Transcript

CITY OF CUYAHOGA FALLS, OHIO, ET AL., Petitioners v. BUCKEYE COMMUNITY HOPE FOUNDATION, ET AL.

No. 01-1269

January 21, 2003, Tuesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

PROCEEDINGS

(11:03 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 01-1269, the City of Cuyahoga Falls versus Buckeye Community Hope Foundation.

Mr. Nager.

ORAL ARGUMENT OF GLEN D. NAGER ON BEHALF OF THE PETITIONERS

GLEN D NAGER: Thank you, Mr. Chief Justice, and may it please the Court.

In this case, the Court of Appeals for the Sixth Circuit held that a municipality may be held liable in damages because it withheld the issuance of building permits for a proposed housing project pending a citizen-initiated referendum election on the ordinance authorizing that housing project.

In so doing, the Sixth Circuit failed to appreciate that the municipality's actions here were all taken pursuant to pre-existing procedures set forth in the city's charter, procedures that the city followed to the letter.

As non-discretionary acts taken in the normal prescribed course, the municipality's actions here were necessarily rational ones taken without discriminatory motives and without treating the respondents here any differently than any other beneficiary of an ordinance would have been treated that was subject to a petition.

And for that reason, we respectfully suggest that the Sixth Circuit--

JUSTICE O'CONNOR: There's no evidence of some kind of misbehavior on the part of the city other than the bare claim that they refused to issue the permit during the process of the referendum?

GLEN D NAGER: --That's correct, Justice O'Connor.

Every official action of the city here favored the respondents.

The city planning commission recommended approval of the housing project and of the site plan authorizing the housing project.

The city council voted in favor of the housing project.

JUSTICE STEVENS: Wasn't there some evidence that some city official was... sought to delay the proceedings for a period of time, not... not officially.

It didn't take... pass any resolution, but didn't they oppose immediate action on a couple of occasions?

GLEN D NAGER: Justice Stevens, prior to the city council voting on the... the ordinance to approve the project, there was a lot of public debate, and in that public debate, there were city officials who said we... we need to take time to hear the citizens... citizens' concerns.

We need to take time to understand what we're doing, and there were even comments, we should fight this.

We should fight this and delay this.

JUSTICE STEVENS: Supposing one of those comments said we should fight this because we don't want African-Americans to... to move where they're going to move, would that make any difference?

GLEN D NAGER: It... it could make a difference.

JUSTICE STEVENS: Because even... if that had happened, it would still be true, as you pointed out earlier, that every official action taken by the city was favorable to the... your opponents.

GLEN D NAGER: Well, if... if the actions were taken favorably to the opponents, it couldn't make a difference because at that point the alleged statement wouldn't have any connection to an adverse action.

That... that's the important point in this case because in order to have discrimination, either in violation of the Equal Protection Clause, or in violation of the Fair Housing Act, you not only have to have a motive, you have to have adverse differential treatment by the person--

JUSTICE STEVENS: So what... I'm trying to be sure I understand.

I... I think I understand your position.

Is... your position is that even if this ambiguous evidence was... clearly showed racial hostility and that's why we're trying to delay it, there still would be no cause of action because everything the city did was in favor of... officially was in favor of--

GLEN D NAGER: --That... that's correct.

JUSTICE STEVENS: --So that really, we don't have to try and draw... to decide whether or not inferences of improper motive can be drawn from those statements.

GLEN D NAGER: That's correct because in this case, all of the city's actions either favored the project or non-discretionary actions.

JUSTICE SOUTER: Now, what if the city had taken the same official action that it took in this case, and every official action either favored or was at least neutral, and yet the city officials went out and... and whipped up, in effect, anti-black sentiment and... and urged the filing of the application for the referendum, would the answer... would the... would the result be the same, that... that there would be no way that the city could be held liable?

GLEN D NAGER: The short answer to that question is the answer would be the same.

Of course, if the referendum were enacted, it went to a vote and it were put into effect and it was racially motivated, that action would be subject to challenge because that would be, in fact, an action of the city because they would have adopted, under your hypothetical facts, an ordinance that could allegedly have a discriminatory intent.

JUSTICE SOUTER: But isn't the... isn't the delay simply a... even the delay in... in an instance in which the ordinance is defeated simply a lesser degree of damage, but which would, nonetheless, be... be subject to a claim?

GLEN D NAGER: And the answer to that is no.

And the answer to that is no because the delay that happened here is the delay that would happen with regard to any referendum that was subject to a referendum petition.

And the record here is quite clear--

JUSTICE SOUTER: Well, it... there's... there's no question that it... it would, but is... is the... is either the... the statute in question here or the Equal Protection Clause blind to an obvious reason for the delay?

In other words, I... I quite agree.

We start with the assumption that mere delay in governmental processes does not give rise to a cause of action, but when the delay is induced by city officials for a racially discriminatory reason, aren't we then in a different case?

GLEN D NAGER: --Well, it's a different case, but it's not different outcome here, and the--

JUSTICE SOUTER: Why shouldn't it be a different outcome?

GLEN D NAGER: --Well, because under Monell and its progeny, as well as this Court's State action cases, the municipality can be held liable only in damages only if the city... an official with the authority to authorize it has authorized the discriminatory action that you're talking about.

In this specific instance, the... every official action favored the project, and the delay that you're talking about was authorized by a city charter created 30 years before the fact.

JUSTICE SOUTER: Well, the mechanism... the mechanism is provided by the city charter.

I guess what I'm getting at is that if city officials... let's just say the mayor, for the sake of argument, or the mayor and the city council... in effect, do not establish a policy in the sense that they say, we want to stop black housing projects, but they follow a policy of trying to make it difficult for those housing projects to be approved, and one way they do that is by spurring the... the request for referendums.

Assuming we're going to apply the Monell rule here, isn't that a policy position of the city even within the meaning of Monell?

GLEN D NAGER: No, because they wouldn't have the authority to do that.

There's a difference between six city council members voting at a city council meeting as to what the actions of the city are, and six city council members going out on their own in their private capacities and expressing their views as citizens, and... and trying to get other citizens to agree with them as to their private views.

JUSTICE GINSBURG: But not--

CHIEF JUSTICE REHNQUIST: --Well, supposing, Mr. Nager, that you have, say, a... say, a seven-member city council and it's confronted with a project like this.

And one of the seven members of the city council says that, you know, he's opposed to this because he doesn't want African-Americans moving into this area.

