*1 Act), denied, Ann. 22-2- cert. pursuant to S.C.Code granted statute, (1958). This how- 3 L.Ed.2d 65 (Law.Co-op.1984). ever, magis- within a to all offenses applies finding with our In accordance that a general applicabil- jurisdiction. trate’s D.U.I. first offense South Carolina is variety of offenses statute to ity of this it is not “petty” and that assimilated as an indicator of the authority weakens its (1982), affirm U.S.C. the district § offense. of a D.U.I. first nature serious deny judgments appellants courts’ penalty, collat- Considering the maximum by jury. right to trial mood, public consequences, national eral AFFIRMED. jury statutory right to Carolina’s and South trial, that the district court we cannot rule of the offense finding the nature

erred thirty potential sentence

“petty.” The fine, the

days imprisonment $200.00 considered, is to be important factor

most so- lenient, thereby indicating a

extremely first offense is not that a D.U.I.

cietal view are not suffi- factors “serious.” other III, Fred B. Paul SHELTON John clear outweigh the ciently compelling to Jones, Plaintiffs-Appellants maximum arising from the mild implication Cross-Appellees, penalty. appeal also contend Appellants Act5 assimilates Assimilative Crimes STATION, al., et CITY OF COLLEGE right jury trial for into federal law a Defendants-Appellees Const., provided by S.C. first offense D.U.I. Cross-Appellants. I, Ann. 22-2-150 14 and S.C.Code art. § § No. 83-2765. disagree. (Law.Co-op.1984). We right constitutional South Carolina’s Appeals, States Court United only to those cases jury applies trial Fifth Circuit. by jury required at the a trial

which 6, 1986. Jan. adoption of the state constitu time of the Co., Contracting tion. Matthews C.W. Commission, Tax

Inc. v. South Carolina (1976); 548, 230 McGlo

267 S.C. S.E.2d Harlan, 254 S.C. S.E.2d

hon v. not (1970). first offense did A D.U.I. passage of South at the time of the

exist Therefore, jury Constitution.

