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

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OFFICE OF Tey eR

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No. 04-340

In the

Supreme Court of the United States

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SAN REMO HOTEL L.P., THOMAS FIELD,

ROBERT FIELD, and T&R INVESTMENT CORP.,

Petitioners,

Vv.

CITY AND COUNTY OF SAN FRANCISCO,

DEPARTMENT OF PLANNING, CITY PLANNING

COMMISSION, BOARD OF PERMIT APPEALS,

BOARD OF SUPERVISORS OF THE CITY

AND COUNTY OF SAN FRANCISCO,

Respondents.

+

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

+>

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION, NATIONAL ASSOCIATION

OF REALTORS, PAUL AND. SHERRY LAMBERT,

AND CHARLES AND NELL SWEENEY IN

SUPPORT OF THE PETITIONERS

2

RALPH W. HOLMAN MERIEM L. HUBBARD

National Association of Realtors Counsel of Record

430 North Michigan Avenue R.S. RADFORD

Chicago, Illinois 60611 Pacific Legal Foundation

Telephone: (312) 329-8375 3900 Lennane Drive, Suite 200

Facsimile: (312) 329-8256 Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amici Curiae

GARY G. GRIMMER

Of Counsel

Carlsmith Ball LLP

ASB Tower, Suite 2200

1001 Bishop Street

Honolulu, Hawan 96813

Telephone: (808) 523-2500

KENNETH R. KUPCHAK

ROBERT H. THOMAS

Damon Key Leong Kupchak Hastert

1600 Pauahi Tower

1001 Bishop Street

Honolulu, Hawai 96813

Telephone: (808) 531-8031

i

QUESTION PRESENTED

1. 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

QUESTION PRESENTED ..................000000e i

TABLE OF AUTHORITIES ......... 2.2 ...eecuee. iii

INTEREST OF AMICI CURIAE ..................-. 1

SUMMARY OF ARGUMENT .................0000- 3

GD kknctn véesdbdecdisensddiebetadioc: 4

1. THE PLAIN LANGUAGE OF WILLIAMSON

COUNTY REGIONAL PLANNING

COMMISSION SAYS THAT FEDERAL

TAKINGS CLAIMS ULTIMATELY CAN

BE RESOLVED IN FEDERAL COURTS ........ 4

Il. FEDERAL COURTS MUST DEFINE THE

CONTOURS OF FEDERAL TAKINGS

LAW; THAT RESPONSIBILITY CANNOT

BE LEFT TO THE STATE COURTS ........... 10

GI 6 bsevededccacsnatuieuiinG eee 17

TABLE OF AUTHORITIES

Page

Cases

Ali v. City of Los Angeles, 91 Cal. Rptr. 2d 458

CER Aas TERED < cc ccccdewentessssacsuccntoes 15, 16

City of Chicago v. International College of Surgeons,

Se Ch CEP EIED cocccececchvesscesoucsecdens 9

City of Monterey v. Del Monte Dunes at Monterey, Lid.,

Se ees GT GED obo pecacsabacuestonceseéeces 2

Dodd v. Hood River County, 136 F.3d 1219

(9th Cir. 1998), cert. denied, 525 U.S. 923 (1998) ..... 6

Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995) .. 6

Dolan v. City of Tigard, 512 U.S. 374 (1994) ... 2, 9-10, 15

England v. Louisiana State Bd. of Medical

Examiners, 375 U.S. 411 (1964) .......... 2-3, 6, 11-12

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

GE SEO 6c evn cdncevasedesucendeses 2,5

Galland v. City of Clovis, 16 P.3d 130 (Cal.),

cert. denied, 534 U.S. 826 (2001) ..............4.. 10

Lucas v. South Carolina Coastal Council,

4 FR eee 2,15

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ..... 10

Nollan v. California Coastal Commission,

GPS ED. a coweccéubnrcaskesbestdes 1,15

Paiazzolo v. Rhode Island, 533 U.S. 606 (2001) ......... l

Patsy v. Bd. of Regents of the State of Florida,

Ge Sas GEESE Soc cccccesécccececucscecuse 10

iv

TABLE OF AUTHORITIES—Continued

Page

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

Pe 8 ee eee 16

Santini v. Connecticut Hazardous Waste

Management Service, 342 F.3d 118 (2d Cir.

