Opposition Brief — Ricciardi v. Grant

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Supreme Cent, 6.

{3 ‘ILD

gi FEB 15 2001

No. 00-711

IN THE GLERK

Supreme Court of the Anited States

EUGENE RICCIARDI; JACK WAGNER; JAMES FERLO;

DAN COHEN; JOHN DESANTIS,

Petitioners,

Vv.

WILLIAM GRANT; IKE HARRIS; AMBASSADOR

DEVELOPMENT CORPO..ATION; LAZER

DEVELOPMENT GROUP, INC.; THE ASPEN GROUP,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Charles H. Saul

Counsel of Record

MARGOLIS EDELSTEIN

Attorneys for Respondents

1500 Grant Building

Pittsburgh, PA 15219

(412) 281-4256

Wright Appellate Services 0209

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

QUESTIONS PRESENTED FOR REVIEW

1. Are the motives of a public official relevant to the

qualified immunity analysis where motive is an element of

the alleged constitutional violation, and where a court, in

determining whether qualified immunity exists, must first

decide whether the plaintiff has alleged the violation of a

constitutional right at all.

2. Is the ultimate question of whether a substantive due

process violation has actually occurred in this case properly

before the Court where there has been no final order on the

merits of this issue and where this question can be fully re-

viewed on appeal from the final judgment.

3. Assuming, contrary to respondents’ position, that the

answer to Question 2 above is in the affirmative, does a vio-

lation of substantive due process occur when public officials,

in making a land use decision, act for partisan political and

personal reasons totally unrelated to the merits of the land

use issue and with the express purpose to deprive a person of

their property rights.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW...............:c0sce000 i

TABEB OF COOINT RICE vi ccticcisicscesccecéssdesscccsccetbestbes pa RES ii

TABLE OO] AUEIICIE Bae sscocisicicesstinpciciccinniapstiveniesbbbtasin iv

COUNTERSTATEMENT OF THE FACTS...............:c0e0000 1

PRIORI ssnnciericctatansassiesinionactehlatesiaen dnaanieaiaataipacddaieess 8

I. WHEN RESOLVING THE QUALIFIED

IMMUNITY DEFENSE, THE CIRCUIT

COURTS HAVE CONSISTENTLY AND

CORRECTLY APPLIED EVIDENCE OF A

PUBLIC OFFICIAL’S MOTIVES IN CASES

INVOLVING AN INTENT-BASED CON-

STITUTIONAL VIOLATION ...00........ccccsscecsseesseeceessees 8

A. The Qualified Immunity Test ..................::ccccceeees 8

Bi, Come i i iieccticiisterecciectiatniigeninss 10

C. The Third Circuit’s Analysis..................:.ccceeeees 13

DD, CR Cre Ce CO is ss cncccsccnnsncncicssceiaceess 16

Il. THE ISSUE OF WHETHER A SUBSTAN-

TIVE DUE PROCESS VIOLATION HAS

OCCURRED IS NOT PROPERLY BEFORE

TE RIG 0 sakcciaecncsceiaiisslatnosneeaciedentiisoiereessateanccn 21

iii

ill. A SUBSTANTIVE DUE PROCESS VIOLA-

TION DOES OCCUR WHEN FESPON-

DENTS ARE DEPRIVED OF A PROPERTY

INTEREST BECAUSE OF ARBITRARY

AND CAPRICIOUS GOVERNMENT CON-

Pineal 23

. Dion... ie 23

B. Cases Cited By Petitioners Are

Sedition ad 25

i io ee ONES 28

TABLE OF AUTHORITIES

Cases: ;

Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1 (ist

Rs Bere retenestishinsetisinscacssaisnncsssdoncstassuipasndianthimibiinthipabivets 17

Anderson v. Creighton, 483 U.S. 635 (1987)... 23

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

CIs iniasicoses-eneacnicistenseascisonsainisacdeiselniailacbia ahiiatitbiasibiglaieaauaiainians 12

Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990)

(en banc), cert. den. 501 U.S. 1204 (1991) ................. 20

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988)............... 29

Bello v. Walker, 840 F.2d 1124 (3rd Cir.),

cert. denied, 488 U.S. 851 & 868 (1988)......... 23, 24, 30

Blanche Road Corp. v. Bensalem Township, 57 F.3d

253 (3rd Cir.), cert. denied, 516 U.S. 915

COG siesta ticdciniichillacsiidscsitiiliaemcnsiintiaiisaliiisianinini 24

Brady v. Town of Colchester, 863 F.2d 205 (2nd

ERPs See iias sesvinsissniaeininesdaihaniadeias ti asdsncitesilingaasaadlanciaabads 28

Butz v. Economou, 438 U.S. 478 (1978) ........ccccccsssessseeeeseeees 8

Crawford-El v. Britton, 523 U.S. 574 (1998)...........04 passim

Creative Environments, Inc. v. Estabrook, 680 F.2d

822 (list Cir.), cert. denied, 459 U.S. 989

Aci eilisa ts scnsnasseticsihonassoessbnceedachnghiceillopunidbemicasinsoiia 25, 26, 27

DeBlasio v. Zoning Board of Adjustment of Town-

ship of West Amwell, 53 F.3d 592 (3rd Cir.),

cert. denied, $16 U.S. 937 (1995) ......cess-- iipberidlsttocese 24

Dudley v. Angel, 209 F.3d 460 (Sth Cir, 2000) .0..s...:csesssess 18

Foy v. Holston, 94 F.3d 1528 (11th Cir. 1996) cescsecsoccoe 20

Gomez v. Toledo, 446 U.S. 635 (1980)......ce.ccsssesssessesssecesese. 9

Grant v. City of Pittsburgh, 98 F.3d 116 (3rd Cir.

SOO Mvcistaiesictuenpunaionorcncninie 13, 14, 15, 16

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570

CERWIN OT nieces 29, 30

Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975) ....ccecsessssse 29

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......e.....e.... passim

Hoard v, Sizemore, 198 F.3d 205 (6th Cir. 1999)... 12, 18, 19

Independent Enters., Inc. v. Pittsburgh Water &

Sewage Authority, 103 F.3d 1165 (3rd Cir.

Ritch ah cisaiekhicsainapiei ect cat 24

Lindsey v. Shalmy, 29 F.3d 1382 (9th Cir. BODE) socsicicciseese 20

Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir.

