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

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OFFicg -

Supreme Court of the United States

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

Petitioners,

CITY AND COUNTY OF SAN FRANCISCO, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE STATES OF NEW JERSEY,

COLORADO, DELAWARE, HAWAII, MARYLAND,

MISSOURI, MONTANA, OKLAHOMA AND

WEST VIRGINIA AS AMICI CURIAE

IN SUPPORT OF THE RESPONDENTS

PETER C. HARVEY

Attorney General of New Jersey

Attorney for State of New Jersey

R.J. Hughes Justice Complex

P.O. Box 093

Trenton, New Jersey 08625

(609) 633-0918

PATRICK DEALMEIDA

Assistant Attorney General

Counsel of Record

BRIAN WEEKS

Deputy Attorney General

On the Brief

[Additional Counsel Listed Inside Front Cover]

EBEST AVAILABLE COPY

se ee "

John W. Suthers

Attorney General of Colorado

1525 Sherman Street, 7” Fl

Denver, CO 80203

(303) 866-3557

M. Jane Brady

Attorney General of Delaware

820 N. French Street

Wilmington, DE 19801

(302) 577-8400

Mark J. Bennett

Attorney General of Hawaii

425 Queen Street

Honolulu, HI 96813

(808) 586-1500

J. Joseph Curran, Jr.

Attorney General of Maryland

200 St. Paul Place

Baltimore, MD 21202

(410) 576-6300

Jeremiah W. (Jay) Nixon

Attorney General of Missouri

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

(573) 751-3321

Mike McGrath

Attorney General of Montana

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-1380

W.A. Drew Edmondson

Attorney General of Oklahoma

2300 N. Lincoln Boulevard

Suite 112 |

Oklahoma City, OK 73105

(405) 521-3921

Darrell V. McGraw, Jr.

Attorney General of

West Virginia

Office of the Attorney General

State Capitol, Room 26-E

Charleston, WV 25305

(304) 558-2021

QUESTION PRESENTED

Is a Fifth Amendment Takings claim barred by issue

preclusion based on a judgment denying compensation solely

under state law, which was rendered in a state court

proceeding that was required to ripen the federal Takings

claim?

TABLE OF CONTENTS

PAGE

GEE RSS DUMUEIEED. cc cec cc decetetcnevcs i

INTEREST OF AMICICURIAE ............... |

STATEMENT OF THE CASE .......ccecceees 2

SUMMARY OF THE ARGUMENT .............

ARGUMENT

1. THE FULL FAITH AND CREDIT ACT BARS

RELITIGATION OF A TAKING CLAIM IN

FEDERAL COURT WHERE THE STATE COURT

ALREADY HAS ADJUDICATED THE SAME

GRE avi dadendviesuns ba eeceene waews

2. A RESERVATION OF -RIGHTS UNDER

ENGLAND DOES NOT ALLOW DUPLICATIVE

LITIGATION IN FEDERAL COURT OF A

TAKING CLAIM THAT HAS BEEN FULLY

LITIGATED IN A STATE COURT, AND WHICH

WOULD BE UNNECESSARILY BURDENSOME

ON STATE AND LOCAL GOVERNMENTS AND

BOTH COURT SYSTEMS ...........2006:.

3. THE LOWER FEDERAL COURTS LACK

SUBJECT MATTER JURISDICTION TO

REVIEW PETITIONERS' FEDERAL TAKING

GREED 6:6 ce erctdancens ene vave eases ae

——— oe —

SS ee oe +

PAGE

Allen v. McCurry, 449 U.S. 90 (1980) 6, 7,9, 10, 13, 19

Bianchi v. Rylaarsdam, 334 F.3d 895 (9th Cir. 2003) . . 17

DEED acnecckde oa saaa's 1, 12, 16, 17

Dodd _v. Hood River County, 59 F.3d 852 (9th Cir.

RE RE Sr eee eee 8

375 US, 411 (1964) ......... 3, 4, 9, 10,11, 12

FERC v. Mississippi, 456 U.S. 742 (1982)......... 14

First English E tical Lut Church of Glendal

y. County of Los Angeles, 482 U.S. 304 (1987) 12, 18

a SRS 384 F.3d 437 (7th Cir.

DE wale wea hac pieeah tease baae ae as ll

Howard vy. Whitbeck, 382 F.3d 633 (6th Cir. 2004) ... 17

“+.

