax increment financing,

Duarte determined that the collection of tax increment

revenues was needed “to fully implement the provisions

of the Redevelopment Plan” since the “costs of property

2 As stated by the California Supreme Court, property tax

increment financing works as follows (when utilized):

In essence [California Health and Safety Code Section

33670] provides that if, after a redevelopment project

has been approved, the assessed valuation of taxable

property in the project increases, the taxes levied on

such property in the project area are divided between

the taxing agency and the redevelopment agency. The

taxing agency receives the same amount of money it

would have realized under the assessed valuation

existing at the time the project was approved, while

the additional money resulting from the rise in

assessed valuation is placed in a special fund for

repayment of indebtedness incurred in financing the

project.

Redevelopment Agency v. County of San Bernardino (1978) 21

Cal.3d 255, 259; emphasis in original.

acquisition in the . . . Project Area have exceeded [earlier]

cost estimates.” (See, generally, Court of Appeal opinion,

Appendix A to Petition, pp. 3-A to 4-A.)

B. The Three Lawsuits Challenging The

Redevelopment Plan Amendment.

In July and August of 1990, three separate lawsuits

challenging the validity of Duarte’s 1990 redevelopment

plan amendment were filed in Los Angeles County Supe-

rior Court: one suit was filed by the County of Los

Angeles (the “County”) and its affiliated taxing entities

(the Los Angeles County Flood Control District, the Los

Angeles County Public Library, and the Consolidated Fire

Protection District of Los Angeles County); the second

lawsuit was filed by the Citrus Community College Dis-

trict (“Citrus”); and, finally, a third action was filed by

the two individual Petitioners still before this Court.

C. Settlement of the Other Two Lawsuits.

Duarte ultimately settled the lawsuits filed by the

County and Citrus. The primary thrust of those lawsuits

was to challenge Duarte’s finding at the time the

redevelopment plan amendment was adopted that the tax

increment financing provisions being added to the

redevelopment plan would not cause a “significant finan-

cial burden or detriment” on the affected taxing entities.3

3 See (former) California Health and Safety Code Sections

33012 and 33367(d)(12). It is noteworthy that the entire concept

of a redevelopment project’s imposition of “financial burden or

While not acknowledging that any financial “mitigation”

was legally required, shortly prior to the oral argument

at the Court of Appeal level Duarte agreed to pay to the

County and its affiliated taxing entities eighty percent

detriment” on taxing agencies was recently repealed by the

California Legislature and no lon,er exists effective January 1,

1994. (See Stats. 1993, c. 942, §§ 2, 15-20, and 22.)

4 As noted in Torres v. City of Yorba Linda (1993) 13

Cal.App.4th 1035, 1044, tax increment financing is essentially

self-supporting and does not result in a “loss” of funds to other

taxing entities:

The assertion that [a] redevelopment project will

‘divert’ revenue from local taxing entities is question-

able. ... [T]he redevelopment project pays for itself by

taking advantage of increased property tax revenues

generated by the project area’s renovation. (Bell Com-

munity Redevelopment Agency v. Woosley (1985) 169

Cal.App.3d, 24, 27; [other citations omitted].) Conse-

quently, absent a redevelopment project, it is doubtful local

taxing agencies would receive increased revenues from

property within the project area. (Emphasis added.)

Furthermore, even assuming that Duarte’s collection of tax

increment revenues resulted in a dollar-for-dollar “diversion”

of property tax revenues from the County, the undisputed evi-

dence in the administrative record was that the County’s

“share” of tax increment revenues from the area in question

amounted to only about .001% of the County’s annual budget.

Thus, the “loss” of these funds to Duarte could hardly be seen as

causing a “significant financial burden or detriment” under the

prior law. With regard to Citrus, the “impact” was even more

remote. (See Administrative Record, hereinafter “A.R.,” filed

with Court of Appeal, at pp. 432, 565-566, and 819-820.) Finally,

since the State of California was legally obligated to reimburse

Citrus dollar-for-dollar for any local property tax revenue “lost”

to redevelopment, Citrus was totally unaffected by the addition

of tax increment financing provisions to Duarte’s redevelop-

ment plan.

