Reply Brief — Clark v. City of Hermosa Beach

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Supreme Court, U. S.

rth & O

6 MAR 27 1997

Uy,

CLERK

No. 96-1278

In the

Supreme Court of the United States

October Term, 1996

DOUGLAS A. CLARK and CHERYL CLARK,

Petitioners,

CITY OF HERMOSA BEACH and CITY COUNSEL

OF THE CITY OF HERMOSA BEACH,

Respondents.

iin

Petition for Writ of Certiorari to the

Court of Appeal of the State of California,

Second Appellate District

REPLY TO BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

* JAMES S. BURLING

M. REED HOPPER

R.S. RADFORD

VICTOR J. WOLSKI

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Petitioners

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED: 3... conned nevis eees il

PIE a koe 6245 nb 4646s ds coh nea rbseeonreeies

Ss. SEINE 6.5605 Gch vee ns bo Sey Vacb aes acveecne

A. _ There Is a Final Judgment in This Case .............

B. All Relevant Claims Were Raised Below ............

C. There Is a Substantial Conflict Among the

Circuits and the California Court ..................

D. The Court Below Misapplied Roth ................

E. No Authority Holds That a Section 1983

Action for a Violation of Federal Constitutional

~ Rights Will Not Lie When a State Writ

of Mandamus Is Available .......................

F, The Court Below Wrongly Identified the “Arbitrary

or Irrational Conduct” Standard with the “Shocks the

CII CI . . g w bo ke ob calc lawaskcncns

G. — The Court Below Inexplicably Applied

the “Shocks the Conscience” Standard

to Complaints About Procedural Violations .........

SPOUT G55 oes oo es ba eo lees ba

TABLE OF AUTHORITIES CITED

Page

Agins v. City of Tiburon, 24 Cal. 3d 266,

FUR PB Be CROFT inn ek nae abe ee ee ee 7

Board of Regents v. Roth, 408 U.S. 564 (1972)................ 5

Cox Broadcasting Corporation v.

Colm, SBP tES. Sar Ge eeee 6 it. a ee a eee 1-2

DeBlasio v. Zoning Board of Adjustment for the Township

of West Amwell, 53 F.3d 592 (3d Cir. 1995) ............... 4.6

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987) ................ 7

Forgay v. Conrad, 47 U.S. (6 How.) 201 (1848) ............... ]

Lebron v. National Passenger Railroad Corp, US. __,

R35 3 CR SRE ee ak a eee 2-3

Matthews v. Eldridge, 424 U.S. 319 (1976) ................... 9

Nollan v. California Coastal Commission,

S03 US. SEES) q.. .5 cece ei, See ee 5

RRI Realty Corp. v. The Incorporated Village of Southampton,

S70 FB DUE COB ie. Be os eink iene alee ee a 6

River Park, Inc. v. City of Highland Park,

ee FSG OA EUR, TD oa ss oe ss Os ee 4.6

iii

Page

Yee v. City of Escondido, 503 U.S. 519 SU So aa ese ae 3

Statutes

l SERINE aN ,.%

EGA Ei eee ne 1-2,6

}

]

ARGUMENT

INTRODUCTION

The City misunderstands the basic nature of the Clarks’

argument. The Clarks are not complaining about a “deprivation of

‘ the right to reasonable use of the land,” Opposition at 1, but are

arguing that because there has been a deprivation of a right to a fair

hearing, they deserve a meaningful remedy for that deprivation. In

short, the Clarks are not claiming any “entitlement” to any particular

permit, building height, or building configuration. They are asking

that the hearing procedures used to fix restrictions on the use of their

property be fair and, if they are not fair, that there be access to an

adequate remedy as provided by 42 U.S.C. § 1983.

