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.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE TAKINGS

AND FEDERAL COURTS SCHOLARS

IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------PROF. KATHRYN E. KOVACS*

RUTGERS LAW SCHOOL

217 N. 5th Street

Camden, NJ 08102

856-225-6771

kathryn.kovacs@rutgers.edu

*Counsel of Record, Admitted

to Practice in Maryland

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

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

1

ARGUMENT ........................................................

2

I.

II.

THE DISTRICT COURT CANNOT EXERCISE JURISDICTION OVER A STATELAW INVERSE-CONDEMNATION CAUSE

OF ACTION UNDER 28 U.S.C. § 1331 .....

2

PETITIONER MAY NOT ASSERT A CAUSE

OF ACTION UNDER THE FOURTEENTH

AMENDMENT .......................................... 10

A. The Court should not address this

complicated issue because an amicus

party mentioned it for the first time in

this Court ............................................ 10

B. Petitioner cannot state a claim under

the Fourteenth Amendment ................ 12

CONCLUSION..................................................... 17

Appendix

List of Amici Curiae ............................................ App. 1

ii

TABLE OF AUTHORITIES

Page

CASES

Aldinger v. Howard, 427 U.S. 1 (1976) .......................14

Alexander v. Sandoval, 532 U.S. 275 (2001) ..............11

Allen v. McCurry, 449 U.S. 90 (1980) .........................14

Barron v. Mayor and City Council of Baltimore,

32 U.S. 243 (1833) ...................................................11

Brown v. Lutheran Church, 23 Pa. 495 (1854) ...........16

Chicago, B. & Q.R. Co. v. City of Chicago, 166

U.S. 226 (1897) ........................................................15

City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997)..................................... 6, 7

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) .........................................14

City of W. Covina v. Perkins, 525 U.S. 234 (1999) ......17

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S.

157 (2004) ................................................................11

Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) .... 11, 12

Cowell v. Palmer Twp., 263 F.3d 286 (3d Cir.

2001) ..........................................................................4

Empire Healthchoice Assurance, Inc. v. McVeigh,

547 U.S. 677 (2006) ........................................... 1, 4, 9

Ex parte Virginia, 100 U.S. 339 (1879) .......................13

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty., Cal., 482 U.S. 304

(1987) .......................................................................13

iii

TABLE OF AUTHORITIES – Continued

Page

Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S.

1 (1983) .................................................................. 3, 4

Grable & Sons Metal Prods., Inc. v. Darue Eng’g

& Mfg., 545 U.S. 308 (2005) ............................ passim

Gunn v. Minton, 568 U.S. 251 (2013) ................... 1, 4, 6

Hudson v. Palmer, 468 U.S. 517 (1984) ......................15

In Re Mountaintop Area Joint Sanitary Auth.,

166 A.3d 553 (Pa. Commw. Ct. 2017) ........................5

Koontz v. St. Johns River Water Mgmt. Dist., 570

U.S. 595 (2013) ..........................................................9

Lake County Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979) ....................14

Merrell Dow Pharmaceuticals Inc. v. Thompson,

478 U.S. 804 (1986) ....................................... 2, 4, 7, 9

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Manning, 136 S. Ct. 1562 (2016) ...................... 5, 7, 8

Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658 (1978) .................................................14

Mt. Healthy City Board of Ed. v. Doyle, 429 U.S.

274 (1977) ................................................................14

Murr v. Wisconsin, 137 S. Ct. 1933 (2017) .................11

Nat’l Private Truck Council, Inc. v. Oklahoma

Tax Comm’n, 515 U.S. 582 (1995) ...........................16

Pennhurst State School & Hosp. v. Halderman,

465 U.S. 89 (1984) .....................................................7

iv

TABLE OF AUTHORITIES – Continued

Page

Preseault v. I.C.C., 494 U.S. 1 (1990) .................... 12, 15

Rapanos v. United States, 547 U.S. 715 (2006) ............8

Regional Rail Reorganization Act Cases, 419

U.S. 102 (1974) .................................................. 12, 15

Rivet v. Regions Bank of Louisiana, 522 U.S. 470

(1998) .........................................................................7

Romero v. International Terminal Operating Co.,

358 U.S. 354 (1959) ............................................... 3, 8

San Remo Hotel, L.P. v. City & Cty. of San Francisco, Cal., 545 U.S. 323 (2005) .................................9

Smith v. Kansas City Title & Trust Co., 255 U.S.