2003), cert. denied, 125 S. Ct. 104 (2004) .... 12-13,17

Suitum v. Tahoe Regional Planning Agency,

TT ere ee |

United States v. Hammad, 858 F.2d 834 (2d Cir. 1988),

cert. denied, 498 U.S. 871 (1990) .............. 14-15

Williams v. Taylor, 529 U.S. 362 (2000) .............. 10

Williamson County Regional Planning

Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985) ............... 2-5

Yee v. City of Escondido, 503 U.S. 519 (1992) .......... 2

Supreme Court Rules

PDTC coccccdsveseaseckotsesbebodaaneaselen l

PD DED 0s cccccccudedsuncasenéds detedeudeanseal l

Miscellaneous

1 Nahmod, Sheldon H., Civil Rights and

Civil Liberties Litigation (2004) .............02045. 8

Berger, Michael M. & Kanner, Gideon, 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 Urb. Law. 671 (2004) ..... 16

Berger, Michael M., Supreme Bait & Switch:

The Ripeness Ruse in Regulatory Takings,

3 Wash. U. J.L. & Pol’y 99 (2000) .............. 5,12

Vv

TABLE OF AUTHORITIES—Continued

Berger, Michael M., Vindicating the Rights of

Private Land Development in the Courts,

Fe Ge EA. GSS Gee cc codedcvousccvccccdesces 5

Breemer, J. David, 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 (2003) .... 7, 16

Delaney, John J. & Desiderio, Duane J., Who Will

Clean Up the “Ripeness Mess”? A Call for Reform

so Takings Plaintiffs Can Enter the Federal

Courthouse, 31 Urb. Law. 195 (1999) .............. 7

Eagle, Steven J., Regulatory Takings

SIEGE BUSSE cans ccdeccdsdnndbustesévdvnces 7-8, 16

Freilich, Robert H., et al., Federalism at the

Millennium: A Review of U.S. Supreme Court

Cases Affecting State and Local Government,

58 CD. Lae. GED CISGO ccc cccscccccccccccctooces 9

Friedman, Barry, Under the Law of Federal

Jurisdiction: Allocating Cases Between

Federal and State Courts,

104 Colum. L. Rev. 1211 (2004) .............. 13-14

Kanner, Gideon, Hunting the Snark, Not the Quark:

Has the U.S. Supreme Court Been Competent in

Its Effort to Formulate Coherent Regulatory

Takings Law?, 30 Urb. Law. 307 (1998) ............ 9

Kassouni, Timothy, The Ripeness Doctrine and the

Judicial Relegation of Constitutionally Protected

Property Rights, 29 Cal. W.L. Rev. 1 (1992) ......... <

vi

TABLE OF AUTHORITIES—Continued

Page

Kovacs, Kathryn E., Accepting the Relegation of Takings

Claims to State Courts: The Federal Courts’

Misguided Attempts to Avoid Preclusion Under

Williamson County, 26 Ecology L.Q. 1 (1999) ...... 11

Meacham, Madeline J., The Williamson Trap,

Be Gees EE, SPEED ove ccevececsnéencccedioass 5

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 Envtl. L. Rev. 10353 (2001) ....... 11

Rosenberg, Ronald H., The Non-Impact of the United

States Supreme Court Regulatory Takings Cases on

the State Courts: Does the Supreme Court Really

Matter?, 6 Fordham Envtl. L.J. 523 (1995) ......... 15

Tribe, Laurence H., American

Cons ‘itutional Law (3d ed. 2000) .............44.. 17

Yuhas, George A., The Ever-Shrinking Scope

of Federal Court Takings Litigation,

Be ee BM, GP GEE 0 ch co ccccosccccececccios 11

l

INTEREST OF AMICI CURIAE'

