Amicus Curiae Brief — reVamped LLC, a Minnesota Limited Liability Company, et al., Petitioners v. City of Pipestone, Minnesota, et al.

No. 25-1177

IN THE

Supreme Court of the United States

REVAMPED LLC, A MINNESOTA LIMITED

LIABILITY COMPANY, ET AL.,

V.

Petitioners,

CITY OF PIPESTONE, MINNESOTA, ET AL.,

Respondents.

_______

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_______

Amici Curiae Brief of

Small Property Owners of San Francisco Institute,

Owners Counsel of America, California Rental

Housing Assn., Apartment Assn. of Greater Los

Angeles, Apartment Association of Orange County,

Rental Housing Association of Washington,

Apartment and Office Building Assn. of Metropolitan

Washington, and Berkeley Property Owners Assn.

Supporting Petitioners

MICHAEL M. BERGER*

COUNSEL OF RECORD

MANATT, PHELPS & PHILLIPS, LLP

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE ...................... 1

INTRODUCTION ................................................. 6

SUMMARY OF ARGUMENT .............................. 7

ARGUMENT .......................................................... 8

I. DUE PROCESS OF LAW IS A

COMMONSENSE CONCEPT THAT

MANDATES A RATIONAL PROCESS

DESIGNED TO PROVIDE A

REMEDY. ..................................................... 8

A. Due Process Requires Both Notice And

Opportunity To Be Heard. ............................ 8

B. The Lower Courts Failed to Apply The

Federal Civil Rights Act (42 U.S.C. § 1983). 9

II. THE STATE’S POLICE POWER IS NOT

THE POWER OF A POLICE STATE. ....... 11

A. No Bright Line Separates The Police Power

From Eminent Domain. .............................. 13

B. Even Legitimate Government Actions Can

Require Compensation When They Impress

Private Property Into Public Service. ......... 17

III. THE FIFTH AMENDMENT’S

PROTECTION OF PRIVATE

PROPERTY IS FOUNDATIONAL,

CATEGORICAL, AND SELFEXECUTING. ............................................. 22

CONCLUSION .................................................... 24

ii

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon,

447 U.S. 255 (1980)............................................. 5

Arkansas Game and Fish Comm’n v. United

States,

568 U.S. 23 (2012)..........................................4, 24

Barron v. Baltimore,

32 U.S. 243 (1833)............................................. 12

Berman v. Parker,

348 U.S. 26 (1954)........................................16, 17

Board of Regents v. Roth,

408 U.S. 564 (1972)............................................. 9

Burnett v. Grattan,

468 U.S. 42 (1984)............................................. 10

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021)........................................4, 13

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981)........................................... 10

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999)............................................. 5

Dolan v. City of Tigard,

512 U.S. 374 (1994)............................................. 5

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765) ............................ 22

Felder v. Casey,

487 U.S. 131 (1988)........................................... 10

iii

TABLE OF AUTHORITIES

(continued)

First English Evangelical Lutheran Church

v. Los Angeles County,

482 U.S. 304 (1987)................ 5, 12, 14, 18, 21, 23

Florida Rock Indus., Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) ........................... 18

Florida Rock Indus., Inc. v. United States,

791 F.2d 893 (Fed. Cir. 1986) ........................... 21

Golden State Transit Corp. v. City of Los

Angeles,

493 U.S. 103 (1989)........................................... 10

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229 (1984)........................................... 17

Horne v. U.S. Dept. of Agriculture,

576 U.S. 350 (2015)........................................4, 24

Hughes v. Washington,

389 U.S. 290 (1967) (Stewart, J.,

concurring) ...................................................14, 22

Jacobs v. United States,

290 U.S. 13 (1933)............................................. 23

Kaiser Aetna v. United States,

444 U.S. 164 (1979)........................................5, 20

Kelo v. City of New London,

545 U.S. 469 (2005)............................................. 4

Knick v. Township of Scott,

588 U.S. 180 (2019)........................................4, 23

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

133 S. Ct. 2586 (2013)......................................... 4

iv

TABLE OF AUTHORITIES

(continued)

Lake Country Estates v. Tahoe Reg. Plan.

Agency,

440 U.S. 391 (1979)........................................... 10

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005)........................................4, 22

Loan Assn. v. Topeka,

87 U.S. 655 (1875)............................................. 11

Loretto v. Teleprompter Manhattan CATV

Corp.

458 U.S. 419 (1982)......................................19, 20

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)........................................... 5

Lutheran Church in America v. City of New

York,

316 N.E.2d 305 (N.Y. 1974) .............................. 16

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972)............................................. 9

Mathews v. Eldridge,

424 U.S. 319 (1976)............................................. 8

Mitchum v. Foster,

407 U.S. 225 (1972)........................................9, 10

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1893)......................................22, 24

Mullane v. Central Hanover Bank & Trust

Co.,

339 U.S. 306 (1950)............................................. 8

v

TABLE OF AUTHORITIES

(continued)

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987)..................................5, 20, 21

Olson v. United States,

292 U.S. 246 (1934)........................................... 22

Pakdel v. San Francisco

594 U.S. 474 (2021)........................................4, 11

Palazzolo v. Rhode Island,

533 U.S. 606 (2001)............................................. 4

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922)................................12, 18, 19

Preseault v. ICC,

494 US 1 (1990)................................................... 5

Pumpelly v. Green Bay Co.,

80 U.S. 166 (1871)............................................. 12

Sackett v. EPA,

598 U.S. 651 (2023)............................................. 4

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

San Francisco,

545 U.S. 323 (2005)............................................. 4

Sheetz v. County of El Dorado,

601 U.S. 267 (2024)............................................. 4

Stop the Beach Renourishment, Inc. v. Fla.