180 (1921) ..................................................................6

The Fair v. Kohler Die & Specialty Co., 228 U.S.

22 (1913) ..................................................................10

United States v. Georgia, 546 U.S. 151 (2006) ...........13

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............... 11, 12

Zinermon v. Burch, 494 U.S. 113 (1990) ............... 15, 16

Williamson County Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172

(1985) ................................................................... 3, 10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .......................................... passim

U.S. Const. amend. VIII ..............................................13

U.S. Const. amend. XIV ...................................... passim

v

TABLE OF AUTHORITIES – Continued

Page

STATUTES

26 Pa. Cons. Stat. Ann. § 102 (2006) ............................4

26 Pa. Cons. Stat. Ann. § 502(c) (2006) .............. 2, 4, 12

28 U.S.C. § 1331 .................................................. passim

28 U.S.C. § 1367 ..........................................................14

42 U.S.C. § 1983 ...................................... 3, 9, 10, 13, 14

45 U.S.C. § 59 ................................................................3

OTHER AUTHORITIES

Alfred L. Brophy, Grave Matters: The Ancient

Rights of the Graveyard, 2006 B.Y.U. L. Rev.

1469 (2006) ..............................................................16

Kathryn E. Kovacs, Accepting the Relegation of

Takings Claims to State Courts, 26 Ecology

L.Q. 1 (1999) .......................................................... 4, 9

Richard H. Seamon, The Asymmetry of State

Sovereign Immunity, 76 Wash. L. Rev. 1067

(2001) .......................................................................15

1

INTEREST OF AMICI CURIAE1

Amici curiae, listed in the appendix to this brief,

are academics who focus their teaching and research

on takings and/or federal courts law.2 Their principal

interest in this case is in the proper application of the

law.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

The question presented in this case is whether a

property owner may file a federal taking claim in federal court without first seeking compensation under

state law in state court. This brief responds to two

points in the United States’ brief as amicus curiae. The

Solicitor General suggests that the Court should exercise jurisdiction over petitioner’s state-law inversecondemnation claim under 28 U.S.C. § 1331. The Court

should reject this suggestion. This case is not in the

“special and small category of cases” in which a statelaw cause of action is held to “arise under” federal law.

See Gunn v. Minton, 568 U.S. 251, 258 (2013) (quoting

Empire Healthchoice Assurance, Inc. v. McVeigh, 547

U.S. 677, 699 (2006)).

1

The parties have consented to the filing of this amicus brief.

No counsel for any of the parties authored any part of this brief,

and no person or entity other than the counsel and amici submitting this brief has made any monetary contribution to the preparation or submission of this brief.

2

The views expressed by amici are their own and do not reflect the views of their employers.

2

The Solicitor General also raises the possibility

that petitioner may pursue a claim directly under the

Fourteenth Amendment in federal court. The Court

should not decide this complex question here because

it was not aired in the lower courts and because Pennsylvania law provides petitioner a statutory cause of

action to recover compensation. See 26 Pa. Cons. Stat.

Ann. § 502(c) (2006). If the Court opts to address this

issue, it should hold that petitioner may not pursue a

cause of action directly under the Fourteenth Amendment. Implying a cause of action under Section 1 of the

Fourteenth Amendment would conflict with Section 5,

which delegates authority to enforce the Amendment

to Congress. Even if Section 1 provides a cause of action in some circumstances, it does not in cases like the

one at bar in which state law provides an adequate

means of redress.

------------------------------------------------------------------

ARGUMENT

I.

THE DISTRICT COURT CANNOT EXERCISE JURISDICTION OVER A STATE-LAW

INVERSE-CONDEMNATION CAUSE OF

ACTION UNDER 28 U.S.C. § 1331.

