Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.
Supreme Court briefAug 6, 2018
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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 NATIONAL GOVERNORS
ASSOCIATION, ET AL.
IN SUPPORT OF RESPONDENTS
LISA E. SORONEN
STATE AND LOCAL LEGAL
CENTER
444 N. Capitol St. NW
Suite 515
Washington, DC 20001
(202) 434-4845
lsoronen@sso.org
MATTHEW D. ZINN
Counsel of Record
ANDREW W. SCHWARTZ
LAURA D. BEATON
SHUTE, MIHALY &
WEINBERGER LLP
396 Hayes Street
San Francisco, CA 94102
(415) 552-7272
zinn@smwlaw.com
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................. i
TABLE OF AUTHORITIES ..................................... iii
INTERESTS OF AMICI CURIAE ............................. 1
SUMMARY OF ARGUMENT.................................... 3
ARGUMENT .............................................................. 6
I.
II.
Williamson County’s statecompensation requirement is neither
unworkable nor unfair. .............................. 6
A.
The cases cited by Petitioner and
her amici bear no resemblance to the
rogues’ gallery depicted in their
briefs. ..................................................... 7
B.
Courts have ample flexibility to
avoid the unfair outcomes Petitioner
fears. .................................................... 11
C.
Williamson County does not require
a claimant to seek compensation
from the state if the state offers no
fair process for doing so. ..................... 15
D.
The interaction of San Remo and
Williamson County creates no
injustice. .............................................. 16
The Takings Clause is different. ............. 19
ii
A.
The state’s denial of compensation is
an element of a claim for violation of
the Takings Clause. ............................ 19
B.
Takings claims rely on state
property law, and Williamson
County ensures that state courts
have the opportunity to construe
and apply that law. ............................. 23
III.
IV.
Overruling Williamson County would
not serve judicial economy. ...................... 27
A.
Williamson County protects federal
courts from refereeing routine state
law disputes over land-use
regulation. ........................................... 28
B.
Overruling Williamson County
would trade its predictable rule for
unpredictable, ad hoc abstention. ...... 31
C.
The United States’ novel theory
would give district courts removal
jurisdiction over state eminent
domain actions. ................................... 33
The Court should dismiss the petition
as improvidently granted......................... 35
CONCLUSION ......................................................... 36
iii
TABLE OF AUTHORITIES
Page
CASES
8679 Trout, LLC v. N. Tahoe Pub. Utils. Dist.,
No. 2:10-cv-01569, 2010 U.S. Dist.
LEXIS 93303
(E.D. Cal. Sept. 8, 2010) ................................ 11
Adam Bros. Farming, Inc. v. County of Santa
Barbara,
604 F.3d 1142 (9th Cir. 2010) ....................... 14
Allegretti & Co. v. County of Imperial,
138 Cal. App. 4th 1261 (Cal. Ct. App.
2006)............................................................... 25
Allen v. McCurry,
449 U.S. 90 (1980) ......................................... 17
Anderson v. Chamberlain,
134 F. Supp. 2d 156 (D. Mass. 2001) ............ 11
Anderson v. Charter Twp. of Ypsilanti,
266 F.3d 487 (6th Cir. 2001) ......................... 33
Armstrong v. United States,
364 U.S. 40 (1960) ................................... 21, 24
Arrigoni Enters., LLC v. Town of Durham,
136 S. Ct. 1409 (2016) ............................. 10, 35
Arrigoni Enters., LLC v. Town of Durham,
606 F. Supp. 2d 295 (D. Conn. 2009) ............ 10
Arrigoni Enters., LLC v. Town of Durham,
629 Fed. Appx. 23 (2d Cir. 2015) .................. 10
iv
ASARCO, Inc. v. Kadish,
490 U.S. 605 (1989) ....................................... 27
Athanasiou v. Town of Westhampton,
30 F. Supp. 3d 84 (D. Mass. 2014) ................ 13
B. Willis, C.P.A., Inc. v. BNSF Ry. Corp.,
531 F.3d 1282 (10th Cir. 2008) ..................... 12
Bd. of Supervisors v. Greengael, LLC,
626 S.E.2d 357 (Va. 2006) ............................. 29
Boom Co. v. Patterson,
98 U.S. 403 (1878) ......................................... 19
Carole Media LLC v. N.J. Transit Co.,
550 F.3d 302 (3d Cir. 2008) ........................... 22
Chesterfield Dev. Corp. v. City of Chesterfield,
963 F.2d 1102 (8th Cir. 1992) ....................... 31
Chicago, B. & Q. R. Co. v. Chicago,
166 U.S. 226 (1897) ....................................... 22
City & County of San Francisco v. Sheehan,
135 S. Ct. 1765 (2015) ................................... 35
City of Houston v. Carlson,
451 S.W.3d 828 (Tex. 2014)........................... 17
City of Monterey v. Del Monte Dunes, Ltd.,
526 U.S. 687 (1999) ....................................... 20
Clajon Prod. Corp. v. Petera,
70 F.3d 1556 (10th Cir. 1995) ....................... 15
Clifty Props., LLC v. City of Somerset,
No. 6:17-41, 2017 U.S. Dist. LEXIS
146474
(E.D. Ky. Sept. 11, 2017) ................................. 8
v
Clifty Props., LLC v. City of Somerset,
No. 6:17-41, 2017 U.S. Dist. LEXIS
207937
(E.D. Ky. Dec. 19, 2017) .................................. 8
Coast Range Conifers, LLC v. Oregon,
117 P.3d 990 (Or. 2005) ................................. 26
Collopy v. Wildlife Comm’n, Dep’t of Natural
Res.,
625 P.2d 994 (Colo. 1981) .............................. 24
Creative Env’ts, Inc. v. Estabrook,
680 F.2d 822 (1st Cir. 1982) .......................... 31
Daniels v. Area Plan Comm’n,
306 F.3d 445 (7th Cir. 2002) ......................... 15
Decker v. Nw. Envtl. Def. Ctr.,
568 U.S. 597 (2013) ....................................... 36
Del Monte Dunes v. City of Monterey,
920 F.2d 1496 (9th Cir. 1990) ................. 15, 34
Dickerson v. United States,
530 U.S. 428 (2000) ......................................... 6
Doak Homes, Inc. v. City of Tukwila,
No. C07-1148, 2008 U.S. Dist. LEXIS
7740
(W.D. Wash. Jan. 18, 2008) ........................... 11
Edwards v. City of Warner Robins,
807 S.E.2d 438 (Ga. 2017) ............................. 29
Ehrlich v. City of Culver City,
911 P.2d 429 (Cal. 1996) ............................... 29
Esplanade Props., LLC v. City of Seattle,
307 F.3d 978 (9th Cir. 2002) ......................... 25
vi
FERC v. Mississippi,
456 U.S. 742 (1982) ....................................... 28
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles,
482 U.S. 304 (1987) ................................. 20, 22
Gacke v. Pork Xtra,
LLC, 684 N.W.2d 168 (Iowa 2004) ................ 29
Gardner v. City of Baltimore,
969 F.2d 63 (4th Cir. 1992) ........................... 31
Guggenheim v. City of Goleta,
638 F.3d 1111 (9th Cir. 2010) ................. 12, 14
Hadar v. Broward County,
692 Fed. Appx. 618 (11th Cir. 2017) ............. 12
Halliburton Co. v. Erica P. John Fund, Inc.,
134 S. Ct. 2398 (2014) ......................... 6, 11, 15
Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d 494 (2d Cir. 2001) ........................... 31
Hill-Grant Living Tr. v. Kearsarge Lighting
Precinct,
986 A.2d 662 (N.H. 2009) .............................. 30
Hoehne v. County of San Benito,
870 F.2d 529 (9th Cir. 1989) ......................... 30
Horne v. Dep’t of Agric.,
569 U.S. 513 (2013) ....................................... 12
Hurley v. Kincaid,
285 U.S. 95 (1932) ................................... 20, 34
Idaho v. Coeur d’Alene Tribe,
521 U.S. 261 (1997) ................................. 17, 31
vii
Iowa Coal Mining Co. v. Monroe County,
494 N.W.2d 664 (Iowa 1993) ......................... 29
Key Outdoor, Inc. v. City of Galesburg,
327 F.3d 549 (7th Cir. 2003) ......................... 14
Knick v. Twp. of Scott,
862 F.3d 310 (3d Cir. 2017) ........................... 12
Koscielski v. City of Minneapolis,
393 F. Supp. 2d 811 (D. Minn. 2005) .............. 8
Koscielski v. City of Minneapolis,
435 F.3d 898 (8th Cir. 2006) ........................... 8
Kottschade v. City of Rochester,
319 F.3d 1038 (8th Cir. 2003) ......................... 9
