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

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NO. 04-340 OFFICE OF THE CLERK

Zn The

Supreme Court Of The Anited States

SAN REMO HOTEL L.P., et al.,

Petitioners,

VS.

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 AMICUS CURIAE

FRANKLIN P. KOTTSCHADE

IN SUPPORT OF PETITIONERS

MICHAEL M. BERGER*

MANATT, PHELPS & PHILLIPS, LLP

*Counsel of Record

11355 West Olympic Boulevard

Los Angeles, CA 90064-1614

Telephone: (310) 312-4000

Attorneys for Amicus Curiae

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT 3

I WILLIAMSON COUNTY CONTAINED A

FATAL FLAW: IT WRONGLY ASSUMED

THAT A STH AMENDMENT TAKING

WITHOUT JUST COMPENSATION IS

NOT COMPLETE UNTIL A STATE

COURT ADJUDICATES THAT THE

LOCAL AGENCY REALLY WILL NOT

PAY 4

Il THE MORE RECENT DECISION IN CITY

OF CHICAGO, RENDERED A DOZEN

YEARS AFTER WILLIAMSON COUNTY,

HAD TO HAVE A SUBSTANTIVE

IMPACT ON THE "RIPENESS"

PROCEDURE IN TAKINGS CASES 13

TABLE OF CONTENTS

(continued)

iil IF WILLIAMSON COUNTY CORRECTLY

APPLIED THE 5TH AMENDMENT TO

REQUIRE STATE COURT LITIGATION IN

ORDER TO "RIPEN" FEDERAL COURT

LITIGATION, THEN LOWER COURTS

HAVE MISAPPLIED PRECLUSION

DOCTRINES TO PREVENT THE RIPENED

FEDERAL COURT LITIGATION 16

A The Premise of Williamson County

Was That Property Owners Would Be

Able To Obtain A Federal Court

Ruling On The Merits Of Their

Regulatory Taking Claims After They

First "Ripened" Their Cases In State

Court 16

B Lower Courts Have Misused

Williamson County As A Device To

Prevent Property Owners — Alone

Among Citizens — From Litigating

Federal Constitutional Issues In

Federal Court 20

CONCLUSION 27

-ii-

TABLE OF AUTHORITIES

Page

CASES

Barbian v.

694 F.2d 47 ith Cir. ann 17

Bell v. Hood,

wees YD) 10, 20

Brown v. Board of Education,

SOT UD. GD CO neenccscncncsnsscccsnssnscasnscscssnssnreneinncerscnsns 8

Chicago B.& Q.R. Co. v. Chicago,

St | |, 4

City of Chicago v. International College

of Surgeons, 522 U.S. 156 (1997)...... 2, 3, 13, 14, 15, 28

City of Monterey v. Del Monte Dunes at

Monterey, “ $26 U.S. 687 (1999) .........cccccsserssseseees 12

City of Renton v. ime Theatres, Inc.,

475 U.S. 41 ‘ast 38) hcaneapennesieiigstninnainsenientnnteenetietamniiiiiatioas 23

Complete Auto Transit, Inc. v. Brady,

450 UB. FPG CRG TD ercercsrscssenssncssnesemansssensnsstensesstntennnes 15

Cont'l T.V., Inc. v. GTE Sylvania, Inc.,

433 US. 36 ribs Lemapasnnennneesittinendeniqensunctiinedigiignenentnfenide 15

Cc

358 58 US. | $1 (1958) \sesesemngueesensnetsehesenusennsennsanesdinevsanstinisst 8

DLX, Inc. v. Commonwealth of Kentucky,

381 F.3d S11 (6th Cir, 2004)... ccccccceeeeeenenenees 21, 25

Dodd v. Hood River County,

136 F.3d 1219 (Sth Cir. 1998) ..............ccccccessessessseseeens 24

Dolan v. City of Ti

FEB UB, FeO Ce cerrsesesstreeseensiieenmeen 23

TABLE OF AUTHORITIES

(continued)

Page

England v. Louisiana State Bd. of Medical

Examiners, 375 U.S. 411 (1964) 2.0.0.0... 19, 20, 25

Estes v. Texas,

Ss Se GE cctecttnninicniectiinpentinniinnsienpiieeemnaiaiia 8

Felder v. Casey,

og 7, 11, 21

First English Evangelical Lutheran Church v.

County of Los _—

482 U. rs. ee 7,8

Fountain v. Metro Atlanta Rapid Trans. Auth.,

678 F.2d 1038 (11th Cir. 1982) 200.0... ceccescesseeseeseees 17

Funk v. U.S.,

ee ee Ue Ce erttentntnesnsmennimmaen 15

Kottschade v. City of Rochester,

319 F.3d 1038 (8th Cir. 2003), cert.

denied, No. 02-1848 (10/6/03).............cccccccsceeceeereneeeeeenee l

Larkin v. Grendel's Den,

ey ee certeiertenstiitciccrnrnsnitdemnnnenteiin 23

MacDonald, Sommer & Frates v. Yolo

Se ae Wie A ccnitnieitcemesnemepnnnniemen 7

Martino v. Santa Clara Valley Water Dist.,

yy 17

McDaniel v. Sanchez,

Re es CI enectneniinincinninininenmariniainn 16

Mitchum v. Foster,

SF ee Se rtercennsmcteinnnrentinnntnemenanttinibians 21

Monell v. Dept. of Social Services,

ee 6-

iv

TABLE OF AUTHORITIES

(continued)

