Paul McMichael and Joseph A. Nichelini v. County of Napa and Napa County Board of Supervisors

concurring:

I agree the suit must be dismissed, but on a ground different from a lack of standing. The suit should be dismissed because it fails to state a claim upon which the relief sought can be granted.

I respectfully suggest the opinion for the court subverts the usual standing analysis and in effect reaches the merits, though it disclaims doing so. The zone of interest requirement is intended to bar suits by persons who, although affected by the defendant’s transgression of a certain statutory or constitutional norm, are not its intended beneficiaries. The requirement is not meant to bar suits, for lack of standing, by one who simply cannot prove that the statutory or constitutional norm invoked has been transgressed.

Judge Wallace in effect says that the equal protection clause is not violated because there is no right to cast an undiluted vote if the dilution does not affect the election outcome. This is not a valid standing argument. If it were, almost any dispute becomes a standing case when the plaintiff loses. In addition, it improperly suggests that vote dilution causes no harm unless an election outcome is necessarily affected. That premise is doubtful, for voting…

Paul McMichael and Joseph A. Nichelini (McMichael) brought suit to challenge the countywide vote on Initiative Measure A, a slow-growth ordinance applying only to the unincorporated area of Napa County, California. This is an appeal from the district judge’s order dismissing McMichael’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The district court’s jurisdiction was based on 28 U.S.C. § 1331 . Our jurisdiction rests on 28 U.S.C. § 1291 . We affirm the dismissal, but for a different reason than that stated by the district court. We find that McMichael lacks standing.

I

McMichael resides in the unincorporated area of Napa County, California. In a countywide election on November 4, 1980, he voted against the enactment of Initiative Measure A, an ordinance limiting the number of new housing units permitted each year in the unincorporated area of the county and providing that fifteen percent of the units allowed be allotted to persons with average or below average income. The County of Napa is made up of an unincorporated area and four incorporated cities: Calistoga, Napa, Yountville, and St. Helena. A…

709 F.2d 1268 Paul McMICHAEL and Joseph A. Nichelini, Plaintiffs-Appellants, v. COUNTY OF NAPA and Napa County Board of Supervisors, Defendants-Appellees. No. 81-4582. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1982. Decided June 16, 1983. Barbara B. Parrish, C. Blaine Morley, Joseph M. Gughemetti, Morley & Gughemetti, Palo Alto, Cal., for plaintiffs-appellants. Marc B. Mihaly, Shute, Mihaly & Weinberger, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before WALLACE, KENNEDY, and NELSON, Circuit Judges. WALLACE, Circuit Judge: 1 Paul McMichael and Joseph A. Nichelini (McMichael) brought suit to challenge the countywide vote on Initiative Measure A, a slow-growth ordinance applying only to the unincorporated area of Napa County, California. This is an appeal from the district judge's order dismissing McMichael's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The district court's jurisdiction was based on 28 U.S.C. Sec. 1331 . Our jurisdiction rests on 28 U.S.C. Sec. 1291 . We…