Amicus Curiae Brief — Macri v. King County

No. 97-1028

In the

Supreme Court of the United States

October Term, 1997

A.

bs

JOE A. MACRI; LOUISE MACRI;

JOE F. MACRI; and ELEANOR MACRI,

Petitioners,

v

KING COUNTY, a political

subdivision of the State of Washington,

Respondent.

,%

~~

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

—

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, THE BUILDING INDUSTRY

ASSOCIATION OF WASHINGTON, THE CALIFORNIA

FARM BUREAU FEDERATION, THE OREGON BUILDING

ASSOCIATION, AND THE WASHINGTON ASSOCIATION

OF REALTORS® IN SUPPORT OF PETITIONERS,

MACRI

ROBIN L. RIVETT “BRENT D. BOGER

M. REED HOPPER *COUNSEL OF RECORD

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, Suite 305 10800 NE 8th Street, Suite 325

Sacramento, California 95833 Bellevue, Washington 98004

Telephone: (916) 641-8888 Telephone: (425) 635-0970

Facsimile: (916) 920-3444 Facsimile: (425) 635-0196

Attorneys for Amici Curiae

aati eee eeEeEeEeEeEeEeEeEeEEEEE———EEeeeereerr ror ——

l

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, THE BUILDING INDUSTRY

ASSOCIATION OF WASHINGTON, THE

CALIFORNIA FARM BUREAU FEDERATION,

THE OREGON BUILDING ASSOCIATION,

AND THE WASHINGTON ASSOCIATION OF

REALTORS® IN SUPPORT OF

PETITIONERS, MACRI

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

on behalf of itself, the Building Industry Association of

Washington, the California Farm Bureau Federation, the

Oregon Building Industry Association, and the Washington

Association of REALTORS®.' Consent to file this brief has

been granted by counsel for petitioner and has been lodged with

the Clerk of this Court. Respondent, King County, has

withheld consent, necessitating the filing of this motion.

IDENTITY AND INTEREST

OF AMICI CURIAE

The Building Industry Association of Washington

(BIAW) is a trade association representing more than 7,300

members engaged in commercial and light industrial

construction and the building of most of Washington’s

residential housing. Many of BIAW’s members frequently

make application to the government for approval of

development projects. If the government is free to act

' Pursuant to Supreme Court Rule 37.6, amici curiae affirm that no

counsel for any party in this case authored this brief in whole or in

part; and furthermore, that no person or entity made a monetary

contribution specifically for the preparation or submission of this

brief.

2

irrationally so long as it pays compensation, its members will

have lost a valuable constitutional protection.

The California Farm Bureau Federation (Farm Bureau) is

a nonprofit, voluntary membership corporation organized under

the laws of the State of California for the purpose of fostering

agriculture and working to resolve those problems facing the

agricultural community. Its members are 53 county farm

bureaus through which it represents nearly 80,000 families in

56 California counties and more than 80% of the commercial

farmers in the State of California.

California farmers are constantly faced with serious

overregulation from governmental agencies having authority

over some of their land use activities. For example a substantial

number of the Farm Bureau’s members conduct agricultural

activities on farmlands that contain habitat for protected

wildlife and plant species. These activities are subject to

regulation by state and federal agencies under the state and

federal Endangered Species Acts. Also, many members

conduct agricultural activities on farmland characterized as

wetlands that are subject to regulation under the state and

federal Clean Water Acts. Farm Bureau members’ farming

activities have been seriously overregulated under these and

other statutes by governmental agencies’ arbitrary and

capricious actions. For example, in some cases the government

has prohibited the planting of crops on agriculturally zoned

lands and even dictated how the land may be used for livestock

grazing. In other cases, the government has created new zoning

classifications that require agricultural landowners to take land

out of production to feed and shelter wildlife. These actions

violate the Due Process Clauses of the Fifth and Fourteenth

Amendments to the United States Constitution yet, under the

Ninth Circuit’s decision in this case, Farm Bureau members

3

have no right to challenge these wrongs for violating their due

process rights. This denial of their rights severely diminishes

opportunities for meaningful constitutional relief.

The Oregon Building Industry Association (OBIA)

represents the interests of 5,200 builders, developers, and

contractors in the State of Oregon. OBIA works with its local

associations to meet the housing needs and quality of life for all

Oregonians. Like BIAW, OBIA is concerned that the Ninth

Circuit’s decision in Macri will allow governments to act

arbitrarily in the processing of its members’ land use

applications.

The Washington Association of REALTORS® represents

16,000 independent real estate agents and brokers in the State

of Washington. The Association works to promote the success

of its members through advocacy of a favorable legislative

climate, coordination of uniform professional standards

enforcement, identification of resources required to meet the

needs of the marketplace, and various communication efforts.

In this case, the Association seeks to ensure that there is a legal

climate which protects the rights of property owners from

arbitrary and capricious government regulatory actions.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of California

for the purpose of engaging in litigation in matters affecting the

public interest. PLF has over 20,000 contributors and

supporters located throughout the country and maintains its

principle office in Sacramento, California, with other offices in

the States of Washington, Hawaii, and Florida. Policy is set by

a Board of Trustees composed of concerned citizens, many of

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

4

contemplated legal action and authorizes such action only when

the Foundation’s position has broad support within the general

community. PLF’s Board has authorized the filing of an

amicus curiae brief in this matter.