The other six members of the city council simply treat the thing on the merits.

Does the action of this one individual taint the whole action of the city?

GLEN D NAGER: Well, it shouldn't.

Under Arlington Heights and this Court's cases, the city could be held liable only if those authorized, in this instance a majority of the city council, had the... the discriminatory--

JUSTICE SCALIA: What if the vote was four to three?

GLEN D NAGER: --Four... if it was four to three in favor of the housing project--

JUSTICE SCALIA: No.

Against the housing project.

GLEN D NAGER: --If... if they had discretionary power, and four of them exercised their discretionary power against the housing project on the basis of racially discriminatory--

JUSTICE SCALIA: Well, only one had the racially discriminatory motive, one of the four.

GLEN D NAGER: --Well--

JUSTICE SCALIA: The other three did it on the merits.

GLEN D NAGER: --I think there, there would be a good argument that they would still... that... that the plaintiffs would have... would have satisfied their burden of showing but for the racially discriminatory motive, that the housing project would have been approved.

So in... in that hypothetical, which is not the facts of this case, of course, they... they would have had sufficient evidence to state a claim.

JUSTICE GINSBURG: And your difference in the two cases is, one, you have an official action taken.

We deny the project.

Here you don't have that.

But suppose there had been, to take the clearest case, a tape of a meeting.

The mayor, the legal director, the head of the city council, they all got together and say, we want to kill this project and we know that the most effective way to do that is through this referendum because the people won't like it and they'll vote against it.

So they have a deliberate plan to string the thing out and then, as the last act, instigate a referendum.

And as I take it, your argument... you would... you're saying even if you have that scenario, there would still be no municipal liability.

Am I correct?

GLEN D NAGER: That's correct, Justice Ginsburg.

It's obviously our hardest hypothetical, but it's also the same answer.

And it... and one of the reasons it's the same answer is because, remember, under your hypothetical, the notion is that if these city officials, not acting in their... exercising their official powers, but acting in the role any citizen can, can go out and organize the citizens of the community acting in their private capacities to get a referendum on the ballot and vote against it.

Of course, that's what democracy is about.

It's about politicians taking on causes on behalf of people--

JUSTICE STEVENS: Mr. Nager, I think... I understand your argument as it applies to the city, but am I correct that the mayor is an individual defendant in this case?

GLEN D NAGER: --He was.

He was granted summary judgment by the district court on the ground that there was no evidence that he in his individual capacity had committed any of the acts that were alleged against him, and that he had not organized the campaign--

JUSTICE STEVENS: But... but wasn't that reversed by the Sixth Circuit?

GLEN D NAGER: --No, it wasn't.

That issue was not taken up to the Sixth Circuit.

JUSTICE STEVENS: Why is he a petitioner then?

GLEN D NAGER: He's only here in his official capacity.

He was sued in both his individual capacity and in his official capacity.

JUSTICE STEVENS: I see.

So there's no individual liability at stake here at all.

GLEN D NAGER: No, not... not--

JUSTICE BREYER: Is... is the--

JUSTICE O'CONNOR: --I'd like to ask a question, which is these have been very interesting hypotheticals, but are you going to have time to talk about the questions that we granted cert on?

GLEN D NAGER: --Well--

JUSTICE O'CONNOR: And I'm interested... what we have in front of us now at this point as issues.

GLEN D NAGER: --The issue that you have before us is the Sixth Circuit's judgment is... is... because under the Sixth Circuit's view there was allegedly evidence of racial bias among the citizens that the municipality could be... somehow be held liable for that.

And that's wrong for two reasons.

One, it's wrong because the municipality itself has to have the discriminatory animus, and there's no... not only no evidence of that here, it couldn't have been the case since they... of course, all of their actions were voting in favor of it, or treating the action neutrally.

Secondly--

JUSTICE SCALIA: Arguably the discriminatory animus on the part of the citizens could invalidate the referendum.

GLEN D NAGER: --If it was voted on and put into effect, the alleged animus--

JUSTICE SCALIA: No.

Even... even if it wasn't put into effect.

It... if there were that animus, it... it could... by our past cases anyway, if it could be shown, it would... it would invalidate the referendum.

But your point is that whether the referendum was valid or invalid, the municipality would have had to stay the project.

It wasn't up to the municipality to make the judgment.

GLEN D NAGER: --That... that is correct, Justice Scalia.

I... I do want to make clear that under this Court's cases, the Court has never said that... that the First Amendment activity of a petition itself is subject to an equal protection challenge.

What the Court's cases say is if there is a vote, either on a bill by elected representatives, or on a petition by citizens, that the end product of that, which becomes a law, can be challenged, and that private animus in that... is contextual evidence for whether or not the people who voted on that final product were themselves motivated by discriminatory animus.

CHIEF JUSTICE REHNQUIST: You're... you're talking about people who vote in a referendum?

GLEN D NAGER: Well, the... the question is if there's a final product, was the... the final law, was that racially motivated--

CHIEF JUSTICE REHNQUIST: But we... we've never said... we've never tried to examine the motives of... of the citizenry who vote in a referendum on that sort of question, have we?

GLEN D NAGER: --No, you haven't, Mr. Chief Justice.

What the Court has said is, is that intent of the law is the key test, and what the Court has said in Arlington Heights is because you can't look directly at the motives of the people who voted on it, whether they be legislators protected by the Speech and Debate Clause or citizens protected by the... the secrecy of the ballot in this country, they look at other indicia to determine their intent.

CHIEF JUSTICE REHNQUIST: But Arlington Heights was a city council, or--

GLEN D NAGER: That's correct.

CHIEF JUSTICE REHNQUIST: --was it not?

GLEN D NAGER: That's correct.

JUSTICE BREYER: What... what is--

JUSTICE O'CONNOR: --And here the referendum failed.

GLEN D NAGER: That... well, the... we don't know the outcome because the respondents asked for the final vote not to be certified.

But what is important here, I think, to address the issue in this case, Justice O'Connor, is that the... the position of the Sixth Circuit here is that the municipality is somehow supposed to inquire behind a facially neutral referendum petition and determine the intent and motives of people engaged in the First Amendment.

JUSTICE O'CONNOR: Did... did the city have discretion here to go ahead and issue building permits while the referendum process was pending?

GLEN D NAGER: No, it didn't.

