Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.

Supreme Court briefDec 4, 2017

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No. 17-647

IN THE

Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

TOWNSHIP OF SCOTT, PA; CARL S. FERRARO,

Individually and in his Official Capacity as Scott

Township Code Enforcement Officer,

Respondents.

_______

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

_______

Amicus Curiae Brief Of Institute For Justice

Supporting Petitioner

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

11355 West Olympic Blvd.

Los Angeles, CA 90064

Telephone: (310) 312-4185

Email: mmberger@manatt.com

Counsel for Amicus Curiae

Institute for Justice

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 4

ARGUMENT ............................................................ 6

WILLIAMSON COUNTY WAS

WRONGLY DECIDED. LATER

DECISIONS OF THIS COURT HAVE

PLAINLY DEMONSTRATED THAT

ERROR .......................................................... 6

Williamson County is Fatally

Flawed ................................................. 6

This Court’s More Recent Cases

Are Not Compatible with

Williamson County ........................... 12

II.

NO OTHER CONSTITUTIONALLY

PROTECTED RIGHTS ARE

SHUNTED TO STATE COURTS FOR

“RIPENING” ................................................ 14

III.

THE WHOLE POINT OF 42 U.S.C.

§ 1983 WAS TO PROVIDE FEDERAL

COURTS FOR THE PROTECTION

OF FEDERAL RIGHTS .............................. 20

CONCLUSION ....................................................... 21

TABLE OF AUTHORITIES

Page

CASES

Beck v. City of Pittsburgh,

89 F.3d 966 (3d Cir. 1996), cert.

den. 117 S. Ct. 1086 (1997)............................... 18

Bell v. Hood,

327 U.S. 678 (1946)........................................3, 10

Berkley v. Common Council,

63 F.3d 295 (4th Cir. 1995) (en

banc) .................................................................. 18

Board of Education v. Earls,

536 U.S. 822 (2002)........................................... 19

Boraas v. Village of Belle Terre,

476 F.2d 806 (2d Cir. 1973) .............................. 17

Burnett v. Grattan,

468 U.S. 42 (1984)............................................. 20

City of Boerne v. Flores,

521 U.S. 507 (1997)........................................... 18

City of Chicago v. International

College of Surgeons,

522 U.S. 156 (1997)........................................4, 12

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999)........................................... 10

City of Renton v. Playtime Theatres,

Inc.,

475 U.S. 41 (1986)............................................. 16

iii

TABLE OF AUTHORITIES

(continued)

Page

Complete Auto Transit, Inc. v. Brady,

430 U.S. 274 (1977)........................................... 22

Cont'l T.V., Inc. v. GTE Sylvania, Inc.,

433 U.S. 36 (1977)............................................. 21

County of Allegheny v. Frank

Mashuda Co.,

360 U.S. 185 (1959)........................................... 19

Dodd v. Hood River County,

59 F.3d 852 (9th Cir. 1995) ................................ 2

Dolan v. City of Tigard,

512 U.S. 374 (1994)............................................. 5

Felder v. Casey,

487 U.S. 131 (1988)..................................9, 14, 21

Fields v. Sarasota-Manatee Airport

Auth.,

953 F.2d 1299 (11th Cir. 1992)........................... 2

First Assembly of God v. Collier

County,

20 F.3d 419 (11th Cir. 1994) ............................ 18

First English Evangelical Lutheran

Church v. County of Los Angeles,

482 U.S. 304 (1987)............................4, 7, 8, 9, 12

Front Royal etc. Corp. v. Town of Front

Royal,

135 F.3d 275 (4th Cir. 1998) .............................. 2

TABLE OF AUTHORITIES

(continued)

Page

Funk v. U.S.,

290 U.S. 371 (1933)........................................... 22

Gares v. Willingboro Twp.,

90 F.3d 720 (3d Cir. 1996) ................................ 19

Golden State Transit Corp. v. City of

Los Angeles,

493 U.S. 103 (1989)........................................... 21

Gonzalez v. Ysleta Ind. School Dist.,

996 F.2d 745 (5th Cir. 1993) ............................ 19

Hammond v. County of Madera,

859 F.2d 797 (9th Cir. 1988) ............................ 18

Heck v. Humphrey,

512 U.S. 477 (1994)........................................... 20

Horne v. United States Dept. of

Agriculture,

133 S. Ct. 2053 (2013)....................................5, 13

Jefferson v. City of Tarrant,

522 U.S. 75 (1997)............................................. 20

Kalina v. Fletcher,

522 U.S. 118 (1997)........................................... 21

Kottschade v. City of Rochester,

319 F.3d 1038 (8th Cir.), cert. den.

(2002)..............................................................3, 12

Lake Country Estates v. Tahoe Reg.