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261

oo bckwd Bc cen a abe be cach eas 18

Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982)

Uae asec eh eh kw eeeed CUR Te Reka eke 18

Metzger v. Village of Cedar Creek, 370 F.3d 822 (8th

Pe ci ccndhdehcaen wan Daetek eee 17

Migra v. Warren City Schoo! District Board of Ed., 465

i mF” RR eRe Tiie hs a 7, 10, 19

Moccio v. New York State Office of Court Admin., 95

Fry * |. (eaGAa ene ce 17

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) . 9

Peduto v. City of N. Wildwood, 878 F.2d 725 (3d Cir.

PRPS Nees Rn i neh 13

Penn Central Trans. Co. v. New York City, 438 U.S.

A RR RE Sage on eee Ee Seine 1,4

Printz v. United States, 521 U.S. 898 (1997) ....... 8

Railroad Comm'n of Texas v. Pullman Co., 312 U.S.

ee oe a A oe an aaa ka 4,10

Rooker v. Fidelity Trust Co., 263 U.S.

eee oh Pare 1, 12, 16, 17

San Remo Hotel v. City and County of San Francisco, 27

SP | arrears 2, 8, 14, 15

Stone v. Powell, 428 U.S. 465 (1976) ............ 18

Testa v. Katt, 330 U.S. 386 (1947) .............. 8

Walker v. Horn, 385 F.3d 321 (3d Cir. 2004) ....... 17

Willi C aeideist Cite teleate ys

Hamilton Bank of Johnson City, 473 U.S. 172

Ng oon hee « Kas 11, 12, 13, 14, 15, 17

Younger v. Harris, 401 U.S. 37 (1971) ........... 6

UNITED STATES CONSTITUTION

Full Faith and Credit Clause, Article IV, §1 ........ ]

ED RE cet cc cevinetereeutins 14

Fourteenth Amendmem .............+:; 10, 14, 18

STATUTES

Be es CREE 6 uke PURE CK COOSA RON 16

PP EDs 64 w Case Whoo 1,3, 5,67, 8, 10, 13

Sp es EE 6 veh Oe kee Oka kes bee eb 7

FEDERAL RULES OF CIVIL PROCEDURE

i Pe ech nee bad eee cde nwewten 17

2. 6 6s 6 nin kOe OE wee a Oe ee 0 ewes 1]

LAW REVIEW ARTICLES

Roberts, Thomas E., “Procedural Implications of

Williamson County/First English in Regulatory

Takings Litigation; Reservations, Removal,

Diversity, Supplemental Jurisdiction, Rooker-

Feldman, and Res Judicata,” 31 ELR 10353, 10354

CD, SED wk Cea e ey Viste Cue es A euewsa 12

Sterk, Stewart R., “The Federalist Dimension of

Regulatory Takings Jurisprudence,” 114 Yale L.J.

_ & & Pererverrr creer fe ae 8

INTEREST OF AMICI CURIAE

The States have a critical, constitutional interest in

upholding our federal system, as embodied in the Full Faith

and Credit Clause, Art. IV, §1, of the United States

Constitution, enacted through the Full Faith and Credit Act,

28 U.S.C. §1738. A federal court should apply the Full Faith

and Credit Act to preclude relitigation of a regulatory takings

claim after a state court has issued a final judgment on the

merits of the identical issues, if the state law is at least as

protective of constitutionally recognized property rights as

federal law. This is particularly critical in states whose laws

prohibit claim splitting. Petitioners’ contrary argument would

encourage duplicative relitigation of issues already decided in

the state courts, establishing the federal courts as courts of

review over the state courts, contrary to constitutional

principles and in violation of the Rooker-Feldman doctrine

and principles of res judicata and collateral estoppel. The

lower federal courts lack subject matter jurisdiction to review

the final judgment of a state court.

Taking claims involve a very labor-intensive and fact-

sensitive inquiry, as required by Penn Central and its

progeny. Duplicative litigation of compensation issues that

already have been litigated in the state courts would place

upon State and local governments a tremendous financial

burden that would contradict our federal system and could

obstruct the fundamental ability of local and _ state

governments to make decisions regarding local land use

concerns.

The petitioners’ theory, if adopted by this Court,

would undermine the Full Faith and Credit Act and the

federalism principles it represents, forcing government

entities into duplicative relitigation of issues already decided

in the State courts. This action also concerns State amici

because the case below involves petitioners’ second federal

court filing of issues and claims that already were litigated in

both federal and state court, as well as forum shopping tactics

that already have consumed inordinate public resources.

