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HomeMy WebLinkAboutM-79-015613 OANIEL 5. PEARSON ROBERT C. JOSErSBERG MICHAEL TARRE BRUCE S. ROGOw Or COUNSEL fieLe 4777 PEARSON bC •.I0ti1:1 S111:110, 1'. A. ATTORNEYS AT LAW SUITE 733 CITY NATIONAL BAP/K BUILO*NCI 25 WEST FLAGLER STREET MIAMI. I'LUBIDA 3 I,ttl TELEPHONE 377-RIBS March 5, 1979 The Honorable George Knox City Attorney 174 East Flagler Street Miami, Florida 33131 Re: City of Miami v. St. Joe Paper Co. 364 So.2d 439 (Fla. 1978) Dear George: You asked for my views on whether the above case had any potential for review by the Supreme Court of the United States. For the reasons I advance below, my response is that the Supreme Court will not review the Florida Supreme Court decision. While I cannot give a one hundred per cent assurance that I am correct, the odds are overwhelming against review. 1. A Question Exists as to the Available Method of Review A threshold issue is whether this cause can proceed by appeal (28 U.S.C. §1257(2)) or by certiorari (28 U.S.C. §125((3)) The mode of available review is important because certiorari jurisdiction is dis- cretionary and least likely to be successful. Appellate jurisdiction under §1257(2) exists if the validity of a state statute is "drawn in question" on the ground it is "repugnant to the Constitution of the United States and the decision is in favor of its validity." Certiorari jurisdiction under §1257(3) lies when the claim is that application of the statute deprived complainants of federal consti- tutional rights. See Hanson v. Denckla, 357 U.S. 235, 244 (1958); Mergenthaler Linotype Co. v. Davis, 251 U.S. 256, 259. SAX-, �ljo?i.o4' • The Honorable George Knox Page Two March 5, 1979 The City's brief in the Florida Supreme Court took both tacks. See pages 13-24 of Petitioner's Brief on the Merits and pages 14-19 of Petitioner's Reply Brief. The main constitutional argument heading is "As Interpreted by the Courts Below, The Act is Unconstitutional." A subheading is "As Interpreted Below, The Act Deprives a Vested Owner of Property Without Due Process of Law in Violation of the Fourteenth Amendment." However, the Florida Supreme Court's phrasing is very supportive of appellate jurisdic- tion: We now specifically hold that the Marketable Record Title Act is Constitutional. 364 So.2d at 443. Since it is apparent that the holding measured the act against the federal constitution (the City also raised state consti- tutional arguments), I think the question should be resolved in favor of §1257(2) appellate jurisdiction. 2. The Standard for Determining the Exercise of Appellate Jurisdiction The Supreme Court will exercise its jurisdiction under §1257(2) only if the jurisdictional statement presents substantial federal questions. The following remarks of Chief Justice Warren, quoted in Stern and Gressman, Supreme Court Practice, BIJA, Washington D.C. (1978), p. 158 are to the point: "It is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari. As regards appeals from state courts our jurisdiction is limited to those cases which present substantial federal questions. In the absence of what we consider substantiality in the light of prior decisions, the appeal will be dismissed without opportunity for oral argu- ment. The stated purpose of the Jurisdictional Statement, which came into being in 1928, was to weed out frivolous appeals before they got to the argument stage. "Very few appeals from federal district courts are subject to dismissal for want of jurisdiction but many do not present a question sufficiently substantial to warrant the expense i't:ntzsoN, .1oscrsil :ucc 'Fatal:. �'.. . The Honorable George Knox Page Three March 5, 1979 of printing the record and briefs, and the expenditure of the time of counsel and the Court in oral argument. In such cases, the judgment will be affirmed." The paucity of appeals from state courts receiving plenary review is supported by statistical data. In the 1975 term, only 4 of 123 such cases were argued. In 1976, the number improved to 15 of 90. Stern and Gressman, at p. 336, n.1O9. In the 1977 term (the most recently completed term) there were 157 appeals from state courts, but the Supreme Court does not have easily obtainable data on how many made it through the summary disposition stage. I think it is safe to say that only about one in ten survived, given past history and the intense pressure on the court's docket. Justice Douglas arrived at a similar conclusion in his article The Supreme Court an its Case Load, 45 Corn. L.Q. 401, 410 (1960) and there is no reason to think that state appeals fare any better today. A.hand count of the action taken by the Supreme Court at the beginning of this term when a large number of cases were resolved shows 48 appeals being disposed of for "want of a substantial federal ques- tion" and four cases in which probable jurisdiction was noted. 47 L.W. 3219-3221. Those figures confirm my theory. Three of the four accepted cases were state appeals. The test of substantiality becomes clearer when those cases are examined. One is a Fourteenth Amendment challenge to a Georgia statute which permits a mother to recover for an illegitimate child's wrongful death, but precludes the father from doing so. Parham vs. Hughes, No. 78-3, 47 L.W. 3095. Another case involves a challenge to a Puerto Rico statute permitting warrantless searches. Torres vs. Puerto Rico, No. 77-1609, 47 L.W. 3050. The third case is a criminal appeal challenging a conviction of a minnow dealer on the ground that the statute under which he is convicted vio- lated the Commerce Clause of the United States Constitution. huh hes vs. Oklahoma, No. 77-1439, 47 L.W. 3060. While the rights of a minnow dealer may appear unimportant, the Commerce Clause is a potent weapon reflecting an important national governmental interest, thus the case has substantial appeal to the Court. PI ARSON..Jotii:rsIH Rc, .S TARI . 1'. A. The Honorable George Knox Page Four March 5, 1979 3. The Question Presented in The St. Joe Case is Not Substantial Four justices must vote to note probable jurisdiction in order to avoid summary disposition, and the court will de- cide based on considerations similar to those applicable in granting or denying certiorari. Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959). The most persuasive reasons o convincing the court to invoke its jurisdiction are: (1) conflict between decisions of courts on the subject matter of the litigation; (2) the presence of issues important to the general public; (3) the presence of important federal constitutional issues which should be decided by the Supreme Court. See Rule 19, Supreme Court Rules. Rule 16, which applies to appeals, is not so specific, but most commentators are in agreement that the Rule 19 certiorari standards are influential in determining sub- stantiality. My examination of the briefs and opinions in this case lead me to conclude that the considerations I have set forth above are not present. The cases cited for the City's due process arguments stand for fundamental due process notions. Mullane v. Central Hanover Bank and Trust, 335 U.S. 306 (1950) (p. 18, Petitioner's Brief on the Merits), is the only United States Supreme Court case relied upon in the six pages of due process argument intially advanced in the brief. Some other cases are re- ferred to later, but they seem only incidental to the argument. The impairment of contract argument is similar. If Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) is the most powerful authority to be advanced in this case (p.24), it certainly does not present conflict or new and important federal constitutional issues demanding resolution. Another more practical and impressionistic assessment is based upon the fact that the Supreme Court has recently reiterated Justice Black's admonition that the Fourteenth Amendment does not permit the judiciary "to sit as a 'superlegislature to weigh the wisdom of legislation.' ". Exxon Corp. v. Governor of Maryland, U.S. , 47 L.Ed. 2d 91, 99 (1978) citing Ferguson v. Skrupa, 377—U.S. 726, 731 (1963). That notion PI:Ausc)N..Jo' i;i .ti,aic: 4S TAU lit:. PP., A. The Honorable George Knox Page Five March 5, 1979 was also implemented in another economic