Plan. Agency,

440 U.S. 391 (1979)........................................... 21

TABLE OF AUTHORITIES

(continued)

Page

Larkin v. Grendel's Den,

459 U.S. 116 (1982)........................................... 18

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972)........................................... 20

McDaniel v. Sanchez,

452 U.S. 130 (1981)........................................... 22

Miller v. California,

413 U.S. 15 (1973)............................................. 17

Mitchum v. Foster,

407 U.S. 225 (1972)..................................5, 20, 21

Monell v. Dept. of Social Services,

436 U.S. 658 (1978)........................................8, 20

Monroe v. Pape,

365 U.S. 167 (1961)................................14, 16, 20

Nevada Dept. of Human Resources v.

Hibbs,

538 U.S. 721 (2003)............................................. 7

Richardson v. Leeds Police Dept.,

71 F.3d 801 (11th Cir. 1995) ............................ 18

Roma Constr. Co. v. aRusso,

96 F.3d 566 (1st Cir. 1996) ............................... 19

San Remo Hotel v. City & County of

San Francisco,

545 U.S. 323 (2005)........................................4, 13

TABLE OF AUTHORITIES

(continued)

Page

Santini v. Conn. Hazardous Waste

Mgmt. Serv.,

342 F.3d 118,130 (2d Cir. 2003) ......................... 2

Screws v. U.S.,

325 U.S. 91 (1945)............................................. 15

SEC v. United Benefit Life Ins. Co.,

387 U.S. 202 (1967)........................................... 22

Simmons v. City of Philadelphia,

947 F.2d 1042 (3d Cir. 1991) ............................ 18

Stringer v. United States,

471 F.2d 381 (9th Cir. 1973) .............................. 9

Town of Greece v. Galloway,

134 S. Ct. 1811 (2014)....................................... 18

Turner v. Upton County,

915 F.2d 133 (5th Cir. 1990) ............................ 18

U.S. v. General Motors Corp.,

323 U.S. 373 (1945)............................................. 8

United States v. Herrero,

416 F.2d 945 (9th Cir. 1969) .............................. 9

Village of Belle Terre v. Boraas,

416 U.S. 1 (1974)............................................... 17

Wainwright v. Sykes,

433 U.S. 72 (1977)............................................. 15

Will v. Michigan Dept. of Police,

491 U.S. 58 (1989)............................................... 7

vii

TABLE OF AUTHORITIES

(continued)

Page

Williamson County Reg. Plan.

Commn. v. Hamilton Bank,

473 U.S. 172 (1985).................................... passim

Wilson v. Garcia,

471 U.S. 261 (1985)............................................. 9

Young v. American Mini Theatres,

427 U.S. 50 (1976)............................................. 16

STATUTES

28 U.S.C. § 1441(a)..............................................4, 12

28 U.S.C. § 2254(b)................................................. 15

42 U.S.C. § 1983 .............................................. passim

42 U.S.C. § 4651(1)................................................. 10

42 U.S.C. § 4651(8)..............................................9, 10

42 U.S.C. § 4655 ..................................................... 10

CONSTITUTION

1st Amendment .................................................16, 17

5th Amendment .............................................. passim

viii

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

Berger, Michael M. & Gideon Kanner,

Shell Game! You Can’t Get There

From Here: Supreme Court

Ripeness Jurisprudence in Takings

Cases at Long Last Reaches the

Self-Parody Stage, 36 Urb. Law.

671 (2004) ............................................................ 2

Buchsbaum, Peter A., Should Land

Use Be Different? Reflections on

Williamson County Regional

Planning Board v. Hamilton Bank,

in Taking Sides on Takings Issues

(ABA 2002; Thomas E. Roberts,

ed.) ..................................................................... 20

Delaney, John & Duane Desiderio,

Who Will Clean Up The “Ripeness

Mess”? A Call For Reform So

Takings Plaintiffs Can Enter The

Federal Courthouse, 31 Urb. Law.

195 (1999) .......................................................... 15

Eagle, Steven J., Regulatory Takings

1070 (2d ed. 2001) ............................................. 15

Mandelker, Daniel R., Land Use Law,

§ 2.24 (5th ed. 2003).......................................... 15

Stein, Gregory M., Regulatory Takings

and Ripeness in the Federal Courts,

48 Vand. L. Rev. 1 (1995) ................................. 16

INTEREST OF AMICUS CURIAE

The undersigned amicus curiae files this brief

in support of the Petitioner. 1 The Institute for

Justice is a nonprofit, public interest law center

committed to defending the essential foundations of

a free society through securing greater protection

for individual liberty and restoring constitutional

limits on the power of government. Central to the

mission of the Institute is strengthening the ability

of individuals to control and transfer property and

demonstrating that property rights are inextricably

connected to other civil rights.