(80%) of their “share” of the tax increment revenues. Duarte

further agreed to “pass through” to Citrus forty-eight per-

cent (48%) of its “share” of the tax increment revenues from

the project. (See Court of Appeal opinion, Appendix A to

Petition, at 5-A n. 2 and 22-A.) Based upon the resolution of

their financial differences, Duarte, the County, and Citrus

then jointly filed with the Court of Appeal a stipulation

requesting that the County’s and Citrus’s appeals be dis-

missed with prejudice, the judgment entered at the trial court

level against Duarte be reversed, and the matter be

remanded to the Superior Court for entry of a new judgment

in favor of Duarte. The Court of Appeal signed its order

implementing this settlement and stipulation on April 14,

1994. (Appendix A hereto.)

D. Petitioners’ Lack of Standing and the Court of

Appeal Opinion.

Duarte was unable to settle the lawsuit filed by Peti-

tioners. While significant portions of Petitioners’ lawsuit

were mooted prior to hearing and determination by the

Court of Appeal,5 Petitioners persisted in their legal chal-

lenge and the Court of Appeal eventually disposed of

° Duarte’s financial settlement with the County and Citrus

also resolved Petitioners’ Fifth Cause of Action which echoed

the County’s and Citrus’s claims that Duarte’s redevelopment

plan amendment imposed a “significant financial burden or

detriment” on the County and Citrus under (former) California

law. (See n. 3 ante.) In addition, in March of 1993, Duarte

updated the Housing Element of its General Plan that was

attacked by Petitioners in their Seventh Cause of Action. On

June 22, 1993, the new Housing Element was certified by the

California Department of Housing and Community Develop-

ment (“HCD”) as being in full compliance with all requirements

their action by finding that Petitioners lacked the requi-

site personal stake in what was left of the case to give

them standing to sue.

Petitioners have mischaracterized both the facts in

the record regarding their lack of standing and the Court

of Appeal’s analysis and holding on this issue.

Contrary to Petitioners’ assertion (Petition, p. 18), the

Court of Appeal did not rule that Petitioners lacked

standing simply because they “did not pay a tax on real

property located in Duarte.” Petitioners seek to character-

ize the Court of Appeal decision as one holding that only

property owners and property taxpayers have standing to

challenge certain governmental decisions in California.

Nothing could be further from the truth.

The simple truth is that Petitioners had no personal

stake in the outcome of the action. Petitioners did not

allege that they were residents or taxpayers within the

redevelopment project area in question. Nor did they

allege or prove that the challenged redevelopment plan

amendment would cause them any personal harm.® As

of law. Under California Government Code § 65589.3, HCD

certification established a rebuttable presumption of the val-

idity of the Housing Element. In the 20 months that have passed

since Duarte’s new Housing Element was adopted, no one

(including Petitioners) has challenged its validity.

6 Petitioners did allege that they were lower income per-

sons living in rental housing who were interested in general in

the provision of affordable housing in the community. They

completely failed to connect these stated concerns, however, to

any adverse impact resulting from Duarte’s approval of the

challenged redevelopment plan amendment. Indeed, Duarte

the Court of Appeal noted, Petitioners’ standing allega-

tions to challenge Duarte’s redevelopment plan amend-

ment were based upon nothing more than “mere

residency [in another area of the city] and the payment of

an unspecified tax within the defendant city.” (Appendix

A to the Petition at 19-A.) The Court of Appeal carefully

analyzed analogous California case law and came to the

rather unremarkable conclusion that these allegations,

without more, were insufficient to confer standing. (Id.)

The discussion in the Court of Appeal opinion about

Petitioners not being property owners or property tax-

payers was in response to Petitioners’ own attempt to

base their standing upon California Code of Civil Pro-

cedure § 526a, a taxpayer standing statute. As Petitioners

correctly note (Petition at 21), this statute has been liber-

ally interpreted by the California courts over the years to

grant broad standing to municipal taxpayers to challenge

illegal or wasteful expenditures of public funds in cir-

cumstances where traditional standing requirements

might otherwise bar suit. At a minimum, however, in

repeatedly pointed out to the California courts that addition of

tax increment financing provisions to Duarte’s previously

adopted redevelopment plan could only advance Petitioners’

professed goal of promoting more affordable housing. Pursuant

to California Health and Safety Code § 33334.2(a), Duarte is

obligated to expend fully twenty percent (20%) of any tax incre-

ment revenue received for the purpose of “increasing, improv-

ing, and preserving the community’s supply of low- and

moderate-income housing available at affordable housing cost.”

If Petitioners were truly concerned about strengthening

Duarte’s affordable housing policies and programs, as they

have claimed to be, they should be applauding Duarte’s efforts,

not opposing them!

