CLEBURNE, TX v. CLEBURNE LIVING CENTER

Print this transcript Transcript: 

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

Chief Justice Warren E. Burger: We will hear arguments next in City of Cleburne, Texas, against Cleburne Living Center.

Mr. Luna, I think you may proceed.

Earl Luna: Mr. Chief Justice, and may it please the Court, this case involves the constitutionality of a zoning ordinance of the City of Cleburne, Texas, on its face and as applied, and it involves a property owner who wishes to contract with the State of Texas to operate an intermediate care facility for 13 mildly and moderately mentally retarded adults who do not--

Unidentified Justice: Mr. Luna--

Earl Luna: --possess the skills of independent--

Unidentified Justice: --How large is the city?

Earl Luna: --20,000.

Federal legislation authorizes the funding and therefore the different treatment of this group of mentally retarded men and women from other persons.

The state regulations require that the facility must be located in an incorporated city which is subject to special use permits, local zoning, and/or occupancy requirements, and must be non-contiguous with an already existing facility.

The City of Cleburne met these requirements.

To operate such a facility then in Cleburne in accordance with the state regulations--

Unidentified Justice: May I inquire?

I don't quite understand what you just referred to.

Is it your position that the State of Texas requires the city to use special use permits for homes for retarded people?

Earl Luna: --Absolutely.

The state regulation will not permit the location of a facility in a city unless that city has the special use permit requirements or local zoning laws.

Unidentified Justice: I had understood the position of the State of Texas in its brief to be that the city was not authorized as a matter of state law to base its zoning decisions on the physical adequacy of the site or of a given structure as a group home.

Do you agree with the position taken by the State of Texas here?

Earl Luna: Absolutely not, and the state regulation is in evidence, and the state statute in Texas provides that even if there was a conflict, that the statute that provides for the zoning regulations would prevail over the other, but the State of Texas is just flat wrong.

The regulations say--

Unidentified Justice: And it is your position that their brief is in error then?

Earl Luna: --Absolutely.

Unidentified Justice: And where in the Joint Appendix would we find what you are referring to, if you know offhand?

Earl Luna: You will find that in the Joint Appendix--

Unidentified Justice: Well, don't take time from your argument.

Earl Luna: --at Page 78.

Unidentified Justice: Thank you.

Earl Luna: Now, as I mentioned, the city met these requirements that the state had, and therefore it was necessary to apply for a special use permit and have a public hearing.

At the public hearing and in court, it was developed that the home would have 13 mentally retarded men and women and two staff employees in this facility.

The 2,510-foot square... square feet of house... in another place the record shows 2,700 square feet... it had only two baths, and a half bath was to be added.

The 13 unrelated adults would sleep in four bedrooms, three adults in each of three bedrooms, and four unrelated adults in the fourth bedroom.

The building's location on a lot 103 feet wide and 156 feet deep, directly across the street from a junior high, with considerable school traffic, and in a 500-year flood plain, was of real concern to the members of the City Council, because just the year before Buffalo Creek had reached the steps of 201 Featherston Street.

And Bobbie Northrop, one of the corporate officers of CLC, likewise recognized this potential flood problem for the residents of this facility when she stated before the Planning Commission and it is in evidence as Exhibit 20, Plaintiff's Exhibit 20, we would evacuate the residents and not let the situation get out of hand so that an evacuation would not be possible.

Unidentified Justice: Mr. Luna?

Earl Luna: Yes, sir.

Unidentified Justice: When you say it was in a 500-year flood plane, does that mean that you would expect a flood every 500 years?

Earl Luna: Every 500 years, but we don't know whether it is next month or when, of course.

Unidentified Justice: And did the city have a general policy against building within that flood plane?

Earl Luna: It did not have a general policy against building, but it has building codes which can, of course, require building up so it will be out.

Unidentified Justice: What about the junior high?

Is that in the flood plane?

Earl Luna: No, sir, it is across the street on the high side.

It is higher.

Unidentified Justice: While I have you interrupted, how do you define mental retardation?

Earl Luna: Well, mental retardation is defined... I would accept the American Association of... the definition as defined by American Association on Mental Deficiency, and Dr. Roos, the expert in this case, said that it is subaverage general intelligence functioning, existing concurrently with deficits in adaptive behavior.

Unidentified Justice: Your council members didn't know what it was, did they?

Earl Luna: I think they did not want to try to define it.

This was a public hearing, and if they had not--

Unidentified Justice: They didn't know what it was, did they?

Earl Luna: --I am not sure that is so.

He said that he didn't... he couldn't give a technical definition.

There had been a public hearing, and I would be surprised if the people who were asking in a public hearing to zone it so they could have a home for mentally retarded kept a secret from the council what the definition of mentally retarded was.

I have an idea they told them at that hearing.

Surely they would, when they had two public hearings on the subject.

But they were not articulate council people, and they said they were not doctors, and they didn't know how to technically define it.

The special use permit requirement of the ordinance is not invidious.

A family's children can reside in the home with the family.

But if a person goes into the business of keeping other people's children, running a nursery, then this same ordinance requires them to get a special use permit.

So, the same special use permit that is required to run a home for the mentally retarded is likewise required to run a nursery to keep little children, the same ordinance and in the same paragraphs.

The mentally retarded adults that were here and proposed to be here in this facility, I think, are very much like the ones involved in Macon Association for Retarded Citizens versus Macon-Bibb County Planning and Zoning Commission.

