Amicus Curiae Brief — Brown v. Legal Foundation of Wash.

( Gg \ ea rt —

No. 01-1325 > ay 22 20m

—————

In The

Supreme Court of the United States

WASHINGTON LEGAL FOUNDATION, ALLEN D. BROWN, DENNIS

H. DAUGS, GREG HAYES, and L. DIAN MAXWELL,

Petitioners,

v.

LEGAL FOUNDATION OF WASHINGTON; KATRIN E. FRANK, in her

official capacity as President of the Legal Foundation of

Washington; and GERRY L. ALEXANDER, BOBBE J. BRIDGE,

THOMAS CHAMBERS, FAITH IRELAND, CHARLES W. JOHNSON,

BARBARA A. MADSEN, SUSAN OWENS, and CHARLES Z. SMITH, in

their official capacities as Justices of the Supreme Court of

Washington,

Respondents.

On A Writ Of Certiorari

To The United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONER

CHRISTOPHER G. SENIOR

COUNSEL OF RECORD

JON W. LUTHER

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15™ STREET, NW

WASHINGTON, DC 20005

(202) 266-8200

\\

TABLE OF CONTENTS

Page(s)

INTEREST OF THE AMICUS CURIAE ................... l

SUMMARY OF ARGUMENT .....0000000000.0...0....:c00ccceees 2

I aaa acacia dialed saeeeiiaiialaaiiiaeads 3

I. WHENEVER A GOVERNMENTAL BODY TAKES

PROPERTY — ANY PROPERTY -

THE REQUIREMENT THAT

JUST COMPENSATION BE PAID

| _______—__—_— I IETTEE UCT T nn EEE 3

iindsnnaccuscnenspicncsinossincsssicoeseshosen 7

**

TABLE OF AUTHORITIES

CASES Page(s)

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......:2+00000 l

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) ......ccccsseserserreesseereesssersesenees 1,2

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...cccscecesee l

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles,

482 U.S. 304 (1987) ......ccccecscesereeesreeeereeesereseneneeees passim

Kirby Forest Industries, Inc. v. United States,

467 U.S. 1 (1984) .......sccsccsccssssssvssserseessssssseesssssessnssnses 5

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ........:cccssccsssseesrseesrseseresesseessssnees 5, 6

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........scssccsrcosssosrscerrcerssersssesscssessones ]

MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340 (1986) .......scccscssrcsosssscsssosecsressrsssessoesssssosnees l

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) .....cccssccsssceseseeeeeseeseneeesenessseenseeeennees 5

Nollan v. California Coastal Comm'n,

453 US. B23 (19BV) .xnccconeessossesssssinnnmsestiniinsiaiale 1

Paiazzolo v. Rhode Island,

533 U.S. 606 (2001)

ee ee

Phillips v. Washington Legal Foundation,

BED Ps BIC UDIED cncccccccccccesescscsccserescseccccesce

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981) coccccccccccsssescscssecsesseeocesseen.

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

261 U.S. 299 (1923)

hehe eee eee 2 2 2 2

Suitum v. Tahoe Reg'l Planning Agency,

520 U.S. 725 (1997)

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg 'l Planning Agency,

122 S. Ct. 1465 (2002)

United States v. Causby, 328 U.S. 256 (1946)

it ee ee ee a

Washington Legal Foundation v. Legal Foundation of

Washington, 271 F.3™ 835 (9" Cir. 2001)

Williamson County Reg 'l Planning Comm'n

v. Hamilton Buck, 473 U.S. 172 (1985)

Yee v. City of Escondido, 503 U.S. 519 (1992)

INTERESTS OF THE AMICUS CURIAE

The National Association of Home Builders (“NAHB”)

has received the parties’ written consent to file this brief as

amicus curiae in support of Petitioner. Letters of consent

have been filed with the Clerk of the Court.'

NAHB represents over 205,000 builder and associate

members throughout the United States. Its members

include not only people and firms that construct and

supply single-family homes, but also apartment,

condominium, multi-family, commercial and industrial

builders, land developers, and remodelers. It is the voice

of the American shelter industry. Protecting our meqbers’

fundamental constitutional rights, particularly involving

questions of takings and just compensation, has long been

an integral part of our activities.

NAHB has been before the Court as an amicus curiae

or as “of counsel” to the landowner in a host of critical

takings cases. These include Agins v. City of Tiburon, 447

U.S. 255 (1980); San Diego Gas & Elec. Co. v. City of San

Diego, 450 U.S. 621 (1981); Williamson County Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDonald, Sommer & Frates v. Yolo County, 477 U.S.

340 (1986); Nollan v. California Coastal Comm'n, 483

U.S. 825 (1987); Yee v. City of Escondido, 503 U.S. 519

(1992); Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992); Dolan v. City of Tigard, 512 U.S. 374

(1994); Suitum v. Tahoe Regional Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes at

' Pursuant to Rule 37.6 of this Court, amicus states that its counsel

authored this brief and amicus paid for it. This brief was not written

in whole or part by counsel for a party, and no one other than amicus

made a monetary contribution to its preparation.

2

Monterey, Ltd., 526 U.S. 687 (1999); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); and JTahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, et al., 122 S. Ct. 1465 (2002).