Kruse v. Vill. of Chagrin Falls,
74 F.3d 694 (6th Cir. 1996) ........................... 15
Kurtz v. Verizon N.Y., Inc.,
758 F.3d 506 (2d Cir. 2014) ........................... 12
La. Power & Light Co. v. City of Thibodaux,
360 U.S. 25 (1959) ................................... 33, 35
Landgate, Inc. v. Cal. Coastal Comm’n,
953 P.2d 1188 (Cal. 1998) ............................. 30
Larson v. Domestic & Foreign Commerce
Corp.,
337 U.S. 682 (1949) ....................................... 20
Lilly Invs. v. City of Rochester,
674 Fed. Appx. 523 (6th Cir. 2017) ......... 12, 13
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) ......................21, 22, 24, 32
viii
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) ......................... 24, 25, 26
Marshall v. Bd. of County Comm’rs,
912 F. Supp. 1456 (D. Wyo. 1996)................. 29
Mayhew v. Sunnyvale,
774 S.W.2d 284 (Tex. App. 1989) .................. 29
Merrill v. Summit County,
No. 2:08CV723, 2009 U.S. Dist. LEXIS
16056
(D. Utah Mar. 2, 2009) .................................. 13
Moon v. N. Idaho Farmers Ass’n,
96 P.3d 637 (Idaho 2004)............................... 29
Mt. Olivet Cemetery Ass’n v. Salt Lake City,
164 F.3d 480 (10th Cir. 1998) ....................... 28
Mullaney v. Wilbur,
421 U.S. 684 (1975) ....................................... 26
Murphy v. New Milford Zoning Comm’n,
402 F.3d 342 (2d Cir. 2005) ........................... 30
Murr v. Wisconsin,
137 S. Ct. 1933 (2017) ....................... 23, 24, 25
New Burnham Prairie Homes, Inc. v. Vill. of
Burnham,
910 F.2d 1474 (7th Cir. 1990) ....................... 31
New Eng. Estates, LLC v. Town of Branford,
988 A.2d 229 (Conn. 2010) ............................ 24
Norma Faye Pyles Lynch Family Purpose,
LLC v. City of Cookeville, Tenn.,
207 F. Supp. 3d 825 (M.D. Tenn. 2016) ........ 13
ix
Ohad Assocs., LLC v. Twp. of Marlboro,
No. 10-2183, 2011 U.S. Dist. LEXIS
8414
(D.N.J. Jan. 28, 2011)................................ 9, 10
Op. of the Justices (Pub. Use of Coastal
Beaches),
649 A.2d 604 (N.H. 1994) .............................. 25
Pakdel v. City & County of San Francisco,
No. 17-cv-03638, 2017 U.S. Dist. LEXIS
211032 (N.D. Cal. Nov. 20, 2017).................... 9
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ....................................... 24
Penn Cent. Transp. Co. v. New York City,
438 U.S. 104 (1978) ....................................... 24
Perfect Puppy, Inc. v. City of E. Providence,
807 F.3d 415 (1st Cir. 2015) .......................... 12
Peters v. Vill. of Clifton,
498 F.3d 727 (7th Cir. 2007) ......................... 12
Philip Morris v. Reilly,
312 F.3d 24 (1st Cir. 2002) ............................ 24
Phillips v. Wash. Legal Found.,
524 U.S. 156 (1998) ................................. 23, 24
Preseault v. ICC,
494 U.S. 1 (1990) ..................................... 20, 23
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) ....................................... 33
R.R. Comm’n v. Pullman Co.,
312 U.S. 496 (1941) ................................. 32, 33
x
Race v. Bd. of County Comm’rs of Lake,
No. 15-cv-1761, 2016 U.S. Dist. LEXIS
40331
(D. Colo. Mar. 28, 2016) ................................ 13
Rau v. City of Garden Plain,
76 F. Supp. 2d 1173 (D. Kan. 1999) .............. 11
Reahard v. Lee County,
30 F.3d 1412 (11th Cir. 1994) ....................... 11
Reg’l Rail Reorganization Act Cases,
419 U.S. 102 (1974) ....................................... 15
Robinson v. City of Baton Rouge,
No. 13-375, 2016 U.S. Dist. LEXIS
146461
(M.D. La. Oct. 22, 2016) ................................ 13
Rosedale Missionary Baptist Church v. New
Orleans City,
641 F.3d 86 (5th Cir. 2011) ........................... 12
Ruckelshaus v. Monsanto Co.,
467 U.S. 986 (1984) ........................... 20, 23, 24
San Remo Hotel v. City & County of San
Francisco,
145 F.3d 1095 (9th Cir. 1998) ....................... 32
San Remo Hotel v. City & County of San
Francisco,
41 P.3d 87 (Cal. 2002) ................................... 17
San Remo Hotel, L.P. v. City & County of San
Francisco,
545 U.S. 323 (2005) ................................ passim
Sandy Creek Investors, Ltd. v. City of
Jonestown,
325 F.3d 623 (5th Cir. 2003) ........................... 9
xi
Sansotta v. Town of Nags Head,
724 F.3d 533 (4th Cir. 2013) ............. 12, 13, 25
Sea Cabin on the Ocean IV Homeowners Ass’n
v. City of N. Myrtle Beach,
828 F. Supp. 1241 (D.S.C. 1993) ................... 32
Seiler v. Charter Twp. of Northville,
53 F. Supp. 2d 957 (E.D. Mich. 1999) ........... 11
Sherman v. Town of Chester,
752 F.3d 554 (2d Cir. 2014) ..................... 12, 13
Sinclair Oil Corp. v. County of Santa Barbara,
96 F.3d 401 (9th Cir. 1996) ........................... 32
Snaza v. City of St. Paul,
548 F.3d 1178 (8th Cir. 2008) ....................... 12
State ex rel. Chiavola v. Vill. of Oakwood,
931 S.W.2d 819 (Mo. Ct. App. 1996) ............. 29
State ex rel. Thornton v. Hay,
462 P.2d 671 (Or. 1969) ................................. 25
Stevens v. City of Cannon Beach,
854 P.2d 449 (Or. 1993) ................................. 25
Stone v. Powell,
428 U.S. 465 (1976) ....................................... 17
Stop the Beach Renourishment, Inc. v. Fla.
Dep’t of Envtl. Prot.,
560 U.S. 702 (2010) ................................ passim
Tafflin v. Levitt,
493 U.S. 455 (1990) ....................................... 17
Tolksdorf v. Griffith,
626 N.W.2d 163 (Mich. 2001) ........................ 17
xii
Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997) ....................................... 36
United Artists Theatre Circuit, Inc. v. Twp. of
Warrington,
316 F.3d 392 (3d Cir. 2003) ........................... 31
United Haulers Ass’n v. Oneida-Herkimer
Solid Waste Mgmt. Auth.,
550 U.S. 330 (2007) ......................................... 1
Vanek v. State,
193 P.3d 283 (Alaska 2008)........................... 25
Vasquez v. Foxx,
No. 17-1061, 2018 U.S. App. LEXIS
18839
(7th Cir. July 11, 2018) ................................. 14
Visa Inc. v. Osborn,
137 S. Ct. 289 (2016) ..................................... 35
VRC, LLC v. City of Dallas,
391 F. Supp. 2d 437 (N.D. Tex. 2005) ........... 13
Warner v. City of Marathon,
718 Fed. Appx. 834 (11th Cir. 2017) ....... 10, 11
Wayside Church v. Van Buren County,
138 S. Ct. 380 (2017) ....................................... 9
Wayside Church v. Van Buren County,
847 F.3d 812 (6th Cir.) ................................ 8, 9
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155 (1980) ................................. 23, 27
Wilkins v. Daniels,
744 F.3d 409 (6th Cir. 2014) ................... 14, 26
xiii
Williamson County Reg’l Planning Comm’n v.
Hamilton Bank,
473 U.S. 172 (1985) ................................ passim
Yamagiwa v. City of Half Moon Bay,
523 F. Supp. 2d 1036 (N.D. Cal. 2007) ......... 13
Yee v. City of Escondido,
503 U.S. 519 (1992) ....................................... 32
STATUTES
28 U.S.C. § 1331(a)................................................... 33
28 U.S.C. § 1441(a)................................................... 34
28 U.S.C. § 1738 ....................................................... 16
42 U.S.C. § 1983 ......................................................... 4
OTHER AUTHORITIES
Stewart E. Sterk, The Demise of Federal
Takings Litigation,
48 Wm. & Mary L. Rev. 251 (2006) ........ 29, 32
Stewart E. Sterk, The Federalist Dimension of
Regulatory Takings Jurisprudence,
114 Yale L.J. 203 (2004) ................................ 26
1
INTERESTS OF AMICI CURIAE 1
State and local governments have the “important
responsibilities” of “protecting the health, safety, and
welfare of [their] citizens.” United Haulers Ass’n v.
Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S.
330, 342-43 (2007). Amici are groups representing
the interests of those government entities, which for
over 30 years have relied on Williamson County Regional Planning Commission v. Hamilton Bank, 473
U.S. 172 (1985).