Once the referendum petition was filed, under the city charter, the... at that point, all the city council could do is repeal its own ordinance or submit the ordinance to a vote of the voters.

JUSTICE BREYER: So what is the claim in your opinion that we are reviewing?

I mean, I want it to be specific.

The Sixth Circuit, insofar as its... insofar as we're concerned, we're interested in what the lower courts held.

GLEN D NAGER: Correct.

JUSTICE BREYER: What, in your opinion, is the claim that they're reviewing?

Is the claim that these three individuals, the mayor, the clerk, and an engineer, acting in their official capacities, violated the Fourteenth Amendment or other parts of the Constitution when they refused to issue the permit despite the petition and despite the provision?

Is that the claim?

Or is the claim they did something else as well?

They stirred up the petition people, or they did some other thing.

GLEN D NAGER: Well, the... the Sixth Circuit said it was the former.

JUSTICE BREYER: Only the first.

GLEN D NAGER: Correct.

Respondents in their brief have abandoned what the Sixth Circuit held and which we petitioned and the Court granted cert to review to argue a completely different theory.

JUSTICE STEVENS: May I ask you, Mr. Nager, is the complaint in the record?

I couldn't find it.

In the... in the papers here?

GLEN D NAGER: I don't believe that it is.

No, I don't believe... I mean, it's... it's obviously in the record of the case.

It wasn't reprinted in the... in the joint appendix.

Unless the Court has further questions, I'll reserve the remainder of--

JUSTICE O'CONNOR: Well, I... I do.

Weren't... weren't there some other questions here, like didn't we grant cert on three questions--

GLEN D NAGER: --Well, you did--

JUSTICE O'CONNOR: --Have they given up on the second one?

GLEN D NAGER: --Well, they've abandoned their claim that they litigated and prevailed on in the Sixth Circuit, that they could proceed on the disparate impact theory.

JUSTICE O'CONNOR: And the last is a due process?

GLEN D NAGER: A... a substantive due process claim.

JUSTICE O'CONNOR: Substantive due process?

Yes.

GLEN D NAGER: And the Sixth Circuit held that there was a triable question of fact as to whether or not the city had acted rationally in proceeding forward with its referendum petition.

And we would say that the simple answer to that was at that time, the city charter required the city officials to do so and that judgment was adopted by three courts until the Ohio Supreme Court several years later reversed itself on what the meaning of the Ohio constitution was.

But the subsequent reversal of this highest court's evaluation of what the law was can't change the rationality of the acts at the time that they were taken.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Nager.

Mr. Salmons, we'll hear from you.

ORAL ARGUMENT OF DAVID B. SALMONS ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, IN SUPPORT OF PETITIONERS

DAVID B SALMONS: Mr. Chief Justice, and may it please the Court.

Respondents challenge only the delay caused by the city charter's neutral, longstanding provisions facilitating the orderly processing of citizen-initiated referenda to review ordinances passed by the city council.

Such a challenge requires courts to balance the vital First Amendment rights implicated in the referendum process with the equally valid goals of equal protection and fair housing.

In this case, that balance is clear.

The city's actions in giving effect to the properly filed referendum petition cannot give rise to liability under the Fair Housing Act or the Equal Protection Clause.

It is undisputed that the referendum petition was facially neutral and that numerous reasonable, non-racial grounds supported it.

It is also undisputed that the city's process for handling such petitions was longstanding and race-neutral.

Under any conceivable standard, respondents have failed to provide any evidence that the referendum process was tainted with discriminatory motive either on the part of the city officials or the petition organizers.

JUSTICE BREYER: Suppose it was.

I mean, I don't understand your brief from this point of view.

You were talking about an antitrust analogy.

I mean, imagine a plaintiff in an antitrust case deliberately, to ruin his competitor... and no one doubts it... files a case in the court.

Now, no matter how evil that person was, I can't imagine or I haven't heard to date under the antitrust law or any other law somebody who would sue the clerk of the court because he docketed the... he docketed the... the claim... he docketed the complaint.

And according to what you've said, that's what's at issue here, that they're... they're simply carry... now, I... I need some explanation.

I'm bringing it up because I'm quite honestly confused about that part--

DAVID B SALMONS: Yes... yes, Your Honor.

Yes, Your Honor.

To be sure, the analogy to the Noerr-Pennington line of cases is not perfect in this case, but it... it--

JUSTICE BREYER: --I... I bring it up because I'm confused as to how in your mind you see this thing working.

I... I mean, I suppose if a city has a totally evil, horrible petition for a... for a... for a referendum, a person still could make it and the person who's in charge of carrying out the... the non... the ministerial duties himself would not be sued even if that person himself was evil.

So... so what is the... what... what... how does this all work in your mind?

DAVID B SALMONS: --Yes, Your Honor.

The... the approach that we recommend in our brief, Your Honor, is that the Court undertake the question as to whether the petitioning at issue was genuine or whether it was a sham.

That's the same type of analysis the Court has undertaken--

JUSTICE BREYER: Assume it's a sham.

It... they're evil.

They're horrible.

DAVID B SALMONS: --Yes.

JUSTICE BREYER: They're terrible.

I would think even an evil, horrible, terrible person has the right to go to the legislature and petition and that the clerks who are to file that petition are themselves clerks, and they're to do it even if they're evil themselves.

DAVID B SALMONS: That is correct, Your Honor.

I think there are two ways in which the city could potentially be held liable.

I think this is not a case where the Court has to decide whether the city could ever be held liable based on the discriminatory motives of the referendum petitioners because it's clear in this case that the petitioning was genuine and this isn't a sham.

CHIEF JUSTICE REHNQUIST: But what... what--

DAVID B SALMONS: But in the situation where you do have a sham--

CHIEF JUSTICE REHNQUIST: --What... what do you mean by saying the petition was genuine as opposed to a sham in these... in this context?

DAVID B SALMONS: --I... I think genuine here means the same it means in... in the other contexts in which the Court has used the sham doctrine, namely that it was about the First Amendment activity.

The... the process that... that the city here--

JUSTICE O'CONNOR: I just... this is such a strange argument.

Why wouldn't we wait and see if some action was taken by means of a referendum, passed and became law?

Then wouldn't we be able to say that constitutes State action at that point and you would subject it, conceivably, to an equal protection analysis if the issue is raised, and apply rational basis or whatever it is?

I don't understand why you ever get to this sham action and Noerr-Pennington.