10

order for one to take advantage of the broad taxpayer

standing statute, one must be a taxpayer. Petitioners are

not. Petitioners acknowledged that they were not prop-

erty owners or taxpayers either within the redevelopment

project area or anywhere within the City of Duarte, nor

did they allege or prove what other kind of tax they

might have paid to Duarte that would authorize a suit to

be maintained based on California’s liberal taxpayer

standing statute.”

The Court of Appeal did not rule that similarly situ-

ated property owners and taxpayers necessarily have

standing to sue in the circumstances in which Petitioners

were denied standing. For example, in Torres v. City of

Yorba Linda, 13 Cal.App.4th 1035 (1993), a recent case

relied upon heavily by the Court of Appeal, it was held

that a plaintiff’s allegations of payment of taxes on real

property located outside the city in question were insuffi-

cient tc confer standing to challenge a redevelopment

plan. Conversely, the Court of Appeal did not hold that

persons residing within a city cannot establish the requi-

site standing to sue unless they own property. If Peti-

tioners had been able to demonstrate some personal stake

7 Even if the Court of Appeal had limited standing to sue to

property taxpayers, which it did not, there would have been a

rational basis for such a ruling. As stated above, the only change

effected by the challenged redevelopment plan amendment was

the reallocation of property tax revenues from the various

taxing entities whose jurisdiction encompasses the redevelop-

ment project area to the Duarte Redevelopment Agency. It

seems reasonable that the property taxpayers paying these taxes

would have a more significant interest in their expenditure than

would persons who pay no taxes at all.

11

in the outcome of this action, such as any credible evi-

dence that Duarte’s adoption of the redevelopment plan

amendment would deprive Petitioners of affordable

housing opportunities, there is no question that the Court

of Appeal would have upheld their standing to sue. Peti-

tioners simply failed to carry this very minimal burden.

¢

REASONS FOR DENYING THE WRIT

A. This Court Lacks Jurisdiction Under 28 U.S.C.

§ 1257 to Consider Petitioners’ Due Process

Claim Since That Claim was not Presented to

Nor Passed Upon by the State Courts Below.

As stated above in the “Jurisdiction” section of this

Brief, Petitioners never argued to the State courts that

denying them standing constituted a denial of their Four-

teenth Amendment due process right to access to the

courts.

In their Petition (at p. 20), Petitioners also make a

passing reference to their First Amendment right to peti-

tion the Government for a redress of grievances. This is

not one of the questions formally presented in support of

the Petition. In any event, Petitioners did not raise any

First Amendment claims at the State court level either.

Duarte acknowledges that Petitioners might have a

legitimate excuse for not raising the federal constitutional

issues prior to the Court of Appeal’s initial decision, since

prior to that time Duarte’s standing arguments were

more narrowly framed. (See Court of Appeal opinion,

Appendix A to Petition, at 10-A to 12-A.) Even being

12

most charitable to Petitioners, however, Petitioners did

have an opportunity —- which they failed to exercise - to

raise their due process (and First Amendment) arguments

in their Petition for Rehearing at the Court of Appeal

level and in their Petition for Review with the California

Supreme Court. They did not.

B. Petitioners Lack Standing to Raise Their Due

Process and Equal Protection Claims in This

Court.

Petitioners lack the requisite standing to raise their

due process and equal protection claims in this Court.

Generally stated, federal standing requires

an allegation of a present or immediate injury in

fact, where the party requesting standing has

“alleged such a personal stake in the outcome of

the controversy as to assure that concrete adver-

seness which sharpens the presentation of

issues.” [Citation omitted.] There must be some

causal connection between the asserted injury

and the challenged action, and the injury must

be of the type “likely to be redressed by a favor-

able decision.” [Citations omitted.]

Phillips Petroleum Company v. Shutts, 472 U.S. 797, 804

(1985). This Court has relied upon these well-settled rules

to deny standing to a plaintiff who, like the Petitioners

here, asserted a generalized interest in the provision of

affordable housing without putting forth “specific, con-

crete facts demonstrating that the challenged [exclusion-

ary zoning] practices harm him, and that he personally

would benefit in a tangible way from the court’s interven-

tion.” Warth v. Seldin, 422 U.S. 490, 508 (1975); compare

13

Village of Arlington Heights v. Metropolitan Housing Devel-

opment Corporation, 429 U.S. 252 (1977).

To the extent Petitioners’ standing claim is based

upon their vague allegation that they paid some

unspecified tax to Duarte, the claim is similarly insuffi-

cient to support federal court standing. See, e.g., Warth v.