By requiring takings claimants to seek compensation under the state’s procedure for providing it,
Williamson County protects those governments from
the typically higher costs of litigating challenges to
police-power regulation in federal courts. It also ensures that those challenges are heard in state courts,
which have greater knowledge of and experience
with the state law issues they present.
This brief is filed on behalf of the following amicus organizations:
•
The National Governors Association (NGA),
founded in 1908, is the collective voice of the
Nation’s governors. NGA’s members are the
governors of the 50 States, three Territories,
and two Commonwealths.
All parties have consented to the filing of this brief. Pursuant
to Supreme Court Rule 37.6, no counsel for a party authored
this brief in whole or part, and no party or their counsel made a
monetary contribution intended to fund the preparation or
submission of this brief. No person other than amici, their
members, or their counsel made a monetary contribution intended to fund this brief’s preparation or submission.
1
2
•
The National Conference of State Legislatures
(NCSL) is a bipartisan organization that
serves the legislators and staffs of the Nation’s 50 States, its Commonwealths, and Territories. NCSL provides research, technical
assistance, and opportunities for policymakers
to exchange ideas on the most pressing state
issues. NCSL advocates for the interests of
state governments before Congress and federal agencies and regularly submits amicus
briefs to this Court in cases, like this one, that
raise issues of vital state concern.
•
The Council of State Governments (CSG) is
the Nation’s only organization serving all
three branches of state government. CSG is a
region-based forum that fosters the exchange
of insights and ideas to help state officials
shape public policy. This offers unparalleled
regional, national, and international opportunities to network, develop leaders, collaborate,
and create problem-solving partnerships.
•
The National Association of Counties (NACo)
is the only national organization that represents county governments in the United
States. Founded in 1935, NACo provides essential services to the nation’s 3,069 counties
through advocacy, education, and research.
•
The National League of Cities (NLC) is dedicated to helping city leaders build better
communities. NLC is a resource and advocate
for 19,000 cities, towns, and villages, representing more than 218 million Americans.
3
•
The U.S. Conference of Mayors (USCM),
founded in 1932, is the official nonpartisan organization of all United States cities with a
population of more than 30,000 people, which
includes over 1,200 cities at present. Each city
is represented in the USCM by its chief elected official, the mayor.
•
The International City/County Management
Association (ICMA) is a nonprofit professional
and educational organization of over 9,000
appointed chief executives and assistants
serving cities, counties, towns, and regional
entities. ICMA’s mission is to create excellence in local governance by advocating and
developing the professional management of local governments throughout the world.
•
The International Municipal Lawyers Association (IMLA) has been an advocate and resource for local government attorneys since
1935. Owned solely by its more than 2,500
members, IMLA serves as an international
clearinghouse for legal information and cooperation on municipal legal matters.
SUMMARY OF ARGUMENT
Since the moment this Court decided Williamson
County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172 (1985), plaintiffs and propertyrights-advocacy groups have tilted at the Court’s
holding that plaintiffs challenging state or local regulation as a taking of property must seek and be denied just compensation through the procedures provided by the state. They argue the requirement has
4
created a procedural morass and fundamental unfairness. That is their justification for asking this
Court to overturn 30 years of precedent.
But the lower courts’ application of Williamson
County—including the cases Petitioner and her amici rely on—show the state-compensation requirement to be merely a windmill. Not one of those cases
supports their depiction of Williamson County as a
menace. On the contrary, this Court and the lower
courts have ensured that the state-compensation requirement is not gamed to deprive property owners
of their day in court.
At root, Petitioner’s complaint is that she cannot
have her favored forum (she did not even attempt to
seek compensation under the procedure provided by
Pennsylvania). But as this Court unanimously recognized in San Remo Hotel, L.P. v. City and County
of San Francisco, 545 U.S. 323 (2005), plaintiffs have
no constitutional right to a federal forum. State
courts are fully competent to fairly adjudicate claims
that regulation has “taken” property. If there is a
problem with Williamson County, it is not that it is
unmanageable, as Petitioner contends. It is rather
that claimants like Petitioner have refused to accept
the rule, causing unnecessary procedural disputes.
To be sure, several justices of this Court have
questioned the state-compensation requirement in
light of the rule that claimants under 42 U.S.C.
§ 1983 need not exhaust state judicial remedies. The
answer is that the Fifth Amendment’s Takings
Clause is unlike its neighbors. It does not limit the
government’s power to burden the exercise of property rights. Rather, it imposes a condition on the sovereign prerogative to take private property—a condi-
5
tion that the owner be justly compensated. Unlike
denial of equal protection or infringement of the liberty of free expression—neither of which can be sustained by payment of compensation—taking of property is not unconstitutional if the property owner is
compensated. The state’s denial of just compensation
is therefore an element of a claim for violation of the
Takings Clause. Williamson County is thus not an
exhaustion requirement.
Takings claims are also different from other constitutional claims because questions of state law—in
particular the law of property, which varies considerably among the states—are intimately bound up
with the constitutional analysis. Specifically, the
court must construe state law to determine whether
a compensable interest exists vel non, the boundaries of that interest, the extent to which existing
property law gave rise to reasonable expectations of
a particular use of the property, and whether the
government’s action merely implemented “background principles” of property law that inhere in the
owner’s title. No other constitutional provision imposes such demands on a reviewing court. This
Court’s federalism principles point to state courts as
the optimal fora to apply their own law.
Williamson County’s critics are also wrong about
the supposed efficiency benefits of overruling it; efficiency in fact cuts the other way. Beyond state
courts’ familiarity with state property law, they are
far more expert in the state statutory issues that so
often accompany takings claims. Federal courts have
consistently refused to referee the run-of-the-mill
land-use disputes that form the basis of most takings
cases. Accordingly, if the state-compensation re-
6
quirement were eliminated, federal courts would either become bogged down in picayune battles, or
they would repeatedly abstain from hearing claims
until the state law issues are resolved by state
courts. Trading the clear state-compensation requirement for ad hoc abstention is a lousy deal.
This Court granted certiorari in this case after
years of turning away petitions seeking to undo Williamson County. Yet Petitioner has jarringly abandoned the primary argument she made in support of
the petition. The Court has previously dismissed petitions as improvidently granted in such circumstances. That Petitioner asks the Court to take the
extraordinary step of repudiating a settled precedent
provides additional reason for doing so here.
ARGUMENT
I.
Williamson County’s state-compensation
requirement is neither unworkable nor
unfair.
“Before overturning a long-settled precedent,”
this Court requires “‘special justification,’ not just an
argument that the precedent was wrongly decided.”
Halliburton Co. v. Erica P. John Fund, Inc., 134 S.
Ct. 2398, 2407 (2014) (quoting Dickerson v. United
States, 530 U.S. 428, 443 (2000)). As the sole “special
justification” for overruling 30 years of precedent,
Petitioner and her amici depict Williamson County
as an unworkable and unfair doctrine that prevents
aggrieved property owners from having their takings
claims heard.
But the cases they cite paint an entirely different
picture. Courts have consistently applied Williamson
County to avoid injustice. Only when property own-
7
ers have attempted to evade its clear rule—as Petitioner did here—have they encountered problems.
A.
The cases cited by Petitioner and
her amici bear no resemblance to
the rogues’ gallery depicted in
their briefs.
Petitioner and her amici cite purported examples
of takings plaintiffs stymied by the statecompensation requirement. See, e.g., Petitioner’s
Brief on the Merits (“Pet. Br.”) 24-27, 30-33; Brief of
AARP et al. (“AARP Br.”) 7-10; Brief of Citizens’ Alliance for Property Rights Legal Fund et al. (“Citizens’ Alliance Br.”) 13-14; Brief of Ohio Farm Bureau (“OFB Br.”) 9; Brief of San Remo Hotel et al.
(“San Remo Br.”) 7-9. Specifically, Petitioner appears
concerned that a plaintiff’s access to state court is
“illusory” when, to comply with Williamson County
and San Remo, the plaintiff first files both state inverse condemnation and federal takings claims in
state court, only to have the defendant remove the
case to federal court. Pet. Br. 30. Then, Petitioner
fears, the federal court will dismiss the claims for
failure to comply with Williamson County, leaving a
plaintiff without a lawsuit despite her efforts to follow the correct procedure.
The cases cited reveal no such injustice. Instead,
they show that on removal of a takings case, federal
courts either remand the case to state court or consider any Williamson County argument waived. Either way, the plaintiff gets her day in court. Notably,
in none of Petitioner’s cases was a plaintiff deprived
of a hearing on her takings claim where she followed
the proper procedure.
