# Amicus Curiae Brief — San Remo Hotel, LP v. City and County of San Francisco

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 323

## Text

| Supreme Court. DS
FILED
a
No. 04-340 OFFICE OF THE CLERK
IN THE

Supreme Court of the United States

SAN REMO HOTEL, L.P.. ET AL..
Petitioners.
A

CITY AND COUNTY OF SAN FRANCISCO, ET AL..
Respondents

On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

BRIEF OF AMICI CURIAE
DEFENDERS OF PROPERTY RIGHTS AND
NEW ENGLAND LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS

NANCIE G. MARZULLA ROBERT P. PARKER
ROGER J. MARZULLA Counsel of Record
DEFENDERS OF PROPERTY JOHN H. LONGWELL
RIGHTS ANDREW PUGLIA LEVY
1350 Connecticut Ave., N.W. PAUL, WEISS, RIFKIND,
Suite 410 WHARTON & GARRISON LLP
Washington, D.C. 20036 1615 L Street, N.W.
(202) 822-6770 Washington, D.C. 20036

(202) 223-7300
January 24, 2005 Counsel for Amici Curiae

(additional counsel listed on inside cover)
nN Naa

MICHAEL E. MALAMUT

New ENGLAND LEGAL
FOUNDATION

150 Lincoln Street

Boston, MA 02111

(617) 695-3660

r

TABLE OF CONTENTS
Page

I acreciont il
INTERES ES OF AMICT CURIA. ....00:cccccceccsccrecssscvssersseeeeess l
Gf) 2
EEE 5
I. A TAKINGS CLAIM UNDER THE FIFTH

AMENDMENT IS RIPE WHEN A STATE

OR LOCAL ADMINISTRATIVE AGENCY

ISSUES A FINAL DECISION THAT HAS THE

EFFECT OF RESTRICTING THE USE CF

PRIVATE PROPERTY WITHOUT

EEE EES 5
Il. THIS COURT SHOULD EITHER CLARIFY OR

RECONSIDER WILLIAMSON COUNTY'S

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TABLE OF AUTHORITIES

Page
CASES
21st Century Telesis Joint Venture v. FCC, 318 F.3d
ff ee Ee ee 6
Adams Outdoor Advertising v. City of East Lansing,
2001 U.S. Dist. LEXIS 5549 (W_D. Mich. 2001)............ 15
Agins v. City of Tiburon, 447 U.S. 255 (1980)................. 6
Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225
(pL Ps ee ee ee es ie SOP 17
Agostini v. Felton, 521 U.S. 203 (1997)..............cccceeeee: 8
Anderson v. Charter Township of Ypsilanti, 266 F.3d
Ge GRR Gy ee esnccdnctnedtiniatiiitinindiei tee 17
Bessette v. Avco Fin. Servs., 230 F.3d 439
CEE GR, Fee iacicsoctibimecnnittiiinidenidahémdidiiatiaiadeaes 2
Burton v. United States, 196 U.S. 283 (1905)...............0.. 8
City of Chicago v. International College of Surgeons,
aes Ce BE Ce ccennintennttiininidisidiidpiabaresienaieies 8
Crosby v. National Foreign Trade Council, 530
EE, Fe Gai tcnscenssccndsteensienuiinidnseee aie tiie 2
District of Columbia Court of Appeals v. Feldman,
SES GEE, SEs Gore itccccccectabsanbetvisesniaisliieiatnidiniens 14
DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511
GR GRR. Bie eco vsncivionmasccsdenasanieninaaana 5,17
Dodd v. Hood River County, 59 F.3d 852
GG, Bere cccscesecccstinisetsincnidnidhaasmeaiaeasias 14
Dodd v. Hood River County, 136 F.3d 1219
GEE. Fee cccseccrssinindiskimieiseteiaaiameaan 13,14

Dolan v. City of Tigard, 512 U.S. 374 (1994)............. 1, 16
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)............ 2
Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 ,