regulation case, Friedman v. Rogers, U.S. , 47 L.W. 4151 (February 21, 1979) where the court, in an equal protection context, voiced its deference to state legislative determinations unless fundamental personal rights are violated or suspect classi- fications (race or religion) are implicated. I believe that the recent pronouncements make the chances of successfully seeking Supreme Court review more remote than ever in this case. Here the legislature has acted, the State Supreme Court has unanimously upheld the validity of the statute and the decision generates no real conflict or important issues affecting the general public. While it might be desirable for the City to be able to reassert its interest in the subject property, I do not believe the Supreme Court of the United States will deign that reason sufficient to invoke its appellate jurisdiction. As I said at the outset, I cannot give you a one hundred per cent assurance that the case will be summarily dismissed. But since any of these cases begin with only a ten per cent statistical chance of success, I feel that I can advise you that the odds are ninety nine to one against success. BSR/ea Very best wishes, Bruce S. Rogow Pt:ANSON. .JOSla'S1_II:nG L T A/ILI. 1'.A. • EDWARD SENNETT WILLIAMS PAUL R.CONNOLLY (1922-1W8) ROBERT A.SCHULMAN HAROLO UNGAR VINCENT J. FULLER RAYMOND W. BERGAN JEREMIAH C. COLLINS OA/ID N, WEBSTER ROBERT L.WEINBERG LYMAN G. {-WEIDMAN OAVID POV ICH STEVEN M. UMIN JOHN W. VARDAMAN. JR. PAUL MARTIN WOLFF J. ALAN GALBRAITH CHARLES H. WILSON JOHN G. n ESTER WIL LIAM E. MCDANIELS BRENDAN V. SULLIVAN, JR. ALIBREY M. DANIEL, 117 ROBERT P, WATKINS JERRY L. SHULMAN JOHN B. KUHNS GREGORY B CRAIG LAWRENCE LUCCHINO LEWIS H. FERGUSON.ID ROBERT B.BARNETT it LAX' OFFICES WILLIAMS & CONNOLLY HILL BUILDING WASHINGTON, D. C,'0006 Mr. Joseph R. Grassie City Manager's Office P.O. Box 330708 Miami, Florida 33133 Dear Mr. Grassie: AREA CODE 202 331-5000 March 2, 1979 ALFRED P. BERGNER BARRY L.WEISMAN DAVID E. KENDALL KENDRA E. HEYMANN TERRENCE O'DONNELL JOHN J. BUCKLEY, JR. BERNARD J. CARL DOUGLAS R. MARVIN JOHN M. MASON JOHN K. VILLA BARRY S. SIMON KEVIN T. BA•NE ELLEN SEGAL HUVELLE STEPHEN L. URBANCZYK PHILIP J. WARD PETER J. KAHN ESTELLE R. ROGERS LON S.BABBY JANE E. GENSTER SCOTT BLAKE HARRIS FREDERICK WRITTEN PETERS MICHAEL 5. SUNDERMEYER OAVID O. AUFHAUSER BRUCE R. GENOERSON CAROLYN H. WILLIAMS You have asked for my opinion as to the likelihood of the City of Miami obtaining review in the Supreme Court of the United States of the Florida Supreme Court's decision in City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla. 1978). 1/ After studying the plead- ings, briefs and judicial decisions in the case and researching the federal constitutional issues presented by the record here, I have concluded that there is no reasonable likelihood whatsoever that the Supreme Court would grant plenary review of the case. While the litigation in the Florida courts has involved complicated, difficult, and (in some instances) unresolved issues of State law, these matters have been determined adversely to the City, and I do not believe that the remaining federal constitutional issues, which are the only ones open for consideration in the Supreme Court of the United States, are substantial enough for that Court to grant review of the Florida Supreme Court's decision. I. The Florida Marketable Record Title Act The federal issues arise out of the application of the 1963 Marketable Record Title Act, Fla. Stat. Ann. §S712.01--712.10 (1969), in the circumstances of this case. 1/ Whether the City would proceed in the Supreme Court of the United States by petition for certiorari or by appeal, the deadline for filing there would be March 14, 1979, since the 90 day period for seeking review begins to run on December 15, 1978, the day after the Florida Supreme Court denied rehearing of the case. - '7 oi/ 4- • WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 2 Prior to 1963, Florida's various recording acts were the chief means of providing title security to landowners. The acts voided most unrecorded real estate transactions, but provided no official verification of either the validity or the effect of any particular recorded transaction. While the records were available for inspection a prospective purchaser or mortgagee was left to draw his own conclu- sions at his own risk concerning the state of any particular indivi- dual's title. Another problem was that defects in title were never cured simply by passage of time, and a cumbersome and expensive judi- cial action to quiet title was normally necessary to ensure that title defects were cured. In 1963, Florida became one of the at least twenty states 2/ to enact a Marketable Record Title Act in order to eliminate old title defects and interests automatically with the passing of time and thereby shorten the necessary title examination. The Florida Act extinguishes all claims over 30 years old which conflict with a record chain of title which is at least that old. It declares a valid and marketable title on a recorded chain of title which is more than 30 years old, and it nullifies all interests which are older than the "root of title" 3/ (with certain very narrow excep- 2/ The States of Connecticut, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New York, North Dakota, Ohio, Oklahoma, Rhode Island, South Dakota, Utah, and Wisconsin have enacted legislation similar to Florida's. Boyer & Shapo, Florida's Marketable Title Act, 28 U. MIAMI L. REV. 103, 103-104 n.3 (1963); Barnett, Marketable Title Acts - Panacea or Pandemonium? 53 CORNELL L. REV. 45, 47 n.6 (1967); Fratcher, A Modest Proposal for Trimming the Claws of Legal Future Interests, 1972 DUKE L.J. 517, 529 n.53. The first such act was passed by Iowa in 1919. Ch. 270, Iowa Acts 38th G.A. (1919). Many of the more recent acts resemble in form the Model Marketable Title Act which appears in SIMES & TAYLOR, TIIE IMPROVEMENT OF CONVEYANCING BY LEGISLATION 6-10 (1960). 3/ "Root of title" is defined as "any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least thirty years prior to the time when marketability is being determined." Fla. Stat. Ann. S 712.01 (2) (1969). The "effective date" of the root of title is the date on which it was recorded. Ibid. V WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 3 tions specified in Fla. Stat. Ann. § 712.03 (1979 supp.)). It is not simply a recording act, since it requires a re-recording of outstanding interests (at least every 30 years) in order to preserve them. How- ever, the "marketable record title" obtained pursuant to the Act's provisions does not affect or extinguish the rights of any person in possession of the lands, so long as he is in possession, Fla. Stat. Ann. § 712.03(3) (1969) or the rights of any person in whose name the land is assessed on the county tax rolls, Fla. Sta. Ann. S 712.03 (6) (1969). 4/ The Act provided a transitional period of twenty-two months 5/ in which a notice of claim could be filed which would preserve an interest over 30 years old on the Act's effective date. Fla. Stat. Ann. § 712.09 (1969). The Act is inapplicable to lands or interests held by the United States or the State of Florida. Fla. Stat. Ann. § 712.04 (1969) 6/ The Florida Legislature provided that the Act "shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title" as defined in the Act. Fla. Stat. Ann. § 712.10 (1969). See generally Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla. 1970); Odom v. Deltona Corp. 341 So.2d 977 4/ Title rights deriving from tax assessment are preserved for a period of three years after the land is last assessed in a person's name. Fla. Stat. Ann. S 712.03 (6) (1969). 5/ September 1, 1963 to July 1, 1965. Fla. Laws 1963, ch. 63-133; Fla. Stat. Ann. § 712.09 (1969). 