Dept. of Envt’l Protection,

130 S. Ct. 2592 (2010)......................................... 4

Sullivan v. Little Hunting Park, Inc.,

396 U.S. 229 (1969)............................................. 9

vi

TABLE OF AUTHORITIES

(continued)

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency,

535 U.S. 302 (2002)............................................. 4

Tyler v. Hennepin County,

598 U.S. 631 (2023)............................................. 4

United States v. Dickinson,

331 U.S. 745 (1947)........................................... 24

United States v. Jones,

565 U.S. 400 (2012)........................................... 22

Wilkins v. United States,

598 U.S. 152 (2023)............................................. 4

Williams v. Reed,

604 U.S. 168 (2025)........................................... 11

Winter v. Natural Resources Def. Council,

555 U.S. 7 (2008)................................................. 4

Yee v. City of Escondido,

503 U.S. 519 (1992)............................................. 5

STATUTES

42 U.S.C. § 1983 ............................................9, 10, 11

Internal Revenue Code § 501(c)(3) .......................... 1

OTHER AUTHORITIES

Berger, Michael M. & Kanner, Gideon, The

Nasty, Brutish And Short Life Of Agins v.

City Of Tiburon, 50 The Urban Lawyer 9

(2019)................................................................... 5

vii

TABLE OF AUTHORITIES

(continued)

Berger, Michael M., Theft, Extortion, and the

Constitution: Land Use Practice Needs an

Ethical Infusion, 38 Touro L. Rev. 755

(2023)................................................................... 5

Berger, Michael M., Whither Regulatory

Takings, 51 The Urban Lawyer 171

(2021)................................................................... 5

Beuscher, Jacob, Notes on the Integration of

Police Power and Eminent Domain by the

Courts: Inverse Condemnation, in J.

Beuscher & R. Wright, LAND USE 724

(1969)................................................................. 15

Blake, William G., The Law of Eminent

Domain—A Fifty State Survey (Am. Bar

Ass’n 2012) (editor) ............................................. 5

Dunham, Allison, Griggs v. Allegheny

County in Perspective: Thirty Years of

Supreme Court Expropriation Law, 1962

Sup. Ct. Rev. 63, 80-81 ..................................... 15

Ely, James W. The Guardian of Every Other

Right: A Constitutional History of

Property Rights (2d ed. 1998) ............................. 4

Fields, Leslie A., Colorado Eminent Domain

Practice (2008) .................................................... 5

Hamilton, John, Kansas Real Estate Practice

And Procedure Handbook (2009) (chapter

on Eminent Domain Practice and

Procedure) ........................................................... 5

viii

TABLE OF AUTHORITIES

(continued)

Hamilton, John & Rapp, David M., Law and

Procedure of Eminent Domain in the 50

States (Am. Bar Ass’n 2010) (Kansas

chapter) ............................................................... 5

Kanner, Gideon , Making Laws and

Sausages: A Quarter-Century

Retrospective of Penn Central

Transportation Co. v. City of New York,

13 Wm. & Mary Bill of Rts. J. 679 (2005) .......... 5

Merriam, Dwight H., Eminent Domain Use

and Abuse: Kelo in Context (Am. Bar

Ass’n 2006) (coeditor).......................................... 5

Michelman, Frank, Property, Utility, and

Fairness: Comments on the Ethical

Foundations of “Just Compensation” Law,

80 Harv. L. Rev. 1165 (1967)............................ 15

Rikon, Michael, Moving the Cat into the Hat:

The Pursuit of Fairness in Condemnation,

or, Whatever Happened to Creating a

“Partnership of Planning?”, 4 Alb. Gov’t L.

Rev. 154 (2011).................................................... 5

Sax, Joseph, Takings and the Police Power,

74 Yale L.J. 36 (1964) ....................................... 15

Shapiro, David, Jurisdiction and Discretion,

60 N.Y.U.L. Rev. 543 (1985) ............................. 10

Smith, Randall A., Eminent Domain After

Kelo and Katrina, 53 La. Bar J. 363

(2006)................................................................... 5

ix

TABLE OF AUTHORITIES

(continued)

Van Alstyne, Arvo, Taking or Damaging by

Police Power: The Search for Inverse

Condemnation Criteria, 44 S. Cal. L. Rev.