Chat Ce. FIED. “As in Hodel, Agins, and Penn Central, then, respondent has not yet
obtained a final decision regarding how it will be allowed to develop its
property. Our reluctance to examine taking claims until such a final
decision has been made is compelled by the very nature of the inquiry
required by the Just Compensation Clause.” Williamson County, 473
U.S. at 190.

not base its holding on any failure to satisfy a state litigation
requirement, any language in the Court’s decision that might
be read as imposing such a requirement should properly be
viewed as dictum. See e.g., Printz v. United States, 521 U.S.
898, 963 (1997) (stating that the Court was not bound by
language in a prior case that “was wholly unnecessary to the
decision of the case”); cf. Burton v. United States, 196 U.S.
283, 295 (1905) (“It is not the habit of the court to decide
questions of a constitutional nature unless absolutely
necessary to a decision of the case.”).‘

Even if Williamson County did impose a state
litigation requirement, there are good reasons for this Court
to reconsider it.°

* The Court's more recent decision in City of Chicago v. International
College of Surgeons, 522 U.S. 156 (1997), moreover, supports the view
that Williamson County did not impose a state litigation requirement. In
International College, the Court concluded that the district court
properly granted the City’s motion to remove, inter alia, plaintiff's
federal takings claim despite the state court's having not determined the
issue of just compensation. 522 U.S. at 529-31.

* Stare decisis “is at its weakest” when a prior decision involved the
interpretation of the United States Constitution. Agostini v. Felton, 521
U.S. 203, 217 (1997) (stare decisis policy “is at its weakest when we
interpret the Constitution because our interpretation can be altered only
by constitutional amendment or by overruling our prior decisions”);
Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)
(“Considerations of stare decisis have special force in the area of
statutory interpretation, for here, unlike in the context of constitutional
interpretation, the legislative power is implicated, and Congress remains
free to alter what we have done.”) (internal quotation marks omitted);
see also Neal v. United States, 516 U.S. 284, 295 (1996). This Court has

recognized an exception to stare decisis for precedents that have proved

“outdated, ill-founded, unworkable, or otherwise legitimately vulnerable
to serious reconsideration.” Vasquez v. Hillery, 474 U.S. 254, 266,
(1986); see also Teague v. Lane, 489 U.S. 288, 333 (1989) (Brennan, J.,
dissenting) (quoting Vasquez). The state litigation requirement that the

First, Williamson County’s doctrinal underpinnings
do not support a state litigation requirement. The Court in
Williamson County drew an analogy to claims brought
against the federal government under the Tucker Act. 473
U.S. at 194-95 (discussing Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 998-99 (1984)). In Monsanto, a chemical
company alleged that the government’s disclosure of trade
secrets submitted confidentially in compliance with the
Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”) amounted to an unconstitutional taking. 467
U.S. at 998-99. In the context of a takings claim against the
federal government, however, the Tucker Act provides the
exclusive procedural mechanism for pursuing compensation.
It also provides a federal forum for the resolution of such
cases.

The Court in Monsanto considered whether the
company could bring its Tucker Act suit immediately or first
had to exhaust FIFRA’s remedial provisions, which required
the company to participate in settlement or arbitration
proceedings. /d. at 1018-19. Seeking to reconcile the two
statutory remedies, the Court stated that “FIFRA does not
withdraw the possibility of a Tucker Act remedy, but merely
requires that a claimant first seek satisfaction through the
statutory procedure.” Jd. at 1018. The Court explained that
“(e}xhaustion of the statutory [FIFRA] remedy is necessary
to determine the extent of the taking that has occurred. To

Ninth Circuit has drawn from Williamson County presents just such a
circumstance.

® The Tucker Act provides, in part: “The United States Claims Court
shall have jurisdiction to render judgment upon any claim against the
United States founded . . . upon the Constitution, or any Act of
Congress.” 28 U.S.C. § 1491. The Tucker Act thus specifies which
federal forum is available; by no means does the statute deprive the
property owner of a federal forum — the unfortunate and unnecessary
result in this case.

the extent the operation of the statute provides
compensation, no taking has occurred and the original
submitter has no claim against the government.” /d.