PLF has participated in numerous cases involving issues

arising under the Takings and Due Process Clauses of the Fifth

and Fourteenth Amendments to the United States Constitution.

PLF attorneys were counsel of record in Nollan v. California

Coastal Commission, 483 U.S. 825 (1987), and Suitum v. Tahoe

Regional Planning Agency, 117 S. Ct. 1659 (1997), and PLF

participated as amicus curiae in Keystone Bituminous Coal

Association v. DeBenedictis, 480 U.S. 470 (1987); First English

Evangelical Lutheran Church of Glenduiz v. County of Los

Angeles, 482 U.S. 304 (1987); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); and Dolan v. City of Tigard,

512 U.S. 374 (1994).

Amici seek here to augment the argument in the petition

for writ of certiorari by providing evidence of additional

conflicts and confusion among the circuits. Additionally, PLF

will address the inadequacy of just compensation as a remedy,

the textual and historical underpinnings of the Due Process

Clause, and establish that this Court has consistently applied

substantive due process protections to property owners. PLF’s

public policy perspective and litigation experience in support of

private property rights and individual rights will provide an

additional viewpoint with respect to the constitutional issues

presented. In particular, PLF is concerned that the Ninth

Circuit’s decision in this case denies individuals access to the

federal courts to seek relief against irrational, arbitrary, and

capricious government actions effecting their property.

5

For the foregoing reasons, amici request this Court to

grant their motion to file the attached amicus curiae brief.

DATED: January _, 1998.

Respectfully submitted,

ROBIN L. RIVETT *BRENT D. BOGER

M. REED HOPPER *COUNSEL OF RECORD

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, Suite 305 10800 NE 8th Street, Suite 325

Sacramento, California 95833 Bellevue, Washington 98004

Telephone: (916) 641-8888 Telephone: (425) 635-0970

Facsimile: (916) 920-3444 Facsimile: (425) 635-0196

By

BRENT D. BOGER

Attorneys for Amici Curiae

i

QUESTIONS PRESENTED FOR REVIEW

1. Does Graham v. Connor, 490 U.S. 386 (1989), require

that the remedy of just compensation under the Takings Clause

of the Fifth Amendment replace and preclude substantive due

process claims under the Fourteenth Amendment based on

arbitrary and capricious government interference with property?

2. If a claim for relief based on arbitrary and capricious

government action interfering with property may only be based

on the Fifth Amendment’s Takings Clause, is such a claim

unripe under Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172, 194 (1985), until

the property owner seeks compensation under available state

procedures?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........... 0. cccccccscceee.

