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

No. 17-647

In the Supreme Court of the United States

ROSE MARY KNICK, PETITIONER

v.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE STATES OF TEXAS

AND OKLAHOMA AS AMICI CURIAE

IN SUPPORT OF PETITIONER

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

SCOTT A. KELLER

Solicitor General

Counsel of Record

BILL DAVIS

Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

TA B LE O F C O N TE N T S

Page

Interest of amici curiae........................................................ 1

Summary of argument ......................................................... 1

Argument .............................................................................. 2

I. Williamson County’s state-court litigation

“ripeness” requirement is erroneous................... 2

II. The Court should overrule the erroneous

portion of Williamson County. ............................ 9

Conclusion ........................................................................... 12

TA B LE O F A U TH O R I TIE S

Page(s)

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............... 4

Ankenbrandt v. Richards, 504 U.S. 689

(1992) ........................................................................ 7-8

Arrigoni Enters., LLC v. Town of Durham,

136 S. Ct. 1409 (2016) ..................................... 9, 10-12

Barber v. Barber, 62 U.S. (21 How.) 582

(1858) ........................................................................... 8

City of Chicago v. Int’l Coll. of Surgeons, 522

U.S. 156 (1997) ........................................................... 7

City of Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432 (1985) .......................................... 11

(I)

II

Cases—Continued:

Page(s)

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986)..................................................... 11

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

(1821) ........................................................................... 7

Dolan v. City of Tigard, 512 U.S. 374 (1994) .............. 11

Fair Assessment in Real Estate Ass’n, Inc.

v. McNary, 454 U.S. 100 (1981) ................................ 8

First English Evangelical Lutheran Church

v. Los Angeles County, 482 U.S. 304

(1987) ....................................................................... 2, 7

Gardner v. Mayor of Baltimore, 969 F.2d 63

(4th Cir. 1992) ........................................................... 11

Horne v. Dep’t of Agric., 569 U.S. 513 (2013) ............... 3

Hudson v. Palmer, 468 U.S. 517 (1984) ........................ 6

Koscielski v. City of Minneapolis, 435 F.3d

898 (8th Cir. 2006) .................................................... 11

Markham v. Allen, 326 U.S. 490 (1946) ........................ 8

Marshall v. Marshall, 547 U.S. 293 (2006) ................... 7

Migra v. Warren City Sch. Dist. Bd. of

Educ., 465 U.S. 75 (1984) ..................................... 9-10

Parratt v. Taylor, 451 U.S. 527 (1981) ....................... 5-6

Pearson v. Callahan, 555 U.S. 223 (2009) ..................... 9

Reg’l Rail Reorganization Act Cases, 419

U.S. 102 (1974) ....................................................... 2, 7

Reno v. Catholic Soc. Servs., Inc., 509 U.S.

43 (1993) ...................................................................... 3

Ruckelshaus v. Monsanto Co., 467 U.S. 986

(1984) ........................................................................... 5

III

Cases—Continued:

Page(s)

San Remo Hotel, L.P. v. City and County of

San Francisco, 545 U.S. 323 (2005) ......... 2, 9, 10, 11

Stop the Beach Renourishment, Inc. v. Fla.

Dep’t of Envtl. Prot., 560 U.S. 702 (2010) ................ 3

Williamson Cty. Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473

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

Constitutional provisions and statutes:

U.S. Const.:

amend. I .................................................................... 11

amend. IV ................................................................. 11

amend. V ............................................. 1, 2, 3, 4, 10, 11

amend. XIV .............................................................. 11

art. III ..................................................................... 1, 8

28 U.S.C.:

§ 1341........................................................................... 8

§ 1441(a) ...................................................................... 7

§ 1738....................................................................... 4, 9

42 U.S.C. § 1983 ........................................................... 3, 6

Miscellaneous:

H.R. Rep. No. 106-518 (2000) ....................................... 10

J. David Breemer, Dying on the Vine: How

A Rethinking of “Without Just

Compensation” and Takings Remedies

Undercuts Williamson County’s

Ripeness Doctrine, 42 Vt. L. Rev. 61

(2017) ........................................................................... 9

IV

Miscellaneous—Continued:

Page(s)