SO Niiictiipiiaieibiaiiiitetssdabipesiiattcciei a AES 29

Midnight Sessions, Ltd v. City of Philadelphia, 945

F.2d 667 (3rd Cir. 1991), cert. denied, 503 U.S.

FOC Pe P iccrtncwinguiiuicck i 24

Pace Resources, Inc. v. Shrewsbury Township, 808

F.2d 1023 (3rd Cir.), cert. denied, 482 U.S.

906, rehearing denied, 483 U.S. 1040 (1987)............. 26

Parkway Garage, Inc. v. City of Philadelphia,

S F356 GES Come Cae, BOBG) ncerecocnstcsibosctocescccetnniinooenssces 24

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

Ganted, SPOUE. TRGB TESS 2 ) cccecsccascectpecthancsisinievaventess 29

Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th

Ce Finite itinincstiialenhsinisimnistttinhenhiinsianintiens 20, 29

Pueblo Neighborhood Heath Centers, Inc. v.

Losavio, 847 F.2d 642 (10th Cir. 1988)...............cc0000 20

Sameric Corp. v. City of Philadelphia, 142 F.3d 582

C308 Che, BOGE ccacsccichis cctccinbatsbelbnebasceal nected 26, 27

Scott v. Greenville County, 716 F.2d 1409 (4th Cir.

C! FE Te Me SeMe ea. SNES 29

Siegert v. Gilly, 500 U.S. 226 (1991) ........ccccceeceeeees 9, 12, 13

Sound Aircraft Services, Inc. v. Town of East

Hampton, 192 F.3d 329 (2nd Cir. 1999)................ 17, 18

Stanley v. City of Dalton, 219 F.3d 1280 (11th Cir.

DOOD nec ctrcrrtiticitstiitgttechltibaicnsiiniiiclyicheclia erapcasiltala titi 20

Stella v. Kelly, 63 F.3d 71 (Ast Cir. 1995) .........ccccccssecseeees 17

Sullivan v. Town of Salem, 805 F.2d 81 (2nd Cir.

FIND scievcmaniecasternseieainthsebnniniainiaaainaamaineanaaaeaaie 28

> i ~ ne

oe woe ou

, ae

> Orr

—_ OO eee

vii

United Artists Theatre Circuit, Inc. v. City of Phila-

delphia, 595 A.2d 246 (Pa. 1991), rearg.

granted, aff'd on other grounds 635 A.2d 612

Ps IE cctontensece 3,4

Van Cauwenberghe v. Biard, 486 U.S. 517 CRIBS) a nccasicess 21

Village of Euclid, Ohio v. Ambler Realty Co., 272

Se itetticetanstinme ce 29

Wade v. Hegner, 804 F.2d 67 (7th Cir. ch cstbiisicciteiics 20

Ward v. Village of Monroeville, Ohio, 409 U.S. 57

Pa aeanenipttisnbimsntaittiacdtibiemeteinises 27

Wilson v. Layne, 526 U.S. 603 (1999) .....-cccceccosose... 9, 10, 18

Wood v. Strickland, 420 U.S. 308 (1975) ...ccccccsccseoose.-... 9, 13

Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d

Be Cin isi iii cdi 24, 25

Statutes:

adie i NE SS © COME ee nD 21

COUNTERSTATEMENT OF THE FACTS

In 1989 respondent William Grant, a commercial real es-

of Pittsburgh. (47a). The site was a location of a former

foundry, which was torn down in 1987 with no community

protest. (47a). Remaining on the site were two office build-

Prospective buyer, another pension fund, insisted they be

torn down. (48a).

On April 4, 1990, Grant signed a Sales Agreement to pur-

chase the property from Brookwood, Inc., the property

owner. (48a). Grant and his partner, Ike Harris, engaged in

local planning and met with city officials who initially ex-

pressed enthusiasm about the project, and encouraged them

to proceed, (48a). Grant and Harris received confirmation

that the project was permissible under applicable zoning

building permits. (48a-49a).

During the fall of 1990, respondents’ proposed demolition

plans were revealed to various City officials who indicated

that the buildings did not have historic value. (49a). In Feb-

ruary 1991 respondents hired a contractor and scheduled si-

multaneous closings on the sale of the property, the

financing, and the purchase of the project for March 15,

1991. At this point, respondents had completed all the neces-

sary preparation and were prepared to move forward on the

project, having invested over $400,000. (48a-49a).

Meanwhile, a local interest group, South Side Planning

Forum (“SSPF"), had become aware of respondents’ devel-

opment plan and began planning a way to halt the project by

nominating the remaining buildings for historic designation

pursuant to the City’s Historic Structures, Districts, Sites and

Objects Ordinance (“the Ordinance”). (49a-50a). On Febru-

ary 12, 1991, the SSPF held a meeting to discuss these plans

and was advised by a member of another defendant local in-

terest group, the South Side Local Development Company

(“SSLDC”), to act quickly and with secrecy as Grant could

legally demolish the buildings prior to their filing of a his-

toric nomination. Once the nomination was filed, the prop-

erty owner was not permitted to do anything to the building

until after the nomination passed through the hearing process

and was voted upon by City Council. (50a).

The SSPF nominated the buildings one week before re-

spondents’ closing date. In violation of the Ordinance, nei-

ther Grant nor the owner/seller were notified peter | to the

nomination. (50a-5 1a).

As a result of the nomination, the closings scheduled for

March 15 were cancelled (R.763a-74a, Grant pp. 116-117).

Although Grant obtained an initial thirty day extension, re-

spondents’ lender was unwilling to close on a loan and the

buyer was unwilling to close on a contract to purchase 2

project that could not be built. Nevertheless, respondents

continued to oppose the nomination and attempted to secure

financing elsewhere. (52a).

The City’s Historic Review Commission (“HRC”) held a

hearing on the matter on April 5 in which it declined to dis-

miss the nomination even though the SSPF had failed to no-

tify respondents prior to filing the nomination as specifically

required by the Ordinance. The HRC did not hold its next

meeting until June 7. At that meeting several defendant local

development groups expressed support for the historic desig-

nation and proposed to develop the property themselves.

Some private citizens, however, noted that the buildings

were a “dilapidated eyesore” and expressed concern about

the loss of jobs for the South Side community if the nomina-

tion were to be approved. (52a-53a).