Seldin, supra, 422 U.S. at 509 (taxpayer challenging alleged

exclusionary zoning practices of defendant municipality

must demonstrate causal nexus between defendant’s

action and increase in plaintiff’s taxes) and Doremus v.

Board of Education, 342 U.S. 429, 433-434 (1952) (held:

municipal taxpayer qua taxpayer had no standing to

attack, on appeal from the state courts to the United

States Supreme Court, the constitutionality of a state

statute providing for the reading of Bible verses at the

opening of each public school day, in the absence of proof

of “a direct dollars-and-cents injury.”). This is not “a

good-faith pocketbook action.” (Id.) Petitioners do not

even attempt to demonstrate how any of their tax dollars

would be illegally or wrongfully spent by Duarte or how

their tax burden would be increased if the challenged

redevelopment plan amendment is allowed to stand.

In summary, the Article III “case or controversy”

requirement and the prudential standing principles enun-

ciated by this Court in previous decisions bar Petitioners’

attempt to invoke the Court’s jurisdiction.

14

C. By Petitioners’ Own Admission, The Court of

Appeal Decision is an Isolated Case of No Pre-

cedential Effect. No Significant Public Purpose

Would be Achieved by Devoting This Court’s

Precious Resources To a Reconsideration Of

The Standing Issue.

Petitioners correctly note that the Court of Appeal

decision was unpublished and therefore cannot be cited

as precedent in any future case in California. (Petition, p.

22 n. 8.) Petitioners do not find fault with published

California standing law that does have precedential

value. (Id.) Thus, at most, Petitioners are asking this

Court to devote its scant resources to righting an isolated

wrong that will not recur. This hardly seems a compelling

case for exercise of this Court’s discretionary jurisdiction,

particularly in a case in which Petitioners have no per-

sonal stake in the outcome anyway.

Petitioners do not contend that this Court’s standing

rules need any reconsideration or polishing. At most, this

case would require the Court to apply settled law to a

peculiar factual situation. Duarte respectfully submits

that no valid public purpose is served by ordering the

California courts to entertain litigation filed by individ-

uals who lack standing under traditional standing rules.

D. On the Merits, Petitioners Have Failed to Raise

a Substantial Federal Question.

In order for Petitioners to make out a cognizable

constitutional claim for deprivation of their property

rights under the Fourteenth Amendment, they must nec-

essarily identify what property interest is involved. Here,

15

it appears that the only “property” right Petitioners

assert is the right to file a lawsuit challenging a govern-

mental action in which Petitioners have no personal inter-

est. Not surprisingly, Petitioners fail to specify the source

of this non-existent property interest.

If litigants had federally guaranteed constitutional

rights to file lawsuits notwithstanding their lack of any

personal stake in the outcome of those iawsuits, both the

constitutional and prudential standing limitations

applied by this Court and other federal and state courts

would all be blown away. The courts in these circum-

stances would be opened wide to all manner of lawsuits

based upon academic and hypothetical disputes.

Boddie v. Connecticut (1971) 401 U.S. 371, the lead case

cited by Petitioners in support of their argument regard-

ing a right to access to the courts, is easily distinguish-

able. In that case, the plaintiffs were indigent women

desiring to obtain divorces but barred from doing so

because of their inability to pay required court filing fees

and costs. They indisputably had standing but were effec-

tively denied access to the courts. This Court ruled that

“given the basic position of the marriage relationship in

this society’s hierarchy of values and the concomitant

state monopolization of the means for legally dissolving

this relationship, due process does prohibit a State from

denying, solely because of inability to pay, access to its

courts to individuals who seek judicial dissolution of

their marriages.” (Id. at 374.) Here, by contrast, the whole

point of the Court of Appeal decision is that Petitioners

have no business seeking an adjudication of a dispute in

which they have no interest. Boddie certainly does not

support abrogating the standing doctrine and opening

he

&

16

the federal and state courts to a flood of lawsuits by

disinterested litigants.

It is noteworthy that Petitioners also cite United States

v. Kras, 409 U.S. 434 (1973), in support of their position.