J. David Breemer, Overcoming Williamson

County’s Troubling State Procedures

Rule: How the England Reservation,

Issue Preclusion Exceptions, and the

Inadequacy Exception Open the Federal

Courthouse Door to Ripe Takings

Claims, 18 J. Land Use & Envtl. L. 209

(2003) ........................................................................... 6

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

Self-Parody Stage, 36 Urb. Law. 671

(2004) ......................................................................... 10

Richard H. Fallon, Jr. et al., Hart and

Wechsler’s The Federal Courts and The

Federal System (6th ed. 2009) .................................. 4

IN TE R E S T O F AM IC I C UR I AE

The amici States of Texas and Oklahoma (and their

agencies and officials) are frequent litigants in takings

cases, and property owners in the amici States sue all

levels of government—federal, state, and local—

seeking just compensation for takings. Since this

Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985), adjudication of takings cases has

been complicated and prolonged when property owners

seek a federal forum for resolution of their Fifth

Amendment claims. The federal courts are competent

to resolve claims under the Fifth Amendment when

those claims are ripe for Article III and prudential purposes, and both the amici States and their citizens have

an interest in efficient resolution of those claims free of

the non-jurisdictional “ripeness” constraint that Williamson County erroneously imposed.*

S U M M AR Y O F AR G U M E N T

I. The Court erred in Williamson County in stating that Fifth Amendment takings claims are not ripe

unless and until they have been adjudicated in state

court. That conclusion was not based on the doctrine of

ripeness in its jurisdictional sense, and other decisions

confirm that a takings claim may be ripe for Article III

and prudential purposes even if a state court has not

resolved it. In light of its res judicata implications, Williamson County’s state-litigation “ripeness” rule essen* This amicus curiae brief is filed with written consent of all

parties as reflected on the docket.

(1)

2

tially strips federal courts of jurisdiction over specific

types of claims. That result is not justified either by the

decisions Williamson County cited or the Court’s

broader body of precedent.

II. The Court should overrule the challenged portion of Williamson County. That portion of the decision

is not only erroneous, but also imposes a substantial

impediment to Fifth Amendment plaintiffs’ access to

lower federal courts. As explained in San Remo Hotel,

L.P. v. City and County of San Francisco, 545 U.S. 323,

326-27 (2005), that impediment arises by virtue of the

full faith and credit statute, which requires federal

courts to give preclusive effect to state-court judgments

resulting from proceedings mandated by Williamson

County’s state-litigation requirement. Plaintiffs in other constitutional cases do not face that barrier, and

there is no sound basis to retain it in the Fifth Amendment context.

AR G UM E N T

I. Williamson County’s State-Court Litigation

“Ripeness” Requirement Is Erroneous.

When a governmental entity takes private property,

the property owner’s injury is not speculative. Liability

arises when the government interferes with property

rights, not when a court later concludes that property

was taken. First English Evangelical Lutheran Church

v. Los Angeles County, 482 U.S. 304, 319-20 (1987); see

also Reg’l Rail Reorganization Act Cases, 419 U.S. 102,

143 (1974) (explaining that “[w]here the inevitability of

the operation of a statute against [a takings plaintiff] is

patent, it is irrelevant to the existence of a justiciable

3

controversy that there will be a time delay before the

disputed provisions will come into effect”). A Fifth

Amendment takings claim is therefore ripe, as that

term is routinely used in justiciability analysis, see, e.g.,

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 & n.18

(1993), regardless of whether a state court has already

adjudicated such a claim.

In Williamson County, however, the Court used the

word “ripe” in a different sense to preclude federalcourt review of a Fifth Amendment takings claim before exhaustion of state-court remedies. 473 U.S. at 194.

The Court has already recognized that Williamson

County’s “ripeness” requirement “is not, strictly speaking, jurisdictional.” Horne v. Dep’t of Agric., 569 U.S.

513, 526 (2013) (citing Stop the Beach Renourishment,

Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 729 &

n.10 (2010)). It should now recognize that imposing a

state-court litigation requirement was error.