This Court dismissed the appeal of a state court case involving a zoning ordinance with a classification that was based on mental retardation which were reviewed under the rational basis standard.

The three members of the City Council that we are talking about voted to deny the permit.

One of them who so voted was a grandfather who had a deceased mentally retarded granddaughter.

Another was a black man, now deceased, who had spent several years on the board of directors of a mentally retarded facility in Cleburne known as the C.C. Cook Developmental Center.

They apparently did not believe that these four unrelated adults in one bedroom and requiring 13 people to take a bath in two bathrooms constituted normal living conditions in the City of Cleburne, and that is what the policy is, to try to establish normal living conditions.

Unidentified Justice: May I ask, could there have been any other use with the same number of people using this facility that would have been permitted?

Earl Luna: Yes, sir.

If a family moved there, there is--

Unidentified Justice: Other than a family.

I mean such as a halfway house or an old people's home or something like this.

Earl Luna: --That is not covered.

Some other uses, the building code requires fire walls and some other things.

It is doubtful that any use other than a single family could have been used with this building.

Now, the land could have, but the ordinance goes two ways.

It regulates use of the land and the use of the building.

This building was a wooden building.

It had no fire walls, and could not be used for--

Unidentified Justice: But then is it correct that you are really arguing that they shouldn't allow 13 people in this particular structure?

Earl Luna: --That was one--

Unidentified Justice: And it really doesn't have much to do with whether they are mentally retarded or not.

Is that right?

Earl Luna: --That's right, unless it's a family.

Unless it's a family.

Unidentified Justice: Mr. Luna, if the property were... if the use of the property was proposed as a boarding house for people, I take it no special use permit would have been required.

Earl Luna: No special... but to use a property for--

Unidentified Justice: Is that right?

Earl Luna: --Yes, that is right, on special use, but there is another side of the ordinance that requires off-street parking and other things which would make it questionable that you could locate that many people in this property.

Unidentified Justice: Well, in any event the same requirement would not have been made had it been a boarding house or adults who were not mentally retarded.

Earl Luna: That is true, but if it had been a nursery for little children, it would have been.

Unidentified Justice: Well, would they allow a boarding house for 14 people in a--

Earl Luna: Sir?

Unidentified Justice: --in this kind of a space?

Earl Luna: I don't believe so, but she asked, did we have to have the special use permit.

We have certificate of occupancy statutes and other building code requirements that would make it very questionable, and the record is not developed as to what the other ordinances show for a boarding house, for example, but I don't believe there is a chance in the world that 14 people, 13 people and two staff members could wind up using this place as a boarding house or anything else.

Now, the home at that time, located across the street from the junior high that we had mentioned, met the minimum state requirements at that time.

The state has now, however, since this case has come to light, reduced the number of people to be put in one of these homes in Texas from 13 to six, thereby, we think, recognizing the good judgment of the Cleburne City Council in saying that this was too many in this particular house.

The District Court found there was a rational basis.

Unidentified Justice: May I go back for just a moment, Mr. Luna, please, to the statement about the number of people and other uses?

The District Court found that if the potential residents of the home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the zoning ordinance.

Earl Luna: I think unquestionably that is true for a family.

It was not developed as to the off-street parking and that sort of thing that would be required for other things.

Unidentified Justice: I am just trying to be clear.

Do you agree or disagree with the finding just as it is written?

It seems to me it says that if they were any other group other than mentally retarded persons, it would have been okay to use the home.

Earl Luna: I am not sure I would completely agree with that finding.

Unidentified Justice: So you are attacking that finding of fact?

Earl Luna: Well, I think it is not material here.

Unidentified Justice: Well, it is pretty material to me, I will tell you that, as to whether that is--

Earl Luna: Well, clearly 13 people in a family could live there, so certainly to that extent there is no question that the finding is correct, but the record simply... you will note that the record did not develop and part of the ordinance is in evidence here on fire walls and that sort of thing, so it was not developed as to what would be the requirements.

Unidentified Justice: --Mr. Luna, we have a finding of fact in the record, and I am trying to decide whether we accept it as a correct finding or part of your case involves setting aside that finding.

Which is your position?

Earl Luna: Well, I believe that in this case, since a mentally retarded home in this case requires more than room and board, it requires training, habilitation training under both the federal statute and state regulations, that even if that finding is not set aside, it would not be the same thing in case for a mentally retarded home, because they are different.

And as Stigner versus Texas said, we are not required under the law to treat different things, things that are different as if they were the same.

We believe that there is a different need for mentally retarded.

Unidentified Justice: Well, didn't the Court of Appeals judge the case on the basis that the reason for the refusal of the permit was that this was a group of mentally retarded people?

So we have two courts agreeing that it was the nature of the occupants that made the difference, both the District Court and the Court of Appeals.

Earl Luna: The nature of the occupants--

Unidentified Justice: We rarely disturb those kinds of findings, do we?

Earl Luna: --I think it is a little different from that, though.

These occupants... if we are talking about, for example, a boarding house, all we would need is room and board.

Here, this is more than a boarding house.

Unidentified Justice: That is true, but the reason it is more than a boarding house is that they are mentally retarded people.

Isn't that right?

Earl Luna: No, sir.

