Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF CLEBURNE, TEXAS, ET AL., Petitioners, v. CLEBURNE LIVING CENTER, ET AL.

No. 84-468

April 23, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 o'clock a.m.

APPEARANCES:

EARL LUNA, ESQ., Dallas, Texas; on behalf of the petitioners.

RENEA HICKS, ESQ., Austin, Texas; on behalf of the respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: We'll hear arguments next in City of Cleburne v. Cleburne Living Center.

Mr. Luna, you may proceed whenever you're ready.

ORAL ARGUMENT OF EARL LUNA, ESQ. ON BEHALF OF THE PETITIONERS

MR. LUNA: Mr. Chief Justice and may it please the Court, this case presents the questions of whether mentally retarded persons constitute a quasi-suspect class for purposes of equal protection analysis and whether legislation such as City of Cleburne's ordinance in this case must be tested by an intermediate or heightened level of scrutiny.

First, I'd like to discuss the concept of quasi-suspect status in regard to the mentally retarded. The primary criteria for determination of suspectness was articulated by this Court in Frontiero v. Richardson. The Court stated that what differentiates sex from such non-suspect statuses as intelligence and physical disability and aligns it with recognized suspect criteria is that the sex characteristic frequently bears no relation to the ability to perform or to contribute to society.

And declining to join and add in sex as a suspect class, the concurring opinion stated that, "It seems to me that this reaching out to preempt by judicial action a major political decision which is currently in the process of resolution does not reflect appropriate respect for duly prescribed legislative processes."

Now, there has been a considerable amount of legislation in the area of the mentally retarded, and it continues to pend before the legislature of both states, as well as the Congress of the United States.

In Massachusetts Board of Retirement v. Murgia, in a per curiam opinion, this Court held that age was not a suspect class and, in doing so, observed that it had not been subjected to the unique disabilities on the basis of stereotyped characteristics not truly indicative of their disabilities.

Now, the Third Circuit heeded Frontiero and Murgia in deciding that mentally ill persons were not a suspect class in Doe v. Colautti. Although mental retardation differs from the mentally ill, the rationale of the relationship between the actual disability and the stereotyped characterizations is applicable to at least some of the mentally retarded.

Doe v. Colautti formed the basis for the District Court's opinion in this case. And although dealing with mentally ill rather than the mentally retarded, the reasoning in that case is directly related and applicable to the case at bar.

The Third Circuit in the Doe case stated that although the mentally ill have been victims of stereotypes, the disabilities imposed on them often reflected that many of the mentally ill do have reduced ability for personal relations, for economic activity, and for political choice.

Now, that of course is different from some of the other suspect classes that the Court has found to be suspect that's not related to the ability to perform and contribute to society.

A classification based on mental retardation fails the threshold analysis since, by the very definition, it is sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior. It's a problem of reduced ability to learn, difficulty with abstract thinking, judgment, problem-solving, and retention, and includes problems of social adjustment and economic productivity.

In other words, the mentally retarded do have a diminished ability to function in society and a diminished productivity.

The cases have specifically addressed the suspect or quasi-suspect status for the mentally retarded or the handicapped, which includes, of course, the mentally retarded, and they've been clear and unequivocal, we think, in their holdings.

This Court in Youngberg v. Romeo, in dealing with institutionalized mentally retarded persons, explicitly refused to apply a compelling or a substantial test, and applied a professional judgment test to the mentally retarded in that case. The lower courts had applied the heightened scrutiny test, and this Court set aside that decision and went on the professional basis test, the professional advice test.

QUESTION: Mr. Luna, would you tell us again what objectives the City has in this particular ordinance as applied to the home for the retarded?

MR. LUNA: Under the police powers of the State that are delegated to the City, the City has the responsibility of protecting people and seeing to it that they have a safe environment.

Therefore, in this case, the City refused a special use permit, mainly for the following reasons.

Number one, there were too many people in this particular house. They were going to put --

QUESTION: Well, you still take the position that the only purpose is to protect the health and safety of the residents of the group home.

MR. LUNA: Health and safety of the residents is the only reason --

QUESTION: No other purpose?

MR. LUNA: No other purpose. We in our testimony showed that we had some people in the neighborhood that complained, who objected to it because they were afraid of them; there was no reason shown for that.

QUESTION: So before us today, that's the only purpose on which you rely?

MR. LUNA: Right.

QUESTION: And the State Attorney General tells us that the State of Texas has preempted that determination, and that under state law, the State will decide on what is a safe environment for the retarded in a group home.

MR. LUNA: The Attorney General --

QUESTION: And how do we deal with that?

MR. LUNA: The Attorney General, we think, did not take a look at the regulations. As a matter of fact, the regulations that the State of Texas puts out will not permit this home to be placed in a city unless that city does have a requirement of a special use permit or other zoning law.

So contrary to what the Attorney General is saying in this amicus curiae brief, the facts are -- and it is in evidence here -- the facts are that the State requires them to place these homes only in a city that has a special use permit or other zoning --

QUESTION: Does the State go ahead and spell out what requirements the city should have in granting the permits?

MR. LUNA: It does not.

Now, it does set out some minimum standards that the home must have before the State will approve it, but it has none as far as the city is concerned. And, of course, in our state, the reason we are going to neighborhood living is because the state standards have been completely too minimum and have failed.

