Amicus Curiae Brief — Ariyan Incorporated, dba Discount Corner, et al., Petitioners v. Sewerage & Water Board of New Orleans, et al.

No. 22-52

In the Supreme Court of the United

States

ARIYAN INCORPORATED, DOING BUSINESS AS DISCOUNT

CORNER, et al.,

Petitioners,

v.

SEWERAGE & WATER BOARD OF NEW ORLEANS, et al.,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the

Fifth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JEFFREY H. REDFERN

Counsel of Record

ROBERT MCNAMARA

901 Glebe Road, Suite 900

Arlington, VA 22203

Telephone: (703) 682-9320

jredfern@ij.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

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

INTRODUCTION AND SUMMARY

OF ARGUMENT ................................................... 2

ARGUMENT .............................................................. 3

A. “Just compensation” has always meant

contemporaneous cash payment—not a

paper promise .................................................. 3

B. This Court in Knick confirmed that the

Fifth Amendment requires immediate

compensation when property is taken ............ 7

C. Even before Knick, there was no legal

basis for dismissing this claim ...................... 10

D. The Supremacy Clause requires that

federal courts remedy Petitioners’

Fifth Amendment rights—lest federal

constitutional rights be left at the mercy

of state legislatures ....................................... 12

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

ii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Baker v. City of McKinney,

No. 4:21-CV-00176,

2022 WL 2068257 (E.D. Tex. Apr. 29, 2022) ........ 1

Bowman v. Middleton,

1 S.C.L. (1 Bay) (S.C. Ct. Common Pleas 1792)... 6

Broughton Lumber Co. v. Yeutter,

939 F.2d 1547 (Fed. Cir. 1991) ........................... 10

Carousel Farms Metro. Dist. v. Woodcrest

Homes, Inc., 442 P.3d 402 (Colo. 2019) ................ 2

Casino Reinvestment Dev. Auth. v. Birnbaum,

203 A.3d 939

(N.J. Super. Ct. App. Div. 2019) ...................... 1, 2

City of Norwood v. Horney,

853 N.E.2d 1115 (Ohio 2006) ................................ 1

Crozier v. Krupp A.G.,

224 U.S. 290 (1912) ........................................... 8, 9

De Laureal Eng’rs, Inc. v. St. Charles Par.

Police Jury, 406 So. 2d 770

(La. Ct. App. 1981) .............................................. 13

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ....... 10

iii

TABLE OF AUTHORITIES—continued

PAGE(S)

Freeman Decorating Co. v. Encuentro Las

Americas Trade Corp., No. CV 02-2103,

2008 WL 4922072 (E.D. La. Nov. 12, 2008),

aff’d, 352 Fed. Appx. 921 (5th Cir. 2009) ........... 14

Gardner v. Village of Newburgh,

2 Johns. 162 (N.Y. Ch. 1816) ................................ 6

Hampton v. City of Chicago,

484 F.2d 602 (7th Cir. 1973) ............................... 12

Haywood v. Drown,

556 U.S. 729 (2009) ............................................. 15

Hooper v. Burgess (Md. Provincial Ct. 1670),

reprinted in 57 Archives of Md.,

Proceedings of the Provincial Court

1666-1670 (J. Hall Pleasants ed., 1940) ............... 6

Howlett v. Rose,

496 U.S. 356 (1990) ....................................... 12, 15

Jacobs v. United States,

290 U.S. 13 (1933) ............................................... 10

Jazz Casino Co. v. Bridges,

223 So. 3d 488 (La. 2017).................................... 13

Kelo v. City of New London,

545 U.S. 469 (2005) ............................................... 1

iv

TABLE OF AUTHORITIES—continued

PAGE(S)

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019) ................... 3, 7, 8, 9, 10, 11