STATEMENT OF THE CASE

State amici rely upon the statement of procedure and

facts set forth by the California Supreme Court in San Remo

Hotel v. City and County of San Francisco, 27 Cal.4th 643

(2002), and the additional procedure and facts set forth by the

Ninth Circuit Court of Appeals in San Remo Hotel v. San

Francisco City and County, 364 F.3d 1088 (2004).

Despite voluntarily filing the first action in federal

court, in their 1997 initial appeal to the Ninth Circuit, 145

F.3d 1095, petitioners argued for the first time that, after all,

the district court should not have decided the taking claim but

instead should have abstained until resolution of a state court

litigation. The Ninth Circuit abstained to allow the state

courts to decide whether the hotel was residential or

commercial, under the San Francisco ordinance. The Ninth

Circuit did not direct or expect petitioners to litigate their

takings claim, under federal or state law, in the state court.

After litigating the same issues unsuccessfully in the state

courts, up to and including the California Supreme Court,

_ petitioners brought their taking claim back again to the federal

court based upon the very same facts. The district court

dismissed petitioners’ claims as time-barred but indicated that,

if it were to rule on the merits, it would find in favor of San

Francisco. Petitioners then appealed to the Ninth Circuit for

a second time in 2004, 364 F.3d 1088. The Ninth Circuit

noted that California state takings law is equivalent to federal

takings law, and affirmed under principles of issue preclusion.

SUMMARY OF THE ARGUMENT

The Full Faith and Credit Act bars relitigation of a

regulatory taking claim in federal court where a competent

state court already has adjudicated the state and federal

claims. Principles of federalism, as well as principles of res

judicata and collateral estoppel, preclude a duplicative

collateral attack upon the final decision of a state court, which

under these circumstances, is not a right recognized under

England v. Louisiana State Board of Medical Examiners, 375

U.S. 411 (1964). As long and repeatedly noted by this Court,

state courts are perfectly capable of adequately addressing and

protecting rights guaranteed under federal law.

Relitigating regulatory taking claims in federal court,

where the state court allows litigation of the federal claim or

where the claimant litigates its compensation claim under state

law standards that are equivalent to federal law standards,

would be both prohibitively burdensome upon State resources

and would infringe improperly upon the sovereignty of the

States. All issues that were or could have been litigated in

state court should be binding upon the claimant. Moreover,

a federal-law based taking claim that was litigated under state

law, which is at least as protective of constitutionally

recognized rights as federal law, should preclude relitigation

of the same claim in federal court. If state law prohibits claim

splitting, the federal courts must accord the judgments of

those state courts the same preclusive effect as judgment s of

the federal courts. State amici respectfully ask the Court to

affirm the judgment below and its holding that an England

reservation does not allow relitigation of a taking claim that

already has been fully litigated in State court under equivalent

legal standards.

-Once a state court of competent jurisdiction has

reviewed and ruled upon a federal claim, the lower federal

courts lack subject matter jurisdiction over that claim.

Moreover, a reservation of rights under England is not

effective when the federal court does not have jurisdiction, as

in the case of an unripe claim, or in the absence of a Pullman

reservation. In any event, England does not change the

subject matter jurisdiction of the lower federal courts.

Accordingly, an England reservation will not allow

duplicative litigation in federal court of a taking claim that has

been fully litigated in a state court.

This Court has consistently ruled that adjudication of

a regulatory taking claim involves an ad hoc factual analysis.

Penn Central Trans. Co. v. New York City, 438 U.S. 104,

124 (1978). Thus, litigating a federal-law based taking claim

requires intensive discovery, often including multiple

depositions, voluminous document production and review;

preparing, analyzing and revising land use plans; preparing

expert reports and taking expert testimony on the conditions

of and uses for a property; and preparing and analyzing

appraisals of property values. The same discovery is required

to litigate a state-law based inverse condemnation claim. Due

to their obligations under the Fifth Amendment, the state

courts must be at least as protective of constitutionally

recognized rights when litigating a claim for compensation

under state law as they must when litigating a taking claim

under federal law, and as a federal court must when litigating

a taking claim.

The determination by a state court under state law of

whether a claimant is entitled to compensation as a result of

a regulatory activity should entirely resolve all issues material

to the federal law taking claim. Otherwise, the federal court

will require either the duplication of a typically very lengthy

and labor-intensive litigation, or the filing of summary

ee ee ee ee ee

~~ a oe

judgment motions under federal law that will apply standards

equivalent to the state court’s decision under state law. The

exercise of completely relitigating the case in federal court is

time-consuming and expensive; to do so more than once

would be both oppressive and legally groundless. The

alternative of inviting a federal court ruling applying the

equivalent legal standard merely invites inconsistent rulings

by the state and federal trial courts, an outcome that the Full

Faith and Credit Act prohibits.

