Petition for Writ of Certiorari — John Pietsch, et al., Petitioners v. Ward County, North Dakota, et al.
Supreme Court briefAug 12, 2021
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------JOHN PIETSCH; ARLAN IRWIN, AS TRUSTEE
FOR THE ALBERT AND GRACE IRWIN TRUST;
WARD COUNTY FARM BUREAU,
A NORTH DAKOTA NON-PROFIT CORPORATION;
WARD COUNTY FARMERS UNION,
A NORTH DAKOTA NON-PROFIT CORPORATION,
Petitioners,
v.
WARD COUNTY, A POLITICAL SUBDIVISION
OF THE STATE OF NORTH DAKOTA;
THE BOARD OF COUNTY COMMISSIONERS
FOR WARD COUNTY, NORTH DAKOTA,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------KAREN BUDD-FALEN
BUDD-FALEN LAW OFFICES L.L.C.
P.O. Box 346
300 East 18th Street
Cheyenne, Wyoming 82003
Karen@buddfalen.com
307-632-5105
Fax 307-637-3891
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
1.
Does the violation of the “unconstitutional conditions doctrine” for an extortionate exaction under
Nollan v. California Coastal Commission, 483 U.S.
837 (1987) and Dolan v. City of Tigard, 512 U.S.
374 (1994), create a stand-alone cause of action?
2.
If the violation of the “unconstitutional conditions
doctrine” for an extortionate exaction prior to a
Fifth Amendment takings is a stand-alone cause
of action, what is the appropriate remedy?
ii
PARTIES TO THE PROCEEDINGS
Petitioners, John Pietsch and Arlan Irwin as Trustee for the Albert and Grace Irwin Trust, are private
property owners and were the Plaintiffs and Appellants in the proceedings below. Petitioners also include
the Ward County Farm Bureau and the Ward County
Farmers Union as non-profit corporations representing similarly situated landowners within Ward County,
North Dakota. The Respondents are Ward County, a
political subdivision of the State of North Dakota, and
the Board of County Commissioners, the elected officials for Ward County, North Dakota. Respondents
were the Defendants in the proceeding below and Appellees before the Eighth Circuit Court of Appeals.
CORPORATE DISCLOSURES
Pursuant to Supreme Court Rule 29.6, counsel for
the Petitioners state the following:
Petitioner Ward County Farm Bureau is a North
Dakota Non-Profit Corporation comprised of and governed by farmers; there are no parent corporations,
and no publicly held corporation owns ten-percent or
more of its stock.
Petitioner Ward County Farmers Union is a
branch of the North Dakota Farmers Union which is a
trade name adopted by Farmers Educational and Cooperative Union of America North Dakota Division, a
mutual aid corporation; no publicly held corporation
owns ten-percent or more of its stock.
iii
RELATED CASES
•
Pietsch v. Ward Cty., North Dakota, 446 F.Supp.2d
513 (D.N.D. 2020).
•
Pietsch v. Ward Cty., North Dakota, 991 F.3d 907
(8th Cir. 2021).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
PARTIES TO THE PROCEEDINGS ...................
ii
CORPORATE DISCLOSURES ............................
ii
RELATED CASES ...............................................
iii
TABLE OF CONTENTS ......................................
iv
TABLE OF AUTHORITIES ................................. vii
PETITION FOR WRIT OF CERTIORARI ...........
1
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED...........................................
2
INTRODUCTION AND STATEMENT OF THE
CASE ................................................................
3
REASONS FOR GRANTING THE PETITION .....
10
I.
The Eighth Circuit’s Decision Reflects
Widespread Confusion Among the Courts
and Scholars as to the Correct Legal Theory Exactions Should Reside Under .......... 10
A. Existing case law inconsistently and
unclearly applies different legal theories when ruling on exaction cases ..... 12
B. There is a split between the courts and
scholars as to which legal theory an
extortionate exaction should be challenged under ........................................ 16
v
TABLE OF CONTENTS – Continued
Page
C. This Court’s previous rulings suggest
that the most correct legal theory to
challenge an extortionate exaction is
as an unconstitutional condition ......... 19
D. Requiring all challenges under Nollan, Dolan, and Koontz to be brought
as takings claims results in constitutional violations with no adequate
remedy ................................................. 21
E. The Eighth Circuit incorrectly viewed
Nollan, Dolan, and Koontz as takings
cases, thereby improperly ignoring Petitioners’ claim of an unconstitutional
condition created by the Dedication
Ordinance ............................................ 25
F. The adequate remedy for a Nollan/
Dolan unconstitutional conditions violation should be injunctive relief as is
generally acknowledged to be the appropriate remedy for unconstitutional
conditions violations ............................ 27
CONCLUSION..................................................... 34
APPENDIX
Opinion, United States Court of Appeals for the
Eighth Circuit (March 16, 2021) .................. App. 1-6
Memorandum and Order, United States District
Court for the District of North Dakota (March
10, 2020) ...................................................... App. 7-58
vi
TABLE OF CONTENTS – Continued
Page
Ward County Zoning Ordinance, Chapter 3, Article 24, Section 4(A)(12) ........................... App. 59-67
Ward County Zoning Ordinance, Chapter 3, Article 24, Section 8(A)(1) ............................. App. 68-70
vii
TABLE OF AUTHORITIES
Page
CASES
Action Apartment Ass’n v. City of Santa Monica,
166 Cal.App.4th 456 (2008) .............................. 14, 16
Agency for Int’l Dev. v. All. for Open Soc’y Int’l,
Inc., 570 U.S. 205 (2013).................................... 20, 32
Alpine Homes, Inc. v. City of West Jordan, 424
P.3d 95 (Utah 2017).................................................17
Alto Eldorado P’ship v. Cty. of Santa Fe, 634 F.3d
1170 (10th Cir. 2011) ...............................................16
Bailey v. Alabama, 219 U.S. 219 (1911)......................32
Carlson v. Green, 446 U.S. 14 (1980) ..........................32
Dolan v. City of Tigard, 512 U.S. 374 (1994) ...... passim
Fed. Commc’n Comm’n v. League of Women Voters of Cal., 468 U.S. 364 (1984) ...............................31
First English Evangelical Lutheran Church of
Glendale v. Cty. of Los Angeles, 482 U.S. 304
(1987) ................................................................. 21, 27
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ...............32
Horne v. U.S. Dep’t of Agric., 750 F.3d 1128 (9th
Cir. 2014), rev’d sub nom. Horne v. Dep’t of
Agric., 576 U.S. 350 (2015) ......................................17
Iowa Assur. Corp. v. City of Indianola, Iowa, 650
F.3d 1094 (8th Cir. 2011) .........................................16
Johnson v. Wells Fargo & Co., 239 U.S. 234
(1915) .......................................................................32
viii
TABLE OF AUTHORITIES – Continued
Page
Knick v. Twp. of Scott, Pennsylvania, 139 S.Ct.