Little Rock Junction Ry. v. Woodruff,

5 S.W. 792 (Ark. 1887) .......................................... 4

Martinez v. California,

444 U.S. 277 (1980) ............................................. 12

Newman Marchive P’ship, Inc. v. City of Shreveport,

979 So. 2d 1262 (La. 2008) .................................. 13

San Remo Hotel, L.P. v. City & Cnty. of San

Francisco,

545 U.S. 323 (2005) ............................................. 11

Scarbrough v. Simpson,

No. CV 04-812-C-M3,

2006 WL 8432552 (M.D. La. Feb. 6, 2006),

report and recommendation adopted, 2006

WL 8432695 (M.D. La. Feb. 27, 2006)................ 14

Seaboard Air Line Ry. Co. v. United States,

261 U.S. 299 (1923) ......................................... 8, 10

Violet Dock Port Inc. v. Heaphy,

No. 19-CV-11586, 2019 WL 6307945

(E.D. La. Nov. 25, 2019) .................................. 3, 14

v

TABLE OF AUTHORITIES—continued

PAGE(S)

Violet Dock Port, Inc. v. Heaphy,

No. 19-30922, 2020 WL 9848394

(5th Cir. Dec. 29, 2020) ............................... 2, 3, 17

Vogt v. Bd. of Comm’rs of Orleans Levee Dist.,

814 So. 2d 648 (La. Ct. App. 2002) ..................... 13

Vogt v. Bd. of Comm’rs of Orleans Levee Dist.,

294 F.3d 684 (5th Cir. 2002) ......................... 15, 16

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

Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ............................................. 11

Young v. McKenzie,

3 Ga. 31 (1847) ...................................................... 6

STATUTES

42 U.S.C. § 1983 ................................................. 10, 12

42 U.S.C. § 1985(3) ................................................... 12

CONSTITUTIONAL PROVISIONS

La. Const. art. XII, § 10(A)....................................... 13

La. Const. art. XII, § 10(C)....................................... 13

vi

TABLE OF AUTHORITIES—continued

PAGE(S)

RULES

Sup. Ct. R. Rule 37.6 .................................................. 2

OTHER AUTHORITIES

1 William Blackstone, Commentaries ....................... 4

A.E. Dick Howard,

Magna Carta: Text and Commentary (1964) ....... 6

Christine Desan, Making Money: Coin, Currency,

and the Coming of Capitalism (2014) .................. 5

J.C. Holt, The Ancient Constitution in Medieval

England, in The Roots of Liberty: Magna Carta,

Ancient Constitution, and the Anglo-American

Tradition of Rule of Law

(Ellis Sandoz ed., 1993) ........................................... 6

Lee Hargrave, “Statutory” and “Hortatory”

Provisions of the Louisiana Constitution of

1974, 43 LA. L. REV. 647 (1983) .......................... 12

Raymond J. Nhan, Minimalist Solution to

Williamson County, 28 DUKE ENV’T L. &

POL’Y F. 73 (2017)................................................ 11

vii

TABLE OF AUTHORITIES—continued

PAGE(S)

William Sharp McKechnie, Magna Carta:

A Commentary on the Great Charter of

King John, with an Historical Introduction

(1914) ..................................................................... 4

BRIEF OF INSTITUTE FOR JUSTICE AS AMICUS CURIAE IN SUPPORT OF PETITIONERS1

INTEREST OF THE AMICUS CURIAE

Founded in 1991, the Institute for Justice (IJ) is a

nonprofit, public-interest legal center dedicated to defending the essential foundations of a free society: private property rights, economic and educational liberty, and the free exchange of ideas. As part of that

mission, IJ has litigated cases defending individuals’

property rights under the Fifth Amendment’s Takings

Clause. Among the cases that IJ has litigated are Kelo

v. City of New London, 545 U.S. 469 (2005), in which

this Court held that the U.S. Constitution allows government to take private property and give it to others

for purposes of “economic development,” and City of

Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006), in

which the Ohio Supreme Court expressly rejected

Kelo and held that the Ohio Constitution provides

greater protection for private property than does the

U.S. Constitution.