8
Petitioner points to Koscielski v. City of Minneapolis, 435 F.3d 898 (8th Cir. 2006), as a case in which
a federal court dismissed a takings claim removed
from state court. Pet. Br. 31. But there, the plaintiffs
did not comply with Williamson County: they
brought only a federal takings claim in state court
and thus failed to follow the state’s inverse condemnation procedure for seeking compensation. See
Koscielski v. City of Minneapolis, 393 F. Supp. 2d
811, 818 (D. Minn. 2005). Had they raised the inverse condemnation claim along with their federal
takings claim, the federal court could have exercised
supplemental jurisdiction over the state claim or remanded it to state court, allowing the merits to be
heard either way. It was not Williamson County that
barred the plaintiffs’ way; it was their own failure to
follow the available state procedure.
As for Clifty Properties, LLC v. City of Somerset,
Petitioner fails to tell the whole story. Pet. Br. 31
(citing Clifty Props., LLC v. City of Somerset, No.
6:17-41, 2017 U.S. Dist. LEXIS 146474 (E.D. Ky.
Sept. 11, 2017)). In the September 11, 2017 ruling
Petitioner cites, the district court dismissed federal
and state claims removed from state court. But on
the plaintiff’s motion to amend or vacate that decision, the court held that the defendant waived any
Williamson County argument by removing the case.
Clifty Props., LLC v. City of Somerset, No. 6:17-41,
2017 U.S. Dist. LEXIS 207937, at *9 (E.D. Ky. Dec.
19, 2017). The court reinstated the federal takings
claim and state law claims, and the plaintiff had its
day in federal court. Id.
In Wayside Church v. Van Buren County, cited by
Amicus AARP (AARP Br. 8-15), the plaintiff never
9
attempted to follow the state’s compensation procedure. 847 F.3d 812, 816 (6th Cir.), cert. denied 138 S.
Ct. 380 (2017). Instead, it filed suit in federal court,
alleging that no adequate state procedures for compensation were available. Id. at 816, 819. The Sixth
Circuit held that the plaintiff could have brought its
state and federal takings claims in state court. Id. at
821. There is no injustice here, just a failed litigation
strategy. Regardless, the plaintiff could still seek
compensation through the state’s procedure.
The problems encountered by the San Remo Amici (San Remo Br. 7-9) similarly were of their own
making: they refused to pursue state-compensation
procedures before bringing their claims in federal
court. See Kottschade v. City of Rochester, 319 F.3d
1038, 1039-40 (8th Cir. 2003); Pakdel v. City &
County of San Francisco, No. 17-cv-03638, 2017 U.S.
Dist. LEXIS 211032, at *11 (N.D. Cal. Nov. 20,
2017).
The remaining cases cited by Petitioner and her
amici are no more helpful. Each falls into one of two
categories: (1) the plaintiff never attempted to follow
the state’s compensation procedure, or (2) the plaintiff’s claims were heard in state or federal court:
• In Sandy Creek Investors, Ltd. v. City of
Jonestown, the defendant removed state and
federal takings claims that plaintiff filed in
state court. 325 F.3d 623, 625 (5th Cir. 2003).
The Fifth Circuit held that Williamson County
required the matter to be remanded. Id. at
626.
•
In Ohad Associates, LLC v. Township of Marlboro, the plaintiff filed a lawsuit in state court
alleging some state claims and a federal tak-
10
ings claim, but did not include a claim under
the state’s eminent domain act, as required to
seek compensation for an alleged taking. No.
10-2183, 2011 U.S. Dist. LEXIS 8414, at *3
(D.N.J. Jan. 28, 2011). The defendant removed
the suit, and the district court dismissed the
federal takings claim for failure to comply
with Williamson County due to the plaintiff’s
failure to follow the available statecompensation procedure. Id. at *3, 8.
•
In Arrigoni Enterprises, LLC v. Town of
Durham, the plaintiff sought only to overturn
a zoning decision in state court before filing a
federal takings claim in federal court. 606 F.
Supp. 2d 295, 297, 299-300 (D. Conn. 2009).
Because the plaintiff never sought compensation under the state’s procedure, the Second
Circuit held that the district court properly
dismissed the federal takings claim. Arrigoni
Enters., LLC v. Town of Durham, 629 Fed.
Appx. 23, 25 (2d Cir. 2015), cert. denied 136 S.
Ct. 1409 (2016).
•
In Warner v. City of Marathon, the plaintiff’s
state lawsuit was removed to federal court, after which the plaintiff amended his complaint
three times. The final complaint alleged a federal takings claim and other state and federal
claims. 718 Fed. Appx. 834, 836-37 (11th Cir.
2017). The district court dismissed the federal
takings claim with prejudice, but the Eleventh
Circuit vacated that order, and instructed the
district court to dismiss it without prejudice,
to allow the plaintiff to bring a state-
11
compensation claim in state court. Id. at 838.
The plaintiff was able to successfully pursue
his claim in state court. Citizens’ Alliance Br.
14-15.
•
Petitioner’s remaining cases—Reahard v. Lee
County, 30 F.3d 1412, 1418 (11th Cir. 1994);
8679 Trout, LLC v. North Tahoe Public Utilities District, No. 2:10-cv-01569, 2010 U.S.
Dist. LEXIS 93303, at *17 (E.D. Cal. Sept. 8,
2010); Doak Homes, Inc. v. City of Tukwila,
No. C07-1148, 2008 U.S. Dist. LEXIS 7740, at
*11-12 (W.D. Wash. Jan. 18, 2008); Anderson
v. Chamberlain, 134 F. Supp. 2d 156, 162 (D.
Mass. 2001); Rau v. City of Garden Plain, 76
F. Supp. 2d 1173, 1174 (D. Kan. 1999); and
Seiler v. Charter Township of Northville, 53 F.
Supp. 2d 957, 964 (E.D. Mich. 1999)—were all
remanded to state court for adjudication.
In sum, Petitioner and her amici cannot point to
a single case in which a takings claimant was denied
a forum for her claim. Given that Williamson County’s supposed “unworkability” is Petitioner’s sole
“special justification” for its overruling, the Court
should decline her request. See Halliburton Co., 134
S. Ct. at 2407.
B.
Courts have ample flexibility to
avoid the unfair outcomes
Petitioner fears.
In Stop the Beach Renourishment, Inc. v. Florida
Department of Environmental Protection, the Court
clarified that the state-compensation requirement is
not jurisdictional. 560 U.S. 702, 729 (2010); see also
12
Horne v. Dep’t of Agric., 569 U.S. 513, 525-26 (2013).
Rather, having sought and been denied compensation through an available and adequate statecompensation procedure is an “element[] that must
be shown in any [federal] takings claim.” Kurtz v.
Verizon N.Y., Inc., 758 F.3d 506, 512 (2d Cir. 2014);
see also infra Section II.A.
That clarification, which the lower courts have
now almost universally acknowledged, 2 has ensured
that courts can apply Williamson County pragmatically to avoid the parade of horribles Petitioner
fears. (In fact, most of Petitioner’s cases were decided before that clarification.)
First, courts have found that a defendant has
waived the state-compensation requirement through
its actions or neglect of the argument. In Stop the
Beach Renourishment, this Court held that the respondent waived its state-compensation defense because it was not raised in the opposition to the petiSee Sherman v. Town of Chester, 752 F.3d 554, 561 (2d Cir.
2014); Knick v. Twp. of Scott, 862 F.3d 310, 327 (3d Cir. 2017);
Sansotta v. Town of Nags Head, 724 F.3d 533, 545 (4th Cir.
2013); Rosedale Missionary Baptist Church v. New Orleans
City, 641 F.3d 86, 88-89 (5th Cir. 2011); Lilly Invs. v. City of
Rochester, 674 Fed. Appx. 523, 526 (6th Cir. 2017); Peters v.
Vill. of Clifton, 498 F.3d 727, 734 (7th Cir. 2007); Guggenheim
v. City of Goleta, 638 F.3d 1111, 1118 (9th Cir. 2010) (en banc);
B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1299
n.21 (10th Cir. 2008); Hadar v. Broward County, 692 Fed.
Appx. 618, 623 (11th Cir. 2017). The First Circuit has not taken
a firm position on the issue, see Perfect Puppy, Inc. v. City of E.
Providence, 807 F.3d 415, 420-21 (1st Cir. 2015), and the
Eighth Circuit has not addressed it since this Court’s decision
in Stop the Beach Renourishment, see Snaza v. City of St. Paul,
548 F.3d 1178, 1182 (8th Cir. 2008).
2
13
tion for certiorari. 560 U.S. at 729; see also, e.g.,
Yamagiwa v. City of Half Moon Bay, 523 F. Supp. 2d
1036, 1108-10 (N.D. Cal. 2007) (declining to entertain Williamson County argument first raised after
two years of litigation and defendant’s own removal
to federal court).
Likewise, if a defendant removes a lawsuit alleging both a federal takings claim and a properly pled
state inverse condemnation claim, the district court
may hear the claims because the defendant’s voluntary action in removing the case prevented the plaintiff from complying with the state-compensation requirement. 3 See, e.g., Lilly Invs. v. City of Rochester,
674 Fed. Appx. 523, 531 (6th Cir. 2017); Robinson v.
City of Baton Rouge, No. 13-375, 2016 U.S. Dist.