And we are moving people out or attempting to move them out of the state homes and the state institutions and put them in the communities, but the City of Cleburn says that normal living in Cleburn means safety, living in a way where 13 of them with 2-1/2 baths, attempting to get to a work center -- incidentally, a city of 20,000 people. There are not many that has a work center for the mentally retarded like Cleburn does. We have 30 mentally retarded across the street from this very facility. They wanted to locate this facility in this home across the street from a junior high where the parents are bringing the kids to school and taking them away.

The City, evidence showed, recommended to them another facility. They declined to put it in the other facility and when asked, isn't the only reason you didn't put it in the other facility is because it would cut down your profits, the answer in the record was, no.

Then, why didn't you? The answer was, because the project couldn't stand the burden of the additional cost.

Now, we submit that it is necessary for them to provide a safe environment and that that is the responsibility of the City to require that we do have a safe environment for, of all people, mentally retarded people -- and this group of mentally retarded people are people who did not have the skills of independent living.

In the Youngberg case, this Court declined to institute the compelling or substantial reason and the Court said that it would be unduly burdensome on the State to make that kind of requirement. This Court's dismissal of the appeal in Macon Association v. Macon-Bibb County upheld the determination that the mentally retarded were not a suspect class.

Even the Fifth Circuit, in Brown v. Sibley, although it changed its mind in this case, held that applying the rational basis review to a state agency's policy against the visually impaired, working in supervisory positions, held that no court has ever declared that handicapped persons constitute a suspect class for purposes of equal protection analysis, and we decline to do so today.

The case of the California Association of the Physically Handicapped case that we cite in our brief -- cert was denied by this Court in '84 -- again applied the rational basis review to the FCC's refusal to include the handicapped in its EEO program. And in doing so, the Ninth Circuit said that no appellate court, however, has held that the handicapped are a suspect class; we decline to be the first.

Other indicia of suspectness are summarized in San Antonio v. Rodriguez case as a class saddled with such disabilities are subjected to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

In Texas we had the question raised last time with regard to permitting people to vote. The Texas statute, Election Code, Article 5.01 permits anybody to vote who is registered under the age of 18 years of age, and who are not mentally incompetent, as determined by final judgment of a court.

And there's some other things about a felony conviction. But Texas permits the mentally retarded to vote if they register, if they're 18 years old, unless they have been declared incompetent by some court.

Now, we think that the court in Rodriquez in its holding actually used some language that applies directly to our case when the court prescribed the recognition of a class that was large, diverse, and amorphous, the opposite of discrete, insular, minority. That was the type that was envisioned by the court in U.S. v. Carolene Products.

A class dealing with illegitimacy is, of course, different because the trait of -- the immutable trait is not one in that case that has anything to do with their ability to produce or to contribute to society, and this Court in Parham v. Hughes in 1979 so recognized.

Now, while mental retardation is immutable, it's relevant to classification like other immutable characteristics such as blindness. In Upshur v. Love, a Northern District California case in 1979, 474 Fed sub 332, the Court held that the visually handicapped were not entitled to suspect status because classifications based on blindness often can be justified by the different abilities of the blind and the sighted.

Now that, of course, is the situation with the mentally retarded people because if heightened scrutiny should be applied to legislation involving the mentally retarded, what standard should we apply? The mentally retarded with an I.Q. below 70 and a deficit in adaptive behavior are a diverse group within themselves, and they consist of several subgroups. The mildly mentally retarded constitute approximately 89 percent of all of the mentally retarded persons. Add to that the moderately retarded and the severely retarded.

Both the manifestation of retardation and the level of care required by each of the subgroups varies to a great extreme. Some of them require no care. Some require institutionalization.

Now, more than half of the mildly mentally retarded, our records show, melt into society and after they leave school you never know that they are mentally retarded. So as to that group, the only way one could know that that person is mentally retarded is to have an opportunity to know what their I.Q. is and in addition to that, have the advice of an expert who could tell us that the person had a deficit in adaptive behavior.

Now, unless one had those things, a person does not even know who those mentally retarded persons are. Yet, they're tossed in with one group that the Fifth Circuit has held should have heightened scrutiny to all legislation, and if it's only reasonable and rational, it is not sufficient.

Under the Fifth Circuit requirement, the mentally retarded are placed in a Catch-22 situation. Since their needs are so different, the government car only address those needs by establishing classifications based on mental retardation and provide different benefits for different groups of mentally retarded people.

Yet the classification would fail if it's only reasonable and rational. Where they're trying to do something for the group, the legislation would fail if it's only reasonable and rational.

Even the case that we are here on today, those mentally retarded people who were prospective people who would live in that home could not be there except for the fact that they have been classified as mentally retarded, and it's a federally-funded Medicaid contract with the State of Texas which permits them to be there because they are being treated differently.

Heightened scrutiny is not the answer to the problems of the mentally retarded. The legislative approach, as was mentioned in Frontiero, if left unhampered will provide for the needs of the mentally retarded. It's doing so now at all levels of government. That position has been articulated by the Solicitor General in the government's brief in this case.