The course argued by petitioners would intimidate

local and state governments with the specter of endless

litigation of claims that already have been fully litigated in a

state court under substantively identical law. Ultimately,

petitioners would impose further burdens on the tax-paying

citizenry. Citizens would bear the burdens of either paying to

repeatedly defend the regulatory actions of their state and

local governments, after their state courts had found them

constitutional by applying a federally equivalent legal review,

or enduring the diminution of the power of their own elected

government to decide appropriate land uses in their

communities. Our federalist system prohibits such duplicative

litigation and intrusion into state sovereignty.

ARGUMENT

1. THE FULL FAITH AND CREDIT ACT

BARS RELITIGATION OF A TAKING

CLAIM IN FEDERAL COURT WHERE

THE STATE COURT ALREADY HAS

ADJUDICATED THE SAME CLAIM

UNDER EQUIVALENT LEGAL

STANDARDS.

Federal courts must give preclusive effect to

State-court judgments whenever courts of the State from which

the judgments emerged would do so:

[Jjudicial proceedings [of any court of any

State] shall have the same full faith and credit

in every court within the United States and its

Territories and Possessions as they have by

law or usage in the courts of such State ....

28 U.S.C. §1738; Allen v. McCurry, 449 U.S. 90, 95 (1980).

The federal courts have consistently accorded

preclusive effect to state court judgments, because res judicata

and collateral estoppel not only reduce unnecessary litigation

and foster reliance on adjudication, but also promote the

comity between state and federal courts that has been

recognized as a bulwark of the federal system. See Younger

v. Harris, 401 U.S. 37, 43-45 (1971).

Thus, the Full Faith and Credit Act prohibits

duplicative litigation of a matter already fully litigated in a

state court under equivalent legal standards. The purpose of

ROCA nee NE ed TL

the Full Faith and Credit Act is to further our federalist form

of government. Application of the Act on the facts presented

here is both fair and consistent with this Court's

jurisprudence.

In Allen v. McCurry, this Court specifically found that

“nothing in the language or legislative history of [42 U.S.C]

§1983 proves any congressional intent to deny binding effect

to a state-court judgment or decision when the state court,

acting within its proper jurisdiction, has given the parties a

full and fair opportunity to litigate federal claims, and thereby

has shown itself willing and able to protect federal rights."

449 U.S. at 103-104. This Court has extended Allen to find

that it precludes the federal courts from considering any claim

that could have been brought in state court but was not

asserted there, applying the traditional doctrine of collateral

estoppel. Migra v. Warren City School Dist. Board of Ed.,

465 U.S. 75, 83-85 (1984). In Migra, this Court explained:

Although [giving state-court judgments issue

preclusive but not claim preclusive effect] may

seem attractive from a plaintiff's perspective,

it is not the system established by §1738. That

statute embodies the view that it is more

important to give full faith and credit to

state-court judgments than to ensure separate

forums for federal and state claims. This

reflects a variety of concerns, including notions

of comity, the need to prevent vexatious

litigation, and a desire to conserve judicial

resources.

Id., 465 U.S. at 84.

Since the Fifth Amendment requires that litigation of

a compensation claim in state court must be at least as

protective of constitutionally recognized rights as federal law,

the state court will determine the substance of the taking

claim. Relitigating the legally equivalent claim in federal

court would place form over substance, and would risk

contradictory results based on essentially the same legal

standard. See Dodd v. Hood River County, 59 F.3d 852, 863

(9th Cir. 1995) (collateral estoppel bars federal takings claim

if state court's earlier decision on state law takings claim was

"an equivalent determination under the federal taking

clause"); see also Sterk, Stewart R., “The Federalist

Dimension of Regulatory Takings Jurisprudence," 114 Yale

LJ. 203, n.181, Nov. 2004. Thus, the California Supreme

Court should not have allowed petitioners to "reserve," see

San Remo Hotel, 27 Cal. 4th at 649 n. 1, any of the federal

causes of action that could have been litigated in the

California state courts.