2162 (2019) ........................................ 8, 23, 24, 25, 33
Koontz v. St. Johns Water Mgmt. Dist., 570 U.S.
595 (2013) ........................................................ passim
Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949) ........................................... 23, 28
Lefkowitz v. Turley, 414 U.S. 70 (1973) ......................31
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528
(2005) ............................................................... passim
Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139 (2010) ..................................................................8
Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977).......................................31
Nollan v. California Coastal Comm’n, 483 U.S.
837 (1987) ........................................................ passim
Perry v. Sindermann, 408 U.S. 593 (1972) ..... 28, 29, 30
Pickering v. Board of Educ. of Township High
School Dist. 205, Will Cty., 391 U.S. 563 (1968) ..... 28, 29
Pietsch et al. v. Ward Cty., North Dakota et al.,
446 F.Supp.2d 513 (D.N.D. 2020) ..............................1
Pietsch et al. v. Ward Cty., North Dakota et al.,
991 F.3d 907 (8th Cir. 2021) ......................................1
Ruckelshaus v. Monsanto Co., 467 U.S. 986
(1984) .......................................................................23
Rust v. Sullivan, 500 U.S. 173 (1991) ................... 20, 28
Shapiro v. Thompson, 394 U.S. 618 (1969).................32
ix
TABLE OF AUTHORITIES – Continued
Page
Sherbert v. Verner, 374 U.S. 398 (1963) ......................31
St. Johns River Water Mgmt. Dist. v. Koontz, 5
So.3d 8 (Fla. Dist. Ct. App. 2009) ............................29
Swann v. Charlotte-Mcklenburg Bd. of Educ.,
402 U.S. 1 (1971) .....................................................33
Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707 (1981) .................................................31
Wieman v. Updegraff, 344 U.S. 183 (1952) .................32
Williamson Cty. Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 173
(1985) .......................................................................24
CONSTITUTIONAL PROVISIONS
United States Constitution, Amendment V ....... passim
United States Constitution, Amendment XIV,
Section 1 .......................................................... passim
STATUTES
28 U.S.C. § 1254(1) ........................................................2
28 U.S.C. § 1291 ............................................................9
28 U.S.C. § 1331 ............................................................9
28 U.S.C. § 1343 ............................................................9
42 U.S.C. § 1983 ............................................................9
x
TABLE OF AUTHORITIES – Continued
Page
Ward Cty. Zoning Ordinance, Chapter 3, Article
24, Section 4(A)(12) ...................................................3
Ward Cty. Zoning Ordinance, Chapter 3, Article
24, Section 8(A)(1) .....................................................3
RULES
Supreme Court Rule 13 ................................................1
Supreme Court Rule 29.6 ............................................ ii
OTHER AUTHORITIES
Alan Romero, Two Constitutional Theories for
Invalidating Extortionate Exactions, 78 NEB.
L. REV. 348 (1999) ................................. 10, 11, 13, 18
Jan G. Laitos, Causation and the Unconstitutional Conditions Doctrine: Why the City of
Tigard’s Exaction Was a Taking, 72 DENV. U.
L. REV. 893 (1995) ...................................................17
L.K.S. Rath, Note, Dolan v. Tigard. A Further
Step Toward Full Recognition of Property
Owner Rights, 8 TUL. ENVTL. L.J. 337 (1994) .........17
Richard A. Epstein, Introduction: The Harms
and Benefits of Nollan and Dolan, 15 N. ILL.
U. L. REV. 477 (1995) ...............................................13
Scott Woodward, The Remedy for a “Nollan/Dolan
Unconstitutional Conditions Violation,” 38 VT.
L. REV. 701 (2014) ............................................. 27, 31
1
PETITION FOR WRIT OF CERTIORARI
John Pietsch, Arlan Irwin as Trustee for the Albert
and Grace Irwin Trust, Ward County Farm Bureau, a
North Dakota Non-Profit Corporation, and the Ward
County Farmers Union, a North Dakota Non-Profit
Corporation, petition for a writ of certiorari to review
the judgment of the Eighth Circuit Court of Appeals in
this case.
---------------------------------♦---------------------------------
OPINIONS BELOW
The Eighth Circuit’s opinion is reported as Pietsch
v. Ward Cty., North Dakota, 991 F.3d 907 (8th Cir. 2021)
and is reproduced at App. 1-6. The opinion of the Federal District Court for North Dakota is reported as
Pietsch v. Ward Cty., North Dakota, 446 F.Supp.2d 513
(D.N.D. 2020) and is reproduced at App. 7-58.
---------------------------------♦---------------------------------
JURISDICTION
The Eighth Circuit Court of Appeals entered judgment on March 16, 2021. App. 1. Pursuant to Supreme
Court Rule 13, a petition for writ of certiorari must be
filed within 90 days of the entry of judgment. On
March 19, 2020, the Supreme Court entered a rule extending the deadline to file a petition for writ of certiorari to 150 days from the date of the lower court’s
judgment. Based upon the date of the judgment of the
Eighth Circuit Court of Appeals, this writ is timely
2
filed. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
---------------------------------♦---------------------------------
STATUTES AND
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the legal application of the “unconstitutional conditions doctrine” as applied to the
states through the Fourteenth Amendment, and the
appropriate remedy for the violation of the “unconstitutional conditions doctrine” which prohibits the
government from conditioning the receipt of a discretionary benefit on a waiver of a constitutionally guaranteed right. The constitutionally guaranteed right in
this case is the Fifth and Fourteenth Amendments’
right to not have one’s property taken without just
compensation.
United States Constitution, Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of
law; nor shall private property be taken for
3
public use, without just compensation. U.S.
Const. amend. V.
United States Constitution, Amendment XIV, Section 1:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
state wherein they reside. No state shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the
laws. U.S. Const. amend. XIV, § 1.
Ward Cty. Zoning Ordinance, Chapter 3, Article 24,
Section 4(A)(12). App. 59-67.
Ward Cty. Zoning Ordinance, Chapter 3, Article 24,
Section 8(A)(1). App. 68-70.
---------------------------------♦---------------------------------
INTRODUCTION AND
STATEMENT OF THE CASE
The issue presented in this case involves a question never before answered by the Supreme Court
involving whether the “unconstitutional conditions
doctrine” can be pled as a stand-alone cause of action
to challenge an extortionate exaction condition, and
if so, what is the remedy for the unlawful application
of an “unconstitutional condition.” The U.S. Supreme
4
Court has clearly held that the government’s demand
for property as a condition of the approval of a landuse permit must satisfy the Nollan/Dolan requirements. “Extortionate demands for property in the
land-use permitting context run afoul of the Takings
Clause not because they take property but because
they impermissibly burden the right not to have property taken without just compensation.” Koontz v. St.