IJ continues to litigate important statutory and

constitutional questions in takings cases around the

country, both as counsel for property owners and as

amicus curiae. Recent IJ Fifth Amendment cases include a victory in the Eastern District of Texas, see

Baker v. City of McKinney, No. 4:21-CV-00176, 2022

WL 2068257, at *15 (E.D. Tex. Apr. 29, 2022), a victory in the New Jersey Appellate Division, see Casino

1 In accordance with Rule 37.6, the Institute for Justice affirms

that no counsel for a party authored this amicus brief in whole

or in part and that no person other than the Institute for Justice,

its members, or its counsel have made any monetary contributions intended to fund the preparation or submission of this brief.

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

2

Reinvestment Dev. Auth. v. Birnbaum, 203 A.3d 939

(N.J. Super. Ct. App. Div. 2019) an appearance as

amicus curiae (where IJ was invited to participate in

oral argument) in the Colorado Supreme Court. See

Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc.,

442 P.3d 402 (Colo. 2019). IJ also filed an amicus brief

in Violet Dock Port, Inc. v. Heaphy, No. 19-30922, 2020

WL 9848394 (5th Cir. Dec. 29, 2020) a case recently

before the Fifth Circuit with very similar facts to the

case at hand. That case was settled before a decision

was issued.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Fifth Amendment’s terms are plain: “nor

shall private property be taken for public use, without

just compensation.” Here, a Louisiana state court held

that Petitioners’ property has been damaged to the

point of a “taking” without just compensation. That

holding is binding on the parties and not subject to

further dispute. It is also undisputed that Petitioners

have still not been compensated. That establishes an

ongoing violation of the Fifth Amendment that federal

courts are empowered to remedy. The issue really is

that simple.

The Fifth Circuit’s decision to the contrary is

based on the mistaken notion that once a property

owner obtains a favorable judgment in state court, the

owner’s Fifth Amendment rights are extinguished and

replaced by the state judgment. And if that judgment

is, as a matter of state law, unenforceable, that’s just

tough luck because “there is no property right to

timely payment on a judgment.” App. A-2.

That is wrong, as a matter of both history and

precedent. A central purpose of the Takings Clause

3

was to enshrine a rule that dates back to Magna

Carta: that takings of private property must be paired

with contemporaneous cash payments rather than unenforceable IOUs. Indeed, as recently as 2019, the Supreme Court of the United States confirmed in Knick

v. Township of Scott, 139 S. Ct. 2162 (2019), that a

property owner’s injury begins the moment his property is taken and continues until it is remedied by the

payment of just compensation.

But even before Knick, there was no question that

a property owner whose property had been taken, but

who (like Petitioners) had no available state remedy

to compel compensation, had a ripe takings claim under the Fifth Amendment. The Supremacy Clause demands that this Court confirm the availability of a

federal remedy here because otherwise states will be

able to effectively immunize their officers and political

subdivision from liability for violations of federal

rights.

ARGUMENT

A. “Just compensation” has always meant

contemporaneous cash payment—not a paper promise.

The decision below held that Petitioners have no

Fifth Amendment claim because a mere “failure to

timely pay” a judgment cannot give rise to a Fifth

Amendment violation. App. A-8; see also Violet Dock

Port Inc. v. Heaphy, No. 19-CV-11586, 2019 WL

6307945 (E.D. La. Nov. 25, 2019). But this holding

and its predecessor in Violet Dock Port are aberrations

directly contradicted by 800 years of precedent, dating

back to Magna Carta.

The just-compensation requirement dates back at

least to the signing of Magna Carta in 1215. Among

4

the grievances of the barons who compelled King John

to sign Magna Carta was the King’s abuse of the royal

prerogative of “purveyance.” Purveyance was, as

Blackstone explained, the right of the king to “bu[y]

up provisions and other necessaries * * * at an appraised valuation, in preference to all others, and even

without consent of the owner.” 1 William Blackstone,

Commentaries *277. In other words, purveyance was

a species of what we now call eminent domain. See

Little Rock Junction Ry. v. Woodruff, 5 S.W. 792, 793

(Ark. 1887) (“[Eminent domain] bears a striking analogy to the king’s ancient prerogative of purveyance,

which was recognized and regulated by the twentyeighth section of magna charta.”).