On July 10, in the midst of the nomination process, the

Pennsylvania Supreme Court ruled in the case of United

Artists Theatre Circuit, Inc. v. City of Philadelphia, 595

A.2d 246 (Pa. 1991), rearg. granted 8/30/91, affd on other

grounds 635 A.2d 612 (Pa. 1993), that the Philadelphia his-

toric landmark ordinance, similar in material respects to the

Pittsburgh historic landmark ordinance, violated the-takings

clause of the Pennsylvania Constitution by the designation of

the buildings as an historic landmark without the consent of

the owner. (55a).

Respondents demanded that the nomination be withdrawn

in view of United Artists. On August 1 and 5, 1991, the City

Solicitor sent letters to members of City Council, which in-

cluded the petitioners, expressing her opinion that:

[T]he provisions of our ordinance which permits a

building . . . to be designated historic without the

consent or over the objection of the owner, under

current [Pennsylvania] law, would likely result in a

taking by the City, for which the City must pay

damages to the owner. . . . I recommend that you

do not . . . designate [the buildings] unless you also

conclude that the City should expend moneys to

the owners to pay for a taking. Additionally, be-

cause case law has held that delays resulting from

regulatory and administrative processes also may

result in a taking, expeditious resolution of those

nominations is advised. (55a-56a).

On July 23 the Planning Commission held its next hearing

on the nomination. The owner/seller of the property was in-

vited to the hearing, where he stated he had no objection to

the buildings’ designation as historic. Proponents of the

nomination were obviously attempting to remove the United

Artists impediment against designating a building without

the owner's consent. Nevertheless, they still did not have

consent of the equitable owner, Grant. (56a).

The executive director of the SSLDC asserted at the

meeting that she was ready to acquire the buildings in rede-

velopment. She also stated that she was aware that Grant’s

contract to purchase the property expired on August 7, 1991

and that Grant would no longer be the equitable owner of the

property when City Council voted on the nomination on

August 12. (56a).

A public meeting before City Council was scheduled for

August 5, 1991. On July 30, 1991, respondents became

aware of a special “post-agenda” meeting on the designation

which included a site inspection. This meeting was sched-

uled by respondent Councilman Riccardi to be held on

August 1. Upon learning of this special meeting; the City

Solicitor issued an opinion letter recommending that such a

hearing not take place. Ignoring the advice of their Solicitor,

Council held the post-agenda meeting on August 1. (57a).

Present at the post-agenda meeting were several City-

Council members, and various representatives of the local

development groups. A discussion ensued at the meeting re-

garding the duration of Grant's interest in the property. It was

specifically noted when respondents’ interest would expire. It

was suggested by certain defendants that if City Council

were to delay its vote on the nomination until after the up-

coming closing date, then respondents would lose their eq-

uitable interest in the property and their ability to obtain

financing for the development, regardless of the substantive

merits of the nomination. (80a).

Also during this meeting these same defendants admitted

that the reason they had filed a zoning protest regarding the

property was to delay the respondents’ project so as to de-

stroy the respondents’ financing and, ultimately, the project

itself. (57a-60a). Comments by certain City Council mem-

bers acknowledged their understanding that a delay would

harm respondents’ ability to secure financing and indicated

that a delay on the nomination would be forthcoming. (57a-

60a, 80a).

On August 2 the HRC again voted to make no recommen-

dation to City Council regarding the merits of the nomina-

tion. Within a few days of this meeting, Grant obtained from

Brookwood another extension of the closing date until

August 21, 1991. (60a).

On August 5 City Council held a public hearing on the

nomination. Contrary to prior promises to respondents that

the vote on the nomination would take place by August 12,

and contrary to advice from their own solicitor, City Council

decided to delay their vote on the nomination until Septem-

ber. (60a). Thus, on August 21, the owner/seller of the prop-

erty declared the sales agreement for the property to be

terminated. Respondents equitable property interest was

thereby destroyed and their investment of over $400,000 was

lost.

The district court found that the record in this case con-

tains evidence from which a finder-of-fact could conclude

that but for the impediments created by the historic designa-

tion nomination and the length of time for which it remained

pending, Grant would have been able to obtain financing to

continue with the project. In addition, there is sufficient evi-

dence to find that if the historic nomination had not arisen,

Grant’s original buyer would have purchased the property

upon its completion. (62a). Finally the district court had also

concluded that there was considerable evidence that the ac-

tions of the City, City Council, and City Council members

were deliberately designed to destroy respondents’ property

interest for partisan political and other arbitrary reasons to-

tally unrelated to the merits of the nomination. (District

Court Opinion 9/28/95, p. 42).

The district court reviewed the record with regard to peti-

tioners Riccardi, Wagner, Ferlo and Cohen, who ait all rele-

vant times were members of City Council, and noted that

they all attended the August 1 “post-agenda” meeting and

each had knowledge of the condition of the buildings. The

court held that “a finder of fact could conclude from the in- '

formation available at this time that a reasonable official

would recognize that the buildings lacked meaningful his-

toric significance.” (81a). Furthermore, the district court

found that each of these petitioners acquiesced in the deci-

sion to delay the final vote on the nomination. Each acqui-

esced in a letter threatening the HRC for a recommendation,

which a fact-finder could conclude was an attempt to coerce

record support for a nomination which lacked merit. The

district court found that respondents had met their burden of

demonstrating that the nomination and resulting delay was

purposely motivated by partisan political and personal rea-

sons unrelated to land-use planning and designed to cause

injury to respondents. (81a-82a). -

Finally, the court found that the record supported a finding

that petitioner DeSantis’ conduct was actionable. Specifi-

cally, DeSantis’ actions surrounding the HRC’s decision to

recommend historic designation constituted conduct which

“a reasonable official should have known was in furtherance

of a scheme to administer the ordinance for purposes unre-

lated to land use planning.” (93a). The court also found that a

reasonable official would have recognized that the buildings

lacked historic value. Finally a reasonable official would

have realized from the length of time and facts surrounding

the nomination that certain members of City Council were

attempting to delay a final vote on the merits in order to de-

rail an out-of-state developer’s project and to prevent the in-

cumbent mayor from getting the corresponding political

credit. (93a-94a).

Petitioners appealed the district court’s decision to the United

States Court of Appeals for the Third Circuit. On appeal, the

petitioners alleged that the district court had erred in consid-

ering the petitioners’ intent or motives when determining

qualified immunity. Petitioners also asserted that the right to

substantive due process asserted by respondents was not

clearly established at the time of the alleged violation. Fi-

nally, petitioners asserted that the district court erred in de-

nying their request for absolute legislative immunity. The

Third Circuit, in a memorandum opinion and order, rejected

all three of petitioners’ arguments and affirmed the district

court.