Johns Water Mgmt. Dist., 570 U.S. 595, 607 (2013). And,
while the U.S. Supreme Court has clearly stated that
the remedy for the actual taking of private property is
just compensation as required by the Fifth Amendment to the U.S. Constitution,1 the Supreme Court has
not squarely answered whether cases challenging the
application of an unconstitutional condition where the
property is not actually taken, have their own cause of
action and what the appropriate remedy is in cases involving the application of an unconstitutional condition when money damages are not available.
Although the North Dakota Federal District Court
and the Eighth Circuit Court of Appeals both held that
the case at bar had to be pled as a “takings case,” the
courts failed to recognize that the Ward County Dedication Ordinance at issue does not result in a taking of
private property which can be compensated by money
damages unless the condition is accepted by the landowner seeking a permit. Rather, the Ward County
Dedication Ordinance mandates that a landowner
1
The Fifth Amendment remedy is applied to the states and
local jurisdictions such as the one in this case through the Fourteenth Amendment to the U.S. Constitution.
5
must dedicate to the public a 40-foot right of way on
either side of the center line along section lines, township roads, frontage roads, or subdivision roads as a
condition prior to the approval of a subdivision or outlot plat. (Referred to herein as the “Dedication Ordinance.”) App. 65. The required right of way is extended
to 75 feet on either side of the center line along county
roads, again as a condition that must be met prior to
the approval of an outlot or subdivision plat. Id. Although the Ward County Dedication Ordinance states
that its purpose is to provide for the proper arrangement of streets in relationship to other existing and
planned streets, App. 11-12, 60, there is no individualized determination of whether such a condition is necessary based on the facts of the individual zoning or
outlot application. App. 13, 68. “Because of this uniform approach, Ward County has essentially stripped
itself of any discretion to approve a subdivision or
outlot plat that does not comply with the dedication
requirement.” App. 12-13.
There is a way for a landowner to avoid the right
of way dedication and that is through completion of an
application for a variance. App. 2, 13, 68. However, variances can only be granted if the landowner has met
the burden of showing a hardship. App. 2-3, 13. Additionally, a variance can only be granted based on the
physical characteristics of the property. Id. Thus, in
neither the application for the approval of a subdivision plat nor the application for a variance does the
Ward County Commission consider whether there is
an essential nexus or rough proportionality to an
6
increase of traffic from the granting of the proposed
land use permit for an outlot or subdivision plat. App.
12-13.
Petitioner John Pietsch’s request for approval of a
5.3-acre outlot from his existing 143.21-acre parcel is
an example of the application of the Dedication Ordinance. App. 14-15. Pietsch’s intended use for the outlot
was to construct a farm shop to store his farm machinery. Id. Pietsch never intended to sell his farm equipment shed or the property upon which it was to sit.
However, because the outlot bordered County Road 18,
the Dedication Ordinance mandated an uncompensated
75-foot right of way prior to approval of the outlot plat.2
App. 15. Rather than complying, Pietsch requested a
variance from the right of way dedication requirement.
Id. On May 17, 2017, the County Commission denied
the variance because the physical characteristics of Pietsch’s property fell outside the geophysical requirements for a hardship. Id. The County Commission did
not ever consider the transportation-related impacts of
the proposed outlot. Id. In turn, Pietsch’s outlot application was denied. Id. Without approval of the outlot
plat, Pietsch was not able to construct his farm machinery shed. Id.
The facts for Petitioner Irwin are much the same.
Irwin, as trustee for the Albert and Grace Irwin Trust,
proposed to create two outlots from the Trust’s 150.52
2
Ward County had previously offered to purchase the right
of way from Pietsch for a planned reconstruction of the County
road, but Pietsch declined the County’s offer. App. 15.
7
acre property. App. 16. One of the outlots abutted 191st
Avenue Southwest, a township road that traversed
less than 1.6 miles and dead ended at two private
driveways. Id. Based on the Dedication Ordinance,
Irwin would have been required to dedicate a 40-foot
right of way to the County prior to approval of his plat.
Rather than giving up his private property without
just compensation, he applied for a variance which the
County Planning Commission recommended for approval because the township road was an “extremely
low traffic” gravel road not prone to future development concerns. App. 17. Disregarding this recommendation, the County Commission denied the requested
variance because it did not meet the right of way requirements of the Dedication Ordinance. Id. The
County did not consider the transportation-related requirements of the variance request. Id. In turn, Irwin’s
outlot plat application was denied. Id.
The remaining Petitioners are organizations that
advocate for farmers’ rights and interests in Ward
County. Ward County has enforced the Dedication Ordinance against members of both the Ward County
Farm Bureau and the Ward County Farmers Union.
App. 18-19.
Based upon these facts and the language of the
Dedication Ordinance, this is a case of an extortionate
demand for private property, for which the requirements of Nollan/Dolan can never be satisfied, and for
the Petitioners who refused to accede to the unconstitutional condition, no remedy is available. Although
admittedly there is a “hearing process” before the
8
County Commission when a variance is requested,
that hearing is only to consider whether the geophysical characteristics of the property prohibit the dedication of a right of way. App. 12-13. If the physical
characteristics of the property allow for the right of
way, the request for variance “shall” be denied. Id. The
County Commission never makes an individualized
determination of whether the right of way has a nexus
and is roughly proportional to the transportation related impacts of the individual plat application because the Ordinance applies as a matter of course to
all subdivision and outlot plats. App. 12.
As stated by Justice Thomas in his concurring
opinion in Knick v. Twp. of Scott, Pennsylvania, injunctive relief is not available as a remedy when an
adequate remedy at law exists (citing Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 156 (2010)). Knick
v. Twp. of Scott, Pennsylvania, 139 S.Ct. 2162, 2180
(2019). However, this case is different because there is
no means by which just compensation will be made
available to the Petitioners because they refused to
give up their property as a condition for approval of a
plat.
Under these facts, although the landowners receive notice and have the right to be heard, the Dedication Ordinance itself prohibits the County from
considering the very “essential nexus” and “rough proportionality” requirements mandated by the Supreme
Court in Nollan and Dolan. Rather, the landowner
seeking the land use permit either agrees to the uncompensated takings, requests a hearing where the
9
only factor that can be considered is hardship to the
landowner based on the geophysical characteristics of
the property, or has his permit denied. The burden is
on the landowner to prove a physical hardship to the
land. App. 13. Furthermore, there is no consideration
by the County of the transportation-related impacts
that an individual outlot or subdivision application
may have on the transportation network. Id.
Jurisdiction was proper in the United States
Court of Appeals for the Eighth Circuit under 28 U.S.C.
§ 1291 because it was an appeal of a final order of the
United States District Court for the District of North
Dakota which maintained subject matter jurisdiction
of this matter pursuant to 28 U.S.C. §§ 1331 (federal
question jurisdiction) and 1343 (civil rights) as this
controversy arose under 42 U.S.C. § 1983. The final
judgment by the District Court disposed of all claims
and causes of action by and between the Plaintiffs and
the Defendants and was timely appealed to the Eighth
Circuit Court by the Petitioners.
