FILED
NOT FOR PUBLICATION AUG 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAUREEN RICHTER, No. 12-35370
Plaintiff-Appellant, D.C.2:10-cv-00461-MJP
v. AMENDED
MEMORANDUM*
CITY OF DES MOINES, a municipal
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha Pechman, District Judge, Presiding
Argued and Submitted June 6, 2013
Seattle, Washington
Before: GILMAN,** McKEOWN, and IKUTA, Circuit Judges.
Maureen Richter appeals from the district court’s order granting summary
judgment in favor of the City of Des Moines (“the City”). We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
28 U.S.C. § 1291.
Richter applied for permits to construct a trail that would connect her home on
the Puget Sound bluff to the beachfront below. Her trail application was denied
several times before the City finally gave its approval. She brought suit under 42
U.S.C. § 1983, alleging that the City’s internal review by the City Hearing Examiner,
its initial denials of her application, and its disparate treatment of her application
violated her procedural due process, substantive due process, and equal protection
rights.
We will assume without deciding that Richter has a constitutionally protected
property interest based on her ownership and use of real estate. See Wedges/Ledges
of Calif. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (noting that a plaintiff
alleging a deprivation with regard to her property rights must establish that she has a
property interest subject to constitutional protection in order to prevail). Turning first
to Richter’s procedural due process claim, her basic argument is that she was deprived
of her constitutional right to a fair and impartial hearing as a matter of law because
Section 18.94.113 of the Des Moines Municipal Code requires the Hearing Examiner
to give deference to the City’s initial permit decision. This argument is, at base, an
argument that Section 18.94.113 is facially unconstitutional. But Richter never
squarely presented this claim to either the state court or the district court, and neither
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the original nor the amended complaint identified the ordinance that she is now
challenging.
A court should proceed with reluctance “to set aside legislation as
unconstitutional on grounds not properly presented.” McGoldrick v. Compagnie
Generale Transatlantique, 309 U.S. 430, 434 (1940). In the present case, Richter had
multiple opportunities to properly present her claim of facial unconstitutionality and
failed to do so. She has therefore forfeited this claim. And even if her due process
claim is, as she claims, a damages claim and was not forfeited, there was no
constitutional infirmity in the process she received because the general due process
factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), taken together,
favor the City. The district court therefore did not err in dismissing Richter’s claim
of a procedural due process violation.
We also find no error in the district court’s dismissal of Richter’s substantive
due process claim. She contends that the City allowed its displeasure with her initial
unauthorized trail construction to taint its review of her subsequent application for
permits, and that the City failed to consider the reports of her engineers on the trail’s
design. But Richter must meet an “exceedingly high burden,” see Shanks v. Dressel,
540 F.3d 1082, 1088 (9th Cir. 2008) (internal quotation marks omitted), of showing
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that the City’s actions “lacked a rational relationship to a government interest,” see N.
Pacifica LLC v. City of Pacifica, 526 F.3d 478, 485 (9th Cir. 2008).
Even assuming without deciding that the City harbored ill feelings toward
Richter for having commenced constructing her trail without the required permits and
that it failed to give proper attention to her engineers’ reports, this sort of conduct is
not the broadly irrational kind previously found to have violated substantive due
process. Cf. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,
1508 (9th Cir. 1990) (reversing summary judgment for the city and remanding for a
trial on the merits of a substantive due process claim where the city council initially
approved a proposed oceanfront development but later “abruptly changed course and
rejected the plan, giving only broad conclusory reasons”); Bateson v. Geisse, 857 F.2d
1300, 1303 (9th Cir. 1988) (finding a substantive due process violation where a
developer had satisfied all the conditions to receive a building permit when the city
council arbitrarily initiated a zoning change that prohibited the proposed project and
caused the permit to be denied).
Here, the City denied Richter’s trail permits because she failed to comply with
applicable state and local construction and environmental codes. Such compliance is
unquestionably a legitimate government interest, and the City was justified in ensuring
that the proposed work adequately protected an environmentally sensitive area. The
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district court therefore did not err in dismissing Richter’s substantive due process
claim.
Finally, with respect to Richter’s equal protection “class of one” claim, Richter
has failed to show that the City intentionally, and without a rational basis, treated her
differently from others similarly situated. See Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam). Richter’s claim is based on the allegations that a
contemporaneous trail proposal submitted by the City’s Department of Parks and
Recreation in a completely different area was approved even though the department
did not submit reports assessing the stability of the slope and that the City treated that
project more favorably than hers by approving the proposal in only five months.
