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

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## Record

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

## Text

OFFicg -

Supreme Court of the United States

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

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
3

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

iV

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

vi

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.

<

to

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

3

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

4

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

8

ee

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

9

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.

10

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-

1]

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

12

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

13

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

14

~ a a ee -_

a ce.

eee, Se ee

et rears

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.

15

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

16

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).

17

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,

18

- 2 eee + ae, OE eo —_

- a ao ot eee 3

oe ee Che we

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.

19

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,

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

Dated: March 1, 2005

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A20. Public record. Not legal advice.