---------------------------------♦---------------------------------
10
REASONS FOR GRANTING THE PETITION
In this case, the Eighth Circuit Court of Appeals
incorrectly dismissed the Petitioners’ claim that Ward
County’s Dedication Ordinance was an extortionate
exaction creating an unconstitutional condition before
reviewing the merits of the Petitioners’ unconstitutional condition claim. The Eighth Circuit’s reasoning
was that the Petitioners failed to bring a traditional
takings claim when challenging the Dedication Ordinance. App. 4 (stating that “Plaintiffs’ due process and
unconstitutional conditions claims are an impermissible attempt to recast a Takings claim . . . Plaintiffs
thus have a remedy for unconstitutional exactions
under the Takings clause.”). The Petitioners, however,
did validly bring an unconstitutional condition claim
before the court. Id. As a result, the Eighth Circuit’s
ruling stands for the inaccurate notion that the only
way to challenge an extortionate exaction of private
property as an unconstitutional condition is by bringing a traditional takings claim even if a taking of property never actually occurs.
I.
The Eighth Circuit’s Decision Reflects
Widespread Confusion Among the Courts
and Scholars as to the Correct Legal Theory Exactions Should Reside Under.
The Eighth Circuit’s decision to dismiss the present case without touching upon the merits reflects a
general confusion by both courts and scholars as to
the correct legal theory exactions should reside in.
See, e.g., Alan Romero, Two Constitutional Theories for
11
Invalidating Extortionate Exactions, 78 NEB. L. REV.
348, 370-373 (1999). While a takings clearly occurs in
the context of Nollan or Dolan when a party chooses to
forfeit property to the government in exchange for a
discretionary benefit (often a development or zoning
permit), it is less clear as to what should be the correct
legal theory in a case similar to Koontz in which a permit is denied because the party refuses the unconstitutional condition. However, under the Eighth
Circuit’s ruling at bar, a claim of an illegal exaction is
only properly pled as a violation of the Fifth and Fourteenth Amendments as a taking of private property
without just compensation. App. 4. This ruling came
despite the fact that an unconstitutional conditions
claim was properly pled and acknowledged by the
Eighth Circuit. Id.
Under the Eighth Circuit’s formulation, in order
to challenge an unconstitutional condition created by
an exaction, a property owner would have to file a
cause of action for a “takings,” even if a taking of property never actually occurred. Thus, even if a court were
to acknowledge that an unconstitutional condition occurred due to a proposed exaction, the court could also
find in favor of the government because the property
owner did not plead that there was a theoretical taking
of property without just compensation. This quandary
created by the Eighth Circuit is not uncommon and reflects the general confusion held by many courts and
scholars. This confusion has evolved into courts unevenly applying Nollan, Dolan, and Koontz and scholars
12
debating as to what the correct legal theory for an exaction of private property should be.
A. Existing case law inconsistently and
unclearly applies different legal theories when ruling on exaction cases.
The conundrum the lower courts have faced when
reviewing exaction cases was created because there is a
lack of clarity as to where a claim against an illegal exaction should reside. As discussed below, in one ruling,
the Court has suggested that an extortionate exaction
is unconstitutional because it is a taking of property
without just compensation. See Nollan, 483 U.S. at 834837. Conversely, the Court has also ruled that an exaction is actually an unconstitutional condition because
the constitutional violation of an extortionate exaction
is created upon the presentation of impossible options
for the property owner (having to decide whether to lose
the proposed permit or lose part of their property) rather than the actual physical taking of the property.
Koontz, 570 U.S. at 607. The cause of action under
Koontz then naturally accrues upon the creation of the
unconstitutional condition itself before a taking of
property is ever executed. Id.
In Nollan, this Court suggested that extortionate
exactions should fail under the Fifth and Fourteenth
Amendments as a taking of property without just compensation because the land use restriction imposed for
the purpose of extortion does not “substantially advance legitimate state interests.” See Nollan, 483 U.S.
13
at 834-837. So originally, it appeared as though cases
involving illegal exactions fell under the purview of a
takings claim. Although Nollan suggested that extortionate exactions are illegal because they allow the
government to take property without just compensation, the Court never explicitly stated that the California Coastal Commission violated the Takings clause
with its extortionate demand of Nollan. Instead, the
Court stated that since the demand would have a been
a taking if directly imposed, the California Coastal
Commission should have to pay for the easement if it
wanted it. Id. at 834.
Conversely, in Dolan, the Court suggested that extortionate exactions create an unconstitutional condition because the exaction forces a person to give up the
right to just compensation in exchange for a government benefit. Dolan, 512 U.S. at 385 (referring to the
“well-settled doctrine of ‘unconstitutional conditions’ ”
as the driving legal theory to invalidate an extortionate exaction).3 Thus, instead of falling under the theory
of a taking, extortionate exactions were found to be
3
It has been theorized that the reason this Court took Dolan
was because Nollan’s ruling caused much confusion for many
courts which often avoided making a substantive ruling based off
of Nollan by narrowly interpreting the findings of Nollan, so Dolan was an attempt to clarify the Court’s position regarding the
constitutional theory behind invalidating illegal exactions. See,
e.g., Richard A. Epstein, Introduction: The Harms and Benefits of
Nollan and Dolan, 15 N. ILL. U. L. REV. 477, 492 (1995); Alan
Romero, Two Constitutional Theories for Invalidating Extortionate Exactions, 78 NEB. L. REV. 348, 354-355 (1999).
14
illegal because they impose an unconstitutional condition. Id.
In Lingle this Court stated that Nollan and Dolan
were a “special application of the ‘doctrine of ‘unconstitutional conditions’ ”4 because Nollan and Dolan involved cases in which the government attempted to
require a person to give up a constitutional right in exchange for a discretionary benefit. Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 547-548 (2005). In that case,
the Court reiterated that the correct legal theory to
challenge an exaction was through the unconstitutional conditions doctrine rather than a taking of property without just compensation. However, additional
confusion arose because Lingle framed its interpretation of Nollan and Dolan as if it simultaneously applied takings jurisprudence and the unconstitutional
conditions doctrine because as part of the Court’s reasoning it stated that the “substantially advances” formula is not a valid takings test and is more properly
posited as a due process action. See id. at 546-548. In
turn, other courts have interpreted Lingle to suggest
that an extortionate exaction is a taking. See, e.g., Action Apartment Ass’n v. City of Santa Monica, 166
Cal.App.4th 456, 459-460 (2008) (citing to Lingle while
also stating “This is principally a takings case” when
reviewing a challenge under Nollan and Dolan). Id.
4
Interestingly, the Eighth Circuit cited to Knick as justification for dismissing the present case for failing to plead a violation
of the Takings clause. App. 4.