TABLE OF AUTHORITIES CITED ................ iv

INTERESTS OF AMICI CURIAE ...... PRR I apt elg 1

STATEMENT OF THECASE ...................... |

SUMMARY OF ARGUMENT ...................... 2

PLB iaL) BSN a a 3

I. THIS COURT SHOULD GRANT THE

PETITION FOR WRIT OF CERTIORARI

TO ADDRESS A SUBSTANTIAL

CONFLICT AMONG THE CIRCUITS ............. 3

A. The Third, Sixth, Eleventh, and District

of Columbia Circuits Recognize Substantive

Due Process Protections for Arbitrary

and Capricious Government Actions

Affecting Property Interests ................ 4

B. The Tenth Circuit Agrees with the Ninth Circuit

in Not Recognizing Substantive Due Process

Protections for Arbitrary and Capricious

Actions Affecting Property Interests .......... 7

ed The Fifth and Seventh Circuits Are Inconsistent

in Their Recognition of Due Process Protections

for Arbitrary and Capricious Actions

Affecting Property Interests ................ 7

II. THIS COURT SHOULD GRANT THE PETITION

FOR WRIT OF CERTIORARI TO DECIDE

WHETHER THE SUBSTANTIVE COMPONENT

OF THE DUE PROCESS CLAUSE PROVIDES

ANY PROTECTION AGAINST ARBITRARY

AND CAPRICIOUS GOVERNMENT ACTION

AFFECTING PROPERTY INTERESTS ........... 10

A. The Fifth Amendment Remedy of Just

Compensation Provides Inadequate Relief

for Arbitrary and Capricious Government

Lame Use OOD 65 5 nik b nics S55 2G ie 11

B. The Plain Text of the Constitution Provides

That a State May Not Interfere with Property

Interests Without Due Process ............. 13

al This Court Has Consistently Found a

Constitutional Right Based on the

Due Process Clause to Be Free from

Arbitrary Government Actions ............. 18

CAAT 6b chee de we bate eee ke dns © vadadare 19

iv

TABLE OF AUTHORITIES CITED

Page

Cases

Albright v. Oliver, 510 U.S. 266 (1994) ....... 2,6-7,10,19

Armendariz v. Penman, 75 F.3d 1311

Tae: SU lca ei cigs Gonieks hoking vk cho 1-2,7,10,13-14,17

Bateman v. City of West Bountiful, 89 F.3d 704

eo aes sansa k ans isd- cha beds 7

Bello v. Walker, 840 F.2d 1124

I i oe en kw k's hk ao $s 5

DeBlasio v. Zoning Board of Adjustment for the Township

of West Amwell, 53 F.3d 592 (3d Cir. 1995) .......... 5

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) ........... 11-12

FM Properties Operating Company v. City of

Austin, 93 F.3d 167 (Sth Cir. 1996) ................ 9

Gamble v. Eau Claire County, 5 F.3d 285

ei Sr oon ces ony 6 tn $< 8-9,12

Goldblatt v. Town of Hempstead,

Cg ene 19

Graham v. Connor, 490 U.S. 386 (1989) .... 2-3,6-7,10,19

LRL Properties v. Portage Metro Housing Authority,

ope eo wg ee 5

Lynch v. Household Finance Corporation,

ge rer eee 13

Page

Macri v. King County, 110 F.3d 1496

et Ae BENE ee pein 1,3,10,12-13,17

Miller v. Campbell County, 945 F.2d 348 (10th Cir. 1991). 7

National Paint & Coatings Association v. City of

Chicago, 45 F.3d 1124 (7th Cir. 1995) .............. 8

Nectow v. City of Cambridge, 277 U.S. 183 (1928) 11,18-19

Patel v. Penman, 103 F.3d 868 (9th Cir. 1996) ......... 10

Pearson v. City of Grand Blanc,

GL Fie Fee ke I ow sos oe ccnpececves 3-5

Pearson v. City of Grand Blanc,

756 F. Supp. 314 (E.D. Mich. 1991) ................ -

Polenz v. Parrott, 883 F.2d 551 (7th Cir. 1989) ....... 7-9

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) 11

Schaper v. City of Huntsville, 813 F.2d 709 (Sth Cir. 1987) 9

Silverman v. Barry, 845 F.2d 1072 (D.C. Cir. 1988) ...... 6

Sinaloa Lake Owners Association v. City of Simi Valley,

SS2 F.28 1996 (Gi Cir. 1905)... ow. ce cc eee 2,15

Sinclair Oil v. County of Santa Barbara,

BP ee ee I PE oc Set id cn cas veccsahattus 10

Soldal v. Cook County, 506 U.S. 56 (1992) ............ 10

Tri County Industries v. District of Columbia,

ae ce I tn Mas POE 6 on oboe ke oceans yews 6

United States v. Lanier, 117 S. Ct. 1219 (1997) ........

vi

Page

Village of Arlington Heights v. Metropolitan Housing

Development Corporation, 429 U.S. 252 (1977) ..... 19

Village of Euclid v. Ambler Realty,

EEE SE SE 11,18

Villas of Lake Jackson, Ltd. v. Leon County,

i 6

United States Constitution

I 2,10

EE eee 1-2,10-11,13,16-18

Fourteenth Amendment ............... 2,11,13-14,16-18

Statutes

EE EI Se l

Miscellaneous

Ronald J. Krotoszynski, Jr., Fundamental Property

Rights, 85 Geo. L.J. 555 (1997) ............ 3-4,14-15

The Federalist No. 84 (Alexander Hamilton) .......... 15

1

INTERESTS OF AMICI CURIAE

The interests of amici curiae are set forth in the

preceding motion and are adopted herein.

STATEMENT OF THE CASE

The respondent, King County, denied the Macris’

preliminary plat application to subdivide their property into 11

residential lots. Approximately four years later, the King

County Superior Court held the denial of the application was

arbitrary and irrational on its face and in disregard of the facts

and circumstances of the Macri proposal.

Subsequently, the Macris filed this action in state court

claiming violations of Washington law and seeking damages

under 42 U.S.C. § 1983 for a violation of their substantive due

process rights stemming from the arbitrary and capricious

denial of their plat application. The Macris also raised a Fifth

Amendment takings claim alleging the county denial of their

plat application failed to substantially advance a legitimate

governmental interest. King County removed the action to

federal district court where it was dismissed. An appeal was

brought before the Ninth Circuit which affirmed the district

court.

The opinion of the Ninth Circuit is reported at Macri v.

King County, 110 F.3d 1496 (9th Cir. 1997). Among other

things, the court held that the Macris’ constitutional claims

were limited to review under the Fifth Amendment’s Takings

Clause because it provides an explicit constitutional source of

protection for the petitioners. The court stated that “substantive

due process has no place in this context.” The court relied on

its Own prior opinion in Armendariz v. Penman, 75 F.3d 1311

(9th Cir. 1996), which held that when an explicit textual

2

provision of the Constitution protects against the government

action, the claim must be analyzed under that specific provision

alone and not under the general guarantee of substantive due

process. Armendariz overruled the Ninth Circuit’s opinion in

Sinaloa Lake Owners Association v. City of Simi Valley,

882 F.2d 1398 (9th Cir. 1989), in which the court recognized

both a takings and due process claim. The court overruled

Sinaloa based upon this Court’s opinions in Graham v. Connor,

490 U.S. 386 (1989), and Albright v. Oliver, 510 U.S. 266

(1994). In those cases, the Supreme Court held that claims that

law enforcement officials used excessive force or made an

arrest without probable cause are properly analyzed under the

Fourth Amendment and not the Due Process Clauses of the

Fifth and Fourteenth Amendments.