The Institute for Justice is also committed to

the idea that the protection of individual rights

requires an engaged federal judiciary that stands

ready to defend those rights when they are

infringed. For too long, however, the doors of

federal courts have been all but closed to property

owners seeking to vindicate their 5th Amendment

rights. While, in every other area the Institute

litigates, violation of a federal constitutional right

entitles (and should entitle) a citizen to a federal

constitutional remedy, property owners are

routinely denied access to a federal forum.

Counsel for the amicus curiae authored this brief alone

and no other person or entity other than the amicus curiae,

its members or counsel have made a monetary contribution to

the preparation or submission of this brief.

Both the

Petitioner and the Respondents consented to the filing of this

brief by stipulations filed with the Court. The amicus curiae

timely notified counsel for the parties that we intended to file

this brief.

For more than three decades, the judiciary in

this country has been hamstrung in its ability to

properly adjudicate federal takings claims because

of the decision in Williamson County Reg. Plan.

Commn. v. Hamilton Bank, 473 U.S. 172 (1985).

Lower federal courts have expressed frustration at

their inability to adjudicate federal takings claims

after Williamson County, with descriptions running

the gamut from “odd” and “unfortunate” (Fields v.

Sarasota-Manatee Airport Auth., 953 F.2d 1299,

1306, 1307 [11th Cir. 1992]) to “draconian” (Dodd v.

Hood River County, 59 F.3d 852, 861 [9th Cir.

1995]), with one concluding that the situation

presents “a Catch-22 for takings plaintiffs” (Santini

v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d

118,130 [2d Cir. 2003]), and another describing the

plaintiff as having “already passed through

procedural purgatory and wended its way to

procedural hell” (Front Royal etc. Corp. v. Town of

Front Royal, 135 F.3d 275, 283-84 [4th Cir. 1998]). 2

Enough cases have been decided to make it

clear that the law is every bit as confused and

unjust as the commentators cited in footnote 2

describe. It is also clear that lower courts feel

unable to solve the problem because the problem

A collection of the harshly critical analyses directed at

Williamson County by commentators from all parts of the

jurisprudential spectrum — even those who agree that this

litigation belongs in state court — appears in Michael M.

Berger & Gideon Kanner, Shell Game! You Can’t Get There

From Here: Supreme Court Ripeness Jurisprudence in

Takings Cases at Long Last Reaches the Self-Parody Stage,

36 Urb. Law. 671, 702-03 (2004).

stems from this Court’s jurisprudence. How to

bridge the “anomalous gap” in that jurisprudence

as described by one Circuit Court “is for the

Supreme Court to say, not us.” (Kottschade v. City

of Rochester, 319 F.3d 1038, 1041 [8th Cir.], cert.

den. [2002].)

The core issue in this case is one that has

caused confusion and injustice since this Court’s

decision in Williamson County Reg. Plan. Commn.

v. Hamilton Bank, 473 U.S. 172 (1985). The issue

is whether property owners claiming that

government action has taken their property

without just compensation in violation of the 5th

Amendment to the U.S. Constitution have the right

— like other constitutional claimants — to have

their cases decided on the merits in federal courts.

(See, e.g., Bell v. Hood, 327 U.S. 678, 681 [1946]

[complaint seeking compensation for violation of

4th and 5th Amendments belongs in federal court if

the plaintiff so chooses].) The decisions by lower

state and federal courts have been confused and

unjust. The only consistency about them is that

they have deprived property owners of access to the

federal courts, while saying that they are applying

a rule that will “ripen” the cases for federal court

litigation. As those decisions have made clear, this

Court is the only court that can clarify and make

sense of this foundational question of federal court

jurisdiction.

The Institute for Justice, sometimes on behalf

of property owners and sometimes on behalf of

itself as an organization, has regularly litigated

about ripeness in property-rights cases and urges

the Court to resolve the inequities in that doctrine.

SUMMARY OF ARGUMENT

It is time for the Court to reconsider

Williamson County’s state court litigation prong,

which requires state court confirmation that there

is no state remedy for a governmental taking of

property. Only then will it be said that a 5th

Amendment claim is “ripe” for federal court

litigation. The premise of that rule goes beyond the

plain language and meaning of the 5th

Amendment. A municipality’s taking of private

property without just compensation is complete

when property is taken and compensation is not

paid by the government. It does not require a

judicial determination to complete, or ripen, the

taking. And, if it did, there is no reason why such a

determination must take place in state court.