This prerogative was important to English kings

because the royal court in John’s time was “very frequently” “removed from one part of the kingdom to another.” 1 Blackstone *277. The king’s right to purchase provisions at market rates ensured “that the

work of government should not be brought to a standstill for want of supplies.” William Sharp McKechnie,

Magna Carta: A Commentary on the Great Charter of

King John, with an Historical Introduction 330

(1914).

At the time of Magna Carta, there was no dispute

that the king and his deputies were obligated to pay

for the provisions they took. But controversy arose because “[p]ayment was often indefinitely delayed or

made not in coin but in exchequer tallies.” McKechnie

at 330. Exchequer tallies were sticks used to memorialize royal debts owed to particular subjects. Marks

would be made along the length of the stick to record

the size of the debt, and then the stick would be split

lengthwise. Each half of the stick would contain a portion of all of the lines, and because of irregularities in

5

the wood, the sticks were difficult to forge. Each party

would keep half of the stick; those halves later could

be matched up to prove their authenticity. See Christine Desan, Making Money: Coin, Currency, and the

Coming of Capitalism 175–85 (2014).

The problem with exchequer tallies was that they

were less transferable than coins. It was difficult or

impossible to prove to potential transferees that one

half of a stick actually conformed to another half held

by the Exchequer. So, in practice, exchequer tallies’

primary use was to offset the creditor’s future taxes.

Ibid. In that regard, those exchequer tallies bear a

striking resemblance to the paper judgments issued

by the Louisiana trial court in this case. Neither has

any real value except to offset possible future debts to

the condemnor.

King John’s barons were so dissatisfied with this

state of affairs that they included several clauses in

Magna Carta specifically addressing the issue of purveyance. Most notably, Clause 28 provided (in translation) that “[n]o constable or other bailiff of ours shall

take corn or other provisions from any one without immediately tendering money therefor, unless he can

have postponement thereof by permission of the

seller.” (emphasis added). The purpose of this clause

was not to establish that the King had to pay for what

he took. Even King John didn’t dispute that. It was to

establish that he had to pay cold, hard cash—IOUs

wouldn’t cut it—and he had to pay immediately. It is

no exaggeration to say that the Fifth Circuit’s opinion,

by holding that “just compensation” need be no more

than an unenforceable promise to pay at some point

in the future, would turn back the clock over 800

years.

6

This basic principle of just compensation has been

reaffirmed countless times in the centuries since.

Magna Carta was reissued in England four times—by

Henry III in 1216, 1217 and 1225, and by Edward I in

1297. A.E. Dick Howard, Magna Carta: Text and Commentary 24 (1964). And Magna Carta was confirmed

by parliaments at least fifty more times by 1422. J.C.

Holt, The Ancient Constitution in Medieval England,

in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of

Law 55 (Ellis Sandoz ed., 1993).

American courts over the centuries also affirmed

their commitment to Magna Carta’s just-compensation principle, even before independence and the incorporation of the Fifth Amendment against the

states. See, e.g., Hooper v. Burgess (Md. Provincial Ct.

1670), reprinted in 57 Archives of Maryland, Proceedings of the Provincial Court 1666-1670, at 571, 574 (J.

Hall Pleasants ed., 1940) (holding that an uncompensated seizure of cattle was “Contrary to the Act of Parliamt of Magna Charta” and awarding the plaintiff

compensation of “Forty Five Thousand Nyne Hundred

& Fifty poundes of Tobaccoe”); Bowman v. Middleton,

1 S.C.L. (1 Bay) 252, 252 (S.C. Ct. Common Pleas

1792) (declaring that it would be “against common

right, as well as against Magna Charta, to take away

the freehold of one man, and vest it in another * * *

without any compensation”); Gardner v. Village of

Newburgh, 2 Johns. 162, 166 (N.Y. Ch. 1816) (striking

down a law that failed to provide for just compensation as inconsistent with the “ancient and fundamental maxim of common right to be found in Magna

Charta” and holding that compensation must be made

“previous[]” to the taking); Young v. McKenzie, 3 Ga.