6/ This provision also states that the Act does not affect any right, title, or interest of any "officers, boards, commissions, or other agencies" of the State of Florida. The City has contended in this litigation that it is a State "agency" subject to this exception, but the Florida Supreme Court rejected this contention as a matter of State law. City of Miami v. St. Joe Paper Co., 364 So.2d 439, 445 (Fla. 1978). WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 4 7/ (Fla. 1976). In Florida, therefore, a title searcher need only check a chain of title to a recorded title transaction which is 30 years old or more; he is able to disregard all claims which are older and which are not rooted in his own chain. II. The Present Litigation On September 2, 1975, the City filed a Complaint in the Dade County Circuit Court (llth Judicial Circuit) to quiet and confirm title in the City to certain waterfront land in DuPont Plaza, for ejectment, and certain other relief against the St. Joe Paper Company, Southeast Properties, Inc. and Hugh E. Matheson, Jr. The Complaint alleged that the State of Florida had acquired from the United States in 1845 all rights and title to the foreshore (the land between ordinary high and low water marks) and certain submerged lands around the State to be held in trust for the people of the State, and that the State had, by act of the Legislature, granted to the City of Miami all its right and interest to these waterfront and submerged lands in 1919, save for lands already granted to individuals. It alleged that the defendants occupied certain of the City's lands, pursuant to a claim of title stemming from a special warranty deed for 14 acres filed by Henry M. Flagler in 1898 purporting to convey this tract to the Florida East 7/ In the present case, the Florida Supreme Court described the intent of the Act as follows: "'The chief purpose of the act is to extinguish stale claims and ancient defects against the title to real property, and, accordingly, limit the period of search. The act is different from a statute of limitations. In a statute of limitations a claim of a vested, present interest is cut off because of the claimant's failure to sue. If suit is not filed, the claim is lost. By the Marketable Record Title Act, any claim or interest, vested or contingent, present or future, is cut off unless the claimant preserves his claim by filing a notice within a 30-year period. See § 6.5. If a notice is not filed, the claim is lost. The act also goes beyond a curative act. Curative legislation only corrects certain minor or technical defects through the passage of time, whereas under the Marketable Record Title Act, most defects or clouds on title beyond the period of 30 years are removed and the purchaser is made secure in his transaction.'" City of Miami v. St. Joe Paper Co., 364 So.2d 439, 443 (Fla. 1978). WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 5 Coast Hotel Corporation. The Complaint contended that this Corpora- tion had, in the 1920's, filled in and bulkheaded parts of the fore- shore and submerged lands which rightfully belonged to the City under the 1919 grant. The Complaint further alleged that in 1944 the Cor- poration had purported to convey a tract of land now encompassing 24.69 acres to defendant St. Joe Paper Company and that the Company had filled and bulkheaded other parts of the City's foreshore and submerged lands. The Complaint finally alleged that since Flager did not own any riparian or littoral rights in the foreshore or the adja- cent submerged lands, none of the present purported owners of these filled lands had good title. 8/ The Complaint sought a judicial deter- mination that all lands which were foreshore or submerged lands as of 1919 were owned and held in fee simple by the City. The defendants did not answer the Complaint but instead moved to dismiss 9/ for failure to set forth a valid statement of claim or cause of action on the ground, inter alia, that the Florida Marketable Record Title Act had assured them good title to these lands at least as of. 1974, a date 30 years after the Florida East Coast Hotel Corporation deed to St. Joe Paper Company was recorded, since the City had never filed any notice of claim during this period, as provided for in the Act. Numerous memoranda of law were filed, and a hearing was held on November 18, 1975, which resulted in the 8/ The other two defendants were alleged to hold parts of this tract pursuant to purported conveyance from the Company. 9/ Defendant Matheson filed a Motion to Dismiss on October 1, 1975 (and a second such Motion on October 28, 1975), defendant St. Joe Paper Company on October 8, 1975, and defendant Southeast Properties on October 29, 1975. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 6 filing of an Amended Complaint by the City on December 9, 1975. 10/ Further motions to dismiss were filed by defendants, a second hearing was held on February 2, 1976, and the trial court subsequently entered an order dismissing the Amended Complaint with prejudice. The court ruled: "I frankly think [the Act] is applicable. If it was not applicable, I think that the deeds and such in the past are good deeds . . . and if all of that was not there, if anybody has ever been estopped or waived any rights [the City has] --the City of Miami has been sitting here with this land having been filled back in the twenties. I would have to take judicial know- ledge [sic] that they have been getting taxes on all of it all of this time. It is given or indicated as owned property. There has never been a protest of any kind. Under (the City's] argument, we could be trying this case one hundred years from now and say that the City owns some property; that is kind of like going back to the Indians and Manhattan." R. 208. 10/ The trial court ruled that the Florida Marketable Record Title Act was applicable and that the City must plead in its Complaint facts showing that the City's claim was subject to an exception of the Act: "It is amazing that the City can sit here --they [defendants and their predecessors] have been filling the land from 1919, giving them permits and collecting taxes and never realizing they are pirated. Someone was sleeping at the switch for a long time . . . It certainly has to be the most obvious thing in the world when they are put- ting up bulkheads and dredging . . . . I feel that [the Act] is applicable and you are going to have to amend your complaint to show that exceptions are involved." R. 284. In its Amended Complaint, the City alleged, inter alia, that the Act did not apply to trust lands, that Miami was an "agency" of the State and entitled to the § 712.04 exception, that the 1919 patent to the City from the State was a "recorded title transaction" under § 712.03(1), and that certain easements and servitudes exercised by the City through the years entitled it to a S 712.03(5) exception. The Amended Complaint also named Sally S. Dommerich, formerly the wife of defendant Matheson, as a defendant. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 7 The City took an appeal to the Florida Court of Appeals for the Third District raising numerous State law issues concerning the construction of the Marketable Record Title Act and other matters and making one federal constitutional claim. 11/ The City claimed that as construed and applied the Act violated Article I, Section 10 (the Impairment of Contracts Clause) and the Due Process Clause of the Fourteenth Amendment because it retrospectively extinguished vested contract rights of the City and because it deprived the City of property without proper notice by allowing a "wild deed" to form a root of title. The Court of Appeals unanimously held that the Act was not unconstitutional as applied to the City in this case. City of Miami v. St. Joe Paper Co., 347 So.2d 622 (Fla. App. 1977). It noted that the Florida Supreme Court had implicitly upheld the constitutionality of the Act in two cases: "The Marketable Record Title. Act extinguishes claims of thirty years or more which conflict with a record chain of title which is at least that old. The act was passed in 1963 and provided the City with ten and one-half years within which it could assert its claim. In view of the length of time provided and the easy way in which the City could have protected its claim, see Section 712.05, Florida Statutes (1975), we find no reason to hold that the act was unconstitutionally applied to the city." 347 So.2d at 625. 11/ See Brief and Appendix of Appellant, Point VIII at pp. 45-58, and Appellant's Reply Brief and Appendix at pp. 27-28. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 8 The Court of Appeals certified the case to the Florida Supreme Court, and the City again argued, inter alia, that the Act had been unconstitutionally applied to the City. 12 The Florida Supreme Court affirmed the decisions of the courts below. City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla. 1978), rehearing denied, Dec. 14, 1978. It noted that the Marketable Record Title Act was simul- taneously a curative act "in that it may operate to correct certain defects which have arisen in the execution of instruments in the chain of title," 364 So.2d at 442, a statute of limitations "in that it requires stale demands to be asserted within a reasonable time after a cause of action has accrued," ibid., and a recording act "in that it provides for a simple and easy method by which the owner of an existing old interest may preserve it," ibid. The court noted several other State supreme court decisions upholding against similar consti- tutional attack marketable title acts, id. at 443, and ruled that the Due Process Clause does not "extinguish the state's police power to enact legislation 'reasonably necessary to secure the health, safety, good order, comfort or general welfare of the community,'" id. at 444. It held that the Act was constitutional under the police power because since it was "designed to simplify conveyances of real property, sta- bilize titles and give certainty to land ownership, [it] is certainly legislation concerning the welfare of the public:" "the constitutional objection that retroactive appli- cation of a statute results in a deprivation of due process is obviated where the statute gives owners of old claims still enforceable at the time of the statu- tory enactment a reasonable time to take certain steps to preserve their interest." 12/ See Petitioner's Brief on the Merits at 17-29. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 9 13/ Ibid. —' The court further held, as a matter of State law, that it was unnecessary in this case to resolve whether the Act could be utilized to divest the people of the State of Florida of soverign lands held in public trust for them, id. at 445, that the City was not exempt from the Act's provision by any statutory exception, ibid. and that under the Act a "wild" or "interloping" deed may constitute a root of title, id. at 445-449. 14/ Thus a lawsuit that originated in an attempt by the City to assert title to certain lands in the City has been transformed into a case about the application of the Florida Marketable Record Title Act, for the Florida courts have ruled that the City's title rights (whatever they might have been) have been extinguished by operation of the Act. 13/ The court did not treat the City's contention that application of the Act violated the federal constitutional provision against .impairment of contracts, properly raised and preserved on appeal Ly the City, but it implicitly rejected this claim. • 14/ The court's treatment of the "wild deed" issue is not perfectly clear, for although it asserts "without equivocation, that a wild deed may constitute a root of title," id. at 447, it also suggests that the deed under which defendants' claimed title was not truly an "interloping" deed: "[title 1944 deed to St. Joe does not reflect that it was a wild deed nor does it appear that there is any defect in the make-up of the deed. This wild deed may pro- perly constitute a 'root of title.'" Id.at 448 (emphasis added). WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 10 III. Methods of Seeking Review in the Supreme Court of the United States In this case, there are two procedures for obtaining review in the Supreme Court of the United States: filing a petition for certi- orari (certiorari) and filing a jurisdictional statement (appeal). The timing and mechanics of these procedures are the same, but they differ somewhat in the legal consequences of the ultimate action which the Supreme Court might take. I do not, however, for reasons set forth in this section, believe that the differences between certiorari and appeal are significant in assessing the City's chances of obtaining plenary review in the Supreme Court, since the considera- tions which determine whether such review will be granted are essen- tially the same under both procedures. The statute which governs both certiorari and appeal in this case is 28 U.S.C. S1257. It provides that a final judgment by the highest court of a State in which a decision could be had is review- able in the Supreme Court by appeal "where is drawn in question the validity of a statute of a State on the ground of its being repugnant to the Constitution . . . of the United States, and the decision is in favor of its validity." 28 U.S.C. § 1257(2). The statute further provides that such a final judgment is reviewable in the Supreme Court by writ of certiorari "where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution . . . of the United States, or where any . . . right . . . is specially set up or claimed under the Constitution . . . of the United States." 28 U.S.C. § 1257(3). In this case, the City could properly treat the Florida Supreme Court's decision upholding the constitutionality of the Marketable Record Title Act as providing grounds either for an appeal or a petition for writ of certiorari. In either case, review in the Supreme Court is a two step process. An initial pleading (called a jurisdictional statement or a petition for writ of certiorari) 1 WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 11 is filed, and if the Court grants review (by noting probable jurisdic- tion or granting certiorari), plenary review is obtained, and the case is then briefed and argued to the Court, and a decision by the Court is rendered. The chief difference in the two procedures (which is not terribly relevant to the City) is the precedential effect of a denial of plenary review at the first stage: a denial of certiorari is not a decision on the merits of the case and therefore has no precendential weight, 15/ while dismissal of an appeal from a State court for want of a substantial federal question or a summary affirm- ance of the decision is a fully binding precedent for the future, even though the Court did not allow the case full briefing and argument. 16/ Thus, if an appeal is filed, the City could obtain an obligatory exercise 17/ of the Supreme Court's jurisdiction at the first stage, an utterly Pyrrhic victory if the Court simply dismissed for want of a substantial federal question or summarily affirmed. 15/ Agoston v. Pennsylvania, 340 U.S. 844 (1950); Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950); House v. Mayo, 324 U.S. 42, 48 (1945). 16/ Hicks v. Miranda, 422 U.S. 332, 344 (1975); Gibson v. Berryhill, 411 U.S. 564, 576 (1973); Edelman v. Jordan, 415 U.S. 651, 671 (1974). Presumably, the City is not likely to be litigating, in the future, cases involving application of the Florida Marketable Record Title Act. If it is, however, then it should not contem- plate the filing of an appeal in this case, for an adverse deci- sion by the Supreme Court denying plenary review of the appeal (which I believe almost a certainty) would have the effect of foreclosing a later similar attack on the Act. 17/ It is important not to make too much of the distinction between appeal and certiorari. The view that the filing of an appeal (where possible) is a magic ticket to plenary review on the merits in the Supreme Court is utterly mistaken. As former Chief Justice Warren once commented: "'It is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari. As regards appeals from state courts our jurisdic- tion is limited to those cases which present sub- stantial federal questions. In the absence of what we consider substantiality in the light of prior decisions, the appeal will be dismissed with- out opportunity for oral argument. The stated pur- pose of the Jurisdictional Statement, which came into being in 1928, was to weed out frivolous appeals before they got to the argument stage.'" WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassi March 2, 1979 Page 12 IV. Likelihood of Obtaining Plenary Review on the Merits The statistical likelihood of obtaining plenary review of any case in the Supreme Court of the United States, whether by appeal or certiorari, is extremely remote. In the past three years, the Court has granted such review in less than 3% of the cases filed with it. 18/ The Court thus declines to review a number of cases in which substan- tial and important federal issues are presented, and the odds are even longer if review of a state court decision is sought. 