2. This Court’s cases since Williamson County

have shown the need to disapprove the state court

litigation requirement. First, in City of Chicago v.

International College of Surgeons, 522 U.S. 156

(1997) this Court authorized a municipal defendant

sued for a taking in state court to remove the case

to federal court, even though removal is proper only

if the plaintiff could have brought suit in federal

court in the first place (28 U.S.C. § 1441[a]) —

something Williamson County forbids. Second, in

San Remo Hotel v. City & County of San Francisco,

545 U.S. 323 (2005), the Court held that, once a

case is brought and tried in state court — as

commanded by Williamson County — issue

preclusion would prevent prosecuting such a case

in federal court. Four concurring Justices urged

reconsideration of Williamson County. Third, in

Horne v. United States Dept. of Agriculture, 133

S. Ct. 2053, 2062, n. 6 (2013), the Court concluded

that, once there has been a taking without

payment, a proper constitutional claim has been

presented, without the need for further “ripening.”

3. No other constitutionally protected right is

subjected to state court “ripening” as a condition

precedent to suit in federal court. If the 5th

Amendment’s protection of property is truly no

“poor relation” to the rest, as this Court proclaimed

in Dolan v. City of Tigard, 512 U.S. 374, 392 (1994),

then it is entitled to equal access to federal courts.

4. Both Williamson County and this case were

brought under the Federal Civil Rights Act,

42 U.S.C. § 1983. Such cases are probably the

worst cases in which to inject a state court

litigation requirement. As this Court has held, the

point of section 1983 was to “interpose the federal

courts between the States and the people, as

guardians of the people’s federal rights.” (Mitchum

v. Foster, 407 U.S. 225, 243 [1972].) There is no

room in that formulation for a rule that interposes

the state courts as a bar to federal court access.

ARGUMENT

WILLIAMSON COUNTY WAS WRONGLY

DECIDED. LATER DECISIONS OF THIS

COURT HAVE PLAINLY DEMONSTRATED

THAT ERROR

The 5th Amendment’s Just Compensation

Clause prohibits government from taking private

property for public use unless it pays just

compensation. It has only two components: taking

property and payment.

A violation of that

provision occurs as soon as government action

takes private property and the municipality fails or

refuses to pay. There is nothing in either logic or

language to require a state court to certify that

there will be no payment under state law before the

taking is complete.

Williamson County is Fatally Flawed

Here is the flaw at the heart of Williamson

County: it held that the taking was not complete

until compensation was denied not just by the

taking entity, but also by the state courts.

Williamson County quite properly began its

analysis with the words of the 5th Amendment,

noting that the constitutional provision “does not

proscribe the taking of property; it proscribes

taking without just compensation.” (473 U.S. at

194.) The problem arises because the Court then

blurred the distinction between acts of the agency

that actually committed the taking and the State

that may or may not have provided compensation

through its judiciary. (473 U.S. at 195-96.)

But the state is not involved in 42 U.S.C. § 1983

cases. States and their officials cannot be sued

under Section 1983 (Will v. Michigan Dept. of

Police, 491 U.S. 58 [1989]), nor (with very narrow

exceptions [Nevada Dept. of Human Resources v.

Hibbs, 538 U.S. 721 (2003)]) can they be brought

into federal court at all against their will (U.S.

Const., 11th Amend.; but see First English, 482

U.S. at 316, n. 9). The real issue in cases like this

is whether the local entity — like the Township of

Scott — is alleged to have taken private property

for public use and failed to pay for it. If so, the

question whether the town can be compelled to pay

lies at the heart of litigation in either state or

federal court.

The crux of the problem with Williamson

County is that it merged the state legal system with

the local agency defendant and disregarded the

plain words of the Constitution. Nothing in the 5th

Amendment requires multiple litigation or state

court deference. It does not say “. . . nor shall

private property be taken for public use without

just compensation as finally determined by

unsuccessfully suing a municipality in state court.”

The issue is not whether a state’s judiciary has

countenanced the constitutional violation, but

whether the municipal defendant has committed it.

42 U.S.C. § 1983 forbids any person, including

municipalities (Monell v. Dept. of Social Services,

436 U.S. 658, 690 [1978]), acting under color of

state law from violating rights secured by federal

law. The gravamen of a 5th Amendment claim is a

taking of property 3 and nonpayment by the taker.

When a municipality — like Scott — conscripts

private property without any pretext of

compensation, it violates the 5th Amendment. The

presence or absence of a state remedy has no

bearing on whether the malefactor did the deed.