LEXIS 146461, at *88 (M.D. La. Oct. 22, 2016); Race
v. Bd. of County Comm’rs of Lake, No. 15-cv-1761,
2016 U.S. Dist. LEXIS 40331, at *11 (D. Colo. Mar.
28, 2016); Athanasiou v. Town of Westhampton, 30 F.
Supp. 3d 84, 88 (D. Mass. 2014); Merrill v. Summit
County, No. 2:08CV723, 2009 U.S. Dist. LEXIS
16056, at *5, 10 (D. Utah Mar. 2, 2009).
To do otherwise would “create the possibility for
judicially condoned manipulation of litigation.”
Sansotta, 724 F.3d at 545; accord Sherman v. Town
of Chester, 752 F.3d 554, 568-69 (2d Cir. 2014) (court
“cannot accept” tactic of removing federal takings
claim to federal court, then seeking to dismiss
Nevertheless, the plaintiff may request remand to state court
based on Williamson County. See, e.g., Norma Faye Pyles Lynch
Family Purpose, LLC v. City of Cookeville, Tenn., 207 F. Supp.
3d 825, 831-32 (M.D. Tenn. 2016); VRC, LLC v. City of Dallas,
391 F. Supp. 2d 437, 440, 442 (N.D. Tex. 2005).
3
14
claim); Key Outdoor, Inc. v. City of Galesburg, 327
F.3d 549, 550 (7th Cir. 2003) (because removal “frustrated plaintiffs’ efforts to invoke state remedies,”
defendant “either surrendered the benefit of Williamson or consented in advance to the remand of
state-law theories, so that the process required by
Williamson could run its course”).
Second, federal courts have exercised their discretion to bypass the state-compensation requirement where a federal takings claim can be disposed
of on another basis, thus avoiding a pointless further
round of litigation in state court. In Guggenheim v.
City of Goleta, the Ninth Circuit en banc rejected the
plaintiff’s federal takings claim on the merits despite
the city’s state-compensation defense, thus avoiding
“wast[ing] the parties’ and the courts’ resources to
bounce the case through more rounds of litigation.”
638 F.3d at 1118; see also, e.g., Wilkins v. Daniels,
744 F.3d 409, 418 (6th Cir. 2014) (declining to apply
Williamson County where it was “clear that there
has been no ‘taking,’” and thus “no jurisprudential
purpose is served by delaying consideration of the
issue”); Vasquez v. Foxx, No. 17-1061, 2018 U.S. App.
LEXIS 18839, at *15 (7th Cir. July 11, 2018) (rejecting takings claim on merits); Adam Bros. Farming,
Inc. v. County of Santa Barbara, 604 F.3d 1142,
1148-49 (9th Cir. 2010) (rejecting claim based on res
judicata).
As these cases demonstrate, courts have applied
Williamson County pragmatically. In lieu of uprooting that precedent, this Court can reaffirm that
compliance with the state-compensation requirement
is an element of a Fifth Amendment takings claim,
rather than a requirement of Article III ripeness. It
15
can thus underscore that courts can consider it
waived in appropriate circumstances or decline to
require resort to state court where doing so would be
futile. Cf. Halliburton Co., 134 S. Ct. at 2414-17 (declining to overrule precedent but clarifying how it
must be applied).
C.
Williamson County does not require
a claimant to seek compensation
from the state if the state offers no
fair process for doing so.
Under Williamson County, a plaintiff must follow
the state’s compensation procedure only if “a ‘reasonable, certain and adequate provision for obtaining compensation’ exists at the time of the taking.”
473 U.S. at 194 (quoting Reg’l Rail Reorganization
Act Cases, 419 U.S. 102, 124-25 (1974)). Federal
courts have thus heard federal takings claims where
state procedures are unavailable or inadequate. For
example, where a state lacks any compensation procedure—such as an inverse condemnation statute—
federal courts will hear a federal claim. See, e.g.,
Kruse v. Vill. of Chagrin Falls, 74 F.3d 694, 700-01
(6th Cir. 1996); Del Monte Dunes v. City of Monterey,
920 F.2d 1496, 1507 (9th Cir. 1990). Additionally,
where a state procedure exists but is not available
for the specific situation at hand, courts recognize
that the state remedy is inadequate. See, e.g., Daniels v. Area Plan Comm’n, 306 F.3d 445, 456-58 (7th
Cir. 2002) (pursuing state compensation futile where
nature of claim did not satisfy criteria for state inverse condemnation procedure); Clajon Prod. Corp.
v. Petera, 70 F.3d 1556, 1575 (10th Cir. 1995) (no
state remedy available where alleged taking was
16
caused by government officials not subject to inverse
condemnation statute). This safeguard further ensures no plaintiff will be barred from having a takings claim heard through no fault of her own.
D.
The interaction of San Remo and
Williamson County creates no
injustice.
As this Court recognized unanimously in San
Remo Hotel, L.P. v. City and County of San Francisco, if issues essential to a federal takings claim are
decided in state court in the process of litigating a
state inverse condemnation claim, the Full Faith and
Credit Act (FFCA), 28 U.S.C. § 1738, precludes the
plaintiff from relitigating those issues in federal
court. See 545 U.S. at 347-48 (Rehnquist, C.J., concurring) (“Whatever the reasons for petitioners’ chosen course of litigation in the state courts, it is quite
clear that they are now precluded by the full faith
and credit statute … from relitigating in their [federal] action those issues which were adjudicated by
the California courts.”) (emphasis added). This
straightforward application of the FFCA also does
not unfairly prejudice takings claimants, contrary to
Petitioner’s contention. Pet. Br. 24-25; Brief of American Farm Bureau Federation et al. 18; Brief of New
England Legal Foundation 14; OFB Br. 10; Brief for
the States of Texas & Oklahoma 9-10.
San Remo reflects the same respect afforded to
state judicial decisions in any other context, and Petitioner is unable to explain why takings claims
should be treated differently. This Court has consistently reaffirmed that state courts are fully competent to adjudicate federal claims, including constitu-
17
tional claims. San Remo, 545 U.S at 342-43 (citing
Allen v. McCurry, 449 U.S. 90, 93, 103-04 (1980)); see
also Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (holding state courts are “presumptively competent . . . to
adjudicate claims arising under the laws of the United States”); Idaho v. Coeur d’Alene Tribe, 521 U.S.
261, 275 (1997) (opinion of Kennedy, J.) (rejecting
the notion that “state courts are a less than adequate forum for resolving federal questions. A doctrine based on the inherent inadequacy of state forums would run counter to basic principles of federalism.”). And just like federal courts, “[s]tate courts .
. . have a constitutional obligation to safeguard personal liberties and to uphold federal law.” 4 Stone v.
Powell, 428 U.S. 465, 493 n.35 (1976). There is no
constitutional or statutory reason that a plaintiff
must have a federal forum. See San Remo, 545 U.S.
at 344.
State inverse condemnation claims can preclude
relitigation of identical issues in Fifth Amendment
claims merely because state courts often rely on this
Court’s Fifth Amendment principles in applying
their own inverse condemnation statutes and stateconstitutional takings provisions. See, e.g., San
Remo Hotel v. City & County of San Francisco, 41
P.3d 87, 108-10 (Cal. 2002); Tolksdorf v. Griffith, 626
N.W.2d 163, 167-68 (Mich. 2001); City of Houston v.
Carlson, 451 S.W.3d 828, 831 (Tex. 2014). Consequently, the result in San Remo is troubling only if
Petitioner has provided no evidence or argument that local
courts are more predisposed to favor local governments than
local property owners.
4
18
one believes that state courts are less competent
than federal courts to apply those principles.
Petitioner’s contention that the combination of
Williamson County and San Remo creates a “catch22” or “trap,” Pet. Br. 25, appears to be based on the
belief, unfortunately fostered by Williamson County
itself, that the state-compensation requirement is a
requirement of ripeness. See Williamson County, 473
U.S. at 194-95. How can it be, Petitioner asks, that a
procedure necessary to “ripen” a federal takings
claim also prevents the claim from being adjudicated? Pet. Br. 25-26 (takings claims go from “unripe” to
“rotten”). However, when the state-compensation requirement is properly viewed—as an element of the
plaintiff’s claim—any rhetorical force of Petitioner’s
“catch-22” dissolves. It is hardly anomalous that a
plaintiff cannot litigate an issue essential to two
claims in two consecutive lawsuits. Here, too, the
Court can clarify rather than vitiate, by emphasizing
that the state-compensation requirement is not one
of ripeness.
As this Court held in San Remo, the FFCA applies unless Congress has carved out an exception for
a particular claim or issue. 545 U.S. at 344. There is
no such exception for federal takings claims, id. at
348 (Rehnquist, C.J., concurring), despite what Petitioner might hope, see Pet. Br. 26-27. However, Congress can resolve any perceived unfairness by creating such an exception to the FFCA. The Constitution
does not compel Congress to maintain the FFCA in
its current form, and if a change is warranted, Congress may make the change.