Carolina’s in South Car right

trial for such offense merely procedural. See S.C.Code

olina is result, right is

Ann. 22-2-150. As § law the As into federal

not assimilated Kay Act. See v. United

similative Crimes (4th

States, Cir.) (procedural 255 F.2d 476 adopted by the generally

rights are not State, jurisdiction or omitted within 5. The Act states: Possession, Territory, District in which upon any places Whoever within or situated, by place the laws thereof such existing reserved or ac- or hereafter now quired omission, act or shall time of such force at the title, provided 7 of this as in section subject to a like guilty of a like offense which, although guilty any act or omission punishment. by any punishable enactment not made 13§ 18 U.S.C. punishable Congress, if committed would be *2 Nelkin, I Nelkin, Rose & Stuart Nelkin Harris, Reeser, A. Mende M. Margaret Ann Shelton, B. Fred III and John Tex., Houston, plaintiffs-ap- Snodgress, building Paul Jones leased a at 403 Univer- cross-appellees. sity College Station, pellants Drive Texas. The area, building Northgate located in the Primm, Woodard, But- Hall William B. & *3 directly adja- an older commercial district Locke, Houston, Tex., City ler, Cathy Asst. cent to campus the of Texas A & M Univer- Tex., Station, for defendants- College Atty., sity, is conceded worst which to have the cross-appellants. appellees parking problems city. traffic and the before, passed Years the had a zon- ing requiring specified minimum ordinance parking spaces of off-street numbers Few, types any, of businesses. if different GEE, CLARK, Judge, and Chief Before Northgate existing would businesses POLITZ, RANDALL, RUBIN, REAVLEY, require- to meet parking have been able the WILLIAMS, JOHNSON, TATE, GAR- ments, permitted and the ordinance the HIGGINBOTHAM, WOOD, JOLLY, DA- nonconforming of operation continued JONES, VIS, Judges. and Circuit HILL pro- preexisting businesses. The ordinance parking requirements the vided that would met if a a new have to be business built HIGGINBOTHAM, E. Circuit PATRICK its if building capacity, or increased or Judge: changed require park- more its business that review of long have insisted We ing existing nonconforming use. than the the domain of municipal zoning is within previ- building and Jones’s had Shelton states, legis- their the of own the business ously When photography housed studio. latures, agencies, judiciaries, and and building applied for a Shelton and Jones of federal seldom be the concern should the use as permit to remodel structure for zon- person disappointed A with a courts. tavern, in- pool city officials hall and ordinarily can interest the fed- ing decision they either formed that would have to them only that courts in a substantial claim eral spaces of provide the number off-street deprived has him of the state use or a variance required for that obtain of law. In the right process without due Zoning Adjustment. Board from the discrimination, suspect of invidious absence August applied for a The two variance criteria, infringement fun- classifying 1979. After debate over the amount interests, our review of these damental would attract drive-in traffic business quasi-legislative decisions confined pool peak hours and over whether hall’s “arbitrary and whether decisions were as those of area busi- were the same other capricious.” requirement substan- This nesses, August Zoning Board on process due under the fourteenth tive request by a 1-3 vote. rejected amendment, quite from distinguished as satisfy ex- In an effort to the board’s certain state laws meaning under different pressed parking, about Shelton concerns Pro- under the Administrative and federal space some 800 leased in a lot Jones Act, any if there was conceiv- cedure met building. not satis- This did feet from their zoning decision. rational for the able requirement park- fy ordinance’s Bradley, Vance 200 feet ing space be owned within L.Ed.2d 171 Persuaded use, and and Jones proposed Shelton fact genuine no issue of material there The vari- requested variances. twice more basis for the that there was a rational September denied on ances were bar, af- Al- respectively. case at zoning decision in the and October summary Zoning Board 3-2 in favor grant though voted district court’s firm the required request, the ordinance of each city. judgment for the four affirmative votes before a likely variance ents generate less park- additional granted. Finally, could be Shelton and ing problems than Shelton and pro- Jones’s sought a Jones variance use of the uses; posed they argued that any nonen- property as a video arcade rather than as a forcement of the by city ordinance building again pool hall. The board debated wheth- officials was irrelevant to the board’s deci- er the attract primarily arcade would drive- grant sions to deny variances legalizing traffic, or walk-in and on January noncompliance. rejected request by this fourth anoth- After briefing and argument, oral er vote of favor. granted district court summary judgment gave Although Texas law Shelton and for the defendants on both the substantive right Jones to substantive review procedural claims. state court of the denials The court relied on DeBlaker, 652 Couf v. variance, requested Board of the Tex. see *4 (5th Cir.1981), F.2d 585 denied, cert. (Vernon 1011g art. Supp. Rev.Civ.Stat.Ann. 921, 1278, U.S. 102 S.Ct. 1985); Adjustment, v. Board Swain of (1982), and South Gwinnett Venture. 1968, (Tex.Civ.App. S.W.2d 727 —Dallas Pruitt, (5th Cir.) (en 491 F.2d 5 banc), cert. w.o.j.), they writ sought dism’d never relief denied, 95 S.Ct. Rather, in the state approxi courts. after (1974), L.Ed.2d 64 holding that its review months, mately twenty they sued the zon was confined to whether the zoning deci ing city officials and the in federal district sions arbitrary were capricious. and Al court seeking money damages. They com though finding might that there plained be year that a little more than a some after “inferences,” denying “allegations,” request, their last the and a grant board “scintilla assertedly record, ed similarly variances to evidence” in the situ the court con ated and businesses thus “denied cluded that “there no evidence [their] that [was] process rights.” substantive due Shelton grant refusal variance and alleged Jones also a denial procedur case was arbitrary capricious.” and On the process al due in the failure of board mem procedural process count, due the court ber Murl Bailey to recuse himself from quoted holding that local Couf’s voting church, because his concerned that decisions were in nature and parking church reduced, would be opposed governed only by limitations on legislative parking variances in the Northgate neigh procedure, and that even actual bias on one borhood. part decisionmaker’s pro would not violate Defendants moved for summary judg- process cedural due in such situations. ment based on affidavits, their own panel A of our court affirmed the sum- minutes of the meetings board involving mary judgment procedural as to the due Shelton and requests, Jones’s depo- and the claim, but grant reversed the sitions of Jones and Shelton. Shelton and summary judgment as to the claim of sub- Jones, in opposition, submitted the minutes process, stantive finding genu- that “a of board meetings where other businesses dispute ine of material fact is demonstrated received They variances. also attached de- as to seemingly arbitrary whether the deni- depositions, fendants’ pointed plan- als parking variance were reason- ning director A1 Mayo’s statement that ably based on fact.” 754 F.2d most existing Northgate businesses, includ- (5th Cir.1985). urge Shelton and Jones ing began some that operating after the they also claimed that the board’s la- effect, ordinance took were not grants ter assertedly variances on sim- meeting parking requirements, equal ilar facts was a protection. denial of that the enforcing was not parking separately upon We do not hereafter focus against rules those other businesses. The equal protection. this claimed denial responded facts, defendants We by citing the by relied on conclude granting board in that there was a rational varianc- basis for es, that had made the other recipi- variance decisions. The classifica- valid, pursue analytical need not could either of therefore and we court two tions were regulatory A decision can legis- other asserted deficiencies. tracks. be address adjudicative, or it can be lative and it will II differently depending reviewed which placed category into. Our character- -1- ization of “quasi-legis- decisions as protected by of a Deprivation the state lative,” South Gwinnett Venture v. life, pre- liberty, property interest Pruitt, (5th Cir.) (en banc), pro- to a claim denial of due requisite denied, cert. in this interest asserted cess. (1974), might L.Ed.2d 64 suggest ambiva- right law to seek case was under state lence our choice between these two from an otherwise valid restriction variance suggestion tracks. Such a uncertainty of use. is not warranted. plainly We have state has It is not at all clear that the consistently held that zoning decisions are prop- such a deprived Shelton and Jones of reviewed to be federal courts real es- right. University Drive erty constitutional employ same standards re- subject to an ordinance tate statutes legis- review enacted the state parking certain for its quired a amount of latures. not attack the use. Shelton Jones did The most obvious difference between upon their use restriction ordinance tracks is in how judiciary two reviews “right” property. gave a The state facts behind the decision at issue. *5 variance, included review to seek a which adjudicative model, the historical facts are Zoning by a state the Board’s decision by judge jury determined or and thereafter argued It that be- court. can be district accepted unsupported by are to be unless this bypassed cause Shelton Jones adequate evidence found within a defined remedy, the state did not state-furnished general, In record. historical facts the any property, them of at least to deprive specific model adjudicative are case —for remedy that the was a ignored the extent speed example, the of a car or the condition protected property the interest. part of roadway. aof argu- and Jones reply Shelton that legislative quite Review of facts is differ- overly ment rests on an narrow view of ordinary litigation, ques- “In civil the ent. that, property. They viewed in argue their frequently party is tion which has shown terms, general property their more use of disputed likely a historical fact is more that arbitrarily re- has been restricted and that true____ [Hjowever, those than not be deprived fusing requested the variances challenging legislative judgment the must right them not the state-conferred legislative the court facts convince that the variance, underly- of the to seek but also apparently the on which classification is ing property. use of we conclude Because reasonably could not conceived to based Zoning had indisputably the Board governmental be true decisionmak- its a rational for available 93, 440 110- Bradley, er.” Vance U.S. decision, do not undertake the today 11, (1979). 99 L.Ed.2d 171 S.Ct. 59 ques- defining right task of deciding question of tion or the related against zoning plans Attacks invoke Shelton and deprived whether the state has only rarely model legislative and have any property. Jones See, e.g., sustained. Euclid v. Am been Co., 365, 114, Realty 272 U.S. 47 S.Ct. bler -2- (1926); Cambridge, reviewing In that a state 71 L.Ed. 303 Nectow v. a claim 183, 447, L.Ed. 842 by zon 277 48 S.Ct. process denied U.S. has substantive basis, (1928).1 held that an Euclid Nectow ing property without a rational Co., Nectow, gener- expressly Realty held that decision in that which 1. reaffirmed public to the v. Ambler case bore no "substantial relation al standard of review set out in Euclid Nothing legislative to be declared unconsti- internal to the ordinance was not model “clearly arbitrary impedes application unless and un- specific zoning tutional to a reasonable, having no substantial relation inquiry decision. The remains the same: health, morals, public safety, gen- there a was conceivable factual basis for Moore v. East eral welfare.” See Cleve- specific decision made? Whether 494, 6, 1932, land, n. 431 U.S. 97 S.Ct. support courts will insist for such a (1977) (plurality L.Ed.2d 531 1935 n. regulatory proven decision take the form of Stevens, opinion). Justice whose concur- hypothesized legislative historical facts or ring necessary to constitute the vote facts is not a function of whether the ordi- Moore, majority expressly re- general specific nance attacked is one of Id., these deferential standards. affirmed Rather, application. opting for adjudi- 520-21, 1946; at 431 U.S. at see analysis virtually cative track of a direct Boraas, Village also Belle Terre v. proxy deciding for legislative review the 1, 94 S.Ct. U.S. process rather rationality than the of the Although result. This must Euclid and Moore were frontal be true unless basis, priori than there is an attacks on ordinances rather as we think there not, specific application, on their distinguishing legislative attacks from also, recently, Court has and more treated adjudicative acts. specific zoning the denial of a variance in a script of the trial ordered Arlington case as a act. In panel this case illustrates sharp how its Metropolitan

