Bork Will Aid Plaintiffs in Escondido Case

Former U.S. Supreme Court nominee Robert Bork has tentatively agreed to act as co-counsel in a suit against mobile-home rent control in Escondido, underlining the significance of the case that will be heard by the nation’s highest court early next year.

“It’s a case of national importance in terms of property rights, and I doubt that you can find in the country anyone who can better advance the arguments with respect to those rights than Robert Bork,” said Robert Jagiello, the lead attorney in the case and a former law student of Bork at Yale University.

Jagiello, a San Bernardino attorney, said Bork will aid in drafting the brief and may handle oral arguments.

“Before the briefing is done, we will have 50 to 60 views stated in the briefs, and I am sure that there will be some illustrious individuals on both sides,” Jagiello said.

The case, called Yee versus Escondido, specifically challenges an Escondido mobile home rent-control law and will directly affect the more than 75 California cities that regulate mobile-home rents.

The case also has drawn attention nationwide as an opportunity for the Supreme Court to redefine how and when damages can be awarded for the financial impact of a variety of governmental regulations, a field called “takings.”

Attorneys for Escondido said Bork’s signing on against them will have little effect on how they prepare the case.

“While Bork’s involvement may certainly make the case more colorful, and it certainly does illustrate the importance of the case, we will continue to prepare the case as thoroughly and effectively as possible,” assistant city attorney Jeffrey Epp said.

“To be frank, in terms of who has what to say about the case, I am more interested in what the nominees that did succeed (in getting on the Supreme Court) have to say,” Epp said.

Bork was nominated in 1987 by then-President Ronald Reagan to fill the seat left vacant by retiring Justice Lewis Powell. The Democrat-controlled Senate rejected the nomination, labeling Bork as anti-civil rights, anti-consumer and against equal rights for women.

Bork, who could not be reached for comment, has a legal background that includes stints as a federal judge, law professor and solicitor general. Bork now is a resident scholar at the American Enterprise Institute, a Washington-based conservative think tank.

Christopher DeMuth, president of the institute, said it is not uncommon for Bork, who has been with the institute since 1988, to agree to argue cases of interest.

Epp declined to say whether any high-profile constitutional scholars will be weighing in for the city, saying only that “we have a wide array of national organizations with a lot of clout assisting the city.”

It is not uncommon for legal scholars to be enlisted in Supreme Court arguments when it comes to questions of constitutional law and getting a broader perspective on the issue.

“When you argue a case with the Supreme Court, you have to understand the broader context . . . and a constitutional law professor can provide that. Bork will be aware of not only the takings cases but other cases in the economic area and what the court has been doing,” said Julian Eule, a professor of constitutional law at UCLA.

Eule said the Escondido case, along with two others that the Supreme Court has agreed to hear, has set the stage for the court to “redirect itself in the economic regulation area, and it is unclear which route they will take.”

“They have before them the full arsenal of weapons with which economic regulation can be attacked,” Eule said.