A. The plaintiff landowner in Williamson County

sued a local land-use planning commission in federal

court under 42 U.S.C. § 1983, alleging a Fifth Amendment taking based on the commission’s rejection of a

preliminary proposal to develop its land. 473 U.S. at

175, 182. The landowner had not requested variances

from the commission, appealed the commission’s decision to a zoning board of appeals, or sued under state

law for inverse condemnation. Id. at 188.

Without reaching the question on which certiorari

was granted, the Court “examine[d] the procedural posture of [the landowner’s] claim” and held that the claim

was not ripe for two reasons. Id. at 175-76, 185-86.

First, the commission had denied only a preliminary

4

proposal, and because the landowner had not sought

variances from the commission, the denial was “not a

final, reviewable decision.” Id. at 186-94. Second, the

landowner “did not seek compensation through the procedures [Tennessee] ha[d] provided,” including litigation in state court of an inverse-condemnation claim under state law. Id. at 194-97.

B. Though presented as a principle of ripeness, the

second element of Williamson County’s reasoning did

not suggest a lack of ripeness under traditional analysis

of “the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

The first Williamson County consideration, whether

the defendant has issued a final decision, 473 U.S. at

194, is alone sufficient to inform the fitness inquiry. And

requiring a Fifth Amendment plaintiff to obtain a statecourt judgment that will resolve the live controversy

and have preclusive effect certainly imposes a “hardship,” Abbott Labs., 387 U.S. at 149, when the plaintiff

seeks a federal forum for resolution of a federal claim.

See infra Part II.A (discussing the combined effect of

Williamson County’s state-court litigation requirement

and the full faith and credit statute, 28 U.S.C. § 1738).

Williamson County’s litigation “ripeness” requirement is more accurately described as a Court-created

doctrine stripping lower federal courts of jurisdiction

over Fifth Amendment takings claims for just compensation. See, e.g., Richard H. Fallon, Jr. et al., Hart and

Wechsler’s The Federal Courts and The Federal System 1049-1151 (6th ed. 2009) (discussing judicially developed limitations on federal-court jurisdiction). But

5

neither the cases Williamson County relied on nor other decisions of this Court offer adequate support for

that doctrine.

1. Williamson County cited Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), and Parratt v. Taylor,

451 U.S. 527 (1981), as support for the state-court litigation requirement. 473 U.S. at 194-95. That reliance was

misplaced in each instance.

a. Monsanto held that “[e]quitable relief is not

available to enjoin an alleged taking of private property

. . . when a suit for compensation can be brought against

the sovereign subsequent to the taking.” 467 U.S. at

1016. As that holding indicates, the Monsanto plaintiff

requested equitable relief, not just compensation. Id. at

998-99.

Monsanto supports the proposition that “[i]f the

government has provided an adequate process for obtaining compensation, and if resort to that process

‘yield[s] just compensation,’ then the property owner

‘has no claim’ ” for equitable relief “ ‘against the Government’ for a taking.” Williamson Cty., 473 U.S. at

194-95 (quoting Monsanto, 467 U.S. at 1013, 1018 n.21).

That conclusion does not provide a basis for Williamson County’s litigation “ripeness” requirement for

claims seeking just compensation. After all, the Court

concluded in Monsanto that such a claim could be

brought in federal court under the Tucker Act. 467 U.S.

at 1017-20.

b. In Parratt, an inmate sued prison officials who

allegedly failed to follow their own mail-distribution policies, resulting in the loss of packages containing hobby

materials that the inmate had purchased. 451 U.S. at

6

530-31. The Court held that the inmate’s due process

claim was not actionable under 42 U.S.C. § 1983 because the State provided a postdeprivation remedy for

the challenged “random and unauthorized act by a state

employee,” for which a predeprivation hearing was necessarily unavailable. Id. at 541, 543-44. Reasoning by

analogy, Williamson County applied Parratt’s holding

to takings claims, concluding that a “State’s action is

not ‘complete’ in the sense of causing a constitutional

injury ‘unless or until the State fails to provide an adequate postdeprivation remedy for the property loss.’ ”

Williamson Cty., 473 U.S. at 195 (quoting Hudson v.

Palmer, 468 U.S. 517, 532 n.12 (1984)).