1, 2 (1970) .......................................................... 15

Waite, G. Graham, Governmental Power and

Private Property, 16 Cath. U.L. Rev. 283,

291 (1967) .......................................................... 14

1

INTERESTS OF AMICI CURIAE

The Small Property Owners of San

Francisco Institute (“SPOSFI”) is a California

nonprofit corporation (Internal Revenue Code §

501(c)(3)) and organization of small property owners

that advocates for the rights of property owners in

San Francisco. SPOSFI’s members range from

young families to the elderly on fixed incomes, and

its membership cuts across all racial, ethnic, and

socio-economic strata. 1

SPOSFI is also involved in education, outreach

and research. Through education, it helps owners

better understand their rights and learn how to deal

with local government; through outreach to

community groups and to the public, it demonstrates

how restrictive regulations harm both tenants and

landlords, and through research projects, it aims to

separate hyperbole from fact on the effect of rent

control on housing stock. Through legal advocacy,

SPOSFI seeks to protect the rights of small property

owners against unfair and burdensome regulations.

SPOSFI has appeared as amicus curiae in this

Court in support of petitions seeking to protect the

rights of property owners. 2

No counsel for any party has authored this brief in whole or

in part and no person other than the amici has made any

monetary contribution to this brief’s preparation or

submission. The parties were timely notified of intent to file.

1

Two of these amici recently filed briefs in Pena v. City of Los

Angeles, no. 25-1163 and Hadley v. City of South Bend, no. 251158. Like this case, each of those raises questions about the

2

2

California Rental Housing Association

(CalRHA) advocates for the rental housing industry,

representing nearly 15,000 members and over

755,000 units. It serves rental owners, builders, and

managers through legislative lobbying, grassroots

mobilization, legal defense, and educational

resources, aiming to protect property rights and

promote a healthy industry.

Apartment Assn. of Greater Los Angeles

(AAGLA) serves as a trade association and advocacy

group for rental housing providers in Southern

California, focusing on lobbying for landlord rights,

providing legal/operational education, and offering

industry resources. Operating since 1917, it helps

landlords navigate complex regulations through

networking, legal forms, and weekly webinars.

Apartment Assn. of Orange County (AAOC) is

a non-profit trade association that represents

approximately 2,000 rental-property owners,

operators, and industry suppliers in Orange County

and parts of Riverside County. AAOC members

collectively own and operate more than 120,000

rental units in the association's service area. Founded

in 1961, it advocates for the rental housing industry,

provides legal forms, offers professional training, and

facilitates networking to help members maximize

their investments.

Rental Housing Assn. of Washington

(RHAWA) represents over 6,000 independent rental

relationship between police power and eminent domain,

demonstrating the need for this Court’s intervention now.

3

owners, landlords, managers, investors, and vendor

members across the State of Washington. It supports

the rental housing industry through advocacy, a high

standard of ethics, education, research, products, and

services. RHAWA strongly advocates that rental

housing is a valuable asset to communities and

provides grassroots mobilization for the purpose of

advocating at the state and local levels. RHAWA

provides its members with top-of-the-line education,

forms, and resources to help protect their rental

business.

Berkeley Property Owners Assn. (BPOA) is a

non-profit trade association representing over 750

rental housing providers in Berkeley, providing

advocacy, education, and resources to help members

navigate complex local rental regulations. They

protect property rights, offer compliant legal

documents, and promote safe, affordable housing.

Apartment and Office Building Assn. of

Metropolitan Washington (AOBA) is the leading

trade association in the D.C. area representing

commercial and multifamily residential real estate

owners and managers. It acts as a major advocate,

lobbying for member interests in legislation, taxes,

and regulations, while also providing professional

education and sustainability initiatives.

Owners’ Counsel of America (OCA) is an

invitation-only national network of the most

experienced eminent domain and property rights

attorneys. They have joined together to advance,

preserve and defend the rights of private property

owners, and thereby further the cause of liberty,

because the right to own and use property is “the

4

guardian of every other right,” and the basis of a free

society. See James W. Ely, The Guardian of Every

Other Right: A Constitutional History of Property

Rights (2d ed. 1998). As the lawyers on the front lines

of property law and property rights, OCA brings

unique perspective to this case. OCA is a non-profit

501(c)(6) organization sustained solely by its

members. Only one member lawyer is admitted from

each state. OCA seeks to use its members’ combined

knowledge and experience as a resource in the

defense of private property ownership, and OCA

member attorneys have been involved in landmark

property law cases in nearly every jurisdiction

nationwide. Additionally, OCA members and their

firms have been counsel for a party or amicus in

many of the property cases this Court has considered

in the past forty years, including most recently

Sheetz v. County of El Dorado, 601 U.S. 267 (2024);

Tyler v. Hennepin County, 598 U.S. 631 (2023);

Sackett v. EPA, 598 U.S. 651 (2023); Wilkins v.

United States, 598 U.S. 152 (2023); Pakdel v. San

Francisco 594 U.S. 474 (2021); and Cedar Point

Nursery v. Hassid, 594 U.S. 139 (2021). 3 OCA

For additional cases handled by OCA members, see Knick

v. Township of Scott, 588 U.S. 180 (2019); Koontz v. St. Johns

River Water Mgmt. Dist., 133 S. Ct. 2586 (2013); Horne v. U.S.

Dept. of Agriculture, 576 U.S. 350 (2015); Arkansas Game and

Fish Comm’n v. United States, 568 U.S. 23 (2012); Stop the

Beach Renourishment, Inc. v. Fla. Dept. of Envt’l Protection,

130 S. Ct. 2592 (2010); Winter v. Natural Resources Def.

Council, 555 U.S. 7 (2008); Kelo v. City of New London, 545 U.S.