: SUMMARY OF ARGUMENT

The United States Court of Appeals for the Ninth

Circuit has muddled this Court’s most clearly enunciated

rule on the taking of property — that a taking oo ae

t of just compensation. Mixing elements o

shysical and regulatory takings precedents, the Ninth

Circuit opinion turns upside down this clear rule, requiring

the calculation of just compensation before finding the

existence of a Fifth Amendment takings claim. This Court

must clarify that, no matter what other remedies may also

be available, a taking requires — at a minimum -— the

payment of just compensation.

ARGUMENT

I. WHENEVER A GOVERNMENTAL BODY

TAKES PROPERTY - ANY PROPERTY -—

THE REQUIREMENT THAT JUST

COMPENSATION BE PAID IS AUTOMATIC.

There are many issues of law and public policy

implicated by this case that will be presented to this Court

in both written and oral argument. This brief focuses on

only one — that just compensation is the remedy when

private property is taken by a governmental entity.

While this proposition of law is neither novel nor

controversial, the Ninth Circuit’s opinion confuses this

simple issue. Instead of embracing the simple equation

that a taking requires just compensation, the Ninth Circuit

instead implied the reverse - that unless there is

unequivocal proof of the amount of just compensation

required, there can be no taking. “{E]ven if the IOLTA

program constituted a taking of . . . private property, there

would be no Fifth Amendment violation because the value

of their just compensation is nil.” Washington Legal

Foundation v. Legal Foundation of Washington, 271 F.3d

835, 864 (9" Cir. 2001). This misstatement of law

effectively turns takings law upside down, requiring a

calculation of just compensation before a Fifth

Amendment taking can be found to exist.

This Court’s takings jurisprudence completely

contradicts this convoluted reasoning.

The language of the Fifth Amendment

prohibits the "tak[ing]" of private property

4

for “public use" without payment of “just

compensation." As soon as private property

has been taken, whether through formal

condemnation proceedings, occupancy,

physical invasion, oF regulation, the

landowner has already suffered a

constitutional violation, and “ ‘the self-

executing character of the constitutional

provision with respect to compensation,

(citations omitted) is triggered. This Court

has consistently recognized that the just

compensation requirement in the Fifth

Amendment is not precatory: once come isa

"taking,"compensation must be awar ed.

San Diego nd & Elec. Co. v. City of San Diego, 450 U.S.

621, 654 (1981)(Brennan, J., dissenting).

Justice Brennan’s eloquent dissent, which but for

——-—— procedural questions would have been a majority opinion

with the addition of Justice Rehnquist, became this Court's

official majority position six years later.

Th{e] basic understanding of the [Fifth]

Amendment makes clear that it 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. Thus, government action that

works a taking of property rights necessarily

implicates the beer tte pee to

just compensation." (citation om!

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 314 (1987).

5

The First English majority went on to note that, “(this]

Court has frequently repeated the view that, in the event of

a taking, the compensation remedy is required by the

Constitution.” First English, 482 U.S. at 316.

Size of the compensation owed for a taking is also

irrelevant to finding the existence of a taking. While

noting that forced placement of cable television equipment

on apartment buildings might have “only minimal

economic impact on the owner,” this Court in Loretto still

required a remand for calculation of just compensation.’

Nor does the form property takes affect the rule that a

taking requires the payment of just compensation. While

real property is often the subject of takings claims, this

Court has recognized that other property - including

money — is subject to takings claims. For example, this

Court in the Phillips case found “that the interest income

generated by funds held in IOLTA accounts is the ‘private

property’ of the owner of the principal.’

That the same underlying principles of constitutional

law are applied whether real or monetary property is at

issue should not be a subject for debate in this case. It is

the application of those principles to the facts that is the

focus of disagreement here. Still, no matter what takings

analysis this Court decides to apply, it should include the

premise thai a taking requires just compensation.

* The Court went on to cite the following cases in support of this

proposition: Kirby Forest Industries, Inc. v. United States, 467 U.S.

1, 5 (1984); United States v. Causby, 328 U.S. 256, 267 (1946);

Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 304-306

(1923); and Monongahela Navigation Co. v. United States, 148 U.°.

312, 327 (1893).

* Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435

(1982).

* Phillips v. Washington Legal Foundation, 524 U.S. 156, 172 (1998).

6

This approach should apply no matter what other legal

remedies — in addition to just compensation — this Court

may find available, as the remedy of just compensation

must not be divorced from the finding of a taking.

This simple proposition of law must also not be caught

up in a debate over the IOLTA program at the center of

this case. If this Court finds that a taking exists, just

compensation must be the remedy. “As Justice Holmes

aptly noted more than 50 years ago, ‘a strong public desire

to improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the constitutional

way of paying for the change.’” First English, 482 U.S. at

321 (citing Pennsylvania Coal Co. v. Mahon, 260 US.

393, 416 (1922). And as this Court noted in Loretto,

takings may be found “without regard to whether the

action [which created the taking] achieves an important

public benefit.”

5 Loretto, 458 U.S. at 434-35.

CONCLUSION

For the reasons stated above, the Nationa!

Association of Home Builders respectfully requests that

this Court clarify the opinion of the United States Court of

Appeals for the Ninth Circuit by underscoring that a taking

requires just compensation.

DATED: August 22, 2002

Respectfully submitted,

Christopher G. Senior

Counsel of Record

Jon W. Luther

National Association

of Home Builders