ARGUMENT

I. WHEN RESOLVING THE QUALIFIED

IMMUNITY DEFENSE, THE CIRCUIT COURTS

HAVE CONSISTENTLY AND CORRECTLY

APPLIED EVIDENCE OF A PUBLIC

OFFICIAL’S MOTIVES IN CASES INVOLVING

AN INTENT-BASED CONSTITUTIONAL

VIOLATION.

A. The Qualified Immunity Test

The doctrine of qualified immunity provides a safeguard

against undue interference with government functions by

providing public officials some protection from disabling

threats of liability. Harlow v. Fitzgerald, 457 U.S. 800, 806

(1982). On the other hand, an action for damages may be the

only means available for vindication of constitutional guar-

antees. Therefore, the determination of the scope of immu-

nity inherently requires a balance between the evils

inevitable in any alternative. Jd. at 813-814; citing Butz v.

Economou, 438 U.S. 478, 506 (1978).

In Harlow, the Court re-examined the test used to deter-

mine whether or not qualified immunity had been estab-

lished.’ Under the previous case law, the qualified immunity

defense had both an objective and subjective aspect. See

Wood v. Strickland, 420 U.S. 308, 322 (1975). Due to the

societal costs involved in the litigation of the subjective good

faith of government officials, the Court announced a new test

which provides immunity to government officials where

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known. Harlow, 457 U.S. at 818.

Since Harlow, the Court has also explained that when de-

termining whether qualified immunity exists, it is first neces-

sary to ask “whether the plaintiff has asserted a violation of a

constitutional right at all.” Siegert v. Gilly, 500 U.S. 226,

232, (1991). Only after a court makes this threshold determi-

nation does it consider whether this right was “clearly estab-

lished,” the second step in the qualified immunity analysis.

Id.

For example, in Wilson v. Layne, 526 U.S. 603 (1999), the

Court was faced with determining whether police officers

were entitled to qualified immunity when they permitted

media observers to watch them execute an arrest warrant in

the suspect’s home. Before reaching the objective inquiry of

whether the officers acted reasonably in light of clearly es-

tablished law, the Court first analyzed the constitutional

question of whether or not there was a violation of the Fourth

Amendment. /d. at 609-614.

' Qualified or good faith immunity is an affirmative defense that

must be pled and proven by the defendant official. Gomez v.

Toledo, 446 U.S. 635 (1980).

Only after determining that there was a constitutional

violation did the Court engage in the objective inquiry of

whether a reasonable officer could have believed that bring-

ing members of the media into a home during the execution

of an arrest warrant was lawful in light of clearly established

law and the information the officers possessed. Jd. at 614- _

615. -

The Circuit Courts have consistently applied the same

framework when determining qualified immunity. In some

cases the alleged constitutional violation is based upon the

public official’s intent. In such circumstances it is necessary

for the court to consider the public official’s intentions in or-

der to decide whether or not there has been a constitutional

violation. Only if the court has found that a violation has oc-

curred does it then engage the objective reasonableness stan-

dard announced in Harlow.

Petitioners attempt to create an issue where there is none

by expanding the objective test used in the second step of the

qualified immunity analysis to include the first step, or

threshold determination, of whether a constitutional violation

has occurred. No court, however, has taken this approach. To

the contrary, this Court declined such a theory in Crawford-

El v. Britton, 523 U.S. 574 (1998). In addition, Circuit

Courts have generally followed the framework utilized by

this Court when determining qualified immunity in cases in-

volving intent-based constitutional violations.

B. Crawford-El v. Britton

Petitioners argue that this Court’s decision in Crawford-El

v. Britton is inconsistent and contains contradictory language

regarding the relevancy of subject motives to the qualified

immunity defense. The alleged contradictions, however,

stem from petitioners’ own confusion of the two different

steps of the qualified immunity analysis. Essentially, peti-

tioners attempt to convert the factual issue of motivation into

the legal question of objective reasonableness. This is ex-

actly the approach which was rejected in Crawford-El, 523

U.S. at 593-93 (The policy concerns underlying Harlow do

not support the unprecedented proposal “to immunize all of-

ficials whose conduct is ‘objectively valid’ regardless of im-

proper intent.”)

Although the direct holding in Crawford-El was limited to

the plaintiffs burden of proof, the Court also addressed the

issue of subjective intent in relation to the qualified immu-

nity defense. In Crawford-El, the Court rejected the District

of Columbia Circuit's requirement that a plaintiff offer clear

and convincing evidence of improper motive in response to a

motion for summary judgment based on qualified immunity,

where unconstitutional intent is an element of the plaintiff's

affirmative case. 523 U.S. at 592-594. In doing so, the Court

clarified that the purely factual question of improper intent is

separate from the “essentially legal” question of whether an

official’s conduct violated clearly established law. Jd. at 589.

Petitioners argue that the Court failed to address one of the

questions presented in Crawford-EI: Is an official entitled to

qualified immunity if he asserts a legitimate justification for

his allegedly improper act and that justification would have

been a reasonable basis for the act even if evidence shows

that the official’s actual reason for the act was unconstitu-

tional? The Court, however, has implicitly answered this

question by rejecting the dissents’ alternative constructions.

See, ¢.g., Hoard v. Sizemore, 198 F.3d 205, 219 (6th Cir.

1999).

In Crawford-El, the Court declined a suggestion which

would require the plaintiff to prove that the official's prof-

fered reason for his actions is pretextual. It also rejected an

approach that would grant immunity if the trial court found

that the asserted grounds for the official's actions were ob-

jectively valid. Moreover, the Court noted that summary

judgment serves to weed out insubstantial lawsuits prior to

trial. In responding to a motion for summary judgment, the

plaintiff must “identify affirmative evidence from which a

jury could find that the plaintiff has carried his or her burden

of proving the pertinent motive.” 523 U.S. at 600, citing An-

derson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).

The Court also distinguished the standards for determining

qualified immunity and the ultimate burden of proof on the

plaintiff in asserting a cause of action:

Our holding [in Harlow] that bare allegations of

malice cannot overcome the qualified immunity

defense, did not implicate the elements of the

plaintiff's initial burden of proving a constitutional

violation. . . . It is clear that an essential element of

some constitutional claims is a charge that the de-

fendant’s conduct was improperly motivated.