It might have been used for a boarding house, but the reason under this case, the reason it would be... what it is going to be used for is to attempt to give habilitation treatment to 13 mentally retarded people, none of whom have the skills of independent living.

Unidentified Justice: Right.

Earl Luna: So there is more going on--

Unidentified Justice: I think your answer to my question would be yes, because this group is different because they are mentally retarded.

Earl Luna: --Exactly.

So that is why I say, if those findings... they are different because they are mentally retarded.

Unidentified Justice: Well, is one of the factors that in an emergency such as a fire they might not respond the same as a family under the supervision of a mother and a father over children, or they might not be able to cope the way 13 or 14 boarders could cope?

Earl Luna: Exactly, in a flood.

I would hate to be here defending the City Council if they located there and a 500-year flood came the next month and we got some people drowned.

Unidentified Justice: Mr. Luna, in your petition for certiorari, you presented two questions.

One is whether mentally retarded persons are a quasi-suspect class for purposes of equal protection analysis.

The second is whether for equal protection analysis legislation affecting mentally retarded people must be tested by an intermediate or heightened level of scrutiny.

So, I would presume that you intend to argue some time not just as to whether you should win this particular case under the Constitution, but what standard it should be judged by.

Earl Luna: Right.

That's what I'm coming to right now.

The District Court found there was a rational basis for these decisions, and the District Court based its holding that the mentally retarded persons are not a suspect or a quasi-suspect class requiring heightened judicial scrutiny for the Fourteen Amendment equal protection analysis on the reasoning of the Third Circuit case of Doe versus Colautte.

Now, the Fifth Circuit, of course, reversed, holding that mentally retarded people are a quasi-suspect class.

Now, in order to reach its decision, the Fifth Circuit created yet another constitutionally protected class consisting of all mentally retarded persons in the United States, and we believe contrary to this Court's decision in Youngberg versus Romeo.

This group is not the discrete insular minority envisioned by this Court in U.S. versus Carolene Products, but it is rather a large, diverse, and amorphous class proscribed by this Court in San Antonio versus Rodriguez.

Mental retardation, we have noted the definition of it earlier.

It is a problem of reduced ability to learn, difficulty with abstract thinking, judgment, problem-solving, and retention, and includes problems of social adjustment and economic productivity.

Now, the mentally retarded are a diverse class, a diverse group within themselves, consisting of several subgroups.

The mildly retarded constitutes approximately 89 percent of all mentally retarded persons.

The moderately retarded, the severely retarded, and the profoundly retarded are, of course, the subgroups.

Both the manifestations of retardation and the level of care required by each group vary to extremes ranging from requiring full-time institutionalization to those who are not even discernible on casual contact, which, incidentally, constitutes the overwhelming majority of mentally retarded persons, yet the Fifth Circuit has lumped them all together in one class, the mentally retarded.

By definition, the needs and capacities of the mentally retarded are different from each other and from the rest of society.

Unlike other suspect or quasi-suspect groups such as racial minorities, women, aliens, and those of illegitimate birth, whose stereotyped characteristics are not reflective of their true ability to perform or contribute to society, the mentally retarded characteristics do reflect an actual disability.

This relationship between the stereotyped disability and the actual ability to perform was formalized by this Court in Frontiero versus Richardson, and has become the threshold entry into a determination of suspectness.

Classifications based on age in Massachusetts Retirement versus Murgia and mental illness in Doe versus Colautte have been rejected as suspect on this basis.

The true novelty of the Fifth Circuit opinion in addition to a determination that the mentally retarded are a quasi-suspect class is in having done so contrary to and by completely ignoring the threshold inquiry and then requiring application of the heightened scrutiny applicable to gender and legitimacy to legislation involving the mentally retarded.

Under the Fifth Circuit requirements, the mentally retarded are in what is actually a no-win situation.

Since their needs are different from the rest of society, government can only address those needs by establishing classifications based on mental retardation and providing differing benefits, and yet the classification itself will fail if it is only rational and the government is then precluded from bestowing a benefit based on the classification, and the Solicitor General's brief deals with that at length.

Heightened scrutiny is not the answer to the problems of mentally retarded.

The legislative approach, if left unhampered, will provide for the needs of the mentally retarded.

It is doing so now.

Heightened scrutiny is particularly inappropriate for a zoning ordinance.

This Court has established a long history, commencing with Village of Euclid versus Amber Realty through its recent decisions in cases like Village of Belle Terre versus Boraas and its recent decision by Mr. Justice Stevens in Members of the City of Los Angeles versus Taxpayers for Vincent.

In each of these the Court applied the rational basis test to zoning classifications, and that has generally been done unless the ordinance was racially exclusive.

Otherwise, if it is fairly debatable or any set of facts reasonably may be conceived to justify it, it must be allowed to stand.

Is the City of Cleburne's ordinance fairly debatable?

Of course it is.

We think the ordinance protected the mentally retarded.

What exactly does this ordinance do in this case?

It allows the City of Cleburne to regulate the appropriateness of the location and the structure of a business established to provide ICF-MF care facility for the mentally retarded by means of a special use permit.

Unidentified Justice: Mr. Luna, is there any place in the City of Cleburne where a group home may be established without a special use permit for retarded people?

Earl Luna: The ordinance treats it the other way.

It may be established anywhere in the City of Cleburne--

Unidentified Justice: Well, would you answer my question?

Is there any place within the city where a group home for the retarded can be established without a special use permit?