Heights Housing Corp., adjudicative toward an move model would 97 S.Ct. 50 L.Ed.2d 450 directly affect the structure of the state- (1977), Chicago grant refused suburb deciding zoning ques- created zoning change single family from to multi recording tions. The of evidence and its ple-family dwelling. elaborating sources Board would become proof requirements Washington v. Da important. knowledge more of the vis, 48 L.Ed.2d would, members board we must ex- (1976), term, previous handed down the pect, be determined from the “record evi- analysis requirements the Court’s *6 change dence.” Their role would from that proving discriminatory purpose relied deciding the best course for the commu- upon Indeed, legislative the model. the nity adjudicating rights to the of contend- opinion labor of the Arlington Heights was words, ing petitioners. In other the effect proof purpose to accommodate of racial panel of the decision would have been to with the deference that must be shown move the function of a member of the legislative process. Similarly, toward the legislator Zoning Board from that of to- legislative this court has remained on the judge. ward that of turning track when from a frontal attack panel are confident that the did not We plan specific on an ordinance or itself to a apply intend this result. It claimed to the City decision. See Blackman v. legislative deferential standard of the mod- 935, (5th Big Sandy, 507 F.2d 936 Cir. zoning decisions were 1975); Pruitt, el—whether the arbi- South Gwinnett Venture v. capricious analysis 5, (5th Cir.) (en banc), trary and it 491 F.2d 7 cert. —but adjudicative model insist- denied, 837, 66, shifted to the 419 U.S. 95 42 S.Ct. (1974); ing upon trial-type proof pur- of both the 64 Higginbotham L.Ed.2d v. Bar basis, rett, 745, Cir.1973). Zoning decision (5th pose, or of the Board 473 F.2d 747 Cf 1285, Holmes, rationality the of its attainment. Its Stansbery v. 1288 and (5th Cir.), (1980). Significantly, denied, upon was record facts. cert. 449 U.S. 885 focus health, morals, judgment safety, general for that of the or welfare.” Nec- tut[e] [their] authorities

tow, 188, primarily charged duty 277 U.S. at 48 S.Ct. at 448. In reach- with the conclusion, ing Supreme the Court relied determining [zoning] ques- responsibility of findings way on the of a state court and in no Id. tion^].” intimated that federal courts are free to “substi-

481 unresolved issues of material (1972), found fact Harv.L.Rev. 1 panel in the case affidavits, and from from the sworn at bar went even further in that its ordered Shelton, Jones, testimony of the members required proof trial would have of the actu- Board, Zoning manager, of the purpose. al Not only did the Board presumably all of whom would have testi- articulate a rational basis that was indis- fied at the ordered trial. putably general welfare, related to the question there was no but that the articu- approach This is at odds with constitu- lated basis was a basis for decision. The legislative act. tional review of Justice trial panel ordered confounds its part problem explained Powell attempt apply to proper standard of Arlington Heights Metropolitan Hous- legislative review of a act. 252, 18, Corp., 268 n. 97 ing 429-U.S. S.Ct. Such confusion of the and ad- 18, (1976): n. 50 L.Ed.2d 450 judicative models has two cardinal flaws. recognized, has This Court ever since By sharply cutting the deference due state Peck, Fletcher v. 130-31, 6 Cranch decisions, inject it would federal courts into 87, 130-31, 10 U.S. (1810), 3 L.Ed. 162 historically matters the business of states inquiries judicial into subject police power. to their It represent executive motivation a sub would, specifically, more alter the decision- workings into the stantial intrusion processes al issues. The differ- government. Placing other branches ence an inquiry between into whether there on the stand is therefore decisionmaker any possible legisla- rational basis for “usually to be avoided.” Citizens tion inquiry and an into the actual basis of Volpe, Preserve Park v. Overton legislation significant. A court’s as- S.Ct. U.S. [91 sumption power to decide between problems in L.Ed.2d The 136] competing legislative proposals to re- prompted good volved have deal of quire prove state to validity of its scholarly commentary. See Tussman & quickly right choice is change tenBroek, Equal Protection legislative process Gunther, itself. supra. Laws, (1949); 37 Calif.L.Rev. 356-61 Supreme As the Court observed in McGin- Bickel, A. Dangerous Least Branch 263, 276-77, Royster, nis v. (1962); Ely, Legislative and Ad 1055, 1062-63, (1973): ministrative Motivation in Constitutional Law, (1970); Brest, 79 Yale L.J. 1205 legislative purpose The search for is of- Thompson: Approach An enough, ten elusive Thomp- Palmer v. [.Palmer son, Legisla Problem Unconstitutional Motive, Sup.Ct.Rev. 95,116-18]. (1971), tive require- L.Ed.2d 438 without a ment primacy Leg- be ascertained. *7 Although suggestions there have been that frequently is multipurposed: islation legislative ought defense of a decision to of even a purpose removal “subordinate” rest hypothe- on articulated rather than may altogether shift the consensus of see, purposes, e.g., Roy- sized McGinnis v. legislative judgment supporting the stat- ster, U.S. 35 L.Ed.2d ute. (1973); Gunther, Court, Supreme may legis- In That a state choose to Term—Forward: Search Evolv- make a Changing by process on a a ing Doctrine Court: A lative decision that resembles Protection, Equal adjudication Model a Newer is not our immediate concern.2 sepa- impose separa- in which a chooses 2. The manner state tution does not the doctrine of states, delegate governmental power powers upon rate and under so tion of that without ordinarily adoption by state law is not a matter of concern of the rule a state itself there Singer, requirement separation powers under the U.S. Constitution. See 1 N. no in state (footnote Statutory omitted)); government.” Sutherland Construction 3.02 § see also (Sands 1985) ("The Co., guarantee repub- Creamery 4th ed. of a Minnesota v. Clover Leaf government by lican form of the federal consti- 461 n. 722 n. 66 L.Ed.2d event, question anything rights. any judicial is whether in the Our enforcement requires fourteenth amendment it to do so. procedural of the Constitution’s minima in consistently We have said “no” to that upon legislative such cases intrudes question again today. so and we do process way quite in a different accompanies from the intrusion that a fail- upon We hold that the outside limit properly apply ure model. police of its in power a state’s exercise It thing is one for federal courts to insist zoning they is that must decisions have procedural upon rights such as fair notice expand rational basis. The dissent would quite another to measure the relative this traditional fourteenth amendment probative force and substantive content of holding by standard that if a state some resulting zoning govern- decision. A zoning power to exercise its times chooses body mental conducting a zoning hearing adjudica a manner that more resembles might required well be process the due legislation, the im tion than Constitution give notice, clause to perhaps certain greater poses upon new and constraints participatory rights, property affected police power. Apparently, exercise Although owners. zoning we hold that a police power new limit on this the state’s justified by hypothesized decision can be would, part, allowing take the form of purposes in triggering the absence of such zoning federal trier of fact to set aside property rights, acknowledge decision that it believed was somehow arbi when affected, trary capricious, rights if such are procedural even there was not a later a conceivable inquiry might require zoning rational basis for the due point decision but also an articulated .that board to to a rational basis that was indisputably reject employed rational. We this reaching its decision. We proposal. The states are free to make zon need not decide question today this because ing decisions in what the dissent labels a requirement indisputably such a would . “quasi-judicial” manner. But case, neither the have been met as the dissent Supreme sug Court nor this court has ever appears by declining to concede to assert a gested that such a choice the state procedural process. violation of due metamorphosis works a Constitu impose dissent would nonetheless addition- rationality. tion’s demand for minimum procedural requirements al as a substan- good Aware of no reason to alter settled tive matter. This ill-defined insistence on law, constitutional we decline to set out on facilitating judicial federal review would path proposed by the dissent. effectively compliance make with the Ad- Act, ministrative Procedure or rather with As one turns from a frontal attack interpretation some extreme of that stat- on a specific zoning ordinance to a ute, requirement. a constitutional We de- decision, it greater is true that there is a adopt expansion cline to such a strained encountering protected prop likelihood of meaning of the fourteenth amendment. interests, erty trigger proce which can dural process inquiry. But a state’s -3- adjudication-like use of an mechanism for trigger decisions does quasi-legis not itself Given the decisions, inquiry such an create such lative nature of their re (1981) ("[T]he Amendment, process likewise, states are free to allocate the clause of the Fourteenth lawmaking function to requires separation whatever branch of state neither of state *8 (citations government they may choose.” omit- powers prohibits delegation." nor their 1 N. ted)); Dist., Ohio v. Akron Metro. Park 281 U.S. (footnote omitted). Singer, supra, § 4.04 See 74, 79-80, 228, 230, (1930) 50 S.Ct. 74 L.Ed. 710 also New Motor VehicleBoard v. Orrin W. Fox ("As guaranty every republi- State of a 96, 104-08, 403, 409-11, Co., 99 S.Ct. 439 U.S. (Sec. IV), government can form of 4. Art. it is (1978) (due process 58 L.Ed.2d 361 clause leaves questions arising well settled that the under experiment the states wide discretion to with political, judicial, are not in character and thus regulate administrative mechanisms that com- Congress are for the consideration of the enterprises). mercial (citations omitted)). not the courts.” "The due