We believe that the action of the City of Cleburn has shown that that legislation is helping and is to the benefit of the mentally retarded, because the national policy being to restore then to normal neighborhood living. That type of living, with 13 people to two bathrooms, with four people, four unrelated adults in one bedroom, is not normal in very many neighborhoods in anybody's community.

It is bound to create the same type of transplanted, overcrowded condition into the cities that we have in the states right now, and we will have gained nothing except scattered the problem out, if we don't permit the cities to require those people to have at least humane conditions in those homes.

If a contractor can keep putting more people in one home at less cost, it's to that contractor's advantage. The City of Cleburne -- and of course we are the first ones to recognize people's rights and needs to make a profit, but not at the expense of inhumane treatment to a bunch of people who cannot take care of themselves.

QUESTION: Mr. Luna, has the City given a permit or a license to any other group home for the retarded in the City of Cleburne?

MR. LUNA: The City has not given a permit for a mentally retarded home because this is the only one that has ever been applied for. They tried to get this group to apply for a permit at a different location. This group refused. This is the only permit that's ever been applied for --

QUESTION: So as far as a place to live in the City of Cleburne, out in the community for the retarded, there just isn't one, I take it.

MR. LUNA: Oh, yes. Not in a group home. Simply because nobody has made an application, except this one.

QUESTION: They'd have to be institutionalized then?

MR. LUNA: Oh, no. We have 30 -- we have 30 people -- we have 30 mentally retarded students in the junior high school across the street from this place. We have a lot of mentally retarded.

Now, they can live, if they are mentally retarded people who can live in a boarding house, for example, they can live anyplace they want to. The only restriction here is that small group of mentally retarded people who don't have the skills of independent living.

The others can live anyplace they want to in the City of Cleburne and there is no problem with it. I think that the Respondents have attempted to say that this ordinance is to keep mentally retarded people out of Cleburne. It does not.

And this record is replete with evidence where the Plaintiffs were -- the Respondents were asked to apply on property different from this, property that would comply with the health and sanitation requirements of the City of Cleburne.

Heightened scrutiny is, we think, especially inappropriate for a zoning ordinance. A zoning ordinance is one that, of course, uses classifications as the very basis of the zoning ordinance. This Court has established a long history, commencing with Village of Euclid v. Amber Realty in 1926, through its recent cases like Village of Belle Terre v. Boraas, and a recent case by Mr. Justice Stevens and the Members of the City Council of Los Angeles v. the Taxpayers of Vincent in applying the rational basis test to zoning classification, unless the ordinance was racially exclusive. Otherwise, if it's fairly debatable, or any set of facts reasonably may be conceived to justify, it must be allowed to stand.

Now, in this case, I think it's important and I've mentioned it before, to realize the kind of people we had on this city council. We had people -- and one thing we are amazed at some of the groups that are on the other side of this case. We had a person who believed -- he's deceased now -- he believed he knew something about discrimination. He was a black man. He also was a person who was on the board of directors of the mentally retarded workshop that's in the City of Cleburne, and has had a history of working with them and helping them for many years.

And he felt that these people were not being treated properly and they deserved more.

The second of the three people who voted for this particular -- denial of this particular permit was a man who had a mentally retarded granddaughter. Her life was short, but her memory is like that of a lot of us who lose relatives at a young age.

QUESTION: Counsel, what has that got to do with this case?

MR. LUNA: Sir?

QUESTION: What does that have to do with this case?

MR. LUNA: I think what it has to do is in their answer, where they say that this was not a -- there was not a rational basis for this ordinance.

QUESTION: And this shows it is?

MR. LUNA: Sir?

QUESTION: To find out what the people are, and whether they're black or white, or whether they have relatives or not proves that point?

MR. LUNA: I think to know what the people intended is the whole crux of this; whether the council here was attempting to discriminate, or whether council was attempting to do something that was good and protective for the people.

I believe that's an important part. I may be wrong, but I think what the City was trying to accomplish is a part of the rational basis, and that is why it is a debatable question.

And this Court has held in all of these cases that if it is a debatable reason, then the ordinance will stand insofar as the rational basis is concerned.

QUESTION: Mr. Luna, in the Texas brief -- I have a question, if I may. Your argument based on the zoning powers that you made a moment or two ago, the Texas brief suggests that the zoning power, in Texas at least, is properly used to protect adjoining property owners and the public at large, rather than the people who aren't being able to use the property for the purpose they want to use it for.

Are there cases that sustain the exercise of zoning power to protect the property owner who's denied the right to use the property the way he wants to?

MR. LUNA: Yes, sir. Many of them. Of course, that's why the zoning laws require sprinklers in buildings. That's not going to hurt the folks next door, but it's going to hurt the users.

There are many, many situations --

QUESTION: Well, I know there are many regulations to protect the person, but --

MR. LUNA: They're in the zoning laws.

QUESTION: But the zoning laws, you say, there are, too.

MR. LUNA: Oh, yes sir. They are in the zoning law themselves.

QUESTION: May I ask this question, Mr. Luna. The ordinance, as I understand it, includes mentally retarded in a category with alcoholics and drug addicts. Is that correct?

MR. LUNA: It does mention them in the same paragraph with alcoholics and drug addicts.

QUESTION: The only other category listed are feeble-minded. And they are construed, I take it, to exclude the parties involved in this case -- mentally retarded people.