DAVID B SALMONS: --Certainly, Your Honor, it... in the event that you have a referendum that's actually enacted into law, the Court would examine it in the way that... that you have articulated.

We thought it was important to point out to the Court that this process by which a city ordinance is, if you will, stayed pending resolution of the referendum vote is a traditional and important part of the process for referendums, but it is also a process that can give rise to abuse if you have a petition that is a sham.

It's not about the First Amendment process at all.

It's simply--

CHIEF JUSTICE REHNQUIST: I don't--

DAVID B SALMONS: --taking advantage of the delay.

CHIEF JUSTICE REHNQUIST: --I don't know what you mean by abuse in a situation like this.

I mean, presumably anybody has a right to petition, and you know, the fact that maybe they won't get the necessary votes surely doesn't make it a sham.

DAVID B SALMONS: That... that is certainly true, Your Honor.

But... but I think there are... to... to get back to the original question, what I'm trying to--

JUSTICE BREYER: The reason I'm worried, in about 2 minutes from now I'm going to hear the other side get up, and they're going to say this is a sham.

Okay?

I suspect.

Now, that's why I want to understand the relevance of this.

And I... I come into this thinking if it's the Nazis, the... the most terrible racists that steal, the most terrible people in the world, if they're Americans, they can come in and they can vote and they can go to their legislature and they can put anything they want on the ballot.

And the... the people who are mechanically in charge of seeing that those things are voted on, that's their job, they should do it, and if those are evil and terrible and contrary to the Constitution, the courts will strike them down when they get passed.

Now, what's... now, you explain how your thing fits into that.

DAVID B SALMONS: --Yes, Your Honor.

First of all, let me just say that there's... there would be... need to be both an objective and a subjective component to the sham standard as there is in other contexts.

But to try and address the question that you originally posed, it does seem to us that there are at least two ways in which the city can be held liable in the event that you have sham petitioning.

One would be that if the city officials themselves were part of the sham, and the other would be--

CHIEF JUSTICE REHNQUIST: Well, wait a... what is--

JUSTICE SCALIA: --We're trying to find out what is a sham.

That's... that's our basic problem.

I don't understand what is a sham.

In the antitrust context--

CHIEF JUSTICE REHNQUIST: --You... you haven't told us.

JUSTICE SCALIA: In the antitrust context, I understand it because... because there is the law, and... and you come up with a phony... a phony law, you know, you can say it's a sham.

But there's no law about referendums.

You could have a referendum on anything you like.

How can you have a wrong referendum--

DAVID B SALMONS: --Well, Your Honor--

JUSTICE SCALIA: --and thus a sham referendum?

It doesn't make any sense to me.

DAVID B SALMONS: --Your Honor, this Court's sham analysis has to do with whether or not it's actually about the First Amendment activity or it's just about an effort, in this case, to take advantage of the delay to interfere with someone's housing rights.

We think that same analysis can apply here by inquiring as to whether, first of all, the... the referendum petition is objectively baseless.

Is there any way that that petition could have... be enacted into law and enforced?

If, for example, you had a petition that said no minorities shall live in the City of Cuyahoga Falls, clearly that's a referendum that could never go into effect and never be enforced, and therefore, it may be strong evidence that the process here is not about changing a law of the city--

JUSTICE BREYER: So the clerk in that case... the clerk of the court who says I'm putting this on the ballot... he's violated the law in putting it on the ballot?

Of course, if it's passed, it's totally unconstitutional.

But you're saying that the clerks shouldn't even put that on the ballot?

I mean, that would be quite a novel proposition to me.

DAVID B SALMONS: --Your Honor, I... I'm not necessarily saying that the clerk shouldn't put that on the ballot, but that would be one part of the analysis in determining whether or not the process was being abused and it was just a sham.

JUSTICE STEVENS: Well, isn't... wouldn't it be a sham... let me just put this on the table.

As I understand it, the Ohio Supreme Court said that this was not a legal referendum when it got all through with things.

And if everybody had known before the... the case started that it was an illegal referendum, that would have been a sham, wouldn't it?

DAVID B SALMONS: I... I think that very well may be strong evidence that it was a sham.

This was about an attempt to abuse the process.

It wasn't about any protected First Amendment activity.

And... and in that situation I think there is, in... in addition to the possibility, although I think perhaps unlikely that you can hold the city vicariously liable based on the motives of the citizens, I think that is a difficult question as to whether the actions of... of the referendum... the petition signers, the 10 percent who signed the petition and file it, whether that action is the official action of the city with regard to the petition just as the action of the voters at the referendum vote is an action of the city for which the city can held liable.

This Court need not address that in this case.

JUSTICE STEVENS: May I ask your view on the hypothetical I asked to the other lawyer?

Supposing it was perfectly clear that the mayor and everybody else in this used the referendum as a method of delaying a granting of the permit and that they did so for racially motivated reasons, would there be any... any liability on anybody?

DAVID B SALMONS: Potentially, Your Honor.

I think, again, the... the way in which the analysis would work is the Court would need to inquire as to whether the petitioning was genuine in the sense that there was a genuine effort to try and change the city's ordinance.

And if so, then the First Amendment would provide immunity.

JUSTICE STEVENS: Well, there was, but they... they figured it was going to lose in the long run, but nevertheless, let's assume they wanted to delay things for 60, 90 days, whatever it might be, because they wanted to delay it on... on, you know, this... this project.

DAVID B SALMONS: Yes, Your Honor.

JUSTICE STEVENS: If it... if it were clear because this case is on summary judgment, so really don't know what the facts are--

DAVID B SALMONS: Well, but--

JUSTICE STEVENS: --but if there were clear evidence that the mayor and everybody else act up in a racially motivated reason, would there be liability in that situation?

DAVID B SALMONS: --I... I think you'd need to examine both the motives in... in your hypothetical not only of the city officials, but also of... of the petition signers.

JUSTICE STEVENS: Everybody.

Everybody.

JUSTICE SCALIA: Are you talking about personal liability or official liability?

DAVID B SALMONS: I'm talking about the liability of the city, Your Honor.

JUSTICE SCALIA: --Okay.

So you're talking about liability--

JUSTICE STEVENS: --I'm assuming everybody who opposed the project was racially motivated and that could be demonstrated with tape recorder.

DAVID B SALMONS: I guess the short answer, Your Honor, is that even people with racial motives have the right to petition their government to change the law.