Page

Monroe v. ;

ee et Ce Ce crccnccrestutmensttrnnticntennituntntinny 11, 23

Nemmers v. — of Dubuque,

764 F.2d EP Eee. HED ccncscnnunttennsmnnnsincntensinaainl 17

Nevada of Human Resources v. Hibbs,

Oe 5

Patsy v. Florida Board of

457 U.S. 496 (19B2).............cecoscceserervseveee HS Sarre seas 21

Peduto v. City of North Wildwood,

oof ge DU. 0 24

Preseault v. 1.C.C.,

ee 10, 19

Rainey Brothers Constr. Co., Inc. v. Memphis

& Shelby Bd. of Adjustment,

967 F. Supp. 9 (W.D. Tenn. 1997), affd

178 F.3d Ay 3 Cir. 1999) ine ™

(unpublished ircuit opinion at

US. Agme. LERIES G50 6 px .cccccccccscssnssscsssscssesssscsesssnesssese 24

Screws v. U.S.,

| | 11

SEC v. United Benefit Life Ins. Co.,

| lll, iS

Suitum v. Tahoe Reg. Plan. Agency,

0 Ee 26

U.S. v. General Motors Corp.,

2: 00 6

Wainwn + S

0 een 11

Wilkinson v. Pitkin County Bd. of Comm'rs,

Pk FE 24

Vv

TABLE OF AUTHORITIES

(continued)

Page

Will v. Michi y oghe Dept. of Police,

A I ic liaenleeeall 5

Willcox v. Consolidated Gas Co.,

oe! ES eee semen omc 20

Williamson County a Plan. Comm'n v.

Hamilton Bank 43 ie: - =a 1, 2, 3, 4,

INE SET iT Se A 5, 6, 7, 10, 11, 12, 13, 14, 15,

Sansniachitentiiitiaiieiamisitidiliaeanial 16, 17, 18, 19, 20, 21, 23,24,

ierieiacietahininieilan acsearle eee ne 25, 26, 27, 28, 29

Wilson v. Garcia,

Se Ces Se Ce cretrernstienitcinntizninsarlbipetiaininclengnitinnts 8

CONSTITUTION

U.S. Constitution Ist Amendment......... EE aac EO 23

U.S. Constitution Sth Amendment 3, 4, 5, 6, 8, 9, 12, 15, 16,

stencils sine iatlite aide ata lacalite 22, 23, 24, 26, 27, 28

U.S. Constitution 11th Amendment...................00..ccccccceeeeeeee 5

U.S. Constitution 14th Amendment.........................000000. 6, 23

STATUTES

ES RS Sere 3, 13, 14, 22

LE SED. een eo ee 11

4) PE es 5, 6, 21

gf A cee UATE en Sow neo 9

a es I iccrcrnnicaininiettnriintinnimnsitiiiiabetia tacit 9

Se rs Be eibeetarniittintctinitnidiidtetett eta 9

vi

TABLE OF AUTHORITIES

FED UB. GB BFS .ccccsecsssssecsccssvsnssovenvensssenssessseseewesseneeesseneeses 14

Cal. Govt, Cade § T2686 ..ccccocecsecscsssssecsessovscessssnessssssesoosesess 9

OTHER AUTHORITIES

aus»

Michael M. Berger & Gideon Kanner, Shell

Game! You Can't Get There From Here:

Supreme Court Ripeness Jurisprudence in

Takings Cases at Last Reaches the

Self-parady Stage, 36 Urban Layer 671,

ee ee 27

Robert Brauneis, The First Constitutional

Tort: The Remedial Revolution in

Nineteenth-C. Just Compensation

Law, 52 Vand. L. Rev. 57 (1999) ......cc.ccsesessccessessseeeeeses 8

J. David Breemer, Overcoming Williamson

County's Troubling State s

Rule: How the England Reservation,

Issue Preclusion ions, and the

yf Exception Open the Federal

C Door to Ripe Takings Claims,

18 J. Land Use & Envtl. L. 209 (2003) ...........ccccccceeeeeeee 8

Peter A. Buchsbaum, Should Land Use Be

Different? Reflections On Williamson

C Regi .

Hami in Taking Sides on

Takings Issues: Public and Private

Perspectives, ch. 20 (ABA 2002); Thomas

4 ER a Lee 11

TABLE OF AUTHORITIES

(continued)

David L. Callies, Regulatory Takings and the

Supreme Court: How the Perspectives on

Property Rights Have Changed From

Penn Central to Dolan, and What State

and Federal Courts Are Doing About It,

28 Stetson L. Rev. 523 (1999)........ccccesseeseesersens

Steven J. Eagle, Regulatory Takings

GGG, GED cctnescosstvectesnssessemsasrnumanseseccennmantes

Robert H. Freilich, The Public Interest Is

Vindicated: City of Monterey v. Del

Monte Dunes, 31 Urb. Law. 371 (1999)............

Robert H. Freilich, Adrienne H. Wyker

& Leslie Eriksen Harris, Federalism at the

Millenium: A Review of U.S. Supreme

Court Cases Affecting State and Local

Government, 31 Urb. Law. 683 (1999)..............

Madeline J. Meacham, The Williamson Trap,

32 Urb. Law. 239 (2000) .........ccsecercssssresrsseessees

Thomas E. Roberts, Fifth Amendment Taking

claims in Federal Court: The State

Compensation Requirement and

Principles of Res Judicata, 24 Urb. Law.

GIB a Garr rcccccsscccemsnntininnisesiasaniationtnsssocsesses

Thomas E. Roberts, Ripeness and Forum

Selection in Fifth Amendment Takings

Litigation, 11 J. Land Use & Envil. L. 37,

Fe Cae Prcccsecqrssensesessncctenisesasaianincsgigmecsennsente

Gregory M. Stein, Regulatory Takings and

Ripeness in the Federal Courts, 48 Vand.

he BED. © Cee peccccsasarenssesmnastensetenntacctiiiniaamenn

Vill

BRIEF OF FRANKLIN P. KOTTSCHADE

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

With the joint written consent of the parties filed

with the Clerk of the Court, Franklin P. Kottschade

respectfully submits this brief as amicus curiae.'

INTEREST OF AMICUS CURIAE

Franklin P. Kottschade is a realtor and real estate

developer from Rochester, Minnesota. He has been an

active leader in associations of realtors and home

builders at the national, state, and local level for many

years, and an active participant in charitable and

community projects.

Mr. Kottschade's interest in this case stems from

his own personal experiences in a similar case recently.

(Kottschade v. City of Rochester, 319 F.3d 1038 [8th

Cir. 2003], cert. denied, No. 02-1848 [10/6/03}.)

Mr. Kottschade filed his suit directly in U.S.