MR. LUNA: Yes, sir.

QUESTION: Are the insane and drug addicts required to obtain a special use permit to occupy a home?

MR. LUNA: No, sir; not homes.

QUESTION: Well, does that mean that only the mentally retarded are required to obtain a special permit?

MR. LUNA: Now, for a special use permit for a home for the drug addicts and for special use permits, they would have to.

QUESTION: So alcoholics and drug addicts are required to obtain a special permit?

MR. LUNA: Yes, sir.

QUESTION: Has a special permit been issued on any application filed by either of those groups?

MR. LUNA: I can't answer that. Our record does not reflect --

QUESTION: Do you know of any other special permit other than the one that's before us today?

MR. LUNA: The one that's before us today insofar as the mentally retarded is concerned, is the only one that has been applied for. There's not another one on record.

QUESTION: How long has the ordinance been in effect? I don't recall. I think it --

MR. LUNA: The ordinance has been in effect since about, I believe in the '60s. But we have only had the movement in Texas over the last few years, as in most other states, to attempt to move the mentally retarded out of the state institution.

QUESTION: Will you summarize again for me the State interest that requires a special permit for the mentally retarded, putting them in the same category with drug addicts and insane people?

MR. LUNA: Well, and it would also put them in the same one -- on down in that same paragraph, to run a nursery you also -- to run a nursery to keep little children, you also have to get a special use permit. So it doesn't put them just with the drug addicts and alcoholics.

QUESTION: Are these standards directed at the capacity of people to take care of themselves?

MR. LUNA: It's a -- in the ones that have to get the special use permit, most of them are not able to take care of themselves. There are a few instances where they are -- drive-in theaters included in it and golf clubs and a few things like that. But nursery schools and cemeteries, drug addicts, alcoholics, and a number of them; it's a matter, we think, of classification and not at all discrimination.

QUESTION: Did you identify the State interest in response to my question?

MR. LUNA: No, sir; I'll be glad to now. The State interest is that we're dealing with only the limited group of mentally retarded people who do not have the skills of independent living. That's the only ones that are involved here.

QUESTION: What State purpose is served by --

MR. LUNA: Sir?

QUESTION: What State purpose is served by this restriction on this category of people?

MR. LUNA: What is that restriction?

QUESTION: What State interest is served by the restriction on the people?

MR. LUNA: Well, under the Medicaid contract, this is a federally funded contract, the Respondent has a contract with the State to keep only those people.

Now, our State interest is that those people who can't take care of themselves should not be on a street right across the street from a junior high school, and they ought to be placed in a facility that will have room, more sleeping room than four in a bedroom. And they are attempting to teach them rehabilitation -- or habilitation training. They leave and are supposed to be at the training station at eight o'clock in the morning. Thirteen of them. It would be awfully difficult for 13 of them to take a bath --

QUESTION: You're talking about this particular facility. I was speaking generally, viewing the ordinance on its face. I think you've answered the question sufficiently.

MR. LUNA: Safety.

CHIEF JUSTICE BURGER: Mr. Hicks.

ORAL ARGUMENT OF RENEA HICKS, ESQ. ON BEHALF OF THE PETITIONERS

MR. HICKS: Mr. Chief Justice and may it please the Court, I think that after five years now, the City has finally narrowed what its posited objectives are in this case to a simple. It is apparently, though I'm not quite sure --

QUESTION: Let me put this to you, Mr. Hicks. Suppose you had a situation where in this same house you had 26 people; they proposed to use it for 26 people of the same category. Would you be here?

MR. HICKS: I don't think we would be here, Your Honor, because the State Medicaid rules would not allow 26 people under their space requirements.

QUESTION: Well, suppose it's 20 people.

MR. HICKS: Again, I don't think the state Medicaid rules would allow it. I haven't calculated what the square footage requirements and other requirements under the state Medicaid rules are that would set an upper limit.

I think it's around 15, if I remember correctly.

QUESTION: Then doesn't this come down to a question of judgment of the people on the ground, knowing the environment and the conditions, their judgment as to how many people can safely and appropriately be in an establishment of this kind, given all the other conditions?

MR. HICKS: No, Your Honor, I don't think it does. The reason I don't think it does is because that was not the judgment that was made. There is no indication, I don't think the slightest indication, in the City zoning ordinance that this discrimination in section 8, subdivision 6, singling out mentally retarded people that are going to live in group homes for different treatment was intended to protect them.

The closest thing to an indication of an objective would be in the special use permit provision, and there the only objective mentioned is impacts on labor and property values, and that is something the City has agreed it is not trying to further through the classification here.

I think that the standards the City has established, if you consider them carefully, looking at the record here -- and I think it's important to keep in mind that this decision was reached by a city council, the votes of three city council members who admitted at trial that they don't know what mental retardation is and what it entails, that the standards that they set --

QUESTION: Should they be experts in order to vote?

MR. HICKS: I don't think they have to be experts, Your Honor.

QUESTION: Do they have to know something about it?

MR. HICKS: I think they have to know something about it, or at least be willing to listen to those that do.

QUESTION: Do you think we have to qualify in order to vote here?

MR. HICKS: To qualify as experts, Your Honor? No, I don't.

QUESTION: Qualified as much as they had to be. You think they had to be qualified.