469 (2005); San Remo Hotel, L.P. v. City and County of San

Francisco, 545 U.S. 323 (2005); Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005); Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode

3

5

members have also authored and edited treatises,

books, and law review articles on property law and

property rights. 4

Island, 533 U.S. 606 (2001); City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687 (1999); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); Yee v. City of Escondido, 503

U.S. 519 (1992); Preseault v. ICC, 494 US 1 (1990); Nollan v.

Cal. Coastal Comm’n, 483 U.S. 825 (1987); First English

Evangelical Lutheran Church v. Los Angeles County, 482 U.S.

304 (1987); Agins v. City of Tiburon, 447 U.S. 255 (1980); Kaiser

Aetna v. United States, 444 U.S. 164 (1979).

See, e.g., Michael M. Berger, Theft, Extortion, and the

Constitution: Land Use Practice Needs an Ethical Infusion, 38

Touro L. Rev. 755 (2023); Michael M. Berger, Whither

Regulatory Takings, 51 The Urban Lawyer 171 (2021); Michael

M. Berger & Gideon Kanner, The Nasty, Brutish And Short

Life Of Agins v. City Of Tiburon, 50 The Urban Lawyer 9

(2019); William G. Blake, The Law of Eminent Domain—A

Fifty State Survey (Am. Bar Ass’n 2012) (editor); Leslie A.

Fields, Colorado Eminent Domain Practice (2008); John

Hamilton, Kansas Real Estate Practice And Procedure

Handbook (2009) (chapter on Eminent Domain Practice and

Procedure); John Hamilton & David M. Rapp, Law and

Procedure of Eminent Domain in the 50 States (Am. Bar Ass’n

2010) (Kansas chapter); Gideon Kanner, Making Laws and

Sausages: A Quarter-Century Retrospective of Penn Central

Transportation Co. v. City of New York, 13 Wm. & Mary Bill of

Rts. J. 679 (2005); Dwight H. Merriam, Eminent Domain Use

and Abuse: Kelo in Context (Am. Bar Ass’n 2006) (coeditor);

Michael Rikon, Moving the Cat into the Hat: The Pursuit of

Fairness in Condemnation, or, Whatever Happened to Creating

a “Partnership of Planning?”, 4 Alb. Gov’t L. Rev. 154 (2011);

Randall A. Smith, Eminent Domain After Kelo and Katrina, 53

La. Bar J. 363 (2006); (chapters on Prelitigation Process and

Flooding and Erosion).

4

6

INTRODUCTION

Officials of the City of Pipestone, Minn., decided

that they needed to order the historic Calumet Inn,

a hotel owned by the Petitioners that had been

operating since 1888 (and renovated a century

later), to be closed. Immediately. There were a

number of problems with the way they went about

this. 5 First, Pipestone itself was unclear or unsure

about the timing of a possible appeal that the

Petitioners could make of their order. Indeed, after

a delay of several weeks, Pipestone conceded that it

had no appeal process. That delay deprived

Petitioners of the ability to respond quickly to

Pipestone’s order, leaving the hotel closed (or

“condemned,” to use the City’s word). Second, the

notice of defects which provided the basis for that

condemnation was not immediately sent to the

owners, further depriving them of the ability to

respond and reply to the charges. Third, as a result,

Pipestone’s abrupt shut down of the hotel worked a

taking of the Petitioners’ property interests in the

hotel.

Thus, this litigation.

The lower courts made short work of it. Neither

the trial court nor the appellate court considered

Pipestone’s delay in providing notice to the owners

and the impact of that on their ability to respond. Of

more importance, the lower courts seemed to believe

that there is some sort of police power exception to

The facts are explained in detail in the Petition for

Certiorari.

5

7

the Fifth Amendment’s prohibition of taking

property without compensating for it. But there is

not.

Thus, the need for certiorari.

SUMMARY OF ARGUMENT

First, due process requires both notice and an

opportunity to be heard. Without the opportunity to

present one’s case to decision makers, there is no

legal process. The procedure in the City of Pipestone

was so confused, even the City itself did not realize

that it had no administrative appeal process that the

Petitioners could use to get speedy review of the

decision that closed down their hotel. That

deprivation of a meaningful mode of review deprived

them of their property without due process.

Second, the lower court operated on the theory

that the Fifth Amendment’s just compensation

guaranty was malleable, rather than absolute. They

concluded that, because Pipestone was only

exercising its police power (rather than directly

invoking the power of eminent domain), it was not

subject to the just compensation guaranty. But there

is no “police power” exception to the Fifth

Amendment. Any contrary theory is simply a word

game that has no grounding in our constitution. On

the contrary, the Fifth Amendment’s compensation

guaranty is absolute. When there is a taking, the

owner is entitled to be paid, regardless of the

particular tool employed by the government. And the

payment must be contemporaneous with the taking.

8

ARGUMENT

I.

DUE PROCESS OF LAW IS A

COMMONSENSE CONCEPT THAT

MANDATES A RATIONAL PROCESS

DESIGNED TO PROVIDE A REMEDY.