This Court should affirm that the Full Faith and Credit

Act prohibits the relitigation in federal court of state or

federal claims that have been litigated, or could have been

litigated, in the state courts. Under the Supremacy Clause,

Art. VI, Cl.2, of the United States Constitution, state courts

must apply federal law and respect governing federal

precedent. This Court has held that state courts of

appropriate jurisdiction must adjudicate federal claims

whenever a federal statute requires them to do so. See Testa

v. Katt, 330 U.S. 386 (1947). Moreover, under the

Supremacy Clause, "state courts cannot refuse to apply

federal law." See Printz v. United States, 521 U.S. 898,

928-929 (1997). The critical importance of the Full Faith and

Credit Act to our federalist system is perhaps clearest in those

state courts that expressly allow litigation of federal claims

and also prohibit claim splitting, requiring each party to assert

any claim that can be litigated in that forum. See e.g., R.

4:30A (New Jersey entire controversy doctrine court rule);

Woodward-Clyde _C ) hemical 1 Polluti

Sciences, Inc., 105 N.J. 464 (1987).

This Court has recognized that there is no basis to

think that the state courts cannot properly apply federal law.

U.S. Const., Art. VI, Cl. 2, see Allen, 449 U.S. at 105;

McCulloch vy. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819).

Of course, collateral estoppel will not apply when the party

against whom the earlier decision is asserted did not have a

"full and fair opportunity" to litigate that issue in the state

court, Allen, 449 U.S. at 95, or when the state court did not

apply “equivalent” law, San Remo 364 F.3d at 1096, 27 ©

Cal.4th at 663-64, i.e. law that is at least as protective of

constitutionally recognized rights as federal law. However,

if a state court does not properly respect federal takings law,

the recourse should be to seek review through certiorari to

this Court, not to relitigate the claim in the federal district

court.

2. A RESERVATION OF RIGHTS

UNDER ENGLAND DOES NOT ALLOW

DUPLICATIVE LITIGATION IN

FEDERAL COURT OF A_ TAKING

CLAIM THAT HAS BEEN FULLY

LITIGATED IN A STATE COURT, AND

WHICH WOULD BE UNNECESSARILY

BURDENSOME ON STATE AND LOCAL

GOVERNMENTS AND BOTH COURT

SYSTEMS.

In England Louis : Board of Medical

Examiners, 375 U.S. 411 (1964), this Court neither

recognized nor conferred the right to collaterally attack a final

decision of a State court of competent jurisdiction. In

England, a three-judge panel abstained sua sponte under the

doctrine in Railroad Comm'n of Texas v. Pullman Co., 312

U.S. 496 (1941), from considering Fourteenth Amendment

due process and equal protection claims since their resolution

depended upon an unsettled question of Louisiana state law.

This Court should not extend the England decision to

takings cases. Rather, this Court should clearly reassert that,

where a claim under federal law can be fully litigated in state

court, then the circumstances that would justify an England

reservation are not present and the Full Faith and Credit Act,

and principles of federalism, res judicata and collateral

estoppel, prohibit such duplicative and burdensome litigation.

This Court decided England before deciding, in Allen

and Migra, that the Full Faith and Credit Act prohibits

relitigation in federal court of an equivalent claim that has

been fully and fairly litigated in state court under state law

that meets the minimum standards of federal law. Full and

fair litigation of a claim for compensation under state law,

where the legal standard is at least as protective of

constitutionally recognized rights as federal law, will resolve

the substance of the federal-law taking claim as well. If the

claimant has the opportunity to litigate all issues in state

court, and can litigate its claims under equivalent legal

standards, then no unresolved federal claim should remain.

Thus, a claimant should not be allowed to pursue a “second

bite at the apple” in federal court, with duplicative litigation

or a legal determination under federal law of a claim that the

state court has decided under substantively identical state law.

There is no reason to relitigate a taking claim in

federal court after its complete litigation in a state court. As

this Court recognized in England, duplicative litigation

unnecessarily increases the length and cost of litigation and is

a potential source of friction between the state and federal

judiciaries. Duplicative litigation also can disrupt "the

harmonious relation between state and federal authority,”

England, 375 U.S. at 421 n. 12, and can create “the

possibility of unwarranted disruption of a state administrative

process." Id. at 415 n. 5.

Moreover, petitioners essentially argue that they are

entitled to a new trial, in federal court, whenever they obtain

an adverse ruling in the state courts, or to split their claim and

litigate a portion in each forum. Neither rationale comports

with commonly accepted legal principles. "A new trial may

be granted ... for any of the reasons for which new trials have

heretofore been granted in actions at law in the courts of the

United States." F.R.Civ.P. 59. Those reasons usually

include an erroneous weighing of facts or law that contradicts

precedent, not a mere adverse ruling with which the claimant

is dissatisfied. See id.; Gasperini v. Center for Humanities,

Inc., 518 U.S. 415, 467-468 (1996).