SUMMARY OF ARGUMENT

The Ninth Circuit has applied this Court’s rulings in

Graham and Albright to destroy all substantive due process

protections for property rights, thereby adding to a substantial

conflict among the circuits. In addition to the Ninth Circuit, the

Tenth Circuit prohibits substantive due process claims where

the government has acted arbitrarily or capriciously in

interfering with property interests. At least four other circuits

take a contrary view. This conflict is widespread and well

recognized. It is time that this Court harmonize the differing

and irreconcilable opinions among the circuit courts of appeals.

This Court should determine whether the substantive

component of the Due Process Clause applies to arbitrary and

Capricious government action affecting property rights. The

Ninth Circuit’s limited remedy of compensation under the Fifth

Amendment Takings Clause is inadequate relief for “improper”

government conduct. Moreover, the Constitution expressly

provides due process protections for property interests. Indeed,

nothing in the language of the Constitution or in its historica!

'

3

underpinnings suggests that a specific constitutional protection

precludes a more general protection. In fact, this Court has

consistently recognized a substantive due process protection for

property rights. Therefore, this Court should grant the petition

for review and reverse the Ninth Circuit opinion in Macri.

>

THIS COURT SHOULD GRANT THE

PETITION FOR WRIT OF CERTIORARI

TO ADDRESS A SUBSTANTIAL

CONFLICT AMONG THE CIRCUITS

There is a clear and widespread conflict among the

circuits over the main issue in this case: whether Graham

prohibits substantive due process protections for property

interests.

This conflict is well recognized. As noted by the Sixth

Circuit: “The lack of uniformity among the circuits in dealing

with zoning cases of the ‘arbitrary and capricious substantive

due process’ category is remarkable.” Pearson v. City of Grand

Blanc, 961 F.2d 1211, 1217 (6th Cir. 1992). Professor

Krotoszynski of the Indiana University, Indianapolis School of

Law, agrees:

In addition to the Ninth and Eleventh

Circuits, several other courts of appeals have

addressed . . . the question whether substantive

due process protects property interests. Even at

the most basic level, there is a remarkable

{

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4

inconsistency regarding whether substantive due

process protects property interests.

Ronald J. Krotoszynski, Jr., Fundamental Property Rights,

85 Geo. L.J. 555, 577 (1997).

Equally remarkable, however, is the fact that this Court

has yet to deal with the issue:

Although the Supreme Court has on occasion

held that the specific constitutional protection

supersedes the more generalized due process

protection, it has not ruled on whether the

specific takings clause of the Fifth Amendment

supersedes the general due process provisions of

the Fifth and Fourteenth Amendments.

Pearson v. City of Grand Blanc, 756 F. Supp. 314, 317 (E.D.

Mich. 1991).

Attesting to the need for Supreme Court resolution of

this issue is the Sixth Circuit’s lament in Pearson:

We wish it were within our power to harmonize

these decisions, but the conflicts among circuits

are too great. Harmony will have to await

action by the Supreme Court.

Pearson, 961 F.2d at 1220 n.45.

A. The Third, Sixth, Eleventh, and District of

Columbia Circuits Recognize Substantive Due

Process Protections for Arbitrary and Capricious

Government Actions Affecting Property Interests

The Ninth Circuit’s denial of substantive due process

protections for property interests is in direct conflict with most

of the other circuits that have considered the issue.

}

5

The Third Circuit acknowledges that under some

circumstances landowners have substantive due process

protections for their property interests. In DeBlasio v. Zoning

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

592 (3d Cir. 1995), the court approved a substantive due

process claim where a local zoning board allegedly reached an

irrational decision that an automobile repair shop violated

zoning ordinances. The court emphatically concluded:

Thus, in the context of land use regulation, that

is, in situations where the governmental

decision in question impinges upon a

landowner’s use and enjoyment of property, a

land-owning plaintiff states a substantive due

process claim where he or she alleges that the

decision limiting the intended land use was

arbitrarily or irrationally reached.

Id. at 601.

The Third Circuit also allowed a substantive due process

claim where the government denied a building permit because

of the political activities of the applicant. Bello v. Walker,

840 F.2d 1124 (3d Cir. 1988).

The Sixth Circuit agrees with the Third Circuit,

approving the use of substantive due process to challenge

arbitrary or irrational governmental actions. The Sixth Circuit

expressly authorizes property owners to challenge adverse

zoning decisions under a substantive due process theory. See

LRL Properties v. Portage Metro Housing Authority, 55 F.3d

1097, 1111 (6th Cir. 1995) (holding that a substantive due

process claim may be stated where government conduct

“shocks the conscience”). See also Pearson v. City of Grand

Blanc, 961 F.2d at 1220-22 (recognizing implication of a

substantive due process right for arbitrary refusal to grant

rezoning request).

6

Likewise, the Eleventh Circuit recognizes a separate

substantive due process claim for arbitrary and capricious

governmental action affecting property interests. In Villas of

Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir.