Two years after Williamson County, the Court

understood this, describing Williamson County as

holding that “an illegitimate taking might not occur

until the government refuses to pay” (First English

Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 320, n. 10 [1987]; emphasis

added), without any reference to whether a state

court had refused to order payment. In any event,

if a municipality refuses to provide compensation

as required by the U.S. Constitution and recourse

to the courts must be had, there is no reason why

such recourse should — let alone must — be had

only in state courts when the federal constitution is

being violated.

Deferring to state courts is tantamount to

granting states a veto over access to federal court,

As explained in U.S. v. General Motors Corp., 323 U.S.

373, 378 (1945), it is the deprivation of the owner that

constitutes the compensable taking.

making them de facto federal court gatekeepers.

The Court has repeatedly concluded that “Congress

surely did not intend to assign to state courts and

legislatures a conclusive role in the formative

function of defining and characterizing the

essential elements of a federal cause of action.”

(Felder v. Casey, 487 U.S. 131, 144 [1988], quoting

Wilson v. Garcia, 471 U.S. 261, 269 [1985].)

Mandating suit in state court adds to the 5th

Amendment a remedial requirement. But the just

compensation language has repeatedly been read

by this Court as a limitation on government's

power, not an invitation for an injured property

owner to sue for payment. The Just Compensation

Clause is self-executing. (First English, 482 U.S. at

315.)

If nothing else, any required suit for payment

is contrary to Congressional policy established in

1970 in the Uniform Relocation Assistance and

Real Property Acquisition Policies Act, which

provides that the old days of grabbing property first

and then saying “sue me” to the aggrieved owner

are over. (Compare Stringer v. United States, 471

F.2d 381, 384 [9th Cir. 1973]; United States v.

Herrero, 416 F.2d 945, 947 [9th Cir. 1969].) That

Act makes it illegal for government agencies to

make it necessary for property owners to sue for

their just compensation. 4 Rather, the duty is the

government's to acquire whatever property

interests are needed for the public good, either by

negotiation (42 U.S.C. § 4651[1]) or, failing that,

condemnation (42 U.S.C. § 4651[8]).

In any event, if suit is required to demonstrate

the actuality of a 5th Amendment violation, there

is nothing in the 5th Amendment directing that the

only place to seek that determination is in state

court. As state and federal courts have concurrent

jurisdiction to decide constitutional claims, the

choice of forum, as in other cases, should belong in

the first instance to the plaintiff. (Bell, 327 U.S. at

681.)

There is no need to sue in State court merely to

confirm the non-payment of just compensation.

The non-payment is obvious; it is the reason for the

suit. Had there been payment, there would be no

litigation. This can be seen in any regulatory

taking case. In City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687 (1999), for

example, the taking occurred in 1986, the case was

furiously litigated, through two appeals to the 9th

Circuit and one trip to this Court. That process

The Act provides succinctly, “No Federal agency head

shall intentionally make it necessary for an owner to institute

legal proceedings to prove the fact of the taking of his real

property.” (42 U.S.C. § 4651[8].) To make this a truly

“uniform” law, as its title advertised, the policies in Section

4651 were made applicable to the states — by directing that

federal funds could not be spent on state projects unless the

state agreed to comply with these policies. (42 U.S.C. § 4655.)

consumed 13 years. At no time — even after a trial

on the merits resulted in a compensatory judgment

— did the city volunteer to pay anything. Suit was

not necessary to determine the lack of

compensation, or the city's lack of interest in

paying.

Nor is a state suit needed to inform the

defendant of the problem. Given the complexity of

today's land use procedures — usually requiring

years of effort and endless public hearings before

action is taken — any agency that is not comatose

is well aware by the end of the process that the

property owner claims the city action violates the

5th Amendment. Scott was not in doubt about that

claim. It simply chose not to honor it. Imposing on

Ms Knick (not to mention the time of the state

courts) merely to confirm that obvious fact serves

no legitimate purpose.

With respect, Williamson County erroneously

construed the 5th Amendment to require a wasteful

detour through state courts as a precursor to

federal court litigation of a core federal

constitutional issue. As shown below, it is even

worse. Lower court efforts to grapple with this

rule, attempting to apply it while also giving

deference to general rules of preclusion, have

created only chaos. It is time for this Court to

acknowledge the original error and overrule the

state court ripening requirement.

This Court’s More Recent Cases Are Not

Compatible with Williamson County

This Court’s post-Williamson County cases

cannot be reconciled with it. Williamson County’s

rule is that takings claims (whether directly under

the Constitution or via 42 U.S.C. § 1983) must first

be brought (and lost) in state court in order to

render them ripe and viable in federal court.