A.

Due Process Requires Both Notice And

Opportunity To Be Heard.

“Procedural due process imposes constraints on

governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests within the meaning of

the Due Process Clause of … the Fourteenth

Amendment.” Mathews v. Eldridge, 424 U.S. 319,

332 (1976). Put simply, “The essence of due process

is the requirement that ‘a person in jeopardy of

serious loss (be given) notice of the case against him

and opportunity to meet it.” Mathews, 424 U.S. at

348; emphasis added. See also Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950:

“The fundamental requisite of due process of law is

the opportunity to be heard.”

Thus, the key to due process is allowing

interested parties to be heard. “It is a purpose of the

ancient institution of property to protect those

claims upon which people rely in their daily lives,

reliance that must not be arbitrarily undermined. It

9

is a purpose of the constitutional right to a hearing

to provide an opportunity for a person to vindicate

those claims.” Board of Regents v. Roth, 408 U.S.

564, 577 (1972); emphasis added.

As ably discussed in the Petition for Certiorari,

not only was the property owner denied the ability

to be heard, but both lower courts virtually ignored

this fundamental issue in the course of dismissing

the case. That should not stand. Due process rebels

at the thought.

B.

The Lower Courts Failed to Apply The

Federal Civil Rights Act (42 U.S.C. § 1983).

Pursuant to the Fourteenth Amendment,

Congress acted to provide protection for rights

guaranteed by the U.S. Constitution when it enacted

42 U.S.C. § 1983. Petitioners invoked this statutory

remedy when Pipestone ignored its constitutional

obligation to provide a rational system to appeal the

“condemnation” of their hotel. They asked the courts

to compel Pipestone to abide by the federal

constitutional guarantee of fair and meaningful

hearings. The lower courts refused.

A Section 1983 case sweeps within its ambit all

governmental actions that impair Bill of Rights

protections. Section 1983 was intended to provide “a

uniquely federal remedy” 6 with “broad and sweeping

protection” 7 so that individuals in a wide variety of

6 Mitchum v. Foster, 407 U.S. 225, 239 (1972).

Lynch v. Household Fin. Corp., 405 U.S. 538, 543 (1972);

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969).

7

10

factual situations are able to obtain a federal remedy

when their federally protected rights are

abridged. 8 The statute must be broadly and liberally

construed to achieve its goals. 9 Its “goals” have been

straightforwardly stated: “to provide compensatory

relief to those deprived of their federal rights by

state actors” 10] by “interpose[ing] the federal courts

between the States and the people, as guardians of

the people’s federal rights.” 11

One might say, in other words, that the whole

point of Section 1983 was to grant federal courts the

authority and duty to provide protection of federal

rights. In Professor David Shapiro’s words, “the

post-Civil War legislation of which this statute was

a part dramatically altered the relations between

the states and the federal government . . . by giving

the federal courts authority they did not previously

possess.” 12 Section 1983 was intended by Congress

to expose municipalities and local officials to “a new

form of liability.” 13

8 Burnett v. Grattan, 468 U.S. 42, 50, 55 (1984).

9 Golden State Transit Corp. v. City of Los Angeles, 493 U.S.

103, 105 (1989); Lake Country Estates v. Tahoe Reg. Plan.

Agency, 440 U.S. 391, 399-400 (1979).

10 Felder v. Casey, 487 U.S. 131, 141 (1988).

11 Mitchum, 407 U.S. at 243.

12 David Shapiro, Jurisdiction and Discretion, 60 N.Y.U.L. Rev.

543, 584 (1985).

13 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259

(1981).

11

Contrary to the decision below, there is no

strict exhaustion requirement under Section 1983,

merely a need for the government position to be

clear. Pakdel v. City & County of San Francisco

(2021) 594 U.S. 474. See also Williams v. Reed, 604

U.S. 168 (2025) (state exhaustion requirement is

invalid if it immunizes conduct subject to liability

under Section 1983.)

Pipestone simply ignored this key federal statute

designed to compel local governmental compliance

with the federal Constitution. Ignoring a directly

applicable federal statute is reason enough for this

Court to review this errant decision.

II.

THE STATE’S POLICE POWER IS NOT THE

POWER OF A POLICE STATE.

In all facets of modern life, the Constitution

protects the individual against the majority’s

collective will. Otherwise, as this Court wisely noted

a century and a half ago, the result is “despotism. It

is true it is a despotism of the many, of the majority,

if you choose to call it so, but it is none the less a

despotism.” Loan Assn. v. Topeka, 87 U.S. 655, 662

(1875). That has been a consistent theme of the

Court’s jurisprudence.

As it plainly said more recently, the Fifth

Amendment’s just compensation guarantee was

intended to restrict the “freedom and flexibility” of

government, just like other provisions of the Bill of

Rights, in order to protect the rights of individuals.

12

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 321 (1987).

Under our system of law, we have

institutionalized

and

constitutionalized

the

protection of private property. That is why, more

than a century ago, the Court expressly recognized

that if government acts to protect the public health,

safety, and welfare and the effect of its action goes

“too far” the command to pay just compensation is

triggered. Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 415 (1922). Nor was that the first time the

Court commented on the issue. In Barron v.