The Solicitor General suggests (U.S. Br. 22-27)

that the district court should exercise jurisdiction over

petitioner’s potential state-law inverse-condemnation

cause of action under 28 U.S.C. § 1331.3 This argument

3

Petitioner did not allege jurisdiction over any state-law

claim under Section 1331. See Pet. Br. 12, 27; see also Merrell Dow

3

attempts to circumvent the holding in Williamson

County Reg’l Planning Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172, 194-95 (1985), that a property owner may not bring a federal taking claim

against a municipality without first seeking compensation available under state law. The Solicitor General

argues (U.S. Br. 7) that Williamson County applies only

to claims under 42 U.S.C. § 1983, leaving federal courts

free to exercise jurisdiction over state-law causes of action under 28 U.S.C. § 1331.

Section 1331 grants district courts original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” This

Court has “disclaimed the adoption of any bright-line

rule” to govern Section 1331. Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 317

(2005). Instead, Section 1331 is interpreted “with an

eye to practicality and necessity,” Franchise Tax Bd. of

State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S. 1, 20 (1983), “in the light of the history

that produced it, the demands of reason and coherence,

and the dictates of sound judicial policy which have

emerged from the Act’s function as a provision in the

mosaic of federal judiciary legislation.” Romero v. International Terminal Operating Co., 358 U.S. 354, 379

(1959), superseded by statute on other grounds, 45

U.S.C. § 59.

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n.6 (1986)

(“Jurisdiction may not be sustained on a theory that the plaintiff

has not advanced.”).

4

A state law cause of action may “arise under” federal law for purposes of Section 1331 only in a “special

and small category of cases.” Gunn, 568 U.S. at 258

(quoting Empire Healthchoice, 547 U.S. at 699). “[T]he

mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow, 478 U.S. at 813. Rather, that

narrow category is limited to cases in which “a statelaw claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum

may entertain without disturbing any congressionally

approved balance of federal and state judicial responsibilities.” Grable, 545 U.S. at 314; see also Gunn, 568

U.S. at 258.

This case does not meet that test. First, this is not

a case in which “the vindication of a right under state

law necessarily turn[s] on some construction of federal

law.” Merrell Dow, 478 U.S. at 808 (quoting Franchise

Tax Board, 463 U.S. at 9). Title 26 of the Pennsylvania

statutes, the Eminent Domain Code, provides a detailed and comprehensive procedure for property owners to obtain compensation for any condemnation of

property. See 26 Pa. Cons. Stat. Ann. § 102 (2006). Petitioner may claim compensation in state court under

26 Pa. Cons. Stat. Ann. § 502(c) (2006). See Cowell v.

Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001). Resolving that claim would not require resolution of any federal question or even reference to any federal case law.

This case, like most takings cases against municipalities, can be and properly is resolved as a matter of state

law. See Kathryn E. Kovacs, Accepting the Relegation

5

of Takings Claims to State Courts, 26 Ecology L.Q. 1,

34-47 (1999).

The Solicitor General asserts that such a state inverse-condemnation action “necessarily raises a federal question because it rests on the assertion that the

property owner has been subjected to a taking of his

property under the Fifth Amendment.” U.S. Br. 24 (internal quotation marks and citation omitted). To the

contrary, under Pennsylvania law, such a claim turns

on whether 1) the municipality has the power of eminent domain, 2) exceptional circumstances substantially deprived the plaintiff of the use and enjoyment

of her property, and 3) the municipality’s intentional

action immediately, necessarily, and unavoidably damaged the plaintiff ’s property. In Re Mountaintop Area

Joint Sanitary Auth., 166 A.3d 553, 561, 562 (Pa.

Commw. Ct. 2017). A survey of Pennsylvania inversecondemnation case law reveals that Fifth Amendment

and federal takings cases are rarely cited much less

“necessary” to the analysis, and the Solicitor General

cites no authority to the contrary. Therefore, this is not

the sort of rare case in which the federal courts may

exercise jurisdiction over a state law claim under Section 1331. Cf. Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Manning, 136 S. Ct. 1562, 1570 (2016) (explaining that typically in such cases “the claim’s very

success depends on giving effect to a federal requirement”).

Second, even if petitioner’s potential state inversecondemnation claim were to raise a federal issue, that

issue would not be “substantial in the relevant sense.”