19/ Footnote 17/ Continued Address to ALI Annual Meeting, May 19, 1954, quoted in Weiner, The Supreme Court's New Rules, 68 HARV. L. REV. 20, 51 (1954). Mr. Justice Brennan has also noted the erosion of the distinc- tion between appeal and certiorari, see Brennan, The National Court of Appeals: Another Dissent, 40 U. CHI. L. REV. 473, 474 (1973), and former Solictor General Griswold has commented upon the "virtual disappearance" of the appeal -certiorari distinction, Griswold, Rationing Justice --The Supreme Court's Caseload and What the Court Does Not Do, 60 CORNELL L. REV. 335, 344-345 (1975). 18/ In October Term 1977 (1977-1978 calendar years), the Court granted plenary review in 88 out of 3663 cases, in October Term 1976 (1976- 1977 calendar years), 98 out of 3761 cases, and in October Term 1975, 100 out of 3441 cases. OCTOBER TERM 1977 STATISTICAL SHEET No. 29 (FINAL) (U.S. Supreme Court - July 3, 1978). 19/ The percentage of cases in which review of state court decisions is granted is significantly less than the percentage of cases in which review of federal court decisions is granted. Mr. Justice Brennan, State Court Decisions and the Supreme Court, 31 PENN. BAR ASSN. Q. 393, 394-396 (1960). In the 1976 Term, for example, full opinions were rendered in 31 cases from state courts, in con- trast to 111 from federal courts. Note, The Supreme Court, 1976 Term, 91 HARV. L. REV. 299, 299-301 (1977). WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 13 Supreme Court Rule 19 outlines abstractly the character of the reasons which will be considered by the Court in granting plenary review. 20/ Such review "is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefore." The Rule continues that review of a state court decision may be granted "[w]here a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court." 21/ The Court will not 20/ However, the Rule itself states that its description of factors is not exhaustive and that the reasons specified in the Rule are "neither controlling nor fully measuring the Court's discretion." Mr. Justice Harlan observed that "the question whether a case is 'certworthy' is more a matter of 'feel' than of precisely ascer- tainable rules," Harlan, Nanning the Dikes, 13 NYC BAR ASSN. RECORD 541, 549 (1958), and Chief Justice Warren and Mr. Justice Brennan have expressed similar views, Warren, The National Court of Appeals, 59 ABA J. 724, 727-728 (1973); Brennan, The National Court of Appeals: Another Dissent, 40 U. CHI. L. REV. 473, 478-479 (1973). 21/ Rule 19 by its terms applies to petitions for certiorari, but Rule 15 now requires that, for appeals, the jurisdictional state- ment must include "the reasons why the questions presented are so substantial as to require plenary consideration, with briefs on the merits and oral argument, for their resolution." See Zucht v. King, 260 U.S. 174, 176 (1922). A recent comentator has noted that "one function of the jurisdictional statement is similar to that of the petition for certiorari. Its purpose is to induce the Court to hear the case -- and to accomplish this purpose, the statement must induce the Court not to reject the appeal summarily." STERN & GRESSMAN, SUPREME COURT PRACTICE 220 (5th ed. 1978). The substantiality of a federal constitu- tional question presented by appeal is critical in determining whether the Court will give the appeal plenary consideration because "in recent months the Court has summarily affirmed or.dis- missed a number of appeals involving issues that were novel, dif- ficult, and highly controversial . . . [A]ppeals involving impor- tant and novel issues of constitutional law are regularly being decided on the merits by the United States Supreme Court without oral argument, without full briefing, and without any opinion or other statement of reasons. In light of the statutory mandate, and the practical and jurisprudential problems raised by summary dispositions, there can be only one acceptable explanation for this practice: the Court is constrained by the pressures of time and caseload from doing otherwise." Levin & Hellman, The Many Roles of the Supreme Court and the Constraints of Time and Caseload, 7 U. TOL. L. REV. 399, 410, 416-417 (1976). 01. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 14 grant review simply to reevaulate fact findings of the courts below, United States v. Johnston, 268 U.S. 220, 227 (1925); Fry Roofing Co. v. Wood, 344 U.S. 157, 160 (1952), nor to consider questions of State constitutional 22/ or statutory interpretation, Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959); Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933). Moreover, the federal constitutional question presented must be of general, intrinsic importance and "beyond the academic or the episodic", Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1955). In my experience, a number of different issues may be factored out of the general Rule 15 and 19 guidelines to assess the likelihood of obtaining plenary Supreme Court review of the Florida Supreme Court's decision that the Florida Marketable Title Act was constitutionally applied in this case. (1) Consistency of the Florida Supreme Court Decision with Other Decisions of the Supreme Court of the United States. The most important single issue is the extent to which the Florida Supreme Court's decision conflicts with decisions of the Supreme Court of the United States. I am unable to find any important inconsistency between the Florida and the federal Supreme Courts' treatment of the due process issues in this case, and I do not believe that the Act is violative of the Contracts Clause of the federal Constitution as con- strued by the Supreme Court of the United States. 22/ In some respects, the safeguards provided by the Florida Con- stitution (with regard, for example, to impairment of contracts) appear much more stringent than those afforded by the federal Constitution, see Petitioner's Brief on the Merits at 24-25, City of Miami v. St. Joe Paper Co. et al., Fla. Sup. Ct. No. 51, 775. The Florida Supreme Court is, however, the final arbiter of the State Constitution, and it has resolved these claims against the City. As noted above, such State constitutional claims are not reviewable in the Supreme Court of the United States. /"a WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 15 Both courts have recognized that the federal Due Process Clause permits the State, pursuant to the "police power," to enact "regula- tions designed to promote the public convenience or the general pro- sperity, as well as regulations designed to promote the public health the public morals, or the public safety . . . and the validity of a police regulation . . . must depend upon the circumstances of each case and the character of the regulation, whether arbitrary or reason- able and whether really designed to accomplish a legitimate public purpose." Chicago, Burlington & Quincy Ry v. People ex rel. Drainage Comm'rs, 200 U.S. 561, 592 (1906). There appears little doubt that the Act is "general welfare" legislation, intended to accomplish a valid public purpose: the stabilization of land titles, the facilita- tion of conveyancing, and the affording of greater certainty to real estate owners, buyers, and sellers. Procedural questions remain, however, as to whether the Act afforded fair notice to the City of its provisions and as to whether the Act had any impermissible retroactive effect. 