The Court in Williamson County, relied on Monsanto

to conclude that: 4
taking claims against the Federal
Government are premature until the property
owner has availed itself of the process
provided by the Tucker Act. Similarly, if a
State provides an adequate procedure for
seeking just compensation, the property
owner cannot claim a violation of the Just
Compensation Clause until it has used the
procedure and been denied just
compensation.

473 US. at 195.

Monsanto’s holding was not so broad. The Court
did not require that the company “avail[] itself of the
process provided by the Tucker Act,” id. at 195 (emphasis
added); the Court’s analysis focused only on the
requirements of FIFRA. But for the settlement/arbitration
provisions of FIFRA, a Tucker Act claim would have been
immediately available. Unlike the extended administrative
and state court proceedings required to ripen a taking claim
under Williamson County, a Tucker Act claim is ripe as soon
as a remedy is denied under the challenged statute. See
Monsanto, 467 U.S. at 1018.

Monsanto, therefore, provides no basis for
Williamson County’s conclusion that the Fifth Amendment
requires a property owner to first seek compensation in state
court. If anything, Monsanto’s rule leads to a reading of
Williamson County in which a takings claim against a state
or local government is ripe when the administrative agency
has rendered a final determination as to the challenged

10

oe —

regulation. Williamson County should not be read as
extending the holding in Monsanto that the company had to
exhaust FIFRA’s remedial provisions as equivalent to its

state court litigation requirement.’

The other case cited in Williamson County for the
state court exhaustion principle, Parratt v. Taylor, 451 U.S.
527 (1981), was a Due Process Clause decision and likewise
does not support reading a state litigation requirement into
the Fifth Amendment. In Parratt, the Court held that a
prisoner’s due process claim under § 1983 was not ripe until
provided by state law. /d. at 543. The Court in Williamson
County explained that “[a] person . . . does not state a claim
under the Due Process Clause merely by alleging the
deprivation of property,” and that “the Constitution is
satisfied by the provision of meaningful process.” 473 U.S.
at 195 (“[A] state’s action is not complete [in the sense of
causing a constitutional injury] unless or until the state fails
to provide an adequate postdeprivation remedy for the
property loss.”) (citing Hudson v. Palmer, 468 U.S. 517,
532 n.12 (1984)). Parratt does not require that a party
pursue all available state-court remedies. Reading a state
litigation requirement into Williamson County thus fails to
recognize the fundamental distinction between the Takings
Clause and the Due Process Clause: The Takings Clause
requires more than just adequate process, it guarantees a
result —specifically, the fair value, in money, of the
property taken. See United States v. Miller, 317 U.S. 369,

” The Monsanto decision hinged on the specific provisions of FIFRA.
The exhaustion requirement the Court announced may well be
inapplicable to federal government actions taken pursuant to other, if not
most, statutes. “Generally, an individual claiming that the United States
has taken his property can seek just compensation under the Tucker
Act.” 467 U.S. at 1017.

11

379-80 (1943); Kirby Forest Indus., Inc. v. United States,
467 U.S. 1, 10 (1984).*

Second, the state litigation requirement that the
courts of appeals have drawn from Williamson County has
had the unintended and unfair consequences of completely
depriving property owners of a federal-court remedy for
violation of their Fifth Amendment rights.