Crawford-El, 523 U.S. at 588.

The determination of whether a plaintiff asserted a con-

stitutional violation at all is a necessary concomitant to the

threshold immunity question. /d. at 589, n.11, citing Siegert

v. Gilley, 500 U.S. 226, 232 (1991). Thus, the disposition in

Harlow does not delete the state of mind inquiry from every

In summary, the Court affirmed the following principles

regarding the qualified immunity defense. The determination

of whether the plaintiff has alleged the violation of a consti-

tutional right at all is a necessary step in deciding qualified

immunity. Siegert, 500 U.S. at 232. In cases involving in-

tent-based constitutional violations, evidence that a public

official’s conduct was improperly motivated is an essential

element of a plaintiff's affirmative case in chief. Crawford-

El, 528 US. at 589. This factual issue is distinct from the

qualified immunity question of whether the offi-

cial’s alleged conduct violated “clearly established law.” Jd.

With respect to the second question, Harlow dictates that an

inquiry is not made into whether the official actually knows

that he or she is violating clearly established law. Rather, an

objective test is used. Finally, the Supreme Court has re-

jected any heightened burden on the plaintiff in proving the

essential elements of the alleged constitutional violation, de-

spite the fact that the defendant has raised a qualified immu-

nity defense. Jd. at 594-95.

C. The Third Circuit's Analysis

The Third Circuit has addressed petitioners’ argument on

two occasions, once before this Court's decision in Craw-

ford-El, and once after. In Grant v. City of Pittsburgh, 98

F.3d 116 (3rd Cir. 1996) (“Grant I”), the Third Circuit first

addressed the issue of whether a court, in applying Harlow’s

objective test, may consider evidence of a defendant's state

of mind when motivation is an essential element of a civil

rights claim. In an opinion that foreshadowed the reasoning

of the Supreme Court in Crawford-El, the Third Circuit held

that it can.

Specifically, the Third Circuit recognized the difference

between the threshold inquiry (a factual issue) of whether the

plaintiff has alleged a constitutional violation and the ques-

tion of whether an official’s conduct violated clearly estab-

lished law (an essentially legal issue):

It is now widely understood that a public official

who knows he or she is violating the constitution

nevertheless will be shielded by qualified immu-

nity if a “reasonable public official” would not

have known that his or her actions violated clearly

established law.

The subjective inquiry that Harlow proscribes,

however, is distinct from the question of whether a

public official, in taking official action that but for

an improper motive, would not be legally pro-

scribed, in fact harbored the improper motive. For

purposes of clarity, when we use the terms “state of

mind” and “motivation,” we are referring to the

state of mind element of the underlying offense,

rather than to the question whether the public offi-

cials knew they were violating clearly established

rights.

Grant I, 98 F.3d at 123-24.

With regard to the specific facts of this case, the court held

that the alleged substantive due process violation “is pre-

cisely the sort of claim where clearly established law makes

the conduct legal or illegal depending on the intent with

which it is performed.” Jd. at 125. The court explained that

the substantive due process claims involved in this case in-

volve the use of otherwise legitimate government machinery

to attain an illegitimate end. Jd.

The court correctly held that in this case qualified immu-

nity is not defeated because the officials “in fact knew” that

they were violating the Constitution. (This is the subjective

inquiry forbidden by Harlow). Instead, qualified immunity is

overcome in this case because “reasonably competent public

officials” who act with certain improper motives “should

know the law proscribes their conduct.” Jd. at 125, citing

Harlow, 457 U.S. at 819.

Following its decision in Grant I, the Third Circuit re-

manded the case to the district court and instructed the lower

court to analyze with specificity the conduct of each public

official defendant with regard to plaintiff's constitutional

claims. The Third Circuit also instructed the district court to

reevaluate the defendants’ qualified immunity claims without

regard to whether they “knowingly violated” the plaintiff's

constitutional rights. Jd. at 124, n.3. On remand, the district

court presented its factual determination of the public offi-

cials’ conduct and denied petitioners’ request for summary

judgment based on qualified immunity. Petitioners appealed,

arguing that Crawford-El v. Britton, which had been an-

nounced subsequent to Grant I, precluded any evidence of a

defendant's subjective motive when the defendant raises the

defense of qualified immunity.

In its memorandum opinion on appeal after remand, Grant

v. City of Pittsburgh, No. 99-3496 (3rd Cir. June 29, 2000),

(“Grant IT"), the Third Circuit flatly rejected this assertion,

holding that Crawford-El actually affirmed its conclusion in

Grant I. (7a-8a), citing Crawford-El, 523 U.S. at 588-89.

In light of Crawford-El, the Third Circuit correctly af-

firmed the decision of the district court in this case. Because

unlawful intent is an essential element of the alleged civil

rights violation in this case, and because the existence of a

constitutional violation is a necessary concomitant to the

qualified immunity analysis, the court was not restricted by

Harlow from considering evidence of the petitioners’ intent

or motive in this case. Once this factual issue is resolved, the

next step is to determine whether or not “reasonably compe-

tent public officials” who act with certain improper motives

“should know the law proscribes their conduct.” Harlow, 457

US. at 819.

D. Other Circuit Court Cases

Petitioners assert that there is a conflict among the Circuit

courts regarding the application of the qualified immunity

defense in cases involving motive-based constitutional vio-

lations. In support of this contention petitioners cite to a few

circuit courts, which they assert have varied views on this

subject. While the three circuits cited by petitioners may use

a different analytical framework for deciding qualified im-

munity, they all recognize that evidence of intent is relevant

in cases involving motive-based constitutional violations.

Moreover, petitioners fail to cite to several other circuit

courts which have resolved this issue similar to the Third

Circuit.

The First Circuit has recognized that a public official’s

intent is relevant in determining the threshold question of

whether there is a constitutional violation. In Acevedo-

Garcia v. Vera-Monroig, 204 F.3d 1 (ist Cir. 2000), the de-

fendants asserted that the district court erred in considering

their allegedly discriminatory motive and argued that they

acted with objective reasonableness. The court stated that

motivation or intent is an element of the cause of action for a

subset of constitutional torts. Jd. at 11.