That case involved a challenge to a statutory requirement

for the payment of filing fees as a condition precedent to

obtaining a discharge in bankruptcy. The petitioner in

that case alleged that he was unable to pay the filing fee

and, relying upon Boddie, argued that the bankruptcy

court’s refusal to accept his petition denied his constitu-

tional right of access to the courts. This Court rejected the

claim. Notwithstanding the strong personal stake that the

petitioner had in the case, this Court nevertheless distin-

guished Boddie, determined that there was no fundamen-

tal interest gained or lost depending on the availability of

a discharge in bankruptcy, and upheld the filing fee

requirement. If an indigent effectively can be denied

access to the courts to file a bankruptcy petition without

violating his constitutional rights, ipso facto an individual

can be denied access to pursue a claim in which he or she

has no personal interest. The right of access to the courts

does not supersede the standing doctrine.

Petitioners’ equal protection claim is just as far-

fetched. For starters, Petitioners fail to clearly identify the

class of persons allegedly being discriminated against

here. They imply that the discriminated class is composed

of persons who do not own property. If this is their point,

they again overlook the fact that the Court of Appeal,

relying upon Torres, denied standing to a property owner

to challenge the very type of governmental decision chal-

lenged here. Some property owners have standing and

some do not and some renters have standing and some

17

do not. The ultimate question for purposes of the stand-

ing doctrine, as the Court of Appeal correctly noted, is

whether the plaintiff shows that “he or she or those he or

she properly represents have either suffered or are threat-

ened with an injury of sufficient magnitude that it is

reasonably assured the lawsuit will provide an adequate

presentation of all relevant facts and issues.” (See Peti-

tion, Appendix 12-A, quoting from Torres.) Petitioners’

problem is that they could not satisfy this standard.

Petitioners’ reliance upon voting rights cases in sup-

port of their equal protection claim is totally misplaced.

(See Petition at 24-27, citing City of Phoenix v. Kolodziejski,

399 U.S. 204 (1970), Cipriano v. City of Houma, 395 U.S. 701

(1969), and Kramer v. Union Free School District No. 15, 395

U.S. 621 (1969).

First of all, and to repeat a point made above, the

Court of Appeal in this case did not hold that property

owners have standing to sue and non-property owners do

not. Thus, the legislative (or judicial) classification that

Petitioners seek to set up as the premise for their equal

protection discrimination argument simply does not exist.

Moreover, one must again focus upon the nature of the

right that is being asserted. No more fundamental right

can be imagined in a free and democratic society than the

right to vote in governmental elections involving agen-

cies which have significant effects on all citizens.® By

® Even in the voting rights field, it is noteworthy that this

Court has rejected equal protection challenges to landowner -

only voting schemes involving limited purpose governmental

agencies of primary interest to landowners. See, e.g., Ball v.

James, 451 U.S. 355 (1981) (agricultural improvement and power

18

contrast, there are no fundamental rights implicated,

indeed no rights at all, when persons without a personal

stake in the outcome of a lawsuit, whether property

owners or tenants, are denied standing to sue.

Petitioners acknowledge that the “rational relation-

ship” test applies in considering their equal protection

challenge. (Petitioner at 24-25.) To the extent that Califor-

nia Code of Civil Procedure § 526a limits taxpayer stand-

ing to taxpayers, there is certainly a rational basis for the

legislative classification. Presumably, taxpayers can be

expected to have a greater concern with the illegal or

improvident expenditure of public funds. Persons such as

Petitioners who have failed to prove that they paid any

particular tax (whether a property tax or otherwise) lack

the same interest. Doremus, supra; see also, Flast v. Cohen,

392 U.S. 83, 102-103 (1968). No better example can be

provided than the redevelopment plan amendment chal-

lenged in this case. The only substantive change effectu-

ated by the plan amendment was to transfer from other

taxing entities to the Duarte Redevelopment Agency the

authority to receive property tax increment revenues

from within the redevelopment project area boundaries.

It would be reasonable and rational for the California

Legislature to conclude in these circumstances that tradi-

tional standing rules should be relaxed and property

taxpayers be given the right to sue. Having opened the

courtroom door a bit wider than may have been required

district); Associated Enterprises, Inc. v. Toltec Watershed Improve-

ment District, 410 U.S. 743 (1973) (watershed improvement dis-

trict); and Salyer Land Company v. Tulare Lake Basin Water Storage

District, 410 U.S. 719 (1973) (water storage district).

19

to allow taxpayers to sue, however, does not require the

Legislature to eliminate all standing barriers and to per-

mit other persons with absolutely no interest in the

redevelopment plan amendment to sue as well. Stated

another way, Petitioners are not similarly situated to tax-

payers whose tax funds are affected.