483 might category. into quite key different fall The in- federal courts view they may to which be quiry question from the review is whether the is “at least See, Flem- e.g., subjected by state courts. debatable.” See Clover Creamery, Leaf Tacoma, 81 Wash.2d 292, City v. ing 464, is, at 101 449 U.S. S.Ct. at 724. If it of (1972) (rezoning amendments P.2d 327 502 no denial there is of pro- substantive due Washington subject to review under are cess as a matter of federal constitutional doctrine). It is “appearance of fairness” law. cer- from the very different review also -4- where, actions, tain federal administrative pause We here to note that last term the statute, if must be overturned a decision Supreme Court used the rational basis test on evidence” supported not “substantial to strike down three See, e.g., decisions. Motor Vehicle Mfrs. the record. Co., City v. Living Ins. See Cleburne Cleburne v. Farm Mut. Auto. Ass’n State — Center, 2866-67, 2856, U.S.-, 29, 3249, 77 103 S.Ct. 105 S.Ct. 463 U.S. 87 (1983). (Í985) schemes (Texas Unlike such municipality’s L.Ed.2d 443 L.Ed.2d 313 de- review, judicial federal for administrative proposed cision bar home for the men- zoning state board’s interference with a Metropolitan retarded); Ins. Co. tally Life — decisions, like invalidation quasi-legislative Ward,, U.S.-, 1676, v. 105 S.Ct. 84 “irrationality” or legislation for “arbi- (Alabama (1985) L.Ed.2d 751 insurance tax trariness,” only governmen- if proper insurers); v. favoring resident Williams rea- — body legitimate could have had no tal Vermont, U.S.-, 2465, 105 S.Ct. 86 See, e.g., Minnesota v. son for decision. (1985) (residents-only exemption L.Ed.2d Co., 456, Creamery 449 U.S. Clover Leaf pur- from Vermont use tax on cars 715, 724, 464, L.Ed.2d 659 101 S.Ct. state). implications chased out of The full Bradley, 440 U.S. (1981); Vance v. of these three decisions for the deference 949, 939, 99 S.Ct. given legislative to be acts are uncertain standard, fully though always not This essentially but irrelevant to this case. elaborated, uniformly practice has in been expressly the Court Ward declined to Compare South zoning followed in cases. there decide whether was rational rela- Pruitt, 5, 7 Gwinnett Venture 491 F.2d tionship legislative purposes between the (en banc), denied, (5th Cir.) cert. differential, 1680, and the tax 105 S.Ct. at (1974); L.Ed.2d 64 equal protection it observed that but Peres, 534 F.2d 103 City Burns v. Des analysis relationship rational between a denied, (8th Cir.), cert. legitimate purpose resulting legis- and the and Lake- (1976); 50 L.Ed.2d lation “is not difficult to establish” and the Community Hosp. Regional side Tahoe relationship question of rational need Planning Agency, F.Supp. 1155- (cita- Id. at 1683 “at least debatable.” (D.Nev.1978), basing rejection their all omitted). The confined its re- tions Court arbitrary rezoning denials of of claims of proffered legitimacy view to the zoning authority’s articulation of legislative purposes themselves. In the with v. Zon- decision, Shenk for its reasons bar, case at there is no contention that Comm’n, 440 F.2d 295 (D.C.Cir.1971); ing legitimate purpose traffic control was not County, and Scott v. Greenville zoning only question decision. (4th Cir.1983), sustaining ar- denial of a here is whether au- complaints after bitrariness debatably” served the variance “at least legitimate ground no at thority could offer purpose of traffic control. all for its act. Williams Court concluded that suggest decision We do not purchase buyer’s residence at the time mouthing irrational justified by an can be imposing dif- not a rational basis arbitrary otherwise decision. an purchased cars obligations on King ferent tax building permit on the A denial of a brought into the state. parking and then inadequate outside Ranch because of *9 Court, examining the face of the suggested, example, stat- that their busi- ute, could find “no relevant difference” mostly nesses would have attracted walk-in groups taxpayers, two between the and traffic. Under the correct standard of re- improper view, only held that it was to dismiss questions. cannot reach such Not action, claim, for failure state a was the control parking and traffic congestion legitimate before an answer was filed. 105 S.Ct. at purpose, it is undis- below, puted there are such parking problem. 2474. As we show that was a It was in the case at indisputably “relevant differences” bar. also rational for the board to conclude that Shelton and propos- Jones’s City Cleburne Court reviewed als could parking have added to the prob- proffered legislative the several reasons lem. It follows that the board’s decisions requirement for the that a home for retard- denying the variances cannot have been persons, ed but not other similar residences arbitrary Indeed, on their own merits. dormitories, special-use such obtain a as deposition Shelton conceded in his that it permit. explanation It found each internal- was people disagree “reasonable” for as absurd, ly contradictory or and concluded many to how customers would have driven that the must ordinance have “rest[ed] business, to his say and Jones could not prejudice against an irrational the mentally that there was any “not room for differ- retarded____” 105 S.Ct. at 3260. As we opinion” ence of on his and Shelton’s re- below, show such no conclusion is neces- quests for variances. sary in the case at bar. Significantly, in none of these cases -6- Entailed in panel’s conclusion suggest legislative pur did the Court that that there are this case issues of fact for pose hypothesized. cannot Implicit be a jury, is the further jury conclusion that a acceptance all three was the Court’s might properly find that there was a ration principles legislature that gov or other al basis for the decisions. Under erning body express need not all pur its model, which asks whether poses when it acts and that the defendant question debatable, the factual least at in a constitutional prove case need not grant district court’s of defendants’ legislative purpose as a historical fact. Far motion summary judgment was a treating question from rationality as forti proper. Detailing ori the record evidence a historical fact necessarily subject to evi unnecessary is therefore an exercise. We dentiary procedures findings of a trial turn nonetheless to that record because court, Court each case looked for a persuaded plaintiffs panel of our court conceivable implicit rational basis for the that there was an issue of fact for trial and judgment governing body that its appropriate analysis because the of the fac legislative purpose was served its deci background may tual of this case in deprivation sion. Even when prop of a structive. erty right triggers procedural may require standards agency a state rely Shelton and primarily Jones on three point to be able to to a rational basis em variances, granted year all more than one ployed reaching decision, opposed as request, after the denial of their last as others, to a hypothesized by basis later evidence that Board treated nothing requires proof the, as distin differently identically them from situated guished a, from basis of decision. applicants. granted The first was on Janu- ary year after the board had