The long-established rules of claim and issue
preclusion bar the relitigation of claims or issues in federal
court once a state court decides them. These doctrines are a
“fundamental rule of law that serve an important public
interest by ensuring a decisive end to litigation.” 18 James
Wm. Moore et al., Moore’s Federal Practice 131.12{[1]
(Matthew Bender 2003) (citing Federated Dept. Stores, Inc.
v. Moitie, 452 U.S. 394, 401 (1979) (“The doctrine of res
judicata serves vital public interests . . . This Court has long
recognized that ‘[public] policy dictates that there be an end
of litigation; that those who have contested an issue shall be
bound by the result of the contest, and that matters once

* Parratt is distinguishable on its facts, as well. The challenged conduct
in Parratt was “a random and unauthorized act by a state employee.”
451 U.S. at 541. This circumstance made provision of a pre-deprivation
hearing “impossible or impracticable” and led to the conclusion that
resort to a state’s post-deprivation remedial process was sufficient and
necessary. Williamson County, 473 U.S. at 195. As a consequence of
this “random act” predicate, Parratt has no applicability to situations “in
which the deprivation of property is effected pursuant to an established
state policy or procedure, [because in such cases] the state could provide
predeprivation process.” Jd at 195.14. Because a taking of private
property is presumably effected pursuant to an established policy or
procedure, Parratt’s post-deprivation process rule is inapplicable in the
takings arena.

12

tried shall be considered forever settled as between the
parties... ””)).”

Circuit courts have applied these principles to hold
that once a takings case is litigated in state court, it cannot
be relitigated in federal court. See, e.g., Rainey Bros.
Constr. Co. v. Memphis & Shelby County Bd. of Adjustment,
178 F.3d 1295 (6th Cir. 1999) (affirming district court’s
dismissal of takings claim adjudicated in state court based
on res judicata), cert. and reh'g denied, 528 U.S. 871
(1999); Front Royal and Warren County Indus. Park Corp.
v. Town of Front Royal, 135 F.3d 275 (4th Cir. 1998); Dodd
v. Hood River County, 136 F.3d 1219 (9th Cir. 1998)
(affirming district court’s dismissal of a takings claim
adjudicated in state court based on issue preclusion);
Wilkinson v. Pitkin County Bd. of County Comm'rs, 142
F.3d 1319 (10th Cir. 1998); Palomar Mobilehome Park
Ass'n v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993);
Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299
(11th Cir. 1992); Peduto v. City of North Wildwood, 878
F.2d 725 (3d Cir. 1989). See also John J. Delaney and
Duane Desiderio, Who Will Clean Up The “Ripeness
Mess”? A Call for Reform So Takings Plaintiffs Can Enter
the Federal Courthouse, 31 Urb. Law. 195, 203 (1999)
(“[P]roperty owners received no resolution of their taking
claims in 83 percent of [federal] District Cases [from 1990-

* Yet, this Court’s decision in Williamson County only prolongs
litigation. It effectively requires that a would-be federal takings plaintiff
challenge the allegedly unconstitutional state action twice — once in
state court, once in federal court. In other words, far from discouraging
the “second bite of the apple” that the preclusion doctrines are intended
to prevent, Williamson County force feeds it. Courts thus t ve had to
choose between traditional rules of preclusion and district court
jurisdiction on the one hand and Williamson County’s state litigation
requirement on the other.

13

1998]”).'° As this case demonstrates, a federal taking claim
may be barred, even when a state court expressly decides
only state-law issues.

Relatedly, courts have employed the Rooker-
Feldman doctrine to deprive Williamson County state-court
litigants of federal just compensation remedies. See Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983). These cases together stand for the proposition that
parties aggrie\ed by a state-court decision cannot appeal
that decision to a federal district court; rather, they must
petition for a writ of certiorari from the United States

'° The Third, Sixth and Tenth Circuits have been the most strict in
applying the doctrine of res judicata to prevent litigants from trying to
exercise their rights under the Fifth Amendment and 42 U.S.C. § 1983.
See, e.g., Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319,
1325 (10th Cir. 1998); Peduto v. City of North Wildwood, 878 F.2d 725,
726-728 (3d Cir. 1989).