6

Gunn, 568 U.S. at 260. Whether an issue is “substantial” in this context depends on “the importance of the

issue to the federal system as a whole.” Id. In Gunn, a

federal patent-law issue was an element of the plaintiff ’s state-law legal malpractice claim. Indeed, the

crux of the dispute was whether, in the absence of malpractice, the plaintiff would have prevailed in his federal patent infringement case. Id. at 259. Yet, the Court

held that the claim did not “arise under” federal law

because the federal issue was not substantial. Id. at

264. Allowing state courts to resolve such cases would

not undermine the uniformity of federal law. Id. at 261.

The possibility that a state court might decide a statelaw claim incorrectly, the Court said, is not enough to

trigger federal jurisdiction, “even if the potential error

finds its root in a misunderstanding of [federal] law.”

Id. at 263. The same is true here. The run-of-the-mill

municipal takings case has little bearing on the federal

system as a whole, but the scope and consequences of

municipal regulation are of tremendous import to state

and local governments.

Contrary to the Solicitor General’s representation

(U.S. Br. 24), in neither Smith v. Kansas City Title &

Trust Co., 255 U.S. 180 (1921), nor City of Chicago v.

International College of Surgeons, 522 U.S. 156 (1997),

did the Court’s decision rest on the view that the federal issue was important. Rather, the Court in Smith

allowed jurisdiction under Section 1331 because the

plaintiff ’s right to relief depended upon the constitutionality of a federal statute. 255 U.S. at 199, 201; see

also Gunn, 568 U.S. at 261; Grable, 545 U.S. at 312;

7

Merrell Dow, 478 U.S. at 809 n.5 & 814 n.12. In City of

Chicago, respondent alleged in state court that the

City’s landmark ordinance violated the Due Process,

Equal Protection, and Just Compensation Clauses of

the U.S. Constitution. 522 U.S. at 160. “[T]he federal

constitutional claims were raised by way of a cause of

action created by state law, namely, the Illinois Administrative Review Law.” Id. at 164. This Court endorsed

the City’s removal of the case to federal court because

the claims “unquestionably” arose under federal law.

Id. Although respondent pled only a state-law cause of

action, “by raising several claims that arise under federal law, [respondent] subjected itself to the possibility

that the City would remove the case to the federal

courts.” Id. Thus, City of Chicago stands for the wellestablished proposition that plaintiffs cannot defeat

federal jurisdiction through artful pleading that omits

federal questions necessary to their claims. See Rivet v.

Regions Bank of Louisiana, 522 U.S. 470, 475 (1998).

Third, exercising jurisdiction over state-law

claims for compensation from political subdivisions of

the state under Section 1331 would disturb the “balance of federal and state judicial responsibilities,” Grable, 545 U.S. at 314, and raise federalism concerns. Cf.

Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 106 (1984) (“it is difficult to think of a greater intrusion on state sovereignty than when a federal court

instructs state officials on how to conform their conduct to state law”). This Court explained in Merrill

Lynch, that it consistently construes federal jurisdictional statutes narrowly, reflecting the Court’s “deeply

8

felt and traditional reluctance . . . to expand the jurisdiction of federal courts through a broad reading of jurisdictional statutes.” 136 S. Ct. at 1573 (quoting

Romero, 358 U.S. at 379). The Court has “reiterated the

need to give ‘[d]ue regard [to] the rightful independence of state governments’ – and more particularly, to

the power of the States ‘to provide for the determination of controversies in their courts.’ ” Id. (quoting

Romero, 358 U.S. at 380). Keeping state-law inversecondemnation claims in state courts serves to “help

maintain the constitutional balance between state and

federal judiciaries.” Id.

The Solicitor General’s reliance (U.S. Br. 23, 24, 25)

on Grable is misplaced. There, an essential element of

the plaintiff ’s state-law quiet title claim was whether

the Internal Revenue Service had given the plaintiff

sufficient notice of the seizure of its property under a

federal statute. 545 U.S. at 315. Indeed, the construction of the federal statute was “the only legal or factual

issue contested” in Grable. Id. The Court found the federal interest in adjudicating that issue strong and the

potential impact on the division of labor between state

and federal courts “microscopic.” Id.