-5- plaintiff’s zoning request, denied last Larson, Much energy, Stephen of Shelton and Jones’s Michael Flowers and who court, both below and in premis- has been had subleased Shelton and Jones’s arguing devoted to proposed University operate their es at 403 Drive to meeting businesses would not have exacerbated Col- restaurant. The minutes of the lege parking problems they granted Station’s have where that variance was show that — *10 supplying Upham, parking space a defendant not the amount of member Jack board ordinance, here, prior required by the “pointed that the variance and that some of out type began operations of busi- were for a different these businesses after requests ness,” that the restaurant busi- and “stated the ordinance took effect. Shelton and competitive than those busi- argued ness was more Jones below that “no enforcement requests, and proposed earlier past nesses in the ... is the same as a de facto likely variance,” would be more that walk-in business urge here that because of thus had enforcement, restaurant.” The board be- city’s at a lax the denials of parking-related reason for distin- fore it a requests arbitrary. their variance were request of guishing Flowers between disagree. undisputed We evidence is and Jones. and Larson and that Shelton independently in- city that the declined to would draw more Whether restaurant compli- spect any operating businesses for pool in 1981 than a pedestrian customers ordinance, ance with the and instead acted year have drawn a hall or arcade would only upon complaints citizen or when busi- at least debatable. earlier is sought permission nesses to remodel or expand, as Shelton and Jones did. There is point also to a vari- Shelton and Jones concluding passive no that Johnny April 1981 to granted ance policy city approval enforcement reflected of a Pizza Hut at 501 Lampo, the owner existing violations, or that a business Drive, Lampo’s University conditioned on noncompliance city’s whose did come to the space. Lampo acquiring parking leased ignored. Quite attention would be spaces in the same lot that leased three contrary, Mayo testified that on the one unsuccessfully and Jones had Shelton occasion on which officials of the approval to use. Minutes of sought board independently office became aware of a that Zoning Board record recite noncomplying (Charley’s Grocery), business Lampo needed persuaded was that board it that it had they informed to seek a employees, for his parking additional variance, ultimately and the violation was planned had while Shelton and Jones case, any policy In if eliminated. even park in the distant leased have customers existing acquiescence tacit violations validity, this lot. Whatever its ultimate inferred, not irration- were it would render the deci- certainly a rational basis for request of a for a variance al the denial reasonably could have sion. board formally noncompliance validate that would employees would more concluded with the ordinance. lot. likely than customers to use a distant short, In had “at least debata- granted The third cited variance was distinguishing action grounds for ble” video July Ed Walsh on 1981 for a requests from its Shelton and Jones’s University arcade at 315 Drive. Walsh on respect conduct with to other businesses space, requisite parking leased the but also As a matter of constitu- properties. spaces imme- undisputed it is that his were law, then, tional it did not treat Shelton business, rather than 800 diately behind his capriciously arbitrarily and and did Jones away, and Jones’s lot. feet as with Shelton deny process. due not them substantive so, initially turned down the board Even holding unnecessary to ad- Our makes approved only a request, and one- Walsh’s immunity claim of under dress defendants’ subject at year variance to board review Fitzgerald, Harlow v. here, far year’s end. The action board’s being arbitrary, demonstrates a seri- from parking entirely consist- ous concern about with its treatment Shelton