And... but if they... what no one has the right to do is abuse the process in order to interfere with someone's fair housing and equal protection rights.

JUSTICE STEVENS: So... so your answer would be no liability in that case.

DAVID B SALMONS: If it was genuine petitioning, that is correct.

Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Salmons.

Mr. Kramer, we'll hear from you.

ORAL ARGUMENT OF EDWARD G. KRAMER ON BEHALF OF THE RESPONDENTS

Mr. Kramer, opposing counsel says that you have, in effect, abandoned the second question presented, the disparate impact question.

Is that correct or is it not correct?

EDWARD G KRAMER: It's correct, Mr. Chief Justice.

We... we have waived that claim that had been certified by... by this Court.

Mr. Chief Justice, may it please the Court.

The city and the Solicitor General has tried to complicate what really is a very simple case.

What is the injury that the plaintiff is complaining about?

The plaintiffs have been denied unlawfully their site plan and its benefits, including a building permit.

City conduct.

Nothing to do with referendums.

Nothing to do with First Amendment rights.

The issues of liability in this case, which the Sixth Circuit took up, was did the city and its officers act out of discriminatory motive by delaying this housing project and refusing to give effect to the site plan ordinance to appease racial and anti-family prejudices in violation of the Equal Protection Clause--

JUSTICE SCALIA: How could they do that if they had no choice?

I mean, if the law told them you have to stop the project once the referendum is filed, even if in... in their heart and... heart of hearts they were delighted for racial reasons that this was the case, nonetheless they had no choice.

EDWARD G KRAMER: --We believe that they did have a choice and we cite cases to the Court from the Ohio Supreme Court on page 25 of our brief that indicates that the petitions did not have to be certified by the... the court... by the city.

CHIEF JUSTICE REHNQUIST: But didn't the lower... the lower courts didn't adopt that proposition, did they?

EDWARD G KRAMER: The lower courts weren't asked that question, Your Honor, because we're really talking about whether or not they... there was an official conduct by the city.

CHIEF JUSTICE REHNQUIST: So didn't they go on the basis that the... that the city officials' action was mandatory?

The lower courts.

EDWARD G KRAMER: As I said, I don't really believe the Sixth Circuit approached the... the case from... from that particular issue.

CHIEF JUSTICE REHNQUIST: So it didn't--

EDWARD G KRAMER: There was discretion, we believe, and we certainly provided evidence.

And again, as... as was indicated by the Court to the Solicitor General, this is on summary judgment.

For example, in the record, there is an affidavit from the law director for the Village of Orange that we filed with our brief in opposing summary judgment that indicated that there was discretion not to certify the referendum.

CHIEF JUSTICE REHNQUIST: --Well, but that... that's a question of Ohio law, I take it?

EDWARD G KRAMER: That's correct.

CHIEF JUSTICE REHNQUIST: And the way you sought to prove it was to get an affidavit from the law director of some suburb of Cleveland?

EDWARD G KRAMER: As one element of proof, we indicated that that showed that there was discretion.

But the Ohio case law indicates there are instances where, if the subject was inappropriate... and let's remember the Ohio Supreme Court ruled that this was not an appropriate subject for a referendum.

JUSTICE BREYER: Would it be--

CHIEF JUSTICE REHNQUIST: --But it rules that way many years... many years after this case was... went to litigation, did it not?

EDWARD G KRAMER: Yes, Your Honor.

JUSTICE GINSBURG: And it had nothing to do with whether it was racist, sexist.

It... it had to do with was it administrative or legislative.

EDWARD G KRAMER: That's correct, and it also only had--

JUSTICE GINSBURG: Do you have... do you have any... do you have any authority to say that there is discretion to reject a petition that is properly legislative?

EDWARD G KRAMER: --Well, the... yes, Justice Ginsburg.

JUSTICE GINSBURG: Suppose... suppose you had a legislative proposal that members of a certain race will never be included in any kind of an equal opportunity law.

Suppose you had... that was the referendum.

Is there any authority that says that under Ohio law, that couldn't be put on the ballot?

EDWARD G KRAMER: I don't know of Ohio law, but certainly this Court's decision in Hunter versus Erickson dealing with an Ohio referendum indicates that that type of referendum is unconstitutional.

CHIEF JUSTICE REHNQUIST: Well now, I don't believe that's a correct statement of the holding in Hunter.

I thought in Hunter, this Court said that a municipality cannot make racial laws subject to referendum and no other laws, which is quite a different proposition from what you suggest.

EDWARD G KRAMER: Well, with... Mr. Chief Justice, we are talking about the... this Court's jurisprudence that deals with the... simply because it's a referendum, if the legislature could not do this, pass a law that says, for example, that African-Americans cannot own property, like in Buchanan versus Warley--

JUSTICE SCALIA: If a legislature could do that, would... would we enjoin a legislature from passing an unconstitutional law?

EDWARD G KRAMER: --And... no.

JUSTICE SCALIA: The Federal... the Federal Congress passes unconstitutional laws all the time.

Unidentified Justice: [Laughter]

JUSTICE SCALIA: We've... we've never been asked to enjoin them.

Unidentified Justice: [Laughter]

EDWARD G KRAMER: And... you're correct, Justice Scalia.

And we have not asked for that.

JUSTICE SCALIA: So there's a difference between whether the product is unconstitutional and whether the doing of it is unconstitutional.

And the doing of an unconstitutional referendum, as far as I know, is not unconstitutional.

You are entitled to pass an unconstitutional referendum.

We will ignore it, however.

EDWARD G KRAMER: And it may subject, if there is direct injury, damages to my client, and that is all we have before this case.

JUSTICE BREYER: What... but wait.

The... the project is built.

Right?

EDWARD G KRAMER: That's correct.

JUSTICE BREYER: So... so you've got your project.

And now what you're saying is that they violated the Constitution in not giving you the permit quicker.

And they... am I right?

EDWARD G KRAMER: That's correct.

JUSTICE BREYER: All right.

And they come back and they say, how could we give it to you quicker?

There were petitioners who they... a petition and the law prevents us from giving it to you quicker because once a petition's on the ballot, the law says we can't give it to you.

Now, what's your response to that?

EDWARD G KRAMER: The response is that it was the city's actions... we believe the evidence that we've proffered to... in the summary judgment shows that they took this action as a public-private partnership.

The mayor, city councilpeople looked for... as they... one city councilman said, any legal shred to be able to reject this development.