Baltimore, 32 U.S. 243 (1833), for example, the

Court accepted the argument that city diversion of

water to damage a wharf raised a Fifth Amendment

compensation issue. The only reason the owner did

not recover was that the Court held the Fifth

Amendment guarantee applied only to actions of the

federal government, not state entities.

More to the point, in Pumpelly v. Green Bay Co.,

80 U.S. 166, 177-78 (1871) the Court strongly

demonstrated why the compensation guarantee is

essential to our system:

“It would be a very curious and

unsatisfactory result, if in construing a

provision of constitutional law, always

understood to have been adopted for

protection and security to the rights of the

individual as against the government, and

which has received the commendation of

jurists, statesmen, and commentators as

placing the just principles of the common

law on that subject beyond the power of

13

ordinary legislation to change or control

them, it shall be held that if the

government refrains from the absolute

conversion of real property to the uses of

the public it can destroy its value entirely,

can inflict irreparable and permanent

injury to any extent, can, in effect, subject

it to total destruction without making any

compensation, because, in the narrowest

sense of that word, it is not taken for the

public use. Such a construction would

pervert the constitutional provision into a

restriction upon the rights of the citizen,

as those rights stood at the common law,

instead of the government, and make it an

authority for invasion of private right

under the pretext of the public good, which

had no warrant in the laws or practices of

our ancestors.” (Emphasis added.)

The Court summarized its thinking recently in

Cedar Point Nursery v. Hassid, 594 U.S. 139, 149,

(2021), explaining that “[t]he essential question is

not ... whether the government action at issue comes

garbed as a regulation ... [but] whether the

government has physically taken property for itself

or someone else—by whatever means”.

A.

No Bright Line Separates The Police

Power From Eminent Domain.

As Justice Stewart succinctly put it, “the

Constitution measures a taking of property not by

what a State says, or by what it intends, but by what

14

it does.” Hughes v. Washington, 389 U.S. 290, 298

(1967) (Stewart, J., concurring).

This Court’s takings doctrine is built around the

idea that in addition to eminent domain, other

exercises of government power have such a dramatic

effect on private property that they are considered to

be the functional equivalent of an affirmative

exercise of the condemnation power, giving rise to a

self-executing obligation to compensate the owner.

As the Court put it in First English:

“While the typical taking occurs when the

government acts to condemn property in the

exercise of its power of eminent domain, the

entire doctrine of inverse condemnation is

predicated on the proposition that a taking

may occur without such formal proceedings.”

482 U.S. at 316.

Nonetheless, otherwise respectable authorities

(including the courts below) play the label game,

asserting that if “only” the “police power” is being

utilized, then compensation is not required; whereas

if the “eminent domain” power is used, compensation

must be paid.

But that distinction has been heavily criticized

by scholars in the field. Professor Waite called the

distinction “illusory.” 14 Professor Michelman called

G. Graham Waite, Governmental Power and Private

Property, 16 Cath. U.L. Rev. 283, 291 (1967).

14

15

it “wordplay.” 15 Professor Van Alstyne characterized

these decisions as consisting of “conclusionary

terminology, circular reasoning, and empty

rhetoric.” 16 Professor Sax called them “a welter of

confusing and apparently incompatible results. 17

Professor Dunham, examining only decisions of this

Court, found a “crazy-quilt pattern.” 18 Professor

Beuscher sagely counseled:

“The inverse condemnation cases should

remind us that those writers who emphasize

the separate air tight, non-overlapping

character of the two basic powers-police

power and eminent domain-have been too

glib.” 19

Professor Beuscher

was a master of

understatement. The conceptual difficulties which

have arisen in this area are the result of a simple

refusal to face reality. Problems are not solved by

Frank Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of “Just Compensation”

Law, 80 Harv. L. Rev. 1165, 1186 (1967).

15

Arvo Van Alstyne, Taking or Damaging by Police Power:

The Search for Inverse Condemnation Criteria, 44 S. Cal. L.

Rev. 1, 2 (1970).

16

Joseph Sax, Takings and the Police Power, 74 Yale L.J. 36,

37 (1964).

17

Allison Dunham, Griggs v. Allegheny County in Perspective:

Thirty Years of Supreme Court Expropriation Law, 1962 Sup.

Ct. Rev. 63, 80-81.

18

Jacob Beuscher, Notes on the Integration of Police Power

and Eminent Domain by the Courts: Inverse Condemnation, in

J. Beuscher & R. Wright, LAND USE 724 (1969).

19

16

attempting to define them out of existence. Problems

are only solved, as W.C. Fields once expressed it, by

“taking the bull by the tail and facing the situation.”

Those who have forthrightly confronted the issue

have recognized the unitary nature of the

governmental power with which we deal. For

example, as the New York Court of Appeals put it:

“Government interference with an owner's use of

private property under the police power runs a

gamut from outright condemnation for which

compensation is expressly provided to the regulation

of the general use of land remaining in private

ownership so that the use might harmonize with

other uses in the vicinity.” 20

This Court's most explicit recognition of the

concurrent nature of the “two powers” is in its 1954

decision of Berman v. Parker, 348 U.S. 26 (1954).