31, 41–45 (1847) (holding that the just-compensation

principle dates to Magna Carta and is an inherent

7

limit on the power of all governments, regardless of

whether their constitutions contain an explicit justcompensation clause). The just-compensation principle—which includes the requirement of immediate

cash payment—is one of the oldest and most firmly

established rights protected by the Constitution.

B. This Court in Knick confirmed that the

Fifth Amendment requires immediate

compensation when property is taken.

In 2019, this Court explained that the Fifth

Amendment means precisely what it says: “‘[N]or

shall private property be taken for public use, without

just compensation.’ It does not say: ‘Nor shall private

property be taken for public use, without an available

procedure that will result in compensation.’” Knick,

139 S. Ct. at 2170. Still less does the Fifth Amendment say what the Fifth Circuit implicitly held: “nor

shall private property be taken for public use, without

a totally unenforceable promise of future payment.”

This Court in Knick went even further by explicitly clarifying when just compensation is due. Echoing

Magna Carta, this Court held that “a property owner

has a Fifth Amendment entitlement to compensation

as soon as the government takes his property without

paying for it.” Ibid. Yet the decision below inexplicably

rejects Knick by holding that, “a government's failure

to timely pay a court judgment [does not] constitute[]

a taking,” even when that judgment was itself for a

Fifth Amendment takings claim. App. A-9.

That analysis gets the question backwards. The

Fifth Amendment injury is not caused by the condemnor’s delay in paying the judgment. The Fifth Amendment injury is caused by the condemnor’s taking of

8

Petitioner’s property.2 The taking is the injury, and

the compensation (assuming the taking is otherwise

lawful) is the remedy. The delay in payment simply

means that the claim that arose at the moment of the

taking has not been remedied. See Knick, 139 S. Ct.

at 2171 (“The fact that the State has provided a property owner with a procedure that may subsequently

result in just compensation cannot deprive the owner

of his Fifth Amendment right to compensation under

the Constitution, leaving only the state law right.”).

Admittedly, some older Supreme Court cases have

held that contemporaneous payment is not always required so long as compensation is “reasonably just and

prompt.” Crozier v. Krupp A.G., 224 U.S. 290, 306

(1912). But this Court in Knick explained that those

cases had been read “too broadly,” and that “[t]hey

concerned requests for injunctive relief, and the availability of subsequent compensation [in those cases]

meant that such an equitable remedy was not available.” Knick, 139 S. Ct. at 2175. In other words, these

cases mean that courts will generally not enjoin a taking of property because it is uncompensated so long as

the compensation is forthcoming. They do not negate

the longstanding rule that under the Fifth Amendment compensation is due at the moment of the taking. Cf. Seaboard Air Line Ry. Co. v. United States,

261 U.S. 299, 305–06 (1923) (holding that if payment

is delayed, it must be made with interest from the

date of the taking).

2 In the context of this case, “taking” means the Sewerage and

Water Board’s damage to and interference with Petitioners’ property. Although the Fifth Circuit stated, erroneously, that the

judgments below were not for Fifth Amendment claims, it ultimately held that it did not matter what kind of claims were at

issue. App. A-7.

9

Regardless of the continuing validity of the dicta

in cases like Crozier, this case concerns payment that

is neither just nor prompt. Rather, the position of the

Sewerage & Water Board of New Orleans (SWB) is

that it will not pay and cannot be made to pay any

compensation for the property it damaged. But the

U.S. Constitution says the SWB must pay, and a federal court is empowered to remedy that constitutional

violation by compelling payment.

The Fifth Circuit insists that Knick concerned

only “when a plaintiff may file a Takings Clause claim

in federal court.” App. A-8. While conceding that, under Knick, Petitioners are not barred from federal

court by ripeness concerns, the Fifth Circuit nevertheless holds that they cannot state a claim on the merits,

for no apparent reason other than that they have already prevailed in state court.

This leads to an utterly irrational result: Under

the Fifth Circuit’s reading of Knick, a property owner

can file a federal claim immediately upon having his

property taken (without just compensation), and if he

prevails, he can enforce that judgment. But a similarly situated property owner who litigated and prevailed in state court is stuck with an unenforceable

paper judgment. Both property owners had un-remedied Fifth Amendment rights, but one of them is unable to obtain compensation, simply because a state

court has affirmed that a constitutional taking occurred and calculated the value of the property. This

seems counterintuitive. And in fact, it’s not what

Knick says.