JUSTICE BREYER: No.

But explain to me a little bit better what... their response is the reason we didn't give you the permit faster is because here's the provision of the law.

It says once a petition for referendum is filed, and it says whether it's legal or illegal, we have to delay this.

Now, your response to that is... they say, what should we have done that we didn't do once that petition was filed.

And your response is?

EDWARD G KRAMER: What should be done in a case like this is that there is an injury to my client.

The injury, whether it was discretionary or non-discretionary, is... is not the... the question.

What was the purpose behind denying the building permit?

And under Arlington Heights, this Court has indicated one of the things that a court can look at as competent evidence is did the city officials take action to appease racial bias.

Even if it was a nondiscretionary act, if the effect of that was to permit private bias, they've committed a violation.

JUSTICE SCALIA: That's quite a proposition.

If... if I have a... you know, I'm... I'm a racist and it really makes me happy that this act, which I'm compelled to do by law, hurts someone of a certain race, that renders that act invalid even though I'm compelled to do it by law?

I don't think so.

EDWARD G KRAMER: What we're saying is that it may not be invalid, but it may cause liability.

It can be a legal act--

JUSTICE BREYER: All right.

So what I'm hearing you saying... what I'm hearing you saying in response to my question is, I'm the mayor and the other, and I say, what do you want me to do?

The statute said, don't give you the permit because the petition has been filed.

What could I have done?

And your answer to that basically seems to be, nothing.

You couldn't have done anything.

We agree.

But the petition itself was an evil petition.

JUSTICE SCALIA: Right.

JUSTICE BREYER: I mean evil being quotes for what we all know is going on.

All right?

So it's an evil petition.

And therefore, when you face this evil petition, even though you couldn't do anything about it, you have to pay damages because the reason we were delayed was because of that process.

Now, is that basically your argument?

EDWARD G KRAMER: --Yes, Justice Breyer.

We're... we're saying that even if it was a legal thing to do, if the act of it was because of racial or anti-family bias, that would be a violation of the--

JUSTICE BREYER: And now, the reason that that bothers me, of course, is because I can think of a whole range of evil legislative acts, and I can think of quasi-acts that I'm not sure about, and then I can think of a lot of ones I like.

All right.

So... so... but I'm worried.

In the first category and the second category, once we got into the business of paying damages, because it turns out that they are evil, that would, in fact, chill the legislative process, which is a democratic process.

And I think that's the argument they're trying to make.

So I'd like to get your response to that.

EDWARD G KRAMER: --What I would say, Justice Breyer, is that the fact that there was an evil motive behind any of these acts... and by the way, the referendum is only the culmination of the acts.

There was a series of discretionary acts.

For example, the strategy of the city was to do two things.

One was to delay this project because they knew that there was a... a very finite period of time for our little non-profit tax-exempt developer to build this project or lose their financing.

So they knew the longer they could delay, the more likely the project would die.

And second of all, they wanted to make the project more costly.

So, for example, they required, before we even talked about a referendum, a barrier wall to be built before even a building permit that could be issued, a 6-foot earthen wall with a 5-foot fence between two conforming multi-family projects.

JUSTICE GINSBURG: Your client agreed to that.

Your client didn't make any objection to that.

EDWARD G KRAMER: My client was willing to do that because he was told by the city it would smooth the process over.

He certainly did not waive his rights.

And in the depositions, the planning commissioner, Louis Sharpe, specifically testified the reason he was demanding that was because our project was going to have a large number of children.

Now, under the Federal Fair Housing Act, as amended in 1988, such an act may well violate the protection against... against children.

JUSTICE GINSBURG: You said... but... but, nonetheless, he didn't contest it.

Then you say the whole object was delay.

And as I see this thing unfold, the big delay is during the pendency of the referendum because it was at the end of February when the planning commission got this.

They had conditions on it, but it acted on the very same day.

The ordinance was approved on April 1st.

As things go in the zoning area, from February 21st until April 1st is not a very long time, is it?

EDWARD G KRAMER: No, but there was three hearings and there was a great deal of public opposition.

And one of the reasons for the--

JUSTICE GINSBURG: But the delay... as far as... that... that's not... the delay that you're complaining about is from the moment the petition was filed for the referendum until when he finally got the building permits.

EDWARD G KRAMER: --The actual complaint that we are... where we think we were injured was the building permits not being provided to us.

The delay goes to the amount of damages we think our client has suffered.

The official act that we're talking about is the building permits being... not being issued.

And--

JUSTICE GINSBURG: But you couldn't have expected them to be issued the... the day you filed the site plan.

I mean, there has to be a meeting of the planning commission.

There has to be a meeting of the city council.

EDWARD G KRAMER: --That's correct, and we submitted our building permits after the... the approval by the... the city council.

What we're talking about, Your Honor, is that the city's actions in denying that building permit... we're... at this stage of the proceeding, all we're talking about is summary judgment.

Is there sufficient evidence that a trier of fact would find that the... the actual denial was racial prejudice of city officials or appeasement by city officials--

JUSTICE STEVENS: Mr. Kramer, I asked your opponent, but is the... is the complaint in the papers before us, do... do you know?

EDWARD G KRAMER: --Your Honor, the complaint is not in the appendix, but it is in the joint appendix that was filed with the Sixth Circuit.

You'll find that in volume I on page 37 of the record.

But it's... it's the Sixth Circuit joint appendix--

JUSTICE STEVENS: I see.

EDWARD G KRAMER: --which I believe this Court does have.

JUSTICE STEVENS: The thing I was curious about, to tell you the truth, did you include a regulatory takings claim in your complaint?

EDWARD G KRAMER: No, we did not.

JUSTICE STEVENS: You did not.

JUSTICE SOUTER: Mr. Kramer, would you explain to me what exactly you think the relevance of the subsequent referendum was?

For example, do you say the relevance of the subsequent referendum to your claim for delay in issuing the permit simply is the evidence that it furnishes of... of racial bias ultimately on the part of city officials?

Or is... is its relevance that it increased the damages otherwise attributable to the day... delay in the permit?

How exactly should we regard the referendum?

You... you understand the problem that we're all having with... with it.

Precisely how does it figure in your claim?

EDWARD G KRAMER: It's the latter, Justice Souter.

We're saying that the referendum, which was part of an overall scheme by city officials to delay this project so that it would kill it.