Williamson County acknowledged that “[t]he analogy to Parratt is imperfect because Parratt does not

extend to situations . . . in which the deprivation of

property is effected pursuant to an established state

policy or procedure, and the State could provide predeprivation process.” 473 U.S. at 195 n.14. Indeed, because a taking is always the result of an established policy or procedure, a government employee’s random act

can never be the basis of a takings claim. See J. David

Breemer, Overcoming Williamson County’s Troubling

State Procedures Rule: How the England Reservation,

Issue Preclusion Exceptions, and the Inadequacy Exception Open the Federal Courthouse Door to Ripe

Takings Claims, 18 J. Land Use & Envtl. L. 209, 229

(2003). For that reason, Parratt provides no support for

Williamson County’s litigation “ripeness” rule.

2. Other decisions of this Court confirm that Williamson County’s state-court litigation requirement is

7

neither a ripeness rule nor a valid rule limiting federalcourt jurisdiction.

a. City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997), illustrates the first point. If

Williamson County’s litigation “ripeness” requirement

deprived a federal district court of jurisdiction, a takings claim could not be removed to federal court before

state litigation was complete because removal requires

the federal court to have jurisdiction over the statecourt action. 28 U.S.C. § 1441(a). But in City of Chicago,

the Court permitted removal of a takings claim that a

state court had not yet adjudicated. 522 U.S. at 164-65.

That disposition was correct because the City of Chicago plaintiff alleged a concrete injury flowing from a final

decision denying his permit applications. Id. at 160.

Contrary to the erroneous reasoning of Williamson

County, the takings claim was therefore ripe. See First

English, 482 U.S. at 319-20; Reg’l Rail Reorganization

Act Cases, 419 U.S. at 143.

b. Whenever the Court creates a rule limiting

federal-court jurisdiction, it is subject to the challenge

that federal courts “have no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given.” Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 404 (1821); see Marshall v. Marshall,

547 U.S. 293, 298-99 (2006). But even putting that challenge aside, Williamson County’s state-court litigation

requirement is not a valid jurisdiction-limiting rule.

In the few instances in which the Court has imposed

such a rule, it has identified strong historical or

federalism-based grounds. In Ankenbrandt v. Richards, the Court found that “an understood rule . . . rec-

8

ognized [since 1859]” justified its conclusion that federal

courts lack jurisdiction over state-law questions of domestic relations. 504 U.S. 689, 694-95 (1992) (referencing Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1858));

see id. at 700-03. The judicially imposed limitations on

federal jurisdiction over probate matters stem from the

jurisdiction of the English Court of Chancery in 1789.

Markham v. Allen, 326 U.S. 490, 494 (1946). And the

rationale for stripping federal courts of jurisdiction

over matters of state taxation is based on a unique combination of history and federalism. Fair Assessment in

Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 10203, 107-15 (1981).

None of those grounds applies here. Williamson

County’s state-court litigation requirement was first

conceived in that case and is unrelated to any jurisdictional limitations of the Court of Chancery. And although there are some federalism concerns in the takings context, they are not nearly as strong as those the

Court relied on in the state-taxation context. See id. at

102-03 (citing 28 U.S.C. § 1341 as evidence of congressional “recogni[tion] that the autonomy and fiscal stability of the States survive best when state tax systems

are not subject to scrutiny in federal courts”). For those

reasons, Williamson County’s requirement of statecourt litigation is unjustified when viewed as what it is:

a Court-imposed rule stripping lower federal courts of

jurisdiction they would otherwise possess under ordinary Article III case-or-controversy principles.

9

II. The Court Should Overrule the Erroneous

Portion of Williamson County.

Williamson County’s litigation “ripeness” analysis

has drawn criticism from several current and former

Members of the Court. E.g., Arrigoni Enters., LLC v.

Town of Durham, 136 S. Ct. 1409 (2016) (Thomas, J.,

joined by Kennedy, J., dissenting from the denial of

certiorari); San Remo Hotel, 545 U.S. at 351-52

(Rehnquist, C.J., joined by O’Connor, Kennedy, and

Thomas, JJ., concurring in the judgment). Numerous

commentators have also criticized Williamson County.