10

C. Even before Knick, there was no legal basis

for dismissing this claim.

Knick makes this case particularly easy, but

Knick is not necessary to the outcome of this case. To

the contrary, property owners in Petitioners’ circumstances have always been entitled to a federal remedy.

While

this

case

was

brought

under

42 U.S.C. 1983, this Court has long recognized “the

self-executing character of the [Fifth Amendment]

with respect to compensation.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (internal quotation

marks omitted). As this Court put it, the right to sue

for just compensation:

rest[s] upon the Fifth Amendment. Statutory

recognition [i]s not necessary. A promise to

pay [i]s not necessary. Such a promise [i]s implied because of the duty to pay imposed by

the amendment. The suits [are] thus founded

upon the Constitution of the United States.

Jacobs v. United States, 290 U.S. 13, 16 (1933); see

also Seaboard Air, 261 U.S. at 304 (“Just compensation is provided for by the Constitution and the right

to it cannot be taken away by statute. Its ascertainment is a judicial function.”). Historically, Congress

could channel just compensation claims to particular

courts, see, e.g., Broughton Lumber Co. v. Yeutter, 939

F.2d 1547, 1557 (Fed. Cir. 1991), but it could not otherwise qualify or limit the right.

In 1985, the Supreme Court modified this state of

affairs as it applied to state and local defendants. Reasoning that an uncompensated taking had not occurred until the government refused to pay a claim,

the Supreme Court held that plaintiffs must first

11

exhaust their state remedies—including judicial remedies such as inverse-condemnation suits—before

bringing takings claims in federal court. Williamson

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

Johnson City, 473 U.S. 172, 195 (1985) (“the property

owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been

denied just compensation”), overruled by Knick, 139 S.

Ct. at 2167.

But even under Williamson County, nothing

would have stood in the way of property owners like

Petitioners. They have done exactly what Williamson

County demanded: They exhausted their state court

remedies, and the defendant still refuses to pay. That

would have cleared the road for this federal just-compensation suit with or without the Supreme Court’s

decision in Knick.

The interplay between Williamson County, which

required exhaustion of state remedies, and the later

case of San Remo Hotel, L.P. v. City & County of San

Francisco, 545 U.S. 323, 347 (2005), which clarified

that ordinary preclusion principles applied to state

court eminent domain cases, created what some practitioners referred to as the “San Remo trap.” See, e.g.,

Raymond J. Nhan, Minimalist Solution to Williamson

County, 28 DUKE ENV’T L. & POL’Y F. 73, 77 (2017).

Takings plaintiffs were required to file first in state

court in order to ripen their federal claims, but if they

lost, their claims were extinguished at the moment

that they ripened, so federal court review was effectively unavailable. Yet there are cases, such as the

present one, where plaintiffs were able to steer a

course between Williamson County and San Remo.

Here, the state-court litigation resulted in determinations that there were takings, as well as assessments

12

of damages, so ordinary preclusion principles actually

favor the Petitioners. This case therefore presents an

instance in which federal litigation subsequent to

state-court takings proceedings is not only possible

but affirmatively necessary.

D. The Supremacy Clause requires that federal courts remedy Petitioners’ Fifth

Amendment rights—lest federal constitutional rights be left at the mercy of state

legislatures.

The Fifth Circuit’s holding is not only antithetical

to the Takings Clause, but also to our system of federalism. Under the Supremacy Clause, states cannot

immunize otherwise liable state officials or political

subdivisions from federal liability. Howlett v. Rose,

496 U.S. 356, 360 (1990) (“[A] State cannot immunize

an official from liability for injuries compensable under federal law.” (citing Martinez v. California, 444

U.S. 277 (1980))); Hampton v. City of Chicago, 484

F.2d 602, 607 (7th Cir. 1973) (“Conduct by persons acting under color of state law which is wrongful under

42 U.S.C. § 1983 or § 1985(3) cannot be immunized by

state law.”). That is exactly what the government is

attempting to do here—albeit in a roundabout way.