But Richter failed to show that slope-stability reports were required for the type
and slope of the trail proposed by the Parks Department. Moreover, the Parks
Department, unlike Richter, submitted all components of the required application in
a timely manner, enabling speedy review. Because Richter and the Parks Department
were not similarly situated with regard to their respective trail applications, the district
court did not err in dismissing Richter’s equal protection claim.
AFFIRMED.
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FILED
Richter v. City of Des Moines, 12-35370 AUG 19 2013
MOLLY C. DWYER, CLERK
Ikuta, J., dissenting in part: U.S. COURT OF APPEALS
The Fourteenth Amendment to the Constitution proclaims that no State shall
“deprive any person of life, liberty, or property, without due process of law.” It is
well-established that “[t]he right of [an owner] to devote [her] land to any
legitimate use is properly within the protection of the Constitution,” Harris v. Cnty.
of Riverside, 904 F.2d 497, 503 (9th Cir. 1990) (quoting Washington ex rel. Seattle
Title Trust Co. v. Roberge, 278 U.S. 116, 121 (1928)), and that the government
cannot deprive an owner of the “use and enjoyment” of her land without due
process. Id. But here the majority will only “assume without deciding that Richter
has a constitutionally protected property interest” based on her ownership of her
real property. Maj. op. at 2. I disagree with the majority’s hesitance on this point,
because it is clear that the Fourteenth Amendment protects Richter’s interests in
real property.
The majority’s doubt that Richter has a claim for unconstitutional
deprivation of the use of her property reflects the City’s insistence that Richter’s
claim must be analyzed as the deprivation of a government benefit, namely, the
right to obtain a land-use permit. See Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972) (establishing test for determining whether there is a constitutionally-
1
protected property interest in government benefits)); see also maj. op. at 2 (citing
Wedges/Ledges of Cal. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (applying
Roth test)). Based on its interpretation of Roth, the City assumes that only the
government can create property interests, and so a court is limited to determining
whether Richter has a “legitimate claim of entitlement” to a benefit “as created and
defined” by state law. Bateson v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988).
But Roth “stands not for a theory of plenary state control over the definition and
recognition” of constitutionally-protected property interests, “but for a much more
modest proposition”: that state law “might serve to elevate certain nontraditional
forms of property,” like welfare, permits, and licenses, to “constitutional status.”
Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1200 (9th Cir. 1998). Expanding
Roth beyond the limited context of government benefits, and into the “traditional”
realm of core property interests that the state cannot redefine at will, is a
constitutionally untenable approach to assessing property rights. Id. (quoting
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 (1982)). If
Roth were so broadly applicable, “States could unilaterally dictate the content
of—indeed, altogether opt out of—both the Takings Clause and the Due Process
Clause simply by statutorily recharacterizing traditional property-law concepts”
such as the right to use and enjoy one’s own real property. Id. at 1201.
2
Here, Richter claims that her due process rights were violated because City
staff (rather than a neutral adjudicator) denied Richter’s request for permission to
proceed with a development project on her property in the first instance, and the
hearing examiner adjudicating Richter’s appeal of this denial was required by law
to give the staff decision “a presumption of correctness.” 1 This claim should
survive summary judgment, because the undisputed facts show that Richter never
had a neutral adjudicator determine whether she had met the City’s requirements
for proceeding with the proposed use of her land. On its face, this procedure raises
grave due process concerns. As the Supreme Court has explained, an individual
may not be deprived of protected property rights without “impartial adjudication in
the first instance.” Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602, 626 (1993).2
1
Richter raised this same argument in her amended complaint, Dist. Ct. Dkt.
26 at 11, and so the majority errs in holding that she forfeited this claim, Maj. op.
at 3.
2
Indeed, even if the test applicable to deprivations of government benefits
without due process, see Mathews v. Eldridge, 424 U.S. 319, 335 (1976), were
applicable in this context, Richter has raised a genuine issue of material fact that
she was deprived of due process: Richter has a substantial property interest at
stake, the risk of erroneous deprivation is great (given the highly-deferential
standard the hearing examiner must apply), and the administrative burdens of
curing the problem are low, since the City need only provide a neutral hearing in
the first instance.
3
Because Richter has raised a substantial legal question as to whether the City
violated her procedural due process rights, and the City has not established that it is
entitled to judgment as a matter of law, I would reverse the district court’s grant of
summary judgment as to this claim.
4
Maureen Richter v. City of Des Moines
Combined Opinion