A. There Is a Final Judgment in This Case

The court be.ow finally disposed of the Clarks’ claim for

damages and attorneys’ fees under the Due Process Clause. The

decision is quite clear. Under the interpretation of the court below,

the Clarks have no right to procedural due process in government

hearings on the permitted uses of their property. No rehearing on

their permit will change this result. Nor will it alter the measure of

damages. The Clarks allege that if they had been given a fair hearing

on their permit application they would not have suffered higher

construction costs, lower property values, and emotional distress. See

Petitioners’ App. A-15. That the permit could theoretically be

denied at a subsequent hearing does not render the trial court any less

capable of determining the damages caused by the unfair procedures.

In Cox Broadcasting Corporation v. Cohn, 420 US. 469

(1975), this Court explained that the finality doctrine could not be

applied in a “mechanical fashion,” 420 U.S. at 477, instead, the Court

preferred “‘a more liberal, and, as we think, a more reasonable

construction.” Jd. at 480 (citing Forgay v. Conrad, 47 U.S. (6 How.)

201, 203 (1848)).

The present case easily falls within the ambit of Cox

Broadcasting. “In the first category are those cases in which there

are further proceedings--even entire trials--yet to occur in the state

courts but where for one reason or another the federal issue is

conclusive.” Jd. at 479. It is irrelevant that there will be a new

hearing on the Clarks’ application, the federal issue of whether the

constitution requires a fair hearing has been conclusively decided.

Cox Broadcasting also supports review in cases where the

refusal of immediate review “might seriously erode federal policy.”

420 U.S. at 482. The federal policy of protecting civil nghts under

Section 1983 is now inapplicable in California to individuals seeking

to protect their right to a fair hearing when government restricts their

ability to make use of their land.

Immediate review by this Court is necessary to restore the right

of fair hearings.

The decision on the Clarks’ due process-based claims is final.

B. All Relevant Claims Were Raised Below

The Clarks properly raised below all the claims and issues that

are in their petition. The claims brought by the Clarks included a

claim that they had been denied a fair hearing, that this denial

deprived them of due process, and that this deprivation was a

violation of 42 U.S.C. § 1983. App. A-12, C-9-15. Respondents

suggest that because the Clarks focused more on their rights to the

subject permit than on their underlying right to use their property,

they never properly raised the claim below. That, of course, is

untrue. The underlying claim is that there was a denial of the Clarks’

right to due process in violation of Section 1983. That has not

changed.

Pointing out that there is a property interest in the ownership

of land and that due process must attach when restrictions are

imposed on the use of land is not a different claim from that made

below. Even if their argument is viewed as having been revised, it is

not conceivably a new claim. Their claim is that there is a due

process violation of their rights under Section 1983 because they

were denied their due process rights to a fair hearing. Part of their

argument in support of their claim is that they are entitled to the

protections of the Due Process Clause since the hearing at issue

implicated protected property interests. Merely placing greater

emphasis on the underlying nature of their property right has nothing

to do with raising a new claim.

Even if this were a brand new argument, which it is not, this

Court has held that it is acceptable to raise in a petition for certiorari

a new argument in support of an existing claim. See, e.g., Lebron v.

National Passenger Railroad Corp., _U.S.___, 115 S. Ct. 961,

965 (1995). In Yee v. City of Escondido, 503 U.S. 519 (1992), this

Court recognized, in the context of a takings claim, that it is proper

to raise a new theory or argument in a petition for certiorari if that

theory is in support of the same claim:

Petitioners’ arguments that the ordinance constitutes a

taking in two different ways, by physical occupation and

by regulation, are not separate claims. They are rather

separate arguments in support of a single claim--that the

ordinance effects an unconstitutional taking. Having

raised a taking claim in the state courts, therefore,

petitioners could have formulated any argument they

liked in support of that claim here .... A litigant seeking

review in this Court of a claim properly raised in the

lower courts thus generally possesses the ability to

frame the question to be decided in any way he chooses,

without being limited to the manner in which the

question was framed below.

Id. at 534-35."