¢

CONCLUSION

For the foregoing reasons, Respondents City of

Duarte and Redevelopment Agency of the City of Duarte

respectfully submit that the Petition for a Writ of Cer-

tiorari in this case should be denied.

Respectfully submitted,

JEFFREY M. OpDERMAN

RuTAN & TUCKER

A-1

APPENDIX A

2nd Civil No. 067380

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CITRUS COMMUNITY COLLEGE

DISTRICT,

Plaintiff / Respondent,

v.

ALL PERSONS INTERESTED IN

THE VALIDITY OF AMENDMENT

NO. 1 TO THE REDEVELOPMENT

PLAN FOR THE RANCHO

DUARTE PHASE III

REDEVELOPMENT PROJECT IN

THE CITY OF DUARTE,

etc., et al.,

Defendants/ Appellants.

AND RELATED CONSOLIDATED

CASES.

lt i

Appeal from the Superior Court of the

Los Angeles County

Honorable Richard C. Hubbell, Judge

Los Angeles Superior Court Case No. BC007801

Consolidated With Nos. BC008824 and BC009159

A-2

ORDER RE PARTIAL DISMISSAL OF APPEAL

AND DIRECTING SUPERIOR COURT

TO ENTER NEW JUDGMENT IN FAVOR OF CITY

OF DUARTE AND REDEVELOPMENT

AGENCY OF THE CITY OF DUARTE

(Filed Apr. 14, 1994)

The parties hereto, having filed a “Joint Application

and Stipulation for Partial Dismissal of Appeal With Prej-

udice, Reversal of Judgment, and Remand to the Superior

Court for the County of Los Angeles for Vacation of

Judgment and Entry of a New and Different Judgment in

Favor of Appellants,” and Memorandum of Points and

Authorities in Support Thereof;

IT IS ORDERED that:

1. The Judgment entered by the trial court in Los

Angeles County Superior Court in Case Nos. BC008824

and BC007801 is h-reby reversed and remanded to the

trial court with directions to vacate and set aside the

Judgment with respect to said cases and to enter the

judgment set forth in Exhibit No. 1 hereto. The reversal is

pursuant to settlement and does not constitute either

approval or rejection of the trial court’s prior judgment.

2. The remittitur shall issue forthwith.

3. Each party shall bear its own costs on appeal and

attorney’s fees.

This Order is entered pursuant to applicable law.

(Neary v. Regents of University of California (1992) 3 Cal.4th

273; Lara v. Cadag (1993) 13 Cal.App.4t1 1061.)

A-3

This Order does not affect or otherwise prejudice the

rights of any party in any related appeal.

SO ORDERED.

Dated: APR 14, 1994.

/s/ Hastings /s/ Woods /s/ Klein

Justice Justice Justice

A-4

RUTAN & TUCKER

JEFFREY M. ODERMAN

DAN SLATER

611 Anton Boulevard, Suite 1400

Costa Mesa, California 92626-1998

Telephone: (714) 641-5100

Attorneys for Defendants CITY OF DUARTE and

REDEVELOPMENT AGENCY OF

THE CITY OF DUARTE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CITRUS COMMUNITY COLLEGE ) CASE NO.: BC

DISTRICT, ) 007 801

Plaintiff, ) Consolidated

—_< ) Actions:

) BC 007 801

ALL PERSONS INTERESTED IN _) BC 008 824

THE VALIDITY OF AMENDMENT ) BC 009 159

)

NO. 1 TO THE REDEVELOPMENT } (Trial Court

PLAN FOR THE RANCHO

DUARTE PHASE III

REDEVELOPMENT PROJECT IN

Delay Reduction

Program — Judge

Hubbell - Dept.

THE CITY OF DUARTE, etc., et 21)

al.

JUDGMENT

Defendants. AFTER

COUNTY OF LOS ANGELES: Los ) REMITTITUR

ANGELES COUNTY FLOOD BC 007 801

CONTROL DISTRICT: LOS saat ieee

ANGELES COUNTY PUBLIC

LIBRARY; and CONSOLIDATED

FIRE PROTECTION DISTRICT OF

LOS ANGELES COUNTY,

Plaintiffs,

ee

A-5

VS.

ALL PERSONS INTERESTED IN

THE VALIDITY OF AMENDMENT

NO. 1 TO THE REDEVELOPMENT

PLAN FOR THE RANCHO

DUARTE PHASE III

REDEVELOPMENT PROJECT IN

THE CITY OF DUARTE, etc., et

al.,

Defendants.