E.g., J. David Breemer, Dying on the Vine: How A Rethinking of “Without Just Compensation” and Takings

Remedies Undercuts Williamson County’s Ripeness

Doctrine, 42 Vt. L. Rev. 61, 62 & n.2 (2017) (collecting

commentators’ reactions to Williamson County). The

question in this case is whether those or other criticisms warrant overruling the challenged portion of Williamson County. Pet. i.

As the Court has explained, “[r]evisiting precedent

is particularly appropriate where . . . a departure would

not upset expectations, the precedent consists of a

judge-made rule that was recently adopted to improve

the operation of the courts, and experience has pointed

up the precedent’s shortcomings.” Pearson v. Callahan,

555 U.S. 223, 233 (2009). These considerations favor

overruling the portion of Williamson County that imposed the litigation “ripeness” requirement.

A. Under 28 U.S.C. § 1738, “a federal court must

give to a state-court judgment the same preclusive effect as would be given that judgment under the law of

the State in which the judgment was rendered.” Migra

10

v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

(1984). That means that claim preclusion (or “res judicata”) bars federal-court litigation of any claim between

the same parties that could have been raised in state

court, and issue preclusion (or “collateral estoppel”)

bars federal-court litigation of any issue actually decided in state court. See id. at 77 n.1.

“[N]early every State has a compensation provision

that is, or has been interpreted to be, very similar to the

Just Compensation Clause” of the Fifth Amendment.

H.R. Rep. No. 106-518, at 13 (2000). For that reason,

takings plaintiffs who seek federal forums for their

Fifth Amendment claims encounter a “Catch-22” under

Williamson County: to ripen their federal claims, they

must litigate in state court, but once they litigate in

state court, the resulting decisions preclude their claims

in federal court. 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 Self-Parody Stage, 36 Urb. Law.

671, 677 (2004).

The majority opinion in San Remo Hotel highlights

this problem, and the Chief Justice’s opinion concurring

in the judgment correctly identifies Williamson County

as the obstacle to its resolution. See San Remo Hotel,

545 U.S. at 326-48, 348-52. As it stands, the litigation

“ripeness” requirement is a significant impediment to

takings plaintiffs’ access to the lower federal courts—

and, in some jurisdictions, to any court at all. As Justice

Thomas noted in his dissent from the denial of certiorari in Arrigoni, “some federal judges have dismissed

[takings] claims, rather than remanding them,” after

11

defendants removed suits “in state court to exhaust . . .

remedies as Williamson County instructs.” 136 S. Ct.

at 1411 (citing Koscielski v. City of Minneapolis, 435

F.3d 898, 903 (8th Cir. 2006), as an example).

B. Overruling the challenged portion of Williamson

County will neither deprive litigants of appropriate forums for resolution of Fifth Amendment takings claims

nor overwhelm the federal courts. Like lower state

courts, lower federal courts are fully capable of considering evidence of property value and adjudicating parties’ disputes.

Some decisions have suggested that state courts are

better equipped to resolve the issues that often arise in

takings cases involving interpretation of municipal landuse regulations. E.g., San Remo Hotel, 545 U.S. at 347;

Gardner v. Mayor of Baltimore, 969 F.2d 63, 67 (4th

Cir. 1992). But the same could be said of other issues

that federal courts have unquestioned competence to

resolve, such as First Amendment and Equal Protection Clause challenges to the same types of regulations.

See, e.g., City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 43-46 (1986); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 435-39 (1985).

As the Court accurately observed in Dolan v. City of

Tigard, there is “no reason why the Takings Clause of

the Fifth Amendment, as much a part of the Bill of

Rights as the First Amendment or Fourth Amendment,

should be relegated to the status of a poor relation.” 512

U.S. 374, 392 (1994). Because the state-court litigation

requirement erroneously “downgraded the protection

afforded by the Takings Clause to second-class status,”

Arrigoni, 136 S. Ct. at 1411 (Thomas, J., dissenting

12

from the denial of certiorari), and adherence to that requirement is not justified on stare decisis grounds, the

Court should overrule the portion of Williamson County that imposed it.

C O N C L U S IO N

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

MIKE HUNTER

Attorney General

of Oklahoma

KEN PAXTON

Attorney General

of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

SCOTT A. KELLER

Solicitor General

Counsel of Record

BILL DAVIS

Assistant Solicitor General

JUNE 2018

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700