The effect of rejecting a federal remedy here would be

to hold federal constitutional rights captive to a state

law immunity.

The Louisiana Constitution’s anti-seizure provision is a creature of compromise. When Louisiana

overhauled its Constitution in 1974, the framers

wanted to abolish governmental immunity in a limited capacity. Lee Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution of 1974,

43 LA. L. REV. 647, 653–57 (1983). They amended the

Constitution to abolish immunity “in contract or for

13

injury to person or property.” La. Const. art. XII,

§ 10(A). But then as a backend balancing provision,

they added that “no public property or public funds

shall be subject to seizure” and that judgments

against state governmental entities must be paid from

funds appropriated by the “legislature or by the political subdivision against which the judgment is rendered.” La. Const. art. XII, § 10(C). Louisiana courts

have interpreted this provision to mean that only the

state legislature or a political subdivision—not the

courts—can execute judgments against Louisiana

governmental entities. Newman Marchive P’ship, Inc.

v. City of Shreveport, 979 So. 2d 1262, 1265 (La. 2008).

And the decision whether to appropriate funds to pay

a judgment is “discretionary” rather than “ministerial.” De Laureal Eng’rs, Inc. v. St. Charles Par. Police

Jury, 406 So. 2d 770, 772 (La. Ct. App. 1981).

Predictably, Louisiana’s anti-seizure provision

has functionally operated as an immunity. Louisiana

courts have repeatedly held that they cannot enforce

monetary judgments—including takings judgments—

against government defendants. Vogt v. Bd. of

Comm’rs of Orleans Levee Dist., 814 So. 2d 648, 656

(La. Ct. App. 2002) (“This court recognizes and sympathizes with plaintiffs’ plight in getting a judgment

against the State or political subdivision satisfied.

Nonetheless, this court is without constitutional or

statutory authority to compel the Levee Board to pay

the judgment rendered against it.”); see also Jazz Casino Co. v. Bridges, 223 So. 3d 488, 496 (La. 2017). And

when they can’t be forced to pay and there are no consequences for not paying, many government defendants simply refuse to pay, as the SWB is doing here.

Others use the anti-seizure provision as leverage;

one Louisiana jurisdiction has simply adopted a policy

14

of never paying tort judgments “unless the plaintiff

agreed to waive legal interest on the judgment and to

accept quarterly payments on the principal.” Scarbrough v. Simpson, No. CV 04-812-C-M3, 2006 WL

8432552, at *1 (M.D. La. Feb. 6, 2006), report and recommendation adopted, 2006 WL 8432695 (M.D. La.

Feb. 27, 2006); see also Freeman Decorating Co. v.

Encuentro Las Americas Trade Corp., No. CV 02-2103,

2008 WL 4922072, at *3 (E.D. La. Nov. 12, 2008), aff’d,

352 Fed. Appx. 921 (5th Cir. 2009) (“[I]t borders on the

absurd that a political sub-division of this state may

negotiate a contract for services, receive those negotiated-for services, then never have to pay because

there is ‘no coercive means’ to collect an outstanding

payment.”).

Such abuse is not limited to tort claims. Political

subdivisions invoke the anti-seizure provision even to

avoid paying compensation for land that was formally

condemned via eminent domain. For instance, in the

Violet Dock Port Inc. v. Heaphy, a political subdivision

condemned valuable land along the Mississippi River.

No. 19-CV-11586, 2019 WL 6307945, at *1 (E.D. La.

Nov. 25, 2019). After condemnation proceedings, the

Louisiana courts ruled that the property owner was

entitled to an additional $21 million, beyond what the

condemnor had initially deposited. Ibid. Yet the condemnor simply refused to pay the full value of the

property that it seized. When the property owner

brought a suit in federal court to obtain the just compensation to which it was entitled, the trial court dismissed the case, and while the appeal was pending,

the parties eventually settled (presumably for less

than the full amount owed).