ent III Jones. procedural the role of Whatever be here, persuaded, as addition, we are cite the Shelton and Jones panel, and the A1 the district court testimony city planner were deposition mere member- Bailey’s Northgate Mayo that most businesses were member] “[board ship opposed in a church that also as the deliberate enactments of highest grant *11 by legislature. variances does not itself state bias, an establish nor raise issue as to an plaintiffs The in this case do not chal- ‘irrevocably might closed mind’ justify lenge adopted ordinance by the disqualification hearing____” his from the vote of a body. local They com- (citing 754 F.2d at 1259 FTC v. Cement plain only of the allegedly arbitrary and Inst., 793, 803, 68 S.Ct. discriminatory denial of application an for a (1948)). 92 L.Ed. 1010 variance from such by an ordinance an appointed Adjustment Board of to whom IV city’s delegated lawmakers have limited majority While a reject- court has powers. The actions of such body on the claims, ed the constitutional per- we are application individual of the owner of a “frivolous, suaded that this suit is not un- specific property do not merit the defer- reasonable, or without foundation.” Chris- ence accorded to enactments. tianburg EEOC, Garment v.Co. majority nominally concedes that a 412, 421, adjustment board of legisla- is not a (1978). We reject therefore defendants’ body, although tive opinion chooses to cross-appeal for attorneys’ fees under 42 call its quasi-legislative. actions The ma- U.S.C. 1988. § jority professes apply the long-accepted The district judgment court’s is AF- standard of review for the decisions of FIRMED. agencies, such however characterized: Only arbitrary HILL, capricious ROBERT MADDEN actions of the Circuit Zoning Board Judge, would violate concurring: constitutional rights subject and become judi- to federal Although I was panel a member of the in cial review. This is the standard to which this case that grant reversed the of sum- we also In applying subscribe. the stan- mary judgment plaintiffs’ as to claim of a dard, however, it, the majority distorts process deprivation substantive due arising equating it with “the same constitutional out of the Zoning Board Adjustment’s standards employ to review statutes grant plaintiffs not to decision an off-street by legislatures.” enacted state The test of parking variance, I am persuaded now unconstitutionality is thus alchemized from no substantive due violation oc- arbitrary capricious action to whether curred reason of the Board’s decision. “any supports conceivable rational Accordingly, join I in the en majori- banc the decision.” The majority’s acknowl- ty’s opinion holding that the district court’s edgement passant en that we are not re- grant summary judgment in this case viewing legislative action is washed over was correct. a flood of citation to cases that in fact TATE, B. RUBIN and ALBERT ALVIN by truly legislative review enactments bod- Judges, POLITZ, Circuit with whom JOHN- ies. WILLIAMS, join

SON and JERRE S. dis- Applying standard, this transmuted senting: majority disputed finds no facts that war- We dissent from the majority’s opinion taking plaintiffs’ rant past cláim sum- fundamentally because mary judgment. misconstrues practice, their stan- dard, both the character of the name, Board’s pretermit new all but will action, our reviewing case, role in such disputes every ac- factual even when compliance tions for genuine disputes exist, with fundamental con- of material fact guarantees. By stitutional procedures a stroke of the the actual facts and that led to judicial pen, zoning adjustment boards of Zoning Board’s determination become legislatures have become and the action of judicial inquiry. irrelevant to the The real every municipal facts, however, state or agency, ignored. however must not thus be petty, is now entitled to the engaged quasi-judicial same deference A board was, particular zoning determinations, subject problem stances of the as this one apply legisla- whether, to a presented, that do not and to determine to constraints we review the constitutionali- specific property, exception When an ture. ordi- actions, we must do so on the basis ty of its must nance is warranted. Board hold and the facts its actual conduct hearing give public notice to the constitutionality it. The record before decisions, parties in interest.5 Its unlike action of an administra- quasi-judicial council, legislature or a are those of a with the defer- agency is not reviewed tive courts, subject to review the Texas enactments, and the given legislative ence affirm, modify or may which reverse the *12 by such a board are not sanitized actions of decision.6 board’s concerning the conjecture factual post-hoe might conceivably have it determinations review, To formulate its standard of challenge genuine creates a made. When a majority opinion perceives relies on what it relating the ra- dispute of material fact to applicability legislative to of rather board, tionality of the actions of a adjudicative “In general,” than facts. it on the plaintiffs right to a trial merits states, adjudicative “historical facts in the in of must not be a shroud affida- buried Here, specific____” model are case vits. Zoning Board acts and indeed must stat- act, just case-spe-

ute on the basis of such presented cific facts: those to it at the I. hearing, in and conditions the immediate Adjustment Board of created geographic Although area. the Board Station, pursuant City College of to plan purpose must consider the and authority,1 typical statutory Texas of whole, primary a ordinance as basis for in most It re- those found states. bears no determining whether the terms of the ordi- legislature. a Its are semblance to members nance is the should be varied actual situa- and, in appointed,2 the words of stat- property question tion of the in in relation ute, subject “may, appropriate in eases neighboring properties, hardship to on safeguards, appropriate conditions to applicant the variance that would result exceptions of special make to the terms ordinance, from enforcement of the and the harmony general pur- in with its ordinance community permitting effect on the empow- and intent.”3 The Board is pose variance. The facts involved this kind of administrative matters ered to decide they adjudicative a decision are because “upon appeal specific to authorize particular relate to the details of one case.7 from the ordinance when cases” variances that, conditions, owing special “[Ljegislative Conversely, finds facts do not parties.”8 would result unnec- usually literal enforcement concern the immediate seeking hardship party to the a vari- essary statutory adjustment A has “no board power to enact or ance.4 The Board has no power legislate.” The kind of action plans, either amend classification characterized such a board takes cannot be geographic other municipality-wide Instead, quasi-legislative. it is as even scope of the Board’s The limited basis. universally, almost character- properly, and analyze the circum- authority requires it to Davis, (Vernon lg 2 K. Administrative Law Treatise art. 101 7. See Tex.Civ.Stat.Ann. 1. 12:3, (2d 1979). Hornsby Supp.1985). ed. § & at 415 Cf. Allen, (5th 1964). Cir. 1011g(b). 2. Id. at § Davis, supra at 413. 8. K. note 1011g(a). § 3. Id. at 1011g(g)3. § 4. Id. at Adjustment City San Antonio v. 9. Board Willie, (Tex.Civ.App.1974). 511 S.W.2d 1011g(f). § 5. Id. at 1011g(j)-(m). § 6. Id. at or administrative may That quasi-judicial action. “a state choose