In Acevedo-Garcia, the plaintiffs alleged that they were

terminated because of their political affiliation. The court

noted that this constitutional claim has no meaning absent

the allegation of impermissible motivation. The court ulti-

mately held that it lacked jurisdiction to consider the denial

of qualified immunity. Specifically, the court stated that it

“lacked the power to inquire into the fact-based question of

what the evidence does (or does not) show concerning

whether the [public official’s] actions violated the asserted

right - a question that depends, in this case, on the [public

official’s] motives . . . .” Jd. at 12, quoting Stella v. Kelly, 63

F.3d 71, 75 (ist Cir. 1995). .

The Second Circuit has also recognized that evidence of a

public official's intent or motive is relevant in deciding the

threshold constitutional question. In Sound Aircraft Services,

Inc. v. Town of East Hampton, 192 F.3d 329 (2nd Cir. 1999),

the defendants raised the defense of qualified immunity to

the plaintiff's section 1983 Equal Protection claim. Although

the court held that the district court erred in denying quali-

fied immunity on the basis that there were issues of fact with

respect to the defendant's motivations, the court also outlined

what evidence the district court should consider on remand.

Id. at 334.

The Second Circuit held that the district court may first

determine whether the plaintiff has alleged a constitutional

violation at all. Jd. at 334, citing Wilson, 526 U.S. 603. The

court then proceeded to analyze the plaintiff's Equal Protec-

tion claim and, in doing so, discussed evidence of the defen-

dants’ intent or motivation. The court noted that “when intent

is an element of a constitutional violation the primary focus

is not on any possible animus directed at the plaintiff; rather,

it is more specific, such as an intent to disadvantage all

members of a class that includes the plaintiff.” Jd. at 335,

quoting Crawford-El v. Britton, 523 U.S. 574 (1998).

In Dudley v. Angel, 209 F.3d 460, 463 (Sth Cir. 2000), the

Fifth Circuit held that the defendants were entitled to quali-

fied immunity because the plaintiff was unable to satisfy the

first prong of the two-part test for overcoming qualified im-

munity - the violation of a constitutional right. Jd. at 463. In

Dudley, the plaintiff alleged he was discriminated against on

the basis of his political affiliation. The Fifth Circuit recog-

nized that an element of such a claim is the charge that the

defendant’s conduct was improperly motivated. The court

stated that “[i]n a First Amendment violation case, such as

this, where wrongful motive is an element of the violation,

the district court must not let the objectively reasonable test

of the second step overcome the requirements of the first

step.” Id. at 463.

In Hoard v. Sizemore, 198 F.3d 205 (6th Cir. 1999), the

Sixth Circuit addressed the relevancy of the defendant's in-

tent in determining qualified immunity. The court refused to

extend the legal question of objective reasonableness to ap-

ply to the factual issue of motivation underlying an alleged

constitutional violation. The court stated:

It appears to us that defendant's argument is an at-

tempt to transform the factual issue of motivation

into the legal question of objective reasonableness.

Such an approach would immunize all defen-

dants in cases involving motive-based constitu-

tional torts, so long as they could point to

objective evidence showing that a reasonable of-

ficial could have acted on legitimate grounds.

198 F.3d at 218, citing Crawford-El, 523 U.S. 574 (emphasis

added).

The Seventh Circuit has developed a two-step test for de-

termining qualified immunity in cases involving intent or

motive-based constitutional violations. In such cases, the

Seventh Circuit has held :

Harlow calls for the district court to conduct a

two-part analysis when state of mind is at issue:

"(1) Does the alleged conduct set out a constitu-

tional violation? and (2) Were the constitutional

standards clearly established at the time in ques-

tion? . . . Intent is relevant to (1) but not to (2)."

Thus, when intent is crucial to a party's claim, as it

is in this case, the court's consideration of intent is

relevant to the determination of whether a consti-

tutional violation exists but not in deciding if the

constitutional standard was clearly established.

Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990) (en

banc), cert. den. 501 U.S. 1204 (1991), quoting Wade v.

Hegner, 804 F.2d 67, 70 (7th Cir. 1986).

The Ninth Circuit and the Tenth Circuit have also held

that evidence of intent is relevant to the qualified immunity

analysis when motive is an essential element of the plaintiff's

alleged constitutional violation. See e.g. Lindsey v. Shalmy,

29 F.3d 1382, 1384-85 (9th Cir. 1994); Pueblo Neighbor-

hood Heath Centers, Inc. v. Losavio, 847 F.2d 642, 647-48

(10th Cir. 1988).

Finally, the Eleventh Circuit, recognizing that intent is

relevant in cases involving intent or motive-based constitu-

tional violations, has developed its own approach in such

situations. In Foy v. Holston, 94 F.3d 1528 (11th Cir. 1996),

the court acknowledged that sometimes objectively reason-

able actions can be taken both for lawful and unlawful intent.

When determining “mixed-motive” cases, the Eleventh Cir-

cuit takes into account the subjective intent and the princi-

ples which justify qualified immunity. Jd. at 1535, n. 8.

Accordingly, the Eleventh Circuit has held that where the

facts assumed for purposes of summary judgment involving

qualified immunity show mixed-motives (lawful and unlaw-

ful motivations) and pre-existing law does not dictate that the

merits of the case must be decided in plaintiff's favor, the

defendant is entitled to immunity. Jd. at 1535; Stanley v. City

of Dalton, 219 F.3d 1280, 1295-96 (11th Cir. 2000).

As illustrated by the above-cited cases, circuit courts have

held, that courts are not barred from considering evidence of

a defendant’s state of mind in determining whether a plaintiff

has produced sufficient evidence to withstand a motion for

summary judgment on the issue of qualified immunity where

the defendant’s state of mind is an essential element of the -

alleged constitutional violation itself. This approach has also

been affirmed by this Court in Crawford-El v. Britton, 523

U.S. 574. Therefore, a further review by this Court is not

necessary.

Il. THE ISSUE OF WHETHER A SUBSTANTIVE

DUE PROCESS VIOLATION HAS OCCURRED

IS NOT PROPERLY BEFORE THIS COURT.

Federal courts of appeals ordinarily have jurisdiction over

appeals from “final decisions of the district courts." Cun-

ningham v. Hamilton County, 527 U.S. 198, 200 (1999), cit-

ing 28 U.S.C. § 1291. The Supreme Court has held that a

decision is not final unless it “ends the litigation on the mer-

its and leaves nothing for the court to do but execute the

judgment.” Id. at 204, citing Van Cauwenberghe v. Biard,

486 U.S. 517, 521-522 (1988). Nevertheless, the Supreme

Court has interpreted the term "final decision" in § 1291 to

permit jurisdiction over appeals from a small category of or-

ders that do not terminate the litigation. Cunningham, 527

US. at 204. Known as the collateral order doctrine, the or-

ders which fall within this category must be (1) conclusive,

(2) resolve important questions separate from the merits, and

(3) effectively unreviewable on appeal from the final judg-

ment in the underlying action. Jd.