District Court, without attempting to "ripen" his case in

state court, as described in Williamson County Reg.

Plan. Comm'n v. Hamilton Bank, 437 U.S. 172 (1985).

As Mr. Kottschade explained, there was an extreme

danger that taking the case first to state court would

ultimately deprive him of any opportunity to have his

' Counsel for amicus curiae authored this brief in

whole and no other person or entity other than amicus or

his counsel has made a monetary contribution to the

preparation or submission of this brief.

l

federal constitutional issues heard in federal court. The

8th Circuit agreed that this concern was "justly" held.

(319 F.3d at 1041.)

The decision below bears out that concern. Here,

once the property owners had gone to state court —

under the compulsion of Williamson County — and

litigated only stave law issues there, the 9th Circuit held

that they were legally precluded from pursuing any

federal claims in federal court. (Pet. App. 4a)

Mr. Kottschade appears here as the proverbial

"Exhibit A" to the adage, "you can't get here from

there." The San Remo Hotel tried its case in state court

and was thereafter prevented from litigating in federal

court on the ground that the state court litigation was the

"equivalent" of seeking the protection of the federal

courts. (Pet. App. 4a) Mr. Kottschade's fear expressed

to the 8th Circuit proved unfortunately prophetic.

Moreover, this Court's more recent decision in

City of Chicago v. International College of Surgeons,

522 U.S. 156 (1997), allowing removal of such

"ripening" cases from state to federal courts by

defendant municipalities, had to have affected the

Williamson County requirement. Acknowledging that

the presence of both precedents exposed an "anomalous

. . . gap in Supreme Court jurisprudence” (319 F.3d at

1041), the 8th Circuit said only this Court could bridge

that gap in Mr. Kottschade's — or anyone else's — case.

Mr. Kottschade brings to this argument his

experience in trying to litigate federal constitutional

claims in federal court. He is a living, breathing

2

example of what is wrong with Williamson County as it

operates in reality.

SUMMARY OF ARGUMENT

1. It is time for the Court to reconsider the

requirement of state court litigation laid down in

Williamson County. The underlying premise of that case

goes beyond the plain language and meaning of the 5th

Amendment. A city's taking of private property without

just compensation is complete when property is taken

and compensation is not paid by the city. It does not

require a judicial determination to complete, or ripen,

the taking. And, if it did, there is no reason why such a

determination must take place in state court.

The Court's more recent decision in City of

Chicago, authorizing a municipal defendant to remove a

state court takings proceeding immediately to federal

court, emphasizes the flaw in Williamson County. As

removal is proper only if the plaintiff could have brought

suit in federal court in the first place (28 U.S.C. §

1441[a]) — something Williamson County forbids —

the two precedents dealing with state court 5th

Amendment litigation cannot consistently co-exist.

2. If the Court decides to maintain Williamson

County's rule that state litigation is necessary to "ripen"

a 5th Amendment takings claim for federal court

litigation, then lower courts need to be instructed that

general doctrines of preclusion (e.g., res judicata,

collateral estoppel, Rooker-Feldman) do not apply.

3

Unlike other kinds of litigation, takings claimants

have been told that state court litigation is required

before federal court litigation is ripe. Thus, it cannot be

that plaintiffs who do precisely as this Court instructed

and ripen their claims by litigating in state court can

then be told — as San Remo Hotel was at bench — that

the state litigation was the "equivalent" of federal

litigation and their efforts to ripen a 5th Amendment

claim automatically precluded ever bringing a Sth

Amendment claim.

I

WILLIAMSON COUNTY CONTAINED A FATAL

FLAW: IT WRONGLY ASSUMED THAT A 5TH

AMENDMENT TAKING WITHOUT JUST

COMPENSATION IS NOT COMPLETE UNTIL A

STATE COURT ADJUDICATES THAT THE

LOCAL AGENCY REALLY WILL NOT PAY.

The 5th Amendment's Just Compensation Clause

(the first element of the Bill of Rights incorporated into

the 14th Amendment's Due Process Clause)’ prohibits

governmeut from taking private property for public use

unless it pays just compensation. A violation of that

provision oc“urs as soon as government action takes

private property and the municipality fails or refuses to

pay. There is nothing in either logic or the language of

the 5th Amendment to require state court certification of

non-payment before the taking is complete.

. Chicago B.& Q.R. Co. v. Chicago, 166 U.S. 226,

241 (1897).

That is Williamson County's flaw: it held that the

taking was not complete until compensation was denied

not just by the taking entity, but also by the state courts.

Williamson County quite properly began its

analysis with the words of the 5th Amendment, noting

that the constitutional provision "does not proscribe the

taking of property; it proscribes taking without just

compensation." (473 U.S. at 194.)” The problem arises

because the Court then blurred the distinction between

acts of the agency that actually committed the taking and

the State that may or may not have provided

compensation through litigation. (473 U.S. at 195-196.)

But the state is not involved in 42 U.S.C. § 1983

cases like this one. States and their officials cannot be

sued under Section 1983 (Will v. Michigan Dept. of

Police, 491 U.S. 58 [1989]), nor (with very narrow

exceptions [Nevada Dept. of Human Resources v. Hibbs,

538 U.S. 721 (2003)]) can they be brought into federal

court at all against their will (U.S. Const., 11th

Amendment). The real issue in cases like this is whether

the local entity — like the City and County of San

Francisco at bench — is alleged to have taken private

property for public use and failed to pay for it. If so, the

question whether the city can be compelled to pay lies at

the heart of litigation in either state or federal court.

The crux of the problem with Williamson County

is that it merged the state legal system with the local

agency defendant and disregarded the plain words of the

Constitution. Nothing in the 5th Amendment requires

multiple litigation or state court deference. It does not

5

say ". . . nor shall private property be taken for public

use without just compensation as finally determined by

suing the municipal defendant in state court."*

The issue is not whether a state has countenanced

the constitutional violation, but whether the municipal

defendant has committed it. 42 U.S.C. § 1983 forbids

any person, including municipalities (Monell v. Dept. of

Social Services, 436 U.S. 658, 690 [1978]), acting under

color of state law from violating rights secured by

federal law. The gravamen of a Sth Amendment claim

is a taking of property* and nonpayment by the taker.

