# Amicus Curiae Brief — Macri v. King County

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1938%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1153

## Text

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
I
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1938%3A3. Public record. Not legal advice.