But this Court has repeatedly held to the

contrary, albeit without directly noting the conflict

thus created with Williamson County.

First, in City of Chicago v. International College

of Surgeons, 522 U.S. 156 (1997) this Court

authorized a municipal defendant sued for a taking

in state court to remove the case to federal court.

But removal is proper only if the plaintiff could

have brought suit in federal court in the first place.

(28 U.S.C. § 1441[a].) Under Williamson County,

however, the plaintiff could not have filed suit

initially in federal court. Such a suit would have

been dismissed, with the lower courts relying on

Williamson County.

Acknowledging that the

juxtaposition of Williamson County and College of

Surgeons was “anomalous,” the Eighth Circuit

Court of Appeals concluded that how to resolve that

conundrum “is for the Supreme Court to say, not

us.” (Kottschade, 319 F.3d at 1041.)

Second, in San Remo Hotel v. City & County of

San Francisco, 545 U.S. 323 (2005), the Court held

that, once a case is brought and tried in state court

— as commanded by Williamson County — issue

preclusion would prevent prosecuting such a case in

federal court. Thus, state court litigation does not

ripen a 5th Amendment claim, it ends it. The

rationale for state court litigation has been

undermined by San Remo.

Third, in Horne v. United States Dept. of

Agriculture, 133 S. Ct. 2053, 2062, n. 6 (2013), the

Court concluded that, once there has been a taking

without payment, a proper constitutional claim has

arisen. This undermines another key element of

Williamson County, i.e., the idea that mere nonpayment is not enough to ripen 5th Amendment

litigation. In addition, there must be a holding by a

state court that compensation is not required.

Horne is contrary to this Williamson County

holding.

In these three post-Williamson County opinions,

the Court has eliminated any jurisprudential basis

for continuing to hew to that plainly outmoded

precedent.

It is time, as the late Chief Justice and three

others proclaimed in San Remo, for the Court to

reconsider Williamson County and remove it from

the precedential rolls.

(545 U.S. at 348-52

[Rhenquist, C.J., concurring, joined by O’Connor,

Kennedy, and Thomas, JJ.].)

II.

NO OTHER CONSTITUTIONALLY

PROTECTED RIGHTS ARE SHUNTED TO

STATE COURTS FOR “RIPENING”

Property rights are the only constitutional

rights subjected to a Williamson County-like

ripening. This Court’s cases dealing with other

rights make this plain.

Just as the Constitution forbids taking property,

but only without just compensation, so the

Constitution forbids the deprivation of life and

liberty — but only if done without due process of

law: “. . . nor shall any State deprive any person of

life, liberty, or property, without due process of law

. . . .” (U.S. Const., 14th Amend.) And yet,

plaintiffs complaining about deprivations of life or

liberty without due process of law are not told they

must first sue in state courts to determine whether

relief can be had there, as a precondition to seeking

redress in federal court. Quite the contrary. Their

suits take place in federal court; the validity of the

defendant's actions under state law, and the

availability of state remedies is irrelevant. (See,

e.g., Monroe v. Pape, 365 U.S. 167 [1961] [police

brutality case not required to be preceded by state

tort suit for assault and battery]; Felder v. Casey,

487 U.S. 131, 148 [1988] [Section 1983 suits are

enforceable in federal court “in the first instance”];

cf. Screws v. U.S., 325 U.S. 91, 108 [1945].) 5

If, as Williamson County said, the federal

violation is not ripe until a state court verifies that

state law provides no remedy, then all Section 1983

litigation would have to begin in state courts.

In the words of the leading treatise, “If there is a

reason why free speech cases are heard by federal

judges with alacrity and property rights cases

receive the treatment indicated above [i.e.,

diversion to state courts], it is not readily

discernible from the Constitution.” (Steven J.

Eagle, Regulatory Takings 1070 [2d ed. 2001].)

That property owners have been singled out is

clear. 6 As one commentator concluded, “[t]he state

compensation portion of [Williamson County] finds

The lone exception is habeas corpus, where all issues

(state and federal) must be raised in state court first.

(28 U.S.C. § 2254[b].)

However, once done, a habeas

petitioner is not subjected to res judicata and full faith and

credit barriers upon arriving in federal court. The issues may

be argued afresh. (See, e.g, Wainwright v. Sykes, 433 U.S. 72,

80 [1977].)

See, e.g., Daniel R. Mandelker, Land Use Law, § 2.24 at 232 (5th ed. 2003) [“The Supreme Court has adopted a special

set of ripeness rules to determine whether federal courts can

hear land use cases.”]; John Delaney & Duane Desiderio, Who

Will Clean Up The “Ripeness Mess”? A Call For Reform So

Takings Plaintiffs Can Enter The Federal Courthouse, 31 Urb.