MR. HICKS: Well, Your Honor, I think the Court is willing to learn something about mental retardation from the people that discuss it in briefs, amicus briefs, or in general treatises.

The city council members here, as they admitted at trial, had no interest in that, and they ignored the advice of a phalanx of people opposed to what they were doing. The people opposed to what the city council did, that deny the special use permit, were composed of parents of retarded people that would live there, people who had spent their lives working in this area, and none of them agreed with what the city council did. There was not one person who knew anything about mental retardation who said the city council acted properly in denying the special use permit.

QUESTION: Well, Mr. Hicks, if we were to apply a rational basis standard, the Court doesn't normally look at how much the legislative body knew about a subject. It seems to me that we look at whether there is any possible legitimate state objective, and whether the provision is rationally related to that.

Now, isn't that true? If that were the test, the standard of review?

MR. HICKS: Well, I think the Court does not merely accept any posited state objective if the ordinance or the matter under consideration, the piece of legislation under consideration, indicates that could not possibly have been an objective. And I think this one does.

First of all, it indicates that this one could not possibly have been --

QUESTION: The City is asserting today that its purpose was to protect the health and well-being and safety of the inhabitants of the group home. I mean that's what I understood Mr. Luna to be saying.

MR. HICKS: I understand that's what they're saying. They're saying it now. But that is not what they said through most of this case. And it's very important that the whole structure of this zoning ordinance gives no indication that that was the objective, and it's impossible for somebody to try to determine what kind of group home would be acceptable if you don't know until five years later that that is the objective.

QUESTION: Well, I guess what troubles me is that in most of our rational basis test cases, the Court is willing to indulge whatever might be conceived of as a legitimate purpose in order to test it. Right?

MR. HICKS: Well, I think the Court is split on that. If my reading of the case is correct, there are some instances in which the Court isn't looking to whatever somebody in their wildest imagination could come up with as an objective.

They also look I think, as Justice Powell mentioned in his dissent in Schweiker v. Wilson, to see whether the statute at issue actually had this as a possible objective.

QUESTION: Well, you're really asking, if we don't adopt tightened scrutiny, to at least apply a rational basis test with teeth in it.

MR. HICKS: Yes. And I think the majority of the Court has said that the rational basis test has teeth. The Court in several cases over the last 15 years has applied the rational basis test and invalidated certain laws. And I think it's important for the Court to notice what standards the City has in effect established here to protect mentally retarded people that are going to live in group homes.

The standards are not more specific than this, and I think this is a fair reading of the record. When it comes to proximity to schools, the standard is the school's too near.

When it comes how busy are the streets, the standard is the streets are too busy.

When it comes to the size of the group home, it comes to the home's too small.

That is as close to a specific objective as the City -- or standard as the City set in all this. And I think that boils down to one standard, and that is -- this is reading the City position I think in the best light possible -- that standard is, nothing's good enough for a group home.

QUESTION: I think, Mr. Hicks, if the ordinance is facially valid --

MR. HICKS: Facially invalid?

QUESTION: If it is facially valid, do you think you could defend it on a as-applied basis in view of the overcrowding, 13 people mentally retarded, with 2-1/2 bathrooms and only four bedrooms?

Would you defend it as applied, assuming the facial validity of the statute?

MR. HICKS: Yes, Your Honor, I would. I think it would be quite an adequate group home. The best sometimes can be enemy of the good, I think. There can be better group homes. There can be smaller group homes with more space.

But I think it is perfectly defensible. It meets the state rules set up for these programs under a federal program. And the Court quite often looks to federal standards that have been established to determine what the prevailing mores of society are in terms of what's acceptable, and I think this meets it.

QUESTION: Mr. Hicks, let's assume the Stats of Texas -- you applied for a license with the state people?

MR. HICKS: Yes.

QUESTION: And suppose the State elects that Texas said sorry, but 13 beds are too many; you can only have six. Would you apply your heightened scrutiny to that kind of a rule and attack on a constitutional basis?

MR. HICKS: Well, I don't think there would be intentional discrimination in that situation against mentally retarded people. They would just be making an individual judgment in an individual case that -- or based on standards that are articulated.

QUESTION: You would say that the State must have a rational reason for making that rule?

MR. HICKS: I think that there must be a rational basis; yes.

QUESTION: One of the amicus briefs says that the case is moot, because after the date that you filed your petition the Texas Human Resources Department modified its regulations to limit these residents to six beds.

Is that true?

MR. HICKS: Is it true that it's moot? It's not moot.

QUESTION: Well, I didn't -- I asked you, did they -- have they changed their rule to six beds?

MR. HICKS: They have changed -- the state Medicaid rules, the last I had read them, was that there could be up to six beds in a facility, except --

QUESTION: But not here?

MR. HICKS: No, that's not correct. Except when this money is going to state institutions like state schools for mentally retarded people, in which case they have no limit on the number of beds. Some of those places have 1,000 beds, for instance.

So, no, it is not true that --

QUESTION: I didn't ask you -- if you had filed your petition today under the present rules, could you get the license?

MR. HICKS: If the Cleburne Living Center people that were going to open a group home -- I don't think so.

QUESTION: Well then, what's this case all about?