In Williamson County Regional Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172 (1985), this

Court held that 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. This Court

did not address the implications of a determination by the state

court that, after considering the regulatory taking factors

including the economic impact of the challenged action and

the extent to which it interferes with reasonable investment-

backed expectations, the claimant is not entitled to

compensation.

England must be read in pari materia with this Court's

subsequent regulatory taking jurisprudence, particularly

Williamson County, where this Court clarified that our system

of federalism requires initial litigation of a regulatory taking

claim in the State courts. The purpose of initiating litigation

challenging an alleged taking in State courts is not merely to

develop a factual record, but also to resolve the substantive

legal dispute where legally possible. In the typical taking

claim, that dispute involves the questions of whether a

regulatory taking of property has occurred, and if so the

claimant's entitlement to, and the amount of, compensation.

See Williamson County, 473, U.S. at 195 and n. 14.

Williamson County did not expand the scope of federal

review of State action or of State court decisions. Instead, the

Williamson approach reflects the fact that planning, zoning

and other local and State land use decisions are essentially

local and that state courts should be afforded the opportunity

to address their takings implications in the first instance.

Moreover, read together, Williamson County and First

English E lical Lut} Church of Glendal :

of Los Angeles, 482 U.S. 304 (1987), require a state court to

adjudicate a federal taking claim. See Roberts, Thomas E.,

“Procedural Implications of Williamson County/First English

in Regulatory Takings Litigation: Reservations, Removal,

Diversity, Supplemental Jurisdiction, Rooker-Feldman, and

Res Judicata,” 31 ELR 10353, 10354 (Apr. 2001). Whether

a litigant's presence in state court is “voluntary” or not, the

eS, Se

State court has not only the power but also a mandate, to

adjudicate any federal taking claim put before it, while

litigating any state law claims.

This Court's Williamson County ripeness requirement

does not create an actual Catch-22. See Contra Santini v.

Connecticut Haz. Waste Mgmt. Serv., 342 F.3d 118, 127 (2d

Cir. 2003), cert. denied, 125 S.Ct. 104 (2004). It is perfectly

fair, and consistent with our federalist court system, for state

courts to address federal issues in the takings context, with

ultimate review by this Court. Suggestions to the contrary

imply either that state courts improperly apply federal

standards, or that every claimant has a per se right to litigate

every federal claim in federal court. Both implications are

incorrect. State trial court decisions are subject to review by

the superior courts in each state, providing another level of

review and protection of a clamant's rights; ultimately, of

course, this Court sits as the final appellate court for decisions

of the highest state courts.

The ripeness requirement of Williamson County is not

a “procedural trap" as some courts have suggested, but an

opportunity to promote comity by avoiding duplicative

litigation where a state court may consider and resolve claims

under state and federal law. See Allen vy. McCurry, 449 U.S.

at 96; Peduto v. City of N. Wildwood, 878 F.2d 725, 729 (3d

Cir. 1989) (Williamson ripeness requirement is insufficient to

preclude application of res judicata and collateral estoppel

principles in this case). Consistent with our federalist system,

the Full Faith and Credit Clause requires the federal courts to

give claim preclusive effect to state laws that prohibit claim

splitting. See Peduto, 878 F.2d at 727-28 & n.1&2; R. 4:30A

(New Jersey entire controversy court rule prohibiting claim

splitting); Woodward-Clyde Consultants vy. Chemical and

Pollution Sciences, Inc., 105 N.J. 464 (1987). Moreover,

state courts are the appropriate forum to adjudicate state and

local land use decisions. “|RJegulation of land use [] is

perhaps the quintessential state activity.” FERC v.

Mississippi, 456 U.S. 742, 767 n.30 (1982). The Eleventh

Amendment also weighs against claimants litigating their

federal taking claims against the States in federal court.

Thus, a claimant’s litigating both state and federal

claims in the state courts in the first instance is not only

consistent with well-established legal principles, but is a

desirable course. Under Williamson County, the state courts

will have the initial opportunity to adjudicate the merits of the

regulatory taking claim. If the state-law standards for

compensation are equivalent to the federal-law taking

standards, then all issues material to the taking claim will

have been resolved in the state court litigation and there will

be no need for this claim to advance to the federal court. The

result of that adjudication is subject to review by the superior

courts of that state and, if appropriate, by this Court.

3. THE LOWER FEDERAL COURTS

LACK SUBJECT MATTER JURIS-

DICTION TO REVIEW PETITIONERS'

FEDERAL TAKING CLAIM.