Law. 195, 196 (1999) [“the ripeness and abstention doctrines

have uniquely denied property owners, unlike the bearers of

other constitutional rights, access to the federal courts on

their federal claims”].

no parallel in the ripeness cases from other areas of

the law.” 7

No parallel, indeed. The settled rule in other

areas of substantive litigation under 42 U.S.C.

§ 1983 is that the federal forum is available at the

plaintiff's demand, regardless of alternative

remedies under state law:

“It is no answer that the State has a

law which if enforced would give relief.

The federal remedy is supplementary

to the state remedy, and the latter

need not be first sought and refused

before the federal one is invoked.”

(Monroe, 365 U.S. at 183.)

Paradoxically, federal court protection is

routinely provided in some land use cases — but

only those involving aspects of the Bill of Rights

other

than

the

5th

Amendment’s

Just

Compensation

Clause.

Federal

court

1st Amendment cases abound, for example, in

which the validity of local land use ordinances

regulating or zoning for (or against) sexually

explicit work has been challenged. 8 There is no

requirement of first presenting the issues to state

courts, even though they implicate the same zoning

policies and land use ordinances as do other land

Gregory M. Stein, Regulatory Takings and Ripeness in the

Federal Courts, 48 Vand. L. Rev. 1, 23 (1995).

E.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986); Young v. American Mini Theatres, 427 U.S. 50 (1976).

use cases. Cases are thus decided in federal court,

based on “local community standards,” without

initial state court suits. Similarly, whether an

artistic or literary work is obscene under the 1st

Amendment is determined by “contemporary

community standards” and “applicable state law.” 9

But state court judges do not have a monopoly on

measuring the works against those local standards.

Nor have federal judges shown any hesitation to

embroil themselves in local issues invoking the

kind of neighborhood and family values typically

involved in land use cases. In a celebrated zoning

case, this Court concluded that:

“[a] quiet place where yards are wide,

people are few, and motor vehicles

restricted are legitimate guidelines in

a land use project addressed to family

needs. . . . It is ample to lay out zones

where family values, youth values,

and the blessings of quiet seclusion

and clean air make the area a

sanctuary for people.” (Village of Belle

Terre v. Boraas, 416 U.S. 1, 9 [1974].)

The Court of Appeals in that case had “start[ed]

by examin[ing]” the zoning ordinance with

reference to “the interest of the local community in

the protection and maintenance of the prevailing

traditional family pattern . . . .” (Boraas v. Village

of Belle Terre, 476 F.2d 806, 815 [2d Cir. 1973].) If

Miller v. California, 413 U.S. 15, 24 (1973).

it is acceptable for a federal court to examine such

intensely local and personal issues in the context of

disapproving a proposed development planning

pattern, how does it become unacceptable when a

landowner

wants

challenge

regulatory

restrictions on constitutional grounds?

First Amendment cases dealing with the land

use aspects of establishment of religion are also

litigated in federal courts in the first instance. 10

Moreover, at the behest of aggrieved citizens,

federal courts have involved themselves in the local

intricacies of city budget policy, 11 county law

enforcement policy, 12 municipal policy governing

the use of force during arrests, 13 county road

acquisition

policy, 14

municipal

employment

policy, city medical care policy, random drug

E.g., Town of Greece v. Galloway, 134 S. Ct. 1811 (2014);

City of Boerne v. Flores, 521 U.S. 507 (1997); Larkin v.

Grendel's Den, 459 U.S. 116 (1982); First Assembly of God v.

Collier County, 20 F.3d 419 (11th Cir. 1994).

Berkley v. Common Council, 63 F.3d 295 (4th Cir. 1995)

(en banc).

Turner v. Upton County, 915 F.2d 133 (5th Cir. 1990).

Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), cert.

den. 117 S. Ct. 1086 (1997).

Hammond v. County of Madera, 859 F.2d 797 (9th Cir.

1988).

Richardson v. Leeds Police Dept., 71 F.3d 801 (11th Cir.

1995).

Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir.

1991).

testing of students, 17 school district sexual abuse

policy, 18 police department sexual harassment

policy, 19 and even the question whether “extortion

of outsiders, businessmen, or developers” was town

policy. 20 As this Court itself has noted, federal

courts routinely review issues involving exercise of

a state's sovereign prerogative, including the power

to regulate fishing in its waters, its power to

regulate intrastate trucking rates, a city's power to

issue bonds without a referendum, and a host of

others. 21

Many of the cited cases deal with parallel

features of the Bill of Rights, notably the Due

Process Clause, routinely protected in federal court

through 42 U.S.C. § 1983 — even against

unconstitutional land use regulations. All sorts of

local governmental issues are litigated in federal

courts every day. And they involve all aspects of

the Bill of Rights — except the 5th Amendment's

Just Compensation Clause.