19
II.
The Takings Clause is different.
Chief Justice Rehnquist’s San Remo concurrence
presents the central question to be resolved in this
case. Why, he asked, must takings claimants first go
to state court, “while . . . plaintiffs [may] proceed directly to federal court in cases involving, for example, challenges to municipal land-use regulations
based on the First Amendment, or the Equal Protection Clause”? 545 U.S. at 350-51 (Rehnquist, C.J.,
concurring) (citations omitted). The answer is that a
Fifth Amendment takings claim is unlike those other
constitutional claims in two fundamental, structural
ways: (1) the state’s denial of compensation is an element of a claim under the Takings Clause, and (2)
state law dictates, literally and figuratively, the
boundaries of the “private property” that the Clause
protects.
A.
The state’s denial of compensation
is an element of a claim for
violation of the Takings Clause.
Williamson County is a straightforward application of the principle that only uncompensated takings are unconstitutional. The government has the
sovereign power to take property with payment of
compensation. Boom Co. v. Patterson, 98 U.S. 403,
406 (1878). The Takings Clause therefore provides
that “nor shall private property be taken for public
use, without just compensation.” (Emphasis added.)
Accordingly, this Court has held, and merely reaffirmed in Williamson County, that takings are unconstitutional only if uncompensated. See Williamson County, 473 U.S. at 194 n.13 (“[B]ecause the
Fifth Amendment proscribes takings without just
20
compensation, no constitutional violation occurs until just compensation has been denied.”); see also,
e.g., City of Monterey v. Del Monte Dunes, Ltd., 526
U.S. 687, 718 (1999) (opinion of Kennedy, J.)
(“[T]here is no constitutional or tortious injury until
the landowner is denied just compensation.”); Preseault v. ICC, 494 U.S. 1, 11 (1990); First English
Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 320 n.10 (1987) (“[A]s a
matter of law, an illegitimate taking [does] not occur
until the government refuses to pay . . . .”); Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682,
697 n.18 (1949) (holding “the availability of a suit for
compensation against the sovereign will defeat a
contention that the action is unconstitutional as a
violation of the Fifth Amendment”); Hurley v. Kincaid, 285 U.S. 95, 104 (1932) (holding “the illegality .
. . is confined to the failure to compensate [the plaintiff] for the taking”). The Court referred to this principle in Williamson County as “the special nature of
the Just Compensation Clause.” 473 U.S. at 195
n.14.
Williamson County was therefore correct to hold
that if the state “has provided an adequate process
for obtaining compensation, and if resort to that process ‘yield[s] just compensation,’” then “a property
owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully
attempted to obtain just compensation through the
procedures provided by the State for obtaining such
compensation.” 473 U.S. at 194-95 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018
n.21 (1984)). As the United States explained in its
brief, the Fifth Amendment has never been under-
21
stood to require that compensation be paid at the
time of a taking. Brief for the United States (“U.S.
Br.”) 8-16. As long as the state offers a viable posttaking process for obtaining compensation, a property owner has not suffered an uncompensated taking
until she has followed that process.
The state’s denial of just compensation is an element of a Fifth Amendment takings claim that is
missing from all other constitutional claims. To use
the examples noted by Chief Justice Rehnquist, the
Equal Protection Clause does not ask whether a
state has compensated the plaintiff after treating
her differently from someone similarly situated. And
the First Amendment does not ask whether the state
has compensated a speaker in censoring her speech.
In both cases, even if compensation were provided,
the challenged state action could not stand. “No
amount of compensation can authorize such action,”
this Court held in Lingle v. Chevron U.S.A. Inc., in
distinguishing such typical constitutional claims
from takings claims. 544 U.S. 528, 543 (2005). The
Takings Clause, by contrast, imposes only an “obligation to pay just compensation.” Armstrong v. United States, 364 U.S. 40, 49 (1960); see also Stop the
Beach Renourishment, 560 U.S. at 736 (Kennedy, J.,
concurring) (“Unlike the Due Process Clause, . . . the
Takings Clause implicitly recognizes a governmental
power while placing limits upon that power.”).
The Takings Clause does recognize a different
claim that is directly akin to an equal protection or
First Amendment claim: a claim that property has
been taken for something other than a public use.
Like a regulation that censors speech, a regulation
that takes property for a private use is “impermissi-
22
ble”; it cannot be saved by paying compensation.
Lingle, 544 U.S. at 543. Because payment of compensation vel non is irrelevant to such a claim, a
property owner need not seek it before she can state
a claim for violation of the Fifth Amendment. See,
e.g., Carole Media LLC v. N.J. Transit Co., 550 F.3d
302, 308 (3d Cir. 2008).
For the first time, Petitioner asserts in her merits
brief that denial of compensation is not an element
of the claim and that the Takings Clause is instead
solely “remedial,” citing First English. Pet. Br. 17-19.
First English held no such thing. On the contrary, it
expressly recognized that only uncompensated takings are unconstitutional, consistent with the numerous cases cited above. 482 U.S. at 320 n.10. The
notion that the Clause merely provides a procedural
mechanism for obtaining compensation for state takings is also inconsistent with the Clause’s history: it
was applied to the states only because an uncompensated taking was considered a violation of the right
to due process. Chicago, B. & Q. R. Co. v. Chicago,
166 U.S. 226, 241 (1897). Petitioner’s argument thus
conflicts with over a century of precedent. 5
In sum, the “special nature” of the Takings
Clause—that it imposes a condition on the lawful
taking of property—distinguishes takings claims
from other constitutional claims. Other constitutional rights like freedom of expression or equal treatment under the law are subject to no comparable
Petitioner’s theory of the Clause as providing only a remedial
procedure also entirely ignores the public-use requirement,
which imposes a further condition on the exercise of the power
to take property.
5
23
limitation because no amount of money can sustain
actions that violate those rights.
B.
Takings claims rely on state
property law, and Williamson
County ensures that state courts
have the opportunity to construe
and apply that law.
A more practical answer to Chief Justice
Rehnquist’s question lies in the uniquely pivotal role
of state property law in takings claims. No constitutional provision beyond the Takings Clause leans so
heavily on state law.
This Court has repeatedly emphasized “the basic
axiom that ‘[property] interests . . . are not created
by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings that stem from an independent source
such as state law.’” Monsanto, 467 U.S. at 1001
(quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)) (alterations in original); see also Murr v. Wisconsin, 137 S. Ct. 1933,
1950 (2017) (Roberts, C.J., dissenting) (“Our decisions have, time and again, declared that the Takings Clause protects private property rights as state
law creates and defines them.”); Phillips v. Wash.
Legal Found., 524 U.S. 156, 164 (1998); Preseault,
494 U.S. at 21 (O’Connor, J., concurring) (citing
Monsanto). State courts are the authoritative exponents of that law, and Williamson County sensibly
affords them the primary opportunity to construe
and apply it.
1. Several interrelated strands of takings doctrine require courts to apply state property law.
24
First and foremost, “the first step of the Takings
Clause analysis is still to identify the relevant ‘private property.’” Murr, 137 S. Ct. at 1953 (Roberts,
C.J., dissenting). In doing so, courts look to state
law. See, e.g., Phillips, 524 U.S. at 164 (interest accrued in trust accounts is property under Texas law);
Monsanto, 467 U.S. at 1001-02 (Missouri law recognized trade secrets as property); Armstrong, 364 U.S.
at 44 (in Maine, materialman’s lien constituted compensable property interest); Collopy v. Wildlife
Comm’n, Dep’t of Natural Res., 625 P.2d 994, 999
(Colo. 1981) (Colorado law does not recognize a compensable “right to hunt wild game upon one’s own
land”); New Eng. Estates, LLC v. Town of Branford,
988 A.2d 229, 243 (Conn. 2010) (option contract not
compensable property interest under Connecticut
law).
Second, under the test adopted in Penn Central
Transportation Co. v. New York City, 438 U.S. 104
(1978), which now forms the bedrock of the Court’s
takings jurisprudence, see Lingle, 544 U.S. at 53839, a court must consider the extent to which the
challenged action interferes with “distinct investment-backed expectations.” Penn Cent., 438 U.S. at
124; see also Monsanto, 467 U.S. at 1005-06. The
reasonableness of those expectations is shaped in
substantial part by state property law. See Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1034-35 (1992)
(Kennedy, J., concurring); Palazzolo v. Rhode Island,
533 U.S. 606, 634-36 (2001) (O’Connor, J., concurring); see also, e.g., Philip Morris v. Reilly, 312 F.3d
24, 50 n.25 (1st Cir. 2002) (state law defined reasonable investment-backed expectations in trade secret);
Allegretti & Co. v. County of Imperial, 138 Cal. App.
25
4th 1261, 1279 (Cal. Ct. App. 2006) (evaluating reasonableness of expectations based on state groundwater rights law).