1997), certain landowners filed a substantive due process action

against the county contending the county acted arbitrarily in

rezoning the landowners’ property to prohibit high-density

apartment complexes to which the landowners claimed a vested

right. Although the Eleventh Circuit held the county had not

acted arbitrarily and capriciously, the court concluded:

A landowner’s vested rights created by state law

may indeed constitute property subject to the

arbitrary and capricious substantive due process

protections under the federal Constitution.

Id. at 614.

Finally, District of Columbia Circuit precedent also

conflicts with the Ninth Circuit. In Tri County Industries v.

District of Columbia, 104 F.3d 455 (D.C. Cir. 1997), a builder

brought a substantive due process claim challenging the District

of Columbia’s refusal to issue a building permit. The court

considered an argument based on Graham and Albright--that

the Takings Clause subsumes a substantive due process claim--

but, contrary to the Ninth Circuit, the District of Columbia

Circuit flatly rejected that argument and held:

[I]n this circuit at least, under Silverman, the

requirements of the takings clause cannot be

said to exhaust the Fifth Amendment’s

substantive protection of property rights from

government imposition.

104 F.3d at 459. Also see Silverman v. Barry, 845 F.2d 1072

(D.C. Cir. 1988).

7

B. The Tenth Circuit Agrees with the Ninth

Circuit in Not Recognizing Substantive Due

Process Protections for Arbitrary and

Capricious Actions Affecting Property Interests

In addition to the Ninth Circuit, the Tenth Circuit does

not recognize substantive due process protections for property

interests. The Tenth Circuit goes beyond the Ninth Circuit,

however, and would subsume the Equal Protection Clause into

the Takings Clause. In Bateman v. City of West Bountiful,

89 F.3d 704 (10th Cir. 1996), a property owner challenged the

city’s finding of noncompliance with zoning under the Takings,

Due Process, and Equal Protection Clauses. The Tenth Circuit

relied upon its earlier holding in Miller v. Campbell County,

945 F.2d 348, 352-53 (10th Cir. 1991), and this Court’s

holdings in Graham and Albright, to conclude that both the

substantive due process and equal protection claims are

subsumed into the Takings Clause.

C. The Fifth and Seventh Circuits Are

Inconsistent in Their Recognition of Due

Process Protections for Arbitrary and

Capricious Actions Affecting Property Interests

Adding to the confusion among the circuits is the

position taken by the Seventh Circuit. In Polenz v. Parrott,

883 F.2d 551 (7th Cir. 1989), a property owner brought a

substantive due process action against two public officials for

denial of his liquor license and occupancy permit applications.

The circuit court acknowledged a substantive due process

claim, but with a caveat:

[A] substantive due process claim based on a

State-created property interest is cognizable

The Ninth Circuit apparently does not subsume the Equal

Protection Clause into the Takings Clause. Armendariz v. Penman,

75 F.3d at 1326.

8

where a plaintiff claims either a violation of

some other substantive constitutional right or

that the state law remedies are inadequate.

883 F.2d at 558.

This view of substantive due process property

protections is directly contradictory to that of the Ninth Circuit

in this case. The Ninth Circuit holds that if a property owner

suffers a deprivation of some other constitutional right, such as

a taking, the substantive due process protections are subsumed

into that right. In contrast, the Seventh Circuit in Polenz

requires some other constitutional deprivation before it would

apply substantive due process protections.

Though it never overruled Polenz, the Seventh Circuit

has not always adhered to it. See National Paint & Coatings

Association v. City of Chicago, 45 F.3d 1124, 1129 (7th Cir.

1995) (“[o]nly laws that affect ‘fundamental rights’ come

within the purview of [substantive due process]”). Judge

Posner in Gamble v. Eau Claire County, 5 F.3d 285 (7th Cir.

1993), suggested that substantive due process review for

arbitrary government actions is available even in the absence of

the Polenz factors. In Gamble, a property owner applied to the

government for the necessary permits to operate a convenience

store, gas station, and repair shop. The county initially

approved the application, but then revoked its approval after

complaints from the neighbors. The Seventh Circuit rejected

the property owner’s federal civil rights suit because she failed

to pursue her state judicial remedies. In doing so, however, the

court noted that there is a difference between a takings claim

and a substantive due process claim:

Statutes or other exertions of governmental

power that lack a rational basis, in the sense of

some connection however tenuous to some at

least minimally plausible conception of the

‘iene

9

public interest, are held to violate due process

even if there is no procedural irregularity; so if

} they deprive someone of life, liberty, or

property, they give rise to a claim under the due

process clause. When land is taken for a private

rather than public use, a rational basis for the

government’s action, it may be argued, is

lacking. The fact that the landowner has an

alternate right, one to just compensation, need

not be decisive.

5 F.3d at 287 (citations omitted).

At one time, the Fifth Circuit used an approach similar

to the Seventh Circuit’s approach in Polenz. See Schaper v. City

of Huntsville, 813 F.2d 709, 716-18 (Sth Cir. 1987). However,

in FM Properties Operating Company v. City of Austin, 93 F.3d

167 (Sth Cir. 1996), the Fifth Circuit restated the right to be free

from arbitrary government action affecting property interests

without requiring the violation of some other “fundamental

right.” The court noted:

[I]f such government action is “clearly arbitrary

and unreasonable, having no substantial relation

to the public health, safety, morals, or general

welfare,” [it may] be declared unconstitutional.