MR. HICKS: Well, the case --

QUESTION: I mean you can't -- and there's no grandfather clause in these regulations.

MR. HICKS: Well, in the record there is evidence that indicates that this is grandfathered, this particular group home has been grandfathered. The administrator of the program, Department of Human Resources program which promulgates the rules, has said that this group home is not subject to those rules because it had filed its application before May 1 of 19 --

QUESTION: Was this fact before the Court of Appeals?

MR. HICKS: Yes.

QUESTION: That these rules had been changed?

MR. HICKS: Yes. This whole matter has been in the case from the beginning. And the group home, this group home could open today if the Court were to rule that the City ordinance --

QUESTION: Only because you filed it before the rule was changed.

MR. HICKS: Yes. But I still think, Your Honor, that that doesn't indicate that the City hasn't discriminated against mentally retarded people, which is what this case is about. This case I don't think is about whether state Medicaid rules are valid or --

QUESTION: I think it certainly bears on whether there's a rational basis for the City's action to think the home is overcrowded if the State now will not permit six -- more than six beds.

MR. HICKS: The State is not concerned about overcrowding in that rule. I think this is clear. They're concerned about financial strains on the Medicaid program. The preamble to the regulation makes that clear.

And the distinction that's drawn between privately operated group homes and State-run institutions makes it doubly clear. State-run institutions can get Medicaid funding if they have 1,000 people in a facility. So they are not concerned about overcrowding there.

I might also add that this case has a damages claim in it, and they were operating for two years before that rule was promulgated; the claim was sitting there.

So I do not think that that rule indicates that the City acted rationally at all. I think it's important that the Court recognize that there is no basis -- zoning laws are not set up as standardless licensing procedures in the normal course of affairs, and there's certainly no indication in this one that that's so.

It's indicated -- zoning ordinances are concerned about external impacts of certain uses. That's what they are traditionally concerned with.

So I think it's very important for the Court to keep that in mind. I think that the City's objective that is now posited is not its objective. Its objective was to single out mentally retarded people and exclude them from living in group homes in the community, and it's been effective at that. It has done that.

The court -- the trial court found that the primary motivation for the special use permit denial that Justice Powell was referring to was that the people were going to be mentally retarded.

QUESTION: But this change that Justice White has just spoken about, how does that affect the full pattern, even if it doesn't moot the case?

MR. HICKS: Did you does it?

QUESTION: Has the decision been made that 13 is too many?

MR. HICKS: No, Your Honor, as I indicated to Justice White, the decision was not made that 13 is too many.

QUESTION: What did the decision amount to?

MR. HICKS: It amounted to a determination that the Medicaid program in Texas was facing a significant drain, and the way that the State controlled that particular matter was to control the money going into private group homes by basically clamping down and making it nearly impossible to open them.

And the indication that they weren't concerned about --

QUESTION: The fact is that they won't allow more than six beds in a home.

MR. HICKS: But they will. They won't in a private one, but if it's a public one where the money is going to be going to the State --

QUESTION: Maybe so, but you couldn't get a license now for this one.

MR. HICKS: Well, if we applied now, we couldn't get a license now. We can get a license now if this ordinance is declared invalid. And I think it's very important. This is a prime indication of how these things operate to exclude group homes from a community.

If this drain on resources is fast enough in the State, a City just has to wait a long time and see that the State clamps down on the program so that they can't open it.

QUESTION: What form, Mr. Hicks, did the grandfathering of this case take?

MR. HICKS: The --

QUESTION: Is it something official from a State agency?

MR. HICKS: It's a letter from the Executive Director --

QUESTION: Is that in our record?

MR. HICKS: It's Plaintiff's Exhibit No. 3.

QUESTION: And what does it say?

MR. HICKS: It says that the group home has, after the conclusion of this litigation that we're involved in now, the group home has up to 120 days to complete the requirements that it was operating -- that it was applying under to be certified.

And the way these particular things work is that you can't actually get a certificate that you can operate until you actually have at least one person living in the group home.

QUESTION: Do you think this change suggests anything, even remotely, about the decision that was made here?

MR. HICKS: By the City Council? No, Your Honor, I don't. I think it's clear that it doesn't, because they have not said that six is a good size. They have said they're putting a limit of six on private group homes, not because of any concern about how well they operate, but --

QUESTION: You mean on financing. I think you said they're putting a limit of six on financing by the group home.

MR. HICKS: Yes. More than six could live there, I suppose.

QUESTION: But they wouldn't finance it. MR. HICKS: But they just wouldn't get Medicaid funding for it. And up to 1,000 or 1,200 can live at --

QUESTION: But you say that the reason the State is doing it because it wants to prevent more group homes from starting up?

MR. HICKS: That was -- well, from starting up and receiving Medicaid funds. That was the impetus for the action.

Two of the people that participated in the study group that drew up that regulation testified at trial, and both of them said it had -- that the financial impetus was the reason they did it.

And the preamble to the regulation that finally was promulgated says that it's concerned about the drain on financial resources.

QUESTION: And the State's modus operandi is to limit the people in a group home who receive Medicaid to a number that's too small to make the group home practicable?

MR. HICKS: That was the reason it was done here.

QUESTION: Mr. Hicks, do you still take the position that the City ordinance violates state law in requiring a special use permit?