ALICE ALLEN and LAURA BC 009 159

FEINNER,

Plaintiffs,

VS.

ALL PERSONS INTERESTED IN

THE VALIDITY OF AMENDMENT

NO. 1 TO THE REDEVELOPMENT

PLAN FOR THE RANCHO

DUARTE PHASE III

REDEVELOPMENT PROJECY IN

THE CITY OF DUARTE, etc., et

al.,

Defendants.

ee eee eee eee ee ee ee ee ee ee ee ee ee ee ee ee ee Se”

The above captioned cases, consolidated under Case

No. BC007801, came on regularly for trial on January 27,

1992, in Department 21 of the Superior Court of the State

of California for the County of Los Angeles, the Honor-

able Richard C. Hubbell, presiding.

John J. Wagner appeared on behalf of Plaintiff Citrus

Community College District (“Citrus”) (Case No.

BC007801).

A-6

De Witt W. Clinton, County Counsel of the County of

Los Angeles, by and through Manuel A. Valenzuela, Dep-

uty County Counsel, appeared on behalf of Plaintiffs

County of Los Angeles, Los Angeles County Flood Con-

trol District, Los Angeles County Public Library, and

Consolidated Fire Protection District of Los Angeles

County (collectively “County Taxing Entities”) (Case No.

BC008824).

Jonathan Lehrer-Graiwer and Jonathan Rittmayer

appeared on behalf of Plaintiffs Alice Allen and Laura

Feinner (“Allen and Feinner”) (Case No. BC009159).

Citrus, County Taxing Entities, and Allen and Fein-

ner, are hereinafter referred to collectively as “Plaintiffs.”

Jeffrey M. Oderman and Dan Slater appeared on

behalf of Defendants City of Duarte and Redevelopment

Agency of the City of Duarte (collectively, “Defendants”).

On April 27, 1992, judgment in the consolidated

actions was entered in favor of Plaintiffs and against

Defendants (the “Original Judgment”).

Defendants appealed the Original Judgment to the

Court of Appeal of the State of California, Second Appel-

late District, Division Four (2nd Civil No. B067380).

Pursuant to a joint stipulation and request of plain-

tiffs Citrus and County Taxing Entities, and Defendants,

the Court of Appeal entered its order reversing the Origi-

nal Judgment in Cases Nos. BC007801 and BC008824,

issued a remittitur, and directed this Court to vacate and

set aside the Original Judgment and enter a new judg-

ment in Cases No.s [sic] BC007801 and BC008824 in favor

of Defendants in the form set forth herein.

A-7

NOW, THEREFORE, IT IS ORDERED, DECLARED,

ADJUDGED, AND DECREED as follows:

1. ‘fhe Judgment entered by this Court on April 27,

1992, in the consolidated cases denominated as Case No.

BC 007801, and consisting of Case Nos. BC007801,

BC008824, and BC009159, is hereby vacated and set aside

with respect to Cases Nos. BC007801 and BC008824.

2. Judgment is hereby granted, with respect to Case

Nos. BC007801 and BC008824, in favor of Defendants

City of Duarte and Redevelopment Agency of the City of

Duarte.

3. Amendment No. 1 to the Redevelopment Plan to

the Rancho Duarte Phase III Redevelopment Project

(“Amendment”), and Ordinance No. 666 approving and

adopting the Amendment, are hereby declared to be

valid, and Defendants City of Duarte and Redevelopment

Agency of the City of Duarte are hereby entitled to imple-

ment said Amendment and obtain all the benefits accru-

ing thereto, including but not limited to receipt of tax

increment revenues pursuant to Health and Safety Code

Section 33670(b).

4. Each party in Cases Nos. BC00780i and BC008824

shall bear its own costs of suit and attorney’s fees.

Date:

Judge

A-8

APPENDIX B

RELEVANT STATUTORY PROVISIONS

California Code of Civil Procedure Section 526a pro-

vides in part:

§ 526a. Action against officer of city or county;

precedence of action to enjoin public improve-

ment project

An action to obtain a judgment, restraining

and preventing any illegal expenditure of, waste

of, or injury to, the estate, funds, or other prop-

erty of a county, town, city or city and county of

the state, may be maintained against any officer

thereof, or any agent, or other person, acting in

its behalf, either by a citizen resident therein, or

by a corporation, who is assessed for and is

liable to pay, or, within one year before the

commencement of the action, has paid, a tax

therein... .