23/ On the notice question, it is relevant that the Act did not prescribe the outright and automatic destruction of any ancient property interest of the City. The City is charged (as is any other litigant), Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 243 (1944); North Laramie Land Co. v. Koffman, 268 U.S. 276, 283 (1925), with knowledge of the law and so was aware of the Act's passage in 1963. Since the deed under which the defendants claim (whether or not a "wild deed") was recorded and on file, the City appears chargeable with notice of that deed also. Moreover, the defendants (or their predecessors) were paying taxes on the real estate at issue and were in possession of it. See Jacob v. Roberts, 223 U.S. 261 (1912); American Land Co. v. Zeiss, 219 U.S. 47 (1911). Under the provisions of the Act, the City had approximately eleven years in which to file a notice of claim and preserve whatever interest it might have had stemming from the 1919 patent. 23/ The City, quite properly, did not raise in the courts below any federal constitutional claims under the Ex Post Facto Clause, Art. I, §9, (which might appear to be relevant), since it was early held that this provision applies only to criminal legisla- tion. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). Retrospective application of a civil statute might, under some circumstances, violate the Due Process Clause of the Fourteenth Amendment. O WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 16 While in one sense, application of the Act was retroactive (because it extended to a pre-existing land transaction), it did not retrospectively extinguish a valuable property interest still capable of being enforced at the time of enactment without giving a fair and reasonable opportunity to preserve the interest. The Supreme Court has upheld the retroactive shortening of a statute of limitations in which a reasonable time was granted after the statute's effective date for the bringing of actions not yet barred by the old statute of limitations. 24/ Matthison v. Department of Labor and Industry, 293 U.S. 151 (1934), and it has (in a case noted by the Florida Supreme Court) upheld a retroactive recording statute which required that all outstanding mortgages were to be recorded within ten months else they were void against subsequent creditors and purchasors. Vance v. Vance, 108 U.S. 514 (1883). The Court held that this Louisiana law did not violate due process or "impair the obligation of contract" since it gave "ample time and opportunity to do what was required." 108 U.S. at 518. Such a law, it was held, did not destroy any security or property interest but did declare that the mortgagee had a "secret lien" which must be affirmatively disclosed to those dealing with the lienee. It should be noted that all market- able record title acts are "retrospective" in the sense that they may apply to already vested property interests, and that a central purpose of such acts is to extinguish ancient claims that do not appear on the public records within a designated period. It is somewhat unclear that the kind of interest subject to extinguishment under the Act is a "contract" within the meaning of the Contracts Clause. That provision has been construed to 24/ Moreover, the Florida Act's two year transitional period for the filing of a claim to protect interests older than 30 years seems constitutionally permissible in view of Supreme Court cases sustaining shorter periods. Turner v. New York, 168 U.S. 90 (1897) (6 month period); Terry v. Anderson, 95 U.S. 628 (1877) (9 1/2 month period). es Oro WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 17 protect agreements between parties from legislative interference, Crane v. Hahlo, 258 U.S. 142 (1922); Louisiana ex rel Folsom v. Mayor of New Orleans, 109 U.S. 285 (1883), 25/ and would arguably be violated if the Act summarily extinguished a lease, mortgage, or inter vivos trust, but an interest created by deed is not the kind of agreement the Contracts Clause has ever been held to protect. 26/ In any event, while the Supreme Court once took the position that every impairment of an existing obligation by legislation was void under the Contracts Clause, see, e.g., Bank of Minden v. Clement, 256 U.S. 126 (1921); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827), it has now significantly moderated this stance, and the Clause is no longer an absolute barrier to state legislation affect- ing pre-existing contracts. Veix v. Sixth Ward Bldg. & Loan Assn., 310 U.S. 32 (1940). 27/ Instead, the Court has phrased the critical inquiry much as it has in the due process area: "The question is not whether the legislative action affects. contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end." Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 438 (1934) (upholding a statutory extension of the period for mortgage redemption). The State retains "the 'sovereign right . . . to protect the . . . general welfare of the people,'" and the Court has ruled that it will "respect the 'wide discretion on the part of the legisla- ture in determining what is and what is not necessary,'" El Paso v. 25/ See generally Hale, The Supreme Court and the Contracts Clause: III, 57 HARV. L. REV. 852 (1944). 26/ Note, Constitutionality of Marketable Title Legislation, 47 IOWA L. REV. 413, 425 (1962); SCIIURLOCK, RETROACTIVE LEGISLA- TION AFFECTING INTERESTS IN LAND 15-16 (1953). But see Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). 27/ See WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 101 (1938). Or WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 18 Simmons, 379 U.S. 497, 508-509 (1965). Every contract is entered into o subject to the State's exercise of the police power, 28/ and the test under the Contracts Clause, as under the Due Process Clause, is whether this exercise is reasonable. In assessing the likelihood of the Supreme Court reviewing the Contracts Clause issue here, the critical fact again seems to me to be that the Marketable Record Title Act did not automatically cancel or void any contract interest of the City (assuming, arguendo, that the title interest asserted by the City was originally contractual enough to be subject to Contracts Clause Protection) but instead imposed the duty on the City to register its claim of title within the eleven year period before 1974. 28/ Mr. Justice Blackman, with the concurrence of three members of the Court, has recently construed the Contracts Clause in United States Trust Co. v. New Jersey, 431 U.S. 1 (1977), where he held unconstitutional the repeal by the New Jersey Legislature of a statutory covenant which limited the ability of the interstate Port Authority to subsidize public transportation from reserves pledged as security for certain Port Authority bondholders. The Court held that a specific contractual right of the bondholders had been unreasonably extinguished without affording the bond- holders any opportunity to protect their pre-existing contractual interest. The Blackmun opinion repeated, however, that "[t]he States must possess broad power to adopt general regulatory mea- sures without being concerned that private contracts will be impaired, or even destroyed, as a result. Otherwise, one would be able to obtain immunity from state regulation by making private contractual arrangements. . . . 'One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.' . . . Legislation adjusting the rights and responsibilities of con- tracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption." 431 U.S. at 22. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassi March 2, 1979 Page 19 The Florida Supreme Court decision does not, therefore, seem to conflict with any particular Supreme Court decision, and the prece- dents cited above seem to support it. Although it is treacherous to place too much importance upon a denial of certiorari, it should at least be noted that the Supreme Court denied certiorari in a 1970 Florida Supreme Court case which presented questions concerning the constitutionality of the Marketable Record Title Act, Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.), cert. denied 400 U.S. 964 (1970 ). (2) Consistency of the Florida Supreme Court Decision With Other State Supreme Court Decisions, Lower Federal Court Decisions, and the Opinions of Commentators. The chances for plenary review in the Supreme Court are increased if a State court decision conflicts with a constitutional decision of a federal Court of Appeals or another State supreme court. There appear to be, however, no federal Court of Appeals decisions con- struing marketable title acts, and what State decisions there are sustain these acts against constitutional attack. In Wichelman v. Messner, 250 Minn. 88, 83 N.W.2d 800 (1957), the leading State supreme court decision in this area (cited by the Florida Supreme Court in this case), the court sustained Minnesota's act as a valid exercise of the police power since the law was intended to insure that "ancient records shall not fetter the marketability of real estate," 83 N.W.2d at 807. The court noted that such statutes "proceed upon the theory that the economic advantages of being able to pass uncluttered title to land far outweigh any value which outmoded restrictions may have for the person in whose favor they operate," id. at 825. The Iowa Supreme Court, upholding the Iowa marketable record title act, remarked that there was "little doubt of the desirability of statutes giving greater effect and stability to record titles," Lane v. Travelers Ins. Co., 230 Iowa 973, 299 N.W. 553, 555 (1941). And see Blackert v. Dugosh, 12 I11.2d 171, 145 N.E.2d 606 (1957); Atkinson v. Kish, 420 S.W.2d 104 (Ky. 1967); Town of Brookline v. Carey, 355 Mass. 424, 245 N.E.2d 446 (1969); Hiddleston v. Nebraska Jewish Educ. Soc'y, 86 Neb. 786, 186 N.W.2d 904 (1971). See also Selectman of Town of Nahant v. United States, 293 F. Supp. 1076 I' WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 20 29/ (D. Mass. 1968). Moreover, most legal commentators who have analyzed the marketable title legislation have concluded that a statute such as Florida's is constitutional. 30/ While the opinions of these courts and scholars is not in any way binding on the Supreme Court of the United States, the existence of conflicting judicial opinions as to a constitutional issue is frequently a cause of the Supreme Court's granting of certiorari or noting of an appeal, and the striking unanimity of opinion on the constitutionality of the marketable title acts suggests that the Justices are unlikely to conclude that any serious problems exist with regard to Florida's Act which justify plenary review. 29/ In two instances, particular applications of title clearing legi- slation have been declared unconstitutional by state courts, Morrison v. Fenstermacher, 166 Kan. 568, 203 P.2d 160 (1949); Girard Trust Co. v. Penn. Railroad Co., 364 Pa. 576, 73 A.2d 371 (1950), but for complicated reasons discussed at length in Note, Constitutionality of Marketable Title Legislation, 47 IOWA L. REV. 413, 413 n.2, 420 (1962) and Boyer & Shapo, Florida's Marketable Title Act, 18 U. MIAMI L. REV. 103 n.96 (1963), the legislation dealt with in these cases differed significantly from the Florida Act, and so these precedents are not in point. 30/ See, e.g., Aigler, Constitutionality of Marketable Title Acts, 50 MICH. L. REV. 185, 198-202 (1951); Note, Constitutionality of Marketable Title Legislation, 47 IOWA L. REV. 413, 416 (1962); Boyer & Shapo, Florida's Marketable Title Act, 18 U. MIAMI L. REV. 103, 119-128 (1963); Fratcher, A Modest Proposal for Trimming the Claws of Legal Future Interests, 1972 DUKE L. J. 517, 527- 531. And see generally the favorable commentary on particular State marketable title acts (or proposed acts) in Gribbet, Con- veyancing Reform, 35 N.Y.U.L. REV. 1291 (1960); Cromwell, The — Improvement of Conveyancing in Montana by Legislation --A Proposal, 22 MONT. L. REV. 26 (1960); Ruemmele, The North Dakota Marketable Record Title Act, 41 N.D.L. REV. 475 (1965); Smith, The New Marketable Title Act, 22 OHIO ST. L.J. 712 (1961); Swenson, The Utah Marketable Title Act, 8 UTAIH L. REV. 200 (1963); Webster, The Quest for Clear Land Titles --Making Land Title Searches Shorter and Surer in North Carolina Via Marketable Title Legi- slation, 44 N.C.L. REV. 89 (1965). For a slightly more skep- tical view, see Barnett, Marketable Title Acts --Panacea or Pandemonium? 53 CORNELL L. REV. 45 (1967). I, WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 21 (3) Novelty of the Federal Constitutional Issues As previously indicated, the first State marketable title act was passed over fifty years ago, and such legislation has existed in nearly a third of the States for a number of years. These laws have generated litigation, and occasional petitions for certiorari which the Court has declined to review, see, e.g., Marshall v. Hollywood, Inc., supra. The issues presented in this case are thus not particularly novel, a frequent ground for Supreme Court review. (4) Victories in Lower Courts (or Dissents) One measure of the substantiality of a federal constitutional claim is whether it has recommended itself to any lower court or to any lower court judge (in a concurring or dissenting opinion). When a litigant prevails in a lower court or sparks an agreeing dissent, the credibility of the constitutional claim is enhanced in the eyes of the Supreme Court, and the chances of plenary review cor- respondingly increased. In this case, however, the City has lost unanimously at all three levels (including a petition for rehearing in the Florida Supreme Court), 31/ without a dissenting voice, and while not dispositive, this fact weighs against the likelihood of review in the Supreme Court of the United States. 31/ The trial judge did not explicitly pass on the City's constitu- tional claims, but these arguments were considered and rejected by the two appellate courts. The claims are thus adequately preserved for Supreme Court review. Raley v. Ohio, 360 U.S. 423, 436 (1959). WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 22 (5) Recent Intimations by the Supreme Court that an Issue is Ripe for Review The Supreme Court will sometimes suggest sua sponte that review of an issue is merited, thus increasing the likelihood of the Court's agreeing to hear the issue in a subsequent case. There has been no such intimation concerning the issues presented in this case, and as to one somewhat inchoate issue presented in this case (which might be urged as a federal constitutional claim), the Court has been actively hostile. One of the City's arguments throughout this litigation has been that a "wild" or "interloping" deed cannot form a valid "root of title" under the Marketable Record Title Act. Although this was resolved against the City on State law grounds in the courts below, it would be possible to phrase this as a substantive (not procedural) due process issue in the Supreme Court of the United States. 32/ From the 1880's to the mid 1930's, the Supreme Court frequently used a concept of "substantive" due process to strike down State legislation which interfered with private property interests. 33/ The Court essen- tially federalized these interests under the Fourteenth Amendment and ruled that, however fair the procedures for regulating them, the States simply could not infringe upon certain economic rights, interests, and transactions, see, e.g., Lochner v. New York, 198 U.S. 45 (1905). After the economic convulsions of the Depression, however, the Court has retreated almost completely from its substantive protection of property rights under the Due Process Clause: 32/ This assumes, of course, that the issue has been adequately preserved as a federal constitutional issue in the courts below. While I think there is serious doubt about this, I assume here that the claim has been preserved. 33/ Even in the substantive due process era, the Court recognized that the police power of the States authorized the States to enact legislation "reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the commu- nity." Atlantic Coast Line Railroad v. Goldsboro, 232 U.S. 548, 558 (1914). It was somewhat unpredictable, however, when the Supreme Court would sustain --and when it would strike down --such police power legislation. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 23 "Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy . . The doc- trine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely . . . has long since been discarded." Ferguson v. Skrupa, 372 U.S. 726, 729-730 (1963). The Court has recently emphasized that the substantive creation of property interests is a matter of State law, Lindsey v. Normet, 405 U.S. 56, 68-69, 74 (1972); Perry v. Sindermann, 408 U.S. 593, 599-603 (1972); Board of Curators v. Horowitz, 435 U.S. 78, 82-83 (1978); and federal constitutional arguments by the City that its substantive due process rights were violated by recognition of the defendants' "wild" deed are almost certain to fall upon deaf or hostile ears in the Supreme Court of the United States. (6) Important Similar Issues Already Pending Before the Supreme Court Where the decision of the State supreme court presents a question that is identical with, or similar to, an issue already pending before the Supreme Court in another case where certiorari has been granted or probable jurisdiction noted, the issue is obviously important and the Court will normally either grant (or note) the petition (or jurisdictional statement) and either set the case for argument or hold the case for disposition in light of the other case. There are, however, no other cases on the Court's docket which present issues similar to those presented in the instant case, so there is no chance for some form of "piggyback" review. fr. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 24 (7) Patent Error or Unfairness in the Decision Below Although the Court frequently repeats that it does not sit to correct "mere error", 34/ it has been my experience that, very occasionally, the Court will grant review in a case where the decision below seems shockingly wrong and thus to present a substantial due pro- cess question. See, e.g., Thompson v. City of Louisville, 362 U.S. 199 (1960) (criminal conviction utterly devoid of evidentiary support); Chambers v. Florida, 309 U.S. 227 (1940) (third degree police methods). Review in these cases is granted to correct fundamental inequities or injustices. There is not, however, in this case any similar conduct which might be said likely to shock the judicial conscience, for the fact that the City filed no claim in eleven years under the Marketable Record Title Act, collected taxes from the defendants or their predeces- sors, recorded the defendants' deeds, and platted DuPont Plaza (what- ever technical legal relevance these facts may or may not have to the issues in the lawsuit) forestall the kind of fundamental outrage which has occasionally resulted in a grant of review. 35/ (8) Reconsideration of Supreme Court Precedents Where a State supreme court has relied upon a prior United States Supreme Court decision or a constitutional principle previously esta- blished by the Court that the Court now considers ripe for reconsidera tion and possible overruling or change, certiorari may be granted or 34/ "This Court's review . . . is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review." Ross v. Moffitt, 417 U.S. 600, 616-617 (1974). 35/ This "shocks the conscience" test has never been articulated by the Supreme Court as a basis for granting review, but it has been noted by many commentators, see. e.g., STERN & GRESSMAN, SUPREME COURT PRACTICE 291-292 (5th ed. 1978). WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie March 2, 1979 Page 25 an appeal noted. See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964); Gideon v. Wainwright, 372 U.S. 335 (1963). This ripeness for recon- sideration may be evidenced by statements of various Justices in recent opinions, by critical commentaries, or by "continuing . controversy and litigation in both state and federal courts," Gideon v. Wainwright, supra, 372 U.S. at 338. There has been, however, no intimation by any Justice (or commentator, for that matter) that the issues in this case implicate any particular prior decisions of the Court or that a reconsideration of any of the Court's decisions is now desirable. (9) Improper Extension of Supreme Court Precedent Plenary review has sometimes been granted to determine whether the State supreme court has properly interpreted, applied, or extended a prior Supreme Court decision in a given situation, and normally the question presented is whether the State court has unduly extended a Supreme Court precedent. See, e.g., Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965); Oregon v. Mathiason, 429 U.S. 492, 493 (1977) (certiorari granted to determine whether State court "has read Miranda too broadly"); Hankerson v. North Carolina, 432 U.S. 233, 240 (1977). In this case, the defendants did not rely on any particular Supreme Court precedents to which the Florida Supreme Court gave extravagant scope and extension. It is for these reasons, therefore, that I conclude that there is no reasonable likelihood whatsoever that the Supreme Cour - the United States would grant plenary review of either a petition f• writ of certiorari or a jurisdictional statement in this ca -. Sincerely, • Edward Bennett Willi To: Joseph R. Grassie City Manager CITY or MIAMI. FLORIDA 1NTER•OFFICE ' 1EMORAFIDUM February 27, 1979 ,,'LE Agenda Item City Commission Meeting:March 8 �. Presentation on Ball Point FROM: N`� , nc�Cn C•IC t'Y. Jim Reid, Director Planning Department It is requested that Mr. Ron Nestor, Project Manager, Holywell Corporation appear before the Commission to describe the program and status of the proposed development of Ball Point. Description The Holywell Corporation of Washington, D. C. has completed negotiations for the purchase of Ball Point, an 8-acre un- developed tract in downtown Miami at the mouth of the Miami River on the north bank. The preliminary development program is as follows: - 500 residential condominium units - 600 room/30 suite transient hotel - 928,000 gross square feet of offices in a 40-story tower - 2,560-space parking garage (3 segments) - miscellaneous podium areas Process This development meets the criteria of a Development of Regional Impact (DRI) under the Florida Environmental Land and Water Manage- ment Act of 1972 (F.S. Chapter 380) which mandates that local government conduct public hearings on the impact of the project prior to the issuance of a building permit. It is expected that the Commission will review this DRI in public hearing on May 24, 1979. Page 1 of 2 Page 2 Joseph R. Grassie City Manager Additionally, the Planning Advisory Board will make recammendations on the DRI and the Zoning Board will make recammendations on conditional use approval for parking and residential uses and variances for height and setbacks. To assist the City in technical evaluation of the project, the Planning Department has convened a Large Scale Development Committee representing City and Metro agencies. Presentation Mr. Ron Nestor, Project Manager, Holywell Corporation will describe the project and process and will be available to answer questions of the Commission. It is requested that 20 minutes be reserved on the morning Commission Agenda of March 8, 1979, for the presentation and Commission questions. JR:atm Page 2 of 2 l' Cl`' ilk•?•1�, ri :ICA Mayor and Members of the :,,. March 2, 1979 City Commission Joseph R. Grassie `• City Manager n .r :RE'N t:•.CLc :u-7VS Probable Financing for the Ball Point Project In an effort to secure for ourselves some better assurance with regard to the financeability of the proposed private project at Ball Point, and keeping in mind that the intitial investment is estimated at $100,000,000, I have directly contacted the two financial institutions which the developer has identified as backing for his project. The first of these institutions was the Banker's Life Insurance Company, and in talking with Mr. Dennis Francis, Vice President for Mortgage Financing, he indicated that he had processed three similar loans in the last three years for projects development by Mr. Gould, and that the Ball Point Project could probably go to finance committee for approval within two weeks once it was presented by the developer. He saw no reason why the project could not go ahead and felt that it was entirely financeable. The second institution was the Metropolitan Life Insurance Company, and in speaking with Mr. Charles Sayres, Vice President for the Southeast Region, we were informed that Metropolitan has financed several projects with Mr. Gould in the last four years. Based on that record, and based on a preliminary set of figures regarding the financing for the Ball Point Project, Mr. Sayres felt that the financial plan was realistic and that the project was financeable through Metropolitan. The general reaction of these institutions to Mr. Gould as a developer was in both cases very positive.