The situation here is the same. The SWB has used

Louisiana’s quasi-immunity provision to get out of

15

paying state court judgments under the Louisiana

Takings Clause. This leaves Petitioners without the

just compensation the Constitution demands. Their

federal Fifth Amendment rights are un-remedied. By

arguing that an unenforceable state court judgment

leaves a federal court powerless to remedy these Takings Clause violations, the SWB is attempting to subject federal rights and federal courts to Louisiana’s

anti-seizure rules. But “the Supremacy Clause cannot

be evaded by formalism,” Haywood v. Drown, 556 U.S.

729, 742 (2009), and a state law immunity cannot subjugate federal constitutional rights.3

There’s also precedent for federal courts stepping

in when Louisiana’s anti-seizure provision has left

federal rights un-remedied in state court. In Vogt v.

Board of Commissioners of Orleans Levee District, 294

F.3d 684 (5th Cir. 2002), the Louisiana legislature

passed a statute ordering the Orleans Levee District,

a political subdivision of Louisiana, to return land it

had expropriated. 294 F.3d 684 at 687. When the levee

district returned the land but refused to repay

3 While state law immunities cannot subjugate federal rights,

the Supremacy Clause does not always require that federal law

be enforced in state court. The Supreme Court has recognized

that there are circumstances where recovery on a federal claim

in state court may not be possible “because of a neutral state rule

regarding the administration of the courts.” See Howlett v. Rose,

496 U.S. 356, 372 (1990). In other words, the Supremacy Clause

does not require states to have courts that are imbued with particular powers—or, indeed, to have courts at all. This means that

states are generally permitted to de-fang their own judicial systems and leave their citizens without meaningful state court

remedies for violations of their federal rights, so long as they also

provide no meaningful remedy for state rights. Louisiana has

been willing to do exactly that with its anti-seizure provision. But

the government takes this too far by arguing that its neutral procedural rules must also apply in federal court, for federal claims.

16

mineral royalties, the landowners filed suit in state

court. Id. at 687–88. The landowners received a state

court judgment, but the levee district refused to satisfy it, taking shelter in Louisiana’s anti-seizure provision. Id. at 688. The landowners then filed a federal

takings claim in federal court. Ibid. Like the SWB, the

levee district argued that plaintiffs’ claim was not a

valid takings claim, but merely an attempt to force a

federal court to execute a state judgment. Id. at 696.

The Fifth Circuit disagreed, holding that plaintiffs

stated a federal takings claim even though plaintiffs

possessed the same kind of unenforceable state judgment that Petitioners in this case have.4 Id. at 697.

As Vogt makes clear, federal courts are not required to sit back and allow states to effectively immunize their political subdivisions from the Fifth

Amendment. Federal courts must ensure the enforcement of federal rights when states are unwilling or

unable to do so. Otherwise, federal constitutional

rights will be left at the mercy of state legislatures.

Nor should this Court reassure itself that government defendants will eventually “do the right thing.”

Courts do not take it on faith that private actors will

4 A distinction between Vogt and the case at hand is that in Vogt,

the mineral royalties were the subject of the taking. After the

levee district refused to return the royalties in the face of a state

court judgment, plaintiffs filed a federal takings claim in federal

court to retrieve them. The Fifth Circuit held: “What was the

landowners’ property has suddenly vanished behind a veil of sovereign immunity in state court. We hold, however, that this result is untenable against a federal takings claim.” Vogt, 294 F.3d

684 at 697. But whether plaintiffs seek their actual property or

just compensation for their property in their takings claim does

not matter.

17

hold themselves accountable when there are no incentives to do so. Government defendants are no different. That this case has arisen so quickly after the $21

million non-payment in Violet Dock Port demonstrates that the state and its subdivisions will continue to skirt the Constitution by avoiding payment of

judgments unless held accountable.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

JEFFREY H. REDFERN

Counsel of Record

ROBERT MCNAMARA

901 Glebe Road

Suite 900

Arlington, VA 22203

Telephone: (703) 682-9320

jredfern@ij.org

Counsel for Amicus Curiae

Institute for Justice

August 8, 2022