Here in contrast, there is little federal interest in

adjudicating local land-use disputes. This Court has

recognized that land-use regulation “is a quintessential state and local power,” Rapanos v. United States,

547 U.S. 715, 738 (2006) (plurality), and “state courts

undoubtedly have more experience than federal courts

do in resolving the complex factual, technical, and legal

9

questions related to zoning and land-use regulations.”

San Remo Hotel, L.P. v. City & Cty. of San Francisco,

Cal., 545 U.S. 323, 347 (2005). See generally Kovacs, supra, at 38-47. Whatever federal interest there is in

such cases can be satisfied by this Court’s review of

state court judgments. See, e.g., Koontz v. St. Johns

River Water Mgmt. Dist., 570 U.S. 595, 618 (2013); see

also Merrell Dow, 478 U.S. at 816 (“even if there is no

original district court jurisdiction for these kinds of action, this Court retains power to review the decision of

a federal issue in a state cause of action”).

In addition, opening the federal courthouse doors

to these claims could shift the division of labor from

state to federal courts markedly. Congress balanced

the roles of the state and federal courts in takings

cases when it enacted Section 1983. That statute

makes the federal courts the appropriate forum for enforcing the Fourteenth Amendment. It does not, however, give the federal courts the authority to address

non-constitutional injuries, such as the taking of property, which only violates the Constitution if the government denies compensation. See Resp. Br. 22-23. The

Court should reject the Solicitor General’s attempt to

make an end-run around the issue here. “This case

cannot be squeezed into the slim category Grable exemplifies.” Empire Healthchoice, 547 U.S. at 701.

10

II.

PETITIONER MAY NOT ASSERT A CAUSE

OF ACTION UNDER THE FOURTEENTH

AMENDMENT.

A. The Court should not address this complicated issue because an amicus party

mentioned it for the first time in this

Court.

The Solicitor General suggests (U.S. Br. 27 n.8)

that it is an open question whether the Fifth Amendment provides a cause of action. The availability of an

inverse-condemnation cause of action against a state

or municipal government based solely on the Fifth

Amendment, independent of 42 U.S.C. § 1983, however,

would not assist petitioner. Such a cause of action still

would be subject to the requirement that a property

owner first resort to state-law compensation mechanisms, because that requirement flows from the constitutional text itself. Williamson County, 473 U.S. at 194.

Nor does the Solicitor General affirmatively advance

the argument that petitioner may assert a cause of action directly under the Fifth Amendment. Rather, the

Solicitor General reiterates the argument that the federal district court may assert jurisdiction over a statelaw inverse-condemnation claim under Section 1331.

The Court should not resolve this question here

because petitioner did not assert a claim based on the

Fifth Amendment itself, see J.A. 92, 93, 101 (bringing

claim under 42 U.S.C. § 1983); see also The Fair v.

Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) (“Of

course, the party who brings a suit is master to decide

what law he will rely upon. . . .”), and thus the issue

11

was not developed in the lower courts. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004)

(declining to address an issue of “importance” in the

“absence of briefing and decisions by the courts below”).

Moreover, the question of whether petitioner could

assert a cause of action under the U.S. Constitution

would require the Court to resolve issues that the Solicitor General does not mention. Even if the Fifth

Amendment provides a cause of action against the

United States, to resolve this case, the Court would

have to determine further whether the Fourteenth

Amendment incorporates that cause of action against

the states or creates a cause of action on its own.4 See

Barron v. Mayor and City Council of Baltimore, 32 U.S.

243, 247-48 (1833) (holding that the Fifth Amendment

does not apply to states directly).

This Court is hesitant to create implied causes of

action. See Alexander v. Sandoval, 532 U.S. 275, 286-87

(2001). In the constitutional field, there is “even

greater reason” to avoid implied causes of action than

in the statutory field “since an ‘implication’ imagined

in the Constitution can presumably not even be repudiated by Congress.” Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 75 (2001) (Scalia, J., concurring). Implying a

cause of action under the Constitution raises separation-of-powers concerns. Ziglar v. Abbasi, 137 S. Ct.

4

The Court also might have to determine whether the Fourteenth Amendment’s cause of action applies to takings caused by

local land-use regulations. See Murr v. Wisconsin, 137 S. Ct. 1933,

1957 (2017) (Thomas, J., dissenting).