Berman, of course, is best remembered (particularly

by governmental entities) for its expansive

interpretation of “public use.” The coextensiveness

of the “two powers” is best expressed in the Court’s

own words:

“We deal, in other words, with what

traditionally has been known as the police

power. An attempt to define its reach or

trace its outer limits is fruitless, for each

case must turn on its own facts…. The

rights of these property owners are

satisfied when they receive that just

compensation which the Fifth Amendment

Lutheran Church in America v. City of New York, 316

N.E.2d 305, 310 (N.Y. 1974) (emphasis added).

20

17

exacts as the price of the taking.” 348 U.S.

at 32, 33, 36; emphasis added.

More recently, this Court summarized the rule:

“The [eminent domain] ‘public use’

requirement is thus coterminous with

the scope of a sovereign’s police

powers.” Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229, 240 (1984)

(emphasis added).

Any effort to separate police power and eminent

domain is specious.

B.

Even Legitimate Government Actions

Can Require Compensation When They

Impress Private Property Into Public

Service.

The government defended itself below by

claiming that its focus on protecting the public was

legitimate. The Eighth Circuit adopted that

rationale. The question, however, is whether

legitimacy should count for anything in this

constitutional analysis? In a word, no.

The decision proceeds as though recognition of a

legitimate governmental goal validates whatever

solution is chosen. Not relevant. Determination of a

legitimate governmental objective is the first, not

the last, step. The law distinguishes between means

and ends, and the means chosen to achieve the

objective must survive Constitutional scrutiny the

same as the ends.

Legitimate goals are constitutionally irrelevant.

For the proper exercise of any governmental power,

18

the underpinning of such a beneficent purpose must

exist. That much was settled no later than 1922,

when the Court examined a statute designed to stop

land subsidence caused by underground coal mining

and concluded that the prerequisites for exercise of

both police power and eminent domain were present:

“We assume, of course, that the statute was

passed upon the conviction that an

exigency existed that would warrant it, and

we assume that an exigency exists that

would warrant the exercise of eminent

domain. But the question at bottom is upon

whom the loss of the changes desired

should fall.” 21

After determining that government action was

done to achieve a legitimate goal, the means chosen

must be constitutionally examined to ensure that

private rights have not been violated. Governmental

power is not permitted to run roughshod over the

constitutionally protected rights of individuals. That

is what the Court meant when it concluded in First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304, 321 (1987) that:

“many of the provisions of the

Constitution are designed to limit the

flexibility and freedom of governmental

21 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922)

(emphasis added). See also Florida Rock Indus., Inc. v. United

States, 18 F.3d 1560, 1571 (Fed. Cir. 1994): “It is necessary that

the Government act in a good cause, but it is not sufficient. The

takings clause already assumes the Government is acting in

the public interest ….”

19

authorities and the Just Compensation

Clause of the Fifth Amendment is one of

them.”

Pennsylvania Coal was merely one in a long

line of decisions in which the Court explained to

government agencies that the general legal

propriety of their actions and the need to pay

compensation under the Fifth Amendment present

different questions, and the need for the latter is not

obviated by the legitimacy of the former.

The Eighth Circuit, however, seems not to have

gotten the message. Evidently believing that the

government was pursuing the public good, it ended

its analysis at that point. Demonstrating the error

of that theory, the dissenting opinion in

Pennsylvania Coal had argued precisely the same,

saying that a “restriction imposed to protect the

public health, safety or morals from dangers

threatened is not a taking.” 22 Eight Justices rejected

that proposition more than a century ago.

In Loretto v. Teleprompter Manhattan CATV

Corp., New York’s highest court upheld a statute as

a valid police power exercise and dismissed an action

seeking compensation. This Court reversed:

“The Court of Appeals determined that

§ 828 serves [a] legitimate public

purpose … and thus is within the

State’s police power. We have no reason

to question that determination. It is a

separate question, however, whether an

22 260 U.S. at 417 (Brandeis, J. dissenting).

20

otherwise valid regulation so frustrates

property rights that compensation must

be paid.” 23

Similarly, in Kaiser Aetna v. United States, the

Corps of Engineers decreed that a private marina be

opened to public use without compensation. The

Court reversed, explaining:

“In light of its expansive authority

under the Commerce Clause, there is no

question but that Congress could assure

the public a free right of access to the

Hawaii Kai Marina if it so chose.

Whether a statute or regulation that

went so far amounted to a taking,

however, is an entirely separate

question.” 24

Or, as the Court put it in Nollan:

“That is simply an expression of the

Commission’s belief that the public

interest will be served by a continuous

strip of publicly accessible beach along

the coast. The Commission may well be

right that it is a good idea, but that does

not establish that the Nollans (and

other coastal residents) alone can be

compelled

to

contribute

to its

realization. Rather, California is free to

advance its ‘comprehensive program,’ if

23 458 U.S. 419, 425 (1982) (Marshall, J.) (emphasis added).

24 444 U.S. 164, 174 (1979) (Rehnquist, J.) (emphasis added).

21

it wishes, by using its power of eminent

domain for this ‘public purpose.’” 25

That is why the Court concluded in First

English that the Fifth Amendment was designed “to

secure compensation in the event of otherwise proper

interference amounting to a taking.” 26

In cases like these, the Court has directed the

property owners to the Court of Federal Claims to

determine whether these exercises of government

power, though substantively legitimate, nonetheless

required compensation.