Earl Luna: --The answer is no.

Unidentified Justice: Okay, and are there any standards at all for the yearly renewal of such permits if they are obtained?

Earl Luna: The same standards for renewal would... the ordinance has a standard for a special use permit, and of course the standards would be the same.

Unidentified Justice: And the ordinance for the special use permit requires getting signatures of neighbors, is that right, in order to issue a... in order to issue a special use permit, there is a requirement that the applicant obtain signatures of neighboring property owners?

Is that right?

Earl Luna: I don't recall that.

Unidentified Justice: I thought I saw that.

I wondered if you could enlighten me as to whether those signatures involved getting the consent of the neighbors or just a name on a paper.

Earl Luna: There is another case, but I don't recall that in our ordinance.

My memory may have failed me, but I don't recall it.

Our ordinance goes the other way.

It is broader than most ordinances.

You may establish an ICF-MR facility any place in the City of Cleburne simply by complying with the ordinance and making it compatible and putting them in a position that we think permits humane treatment of mentally retarded people instead of warehousing four in a bedroom and 13 in this small facility.

Unidentified Justice: Mr. Luna, you mentioned the junior high school several times.

What is the significance of its location?

Earl Luna: The junior high school, by the way, has 30 mentally retarded people in it, in the junior high school.

Now, our evidence shows that mothers and fathers bring their kids to school, and there is more traffic on that street because of the school than there would be on some other street where there was not a junior high.

Unidentified Justice: And this might be a danger to the occupants of this house?

Earl Luna: A danger to the occupants because they are people who do not have the skills of independent living.

Unidentified Justice: Was that argument made below?

Earl Luna: Oh, yes.

Yes, sir.

Unidentified Justice: And what happened to it?

Earl Luna: It was disregarded.

The lower court, of course, found that the traffic problem was one of the reasons in the findings.

Chief Justice Warren E. Burger: Mr. Hicks.

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

Renea Hicks: Mr. Chief Justice, and may it please the Court, this case, in which Cleburne has classified a group home for mentally retarded people as a hospital for the feebleminded, is a crucial one for retarded people, involving what the trial court found as a fact is the current principal means of their gaining access to living in this nation's communities.

This case will establish the constitutional boundaries of what a city may do through its zoning ordinance to impede retarded persons' efforts to become socially useful citizens in this nation's cities.

Unidentified Justice: Do you agree that a householder who had that place could run a boarding house with 13 or 14 people, with those rooms and two bathrooms?

Renea Hicks: Well, first, there are three bathrooms.

Unidentified Justice: Three bathrooms.

Renea Hicks: Yes.

I think it is clear from the ordinance, it is clear from the trial judge's fact findings as agreed to by the Fifth Circuit that if everything else about the house was the same, then any other group of 13 people could locate there, whether they be a large traditional family, whether it be a nursing home that also might be certified under state licensing laws and the Medicaid program--

Unidentified Justice: Do you think the legislative arm has a right to distinguish between 13 retarded children and their capacity to cope with emergencies such as fire and so forth, and either an ordinary traditional family or adult boarders?

Renea Hicks: --Well, that would be a closer question than this one is, I believe, but that isn't what--

Unidentified Justice: Well, isn't that the question here?

Renea Hicks: --I don't believe it is, Your Honor.

Unidentified Justice: Well, you have just told me that they could have an adult group there.

Renea Hicks: Yes.

Unidentified Justice: My question is, is there a distinction between an adult group and their capacity to cope with emergencies and the problems of living together in those quarters or in a bedroom and children who are retarded?

Renea Hicks: Well, the people that would be living here would be adults that are retarded, but I don't think there is a basis.

In fact, Your Honor, I believe that it is quite likely that in the event of an emergency, if this were a group home for mentally retarded people located here as opposed to a normal boarding house without being specially set up for retarded people, that the ability of the people in the group home for mentally retarded people to evacuate in case of an emergency would be superior to the ability of boarders.

And one reason for that is because there is special training done in that very area.

Besides that, I think it is important to keep in mind--

Unidentified Justice: Let me see if I have got your response correctly.

These retarded people would be better able to cope than the general run of 13 or 14 boarders that they may have in the house?

Renea Hicks: I think it is quite likely that they would, Your Honor.

Once again, the very purpose of this group home is to teach them independent living skills, and one aspect of that, as required under the state program that is administered, is that there be special training for emergencies.

Most people, and I think this has happened many times in boarding houses, in fires, people panic, in general.

Anybody panics.

And I think it is also important to keep in mind that the distinction drawn in the zoning ordinance is not just between group homes for mentally retarded people and the boarding house.

It is between group homes for mentally retarded people and, for instance, a nursing home, or a halfway house for juvenile delinquents, and at one time one of the city administrators said a halfway house for paroled felons would be permissible here.

So, I think that it is important to keep in mind the distinction that has been drawn.

Unidentified Justice: Wouldn't you think that they are entitled to make a distinction between the ability of people to cope on that basis, that is, if you have got former felons who are not retarded, and whatever the other group was, not retarded, that they could cope better than retarded people?

Renea Hicks: --Your Honor, I just don't accept the proposition that the mentally--

Unidentified Justice: I am not stating that as a fact.

Renea Hicks: --I understand.

Unidentified Justice: I am simply stating, are they entitled as the legislative arm to decide on that basis?