12

1843, 1857 (2017). This Court generally considers Congress to be the branch more suited to weighing the

many factors involved in determining whether a new

cause of action would serve the public interest. Id. at

1857-58.

Engaging in these inquiries is unnecessary here

because Pennsylvania law provides petitioner a statutory cause of action to recover compensation. See 26 Pa.

Cons. Stat. Ann. § 502(c). That statute provides a “ ‘reasonable, certain and adequate provision for obtaining

compensation,’ ” see Preseault v. I.C.C., 494 U.S. 1, 11

(1990) (quoting Regional Rail Reorganization Act

Cases, 419 U.S. 102, 124-25 (1974)); see also U.S. Br. 28

n.8 (“Pennsylvania has provided a statutory cause of

action that allows owners to recover the full measure

of compensation required by the Fifth Amendment”),

and adequate reason not to decide whether petitioner

could pursue an alternate, unpled cause of action under the Fourteenth Amendment. Cf. Ziglar, 137 S. Ct.

at 1858 (“if there is an alternative remedial structure

present in a certain case, that alone may limit the

power of the Judiciary to infer a new Bivens cause of

action”); Malesko, 534 U.S. at 72 (declining to imply a

right of action where “claimants in respondent’s shoes

[did not] lack effective remedies”).

B. Petitioner cannot state a claim under

the Fourteenth Amendment.

If the Court opts to address this issue, it should

conclude that the Fourteenth Amendment does not

13

incorporate or create a cause of action to seek just compensation against subdivisions of states in federal

court.

If Section 1 of the Fourteenth Amendment provided a cause of action, there would be no need for Section 5, which expressly delegates to Congress the

authority “to enforce, by appropriate legislation, the

provisions of ” the Amendment. That authority includes the power to create “private remedies against

the States for actual violations” of the Fourteenth

Amendment and the rights it incorporates. United

States v. Georgia, 546 U.S. 151, 158 (2006) (concerning

Eighth Amendment claim) (emphasis omitted). Section

1 should not be read to negate the plain language of

Section 5 delegating enforcement authority to Congress. As the Court explained shortly after the Amendment’s enactment, “[s]ome legislation is contemplated

to make the amendments fully effective. Whatever legislation is appropriate . . . is brought within the domain of congressional power.” Ex parte Virginia, 100

U.S. 339, 345-46 (1879).5

Congress has enacted appropriate legislation: 42

U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, privileges, or immunities, secured

5

This Court has stated that the “constitutional provision

with respect to compensation” in the Fifth Amendment is “selfexecuting.” First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., Cal., 482 U.S. 304, 315 (1987). That cannot be true of the Fourteenth Amendment, however, because

Section 5 expressly delegates enforcement of the Amendment to

Congress.

14

by the Constitution and laws” of the United States. The

“party injured” may bring “an action at law, suit in equity, or other proper proceeding for redress,” 42 U.S.C.

§ 1983, against a municipality. Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 690 (1978).

This includes a property owner filing suit under Section 1983 against a local government alleging a taking

without just compensation. See City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710

(1999) (allowing claim to proceed where state law did

not provide a means of obtaining compensation). In

Section 1983, Congress intended to provide a federal

remedy where state law was inadequate or where state

law, “though adequate in theory, was inadequate in

practice.” Allen v. McCurry, 449 U.S. 90, 100-01 (1980).

“In short, the federal courts could step in where the

state courts were unable or unwilling to protect federal

rights.” Id. at 101.

Reading Section 1 of the Fourteenth Amendment

to provide a cause of action directly would render Section 1983 superfluous and evade the requirements

Congress imposed in Section 1983. Consequently, this

Court has been reluctant to “imply a cause of action

directly from the Fourteenth Amendment which would

not be subject to the limitations contained in § 1983.”

Monell, 436 U.S. at 712 (Powell, J., concurring) (quoting

Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274,

278 (1977)); see also, e.g., Lake County Estates, Inc. v.

Tahoe Regional Planning Agency, 440 U.S. 391, 400

(1979); Aldinger v. Howard, 427 U.S. 1, 4 n.3 (1976), superseded by statute on other grounds, 28 U.S.C. § 1367.