Most telling of all is the fact that the decision below

categorically stated that “there is no federally protected property

interest on which to base a procedural due process claim.” App. A-

39. Thus, whether or not the Clarks used the same language to

explain their theory that the ownership of property gives rise to an

entitlement of due process, the court below issued a ruling that

forecloses any permutation of that argument. “Our practice

‘permit[s] review of an issue not pressed so long as it has been passed

upon.””’ Lebron, 115 S. Ct. at 965. The court below said that there is

“no” protected property interest here. The Clarks must be given an

opportunity to demonstrate that they do have a protected property

interest and should not be restricted to describing that interest using

only the exact same word choices used before the lower courts. As

explained in the petition and infra, other circuits have found that land

' In Yee, of course, this Court did not address the new theory because it had

not been raised in the petition for certiorari. Jd. at 538. But this Court niade

it plain that if Yee had raised the argument in the petition stage, then this

Court could have granted certiorari and heard argument on the regulatory

taking claim. /d. at 535.

ownership in and of itself is a protected property interest. This issue

is properly before this Court and in need of review.

C. There Is a Substantial Conflict Among

the Circuits and the California Court

The City of Hermosa Beach’s (City) argument that there is no

conflict with the Seventh Circuit opinion in River Park, Inc. v. City

of Highland Park, 23 F.3d 164 (7th Cir. 1994), relies entirely on a

mischaracterization of that decision. The District Court had denied

River Park’s claim based on the denial of its rezoning request,

holding that River Park had no “legitimate claim of entitlement” in

the rezoning it sought. Jd. at 165.

On review, the Seventh Circuit acknowledged that “[flor

reasons the district court gave, River Park may well have lacked a

property interest in one classification rather than another.” Jd. at 165-

66. Nevertheless, in stark contrast to the many circuits, and the

California court in this case, the Seventh Circuit held:

But it [River Park] surely had a property interest in the

land, which it owned in fee simple, and it is therefore

entitled to contend that the City’s regulation of that land

deprived it of property without due process.

Id. at 166.

It stretches credulity to suggest that the Seventh Circuit is in

accord with the other circuits or that River Park does not count. The

Seventh Circuit was clear in stating the property interest protected by

procedural due process derives from land ownership, it does not

derive from a perceived entitlement that the state may alter at will.

The conflict raised by the Third Circuit in DeBlasio v. Zoning

Board of Adjustment for the Township of West Amwell, 53 F.3d 592

(3d Cir. 1995), is equally apparent. As in River Park, the court noted

that the zoning board had discretion to grant or deny the requested

zoning variance. Jd. at 597. Nonetheless, the court assumed

DeBlasio had a protected property interest in his land and rejected his

procedural due process claim on other grounds. /d. at 596-98. When

the Third Circuit examined DeBlasio’s substantive due process claim,

the court held:

We think it consistent with Belio to conclude that

ownership is a property interest worthy of substantive

due process protection .... Indeed, one would be hard-

pressed to find a property interest more worthy of

substantive due process protection than ownership.

Id. at 600-01.

That this standard applied equally to procedural due process in

the Third Circuit is evident from that court’s statement implying

protected property interests under substantive due process are more

limited than under procedural due process. “[I]t is apparent ... that,

in this circuit at least, not all property interests worthy of procedural

due process protection are protected by the concept of substantive

due process.” Jd. at 598.

Thus, in the Seventh and Third Circuits, land ownership is a

protected property interest under both procedural and substantive due

process. California property owners, however, do not enjoy such

constitutional protection.

D. The Court Below Misapplied Roth

Board of Regents v. Roth, 408 U.S. 564 (1972), was not a land

use case. The significance of Roth is that for the first time this Court

held procedural due process should attach not only to restrictions

imposed on the holders of traditional property interests such as land

ownership, but also to the denial of government benefits to persons

with certain entitlements, such as continued employment. This Court

stated: “The Court has also made clear that the property interests

protected by procedural due process extend well beyond actual

ownership of real estate, chattels, or money.” Jd. at 571-72.

