Legal Top Guns to Meet in High Court Showdown Over Escondido Case

So what do you do if you’re a litigant in a legal squabble that’s headed for the nation’s highest court and the other side names heavy-hitter and former U.S. Supreme Court nominee Robert H. Bork as its co-counsel?

If you’re the city of Escondido, you fight fire with legal fire.

On Saturday, Escondido city attorney David Chapman announced that he has selected former Reagan Administration solicitor general Rex E. Lee as the city’s co-counsel in a legal imbroglio over mobile-home rent control that both sides say has national implications.

Lee, 56, is considered one of the nation’s top guns in cases presented before the Supreme Court. He served as solicitor general during Reagan’s first term and is now president of Utah’s Brigham Young University after years as a Supreme Court specialist with the Washington office of the Chicago law firm of Sidley & Austin.

“It’s obvious to anyone who knows anything about our nation’s highest court that Mr. Lee has long been one of the supreme advocates before the court,” said Chapman. “I do not know Mr. Lee personally but have read literature about him and have seen him argue in court and have become aware how extremely well-respected he is.”

As solicitor general, Lee for four years argued the U.S. government’s position in cases heard before the Supreme Court before assuming presidency of the Mormon-controlled college in 1989. He had previously served as dean of the Brigham Young law school.

On Wednesday, during a closed session of the City Council, Chapman said he will recommend Lee as the city’s co-counsel in the upcoming case.

“I think it’ll be something of a formality,” he said.

This week Bork, the former appeals court judge and Supreme Court nominee, joined the legal team challenging the constitutionality of Escondido’s mobile-home rent-control ordinance. Bork was nominated to the high court by President Reagan in 1987 but was rejected following Senate confirmation hearings.

Chapman acknowledged that the selection of an attorney of Bork’s qualifications affected their own choice.

“Judge Bork’s selection crystallized my own thinking,” he said. “While we had a good team of lawyers, one thing we lacked was experience before the court and they showed that fact was important to them as well.”

The Escondido case, Yee vs. Escondido, challenges the city’s law that controls mobile home rents and is one that observers say will affect the more than 75 California cities that regulate such rents.

Escondido’s rent control ordinance, passed by voters in 1988 as Proposition K, governs the monthly rents in the city’s 28 mobile home parks. Park owners claim the law unfairly transfers the value of their properties to tenants who reap the profits when they sell their homes and the right to occupy the spaces beneath them.

The case is scheduled to be heard before the court sometime early next year.

Robert Jagiello, lead attorney for the lawsuit and a former law student of Bork’s at Yale University, said Saturday he was nonplussed by the city’s choice of legal guns.

“Frankly,” he said. “I’ve never heard of the guy.”

Responded Chapman: “That statement shows more about Mr. Jagiello than anything else. This isn’t going to be so much a cat fight as it is a meeting of minds. There’s going to be a lot of good attorneys in this case. But someone is going to lose.”

Chapman said that it remains unclear what role Lee might take in actually arguing the case before the court. Lee has also been chosen to argue California’s Proposition 13, the property tax initiative, and both cases might conflict his schedule, he said.

“It’s not clear whether he’ll be able to orally argue for us before the court,” Chapman said. For that purpose, Chapman said, Lee might use attorney Carter Phillips, a former partner at the Washington law practice.

Among legal observers, Lee’s credentials as a legal conservative are well-known. But in 1983, during his last year before stepping down from his Reagan Administration post, he drew the wrath of archconservatives when he branded social issues such as abortion and prayer in schools as “an albatross around my neck.”

While later contending that the disagreement had been “greatly exaggerated,” he acknowledged that he had had differences with others in the Administration over the extent to which the solicitor general’s office should be used to advocate broad principles with no chance of adoption by the high court.

“I am not the neighborhood essayist. . . .” he told reporters. “My job is to win cases before the Supreme Court.”