15
Koontz further reinforced that extortionate exactions are illegal through the unconstitutional conditions doctrine. See Koontz, 570 U.S. 595. In Koontz the
Court stated that “[e]xtortionate demands of this sort
frustrate the Fifth Amendment’s right to just compensation, and the unconstitutional conditions doctrine
prohibits them.” Id. at 605. Further, the Court ruled
that the principles behind the Nollan and Dolan decisions remain intact whether the government approves
a permit upon acceptance of the condition by the property owner or the government conversely denies the
permit because the property owner refuses the government’s request to relinquish property. Id. at 606. The
Court emphasized that an unconstitutional condition
could occur before a violation of a person’s constitutional rights (in the case of exactions, a taking of property without just compensation) ever occurs. Id. at 607.
Ultimately, while this Court has stated repeatedly
that extortionate exactions create unconstitutional
conditions, other statements and methods of analysis
used by the Court have made this issue murky. This
Court has outlined that the proper cause of action to
challenge an extortionate exaction is via unconstitutional conditions. Dolan, 512 U.S. at 385; Lingle, 544
U.S. at 547-548; Koontz, 570 U.S. at 604. However, this
Court has then intermixed takings jurisprudence with
unconstitutional conditions when making its decision.
See Lingle, 554 U.S. at 546-548; Nollan, 483 U.S. at
834-837. This confusion has been further perpetuated
by the fact that the parties in Nollan, Dolan, and
Koontz all brought takings claims challenging the
16
condition as a taking of private property without just
compensation. Koontz, 570 U.S. at 602; Nollan, 483 U.S.
at 829; Dolan, 512 U.S. at 382. As a result, this Court
has never taken an exactions case in which the exaction was challenged as an unconstitutional condition
exclusive from a takings challenge.
B. There is a split between the courts and
scholars as to which legal theory an
extortionate exaction should be challenged under.
There appear to be three prominent theories as to
the proper legal theory to challenge an exaction. The
first theory is that Nollan and Dolan are actually a
form of takings. Several state and circuit courts have
called challenges under Nollan and Dolan a takings
claim. See, e.g., Action Apartment Ass’n, 166 Cal.App.4th
at 459-460 (stating “This is principally a takings case”
when reviewing a challenge under Nollan and Dolan);
Iowa Assur. Corp. v. City of Indianola, Iowa, 650 F.3d
1094, 1097-1098 (8th Cir. 2011) (claiming that a “governmental requirement that, without sufficient justification, requires an owner to ‘dedicate’ a portion of his
property in exchange for a building permit” is a form
of regulatory takings); Alto Eldorado P’ship v. Cty. of
Santa Fe, 634 F.3d 1170, 1179 (10th Cir. 2011) (stating
that “Nollan and Dolan do not authorize challenges to
permitting decisions as alleged unconstitutional takings
without first seeking compensation if the state has provided the means to seek compensation.”). Thus, under
these courts’ rationale, a challenge to an exaction
17
under Nollan and Dolan is actually a takings claim
and must be pled as one, even if property is never
actually taken. See also Jan G. Laitos, Causation and
the Unconstitutional Conditions Doctrine: Why the
City of Tigard’s Exaction Was a Taking, 72 DENV. U.
L. REV. 893, 904-908 (1995) (arguing that Dolan did
not actually rely on unconstitutional conditions theory); L.K.S. Rath, Note, Dolan v. Tigard. A Further
Step Toward Full Recognition of Property Owner
Rights, 8 TUL. ENVTL. L.J. 337, 349 (1994) (“Dolan
takes this trend further, holding that even where the
land use regulation serves a legitimate public purpose and meets the essential nexus test of Nollan, it
may still be a taking if the required exactions are not
proportional to the impact of the proposed development.”).
In contrast, other courts have cited to Dolan,
Koontz, and Lingle to suggest that the proper legal
theory to challenge an exaction is the unconstitutional conditions doctrine. See, e.g., Alpine Homes, Inc.
v. City of West Jordan, 424 P.3d 95, 104 (Utah 2017)
(“Thus, it is the constitutionality of the governmentimposed condition that is at issue under a Nollan/Dolan claim, not a consummated taking of private property. . . .”); Horne v. U.S. Dep’t of Agric., 750 F.3d 1128,
1138 (9th Cir. 2014), rev’d sub nom. Horne v. Dep’t of
Agric., 576 U.S. 350 (2015) (reversed on other grounds)
(stating that “If the Secretary works a constitutional
taking by accepting (through the RAC) reserved raisins, then, under the unconstitutional conditions doctrine, the Secretary cannot lawfully impose a penalty
18
for non-compliance. But if the receipt of reserved raisins does not violate the Constitution, neither does
imposition of the penalty.”).5 Under this theory, a party
should be able to challenge the constitutionality of the
condition being imposed itself rather than having to
undergo a takings claim when challenging an extortionate exaction.
Still other constitutional and property law scholars believe that exactions should fall under a substantive due process claim. See Alan Romero, Two
Constitutional Theories for Invalidating Extortionate
Exactions, 78 NEB. L. REV. 348, 370-373 (1999). Professor Romero’s reasoning is that, in the context of an exaction, because the government is willing to waive a
permit requirement in order to gain a property interest, a court may examine the regulation itself with
closer scrutiny because it can be argued that the government is pursuing an illegitimate interest. Id. at
372. Under his reasoning, when the regulation is conditionally waived in order to get some property interest
from the owner, the court should look for a nexus and
rough proportionality to determine whether the illegitimate reason suggested by the exaction is truly the
government’s reason for its action. Id.
5
Note that while both courts acknowledge that Nollan, Dolan, and Koontz were unconstitutional condition cases, the courts
also stated that the exaction was an illegal taking.
19
C. This Court’s previous rulings suggest
that the most correct legal theory to
challenge an extortionate exaction is
as an unconstitutional condition.
This Court’s previous rulings support that the doctrine of unconstitutional conditions is a stand-alone
cause of action and should be the correct legal theory
for violations of Nollan and Dolan. For example, in
Koontz, the Court clarified that an extortionate exaction may be challenged even if the property owner
chooses not to accept the condition and their permit is
subsequently denied. Koontz, 570 U.S. at 606. Koontz
stands for the concept that extortionate exactions run
afoul of the Takings Clause not because there is a taking of property, but instead the violation occurs when
the government impermissibly burdens the right not
to have property taken without just compensation. Id.
at 607. Because a taking never occurs, for a Nollan/
Dolan claim, logically, the unconstitutional conditions
doctrine should be the proper cause of action because
a physical taking never occurs in a Koontz scenario.
In addition to the necessity that a Nollan/Dolan
claim be viewed as an unconstitutional condition, rather than a taking to be logically consistent with
Koontz, this Court’s words explicitly state that the
proper claim is under the unconstitutional conditions
doctrine. In Dolan, the Court cited the “[w]ell settled
doctrine of ‘unconstitutional conditions’ ” as the driving
legal theory to invalidate an extortionate exaction.