The reason why the Clarks’ desire to replace their duplex with

condominiums should be treated differently than the professor’s

desire for continued employment is that the Clarks were exercising

their inherent right to use their land, whereas the professor sought

only to enforce a perceived benefit conferred by the government. In

a land use case, a permit is a restriction on an already protected

entitlement to use land.” In a government benefits case, there is no

entitlement except what the government confers.

? As this Court has stated elsewhere: “But the right to build on one’s own

property--even though its exercise can be subjected to legitimate permitting

requirements--cannot remotely be described as a ‘government benefit.’”

Nollan v. California Coastal Commission , 483 U.S. 825, 833 n.2 (1987).

This Court has always operated on the assumption that land

ownership is a protected property interest for due process purposes.

See Petition at 15. Respondents cite no cases from this Court that

support their contention that (1) Roth applies to land ownership or

(2) land ownership is not a property interest protected by the Due

Process Clause. In a telling statement about the effect of this Court’s

decision in Roth, the Second Circuit opined:

It is not readily apparent why land regulation cases that |

involve applications to local regulators have applied the

Roth entitlement test to inquire whether an entitlement

exists in what has been applied for--whether a zoning

variance, a business license, or a building permit--

instead of simply recognizing the owner’s indisputable

property interest in the land he owns.

RRI Realty Corp. v. The Incorporated Village of Southampton,

870 F.2d 911, 917 (2d Cir. 1989).

E. No Authority Holds That a Section 1983 Action

for a Violation of Federal Constitutional Rights Will

Not Lie When a State Writ of Mandamus Is Available

The City cites DeBlasio v. Zoning Board of Adjustment, 53 F.3d

at 592, for the proposition that “the remedy for ... denial of a fair

hearing [] generally lies in state court.” Opposition at 18. The

significance of this proposition is obscure, given that the Clarks did

in fact file this action in California Supevior Court. Claims brought

under 42 U.S.C. § 1983 can be, and routinely are, brought in state

court. Nothing in DeBlasio supports the City’s claim that the Clarks

are limited to a mandamus remedy.

The same difficulty confronts the City’s citation to River Park,

Inc. Even if it is true that the remedy for a “failure to implement state

law” lies “in state court,” that is exactly where this action was filed!

Nothing in the cited language from River Park suggests that damages

for violation of the federal constitutional right to a fair hearing are

barred merely because there exists a state procedure to win a new

hearing. Neither this Court, nor any court cited by the City, has held

the only remedy available for violation of the constitutional right of

due process is a new hearing. Citizens who incur financial injury by

reason of the City’s violation of their constitutional rights have a

nght under 28 U.S.C. § 1983 to recoup those damages.

The utter absence of any authority supporting the City’s position

is consistent with the fact that administrative mandamus is not

“clearly an adequate remedy” for the deprivation of federal

constitutional rights. Opposition at 20. In fact, this Court has already

considered this issue and rejected the City’s argument in the

analogous context of regulatory takings.

In Agins v. City of Tiburon, 24 Cal. 3d 266, 598 P.2d 25 (1979),

the California Supreme Court held that California cities could not be

sued for damages for violating the Fifth Amendment so long as

aggrieved citizens had access to the alternative remedies of

declaratory relief or mandamus. 24 Cal. 3d at 269-70, 598 P.2d at 26.

This doctrine was rejected in First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987),

where this Court held that invalidation was not a sufficient remedy

for the violation of federal constitutional rights under the Takings

Clause. 482 U.S. at 318-19. The same reasoning should apply in

rejecting the City’s attempted resurrection of Agins in a due process

context.

The court below found that the City willfully (after consulting

counsel) engaged in conflicts of interest (App. A-8, A-22), deprived

the Clarks of their nght to a fair hearing (App. A-22-24), and

exhibited bias and partiality against the Clarks in its official actions

(App. A-23, A-24). Yet the only relief granted by the California

court was to issue a writ of mandate requiring the City to repeat the

process by conducting a new hearing! App. A-24-25.