Id. at 174.

This conflict among the circuits touches on fundamental

rights expressly protected by the Constitution. The exercise of

these rights should not depend on where one lives. The citizens

of this country are entitled to a consistent application of the law,

especially as it pertains to life, liberty, and property. It is time

for this Court to address the questions presented in this case and

resolve the substantial conflict among the circuits.

10

II

THIS COURT SHOULD GRANT THE PETITION

FOR WRIT OF CERTIORARI TO DECIDE

WHETHER THE SUBSTANTIVE COMPONENT

OF THE DUE PROCESS CLAUSE PROVIDES

ANY PROTECTION AGAINST ARBITRARY

AND CAPRICIOUS GOVERNMENT ACTION

AFFECTING PROPERTY INTERESTS

This Court has never applied Graham and Albright to

preempt substantive due process claims outside of cases

involving Fourth Amendment protections against alleged

improper law enforcement conduct. Rather, this Court has

indicated that Graham and Albright should be read narrowly.

United States v. Lanier, 117 S. Ct. 1219, 1228 n.7 (1997).

Therefore, under this Court’s precedent, outside of law

enforcement cases, the general rule of Soldal v. Cook County,

506 U.S. 56, 62-63 (1992), should still apply: improper

government conduct may be protected under more than one

provision of the Constitution.

However, the Ninth Circuit has held that the only

constitutional relief property owners have for arbitrary and

capricious government regulations which deprive them of their

property rights is compensation under the.Fifth Amendment

Takings Clause. Macri v. King County, 110 F.3d at 1499;

Patel v. Penman, 103 F.3d 868 (9th Cir. 1996); Armendariz v.

Penman, 75 F.3d at 1325-26; Sinclair Oil v. County of Santa

Barbara, 96 F.3d 401, 407 (9th Cir. 1996). These cases denied

the property owners any relief under the substantive component

of the Due Process Clause. What this means to property owners

in the Ninth Circuit is that lower federal courts will recognize

no constitutional basis to invalidate, enjoin, or award damages

for improper government interference with property interests

apart from compensation for a taking. Such a position departs

from the textual protection of property in the Fifth and

Fourteenth Amendments and from this Court’s long-standing

recognition of due process protections against arbitrary and

capricious government actions. Village of Euclid v. Ambler

Realty, 272 U.S. 365, 390-95 (1926); Nectow v. City of

Cambridge, 277 U.S. 183, 188-89 (1928); Schad v. Borough of

11

Mount Ephraim, 452 U.S. 61, 68 (1981).

A.

The Fifth Amendment Remedy of Just

Compensation Provides Inadequate

Relief for Arbitrary and Capricious

Government Land Use Regulations

In First English Evangelical Lutheran Church of

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

Court made clear that the constitutionally required relief for a

Takings Clause claim is compensation:

Consideration of the compensation question

must begin with direct reference to the language

of the Fifth Amendment, which provides in

relevant part that “private property [shall not] be

taken for public use, without just

compensation.” As its language indicates, and

as the Court has frequently noted, this provision

does not prohibit the taking of private property,

but instead places a condition on the exercise of

that power. This basic understanding of the

Amendment makes clear that it is not designed

to limit the governmental interference with

property rights per se, but rather to secure

compensation in the event of otherwise proper

interference amounting to a taking. Thus,

government action that works a taking of

property rights necessarily implicates the

12

“constitutional obligation to pay just

compensation.”

482 U.S. at 314 (emphasis in original; citations omitted).

This Court emphasized in First English that the purpose

of the Takings Clause is to secure compensation in an otherwise

“proper” interference with property rights. However, the

Takings Clause does not address relief for an “improper”

interference with property interests. Under First English, once

an interference is found, it is up to the government whether to

take action to stop that interference or pay compensation:

Once a court determines that a taking has

occurred, the government retains the whole

range of options already available--amendment

of the regulation, withdrawal of the invalidated

regulation, or exercise of eminent domain.

482 U.S. at 321.

Accordingly, under Macri, a property owner’s only

constitutional relief for government interference with property

interests is through the Takings Clause and the only remedy

under the Takings Clause is compensation. Thus, arbitrary and

capricious government interference with property interests is

constitutionally unrestricted so long as the government pays

compensation.

The inadequacy of the compensation remedy can be

illustrated by a hypothetical considered by the Seventh Circuit

in Gamble v. Eau Claire County, 5 F.3d at 286-87: What would

be the remedy if a state passed a law which said the governor

could take away a person’s home and give it to his brother-in-

law? Under the Ninth Circuit’s position, compensation is the

only remedy because the substantive due process claim is

merged into the Takings Clause claim. The Ninth Circuit

13

would find no constitutional prohibition against this arbitrary

and capricious governmental conduct.