“In such cases the characteristic feature

is the defendant’s use of rightful …

regulatory rights to control and prevent

exercise of [private] ownership rights

the defendant is unwilling to purchase

and pay for.” 27

In sum, for a taking to occur, it matters not

whether government officials acted in good or bad

faith, or for good or bad reasons. What matters is the

impact of their acts, not the purity vel non of their

motives. The Court put it succinctly when it

concluded that the Takings Clause “focuses directly

upon the severity of the burden that government

imposes upon private property rights”—not the

25 Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 841 (1987)

(Scalia, J.).

26 482 U.S. at 315 (Rehnquist, C.J.) (first emphasis, the Court’s;

second emphasis added).

27 Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 899

(Fed. Cir. 1986) (quoting with approval; emphasis the Court’s).

22

importance of the governmental interest advanced

by the taking. Lingle, 544 U.S. at 539. 28

Indeed, if government motives are benign—or

done for the best of reasons—that only fortifies the

need for compensation required by the Just

Compensation guaranty.

III.

THE FIFTH AMENDMENT’S PROTECTION

OF PRIVATE PROPERTY IS

FOUNDATIONAL, CATEGORICAL, AND

SELF-EXECUTING.

Owners’ rights to be secure in their property is

one of the primary objects for which the national

government was formed. In United States v. Jones,

565 U.S. 400, 405 (2012), the Court recalled Lord

Camden’s holding in Entick v. Carrington, 95 Eng.

Rep. 807 (C.P. 1765): “The great end for which men

entered into society was to secure their property.”

This Court explained, “In any society the fullness

and sufficiency of the securities which surround the

individual in use and enjoyment of his property

constitute one of the most certain tests of the

character and value of government.” Monongahela

Nav. Co. v. United States, 148 U.S. 312, 324 (1893)

(followed by Olson v. United States, 292 U.S. 246,

254 (1934)).

28 See Hughes v. State of Washington, 389 U.S. 290, 298 (1967):

“[T]he Constitution measures a taking of property not by what

a State says, or by what it intends, but by what it does.”

(Stewart, J., concurring) (emphasis added).

23

This Court held the Fifth Amendment guarantee

of compensation does not “depend on the good graces

of Congress,” explaining:

“[A] landowner is entitled to bring an action

in inverse condemnation as a result of the

‘self-executing character of the constitutional

provision with respect to compensation’ . . . .

As noted in Justice Brennan’s dissent in San

Diego Gas [], it has been established at least

since Jacobs v. United States, 290 U.S. 13

(1933), that claims for just compensation are

grounded in the Constitution itself[.]” First

English Evangelical Lutheran Church v. Los

Angeles, 482 U.S. 304, 315-16 (1987).

The Court reiterated recently that the Just

Compensation Clause is “self-executing.” Knick v.

Township of Scott, 588 U.S. 180, 192 (2019).

In First English, the Solicitor General (as amicus

curiae) urged that the Fifth Amendment was merely

“a limitation on the power of the Government to act,

not a remedial provision.” See 482 U.S. at 316, n.9.

The Court rejected that argument, concluding that

it was the Constitution itself that both established

the right and dictated the remedy. Id.

Indeed, even before San Diego Gas and First

English, this Court found:

“whether the theory . . . be that there was a

taking under the Fifth Amendment, and that

therefore the Tucker Act may be invoked

because it is a claim founded upon the

Constitution, or that there was an implied

promise by the Government to pay for it, is

24

immaterial. In either event, the claim traces

back to the prohibition of the Fifth

Amendment . . . .” United States v. Dickinson,

331 U.S. 745, 748 (1947).

The Fifth Amendment “prevents the public from

loading upon one individual more than his just share

of the burdens of government and says that when he

surrenders to the public something more and

different from that which is exacted from other

members of the public, a full and just equivalent

shall be returned to him.” Monongahela, 148 U.S. at

325.

When the government takes an owner’s property,

the government has a “categorical duty” to comply

with the Fifth Amendment. See Arkansas Game &

Fish Comm’n v. United States, 568 U.S. 23, 31

(2012); Horne v. Dept. of Agriculture, 576 U.S. 350,

362 (2015). In other words, cash may not heal all

wounds, but it is a constitutionally acceptable

remedy for unconstitutional government action.

CONCLUSION

Certiorari should be granted. There is confusion

among the lower courts with some, like the Eighth

Circuit here, purporting to find that the

Constitution has some exceptions to the Fifth

Amendment’s just compensation guaranty. There is

no such exception and this Court needs to make that

clear.

25

Respectfully Submitted,

MICHAEL M. BERGER*

COUNSEL OF RECORD

MANATT, PHELPS & PHILLIPS, LLP

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

Counsel for Amici Curiae

Small Property Owners of San Francisco Institute,

Owners Counsel of America, California Rental Housing

Assn., Apartment Assn. of Greater Los Angeles, Apartment

Association of Orange County, Rental Housing Association

of Washington, and Apartment and Office Building Assn. of

Metropolitan Washington