As set forth in more detail in the Statement of the

Case, as well as in the decisions of the California Supreme

Court in San Remo Hotel _v. City and County of San

Francisco, 27 Cal.4th 643 (2002) and the Ninth Circuit Court

of Appeals in San Remo Hotel v. San Francisco City and

County, 364 F.3d 1088 (2004), petitioners’ as-applied and

facial taking claims, arising under the Fifth and Fourteenth

~ a a ee -_

a ce.

eee, Se ee

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Amendments to the United States Constitution ("federal taking

claim" or "Just Compensation Clause claim"), were reviewed

and ruled upon by a state court of competent jurisdiction. '

Consequently, the district court and the Ninth Circuit lacked

subject matter jurisdiction to adjudicate the claims.

The California Supreme Court in San Remo merely

acknowledged that petitioners reserved their “substantially

advances" claim for litigation in the federal court. However,

the California courts were empowered to hear and review

federal takings claims. Petitioners have suggested incorrectly,

Brief for Petitioners at 9, that, in the ordinary course, the

California state courts lack the ability to review the federal

takings claims put before them, and that this Court may not

review the taking decisions of the California Supreme Court.

Petitioners rely upon Breneric Associates v. City of Del Mar,

81 Cal. Rptr.2d 324, 338-339 (Cal. Ct. App. 1998); however,

Breneric did not make that far-reaching statement. Instead,

Breneric reiterated the ripeness requirement of Williamson

County while implicitly recognizing that a takings claimant

could litigate a ripe federal taking claim in the California state

courts. Id.

Once a state court of competent jurisdiction has

reviewed and ruled under state law upon the issues that are

material to a federal claim, the lower federal courts lack

*This brief addresses only the question certified by the Court: “Is

a Fifth Amendment takings claim barred by issue preclusion based on a

judgment denying compensation solely under state law, which was

rendered in a state court proceeding that was required to ripen the federal

takings claim?” Further, Lingle v. Chevron, No. 04-163, now pending

before the Court, may render unnecessary any decision on the substantially

advance claim, to the extent it still exists in this case.

subject matter jurisdiction over that claim. See District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)

and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

Section 1257 of Title 28 of the United States Code vests

feieral appellate jurisdiction over judgments of the highest

state courts in the United States Supreme Court. 28 U.S.C.

§ 1257. Only this Court exercises appellate jurisdiction over

state courts. See Rooker, 263 U.S. at 416.

Under the legislation of the Congress, no court

of the United States ether than this court could

entertain a proceeding to reverse or modify the

judgment [of an Indiana circuit court that was

subsequently affirmed by that state's highest

court] for errors of [a federal constitutional]

character. To do so would be an exercise of

appellate jurisdiction. The jurisdiction

possessed by the District Courts is strictly

original.

Rooker, 263 U.S. at 416 (internal cites omitted); see also

Feldman, 460 U.S. at 482 ("a United States District Court has

no authority to review final judgments of a state court in

judicial proceedings. Review of such judgments may be had

only in this Court"). Moreover, as this Court has long held,

the district courts also lack subject matter jurisdiction to

review constitutional claims "inextricably intertwined" with

the claims resolved by the state court. See Feldman, 460

U.S. at 483, n.16. An inferior federal court lacks subject

matter jurisdiction over any claim that would essentially

require it to "review the state- court decision." Feldman, 460

US. at 483 n.16.

Significantly, however, a federal taking claim arising

under the Just Compensation Clause of the United States

Constitution is not ripe until the claim for compensation has

been adjudicated in a state court. See Williamson County,

473 U.S. at 194-95. A district court confronted with such an

unripe claim must dismiss it for lack of subject matter

jurisdiction. See, e.g., Metzger v. Village of Cedar Creek,

370 F.3d 822, 823-24 (8th Cir. 2004) (affirming dismissal of

claims unripe under Williamson for lack of subject matter

jurisdiction pursuant to F.R.Civ.P. 12(b)(1)); Sprint

Spectrum, L.P. v Carmel, 361 F.3d 998 (7th Cir 2004)

(same).

Because “a challenge under the Rooker-Feldman

doctrine is for lack of subject matter jurisdiction," see Moccio

\_New York State Office of Court Admin. 95 F.3d 195, 198

(2d Cir. 1996), there simply is nothing to "reserve" in federal

court before a claim for compensation has been presented to

and decided by a state court.