The Second, Fourth, Fifth and Eleventh Circuits avoid res judicata
by allowing property owners to file initially in federal court while filing
a “reservation” in state court. This “reservation” allows the state court
to hear issues of state law while reserving federal constitutional issues to
be decided later by a federal trial. See, e.g, Santini v. Connecticut
Hazardous Waste Mgmt. Serv., 342 F.3d 118, 130, 130 n.7 (2d Cir.
2004); Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299 (11th
Cir. 1992); Front Royal & Warren County Indus. Park Corp. v. Town of
Front Royal, 135 F.3d 275 (4th Cir. 1998); Jennings v. Caddo Parish
School Bd., 531 F.2d 1331 (Sth Cir. 1976).

The Ninth Circuit has vacillated about which approach to take. It
hinted at accepting the approach of the Fourth and Eleventh Circuits in
Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995) (Dodd J).
However, in Dodd I] it went back to its old :pproach of invoking res
judicata. Dodd v. Hood River County, 136 F.3d 1219 (9th Cir. 1998)
(Dodd II). The Ninth Circuit relied on Dodd J] in the instant case in
holding that issue preclusion barred petitioners’ federal takings claim.
San Remo Hotel, L.P. v. San Francisco City and County, 364 F.3d 1088,
1095 (9th Cir. 2004).

14

Supreme Court. See generally Susan Bandes, The Rooker-
Feldman Doctrine: Evaluating Its Jurisdictional Status, 74
Notre Dame L. Rev. 1175 (1999). See, e.g., Wilkinson, 142
F.3d at 1324-25 (stating the ripeness requirement in a
federal takings claim is insufficient to preclude application
of res judicata and collateral estoppel principles, and
Rooker-Feldman doctrine precludes federal courts from
reviewing state court judgments); Gash Assoc. v. Village of
Rosemount, 995 F.2d 726, 728-29 (7th Cir. 1993) (holding
that under Rooker-Feldman, federal takings plaintiffs cannot
file collateral attacks on state court’s civil judgments in
federal district court, but instead must seek review in the
Supreme Court); Adams Outdoor Advertising v. City of East
Lansing, 2001 U.S. Dist. LEXIS 5549, *1, 12-15 (W.D.
Mich. 2001) (granting summary judgment to municipal
takings defendant based on Rooker-Feldman doctrine).
Rooker-Feldman, therefore, represents another means by
which a state litigation requirement applied by the courts of
appeals deprives takings litigants of their day in federal
court.

In sum, the requirement of duplicative adjudication
of the same claim, in addition to being a time-wasting hurdle
for the courts and litigants even when a federal claim is
allowed, often altogether bars federal courts from reviewing
plaintiffs’ Fifth Amendment claims for just compensation.
In fact, between 1990 and 1997, federal courts, citing
Williamson County, declined to review over 90 percent of
all cases that dealt with land-use takings issues. Alex F.
Annett, The Heritage Foundation, How Congress Can End
the “Regulatory Limbo” Blocking Property Owners’ Access

'' The Third Circuit recently expanded Rooker-Feldman further to apply
to any federal case in which the parties are the same and the claims are
similar. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 364 F.3d
102, 104 (3d Cir. 2004), cert. granted, 125 S.Ct. 310 (2004).

15

to Justice, FYI No. 154 October 1, 1997. No other
federally-protected right is so encumbered by a state
litigation requirement or other precunditions to federal
litigation. See, e.g., Gregory M. Stein, Regulatory Takings
and Ripeness in Federal Courts, 48 Vand. L. Rev. 1, 23
(1995) (“The state compensation portion of [Williamson]
finds no parallel in the ripeness cases fro: : » .er areas of the
law.”). And no other class of federal consu‘uvional plaintiffs
are so routinely shut out of the federal courthouse. See
Michael M. Berger, Supreme Bait & Switch, 2 Wash. U. J.L.
& Pol’y, at 124.