ized as Board’s to make a decision act.10 adjudication” is of no that resembles conse- quasi-leg- in which the zoning cases Most thereby elevating quence majority, invoked have has been islative standard every of review for state the standard stemming ap- from the challenges involved acting under mandate to agency legisla- of a zoning ordinances plication of legislature itself. the level of the character, property- on a not attacks tive of ad- specific decision of board response is no This kind of sub- reflexive expressed the justment.11 Justice Stevens analysis. occasions stitute for On other clearly, quoting Supreme distinction carefully has scrutinized local this circuit Oregon: Court of self-proclaimed “zoning” that were actions laying general policies down Ordinances decisions, has dissuaded refused to be specific piece of regard to a without by the mere incantation of the from review legis- usually are an exercise of property Thus, “zoning”. Bayou Landing word hand, authority____ the other lative On Watts,13 carefully reviewed the refus- permissible a determination whether Rouge’s city council to issue an al of Baton specific piece should use of a *13 occupancy permit to an adult bookstore. usually judi- changed is an exercise of be zoning, Distinguishing that action from propriety subject is authority cial and its said, non-particular- “Zoning ... connotes a altogether to an different test.12 process in which rules are legislative ized procedural majority's The admission designated on promulgated and land areas process scrutiny might properly ap- due 14 general, prospective basis.” plied Zoning Board’s decision demon- nonlegislative charac- strates the Board’s The same careful distinction was ob- however, majority, The neither admits ter. by the Eleventh in served Circuit Southern inconsistency exacting pro- the involved Development Drig- Fund v. Cooperative deci- cedural in which the court stated: gers,15 sions, statutory nor considers the limited plaintiffs challenge the ex- The do not Board, allega- authority Zoning of the legislative function Manatee ercise of complaint, specific or the facts tions of the validity legality of the County, or the or Instead, leaps from the here involved. zoning contrary, ordinances. On affects mere fact that the Board’s action urge Reg- that the plaintiffs Subdivision the use of zoned to the conclusion applied What we ulations be as written. zoning, is in itself and that a that the action is upon are called to decide whether conjectural set of facts validates 1029, Ent., Inc., 1980), denied, (3d 101 City City Cir. cert. 450 U.S. 10. Eastlake v. Forest 426 of 2365-68, 668, 683-87, 2358, 1737, (1981). 49 L.Ed.2d 223 But Scud U.S. 96 S.Ct. S.Ct. 68 cf. Brennan, 132, (1976) (Stevens Greendale, (7th 141 F.2d 999 L.Ed.2d der v. Town 704 of 198, JJ., Schwab, dissenting); Robey Cir.1983). F.2d 307 (D.C.Cir.1962). Cunningham, generally See 201 Rezoning By Amendment as an Administrative Ent., Inc., City 12. City v. Forest 426 Eastlake of Quasi-Judicial "New Look” in Mich- or Act: The 2358, 2367, L.Ed.2d S.Ct. 49 U.S. 96 1341, igan Zoning, 73 Mich.L.Rev. 1341-42 Brennan, JJ., 132, (1976) (Stevens and dis- 143 Note, (1975); Developments in the Law —Zon- County senting) quoting Fasano v. Board of 1427, (1978); ing, 1512 3 R. 91 Harv.L.Rev. 580-81, 23, 574, Comm’rs, 26 507 P.2d 264 Or. 20.01, Anderson, Zoning at § American Law of Babcock, (1973). Zoning Game 158 R. Cf. (2d 1977). ed. 462 (1966). 585, See, DeBlaker, e.g., 11. F.2d 652 Couf denied, (5th Cir.1977), 13. 563 F.2d 1172 cert. 439 denied, 921, (5th Cir.), 102 cert. 79, U.S., 818, (1978). 58 L.Ed.2d 109 99 S.Ct. 1278, (1981); Stansberry v. 71 L.Ed.2d 462 S.Ct. 1285, Cir.), Holmes, (5th cert. 613 F.2d 1289 14. Id. at 1175. denied, 240, 66 L.Ed.2d (1980); Big Sandy, City Blackman v. 507 112 denied, Cir.), (11th cert. 15. F.2d 1347 (5th 1975); City F.2d Cir. Nasser v. Homewood, (11th Cir.1982); U.S. Rogin Township, 616 F.2d v. Bensalem geographic zoning plans. The actions were authorized as Commission- Commission’s law, if so ers, matter Florida wheth- College unlike the Station in violation er their actions were Board, required by were not statute to hold Process of the Fourteenth Due clause adjudicative hearing taking an before ac- Amendment.16 so, spot tion. Even its characterization of come, for the As the Circuit Court District of zoning quasi-legislative has under as has written: Columbia recent attack.21 complainant makes a factu- ... [W]hen zoning on showing one eases relied indicating that Each of the other