Dolan, 512 U.S. at 385. In Lingle, this Court favorably
looked upon the unconstitutional conditions doctrine
20
as the proper legal theory to challenge an extortionate
exaction when the Court stated that Nollan and Dolan
were a “special application of the ‘doctrine of “unconstitutional conditions . . . ” ’ ” because Nollan and Dolan
involved cases in which the government attempted to
require a person to give up a constitutional right in exchange for a discretionary benefit. Lingle, 544 U.S. at
547-548. Koontz states repeatedly that extortionate
exactions create an unconstitutional condition. Koontz,
570 U.S. at 604-609.
Finally, the doctrine of unconstitutional conditions
has been treated as a separate cause of action to the
underlying constitutional challenges in other unconstitutional conditions cases outside of the Nollan/Dolan
context. For example, in Rust v. Sullivan, this Court
considered both a First Amendment challenge and an
unconstitutional conditions challenge restricting the
First Amendment challenge to Title X regulations prohibiting recipients of those funds from using those
funds to engage in abortion advocacy or counseling. See
Rust v. Sullivan, 500 U.S. 173, 192, 196 (1991). In another case in 2013, the Court considered a challenge
to funding given under the Leadership Act that was
brought solely as an unconstitutional condition against
the First Amendment because the funding was explicitly not available to any organization that did not explicitly oppose prostitution and sex trafficking. Agency
for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.
205, 211 (2013). Thus, this Court has already reviewed
challenges of unconstitutional conditions as standalone causes of action that can operate independently
21
of other causes of actions. In turn, this Court should
view unconstitutional condition challenges to extortionate exactions as a stand-alone cause of action that
does not require a claim for takings.
D. Requiring all challenges under Nollan,
Dolan, and Koontz to be brought as takings claims results in constitutional violations with no adequate remedy.
Requiring all challenges under Nollan, Dolan, and
Koontz to be takings claims creates a remedy issue as
well. By pigeonholing the Petitioners’ cause of action
predicated upon a Nollan/Dolan unconstitutional condition violation as a takings, the Eighth Circuit has
highlighted the inherent flaw in such an approach: it
provides no remedy for the Petitioners who were
harmed by the unconstitutional condition but are not
entitled to just compensation because the takings were
never consummated. There is no question that the
mandated remedy when the government takes private
property is just compensation. Koontz, 570 U.S. at
608-609. See also First English Evangelical Lutheran
Church of Glendale v. Cty. of Los Angeles, 482 U.S. 304,
315 (1987) (The Takings Clause “is designed not to
limit the governmental interference with property
rights per se, but rather to secure compensation in the
event of otherwise proper interference amounting to a
taking.”) (emphasis in original). However, when, as in
the case at bar, there is no taking because a property
owner does not acquiesce to the government’s extortionate demand for the dedication of property in
22
contravention to the standards established in Nollan
and Dolan, just compensation is not available.
Despite grazing the issue, the Supreme Court has
not yet determined what the adequate remedy is for an
unconstitutional condition that is required as a condition of a land-use permitting decision but prior to a
Fifth Amendment takings. See Koontz 570 U.S. at 608609. The Koontz majority opinion unequivocally held
that “the government’s demand for property from a
land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government
denies the permit and even when its demand is for
money.” Koontz, 570 U.S. at 619. However, it expressly
declined to discuss the appropriate remedy when there
is no taking despite a Nollan/Dolan unconstitutional
conditions violation. Id. at 609. (“Because petitioner
brought his claim pursuant to a state law cause of
action, the Court has no occasion to discuss what
remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other
cases.”). The solution to the juxtaposition of these two
positions, at least when the unconstitutional condition
is the relinquishment of real property, is injunctive relief as suggested by Justice Kagan’s dissent in Koontz.
Id. at 620 (Kagan, J., dissenting) (“[W]hen the government denies a permit because an owner has refused to
accede to that same demand, nothing has actually been
taken. The owner is entitled to have the improper condition removed. . . .”)
However, such a remedy is precluded if the Petitioners are required to bring a takings claim because
23
the Supreme Court has rejected requests for injunctive
relief to block alleged takings. Knick, 139 S.Ct. at 2176
(“Today, because the federal and nearly all state governments provide just compensation remedies to property owners who have suffered a taking, equitable
relief is generally unavailable. As long as an adequate
provision for obtaining just compensation exists, there
is no basis to enjoin a government’s action effecting a
taking”); See Ruckelshaus v. Monsanto Co., 467 U.S.
986, 1016 (1984) (citing Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 697 n. 18 (1949) (“Equitable relief is not available to enjoin an alleged taking
of private property for a public use, duly authorized by
law, when a suit for compensation can be brought
against the sovereign subsequent to the taking.”). As
argued below, the appropriate remedy for a violation of
the unconstitutional conditions doctrine is invalidation of the condition, i.e., injunctive relief. Thus, by definitively finding that violations of Nollan and Dolan
can be properly pled as violations of the unconstitutional conditions doctrine, this Court can ensure that
the constitutional violations at issue here have an adequate remedy.
The confluence of the confusion of lower courts
and the inadequate remedy available for the Petitioners is seen in the Eighth Circuit’s reliance on
Knick. In contrast to the unconstitutional condition being challenged by the Petitioners, Knick was squarely
an alleged regulatory taking wherein the plaintiff
claimed a taking due to an ordinance which made all
cemeteries, including the one on the plaintiff ’s private
24
property, open to the general public. Id. at 2168. In
overruling Williamson Cty. Regional Planning Comm’n
v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985),
the Court stated that “so long as the property owner
has some way to obtain compensation after the fact,
governments need not fear that courts will enjoin their
activities.” Id. at 2168. Knick’s caveat for protecting local government ordinances works well in the takings
context in which there is an opportunity to receive just
compensation. However, that opportunity never exists
for a property owner facing an extortionate exaction.
Despite the clear difference between Knick and the
case at bar, Knick was cited favorably by the Eighth
Circuit in support of the District Court ruling in this
matter. App. 4 (“Plaintiffs’ due process and unconstitutional conditions claim are an impermissible attempt
to recast a Takings claim. ‘As long as an adequate provision for obtaining just compensation exists, there is
no basis to enjoin government action effecting a taking.’ ”) (citation omitted).
This case is similar to Knick in that Petitioners
find themselves in a Catch-22. There, under the now
overturned precedent of Williamson Cty., a plaintiff
“[could] not go to federal court without going to state
court first; but if he [went] to state court and los[t], his
claim will be barred in federal court. The federal claim
dies aborning.” Knick, 139 S.Ct. at 2167. Here, the Petitioners’ ability to receive relief from the unconstitutional condition that resulted in the denial of their
requests to subdivide their lots is similarly hamstrung
by the decision of the Eighth Circuit limiting their
25
cause of action to only a takings claim. This is inappropriate because no taking has ever occurred and the sole
remedy for a takings, just compensation, cannot adequately readdress their injuries. The Eighth Circuit’s
reliance on Knick emphasizes the importance of the
Court finding that the Petitioners’ cause of action is a
stand-alone cause of action for a violation of the unconstitutional conditions doctrine.