B. The Plain Text of the Constitution Provides

That a State May Not Interfere with

Property Interests Without Due Process

The Due Process Clause of the Fourteenth Amendment

is similar to the Fifth Amendment and reads: “[N]or shall any

State deprive any person of life, liberty, or property, without

due process of law.” This language is clear, due process applies

equally to life, liberty, and property. Indeed, property is a

liberty interest:

[The dichotomy between personal liberties and

property rights is a false one. Property does not

have rights. People have rights. The right to

enjoy property without unlawful deprivation, no

less than the right to speak or the right to travel,

is in truth, a “personal” right, whether the

“property” in question be a welfare check, a

home, or a savings account. In fact, a

fundamental interdependence exists between the

personal right to liberty and the personal right in

property. Neither could have meaning without

the other. That rights in property are basic civil

rights has long been recognized.

Lynch v. Household Finance Corporation, 405 U.S. 538, 552

(1972).

Nevertheless, the Ninth Circuit has read the prohibition

against deprivation of property without substantive due process

out of the Constitution. In Armendariz v. Penman, which the

Ninth Circuit relied on for its Macri decision that a specific

constitutional claim preempts a general constitutional claim, the

plaintiffs alleged a government scheme to deprive them of their

property so a shopping center developer could acquire it.

14

75 F.3d at 1321. In effect, the plaintiffs argued their property

was not being taken for a public purpose, but for a private

purpose. The Takings Clause prohibits takings for a public use

or purpose without compensation. In order to fit the plaintiffs’

claim within the Takings Clause, however, the Ninth Circuit

had to read the “public purpose” limitation out.

One commentator stated that the Ninth Circuit’s

approach is now to

tear constitutional provisions free of their

textual moorings in order to shoehorn

generalized claims into specific constitutional

guarantees.

Krotoszynski, Fundamental Property Rights, 85 Geo. L.J.

at 574.

It is more than a little ironic that the purpose behind the

Armendariz preemption rule is to prevent resort to open-ended

review under the Due Process Clause without textual

guideposts. 75 F.3d at 1319. The Ninth Circuit’s “shoehorn”

approach is potentially even more open-ended than substantive

due process review. As Professor Krotozynski states:

Whatever dangers may be associated with

substantive due process review of economic

regulation [they] are no more (and arguably

less) serious than the dangers posed by the loose

form of antitextual interpretivism recommended

by Armendariz.

Krotoszynski, Fundamental Property Rights, 85 Geo. L.J.

at 574.

The Due Process Clause was included in the Bill of

Rights and the Fourteenth Amendment to provide citizens

express protection of rights in the ownership of property. But

Alexander Hamilton recognized the natural tendency of those

15

in power to read too much or too little into express

constitutional language and so opposed adoption of an

enumerated Bill of Rights:

I go further, and affirm that bills of rights . . .

are not only unnecessary in the proposed

constitution, but would even be dangerous.

The Federalist No. 84 (Alexander Hamilton).

As Hamilton saw it, the basis for this danger lay in the

risk that specific constitutional protections would be read, like

the Ninth Circuit did in this case, to limit the rights retained by

the people rather than as a constraint on the activities of

government. Hamilton argued a bill of rights

would contain various exceptions to powers

which are not granted; and on this very account,

would afford a colourable pretext to claim more

than were granted. For why declare that things

shall not be done which there is no power to do?

Id.

Whatever other constitutional rights citizens enjoy, they

have a legitimate (and constitutionally cognizable) interest in

being free from arbitrary and capricious government action.

See Krotoszynski, Fundamental Property Rights, 85 Geo. L.J.

at 577 (citing Judge Kozinski’s opinion in Sinaloa Lake Owners

Association v. City of Simi Valley, 882 F.2d 1398). The

impetus for the American Revolution was to rid the people of

the despotism of arbitrary government. To those who pledged

their lives, fortunes, and sacred honor to declare their

independence, the concepts of life, liberty, and property were

not mere abstractions. These revolutionaries saw first hand the

consequences of a government that could kill or imprison its

citizens and rob the people of their property at will. But to

secure the blessings of liberty to their posterity, the Framers of

16

the Constitution required due process of law. Now, the Ninth

Circuit has found a pretext to claim that property rights are

protected only by the more narrow Takings Clause of the Fifth

Amendment and not by the full weight of the Due Process

Clause expressly included in the Fifth and Fourteenth

Amendments.

Nothing in the language of the Constitution or in its

historical underpinnings suggests that the specific constitutional

protection of the Takings Clause addresses the same individual

rights as the more general protection of the Due Process Clause.

It is axiomatic that the Bill of Rights constitutes a list of

minimum constitutional protections, not the maximum--as the

Ninth Circuit seems to suppose. On its face, the Fifth

Amendment contemplates two separate protections for

property: (1) no person shall be “deprived of life, liberty, or

property, without due process of law”; and (2) “nor shall private

property be taken for public use without just compensation.”

The Ninth Circuit seeks to excise an express provision of both

the Fifth and Fourteenth Amendments because it finds

protection of personal rights in property ownership through

both substantive due process and the Takings Clause redundant.

However, the two provisions address different concepts of

individual rights.