MR. HICKS: Do you mean that it violates the State Mentally Retarded Persons Act, for instance, or the state constitution?

I'm sorry, I'm a little confused.

QUESTION: Well, we had some discussion about this before, and the State has adopted certain requirements for group homes for the retarded. And at one point, I understood you to take the position that the City ordinance violated that state law by requiring a special use permit for the group home.

Is that your position?

MR. HICKS: Well, my argument was that it could not posit as one of its objectives the setting of these kinds of standards, because it was precluded from doing so by state law which it preempted; that it was inconsistent with state law.

But I think that is --

QUESTION: Is that your position today, that the City may not require a special use permit for a group home for the retarded in the State of Texas?

MR. HICKS: No. I'm not arguing that -- I'm sorry, I must be a little confused. I'm not arguing that cities cannot require -- ever -- special use permits for group homes for mentally retarded people.

The problem in this case is the distinctions that are drawn in section 8 which -- also, to answer a question Justice White asked previously, is the ordinance -- the part of the ordinance we attack on its face.

The distinctions drawn there are the problem. Nursing homes, which also are Medicaid-funded by and large, can operate -- a nursing home could have opened here without a special use permit.

QUESTION: Well, let's get back to the question I'm interested in. Does this city ordinance violate the law of the State of Texas? And, if so, how?

MR. HICKS: The only way that -- well, I don't think it violates the laws of the State of Texas because the one objective that they posited, I don't think, is a real objective. So I don't think in that regard it violates the laws of the State of Texas.

QUESTION: Can I city in Texas have health and safety requirements for group homes that are more restrictive than those adopted by the State of Texas?

MR. HICKS: I think not. The state law in this, the primary case that I know of that speaks to this is called City of Brookside Village v. Comeau -- C-o-m-e-a-u.

And it says that no local -- local laws are preempted by state laws in terms of licensing in matters like that if they are inconsistent with or in conflict with the state laws.

And I think if it set more restrictive standards, it would be in conflict with the state law setting the standards and the state policy set out on the Mentally Retarded Persons Act, which is that mentally retarded people are supposed to be able to live in group homes.

QUESTION: As Texas standards now stand, the City's requirements would be the same as the State's with its number of beds and so forth.

MR. HICKS: The City has no standards. They have no requirements. The City has never said that a group home for six could operate here. It has said this one can't.

And its reasons are standardless. It never said what was appropriate, what would be an appropriate standard. The City has mentioned in argument today that they had pointed to Cleburne Living Center that there was another place available in the community. The record reflects that isn't so.

They pointed it out at trial that that was so, and the evidence is that Texas officials have said that place could never be appropriate, could never be made appropriate.

QUESTION: When we're talking about special use permits under a typical zoning ordinance, isn't it fairly common for the zoning board when they're talking about whether you should be granted a special use permit as opposed to a zoning classification, which is usually heavily specified in the ordinance, to deal on an ad hoc basis? We think there is going to be too much traffic here, or you haven't quite got a big enough screen between your commercial property and the residential property next door -- without dealing with a code for issuing of the special use permit.

MR. HICKS: Without dealing with a what? A code.

QUESTION: A code.

MR. HICKS: It agree. But those things are always risks to the external impacts of the use they're considering.

QUESTION: Well, your colleague says what about requiring sprinklers or, you know, smoke warners in an apartment?

MR. HICKS: I've never seen that in a zoning ordinance. Those are set out in building codes and certificates of occupancy, matters like that, which it's possible to look at them and say okay, we can do that; we can install sprinklers, we can install whatever it takes.

But that wasn't done here. There was no standard set except the standard that nothing's good enough. That's the only standard the City set. And it's clear why they set it; they didn't want the group home to open.

I want to mention briefly the question of whether heightened scrutiny is appropriate here. I don't think that there is a group of citizens in the United States today that has been more stigmatized than mentally retarded people.

They have been subject to a long history of purposeful, unequal treatment, and they fit precisely within the standards this Court has adumbrated over the years for what constitutes a group that, when classifications affect them, call for heightened scrutiny.

Mentally retarded people have been disenfranchised historically. Most of them can't vote and haven't been able to. Mentally retarded people have been excluded from all of the principal assimilating institutions in the country. They've been excluded from the public school system historically.

Mentally retarded people, as the trial court found, have been isolated in remote, stigmatizing living arrangements. And it's precisely under these circumstances that this Court has said in the past, I think over and over again, that heightened scrutiny is appropriate because it's in these circumstances that the groups that are subject to these unfair and untrue stereotypes can't in essence fight back in the democratic system.

And if there is ever a group that has been unable to fight back and overcome the stereotypes that have been ensconced traditionally, it's mentally retarded people.

QUESTION: Why wouldn't you insist on strict scrutiny?

MR. HICKS: Well, it seems from my reading of the cases --

QUESTION: Those are the criteria for strict scrutiny.

MR. HICKS: I agree.

QUESTION: Well then, why not?

MR. HICKS: Well, it seems that the Court has essentially limited strict scrutiny to racial classifications. In the past it had gone beyond that, I think, and it seems to have backed away to some extent.

And racial classifications obviously are the crime situation at which the equal protection clause was aimed. But it wasn't the only thing.