“For years, federal lawsuits telling

state and local governments how to

run their hospitals, jails, police forces,

Board of Education v. Earls, 536 U.S. 822 (2002).

Gonzalez v. Ysleta Ind. School Dist., 996 F.2d 745

(5th Cir. 1993).

Gares v. Willingboro Twp., 90 F.3d 720 (3d Cir. 1996).

Roma Constr. Co. v. aRusso, 96 F.3d 566 (1st Cir. 1996).

County of Allegheny v. Frank Mashuda Co., 360 U.S. 185,

191-92 (1959) [collecting cases] [retaining federal court

jurisdiction over a state eminent domain case].

and mental institutions have been

accepted as a matter of course.” 22

There is nothing so special about land use cases

as to insulate them from federal court review.

III.

THE WHOLE POINT OF 42 U.S.C. § 1983 WAS

TO PROVIDE FEDERAL COURTS FOR THE

PROTECTION OF FEDERAL RIGHTS

As this Court has repeatedly stressed, a § 1983

case is a “species of tort liability” (Heck v.

Humphrey, 512 U.S. 477, 483 [1994]), specifically, a

statutorily created “constitutional tort” (Jefferson v.

City of Tarrant, 522 U.S. 75, 79 [1997]) that sweeps

within its ambit all manner of governmental

actions that defy Bill of Rights protections.

Properly so. Section 1983 was intended to provide

“a uniquely federal remedy” (Mitchum v. Foster,

407 U.S. 225, 239 [1972]) with “broad and sweeping

protection” (Lynch v. Household Fin. Corp., 405

U.S. 538, 543 [1972] [quoting with approval]) “read

against the background of tort liability that makes

a man responsible for the natural consequences of

his actions” (Monroe v. Pape, 365 U.S. 167, 187

[1961], overruled in part, to expand government

liability, in Monell, 436 U.S. 658) so that

individuals in a wide variety of factual situations

Peter A. Buchsbaum, Should Land Use Be Different?

Reflections on Williamson County Regional Planning Board v.

Hamilton Bank, in Taking Sides on Takings Issues, ch. 20,

p. 472 (ABA 2002; Thomas E. Roberts, ed.).

are able to obtain a federal remedy when their

federally protected rights are abridged (Burnett v.

Grattan, 468 U.S. 42, 50, 55 [1984]).

While read against the general common law tort

background, “[t]he coverage of the statute [§ 1983]

is . . . broader “ (Kalina v. Fletcher, 522 U.S. 118

[1997]), and must be broadly and liberally

construed to achieve its goals (Golden State Transit

Corp. v. City of Los Angeles, 493 U.S. 103, 105

[1989]; Lake Country Estates v. Tahoe Reg. Plan.

Agency, 440 U.S. 391, 399-400 [1979]).

“[T]he central purpose of the Reconstruction-Era

laws is to provide compensatory relief to those

deprived of their federal rights by state actors”

(Felder v. Casey, 487 U.S. 131, 141 [1988]) by

“interpos[ing] the federal courts between the States

and the people, as guardians of the people's federal

rights” (Mitchum, 407 U.S. at 243). Williamson

County’s state court litigation mandate inverted

this basic building block of 42 U.S.C. § 1983: it

interposed state courts to shield municipalities

from federal accountability. It is time for this

Court to end that practice.

CONCLUSION

Precedents are not cast away lightly. However,

when scholars have been sharply critical of

decisions, 23 when application of a precedent has

produced a rule that “stands only as a trap for the

Cont’l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 48

(1977).

unwary,” 24 when necessary to clarify the

implications of earlier decisions, 25 when decisions

of the Court are “if not directly . . . [conflicting,] are

so in principle,” 26 or when “the answer suggested

by [the Court’s] prior opinions is not free of

ambiguity,” 27 the Court has reviewed its earlier

decisions and corrected its own errors. Each of

those factors applies to Williamson County.

Certiorari should be granted.

Respectfully Submitted,

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

11355 West Olympic Blvd.

Los Angeles, CA 90064

(310) 312-4000

mmberger@manatt.com

Counsel for Amicus Curiae

Institute for Justice

Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279

(1977).

SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 207

(1967).

Funk v. U.S., 290 U.S. 371, 374 (1933).

McDaniel v. Sanchez, 452 U.S. 130, 136 (1981).

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