The reference in the Takings Clause to property taken

for “public use” suggests that the government may “take”

property and pay compensation only for a legitimate

governmental purpose. In contrast, when the government

interferes with a property interest in an arbitrary and capricious

manner, even if it pays, the Due Process Clause should operate

to invalidate the action. These clauses are not mutually

exclusive. Rather, they provide complementary protections of

a broad range of individual rights enjoyed by property owners.

17

In its decision below, the Ninth Circuit remarks that it

had a concern in Armendariz for a “loophole” in takings law

regarding the ripeness doctrine:

Namely, by presenting essentially a takings

claim under the claim of substantive due

process, plaintiffs were able to avoid the

ripeness requirements of Williamson County

Regional Planning Comm'n v. Hamilton Bank,

473 U.S. 172, 105 S.Ct. 3108, 87 L. Ed.2d 126

(1985). It is axiomatic that a takings violation

is not complete until the plaintiff has sought

compensation through state remedies and been

denied, whereas a substantive due process

violation is complete as soon as the government

action occurs.

Macri, 110 F.3d at 1499.

What the court characterizes as a “loophole” is simply

a correct statement of constitutional jurisprudence. When the

government acts arbitrarily to deprive landowners of their

property, those landowners should be able to rely on the express

provisions of the Fifth and Fourteenth Amendments and seek

redress for both the arbitrary action and any loss of property

rights.

Under Ninth Circuit jurisprudence, the government is

not prohibited from acting arbitrarily or capriciously with

respect to individual rights in property. Relying on the “whole

range of options” available under the Takings Clause, the state

may buy its way out of this constitutional obligation. Accord-

ing to the Ninth Circuit, while the government can exercise this

“whole range of options,” the property owner’s only remedy is

a forced sale of his property. But this remedy simply does not

address the landowners’ constitutional right as expressed in the

18

Due Process Clause and inherent in the Constitution to be free

from arbitrary governmental action.

The general rule, that a plaintiff can seek relief under

multiple constitutional theories, is the only rule that squares

with the express language of the Constitution and the clear

intent of the Framers. The Ninth Circuit’s exception to this rule

for arbitrary actions restricting the use and enjoyment of

property disparages a fundamental protection of individual

liberty expressly stated in the Fifth and Fourteenth

Amendments.

C. This Court Has Consistently Found a Constitutional

Right Based on the Due Process Clause to Be Free

from Arbitrary Government Actions

This Court has consistently applied a substantive due

process rule protecting property owners. It has applied this rule

in land use cases even though a takings claim could have been

considered along with a substantive due process claim.

[I]t must be said before the [zoning] ordinance

can be declared unconstitutional, that such

provisions are clearly arbitrary and

unreasonable, having no substantial relation to

the public health, safety, morals, or general

welfare.

Village of Euclid v. Ambler Realty, 272 U.S. at 395. Also see

Nectow v. City of Cambridge, 277 U.S. at 187-88:

We quite agree with the-opinion expressed

below that a court should not set aside the

determination of public officers in such a matter

[relative to a zoning ordinance] unless it is clear

that their action “has no foundation in reason

and is a mere arbitrary or irrational exercise of

power having no substantial relation to the

19

public health, the public morals, the public

safety or the public welfare in its proper sense.”

This Court has noted in other cases that a landowner has

a “right to be free of arbitrary or irrational zoning actions.” See

Village of Arlington Heights v. Metropolitan Housing

Development Corporation, 429 U.S. 252, 263 (1977). See also

Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-95 (1962).

But the Ninth Circuit has carved out an exception to

these protections for individual rights in property based on an

erroneous extension of this Cou.t’s law enforcement rulings in

Graham and Albright. That exception, in effect, is that

government is free to act in an arbitrary manner with property

owners as long as it pays just compensation for a resulting loss

of constitutionally protected rights in the property. That

exception is contrary to the precedent of this Court and should

be overturned.

CONCLUSION

The Ninth Circuit has applied this Court’s rulings in

Graham and Albright to destroy substantive due process

protections for property interests. In so doing, the Ninth Circuit

has created an additional irreconcilable conflict among the

circuits. The Ninth and Tenth Circuits stand on one side of the

issue while the Third, Sixth, Eleventh, and District of Columbia

Circuits, as well as, arguably, the Fifth and Seventh Circuits,

stand on the other side. Only this Court can reconcile this

conflict.

Moreover, the Ninth Circuit’s ruling is contrary to

long-standing practices of this Court and in contravention of

the express text of the Constitution which plainly prohibits

government deprivation of property interests without full due

process of law.

t

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Therefore, amici curiae respectfully urge this Court to

grant the petition for writ of certiorari and reverse the judgment

of the Ninth Circuit Court of Appeals.

DATED: January, 1998.

Respectfully submitted,

ROBIN L. RIVETT *BRENT D. BOGER

M. REED HOPPER *COUNSEL OF RECORD

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, Suite 305 10800 NE 8th Street, Suite 325

Sacramento, California 95833 Bellevue, Washington 98004

Telephone: (916) 641-8888 Telephone: (425) 635-0970

Facsimile: (916) 920-3444 Facsimile: (425) 635-0196

Attorneys for Amici Curiae