California Government Code Section 65589.3 pro-

vides:

§ 65589.3. Rebuttable presumption of validity

of element or amendment in action to chal-

lenge housing element

In any action filed on or after January 1,

1991, taken to challenge the validity of a hous-

ing element, there shall be a rebuttable pre-

sumption of the validity of the element or

amendment if, pursuant to Section 65585, the

department [of Housing and Community Devel-

opment] has found that the element or amend-

ment substantially complies with the

requirements of this article.

A-9

Until Stats. 1993, c. 942 became effective on January

1, 1994, former California Health and Safety Code Section

33012 provided:

§ 33012. Financial burden or detriment.

(a) “Financial burden or detriment” means

either of the following:

(1) A net increase in the quality or quan-

tity of a service of the affected taxing entity

caused by the redevelopment project.

(2) A loss of property tax revenues by the

affected taxing entity produced by a change of

ownership or new construction which would

have been received, or was reasonably expected

to have been received, by the taxing entity if the

redevelopment project was not established.

(b) The division of taxes pursuant to Sec-

tion 33670, by itself, shall not constitute a finan-

cial burden or detriment... .

Until Stats. 1993, c. 942 became effective on January

1, 1994, former California Health and Safety Code Section

33367(d)(12) provided:

§ 33367. Contents of ordinance adopting plan

The ordinance [adopting a redevelopment

plan] shall contain all of the following:

(d) The findings and determinations of the

legislative body that:

(12) The effect of tax increment financing

will not cause a significant financial burden or

detriment on any taxing agency deriving reve-

nues from a project area. This finding shall only

A-10

be required when the project is financed in part

or in whole from revenues derived from the

allocation of taxes pursuant to Section 33670.

California Health and Safety Code Section 33334.2

provides in part:

§ 33334.2. Housing for persons and families of

low or moderate income; findings

(a) Not less than 20 percent of all taxes

which are allocated to the [redevelopment]

agency pursuant to Section 33670 shall be used

by the agency for the purposes of increasing,

improving, and preserving the community’s

supply of low- and moderate-income housing

available at affordable housing cost, as defined

by Section 50052.5, to persons and families of

low or moderate income, as defined in Section

50093, and very low income households, as

defined in Section 50105. ...

California Health and Safety Code Section 33670 pro-

vides in part:

§ 33670. Division of taxes levied; allocation

Any redevelopment plan may contain a pro-

vision that taxes, if any, levied upon taxable

property in a redevelopment project each year

by or for the benefit of the State of California,

any city, county, city and county, district, or

other public corporation (hereinafter sometimes

called “taxing agencies”) after the effective date

of the ordinance approving the redevelopment

plan, shall be divided as follows:

(a) That portion of the taxes which would

be produced by the rate upon which the tax is

levied each year by or for each of the taxing

A-11

agencies upon the total sum of the assessed

value of the taxable property in the redevelop-

ment project as shown upon the assessment roll

used in connection with the taxation of that

property by the taxing agency, last equalized

prior to the effective date of the ordinance, shall

be allocated to and when collected shall be paid

to the respective taxing agencies as taxes by or

for the taxing agencies on all other property are

paid (for the purposes of allocating taxes levied

by or for any taxing agency or agencies which

did not include the territory in a redevelopment

project on the effective date of the ordinance but

to which that territory has been annexed or

otherwise included after that effective date, the

assessment roll of the county last equalized on

the effective date of the ordinance shall be used

in determining the assessed valuation of the

taxable property in the project on the effective

date); and

(b) Except as provided in subdivision (e)

or in Section 33492.15, that portion of the levied

taxes each year in excess of that amount shall be

allocated to and when collected shall be paid

into a special fund of the redevelopment agency

to pay the principal of and interest on loans,

moneys advanced to, or to finance or refinance,

in whole or in part, the redevelopment project.

Unless and until the total assessed valuation of

the taxable property in a redevelopment project

exceeds the total assessed value of the taxable

property in that project as shown by the last

equalized assessment rol! referred to in subdivi-

sion (a), all of the taxes levied and collected

upon the taxable property in the redevelopment

project shall be paid to the respective taxing

A-12

agencies. When the loans, advances, and indebt-

edness, if any, and interest thereon, have been

paid, all moneys thereafter received from taxes

upon the taxable property in the redevelopment

project shall be paid to the respective taxing

agencies as taxes on all other property are

paid....

. a= 2° As eo