Third, in Lucas, the Court recognized an affirmative defense based on “background principles of nuisance and property law.” 505 U.S. at 1030-31. The
background-principles defense has subsequently
been applied to a variety of state law property rules.
See, e.g., Sansotta, 724 F.3d at 541 (public trust doctrine and nuisance); Esplanade Props., LLC v. City
of Seattle, 307 F.3d 978, 985-87 (9th Cir. 2002) (public trust doctrine); Vanek v. State, 193 P.3d 283, 292
(Alaska 2008) (fishing permits); Stevens v. City of
Cannon Beach, 854 P.2d 449, 456 (Or. 1993) (doctrine of custom). The application of such principles
differs markedly from state to state. Compare, e.g.,
State ex rel. Thornton v. Hay, 462 P.2d 671, 676-77
(Or. 1969) (Oregon doctrine of custom mandates public access to dry sand beach) with Op. of the Justices
(Pub. Use of Coastal Beaches), 649 A.2d 604, 610-11
(N.H. 1994) (dry sand beach private property to
high-water mark). In fact, Petitioner’s claim may be
susceptible to the background-principles defense insofar as the challenged regulation replicates the special treatment of burial grounds at common law in
Pennsylvania. See Brief for Respondents 11-13, 48.
Finally, the Court has looked in principal part to
state law in defining the “parcel as a whole” to evaluate the severity of the challenged regulation’s impact on the property. See Murr, 137 S. Ct. at 1948;
see also id. at 1954 (Roberts, C.J., dissenting) (parcel-as-a-whole inquiry should be based solely on
“state property principles”); see also, e.g., Coast
Range Conifers, LLC v. Oregon, 117 P.3d 990, 998
26
(Or. 2005) (holding under Oregon law that “timber is
part of the underlying real property unless it is subject to a contract to be cut,” and refusing to sever
timber for purposes of parcel as a whole rule).
Each of these aspects of the Court’s takings doctrine provides a different view of the same landscape: the “objective rules and customs” created by
state law that shape private property interests. Lucas, 505 U.S. at 1035 (Kennedy, J., concurring). The
nature of those state “rules and customs” is often determinative of whether regulation effects a taking.
Neither the First Amendment nor the Equal Protection Clause requires courts to wade so deeply, if
at all, into state law. See Stewart E. Sterk, The Federalist Dimension of Regulatory Takings Jurisprudence, 114 Yale L.J. 203, 218-19 (2004). For example,
none of the equal protection or First Amendment
cases cited by Chief Justice Rehnquist involved any
substantial question of state law. San Remo, 545
U.S. at 350-51 (Rehnquist, C.J., concurring).
2. State courts, of course, have the principal role
in creating, construing, and applying state property
law. See, e.g., Stop the Beach Renourishment, 560
U.S. at 743 (Breyer, J., concurring); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Thus “[t]he requirement to seek compensation prior to bringing suit will
often serve important federalism interests.” Wilkins,
744 F.3d at 418. In “cases that turn on whether the
plaintiff has a property interest as defined by state
law”—as noted above, a wide swath of takings cases—the state-compensation requirement “will prevent a federal court from reaching the merits prematurely.” Id. Williamson County therefore appropri-
27
ately gives state courts the first bite at the apple in
applying their own law.
However, in cases in which state courts apply
federal case law in implementing state procedures,
this Court has the final say as to whether the cases
have been properly applied. See ASARCO, Inc. v.
Kadish, 490 U.S. 605, 617-25 (1989). And in extreme
circumstances, the Court has recognized that a state
court’s egregious realignment of state property law
may itself raise constitutional concerns. See Stop the
Beach Renourishment, 560 U.S. at 715 (opinion of
Scalia, J.); id. at 737 (Kennedy, J., concurring);
Webb’s Fabulous Pharmacies, 449 U.S. at 164. However, the possibility that federal courts might provide a backstop to police state courts’ application of
their own property law in extreme circumstances
does not undercut the basic principle of federalism
that state courts should retain responsibility for developing and applying their own property law in the
vast run of cases.
III.
Overruling Williamson County would not
serve judicial economy.
Petitioner claims that overruling Williamson
County would conserve the resources of courts and
litigants. Pet. Br. 32-33. But Petitioner has it backwards: she would have this Court replace a simple
rule with new, substantial burdens and uncertainty
for the federal courts and litigants. Overruling Williamson County offers a penny-wise, pound-foolish
“economy.”
28
A.
Williamson County protects federal
courts from refereeing routine
state law disputes over land-use
regulation.
Takings claims arise frequently, perhaps most
frequently, in disputes over local governments’ regulation of land use. 6 In San Remo, the Court recognized that “state courts undoubtedly have more experience than federal courts do in resolving the complex factual, technical, and legal questions related to
zoning and land-use regulation.” 545 U.S. at 347.
This is because “regulation of land use is perhaps the
quintessential state activity.” FERC v. Mississippi,
456 U.S. 742, 767 n.30 (1982) (emphasis added); see
also Mt. Olivet Cemetery Ass’n v. Salt Lake City, 164
F.3d 480, 487 (10th Cir. 1998) (“Land use policy such
as zoning customarily has been considered a feature
of local government and an area in which the tenets
of federalism are particularly strong.”).
Such disputes are particularly fraught with questions of state and local community policy. They thus
typically involve numerous state law issues beyond
the claim that the regulation effects a taking.
State courts frequently invalidate local land
use regulations based on inadequate statutory
authority, state preemption principles, or provisions in state constitutions. In addition,
state courts frequently scrutinize local land
use decisions to determine whether they are
Of the 21 Williamson County cases cited by Petitioner, 15 involve takings claims concerning local land-use regulation.
6
29
arbitrary, unreasonable, or unsupported by
substantial evidence. These doctrinal limitations operate in conjunction with takings
claims to police local regulators.
Stewart E. Sterk, The Demise of Federal Takings Litigation, 48 Wm. & Mary L. Rev. 251, 290-291 (2006)
(footnotes omitted; citing cases).
Takings cases abound involving state law issues
such as compliance with state planning and zoning
statutes, 7 statutes limiting exactions, 8 statutes governing subdivision of land, 9 and compliance with
state constitutional provisions. 10 And they are called
See, e.g., Iowa Coal Mining Co. v. Monroe County, 494 N.W.2d
664 (Iowa 1993) (alleging zoning ordinance in violation of state
enabling statute and regulatory taking based on denial of landfill permit); Edwards v. City of Warner Robins, 807 S.E.2d 438
(Ga. 2017) (claim that adoption of zoning ordinance prohibiting
mobile home park violated notice requirements of state law and
effected a taking); State ex rel. Chiavola v. Vill. of Oakwood,
931 S.W.2d 819 (Mo. Ct. App. 1996) (second appeal in action
alleging zoning ordinance violated state planning statutes and
state constitutional provisions and effected taking); Mayhew v.
Sunnyvale, 774 S.W.2d 284 (Tex. App. 1989) (case alleging violation of Texas Zoning Enabling Act and takings claims).
8
See, e.g., Ehrlich v. City of Culver City, 911 P.2d 429 (Cal.
1996) (applying state Mitigation Fee Act to avoid reaching takings claim based on monetary exaction imposed on developer).
9
See, e.g., Marshall v. Bd. of County Comm’rs, 912 F. Supp.
1456 (D. Wyo. 1996) (claims for violation of subdivision statute
and inverse condemnation); Bd. of Supervisors v. Greengael,
LLC, 626 S.E.2d 357 (Va. 2006) (same).
10
See, e.g., Moon v. N. Idaho Farmers Ass’n, 96 P.3d 637 (Idaho
2004) (challenging statute that authorized agricultural field
burning as taking and on multiple state constitutional
grounds); Gacke v. Pork Xtra, LLC, 684 N.W.2d 168 (Iowa
2004) (challenging statute granting animal feeding operations
7
30
upon to construe and apply land-use statutes in adjudicating inverse condemnation claims. 11
For example, in Landgate, Inc. v. California
Coastal Commission, 953 P.2d 1188 (Cal. 1998), the
plaintiff challenged the Commission’s jurisdiction
under the California Coastal Act and alleged that its
assertion of jurisdiction over a lot-line adjustment
effected a taking by delaying the plaintiff’s development project. Id. at 1192. The court “recogni[zed]
that a judicial determination of the validity of certain preconditions to development is a normal part of
the development process,” and noted that “[t]he resolution of these cases often turns on the construction
and application of complex statutory schemes.” Id. at
1203 (citing numerous cases).
The courts of appeals have therefore long recognized that land-use disputes present fundamentally
local fights that federal courts should not referee. In
Hoehne v. County of San Benito, 870 F.2d 529 (9th
Cir. 1989), for example, the court noted that the final
decision component of Williamson County “guard[s]
against the federal courts becoming the Grand Mufti
of local zoning boards.” Id. at 532; see also Murphy v.