Renea Hicks: Well, I think at a minimum there has to be a rational basis for that decision.

Unidentified Justice: You say that is not rational?

Renea Hicks: And I don't think that this decision that the City Council engaged in had a rational basis.

There is nothing in the record to support a conclusion that mentally retarded people would be less able to take certain actions than other people in this instance.

In fact, again, I submit there would be special programs set up that I suspect would ensure that they would react in a better way.

Unidentified Justice: Well, aren't they in that home and that environment precisely because someone has determined medically or psychologically that they are not capable of coping as normal people are, as capable?

Renea Hicks: Well, that, I think, overstates the determination that is made.

Unidentified Justice: Well, then, why are they there?

Renea Hicks: They are there in many instances because they do learn slower, is the shorthand version of what mental retardation is, and they need an opportunity in a structured environment to do their learning, to learn, for instance, household cleaning chores and the importance of following through on those things, cooking skills.

This is, as the name implies, an intermediate facility, and most people it is hoped will move on to even more independent living in these situations.

I believe that it overstates the disability of mental retardation to say that they are unable to cope with everything in daily living, and that they are unable to learn how to better cope in some instances with certain details of daily living.

I think that the city's actions in this particular case and its justifications for its actions are a crystallization for the Court of the historical attitudes and mistreatment and underestimation of mentally retarded people and their abilities.

The city has offered two general justifications for the distinction drawn in the zoning ordinance.

One is that it is to protect the neighbors, in essence to protect society from the mentally retarded people.

The other is that it is to protect retarded people themselves.

This is a classic example of government's historical justifications for exclusion of mentally retarded people from many areas of American life.

On the one hand, it is argued we are here to protect society.

We exclude them to protect society.

Then, as an afterthought, the argument is made, well, it is really also intended to protect the mentally retarded people.

It is to do them some good.

I don't think the record in this case supports either one of those justifications.

As to protecting--

Unidentified Justice: I notice that the first argument you make in your brief is that there was no rational basis for the city's action.

Renea Hicks: --Yes.

Unidentified Justice: And that is what you are arguing now, I take it.

Renea Hicks: Yes.

Well, I am attempting to go through what their reasons are.

Unidentified Justice: What if we disagree with the Court of Appeals and with you with respect to the standard under which this action should be judged?

Should it be a rational basis or some intermediate level of review?

What if we disagree with you?

Shouldn't we remand and have the case judged on a rational basis?

Renea Hicks: I don't think so, Your Honor.

I think it is obviously a judgment for the Court to make, but I think it would be an inefficient use of resources.

The rational basis test was argued before the Fifth Circuit.

They went on to decide the quasi-suspect question.

Unidentified Justice: They didn't touch the rational basis.

Renea Hicks: That's correct, Your Honor, but the whole record is before this Court.

It has been fully developed, and I think the Court in--

Unidentified Justice: Well, Mr. Hicks, was the argument about the policy and laws of the State of Texas fully developed in the courts below?

Renea Hicks: --The one--

Unidentified Justice: It seemed to me that was a new factor.

Renea Hicks: --The State of Texas did not submit an amicus brief at the Fifth Circuit level, making the arguments it made in its amicus brief.

Unidentified Justice: It just seemed to me that in the courts below, the argument was made by the city that we are just doing this as a means of helping the retarded to be sure they have proper facilities, and now the State of Texas is coming in and saying that is not the city's business, it is our business, and we have regulated it, and they have no right to.

And I just wondered the extent to which that had been developed below.

Renea Hicks: The last part of the argument was not developed.

I might also add that the argument that this was to protect the mentally retarded people argument by the city was not developed very much at that point.

It only has arrived at that conclusion as its primary justification at this stage of the proceedings.

Unidentified Justice: So there might be some purpose in a remand on rational basis inquiry in the event the Court disagrees with the heightened scrutiny standard.

Renea Hicks: Well, Your Honor, again, I don't think it would be appropriate.

Neither party has asked for that at any rate.

I realize it is a judgment for the Court to make, obviously.

I don't think that the argument that the state has made that was not developed below is crucial to this Court's making a decision on even the rational basis standard of analysis.

Unidentified Justice: Except that the District Court, of course, found that it met the rational basis inquiry.

Renea Hicks: Right, but it didn't address the particular aspect of the argument that Texas has made.

It didn't use that for finding that there was a rational basis.

Unidentified Justice: Well, and perhaps the District Court is in a better position to be familiar with Texas law than this Court.

Renea Hicks: Well, Your Honor, perhaps.

I just think that the rational basis aspect of the case, to the extent the Court takes that approach, still can be decided by this Court.

I think the record is fully enough developed.

Unidentified Justice: Yes, but Mr. Hicks, I gather you are here defending the judgment of the Fifth Circuit, aren't you?

Renea Hicks: Yes, I am, Your Honor.

Unidentified Justice: And the Circuit held that it had to be heightened scrutiny at the intermediate level, didn't it?

Renea Hicks: Yes, Your Honor.

Unidentified Justice: And do you urge us to--

Renea Hicks: Yes, Your Honor, I think that is an appropriate standard for this Court to use--

Unidentified Justice: --You are just suggesting that if we don't alternatively we can find there was no rational basis--

Renea Hicks: --That is all I am suggesting, Your Honor, and I think it is appropriate as an alternative only that this Court decide that there is no rational basis for the decision.