When a city council — like San Francisco's —

conscripts private property into public service without

any pretext of compensation, it violates the Sth

Amenc.aent. The presence or absence of a state remedy

has no bearing on whether the malefactor did the deed.

A year after Williamson County, the Court

seemed to understand this, explaining Williamson

County as being based on the premise that "a court

; Indeed, when adopted, the Sth Amendment

applied only to the federal government The 14th

Amendment applied its precepts to the states, but there

have been no developments in constitutional law

suggesting that this provision has been de facto amended

to exclude the federal courts from enforcing it.

; As explained in U.S. v. General Motors Corp.,

323 U.S. 373, 378 (1945), it is the deprivation of the

owner, not the accretion of any interest to the taker, that

constitutes the compensable taking.

6

cannot determine whether a municipality has failed to

provide ‘just compensation’ until it knows what, if any,

compensation the responsible administrative body

intends to provide." (MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340, 350 [1986]; citation omitted;

emphasis added.) At another point, the same opinion

talks of determining "if proffered compensation is ‘just.""

(477 U.S. at 350; emphasis added.) Neither formulation

requires state court litigation. If needed, a simple

inquiry can answer questions of "intent" and "proffer."

After saying that in MacDonald, the Court again

explained Williamson County as holding that “an

illegitimate taking might not occur until the government

refuses to pay" (First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 320, fn.

10 [1987]; emphasis added), without any reference to

whether a state court had refused to order payment. In

any event, if a city refuses to provide compensation as

required by the U.S. Constitution and recourse to the

courts must be had, there is no reason why such recourse

should — let alone must — be had only in state courts

when the federal constitution is being violated.

Deferring to state courts is tantamount to granting

states a veto over access to federal court, making them

de facto federal court gatekeepers. The Court has

repeatedly concluded that "Congress surely did not

intend to assign to state courts and legislatures a

conclusive role in the formative function of defining and

characterizing the essential elements of a federal cause

of action." (Felder v. Casey, 487 U.S. 131, 144 [1988],

quoting Wilson v. Garcia, 471 U.S. 261, 269 [1985].)°

Mandating suit in state court imports into the Sth

Amendment a remedial requirement when the just

compensation language is a limitation on government's

inherent power, not an invitation to sue for payment,°

and where the Just Compensation Clause is self-

executing. (First English, 482 U.S. at 315.)

If nothing else, any required suit for payment is

contrary to Congressional policy established in 1970 in

’ Granting states such a position leads to a sub rosa

resuscitation of the discredited "interposition doctrine"

that reared its head briefly in the wake of Brown vy.

Board of Education, 347 U.S. 483 (1954) (i.e., the

southern strategy of "interposing" sovereign state law to

ward off the effects of decisions like Brown), only to be

interred a few years later. (See Cooper v. Aaron, 358

U.S. 1 [1958]; see also Estes v. Texas, 381 U.S. 532, 566

[1965], in which the trial judge proclaimed that his oath

was to uphold the state constitution, rather then the

federal. Needless to say, this Court corrected him.)

‘ See Robert Brauneis, The First Constitutional

Tort: The Remedial Revolution in Nineteenth-Century

Just Compensation Law, 52 Vand. L. Rev. 57, 60-61

(1999); J. David Breemer, Overcoming Williamson

County's Troubling State Procedures Rule: How the

England Reservation, Issue Preclusion Exceptions, and

the Inadequacy Exception Open the Federal Courthouse

Door to Ripe Takings Claims, 18 J. Land Use & Envtl.

L. 209, 219-225 (2003).

the Uniform Relocation Assistance and Real Property

Acquisition Policies Act, which provides that the old

days of grabbing property first and then saying "sue me”

to the aggrieved owner are over. That Act makes it

illegal for government agencies to make it necessary for

property owners to sue for their just compensation.’

Rather, the duty is the government's to acquire whatever

property interests are needed for the public good, either

by negotiation (42 U.S.C. § 4651[1]) or, failing that,

condemnation (42 U.S.C. § 4651[8]).

In any event, if suit is required to demonstrate the

actuality of a Sth Amendment violation, there is nothing

in the 5th Amendment directing that the only place to

seek that determination is in state court. As state and

federal courts have concurrent jurisdiction to decide

constitutional claims, the choice of forum, as in other

: The Act provides succinctly, "No Federal agency

head shall intentionally make it necessary for an owner

to institute legal proceedings to prove the fact of the

taking of his real property." (42 U.S.C. § 4651[8].) To

make this a truly “uniform” law, as its title advertised,

the policies in Section 4651 were made applicable to the

states — by directing that federal funds could not be

spent on state projects unless the state agreed to comply

with these policies. (42 U.S.C. § 4655.) California, like

other states, has complied. (Cal. Govt. Code § 7267.6

[making the standard applicable to all projects, not

merely those with federal funding}.)

9

cases, should belong in the first instance to the plaintiff.*

Nor are other constitutional rights treated that

way.” Just as the Constitution forbids taking property,

but only without just compensation, so the Constitution

forbids the deprivation of life and liberty — but only if

done without due process of law: ".. . nor shall any

State deprive any person of life, liberty, or property,

without due process of law ...." And yet, plaintiffs

complaining about deprivations of life or liberty without

due process of law are not told they must first sue in

State courts to determine whether relief can be had there,

as a precondition to seeking redress in federal court.

Quite the contrary. Their suits take place in federal

court; the validity of the defendant's actions under state

law, and the availability of state remedies is irrelevant.

’ Bell v. Hood, 327 U.S. 678, 681 (1946): "a party

who brings a suit is master to decide what law he will

rely upon.”

' Williamson County's analogy to the Tucker Act's

provisions for suing the United States for a taking (473

U.S. at 194), while superficially plausible, seems inapt.

All that the Tucker Act cases say is that, before a

property owner can sue to invalidate a federal law as a

taking, the owner must first sue in a federal court for

compensation under the federal Constitution. (E.g.,

Preseault v. 1.C.C., 494 U.S. 1 [1990].) That is all the

San Remo Hotel and its owners (and others like them)

want: the ability to sue the offending municipality

immediately in a federal court for compensation for

violating the federal Constitution.