Petitioners’ second question presented and second argu-

ment for granting certiorari fails to meet the second and third

elements of the collateral order doctrine. First, this issue, as

framed by petitioners, involves the ultimate question of

whether or not a substantive due process has occurred in this

case. As presented, this question is distinct from the issue of

qualified immunity. Rather, this issue goes to the heart of

respondents’ ultimate claim, the merits of which has not yet

been decided by either the district court or the Third Circuit.

To the contrary, the district court merely denied petition-

ers’ motion for summary judgment. It did not find that a

violation of substantive due process had, in fact, occurred.

Nor has the Third Circuit yet addressed this issue directly.

Both of petitioners’ prior appeals involved their immunity

claims and did not challenge whether a substantive due proc-

ess violation had occurred. Petitioners were indeed correct

not to appeal this issue because there has been no final order

from the district court with regard to the merits of the re-

spondents’ substantive due process claim. Therefore, this is-

‘sue does not meet the second requirement of the collateral

order doctrine and is, therefore, not appealable at this time.

Nor will this issue be unreviewable after a final judgment.

Should the respondents prevail in a trial on this case after

remand, petitioners would then be able to appeal the final

judgment and challenge the standard used by the court for

determining whether or not a substantive due process viola-

tion has occurred. Therefore, this question also fails to meet

the third element of the collateral order doctrine and the

Court of Appeals would have lacked jurisdiction to hear this

argument.

Finally, the petitioners’ second argument related to quali-

fied immunity. Although the question of whether a constitu-

tional right was “clearly established” is an element of the

qualified immunity analysis, petitioners are not currently ar-

guing this issue. Petitioners do not engage in the test for de-

termining whether the right was clearly established as the

term was defined in this Court’s decision in Anderson v.

Creighton, 483 U.S. 635 (1987). Instead, petitioners argue

that the Third Circuit’s definition of that right is incorrect.

This alleged error, however, is not a final appealable order

and cannot be appealed at this time pursuant to the collateral

order rule. As a result, the presentation of this issue to the

Supreme Court is premature and this Court should deny pe-

titioners’ writ of certiorari on such grounds.

lll. ASUBSTANTIVE DUE PROCESS VIOLATION

DOES OCCUR WHEN RESPONDENTS ARE

DEPRIVED OF A PROPERTY INTEREST

BECAUSE OF ARBITRARY AND CAPRICIOUS

- GOVERNMENT CONDUCT.

A. Third Circuit Cases

Notwithstanding that this issue is not properly before this

Court, the district court was correct in determining that re-

spondents have presented sufficient facts to establish a vio-

lation of substantive due process. In addition, the Third

Circuit cases relied upon by the district court correctly define

the scope of the substantive due process protections.

In deciding that respondents had stated a claim for a vio-

lation of substantive due process, the district court relied

upon several Third Circuit decisions including Bello v.

Walker, 840 F.2d 1124 (3rd Cir. 1988), cert. denied, 488

U.S. 851 & 868 (1988). In Bello, the court addressed

whether a person’s constitutional right to due process is vio-

lated when public officials process a building permit appli-

cation pursuant to a constitutionally adequate procedure, but

deliberately and arbitrarily abuse government power to deny

the application. 840 F.2d at 1126. The court determined that

the plaintiff had presented evidence from which a jury could

conclude that certain public officials, acting in their official

capacities, improperly interfered with the process by which

the municipality issued building permits, and that they did so

for partisan political or personal reasons unrelated to the

merits of the application for the permits. /d. at 1129. The

court held that:

These actions can have no relationship to any le-

gitimate government objective, and if proven, are

sufficient to establish a substantive due process

violation actionable under section 1983.

Id. at 1129-30.

The Third Circuit repeatedly affirmed this principle in

subsequent cases dealing with land use decisions which were

motivated by bias, bad faith, or improper motive, such as

partisan or personal reasons unrelated to the merits of the

matter before the governmental body. See: Midnight Ses-

sions, Ltd v. City of Philadelphia, 945 F.2d 667, 683 (3rd

Cir. 1991), cert. denied, 503 U.S. 984 (1992); Parkway Ga-

rage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3rd Cir.

1993); DeBlasio v. Zoning Board of Adjustment to Township

of West Amwell, 53 F.3d 592 (3rd Cir. 1995), cert. denied,

516 U.S. 937 (1995); Blanche Road Corp. v. Bensalem

Township, 57 F.3d 253 (3rd Cir. 1995), cert. denied, 516

U.S. 915 (1995); Independent Enters., Inc. v. Pittsburgh

Water & Sewage Authority, 103 F.3d 1165 (3rd Cir. 1997);

Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3rd

Cir. 2000).

B. Cases Cited By Petitioners Are Distinguishable

Petitioners’ argument seizes upon the apparently conflict-

ing policies underlying a substantive due process claim in-

volving a land use decision. On one hand, federal courts are

reluctant to sit as appeal boards for disputes between devel-

opers and local land use planning agencies. On the other

hand, developers have a due process right to be free from

“arbitrary and irrational” government actions. Woodwind

Estates, 205 F.3d at 122.

Petitioners assert that the Third Circuit’s application of

substantive due process protections in the area of land use

decisions has been too broad. In support of this contention,

petitioners assert that a better view is that followed by the

First Circuit in Creative Environments, Inc. v. Estabrook,

680 F.2d 822 (1st Cir. 1982), cert. denied, 459 U.S. 989

(1982). The alleged due process violation at issue in Creative

Environments, however, makes this case distinguishable

from the Third Circuit cases cited above and from the instant

case.

In Creative Environments, the plaintiff alleged that the

town frustrated plaintiff's development plans by “distorting”

state law. 680 F.2d at 829. The court held that the plaintiff

failed to establish a constitutional violation because the

claim that state officials exceeded the scope of their authori-

zation presented a common state law dispute between a

property owner and a local zoning body and, therefore, failed

to rise to the level of arbitrary and capricious conduct neces-

sary to support a substantive due process violation. Jd. at

833.