For more than 30 years, Pacific Legal Foundation (PLF)

has litigated in support of the rights of individuals to make

reasonable use of their private property. PLF attorneys have

been before this Court on three occasions representing

individuals whose right to use their property was unlawfully

denied by government agencies. See Palazzolo v. Rhode Island,

533 U.S. 606 (2001); Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725 (1997); and Nollan v. California Coastal

Commission, 483 U.S. 825 (1987). PLF also has participated

as amicus curiae in nearly every other major real property

takings case heard by this Court in the past three decades.

PLF previously participated as amicus curiae in this case

and the related state court case. PLF filed amicus briefs in

support of San Remo Hotel, L.P., Thomas Field, Robert Field,

and T&R Investment Corp. (Petitioners herein) before this

Court (on petition for writ of certiorari), the Ninth Circuit Court

of Appeals, the United States District Court for the Northern

District of California, the California Supreme Court, and the

California Court of Appeal.

Amicus National Association of Realtors (NAR) is a

nonprofit association representing over one million members

engaged nationwide in all phases of the real estate business,

including, but not limited to, brokerage, appraising,

management, and counseling. NAR was created to promote and

encourage the highest and best use of the land, to protect and

promote private ownership of real property, and to promote

' Pursuant to Rule 37.3(a), all parties have consented to the filing

of this amicus curiae brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution to the preparation or

submission of this brief.

2

professional competence. Its members contribute to such

activities as promotion of equal opportunity in housing, real

estate licensing, neighborhood revitalization, safeguarding real

property rights, public service, and cultural diversity. The

National Association of Realtors has participated as amicus

curiae in numerous property rights cases before this Court,

including City of Monterey v. Del Monte Dunes at Monterey,

Lid., 526 U.S. 687 (1999); Dolan v. City of Tigard, 512 U.S.

374 (1994); Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992); Yee v. City of Escondido, 503 U.S. 519 (1992);

and First English Evangelical Lutheran Church of Glendale v.

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

Amici Paul and Sherry Lambert (the Lamberts) and

Charles and Nell Sweeney (the Sweeneys) each want to build

single-family homes on their neighboring beachfront lots

located on the island of Maui, Hawaii. The County of Maui

initially determined that the Lamberts’ and the Sweeneys’

homebuilding plans were exempt from coastal zone permitting

requirements. The County issued multiple building permits,

which were later rescinded without predeprivation notice or

hearing, and in violation of the County’s procedures which do

not allow rescission of coastal zone exemptions or permits. The

Lamberts and Sweeneys each filed lawsuits in the federal court

to vindicate their federal claims for regulatory takings and due

process violations under 42 U.S.C. § 1983, and in the state

court for their state law takings and due process claims. In the

state court actions, the Lamberts and the Sweeneys reserved

their federal claims. Pursuant to England v. Louisiana State

Board of Medical Examiners, 375 U.S. 411 (1964), they

notified the court and the parties that they were not litigating

their federal claims in state court, but were in state court only

to ripen their takings claims as required by Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985).

3

The case at bar is of overwhelming importance to the

Lamberts and the Sweeneys because they suffer from the

uncertainty brought about by the rule adopted by the Ninth

Circuit that surrenders resolution of federal takings claims to

state courts. The Lamberts and the Sweeneys were forced to

file multiple lawsuits and must suffer the uncertainty of not

knowing whether their England reservations will be respected,

and whether by pursuing just compensation in state court, their

federal claims will be barred by state rules of issue preclusion.