10

(See Monroe v. Pape, 365 U.S. 167 [1961] [police

brutality case not required to be preceded by state tort

suit for assault and battery]; Felder v. Casey, 487 U.S.

131, 148 [1988] [Section 1983 suits are enforceable in

federal court "in the first instance"]; cf. Screws v. U.S.,

325 U.S. 91, 108 [1945].)"°

If, as Williamson County said, the federal

violation is not ripe until a state court verifies that state

law provides no remedy, then all Section 1983 litigation

would have to begin in state courts. In the words of the

leading treatise, “If there is a reason why free speech

cases are heard by federal judges with alacrity and

property rights cases receive the treatment indicated

above [i.e., diversion to state courts], it is not readily

discernible from the Constitution." (Steven J. Eagle,

Regulatory Takings 1070 [2d ed. 2001).)""

” The lone exception is habeas corpus, where all

issues (state and federal) must be raised in state court

first. (28 U.S.C. § 2254[b].) However, once done, a

habeas petitioner is not subjected to res judicata and full

faith and credit barriers upon arriving in federal court.

The issues may be argued afresh. (See, e.g, Wainwright

v. Sykes, 433 U.S. 72, 80 [1977].)

'! See also Peter A. Buchsbaum, Should Land Use

Be Different? Reflections on Williamson County

Regional Planning Board v. Hamilton Bank, in Taking

Sides on Takings Issues: Public and Private

Perspectives, ch. 20 (ABA 2002; Thomas E. Roberts,

ed.) (contrasting the treatment of land use cases with

police brutality and parade permit cases).

ll

There is no need to sue in State court merely to

confirm the non-payment of just compensation. The

non-payment is obvious; it is the reason for the suit.

Had there been payment, there would be no litigation.

This can be seen in any regulatory taking case. In City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999), for example, the taking occurred in

1986, the case was furiously litigated, through two

appeals to the 9th Circuit and one trip to this Court.

That process consumed 13 years. At no time — even

after a trial on the merits resulted in a compensatory

judgment — did the city volunteer to pay anything. Suit

was mot necessary to determine the lack of

compensation, or the city's lack of interest in paying.

Nor is a state suit needed to inform the defendant

of the problem. Given the complexity of today's land

use procedures — usually requiring years of effort and

endless public hearings before action is taken — any

agency that is not comatose is well aware by the end of

the process that the property owner claims the city

action violates the 5th Amendment. San Francisco was

not in doubt about that claim. It simply chose not to

honor it. Imposing on the San Remo Hotel (not to

mention the time of the state courts) merely to confirm

that obvious fact serves no legitimate purpose.

With respect, Williamson County erroneously

construed the 5th Amendment to require a wasteful

detour through state courts as a precursor to federal

court litigation of a core federal constitutional issue. As

shown below, lower court efforts to grapple with this

rule, attempting to apply it while also giving deference

12

to general rules of preclusion, have created only chaos.

It is time for this Court to acknowledge the original error

and overrule the state court ripening requirement.

THE MORE RECENT DECISION IN CITY OF

CHICAGO, RENDERED A DOZEN YEARS AFTER

WILLIAMSON COUNTY, HAD TO HAVE A

SUBSTANTIVE IMPACT ON THE "RIPENESS"

PROCEDURE IN TAKINGS CASES.

In City of Chicago v. International College of

Surgeons, 522 U.S. 156 (1997), the property owner did

as instructed by Williamson County: it filed a state court

action challenging the validity of land use regulations.

The complaint raised due process, equal protection and

takings claims. (See 522 U.S. at 160.)

The Court held that it was proper for the

municipal defendant to remove the case to federal court

under 28 U.S.C. § 1441(a). Section 1441(a) permits

removal if, but only if, the plaintiff could have brought

suit in federal court in the first place, but chose not to.

The statute gives the defendant the even-handed ability

to invoke federal jurisdiction as well.

It somehow got overlooked that, as a land use

plaintiff, the International College of Surgeons could not

have sued the City of Chicago in federal court;

Williamson County precluded it. Nonetheless, the Court

held removal was proper because "a case containing

claims that local administrative action violates federal

13

law . . . is within the jurisdiction of federal district

courts." (522 U.S. at 528-529.) The Court added that

"the facial and as-applied federal constitutional claims

raised by ICS ‘arise under’ federal law for purposes of

federal question jurisdiction." (522 U.S. at 167-168.)

Justice Ginsberg's dissent emphasized City of

Chicago's mecmentous nature, characterizing the

decision as boti a “watershed” (522 U.S. at 175) and a

"landmark" (522 U.S. at 180), because:

"After today, litigants asserting federal-question

or diversity jurisdiction may routinely lodge in

federal courts direct appeals from the actions of

all manner of local (county and municipal)

agencies, boards, and commissions." (522 U.S.

at 175; Ginsberg, J., dissenting.)

Believing that the City of Chicago decision had to

impact Williamson County, Mr. Kottschade asked the

8th Circuit to reconcile them and allow suit to proceed

in federal court. After all, if the City of Chicago could

remove its litigation to federal court on the ground that it

could have been initiated there, then Frank Kottschade

ought to be able to file suit there directly under the fair

reciprocity theory underlying 28 U.S.C. § 1441(a).

The 8th Circuit acknowledged what it called an

“anomalous . . . gap in Supreme Court jurisprudence,”

but declined to address it, concluding that how to

resolve the conflict "is for the Supreme Court to say, not

us.” (319 F.3d at 1041.)

14

City of Chicago demonstrates the error in

Williamson County. Unburdened by being reminded of

Williamson County,'? the Court accurately and sensibly

concluded that Sth Amendment cases are properly

brought in federal court in the first instance.

Precedents are not cast away lightly. However,

when scholars have been critical of its decisions,’? when

application of a precedent has produced a rule that

"stands only as a trap for the unwary,"'* when necessary

to clarify the implications of earlier decisions,’* when

decisions of the Court are “if not directly .. .