Unidentified Justice: --But you want us to reach that if we do only so that you can win without having to--

Renea Hicks: Well, Your Honor, again... you mean to reach the rational basis matter?

Unidentified Justice: --Yes.

Renea Hicks: Yes, I think... I would like to win the case.

0 [Generallaughter.]

Turning to the question of whether heightened scrutiny is appropriate for discrimination against mentally retarded people, I think that the class of mentally retarded people perhaps more than any other group of Americans except racial minorities fit the criteria that this Court has established for what constitutes a class that calls for heightened scrutiny when discriminations are made against it.

Unidentified Justice: Incidentally, you have not ever urged strict scrutiny, have you?

Renea Hicks: Your Honor, we did urge strict scrutiny before the Fifth Circuit.

They rejected it.

Again, I think that the standards that this Court has set, if applied here, would mean that strict scrutiny is appropriate.

But once again, trying to narrow the decision as much as is necessary, I think a heightened scrutiny at what has been termed the quasi-suspect level of scrutiny would be appropriate and would result in the invalidation of the city's actions in this instance.

Mentally retarded people are a quintessential, discrete, and insular minority.

I don't think anyone has argued to the contrary on that particular point.

They have suffered from a history of mistreatment that is virtually unequaled in this nation's history except for racial minorities.

They have been subjected to eugenic sterilization laws based on what has turned out to be misinformed scientific doctrines.

They have been isolated, as the trial court found as a fact in remote, stigmatizing living arrangements.

And I think that there has been much litigation that has come before this Court that delineates the problems in these large institutions that the Court was referring to, and I think no one questions but that they are stigmatizing.

I think that the result of that is that because they have been isolated in these institutions, no one in society or few people in society understand what mental retardation is.

They can only operate on stereotypes because they don't see on a daily basis mentally retarded people interacting at the stores--

Unidentified Justice: Mr. Hicks, in your view, are all laws that distinguish between the mentally retarded and other groups suspect, or just those that segregate them from the general population?

Are laws that provide special education opportunities and things like that in your view subject to heightened scrutiny?

Renea Hicks: --Well, Your Honor, I don't think that a law that is intended to address the special needs of mentally retarded people and past inequities necessarily needs to be subjected to heightened scrutiny.

This Court has said before in a case such as Fullilove versus Klutznick that when remedying past discriminations is what is at stake, then there is a different standard to be applied, or alternatively I might add that applying the heightened scrutiny to those laws will not subject those laws to invalidation.

I think it would be very supportable.

And I think it is true that there is a substantial relation between any discriminations, if you want to call it that, drawn in, say, the Special Education Act, that there is a substantial relationship between that and an important governmental interest of providing an appropriate education program for mentally retarded people.

I think that there are many fewer laws that discriminate on the basis of mental retardation than might at first blush appear.

Quite often people think that guardianship laws, sterilization laws, commitment laws all necessarily discriminate on the basis of mental retardation.

While some do, the more modern statutes clearly do not.

They address neutral criteria and neutral traits that are not tied to mental retardation in and of itself.

They recognize what the city here did not recognize, and that is that there are individual differences within the group of people who are mentally retarded.

Some have more abilities than others.

It may very well turn out that some require commitment, but it is not because of their mental retardation that they require commitment.

It is because of other aspects that happen to fall in with the fact that they are mentally retarded.

So, I think it is overstating matters to think that a whole host of statutes would be subject to invalidation under this approach.

Furthermore--

Unidentified Justice: Perhaps not invalidation, but at least heightened scrutiny.

Renea Hicks: --Again, I think there is a much smaller universe of statutes that fit that, and my next point was going to be that invalidation does not necessarily follow from applying heightened scrutiny.

This Court has, in other instances where heightened scrutiny has been applied, upheld classifications based on gender, based on illegitimacy.

And it has shown itself capable of discerning when important interests are at stake and when there is a substantial relationship between the objective and the classification drawn in the statute.

Unidentified Justice: Are there other groups that in your view likewise merit heightened scrutiny which haven't been given it in the past, such as the mentally ill or people who are homosexuals or other particularized groups?

Renea Hicks: Well, I am not an expert at all in either of those other areas... or in the other areas.

I haven't canvassed all of them.

But I don't think there is another group of people in this society that so warrant treatment as a quasi-suspect or suspect classification, heightened scrutiny, as the group of mentally retarded people.

For instance, I--

Unidentified Justice: And why is that?

I mean, what are the--

Renea Hicks: --Well, for instance, with people that are mentally ill, for instance, I think there is a potential difference between the immutability of the characteristic.

People move in and out of mental illness.

Not everyone does, but people do.

And those that are mentally ill at one time quite often are capable of having political power.

They vote.

They haven't been excluded from the vote as universally as mentally retarded people, for instance.

When they aren't classified as mentally ill, they clearly can vote, and they can have an impact on their community.

The onset of it quite often is later in life.

As to homosexuality, I think once again there is a substantial question of whether that trait is an immutable characteristic, and I think it is quite clear that that group of people exerts considerable political power in some areas of this country.

So, I think they are much different and are much... again, I haven't thought of what the ultimate resolution should be, but they are clearly not as close a fit to the standards this Court has set--

Unidentified Justice: --Does any jurisdiction today to your knowledge deprive mentally retarded adults of their vote?

Renea Hicks: --Yes, Your Honor.

You mean as of today?

I haven't canvassed the statutes in detail.