F. The Court Below Wrongly Identified the “Arbitrary or

Irrational Conduct” Standard with the “Shocks the

Conscience” Standard

The City plays semantic games by asserting that the court below

“found” the City’s actions were not “arbitrary or irrational.”

Opposition at 23. It is true that the decision of the Court of Appeal

includes the statement. Yet, in arriving at its conclusion that the

City’s conduct did not violate the Due Process Clause, the court

consistently applied the “shocks the conscience” standard as its due

process test: (1) “[T]he Due Process Clause ... prevents the

government from engaging in conduct that ‘shocks the conscience.””

App. A-31 n.28 (citations deleted); (2) “[D]ue process prevents ...

‘abuse of government power that shocks the conscience.” Jd. at A-41

(citations deleted); (3) The standard for judging a due process claim

“is whether the challenged government action would ‘shock the

conscience’ of ... judges.” Jd. at A-42 (citations deleted); (4)

“{P}laintiff must ... demonstrate a degree of outrageousness and a

magnitude of potential or actual harm that is truly conscience

shocking.” Jd. (citations deleted); (5) “[T]Jhe “shock the conscience’

standard requires a high level of outrageousness.” Jd. (citations

deleted); and (6) “[W]e cannot say that its conduct, for due process

purposes, was arbitrary or oppressive or that it “‘shocks the

conscience.” Jd. at A-43 (citations deleted).

As these passages illustrate, the Court of Appeal was explicit

in applying the “shocks the conscience” test as a proxy for the

“arbitrary and irrational” inquiry. In effect the court below conflated

the two tests into one, finding that because the City’s conduct did not

shock the conscience of the court, the conduct therefore was not

arbitrary or irrational. The City’s claim that the Court of Appeal

actually applied the “arbitrary and irrational” standard to the facts of

this case--independently of the “shocks the conscience” inquiry--and

found that the City’s conduct did not violate this standard, is belied

by a fair reading of the opinion.

G. The Court Below Inexplicably Applied

the “Shocks the Conscience” Standard

to Complaints About Procedural Violations

Not only did the court below conflate the “shocks the

conscience” and the “arbitrary and irrational” standards, but it applied

these standards to what are essentially complaints about procedure.

Although the decision below spent much time reviewing the nature

of substantive due process, id. at A-39-44, when it actually came to

apply these tests, it applied them to procedural violations:

[W]e cannot say that its [the city council’s] conduct

for due process purposes, was arbitrary or oppressive

or that it “shocks the conscience.” Although we have

concluded that Councilmember Benz had a conflict of i

interest ... the Council did not act irrationally by

allowing Benz to participate in the proceedings.

Id. at A-43. It is to this odd application of conflated substantive due

process standards to a procedural complaint that the Clarks object and

for which there is a genuine conflict in the lower courts. Petition

at 21-22. The lower courts must understand that when the nght to

use property is subject to a permitting process, that process should

presi ee cnneen

meet the standards of Matthews v. Eldridge, 424 U.S. 319 (1976), and

its progeny rather than the wholly inappropriate standards of

substantive due process formulated in the context of law

enforcement-related violations of liberty interests. See Petition

at 20 n.7 and 21.

Gros

CONCLUSION

The ability to make use of property is a right protected by the

Constitution. Restrictions imposed upon the exercise of that nght

must be fair and subject to examination under meaningful standards

of due process--whether or not the landowner has a vested right to a

particular permit. In this case, it is beyond dispute that the

procedures employed by the City were unfair and a violation of

California law. Yet the Court found that there had been no due

process violation because the landowner lacked a nondiscretionary

right to a particular permit. Two federal circuits have plainly held

that due process attaches in the land use context because the right

being affected is the right to own and make use of property. Other

circuits and the court below disagree. This Court should grant

certiorari to resolve this conflict.

DATED: March, 1997.

Respectfully submitted,