[conflicting,] are so in principle,"'® or when "the answer

suggested by [the Court's] prior opinions is not free of

‘2 In fairness to the Court, the adversary system

seems to have failed. Neither of the parties to City of

Chicago cited Williamson County, and only one amicus

brief even mentioned it (and that one only tangentially),

so the Court was uninformed about the full

consequences of its actions.

‘3 Cont'l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S.

36, 48 (1977).

3 Complete Auto Transit, Inc. v. Brady, 430 U.S.

274, 279 (1977).

'S SEC v. United Benefit Life Ins. Co., 387 U.S. 202,

207 (1967).

as Funk v. U.S., 290 U.S. 371, 374 (1933).

15

ambiguity,"'’ the Court has reviewed its earlier

decisions and corrected its own errors. Each of those

factors applies to Williamson County.

Il

IF WILLIAMSON COUNTY CORRECTLY

APPLIED THE 5TH AMENDMENT TO REQUIRE

STATE COURT LITIGATION IN ORDER TO

"RIPEN" FEDERAL COURT LITIGATION,

THEN LOWER COURTS HAVE MISAPPLIED

PRECLUSION DOCTRINES TO PREVENT THE

RIPENED FEDERAL COURT LITIGATION.

If the Court cecides that Williamson County's

state court: requirement serves a constitutional purpose,

then lower courts need to be told that the determination

under state law cannot be used in conjunction with

preclusion doctrines to prevent eventual federal court

decision of the 5th Amendment taking issue.

A

The Premise of Williamson County Was That

Property Owners Would Be Able To Obtain A

Federal Court Ruling On The Merits Of Their

Regulatory Taking Claims After They First

"Ripened" Their Cases In State Court.

Even commentators opposed to landowners

litigating regulatory taking cases in federal courts

17 McDaniel v. Sanchez, 452 U.S. 130, 136 (1981).

16

concede that the plain language of Williamson County

contains a clear promise of federal court access:

"Reliance [by the Court] on the ripeness

rationale, unfortunately, suggests to property

owners that their complaints will be ripe and

heard in federal courts after their state suits are

over." (Thomas Roberts, Fifth Amendment

Taking claims in Federal Court: The State

Compensation Requirement and Principles of

Res Judicata, 24 Urb. Law. 479, 480 [1992].)

Williamson County made clear that the Court was

creating a two-step procedure for regulatory taking

cases. Its plain language shows that the Court was (a)

deciding whether a claim was yet ripe for litigation in

federal court and (b) that there were things which first

had to be done in state court after which the federal

constitutional claims would be ripe for federal court.

The Court's analytical discussion began by saying

that ". . . respondent's claim is premature." (473 U.S. at

185; emphasis added.)'* Prematurity necessarily means

that something is yet to be done to make the matter

‘8 The Court did not say there was no valid claim.

Nor could it. Federal courts at that time had dealt with

such claims — as they routinely dealt with other Bill of

Rights claims — for years. E.g., Nemmers v. City of

Dubuque, 764 F.2d 502 (8th Cir. 1985); Martino v.

Santa Clara Valley Water Dist., 703 F.2d 1141 (9th Cir.

1983); Barbian v. Panagis, 694 F.2d 476 (7th Cir.

1982); Fountain v. Metro Atlanta Rapid Trans. Auth.,

678 F.2d 1038 (11th Cir. 1982).

17

mature, or jurisprudentially ‘ripe.". W.'liamson County

then said that, because of failure to cbtain a final

administrative determination (not at issue here) and

failure to sue under state law, ". . . respondent's claim is

not yet ripe." (473 U.S. at 186; emphasis added.)

Throughout the opinion, the Court emphasized

the temporal nature of its holding, repeatedly saying that

such cases can be ripened and then litigated in federal

court. The Court's language demonstrated that the Court

plainly was delaying a property owner's entry into the

federal courthouse, not barring it:

"A second reason the taking claim is not yet

ripe is that respondent did not seek

compensation through the procedures the State

has provided for doing so." (473 U.S. at 194;

emphasis added.)

"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 U.S. at 195; emphasis added.)

".. . until [plaintiff] has utilized that procedure,

its taking claim is premature." (473 U.S. at

197; emphasis added.)

The opinion ended as it began, with this conclusion:

"[R]espondent's claim is premature, whether it

is analyzed as a deprivation of property without

18

due process under the Fourteenth Amendment,

or as a taking under the Just Compensation

Clause of the Fifth Amendment." (473 U.S. at

200; emphasis added.)

As noted above, Williamson County analogized to

takings litigation involving federal-statutes. (473 U.S. at

195.) To the extent that analogy has utility, it is this:

before a plaintiff can sue in U.S. District Court for a

declaration that a federal statute is invalid as at _

uncompensated taking of property, she must first sue in

the Court of Federal Claims to seek compensation. If

compensation is denied, litigation regarding invalidation

becomes ripe. But the denial of compensation doesn't

preclude the later suit, it ripens it. (See Preseault v.

L.C.C., 494 U.S. 1 [1990].)

So, here, once the state courts conclude as a

matter of state law that compensation is not required,

then federal litigation — on a clean slate — is timely.'®

'9 A clean slate is necessary, as the Court has

recognized in the abstention context: "How the facts are

found will often dictate the decision of federal claims. It

is the typical, not the rare, case in which constitutional

claims turn upon the resolution of contested factual

issues. ... Thus, in cases where, but for the application

of the abstention doctrine, the primary fact

determination would have been by the District Court, a

litigant may not be unwillingly deprived of that

determination . .. [nor of] his right to litigate his federal

claims fully in the federal courts." (England, 375 U.S.

at 416-417; emphasis added.)

19

Lower Courts Have Misused Williamson County As A

Device To Prevent Property Owners — A!one

Among Citizens — From Litigating Federal

Constitutional Issues In Federal Court.

Williamson County's evident establishment of a

system by which property owners could eventually

litigate federal issues in federal court was in keeping

with a long line of decisions holding that those who

plead federal claims and seek the aid of federal courts

have a right to a federal determination. (E.g., Willcox v.