And so the injury that we're talking about from... from the referendum deals with the city officials using that as the legal shred to be able to deny the building permits.

And the evidence we believe that we have proffered to the Court through the summary judgment motion is that there was not only citizen bias, which under Arlington Heights, this Court has indicated we certainly can allow... it's competent evidence that can be looked at of whether or not legislators used that bias to be able to take that action.

JUSTICE SOUTER: No.

I... I understand that.

If... if there had been no referendum, no petition had ever been filed for the referendum and none had ever been held, would you still have essentially the same claim, though with a different evidentiary basis?

EDWARD G KRAMER: Absolutely, Justice Souter, because the... what we are complaining about is the denial of the building permit.

That's the injury that--

JUSTICE GINSBURG: But there would have been no denial of the building permit absent the referendum, there--

JUSTICE SCALIA: --You could win without the referendum.

EDWARD G KRAMER: --That's correct.

JUSTICE SCALIA: The referendum's the worst part of your case.

You... you wish there weren't a referendum.

Then they would have had no basis to deny.

EDWARD G KRAMER: To deny in... in this case.

JUSTICE SOUTER: No, but you... I... I thought your claim was that... that you would still have been delayed in being issued the permits and that you would still have had a claim for that.

Am I... am I wrong on that?

EDWARD G KRAMER: I would say that we had some claim for the time between when we submitted the request for the building permits and how long it took them to be able to--

JUSTICE SOUTER: And in... in the absence of the referendum, how long would that have been?

EDWARD G KRAMER: --That would have been a matter... well, we don't know.

Let me say--

JUSTICE GINSBURG: Why don't you know?

Because you... there's a 30-day period.

There's a... the city council acts on April 1st.

That goes into effect in 30 days unless there's an intervening referendum.

So that you would have had by May 1st the building permits.

EDWARD G KRAMER: --We don't know because in the record Mayor Robart sent a letter ordering his building commissioner not to issue a building permits, and that was--

JUSTICE GINSBURG: That was--

EDWARD G KRAMER: --even prior to the referendum--

JUSTICE GINSBURG: --But that was in the 30-day period when they couldn't be issued because it hadn't become effective yet.

The... the instruction was simply what the law was, that the ordinance approved by the city council doesn't become law until 30 days after that approval.

So that the... the mayor, to that extent, was just telling them to do what the law would require.

But in understanding your complaint and how you are tying in the officials to the referendum, are you saying that absent the official prompting, instigation, or whatever you call it, that there would never have been a referendum, that in... in fact that the mayor whipped up the referendum?

EDWARD G KRAMER: --Yes, Justice Ginsburg.

We... we believe we indicated that this was not something that the city responded from... responded to from their citizens, but this was a scheme where city officials, including Mayor Robart with other private citizens, got together and said, how can we deny this project.

JUSTICE SCALIA: But you've lost on that and didn't appeal it.

I mean, he'd be a very bad man for doing that, and you might have a cause of action against him.

But I don't see any official city action involved in that.

Is it official city action for the... for the mayor to stimulate a referendum?

How is that official city action?

EDWARD G KRAMER: And we're not talking about that that's something that caused a damage.

What we're talking about is, is there evidence that we can use to show that the ultimate decision, which was to deny the building permit that caused the injury... is there evidence that the mayor participated in... to appease racial and anti-family bias.

This is really a simple Arlington Heights case.

The--

JUSTICE BREYER: If it--

EDWARD G KRAMER: --the problem--

JUSTICE BREYER: --I just want to finish... But I just wanted, before you finish, if you'd respond to something Justice Stevens said, which is about regulatory takings.

I mean, what is in the back of my mind here, to stimulate an answer, is suppose you weren't Section 8 housing.

Suppose you were building a hotel.

And suppose the referendum wasn't people who might be bigoted... may, perhaps... I don't... but suppose they were environmentalists, and... and suppose the constitutional claim was not--

JUSTICE SCALIA: --People that didn't want rich people to move in the neighborhood.

JUSTICE BREYER: What?

JUSTICE SCALIA: People that didn't want rich people to move into the neighborhood.

Unidentified Justice: [Laughter]

JUSTICE BREYER: Okay, good.

The... the... you see.

And suppose the constitutional claim were a takings claim.

Now, if I uphold for you here, if the Court votes for you here, wouldn't it then have to say that all these environmental cases and so forth... I... I don't want to win your case for you, but I might be in my question.

Unidentified Justice: [Laughter]

JUSTICE BREYER: The... the... you see... see there'd be quite a problem about whether a city wouldn't have to pay damages every time that they make a mistake in their environmental regulation and perhaps try to stop a hotel and they thought they could stop it, but it turns out later they couldn't.

You see... do you see the analogy that's worrying me?

EDWARD G KRAMER: --I understand the analogy.

JUSTICE BREYER: So what do you... what do you... what do you say about that?

EDWARD G KRAMER: The difference, Justice Breyer, is that the... we are asking only for the Court to look at the issue of has the plaintiffs proffered sufficient evidence that racial bias and anti-family bias was involved in the decision to deny the building permit.

The referendum was part of the... an overall scheme by city officials to delay and ultimately kill this project.

If that is the case, then the referendum, which Ohio Supreme Court has ruled was illegal to begin with... even if it was legal, we believe under your jurisprudence if the motivation of the city to use the referendum was unlawful, the violation occurs under the Fourteenth Amendment and the Equal Protection Clause.

With regards to your question about the regulatory taking, we saw this... this case under a due process... substantive due process, procedural due process... examination very similar, I think, to the situation that's actually the exact opposite to the City of Eastlake versus Forest City case, which Justice Stevens is the only participating member that was on that particular case.

JUSTICE STEVENS: Also there were eight other members of the Court that disagreed with me if I remember correctly--

Unidentified Justice: [Laughter]

EDWARD G KRAMER: But we have a new Court, Your Honor.

[Laughter]

And... and we believe--

JUSTICE SCALIA: Now, you're... you're now addressing the third of the questions presented.

It's the first we've heard about the due process claim.

EDWARD G KRAMER: --That's correct.

JUSTICE SCALIA: You haven't abandoned that and--

EDWARD G KRAMER: Absolutely not.

JUSTICE SCALIA: --you're still making the due process claim.

Now, you know, this is substantive due process we're talking here, right?

EDWARD G KRAMER: Well, substantive, or--

JUSTICE SCALIA: You think it's a fundamental right to have a building permit granted within a... within a reasonable period?