New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d
Cir. 2005) (Williamson County recognizes that “land
use disputes are uniquely matters of local concern
more aptly suited for local resolution.”). The courts
have thus “repeat[ed] the admonition that federal
immunity from nuisance suit as taking and violation of state
constitution).
11
See, e.g., Hill-Grant Living Tr. v. Kearsarge Lighting Precinct, 986 A.2d 662 (N.H. 2009) (construing zoning statute to
determine ripeness of inverse condemnation claim).
31
courts should not become zoning boards of appeal.
State courts are better equipped in this arena and
we should respect principles of federalism . . . [and
avoid] unnecessary state-federal conflict with respect
to governing principles in an area principally of state
concern.” Harlen Assocs. v. Inc. Vill. of Mineola, 273
F.3d 494, 505 (2d Cir. 2001) (quotation marks and
citations omitted); see also Creative Env’ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982); United
Artists Theatre Circuit, Inc. v. Twp. of Warrington,
316 F.3d 392, 402 (3d Cir. 2003) (Alito, J.); Gardner
v. City of Baltimore, 969 F.2d 63, 68 (4th Cir. 1992);
New Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990); Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d
1102, 1104 (8th Cir. 1992).
Contrary to this longstanding view, abandoning
Williamson County’s state-compensation requirement would demand that federal courts intervene in
these common, distinctly local controversies, and it
would put district courts in the position of routinely
facing state statutory and administrative law claims
under their supplemental jurisdiction. But cf. Coeur
d’Alene Tribe, 521 U.S. at 276 (opinion of Kennedy,
J.) (“[T]he elaboration of administrative law” is a
“prime responsibilit[y] of the state judiciary.”).
B.
Overruling Williamson County
would trade its predictable rule for
unpredictable, ad hoc abstention.
In fact, if Williamson County is overturned, the
federal courts are likely to shunt much of that litigation over state law questions back to the state
courts. Given the prevalence of issues of state law
32
integral to and accompanying takings claims, district
courts are likely in many cases to abstain under
Railroad Commission v. Pullman Co., 312 U.S. 496
(1941), to allow state courts to resolve those issues
before deciding the takings claim. 12 If so, overruling
Williamson County will not guarantee takings
claimants a single, clear path through the federal
courts, and the claimed efficiency benefits of overruling Williamson County will prove illusory.
Indeed, district courts have abstained when confronted with takings claims that are not subject to
Williamson County, such as the now-repudiated
claims that regulation failed to “substantially advance a legitimate state interest.” 13 See, e.g., San
Remo Hotel v. City & County of San Francisco, 145
F.3d 1095, 1104-05 (9th Cir. 1998); Sinclair Oil
Corp. v. County of Santa Barbara, 96 F.3d 401, 40910 (9th Cir. 1996); Sea Cabin on the Ocean IV Homeowners Ass’n v. City of N. Myrtle Beach, 828 F. Supp.
1241, 1249-50 (D.S.C. 1993) (abstaining under Pullman to allow state court to evaluate case under local
non-conforming use statute before deciding federal
takings claim); see also Anderson v. Charter Twp. of
12
In some cases, they might instead certify questions to the
state supreme courts. See Sterk, supra, 48 Wm. & Mary L. Rev.
at 293. There too, however, we would exchange a simple rule
requiring direct recourse to state courts with a far more cumbersome route to state-court adjudication.
13
This Court had held that such claims were not subject to the
state-compensation requirement because they did not seek
compensation, but rather invalidation, of the challenged regulation. Yee v. City of Escondido, 503 U.S. 519, 534 (1992). This
Court repudiated the “substantially advances” test in Lingle.
544 U.S. at 543-44.
33
Ypsilanti, 266 F.3d 487, 490 (6th Cir. 2001) (reversing district court’s abstention under Pullman because state and federal constitutional provisions
were identical). Indeed, this Court has recognized
that abstention is often appropriate in the cognate
context of eminent domain. See La. Power & Light
Co. v. City of Thibodaux, 360 U.S. 25, 29 (1959).
Abstention is discretionary. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996). It is therefore impossible to predict whether a court in any given suit will send the parties to state court. However,
it will happen, and the federal courts’ demonstrated
reluctance to referee land-use disputes suggests it
will happen frequently. Regardless, the lack of predictability about whether a court will abstain guarantees additional litigation over the issue.
Williamson County’s clear state-compensation requirement avoids this problem. Given that its application has demonstrably not led to the inefficiency
Petitioner claims, see supra Section I, it would be
counterproductive to discard that rule.
C.
The United States’ novel theory
would give district courts removal
jurisdiction over state eminent
domain actions.
The Solicitor General argues, remarkably, that
plaintiffs may bring state inverse condemnation
claims in federal court. U.S. Br. 19-21. He contends
that a state inverse condemnation claim “arises” under the Constitution and therefore comes within the
district courts’ federal question jurisdiction under 28
U.S.C. § 1331(a). U.S. Br. 19.
34
If accepted, this argument would cause a radical
departure from existing practice. But it also promises a mind-boggling side effect: it would allow nondiverse defendants to remove ordinary state and local eminent domain actions to federal court.
If the Solicitor General were correct, an affirmative eminent domain action would also present a federal question that a property-owner defendant could
remove to federal court under 28 U.S.C. § 1441(a),
which applies to “any civil action brought in a State
court of which the district courts of the United
States have original jurisdiction.” Like inverse condemnation claims, eminent domain actions involve a
constitutional component—determination of “just
compensation”—that
implicates
federal
Fifth
Amendment precedent. See, e.g., Del Monte Dunes,
526 U.S. at 714 (opinion of Kennedy, J.) (“When the
government condemns property for public use, it
provides the landowner a forum for seeking just
compensation, as is required by the Constitution.”);
Hurley, 285 U.S. at 104. A landowner’s ability to remove any eminent domain action to federal court
would transform the law of eminent domain and the
federal courts’ dockets.
To be sure, eminent domain actions involving
wholly diverse parties are already removable. But
the difference between removal of the occasional eminent domain action involving an out-of-state property owner and potential removal of any eminent domain action is a chasm.
Moreover, recognizing that eminent domain actions brought by state or local condemnors do not belong in federal court, this Court developed a special
abstention doctrine to allow district courts to return
35
them to state court. La. Power & Light Co., 360 U.S.
at 28. Even if this Court were to later expand that
case in accepting the Solicitor General’s novel argument, many eminent domain actions would be removed to district court. At a minimum, the courts
would be burdened with another expansion in abstention motion practice. The simple statecompensation requirement avoids this unintended
consequence.
IV.
The Court should dismiss the petition as
improvidently granted.
Between her petition and opening brief on the
merits, Petitioner switched her explanation of why
Williamson County was supposedly wrongly decided.
This Court should therefore dismiss the petition as
improvidently granted.
Dismissing certiorari is appropriate where the
petitioner “rel[ies] on a different argument in [her]
merits briefing” from the one she relied on in her petition to “persuade[] [the Court] to grant certiorari.”
Visa Inc. v. Osborn, 137 S. Ct. 289, 289 (2016) (quoting City & County of San Francisco v. Sheehan, 135
S. Ct. 1765, 1772 (2015)).
Here, Petitioner first argued in her petition that
Williamson County was doctrinally flawed and
should be overturned because a regulatory taking is
“uncompensated” at the moment of the final decision, rendering pursuit of state compensation unnecessary. Petition for Writ of Certiorari 20-23 (citing
Arrigoni, 136 S. Ct. at 1410 (Thomas, J., dissenting
from denial of certiorari)). In short, her argument
accepted the premise that denial of just compensation is an element of a takings claim.
36
But her merits brief abruptly changes course, arguing instead that Williamson County was wrongly
decided because the Takings Clause merely offers a
remedial procedure, Pet. Br. at 34-35, relegating to a
footnote the primary theory of the case from her petition, id. 38 n.14. With such “scant argumentation,”
it is as good as abandoned. Decker v. Nw. Envtl. Def.
Ctr., 568 U.S. 597, 615 (2013) (Roberts, C.J., concurring) (quoting Turner Broad. Sys., Inc. v. FCC, 520
U.S. 180, 223-24 (1997)).
In her petition, Petitioner invited this Court to
repudiate settled precedent based on a particular legal argument and allegations that the precedent had
proven unworkable. Petitioner has now pocketed
that legal argument, and her allegations of the precedent’s supposed practical problems have been
shown to lack foundation. This is thus not the case
presented in the petition. The Court should therefore
dismiss the petition as improvidently granted.
CONCLUSION
This Court should refuse to overrule Williamson
County. It should either affirm the judgment or dismiss the petition as improvidently granted.
Respectfully submitted,
MATTHEW D. ZINN
Counsel of Record
ANDREW W. SCHWARTZ
LAURA D. BEATON
SHUTE, MIHALY & WEINBERGER LLP
LISA E. SORONEN
STATE AND LOCAL LEGAL CENTER
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.