Petitioners argue that the First Circuit’s decision in Crea-

tive Environments is at odds with Third Circuit precedent. To

the contrary, Creative Environments has been cited with ap-

proval by the Third Circuit. See: Pace Resources, Inc. v.

Shrewsbury Township, 808 F.2d 1023 (3rd Cir. 1987), cert.

denied, 482 U.S. 906, rehearing denied, 483 U.S. 1040

(1987); Sameric Corp. v. City of Philadelphia, 142 F.3d 582

(3rd Cir. 1998).

Sameric also involved an alleged substantive due process

violation in the context of a historical designation process.

The plaintiff's claims in Sameric, however, were based upon

the officials’ alleged ultra vires considerations. The plaintiff

did not claim that the city officials acted for reasons unre-

lated to land use planning. 142 F.3d at 595. Instead, the

Third Circuit found that the plaintiff's claims were in the

nature of an average dispute between a land owner and local

zoning officials. In doing so, the court noted that Sameric’s

allegations were very similar to those that the First Circuit

found to be insufficient to form the basis of a constitutional

violation in Creative Environments. 142 F.3d at 596.

The Third Circuit was quick to point out, however, that

Sameric was distinct from cases involving an official's con-

duct which is improperly motivated by reasons that are un-

related to the merits of the land use decision, such as in the

instant case:

[A]t the outset we note that Sameric has not estab-

lished, or for that matter even alleged, that the

Historical Commission's decision to designate the

building was motivated by personal gain, invidious

discriminatory intent, or partisan political consid- |

erations, the presence of which we have found es-

tablish substantive due process claims based on

improper motive. . . . [See] Grant v. City of Pitts-

burgh, 98 F.3d 116, 119 (3rd Cir. 1996) (alleging

that the defendants were motivated by partisan

politics in designating an area as historic as they

intended to thwart plaintiff's development project

so that the mayor would not receive credit for the

resulting economic tenefits).

Sameric, 142 F.3d at 594, (other citations omitted).

It is important to recognize that in this case the respon-

dents have asserted and have produced evidence which will

support a finding that the historic nomination of the Mac-

Hemp buildings and the procedures utilized in conjunction

with the nomination were not considered and exercised by

the petitioners on the merits of the historic designation, but

instead were used to further partisan political or personal

purposes which were totally unrelated to the purpose of the

historic designation process.

Unlike Sameric and Creative Environments, the present

case does not fall into the category of the garden-variety land

dispute Rather, this case involves governmental action

which was arbitrary, irrational, and tainted by improper mo-

tive. This violated the well-established doctrine that a prop-

erty owner has a right to a neutral arbitrator of his or her

property rights. Ward v. Village of Monroeville, Ohio, 409

U.S. 57 (1972). The Third Circuit is correct in holding that

such conduct is a proper basis to support a finding of a sub-

stantive due process violation.

C. Other Circuit Courts

Finally, many other circuit courts have recognized that

government action in land use cases which is unrelated to the

merits of the land use issue may be arbitrary or irrational

and, therefore, violates the property owner's right to sub-

stantive due process.

The Second Circuit has held that in land use cases the

principles of substantive due process protect property owners

of the right to be free from arbitrary or irrational actions.

Brady v. Town of Colchester, 863 F.2d 205, 215 (2nd Cir.

1988). Brady involved a zoning decision which was alleg-

edly based on impermissible political animus. Although the

court was mindful of the proposition that federal courts

should not become zoning appeal boards to review every in-

correct zoning decision, the court stated that “when a land-

owner's constitutional rights are infringed by local zoning

actions, [the court’s] duty to protect the constitution is clear.”

Id. at 215, quoting Sullivan v. Town of Salem, 805 F.2d 81,

82 (2nd Cir. 1986).

The Fourth Circuit is substantially in agreement with the

Third Circuit. In SIR this issue, the Fourth Circuit

held:

The dispositive question is whether local officials

have singled out a permit application for adverse

treatment due to “illegitimate political or, at least,

personal motives.” Such “purposeful discrimina-

tion” against a particular individual violates the

Constitution even where no recognized class-based

or invidious discrimination was involved.

Marks v. City of Chesapeake, 883 F.2d 308, 311 (4th Cir.

1989), quoting Scott v. Greenville County, 716 F.2d 1409,

1419 (4th Cir. 1983).

The Sixth Circuit employs a test whereby great deference

is given to the local authority's professional judgment. The

court will uphold the local official's decision unless it is a

substantial departure from the accepted norms as to demon-

strate that the decision maker did not actually exercise pro-

fessional judgment. Pearson v. City of Grand Blanc, 961

F.2d 1211, 1222 (6th Cir. 1992). In other words:

The administrative decision will withstand sub-

stantive due process attack unless it “is not sup-

ported on any rational basis” or is “willful and

unreasoning action, without consideration and in

disregard of the facts or circumstances of the case.”

Id. at 1221, citing Greenhill v. Bailey, 519 F.2d 5, 10 n.12

(8th Cir. 1975).

The Ninth and Eleventh Circuits have held that land use

decisions may be held to violate substantive due process if

they “are clearly arbitrary and unreasonable, having no sub-

stantial relation to the public health, safety, morals, or gen-

eral welfare." Greenbriar, Ltd. v. City of Alabaster, 881 F.2d

1570, 1577 (11th Cir.1989), citing, Village of Euclid, Ohio v.

Ambler Realty Co., 272 U.S. 365 (1926); Patel v. Penman,

103 F.3d 868, 874 (9th Cir. 1996), cert. denied, 520 U.S.

1240 (1997); Bateson v. Geisse, 857 F.2d 1300, 1303 (9th

Cir. 1988). The Eleventh Circuit has also noted that a depri-

vation of a property interest is of constitutional stature if it is

undertaken “for an improper motive and by means that were

pretextual, arbitrary and capricious, and ... without any ra-

tional basis.” Greenbriar, 881 F.2d at 1577.

These cases demonstrate that the Third Circuit is not alone

in considering a due process violation in circumstances

where government officials act for partisan political or per-

sonal reasons which are unrelated to the merits of the land

use issue before them. When such conduct is not related to

any legitimate government interest and deprives a party of a

property right, it violates that party’s right to substantive due

process. Bello, 840 F.2d at 1129-30

CONCLUSION

For the reasons stated above, respondents respectfully re-

quest this Honorable Court deny the petition for writ of cer-

tiorari.