E. The Eighth Circuit incorrectly viewed
Nollan, Dolan, and Koontz as takings
cases, thereby improperly ignoring Petitioners’ claim of an unconstitutional
condition created by the Dedication
Ordinance.
In the present case, the Eighth Circuit committed
a reversible error by incorrectly viewing Nollan, Dolan,
and Koontz as operating solely under the Takings
clause and ignoring the Petitioners’ claim that the proposed Ward County Dedication Ordinance created an
unconstitutional condition. App. 4. A taking never occurred for the Petitioners because they refused the
dedication condition and were denied the permit. App.
16, 18. The Petitioners subsequently and clearly raised,
among other things, that the Dedication Ordinance
created an unconstitutional condition. App. 4. While
the Eighth Circuit acknowledged that the Petitioners
raised both a due process claim and an unconstitutional conditions claim, the Court then chose not to review the merits of that claim. Id. The Eighth Circuit
justified this by citing to Lingle because it stood for the
26
concept “that a substantive due process inquiry has ‘no
proper place’ in Takings doctrine. . . . ” Id. citing Lingle,
544 U.S. at 540, 546-548. Ironically, in the same sentence, the Eighth Circuit also quoted Lingle’s statement that Nollan and Dolan are special applications of
unconstitutional conditions doctrine for takings. App.
4. In turn, the Eighth Circuit dismissed the Petitioners’ claim that the Dedication Ordinance created an
unconstitutional condition because the Petitioners
failed to raise a takings claim in their pleadings. App.
5 (stating “Plaintiffs thus have a remedy for unconstitutional exactions under the Takings clause,” and
reasoning that therefore a claim challenging an unconstitutional exaction under any other legal theory is improper.).
While the Eighth Circuit’s ruling is understandable given the widespread misconception that Nollan,
Dolan, and Koontz were takings cases rather than unconstitutional conditions cases, as explained above,
this is a plain error because this Court has stated that
illegal exactions create an unconstitutional condition
rather than initiating a claim for a taking without just
compensation. Dolan, 512 U.S. at 385; Lingle, 544 U.S.
at 547-548; Koontz, 570 U.S. at 604. Further, this
Court’s ruling in Koontz stating that an illegal exaction
can be challenged before property is ever taken shows
that an unconstitutional conditions claim rather than
a takings claim is the proper challenge because a physical taking never actually occurs. See Koontz, 570 U.S.
at 606.
27
The adequate remedy for a Nollan/Dolan
unconstitutional conditions violation should
be injunctive relief as is generally acknowledged to be the appropriate remedy
for unconstitutional conditions violations.
II.
The Supreme Court has not yet determined the
adequate remedy for an unconstitutional condition
that is required as a condition of a land-use permitting
decision but prior to a Fifth Amendment takings.
Koontz, 570 U.S. at 609. The Court should resolve this
gap and find the proper remedy, at least when the unconstitutional condition is the relinquishment of real
property, to be injunctive relief as suggested by Justice
Kagan’s dissent in Koontz. Id. at 620 (Kagan, J., dissenting) (“[W]hen the government denies a permit
because an owner has refused to accede to that same
demand, nothing has actually been taken. The owner
is entitled to have the improper condition removed. . . .”) As in Koontz, the issue of remedies was
not directly addressed by the Nollan or Dolan Courts,
however, Justice Kagan’s dissent is consistent with
the remedy for unconstitutional conditions which
these cases seem to imply.6 As noted above, just compensation is the appropriate remedy only when the
government actions resulting in a taking are proper or
legitimate. See First English Evangelical Lutheran
6
Scholars have pointed to treatises and Supreme Court
cases as support for the adoption of injunctive relief invalidating
the condition as the remedy for Nollan/Dolan unconstitutional
conditions violations. See Scott Woodward, The Remedy for a
“Nollan/Dolan Unconstitutional Conditions Violation,” 38 VT. L.
REV. 701, 709 n. 55, 710 n. 56 (2014).
28
Church of Glendale, 482 U.S. at 315; Larson, 337 U.S.
at 697 n. 18. However, a Nollan/Dolan unconstitutional condition is per se an illegitimate exercise of the
government’s power which makes equitable relief in
the form of an injunction appropriate.
The constitutional harm that occurs when a permit is denied because of a Nollan/Dolan unconstitutional condition cannot be remedied through just
compensation when no taking has occurred. The invalidation of the condition is the appropriate remedy here
as supported by Nollan where the Court acknowledged
that if the Commission wanted to pursue a comprehensive program for access to the beach, the proper avenue
was through use of eminent domain and not the attempted unconstitutional condition placed on permit
applications. See Nollan, 483 U.S. at 841-842. The Dolan Court went further by expressly invoking the unconstitutional conditions doctrine with no caveat that
just compensation would make the condition permissible. Dolan, 512 U.S. at 385 (“the government may not
require a person to give up a constitutional right – here
the right to receive just compensation when property
is taken for a public use – in exchange for a discretionary benefit conferred by the government where the
benefit sought has little or no relationship to the property.”) (citing Perry v. Sindermann, 408 U.S. 593 (1972),
overruled in part on other grounds by Rust v. Sullivan,
500 U.S. 173 (1991); Pickering v. Board of Educ. of
Township High School Dist. 205, Will Cty., 391 U.S.
563, 568 (1968)).
29
As the Supreme Court has anchored the constitutional violation at issue in Nollan, Dolan, and Koontz,
to the unconstitutional conditions doctrine, the appropriate remedy for a Nollan/Dolan unconstitutional violation should be commensurate to the remedy for
other unconstitutional condition cases. This approach
was advocated for in the dissent to the 2009 Koontz appellate opinion:
In [Perry and Pickering], the litigation simply
invalidated the condition. To say that an
agency’s imposition of a condition on the discretionary grant of a permit to develop real
property necessarily “takes” the property until the condition is removed is illogical. If an
agency imposes an unconstitutional condition
on public employment that deprives a person
of his right of free association or free speech,
the invalidation of the condition does not require that the government employ, or continue
in employment, anyone who was burdened by
the condition. The unconstitutional condition
is simply removed and the individual may or
may not be hired or continued in employment
based on constitutional criteria. By imposing
an unconstitutional condition, the agency did
not “take” the job.
St. Johns River Water Mgmt. Dist. v. Koontz, 5 So.3d 8,
18 (Fla. Dist. Ct. App., 2009) (Griffin, J., dissenting).
In Perry, relied upon by both the Dolan and Koontz
Courts when defining the unconstitutional condition
at issue in the land-use context, Sindermann was a
teacher under a one-year contract who became
30
involved in a public dispute with the college’s Board of
Regents. Perry, 408 U.S. at 594-595. When the one-year
contract expired, the Board of Regents voted not to offer the teacher a new contract, and while they issued a
public statement alleging insubordination, the teacher
was not provided an official statement of reasons or
hearing to challenge the decision. Id. at 595. The Perry
Court endorsed the Court’s previous, clear direction
that the government “may not deny a benefit to a person on a basis that infringes on his constitutionally
protected interests . . . [because] his exercise of those
freedoms would in effect be penalized and inhibited . . .