Consolidated Gas Co., 212 U.S. 19, 40 [1909]; Bell v.

Hood, 327 U.S. 678, 681 [1946]; England v. Louisiana

State Bd. of Medical Examiners, 375 U.S. 411, 415

[1964].) As the Court put it, there are "fundamental

objections" to compelling a plaintiff who has

legitimately invoked federal jurisdiction "without his

consent and with no fault of his own, to accept instead a

State court's determination of those claims." (England,

375 U.S. at 415.) And yet accepting California's

determination — against their will — is precisely what

the 9th Circuit compelled Petitioners to do here.

Williamson County was founded on the twin

concepts of "not yet" and "not until." But lower courts

have lost track of that. Instead, property owners — like

San Remo Hotel — who satisfy Williamson County find,

when attempting to file their now-ripened federal suits,

that the door is barred by res judicata, collateral

estoppel, or some other preclusion doctrine. Thus, the

upshot is that this Court's endorsement of property

20

owners’ right to litigate in federal court after ripening

their suits in state court has been overruled by lower

courts. Instead, takings plaintiffs have been banished to

state courts.

If that had been this Court's intent, Williamson

County could have said so. Directly. But it did not.

Neither Williamson County, nor the Congress that

enacted 42 U.S.C. § 1983 had that in mind. Quite the

contrary.” In a recent decision, the 6th Circuit was

unequivocal:

"Williamson County . . . clearly contemplates

that a takings plaintiff who loses her claim in

state court will have a day in federal court."

(DLX, Inc. v. Commonwealth of Kentucky, 381

F.3d 511, 518, fn. 3 [6th Cir. 2004] [refusing to

apply Rooker-Feldman doctrine].)

” The Court has been unequivocal that the goal of

Section 1983 is "to provide compensatory relief to those

deprived of their federal rights by state actors" (Felder

v. Casey 487 U.S. 131, 141 [1988]; emphasis added) by

"interpose[ing] the federal courts between the States and

the people, as guardians of the people's federal rights."

(Mitchum v. Foster, 407 U.S. 225, 243 [1972]; emphasis

added.) To effectuate that goal, Congress intended to

"throw open the doors of the United States courts" to

those who alleged deprivation of constitutional rights

"and to provide these individuals immediate access to

the federal courts ...." (Patsy v. Florida Board of

Regents, 457 U.S. 496, 504 [1982]; emphasis added.)

21

All commentators agree that the Court's words

plainly tell property owners that the way to litigate their

5th Amendment claims in federal court is to "ripen"

them by litigating first in state court, repairing thereafter

to federal court.’

Other than property owners seeking constitutional

redress, federal claimants are not required to "ripen"

claims in state courts. (E.g., Robert H. Freilich,

Adrienne H. Wyker & Leslie Eriksen Harris, Federalism

at the Millenium: A Review of U.S. Supreme Court

Cases Affecting State and Local Government, 31 Urb.

Law. 683, 685 [1999].) "The state compensation portion

of [Williamson] finds no parallel in the ripeness cases

from other areas of the law." (Gregory M. Stein,

Regulatory Takings and Ripeness in the Federal Courts,

48 Vand. L. Rev. 1, 23 [1995].)

Indeed. Other Section 1983 litigation is not

- E.g., Steven J. Eagle, Regulatory Takings 1063

(2d ed. 2001) ("The ‘ripeness' metaphor is one that

promises ultimate vindication"); Thomas E. Roberts,

Ripeness and Forum Selection in Fifth Amendment

Takings Litigation, 11 J. Land Use & Envtl. L. 37, 67

(1995) ("the language . . . suggests that the state law suit

is merely preparatory to a federal suit"); Madeline J.

Meacham, The Williamson Trap, 32 Urb. Law. 239

(2000) ("language . . . suggested that, eventually, a

litigant's taking claim would be heard in federal court");

Id. at 249 ("language of Williamson suggests that a

federal claim will survive after disposition in the state

court").

22

subjected to any state court litigation requirement:

"It is no answer that the State has a law which if

enforced would give relief. The federal remedy

is supplementary to the state remedy, and the

- latter need not be first sought and refused before

the federal one is invoked." (Monroe v. Pape,

365 U.S. 167, 183 [1961].)

But property owners with Sth Amendment claims,

and they alone, are denied the benefit of that rule.” The

mechanism lower courts have used to thwart both the

plain language and evident intent of Williamson County

and federal claimants’ right of access to federal court has

been to combine Williamson County's requirement of

state court litigation with general doctrines of claim and

issue preclusion.

Federal cases dismissing property owners’

"ripened" efforts at federal court litigation abound. (In

addition to the case at bench, see, e.g., Dodd v. Hood

2 Even property owners face no such ripeness

hurdle if they raise /st Amendment claims. (See, e.g.,

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

[1986]; Larkin v. Grendel's Den, 459 U.S. 116 [1982].)

Only 5th Amendment claims receive this second-class

treatment, (Compare 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 the Fourth

Amendment, should be relegated to the status of a poor

relation... ."].)

23

River County, 136 F.3d 1219 [9th Cir. 1998]; Peduto v.

City of North Wildwood, 878 F.2d 725 (3d Cir. 1989];

Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d

1319 [10th Cir. 1998]; Rainey Brothers Constr. Co., Inc.

v. Memphis & Shelby County Bd. of Adjustment, 967 F.

Supp. 998 [W.D. Tenn. 1997], aff'd 178 F.3d 1295 [6th

Cir. 1999}[table][unpublished 6th Circuit opinion at

1999 U.S. App. LEXIS 6396].)

Thus, according to these cases, “the very act of

‘ripening’ a case also ends it." (Robert H. Freilich, The

Public Interest Is Vindicated: City of Monterey v. Del

Monte Dunes, 31 Urb. Law. 371, 387 [1999].) In Prof.

Roberts’ colorful words:

“Ironically, an unripe suit is barred at the

moment it comes into existence. Like a tomato

that suffers vine rot, it goes from green to

mushy red overnight. It is never able to be

eaten." (Thomas E. Roberts, Ripeness and

Forum Selection in Fifth Amendment Takings

Litigation, 11 J. Land Use & Envtl. L. 37, 72

[1995].)