As of 1979, the majority of states disenfranchised mentally retarded people.

I would note... this came up during the appellate argument at the circuit level on this... that it required a Texas Secretary of State's opinion to get the person a right to vote that was mentally retarded.

Unidentified Justice: Is there any restriction in Texas today on the right of the retarded adult to vote?

Renea Hicks: Yes, Your Honor, there is.

They classify mentally retarded people, I believe... the Constitution says that idiots may be denied the right to vote.

Now, "idiots" is an outmoded term.

It is another example of how mentally retarded people have been stigmatized.

And it has been applied at local levels by elections officers to mean somebody with Down's Syndrome, for instance, who is quite capable of voting, couldn't vote.

And again, that happened in 1982 in the southern part of Texas.

Somebody that had Down's Syndrome was denied the right to vote merely because of that.

And it took an opinion after the fact, after he had missed the opportunity to vote, to change that.

So, I do think they still are disenfranchised in large part, if not de jure in some instances, then de facto because of what they know would happen to them when they go to the polling place.

Unidentified Justice: Is it your position that the state has no power at all to disenfranchise anyone who is mentally retarded?

Renea Hicks: I don't think the state has the power to disenfranchise people because they are mentally retarded.

They may have the power to... I do think the state has the power to disenfranchise people if they lack the minimal ability to understand the basics of the workings of democracy or whatever.

I realize that they can't impose a literacy test.

That has been ruled out by this Court.

But--

Unidentified Justice: Well, then, extreme retardation would be a basis then for disenfranchising, a permissible one.

Renea Hicks: --Well, I think that neutral criteria, and I can't kind of give a rendition right now of what all those neutral criteria would be, but I think neutral criteria would result in a lot of severely mentally retarded people not being able to vote statutorily, but it wouldn't be because they were mentally retarded, but because they failed to meet the neutral criteria.

Unidentified Justice: What is the difference, really, when you are focusing on that particular question, and you say the severely mentally retarded would be... could properly be disenfranchised because they didn't understand the workings of democracy.

Isn't that a consequence of their severe mental retardation?

Renea Hicks: It is a consequence of an aspect of their retardation.

That is correct.

But the problem with simply saying, for instance, a statute that says a severely mentally retarded person cannot vote, is that it is hard to tell down the road what some elections officer might say is severe mental retardation.

Some people are of the opinion that all mental retardation is severe enough to be classified as severely mentally retarded.

I think--

Unidentified Justice: Who makes the classification?

Renea Hicks: --Who makes the--

Unidentified Justice: Of the severely retarded person?

Renea Hicks: --Well, all, nearly all of the statutory definitions that are used nationally now are drawn from a basic--

Unidentified Justice: Well, who makes it?

Renea Hicks: --The American Association of Mental Deficiency has--

Unidentified Justice: They decide who is retarded?

Renea Hicks: --They have a working definition of what is retardation.

Unidentified Justice: Isn't there a government official who makes the decision?

Renea Hicks: Ultimately the legislature, the legislature of the State of Texas, for instance, in its Mentally Retarded Persons Act--

Unidentified Justice: But the State of Texas doesn't examine people.

Who in Texas, who individually in Texas says, you are severely retarded?

Renea Hicks: --A whole host of different officials, local school district officials, for instance.

Unidentified Justice: A local school official can decide if somebody is mentally retarded?

Renea Hicks: As part of the--

Unidentified Justice: Don't you have any experts in that?

Renea Hicks: --Well, local school officials, by that I mean psychologists--

Unidentified Justice: Local experts aren't psychologists.

Renea Hicks: --I am sorry, I didn't understand you.

Unidentified Justice: Local school officials are not psychologists.

Renea Hicks: Well, they have psychologists on your staff.

Unidentified Justice: Don't you need to have a psychologist or somebody that has studied it?

Renea Hicks: It requires to carefully assess mentally retarded people, it requires--

Unidentified Justice: A local school official can decide whether I can vote?

Renea Hicks: --No, Your Honor.

I was trying to point out--

Unidentified Justice: Well, that is what I am asking.

Who decides that Applicant B is so severely retarded that he does not have the right to vote?

Renea Hicks: --There is no designated officer at this point other than a local elections officer, and that is the danger in setting a standard such as Justice Rehnquist has mentioned.

There is a local elections officer who sits at the polls, and in the instance that I mentioned earlier, determined that this particular person was, to use the terminology of the statute, an idiot.

And only two years after or a year after the election was it determined that this person could vote, and so there is no expert.

Unidentified Justice: You mean, if I take the position that all Democrats are retarded, I could just lock them all up?

0 [Generallaughter.]

Renea Hicks: There are parts of Texas where that is so.

0 [Generallaughter.]

Unidentified Justice: Mr. Hicks, can I ask you a question that I just want to be sure I don't lose?

Renea Hicks: Yes.

Unidentified Justice: I am going back to your rational basis argument for a moment.

Often in zoning cases you are concerned with property values.

Was there any attempt made by your opponent in this case to prove that the property values of the neighborhood would have been affected in any way by granting the permit here?

Renea Hicks: No, your Honor.

There was not.

I might note that there have been studies.

I think one of the amicus briefs by the National Conference on Catholic Charities discusses some of the literature in this area which seems to support the idea that property values are not lowered.

Unidentified Justice: Could I ask, what did the Court of Appeals declare unconstitutional?