The Court should disavow any reading of
Williamson County that requires such a result. For one
thing, it is anomalous to suggest that a right guaranteed by
the United States Constitution may not be litigated in federal
court. See Dolan v. City of Tigard, 512 U.S. 374, 392
(1994) (“We see no reason why the Takings Clause of the
Fifth Amendment, as much a part of the Bill of Rights as the
First Amendment or Fourth Amendment, should be
relegated to the status of a poor relation in these comparable
circumstances.”); Jacobs v. United States, 290 U.S. 13, 15
(1933) (stating that an inverse condemnation suit rests on
the Fifth Amendment and is therefore based on the
Constitution: “The form of the remedy did not qualify the
right. It rested upon the Fifth Amendment. Statutory
recognition was not necessary.”).

Furthermore, no such intention can reasonably be
gleaned from the Court’s language in Williamson County.
There, in concluding that respondent’s claim was
“premature,” 473 U.S. at 185 (emphasis added), the Court
explained that respondent “has not yef” complied with the
Court’s ripeness requirements, id. at 186 (emphasis added),
and that its federal claim “[will] not be ripe until” it does so,
id. at 495 (emphasis added). This, of course, is logical: the

16

doctrine of ripeness seeks to postpone consideration of
claims where to do so would be premature. See Ohio
Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 734
(1998) (stating that withholding consideration of petitioner’s
claim would not cause significant hardship because
respondent would have “ample opportunity to bring its legal
challenge [at a later time]”). But ripeness should not be used
to preclude parties from bringing claims at all.

Recognizing the gravity of the current state of affairs
for takings plaintiffs, some circuits have crafted exceptions
to the preclusion and Rooker-Feldman doctrines for
plaintiffs who unwillingly litigate their takings claims in the
first instance in state court pursuant to Williamson County.
See, e.g., DLX, Inc., 381 F.3d at 518 n.3 (refusing to apply
Rooker-Feldman to bar petitioner's takings claim:
“Williamson County . . . clearly contemplates that a takings
plaintiff who loses her claim in state court will have a day in
federal court”); Santini, 342 F.3d at 130, 130 n.7 (holding
that, notwithstanding preclusion and Rooker-Feldman
doctrines, federal courts may hear takings cases where
petitioners pursue their inverse condemnation action in state
court to comply with Williamson County but reserve their
federal claim pursuant to England v. Louisiana Bd. of
Medical Examiners, 375 U.S. 411 (1964)); Agripost, Inc. v.
Miami-Dade County, 195 F.3d 1225 (11th Cir. 1999), cert.
denied, 531 U.S. 815 (2000) (rejecting applicability of
Rooker-Feldman doctrine in takings case where litigation in
state court was necessitated by Williamson County); cf.
Anderson v. Charter Township of Ypsilanti, 266 F.3d 487,

~ 497 (6th Cir. 2001) (holding that Rooker-Feldman bars

federal takings claim where plaintiff brought both federal
and state takings claims in state court and, after removal and
remand, failed to reserve federal claim).

17

This piecemeal approach, whereby circuit courts
seek to circumvent the harsh effects of Williamson County,
is inadequate to address the inequities leveled against
takings plaintiffs throughout the country who seek federal
guardianship of their Fifth Amendment rights from state and
local regulatory decisions. The current ripeness procedure
required by some circuit courts of appeal in the name
Williamson County compromises the efficient functioning of
the court system and simultaneously undermines a
fundamental constitutional right.

CONCLUSION

The judgment of the Court of Appeals should be
reversed.

Respectfully submitted,

NANCIE G. MARZULLA ROBERT P. PARKER

ROGER J. MARZULLA Counsel of Record
DEFENDERS OF PROPERTY JOHN H. LONGWELL

RIGHTS ANDREW PUGLIA LEVY
1350 Connecticut Ave., N.W. PAUL, WEISS, RIFKIND,
Suite 410 WHARTON & GARRISON LLP
Washington, D.C. 20036 1615 L Street, N.W.

(202) 822-6770

MICHAEL E. MALAMUT

NEW ENGLAND LEGAL
FOUNDATION

150 Lincoln Street

Boston, MA 02111

(617) 695-3660

January 24, 2005

Washington, D.C. 20036
(202) 223-7300

Counsel for Amici Curiae

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A15. Public record. Not legal advice.