al [the arbitrary is zoning actions only with area-wide majority commission] deals action cannot be sustained unless cases, as zoning these legislation.22 forward, puts or the the Commission Pruitt, pretend ignore not to courts did discern, some court otherwise able zoning com- facts on which the the actual justify in fact and law to the action mission, council, acted, but or board as consistent with reasonableness.17 if the record to determine reviewed the primarily leg- Whether action was, fact, rational decision judicial on all depends islative action of a nonarbitrary.23 circumstances, including the nature of the exercising administra- its limited board authority body proceeding application decide on an authority tive The ma- that makes determination.18 differs toto cáelo from a variance Gwinnett Venture v. South jority relies legislative enactment. support its characterization Pruitt19 College qua- decision Station Board’s as in labeling What is at stake a decision Pruitt, however, si-legislative. character- quasi-legislative than rather *14 rezoning and only ized area-wide linguistic than nice- quasi-judicial is more a quasi-legislative, a activities as character- A entitled to ty. legislative enactment is upon by essentially agreed ization commen- by judicial reviewed the deference when alike, and courts and one with which tators branch, “great be accorded and must Pruitt in complete are agreement.20 ques- weight” constitutionality its is when rezoning single of denominated the a also degree judicial defer- tioned.24 A similar of opinion, The property quasi-legislative. governments when local appropriate ence however, reviewing was the action of the de- and the exercise their Commissioners, legisla- County Gwinnett powers,25 legislatures zone or to local body empowered to enact and amend cisions of tive Harris, Rezoning Legislative Be a 1351. 21. It 16. Id. at —Should Function?, 409, Baylor or Judicial 31 L.Rev. 409 Commission, 295, Zoning 440 v. F.2d 17. Shenk (1979). (D.C.Cir.1971). Assoc. 297 See also Citizens of D.C., Georgetown Zoning v. F.2d Comm’n 477 of Barrett, (5th Higginbotham 22. v. F.2d 745 473 402, (Ca.D.C.1973). Texas, 1973); City Big Sandy, Cir. v. Blackman of 10, (5th 1975); Harvard, Stansberry Cir. v. supra, 507 F.2d 935 at 1513. n. 18. Holmes, denied, (5th Cir.), F.2d 1285 cert. 613 banc), 5, (5th Cir.) (en de- 491 F.2d 7 cert. 19. (1980). 449 U.S. 885 1625, 901, nied, 40 119 416 U.S. 94 S.Ct. L.Ed.2d (1974). 7; Pruitt, supra Higginbotham, 473 23. See at 748; Blackman, F.2d at 507 F.2d at See See, 936. e.g. Epping, v. Town F.2d 20. Cloutier 714 of 1184, Stansbury, F.2d at (1st Cir.1983); also 613 1289. 1191 Assoc. Citizens of D.C., Georgetown Zoning v. Comm’n of Jett, (D.C.Cir.1973); Klutznick, 448, 472, 408 374 100 24. Fullilove v. Gerstenfeld (D.C.Cir.1967); City 2771-72, (1980). Cowart v. F.2d 335 65 L.Ed.2d 902 Ocala, Fla., (M.D.Fla.1979); F.Supp. McHenry, County F.Supp. Stemaman 240,245 Den, Inc., 25. Larkin v. Grendel’s Plano, (N.D. Ill.1978); City Stephens v. Tex., (E.D.Tex.1974). F.Supp. light opposing party most to the favorable “presumption to a are entitled rezone genuine if issue of to see material fact validity.”26 genuine exists.29 There are issues of mate- decisions quasi-judicial or Administrative case, rial in this for there is a real fact The are different. zoning board of a local Zoning the Board’s action dispute whether by the constitu which standard appropriate denying plaintiffs the a variance from action is re tionality of such board’s city’s parking requirements the off-street the ask whether that we requires viewed arbitrary capricious. and having arbitrary capricious, “is action plaintiffs The showed that similar vari- general wel to the relation no substantial granted ances had been to other businesses majori no basis for There is fare.” According in the area. director review abdicate that we should ty’s claim every planning, almost business ac or administrative quasi-judicial of the comply area at that time failed to with the adjustment zoning board tions of a Moreover, requirements. parking subse- cloaking actions its ignoring the record quent occupant very property in- validity that is virtu presumption of with a granted a variance from the volved was v. Pana Even Barbian ally irrebutable. Zoning parking requirements Board. Circuit, reciting a while the Seventh gis,28 majority piece The examines each of this majority, stated similar to that rule separately only asks evidence whether and the carefully the evidence reviewed any single genuine fact bit raises a issue of city agency’s action before for the basis However, proper ap- in and of itself. decision, agency gave reaching a proach is to look at the cumulative effect of majority of the deference none If, whole, taken as a in this the evidence. College Station Board accords the dispute, factual evidence raises a material case. summary judgment, should not be then deprecates any re- Although majority granted.30 actual for the view decision, opinion undertakes Board’s inquire majority pretends not The majority The exactly such a review. arbitrarily the Board fact acted whether Zoning Board that “the to note careful lawyer, capriciously but whether basis,” and that “the a rational articulated court, conjecture an after-the-fact ba- can a basis for decision.” articulated basis was proper question to sis for its decision. a detailed ex- opinion concludes with reviewing non-legislative deter- ask when *15 the record before amination however, mination, a rational whether rationality of the Board’s and the Board existed when the action was basis in fact opening majority’s decision that belies plaintiff will be able to over- taken.31 No rhetoric. con- the “at least debatable” standard come so, he majority. To do structed II. affidavit, to fore- required, only applied is would be majority The has not what beyond dispute any possibility other fact, words, close although not in an incorrect Since this caprice and arbitrariness. standard; attend to than legal it has failed to post con- ex facto impossible a will when posture of this case. On be procedural suffice, owner’s jecture summary judgment, the court will motion consistently right will in the all of the evidence must consider (5th banc, rehearing 1085 Pruitt, en 26. supra, F.2d at 7. 491 1985) curiam). (per Cir. Pruitt, supra, 27. F.2d at 7. 491 Schwab, (D.C.Cir. Robey F.2d 198 31. v. Cir.1982). (7th 28. 694 F.2d 476 1962). supra 21. Harris v. Tobri note See Cf. (5th Byrd, Cir. F.2d 29. Harrison v. 1962); (D.C.Cir. ner, Mez 5 B. F.2d 1985). Gruff, ines, Administrative Law & J. J. Stein § 43.02[7] Corp., Development 30. Powers v. Nassau (5th 1984), suggestion on Cir. F.2d by judgment summary as short-circuited implies. as its name

operation

III. judicial opinions reader of

The attentive surely why was this case taken en

will ask: majority opinion is based

banc? The adopted by of review

same standard only apparent

panel and this dissent. remaining is whether or not there

question dispute of material fact suffi- genuine

is a guillotine carry past

cient to the case case-specific

summary judgment. Such a

inquiry appear would not to constitute rehearings en banc

kind of issue to which by Fed.R.App.P.

are restricted procedures, for operating

our own internal question exceptional neither a

it involves necessity maintain-

importance nor the If

ing uniformity of decisions. the case is

exceptionally important, it is because of the surface.

something that lurks beneath lip majority opinion gives service to pow- it abdicates that

judicial review while municipal would not endow minor

er. We authority such unreviewable

bodies with rights. upon

trench constitutional Plaintiffs, RODRIGUEZ, al.,

Mary et CORPORATION, Defendant-Ap-

OLIN Party pellee Third

Plaintiff-Appellant, CHEMICALS, INC.,

HUNTER

Defendant-Appellant, Party Corporation, Third Valve

Smith Defendant-Appellee.

No. 85-4031. Appeals, Court States

United

Fifth Circuit. 8, 1986.

Jan. 14, 1986.

Rehearings Denied Feb.