Renea Hicks: It declared... first, it declared the statute on its face unconstitutional.

Unidentified Justice: What, the entire zoning ordinance?

Renea Hicks: I am sorry.

Section 8--

Unidentified Justice: I can't know what they said was unconstitutional.

Renea Hicks: --Section 8, Subdivision--

Unidentified Justice: Six.

Renea Hicks: --6, the part that terms this group home a hospital for the feebleminded says they have to get a special use permit, it declared that unconstitutional.

Unidentified Justice: That is 16.

Renea Hicks: Excuse me?

Unidentified Justice: That is 16.

Renea Hicks: Well, Section 8, Subdivision 6--

Unidentified Justice: Is it your contention that the city may not require special use permits for the mentally retarded?

Or is it your claim that it should have been granted, a special use permit should have been granted?

Renea Hicks: --It is both in this instance, but in the abstract we are not arguing... I need to make that clear to the Court... we are not arguing that no city anywhere in the United States may require special a use permit for group homes for mentally retarded people.

Unidentified Justice: Are you arguing that this city here, Cleburne, could not--

Renea Hicks: Yes, Your Honor.

Unidentified Justice: --constitutionally require a special--

Renea Hicks: Yes, Your Honor, given the distinctions and the uses that are already permitted in that district.

Many other cities might have a different set of use classifications, but in this one, where you have so many similarly situated congregate living situations that are permitted, it makes no sense, and that is the reason we argue it is irrational, it makes no sense to say--

Unidentified Justice: --Your position is, you didn't even need to apply to the City Council to establish this.

Renea Hicks: --That's correct, Your Honor, and then beyond that even if we did have to apply, that it is clear--

Unidentified Justice: It could not be denied just because of mental retardation.

Renea Hicks: --That's correct, Your Honor, especially when the factfinders, the decisionmakers for the City Council admitted and testified that they knew nothing about mental retardation, nothing, or about the needs of mentally retarded people.

And I think it is fair to say that it is the very definition of irrationality when somebody makes a decision based on a factor they admittedly know nothing about.

I think, Your Honors, that if what Cleburne has done in this case in excluding mentally retarded people from its community, this group home from its community, then I think that, and this is after considered judgment, I think it is fair to say that there is virtually no limit set by the Constitution on what cities can do to exclude mentally retarded people from the community.

The actions of the City Council are so baseless in this particular instance that anything goes, basically, if what they have done is constitutional.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Luna?

You have four minutes remaining.

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

Earl Luna: I wanted to point out that in regard to what was said about the statutes in favor of the mentally retarded, it is pointed out by the Fifth Circuit that it is not always easy to tell whether a statute is to the advantage of a mentally retarded person or is not to the advantage of them.

Some people might think that it is not good to have somebody supervising them 24 hours a day.

In other cases, it might be necessary.

Therefore, to determine whether a particular statute is good or--

Unidentified Justice: Weren't the people who were to be in this particular facility going to be there voluntarily?

None of them was going to be committed against his will.

Is that right?

Earl Luna: --In this case.

Unidentified Justice: Yes.

Earl Luna: In this case, that is true.

Unidentified Justice: So they would have been perfectly free to leave any time they wanted to.

Earl Luna: In this case, they would have been.

Unidentified Justice: Yes, thank you.

Earl Luna: But I think the Fifth Circuit was talking about in cases generally, and this Court has generally held that the rights, that the question involved in a suspect or quasi-suspect class is when the condition has no relation to the person's productivity or their contribution to society.

Now, in that way, the mental retardation is, of course, completely different.

It is different from blacks and women and the legitimate question where the suspect provisions have no relation to their productivity or their contribution to society.

In this case, the mentally retarded persons must be in many instances treated very differently, and some, of course, to the extremes, have to be placed in institutions, and they said in this case while they can come and go, at the same time the records show in this case that they sometimes would also have the authority to restrain them.

Now, Texas has a statute which affirmatively protects the rights of mentally retarded.

We have an entire set of statutes on rights of mentally retarded and protecting those rights.

Now, while on the one hand they have raised the question today about the Texas statute, on the other hand at the court when we tried this case they dropped all of their state claims, so they talk about their state claims now, but they were dropped out of this lawsuit at the District Court level.

And the two attorneys that represented the plaintiffs in this lawsuit, Mr. Hicks and his associate, are now both with the Attorney General's office, and the other one signed... who was with them, with that office at the time of trial signed the brief, the Attorney General's brief.

So, clearly the Attorney General's position was put forward in court by the same attorneys who were representing the plaintiff but are now signing the brief for the Attorney General's office.

Unidentified Justice: Mr. Luna, may I ask one last question?

When we were asking about the reasons why the special use permit was denied, you mentioned, of course, the flood plane and across the street from the school, and both of those were reasons that were designed to protect the occupants of the home.

Were there any reasons that you would identify as reasons designed to protect neighbors from an undesirable change in the neighborhood?

Earl Luna: I don't think so, although we--

Unidentified Justice: Basically, they were all for the good of the people who would live there.

Earl Luna: --Yes, sir.

We did have some neighbors complain, but--

Unidentified Justice: But you are not relying on that, I take it.

Earl Luna: --Sir?

Unidentified Justice: Are you relying on the complaints of the neighbors?

Earl Luna: Their counsel's testimony was that that was not one of the major factors.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.