15

Even if the Fourteenth Amendment provides a

cause of action in some circumstances, it does not do so

where state law provides a “ ‘reasonable, certain and

adequate provision for obtaining compensation.’ ”

See Preseault, 494 U.S. at 11 (quoting Regional Rail

Reorganization Act Cases, 419 U.S. at 124-25). The due

process component of the Fourteenth Amendment proscribes state and local government takings of private

property for public use without just compensation.

Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226,

236, 241 (1897). By its plain terms, the Fourteenth

Amendment’s Due Process Clause prohibits states to

“deprive a person of life, liberty or property without

due process of law.”6

In this case, petitioner has not been deprived of

due process because state law provides an adequate

avenue for her to obtain compensation for any taking

that may have occurred. Cf. Hudson v. Palmer, 468 U.S.

517, 533 (1984) (holding state action under the Fourteenth Amendment’s Due Process Clause “is not complete until and unless it provides or refuses to provide

a suitable postdeprivation remedy”). As the Court explained in Zinermon v. Burch, 494 U.S. 113 (1990),

6

The requirement that states provide a procedure for property owners to seek compensation for takings is best seen as a

procedural obligation. See Richard H. Seamon, The Asymmetry of

State Sovereign Immunity, 76 Wash. L. Rev. 1067, 1110-11 (2001).

The adequacy of compensation paid might implicate substantive

rights. Regardless of whether petitioner’s hypothetical Fourteenth Amendment claim is seen as substantive or procedural,

however, a necessary component of that claim is that respondent

“deprive” her of due process.

16

depriving a person of “ ‘life, liberty, or property’ is not

in itself unconstitutional; what is unconstitutional is

the deprivation of such an interest without due process

of law.” Id. at 125 (emphasis in original). Post-deprivation remedies satisfy due process where “they are the

only remedies the State could be expected to provide.”

Id. at 128 (citing cases); see also Nat’l Private Truck

Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582,

587 (1995) (holding, in the tax context, that “[a]s long

as state law provides a clear and certain remedy, the

States may determine whether to provide predeprivation process (e.g., an injunction) or instead to afford

postdeprivation relief (e.g., a refund)” (internal quotes

and citations omitted)).

In cases seeking compensation for the effects of local land-use regulations, usually pre-deprivation process is not possible because the government will not

know before enactment whether its regulation will

take a particular individual’s property to an extent

that requires compensation. Cf. U.S. Br. 8-16 (arguing

that the Just Compensation Clause does not require

contemporaneous compensation). In this case, respondent’s request for compensation is dubious. See

Brown v. Lutheran Church, 23 Pa. 495, 500 (1854) (“the

sanction of mankind in all ages . . . regards the restingplace of the dead as hallowed ground – not subject to

the laws of ordinary property”); Alfred L. Brophy,

Grave Matters: The Ancient Rights of the Graveyard,

2006 B.Y.U. L. Rev. 1469 (2006). In any event, respondent effectively proffered just compensation via the

Pennsylvania Eminent Domain Code when it enacted

17

the challenged ordinance. That is all the plain language of the Fourteenth Amendment’s Due Process

Clause requires. See City of W. Covina v. Perkins, 525

U.S. 234, 241 (1999) (holding that where “postdeprivation state-law remedies [are] sufficient to satisfy the

demands of due process and the laws [are] public and

available, . . . the State [need not] provide further information about those procedures”).7

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the judgment of the

Third Circuit should be affirmed.

Respectfully submitted,

PROF. KATHRYN E. KOVACS*

RUTGERS LAW SCHOOL

217 N. 5th Street

Camden, NJ 08102

856-225-6771

kathryn.kovacs@rutgers.edu

*Counsel of Record, Admitted

to Practice in Maryland

7

The same result would obtain if the requirement for just

compensation applies to states via the Privileges or Immunities

Clause (“[n]o State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States”). Just as respondent has not deprived petitioner of due

process, so too has it not abridged respondent’s privileges or immunities. The Pennsylvania compensation statute satisfies the

obligations of the state and its subdivisions. Cf. U.S. Br. 8-16 (arguing that the Just Compensation Clause does not require contemporaneous compensation).