EDWARD G KRAMER: --We're not talking--

JUSTICE SCALIA: It's fundamental--

EDWARD G KRAMER: --about a reasonable period.

We're talking about both... we had raised both procedural and substantive due process claims in the lower courts.

What we're saying is the process was so fundamentally flawed that it rises to a... a due process violation.

Whether it's substantive or procedural, we don't believe is... is really the issue here.

We're talking about a process where there was a whole set of procedures set up by the City of Cuyahoga Falls of how to approve this site plan ordinance.

The... the site plan procedures were set forth, permitted for a record to be developed, and there was a... planning commission meetings.

There was the city council meetings.

And if the city council or the planning commission had denied our right to the site plan ordinance and its benefits, we would have had a right under Ohio law to go under the Ohio Administrative Procedure Act and get a court to review that issue.

JUSTICE GINSBURG: --Because there would have been official action.

And that's the problem here, that there... do you... do you call a referendum that's put on the ballot because 10 percent of the electorate had signed petitions... do you call that State action, which is subject to the equal protection surveillance?

I had thought that that's a... that's an initiative of the people and it's not action of the city.

EDWARD G KRAMER: Well, the only reason why the people are able to get a referendum is because the city charter, which is their constitution, permitted that.

CHIEF JUSTICE REHNQUIST: But that permitted it 30 years ago, did it not?

EDWARD G KRAMER: That's right, but in the... the due process area, Your Honor, we're not talking about discriminatory intent.

All we're talking about is looking at whether the procedure set forth is fundamentally flawed and does it... is it arbitrary and capricious and not substantially related to the general welfare as... as this Court has talked about ever since--

JUSTICE O'CONNOR: But there are all kinds of nutty referendum measures that voters put forward.

I... your theory would seem to subject a State or a city or whatever it is to a lawsuit every time there's one of these nutty proposals put forward.

EDWARD G KRAMER: --No.

We're talking about whether you have to have a... a protected property interest and you also have to have a situation where there is a arbitrary and capricious action.

In this case, we have ownership of property, which under the original intention of... of the Framers of the Constitution, ownership of private property and the ability to develop using this property for a lawful purpose is protected by the Due Process Clause.

And when you look at the issue--

JUSTICE STEVENS: But your theory, as I understand it, is that there was... if it was racially motivated, there was just sort of an arbitrary.

There was an absence of a legitimate reason for the delays and the shenanigans and so forth.

But it seemed to me the same argument could... could be made if they were trying to protect the wetlands, and they used the same kind of shenanigans.

EDWARD G KRAMER: --Well, Your Honor, we certainly raised the question about if this was a discriminatory motive, that would mean that there would not be... under general welfare.

JUSTICE STEVENS: There would be no racial basis.

EDWARD G KRAMER: But more importantly, our argument is that there is a per se violation whenever you have an administrative matter which should be taken up through the city council or through the courts or through a... from... from an administrative agency like the planning commission.

And the evidence in the record, as the lower courts point out, is that we met all the requirements for the city to... to get our site plan.

And then, when the city council approved it, when the planning director said we met or exceeded the site plan ordinance, they put it to a referendum and they asked 20,000 voters to approve or disapprove a site plan ordinance, they never saw and the... and whether or not that site plan ordinance conformed to the building and zoning code that they never read.

If that is not--

JUSTICE SOUTER: No.

But what your... what your argument boils down to is to say that there is a recoverable substantive due process violation whenever a property right of yours is interfered with by a misuse of the legislative process, even a temporary one.

Isn't that the... the nub of your claim?

EDWARD G KRAMER: --I would say we... we are asking for a fairly narrow interpretation.

We're saying if it's an administrative matter which should not be subject to the decision of voters because this is not legislative--

JUSTICE SOUTER: But what... from the standpoint of your claim, why does it matter whether it... it was a legislative use countering an administrative action, or whether it was a legislative use with a racial motive?

It is an improper use of a legislative procedure.

And you're saying, as I understand it, whenever that, in fact, is effected, there... and... and you can... you can make a... a colorable claim of... of some economic damage, that you have a substantive due process right to recover.

Isn't that correct?

EDWARD G KRAMER: --Justice Souter, we... that is something that we have raised in our brief, but we have... also have raised a much narrower issue which would be simply looking at a site plan ordinance, should it be subjected to a popularity contest?

There... it's standard-less.

This Court has ruled in--

JUSTICE SCALIA: You never mentioned procedural due process in your brief.

The first mention I heard of it is in your argument here, where you say it doesn't matter whether it's substantive or procedural.

Your brief went entirely to substantive due process.

EDWARD G KRAMER: --Well, the reason that we didn't raise that is the Court didn't certify a question other than to substantive due process.

We believe that it really subsumes that issue when you look at... the procedure itself is so fundamentally flawed.

It is very similar to the... the situation in the City of Eastlake that this Court looked at.

JUSTICE GINSBURG: Would you say... be saying that if the Ohio court had stuck to its original position?

I mean, it was four [/] three both times.

EDWARD G KRAMER: Well, the Ohio court in both cases, Justice Ginsburg, first ruled that it was an administrative matter.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kramer.

EDWARD G KRAMER: Thank you, Chief Justice.

CHIEF JUSTICE REHNQUIST: Mr. Nager, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF GLEN D. NAGER ON BEHALF OF THE PETITIONERS

GLEN D NAGER: Thank you, Mr. Chief Justice.

With respect to the disparate impact claim, I would just like to clarify that we were the petitioners, and the Court did grant certiorari on the issue and there is a judgment of the Sixth Circuit against my clients on that issue.

And while they've abandoned the claim and declined to defend the Sixth Circuit's judgment, we would request the Court vacate that judgment and instruct that the disparate impact claim be dismissed with prejudice.

With... Justice Breyer, with respect to your questions to my opposing counsel, a point we'd like to add to what you had to say is simply that if we had done what they wanted, we would have been subjected to a damages claim.

It would have been a First Amendment claim by the citizens seeking to put something on the ballot by initiating a petition, and it... it can't be that in order to avoid a Fourteenth Amendment damages claim, we have to violate other people's First Amendment rights.

If the Court doesn't have any further questions, we have nothing further.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Nager.

The case is submitted.

(Whereupon, at 12:01 p.m., the case in the above-entitled matter was submitted.)