[and] such interference with constitutional rights is
impermissible.” Id. at 597. The Court reaffirmed that
nonrenewal of a nontenured teaching contract “may
not be predicated on his exercise of First and Fourteenth Amendment rights.” Id. at 598 (emphasis added).
The Perry Court could not determine if the teaching contract had in fact been terminated on impermissible grounds because the District Court granted
summary judgment which precluded full consideration
of the issue. Id. at 598. However, it found that summary judgement without full exploration of the issue
was improper because “there is a genuine dispute as to
‘whether the college refused to renew the teaching contract on an impermissible basis – as a reprisal for the
exercise of constitutionally protected rights.’ ” Id. at
598. Accordingly, the Perry Court remanded the case
for a full hearing on this issue. Id. at 603. The Perry
Court did not state what would occur if on remand it
was determined that the nonrenewal of the contract
31
was predicated on the unconstitutional condition, however, the subsequent case of Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle made clear that Sindermann
could be reinstated if the “decision not to rehire him
was made by reason of his exercise of constitutionally
protected First Amendment freedoms.” Mount Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283284 (1977). In Mount Healthy City Sch. Dist. Bd. of
Educ., the Court found that once it is determined that
the unconstitutional condition was the basis of the decision, consideration of the unconstitutional condition
is prohibited and the decision can only stand if supported by entirely constitutional bases. See id. at 287.
Stated another way, unconstitutional conditions must
be invalidated, and government actions can only stand
if supported purely by constitutional bases.
Indeed, governmental attempts to impose unconstitutional conditions have been invalidated to protect
a broad array of constitutional rights. See Scott Woodward, The Remedy for a “Nollan/Dolan Unconstitutional Conditions Violation,” 38 VT. L. REV. 701, 717
n. 92 (2014).7 The Court has further found that
7
See, e.g., Fed. Commc’n Comm’n v. League of Women Voters
of Cal., 468 U.S. 364, 402 (1984) (invalidating § 399 of the Public Broadcasting Act because it imposed the condition to refrain
from “editorializing” on non-commercial educational broadcasters
in exchange for public grants); Thomas v. Review Bd. of Ind.
Emp’t Sec. Div., 450 U.S. 707, 717-718, 720 (1981) (invalidating a
denial of unemployment benefits conditioned on foregoing religious exercise); Sherbert v. Verner, 374 U.S. 398, 404-406 (1963)
(invalidating a denial of unemployment benefits conditioned on
forgoing religious exercise) [(Abrogated by Holt v. Hobbs, 135
S.Ct. 853 (2015))]; Lefkowitz v. Turley, 414 U.S. 70, 84-85 (1973)
32
invalidating an unconstitutional condition is an appropriate remedy even if the threatened unconstitutional
condition has not yet happened. See Agency for Int’l
Dev., 570 U.S. 205. Thus, affirmatively holding that
invalidation of an unconstitutional condition in the
context of a Nollan/Dolan unconstitutional condition
violation is the appropriate remedy is supported by the
lineage of the unconstitutional conditions doctrine
cases and is further well within the authority of this
Court.
It has long been established that federal courts
have broad powers to grant equitable relief for constitutional violations. Carlson v. Green, 446 U.S. 14, 42
(1980) (Rehnquist, J., dissenting). Equitable relief has
been found appropriate when there is a continuing
violation of constitutional rights. See Johnson v. Wells
(invalidating a New York law conditioning continuance and renewal of state contracts on requirement to surrender right to refuse self-incrimination in proceedings related to state contracts);
Shapiro v. Thompson, 394 U.S. 618, 631 (1969) (invalidating one
year residency condition imposed on welfare recipients before being able to apply for benefits) [(Partially overruled on other
grounds by Edelman v. Jordan, 415 U.S. 651 (1974))]; Gomillion
v. Lightfoot, 364 U.S. 339, 347-348 (1960) (invalidating under the
Fifteenth Amendment state redistricting that effectively made it
a condition to be white in order to vote within the boundaries of
Tuskegee); Wieman v. Updegraff, 344 U.S. 183 (1952) (invalidating an Oklahoma law requiring state employees to take an oath
that the employee was not or had not been a member of the
Communist Party on condition of state employment); Bailey v.
Alabama, 219 U.S. 219, 244-245 (1911) (invalidating an Alabama
statute imposing what amounted to indentured servitude in violation of the Thirteenth Amendment where a debtor failed to pay
a debt on a labor contract).
33
Fargo & Co., 239 U.S. 234, 244 (1915) (“Such continuing violation of constitutional rights might afford a
ground for equitable relief.”) (citations omitted); see
also Swann v. Charlotte-Mcklenburg Bd. of Educ., 402
U.S. 1, 15 (1971) (“Once a right and a violation have
been shown, the scope of a district court’s equitable
powers to remedy past wrongs is broad, for breadth
and flexibility are inherent in equitable remedies.”). As
described above, the Court’s recent decision in Knick
has made it more important than ever for this Court to
clearly distinguish a Nollan/Dolan unconstitutional
conditions violation from a takings claim because of
the clearly disparate remedies available. See supra
pp. 23-25 of this Petition.
Unlike in Knick or in a true takings case, injunctive relief is the appropriate remedy here because
there is no “adequate provision” for the Petitioners to
obtain just compensation. The Dedication Ordinance
uniformly applies to all requests for subdivisions and
outlots. App. 11. The Ward County Dedication Ordinance does not provide for, and in fact explicitly prohibits, the consideration of any individualized
determination of the nexus or rough proportionately
between the required dedications and the impacts to
the public. App. 11-13. This is a textbook example of
an unconstitutional condition where the Petitioners’
subdivision requests were denied only because they
refused to agree to dedicating their private property
as the Respondents did not and could not show the
required dedications were in conformance with the
Nollan and Dolan standards. Accordingly, there were
34
no takings in the case at bar and therefore no avenue
for the Petitioners to receive just compensation. However, there was a violation of the unconstitutional
conditions doctrine for which invalidation of the condition, either through injunctive relief prohibiting the
enforcement of the Dedication Ordinance, injunctive
relief prohibiting denial of Petitioner Pietsch’s and
Irwin’s subdivision requests based on the Dedication
Ordinance, or both, is the adequate and properly tailored remedy.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons, the Court should grant
a writ of certiorari.
Respectfully submitted,
KAREN BUDD-FALEN
BUDD-FALEN LAW OFFICES L.L.C.
P.O. Box 346
300 East 18th Street
Cheyenne, Wyoming 82003
Karen@buddfalen.com
307-632-5105
Fax 307-637-3891
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