Subject matter jurisdiction does not exist in such a

situation because the Just Compensation Clause imposes only

*Accord Crutchfield _v. Countrywide Home Loans, 389 F.3d

1144, 1148 (10” Cir. 2004) (lower federal courts lack subject matter

jurisdiction to review an issue “actually decide[d] by a state court”);

Frederiksen v. City of Lockport, 384 F.3d 437, 439 (7" Cir. 2004)(“the

right disposition, when the Rooker-Feldman doctrine applies, is an order

under F_.R.Civ.P. 12(b)(1) dismissing the suit for lack of subject matter

jurisdiction”); Walker v. Horn, 385 F.3d 321, 329 (3d Cir. 2004) (same);

Howard v. Whitbeck, 382 F.3d 633 638-29 (6" Cir. 2004) (Rooker-

Feldman denies subject matter jurisdiction as to claims “arising directly

from the state court’s judgments, and those which allege an injury

predating the state-court’s judgments but which are still ‘inextricably

intertwined’ with state-court judgments”); Bianchi v. Rylaarsdam, 334

F.3d 895, 898 (9° Cir. 2003) (Rooker-Feldman deprives lower federal

courts of subject matter jurisdiction to preclude “second-guessing state

court decisions”), cert. denied, 540 U.S. 1213 (2004).

a conditional limitation upon the states’ police powers: a

taking of private property is permissible as long as the

government provides just compensation for such appropriated

property. See First English, 482 U.S. at 314. Thus, unlike

claims that could be presented in either state or federal court,

see, e.g., Kremer v. Chemical Constr. Corp., 456 U.S. 461

(1982) (employment discrimination claim litigated voluntarily

in state court precluded subsequent litigation on same issue in

federal court), the taking claimant must proceed in state court

first as an element of its federal claim. A federal taking claim

does not exist until that process is complete.

The Fifth Amendment has been held to be self-

executing, enforceable through adjudication in the state

courts. Thus, state inverse condemnation suits do not provide

only the just compensation required under state law. Rather,

such suits are a method of obtaining the just compensation

required by the Fifth and Fourteenth Amendments. See First

English, 482 U.S. at 315 (internal quotation omitted). Since

State courts must adjudicate federal claims, see, e.g.,id.;

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 275-75

(1997); Stone v. Powell, 428 U.S. 465, 494 n. 35 (1976), but

see Santini, 342 F.3d at 130 & n.7, the state court review

necessary to determine the state law compensation claim and

to ripen a federal Just Compensation Clause claim effectively

resolves both claims and precludes review by a district court

of either claim.

This is the alleged "Catch-22" in which litigants find

themselves. See, e.g., Santini, 342 F.3d at 127. In fact,

however, there is no Catch-22. A Catch-22 would exist only

if litigants were otherwise entitled to federal court review of

a claim arising under the federal Just Compensation Clause

and were (wrongly) deprived of that opportunity. But,

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conty ay 10 the position urged by petitioners, there simply is

no entitlement to federal court review of a_ federal

constitutional claim. See Migra, 465 U.S. at 83-85; Allen,

449 U.S. at 103-104; see generally “The Federalist

Dimension of Regulatory Takings Jurisprudence,” 114 Yale

LJ. 203.

In this case, it is undisputed that petitioners’ takings

claims “were fully litigated in the state court.” 364 F.3d

1088; see aiso Brief for Petitioners at 8 (“the California courts

rejected the Field Brothers’ claims under state law”). As the

district court properly held and the Ninth Circuit affirmed,

“the substantive California takings law was coextensive with

federal takings law.” 364 F.3d at 1094; see also id. at 1096-

1098. Moreover, petitioners’ “facial and as-applied takings

challenges raised in the state court are identical to the federal

claims asserted by the plaintiffs, and are based on the same

factual allegations.” 364 F.3d at 1096. Because the claims

were identical, the California courts correctly applied co-

extensive state law to identical claims and the state court

decision “was a final decision on the merits” in an action to

which petitioners were a party, the inferior federal courts lack

subject matter jurisdiction to conduct what would in essence

be appellate review. All issues material to petitioners’ state-

law compensation claim and federal-law taking claim have

been fully and fairly litigated under equivalent legal standards,

and therefore have been resolved. There is no legal basis to

relitigate the same claims in the district court.

CONCLUSION

The amici curiae States of New Jersey, Colorado,

Delaware, Hawaii, Maryland, Missouri, Montana, Oklahoma

and West Virginia respectfully ask that this Court affirm the

holding below of the United States Court of Appeals for the

Ninth Circuit.

Respectfully submitted,