As seems evident from the language of

Williamson County and its underlying theory of

“ripening” matters for federal court litigation, this Court

intended no such thing. Rather, it preserved property

owners’ opportunity to litigate their 5th Amendment case

in federal court. It is therefore apparent that the lower

24

i

courts are undermining the Court's intent.”

A recent decision agrees that the Court could not

have designed this result:

"The barring of the federal courthouse door to

takings litigants seems an unanticipated effect

of Williamson County, and one which is unique

to the takings context, as other § 1983 plaintiffs

do not have the requirement of filing prior state-

court actions; reading Williamson County, the

expectation is that an unsuccessful state plaintiff

will then return to federal court." (DLX, 381

F.3d at 520.)

3 The Court made it crystal clear in England, 375

U.S. at 416-417 that limiting a litigant to certiorari

review from a state supreme court was not an acceptable

substitute for full federal court litigation. (The decision

below, holding the state court decision the “equivalent”

of federal litigation [Pet. App. 4a] cannot be reconciled

with the Court's view. See David L. Callies, Regulatory

Takings and the Supreme Court: How the Perspectives

on Property Rights Have Changed From Penn Central to

Dolan, and What State and Federal Courts Are Doing

About It, 28 Stetson L. Rev. 523, 574 [1999] [lower

courts are not hearing or not wanting to hear the

Supreme Court].) Besides, state courts often dispose of

cases on the basis of state law — as the California

Supreme Court consciously did at bench (Pet. App.

107a, fn. 1, 170a, 194a) — so that seeking certiorari

from such a decision may not even be possible.

25

The general preclusion doctrines being used to

bar property owners from federal court were known to

this Court when it decided Williamson County. They are

the stuff of first year civil procedure. Just as plainly,

Williamson County established a system that mandated

dual court litigation: first in state court, to test the state

compensation remedy and thereby “ripen” the case,

followed by an action in federal court, to litigate the

merits of the underlying 5th Amendment claims. That

was an inefficient process, but at least it was rational.

But if the lower courts are correct, then the

Williamson County “ripening” procedure was stillborn,

and the Court wasted its time in formulating it. As the

10th Circuit put it, “It is difficult to reconcile the

ripeness requirements of Williamson with the laws of res

judicata and collateral estoppel.” (Wilkinson, 146 F.3d

at 1325, fn. 4.)

Mr. Kottschade believes it would be preferable to

re-examine the underpinnings of Williamson County and

overrule its state litigation requirement. As _ the

American Planning Association once forthrightly told

the Court, “[t]his Court should . . . eliminate the second

prong of the ripeness doctrine that requires landowners

to seek and be denied just compensation through

available state procedures." (Amicus Curiae Brief of

American Planning Association in Suitum v. Tahoe Reg.

Plan. Agency, 520 U.S. 725 [1997].)

However, if the inefficient, double litigation,

ripening system is to be retained, then lower courts need

to be instructed that the general doctrines of preclusion

26

do not apply in these cases. A special procedure has

been created for regulatory taking cases that requires

initial application to state courts, and the act of

following that procedure cannot thereafter be used to

prevent the ripened suit from being tried on its merits.

CONCLUSION

Williamson County's requirement of ripening Sth

Amendment takings claims in state court is one of those

ideas that probably sounded good at a theoretical level.

As it has been applied during the past two decades,

however, it has been a nightmare. It has caused needless

anguish to property owners (some of whom, like Mr.

Kottschade, are filing amicus curiae briefs here to share

their experiences and concerns with the Court). It has

caused wastefully duplicative litigation for state and

federal court systems. And it has created a field day for

criticism by lower courts and commentators.”

Citizens, lawyers, and — particularly — busy

trial judges don't work at a theoretical level. Of

necessity, they are concerned with nuts and bolts, rather

than casuistically parsing words and theories and

** A collection of colorful critiques like "absurd,"

“shocking,” “draconian,” “fraud,” “hoax,” and

"Kafkaesque" (and many more) may be found in

Michael M. Berger & Gideon Kanner, Shell Game! You

Can't Get There From Here: Supreme Court Ripeness

Jurisprudence in Takings Cases at Long Last Reaches

the Self-parody Stage, 36 Urban Lawyer 671, 702-703

(2004).

27

attempting to fit unfamiliar concepts (like the state court

ripeness rule) into a matrix that already includes rules of

claim and issue preclusion with which industrious trial

judges work on a daily basis.

The idea that property owners with 5th

Amendment claims — alone — should be precluded

from asking federal courts to rule on their federal claims

is anathema. It undercuts the Bill of Rights and

minimizes the protections afforded American citizens.

Indeed, the sum and substance of the lower court

decisions applying variants of what they perceive to be

the Williamson County rule is that property owners’ Sth

Amendment takings claims cannot be heard in any

court, state or federal. Why? Because by the time they

finish litigating their state constitutional taking claim in

state court, that decision will have preclusive effect not

only on a subsequent federal suit, but on any later

attempt by the state court to adjudicate the Sth

Amendment claim. Whatever that is, it is not law. Itis —

a tragic-comic parody of law. _

It is time to call a halt to the pointless, and plainly

unintended, game playing to which property owners

have been subjected. They have become the

shuttlecocks of constitutional litigation, subject to

dismissal under Williamson County if they deign to file

in federal court, but also subject to removal under City

of Chicago if they file in state court and their municipal

opponents would prefer a federal forum. Constitutional

rights deserve better.

28

Either Williamson County's state court litigation

requirement needs to be overruled, or lower courts need

to be clearly told that the concept of "ripening" means

just that: ripening. It cannot be a poison pill, nor can it

convert state court litigation into the "equivalent" of

federal court litigation if the Constitution is to have

meaning.

Respectfully submitted,

Michael M. Berger*

Manatt, Phelps & Phillips

*Counsel of Record

11355 W. Olympic Blvd.

Los Angeles, CA 90064

(310) 312-4185

Attorneys for Amicus

Curiae Frank Kottschade