I think that in some instances also, mentally retarded -- classifications based on mental retardation will fit certain standards. They will fit the standard that this Court has used in heightened scrutiny, that it has to be substantially related to important governmental interests.

This one doesn't. Some others will. It all depends on the facts of the individual case, as these things always do.

QUESTION: Well, would you be satisfied to win the case on a rational basis test?

MR. HICKS: Yes. As I think a prior counsel said, I would be satisfied to win on any basis, Your Honor.

But yes, I would be satisfied. Of course, I would like to have the mentally retarded as a --

QUESTION: That would just be a decision on this particular living place in a particular city.

MR. HICKS: And I think that's the way this Court usually operates on a case-by-case basis. So that's the reason I posited as my first argument --

QUESTION: Well, if we thought the standard was wrong, we don't agree with you on heightened scrutiny because rational basis applies, why shouldn't we remand it?

MR. HICKS: I don't think you should remand it because the only objective has been left by the City is this one to protect, that they did it to protect mentally retarded people.

And before remanding the case to determine, for instance, whether they may, under state law, have that as an objective, I think the Court ought to look at the case as it already has -- it's had two arguments -- and determine whether that is the objective.

I think the Court has spent a lot of time on this case. I think it's an artificial bifurcation of a case that has as the only issue basically the equal protection clause to say we'll decide that one standard is not applicable and we just will not look at the other standard right now; we will send it back to the lower courts.

And I don't think it promotes judicial economy; it doesn't promote economy for my clients; and it slows the process down.

I think this Court has the record before it and has an understanding of the case and is quite capable, as capable of any court at least, of making a decision on the rational basis.

QUESTION: Well, don't you think a district court would have a better understanding of arguments of Texas law, the law of preemption, and that sort of thing?

MR. HICKS: No, Your Honor, I don't. I don't think there's anything more specific than what I've told you, and that's the inconsistent --

QUESTION: Yes, but a lawyer who has practiced for 20 years in Texas before he or she went on the bench is going to have a feel for state law arguments, it seems, that this Court is not going to have just because it's removed.

MR. HICKS: I just don't think that's an accurate reading. I know that this Court uses that rationale to do these kinds of things. I don't think it's accurate in this case, and I don't think any Court would have had to consider as carefully the issues as this Court has, and had them as focused as this Court has had them.

I do think it would be an artificial bifurcation to send the case back, that it would lend -- doing it on that basis, that is, the state preemption argument, would lend undue dignity to the State's insupportable argument that it had as its reason to protect mentally retarded people.

I don't think any fair reading --

QUESTION: You mean the City's argument.

MR. HICKS: I'm sorry. Yes. I don't think any fair reading of this record can lead to the conclusion that that was the City's purpose. I just don't think it's possible to arrive at that conclusion.

And so remanding it to determine whether that may be the objective, when it is so clear that it is not the objective, it seems to lend too much dignity to that argument.

And that's my basic position, Your Honor.

QUESTION: Mr. Hicks, may I ask you a question along that line? Supposing we agreed with you that the record demonstrates conclusively that that was not the purpose, and you say we shouldn't hypothesize some other purpose.

Say we then reversed and they passed a new ordinance and said we didn't think of it before, but we now realize it would be for the best interests of the people who live in the home to deny the permit.

Would then it become constitutional?

MR. HICKS: Well, there would be a new case. And there would be a battle, I am sure, over whether they intentionally discriminated.

QUESTION: With the disposition you propose, would the City be free to do that?

MR. HICKS: It would be free to do it, but it wouldn't be free to exclude this group home, because this group home would have been, but for the City's unconstitutional action -- if they were to enact a new ordinance -- a prior, nonconforming use. And it would be singling them out for different treatment once again.

So this particular group home should be able to open, if this Court says what the City has done is unconstitutional. Then the City is free to go back and amend its zoning ordinance, I hope this time in a constitutional manner.

It right result --

QUESTION: Do you think it would be rational for them to say well, we think that the mentally retarded people need this protection, even if other somewhat similar people don't need this protection?

In other words, their crowding argument, it seems to me --

MR. HICKS: I agree. I gave up too much in my response to you. I don't think it's appropriate if they just amended the ordinance to say okay, and stuck in a provision saying we're doing this to protect mentally retarded people, I still don't think it would make sense.

I think people in nursing homes, a lot of the elderly people, they are much more likely to need more protection than mentally retarded people in the sense that quite often they aren't ambulatory; all of these people would be ambulatory.

QUESTION: So what do you conclude from that? So what if they do? Does that mean that the reason is suspect? Is that all --

MR. HICKS: I think it indicates the intention, the exclusionary intention of the zoning ordinance. And I think again it would raise a new case if a new group home were to try to open.

QUESTION: Of course, the other answer to the argument is that, well, they shouldn't permit any kind of -- any of these homes. If all of them need this kind of protection, they shouldn't permit any of them.

MR. HICKS: Well, I think that would be a totally different ordinance. If they were to take every use that's now permitted in section 8 of the zoning ordinance and say we're turning them all into special use permit situations, there would be other problems perhaps with the case, but it wouldn't be particularly discrimination against mentally retarded people, because then the nursing homes also would have to get special use permits, and so on.

Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:01 p.m., the case in the above-entitled matter was submitted.)