Amici file this brief to assist the Court in considering the

conditions under which property owners may present their

claims for recovery of compensation for harm to private

property under the Fifth and Fourteenth Amendments to the

United States Constitution in a federal forum. Specifically,

Amici argue that Williamson County Regional Planning

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

on its face, does not deny, and must not be interpreted to deny,

property owners the opportunity to have federal takings claims

heard and decided in federal courts.

SUMMARY OF ARGUMENT

The special ripeness requirements of Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172, 195 (1985), regularly are applied to

preclude property owners from litigating federal takings claims

in the federal courts. That is not what this Court intended;

Williamson County itself holds out the promise of federal

adjudication of federal takings claims. In England v. Louisiana

State Board of Medical Examiners, 375 U.S. 411 (1964), this

Court emphasized the importance of allowing litigants to have

their federal claims decided in the federal courts. It is just as

important to the development of the law. The federal courts are

precluded from defining the contours of federal takings law

when federal takings claims are relegated to the state courts.

4

England offers a procedure by which claimants who are in

state court against their will are able to reserve their federal

claims for subsequent federal adjudication. This Court should

make it clear that when property owners are forced into state

court to ripen their takings claims, and when those claimants

expressly reserve their federal claims for later resolution in

federal court, the state-law claim will have no preclusive effect

in the subsequent federal action. ;

ARGUMENT

I

THE PLAIN LANGUAGE OF

WILLIAMSON COUNTY REGIONAL

PLANNING COMMISSION SAYS THAT

FEDERAL TAKINGS CLAIMS ULTIMATELY

CAN BE RESOLVED IN FEDERAL COURTS

In Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. at 195, this Court

established a test for determining if a takings case is ready to be

heard in federal court. First, administrative action must be

final, and second, a plaintiff must have sought “compensation

through the procedures provided by the State.” Jd. Only the

second requirement is relevant to the instant case. And as to

that requirement, this Court explained that

because the Fifth Amendment proscribes takings

without just compensation, no constitutional

violation occurs until just compensation has been

denied. The nature of the constitutional right

therefore requires that a property owner utilize

procedures for obtaining compensation before

bringing a § 1983 action.

Id. at 195 n.13 (emphasis added).

5

The plain language of Williamson County holds out the

promise of federal adjudication of a federal takings claim.

Throughout the opinion, the Court returns to

these twin concepts [not ripe and premature],

emphasizing and reemphasizing the temporal nature

of its holding, repeatedly saying that land use cases

can be ripened and then litigated in federal court.

Michael M. Berger, Supreme Bait & Switch: The Ripeness

Ruse in Regulatory Takings, 3 Wash. U. J.L. & Pol’y 99, 104

(2000) (emphasis added). See Madeline J. Meacham, The

Williamson Trap, 32 Urb. Law. 239, 249 (2000) (“The language

of Williamson suggests that a federal claim will survive after

disposition in the state court.”).

The requirements of Williamson County, considered in

isolation, seem clear. For a short time, property owners could

still bring takings claims in federal court on the grounds that a

State did not provide an adequate remedy. Williamson County,

473 U.S. at 194, 197 (The ripeness requirements apply “if a

State provides an adequate procedure for seeking just

compensation.”). But two years after Williamson County was

decided, in First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 315-16

(1987), this Court said that state courts must provide adequate

procedures for recovery of just compensation when government

takes private property. Williamson County and First English,

read together, require that property owners seek and be denied

compensation in state court before bringing a federal takings

claim in federal court. See Michael M. Berger, Vindicating the

Rights of Private Land Development in the Courts, 32 Urb.

Law. 941, 950 (2000).

6

Any hint of clarity disappeared when the lower federal

courts were forced to resolve the preclusion questions that

inevitably arose when property owners appeared in federal court

after seeking to ripen their federal takings claims in state court

as required by Williamson County. The ever increasing body of

case law reflects the inability of most lower federal courts to

resolve the questions in a manner that avoids long, onerous

litigation and that ultimately allows property owners to litigate

their claims in federal courts. The case presently before this

Court provides a good example. Another good example is

found in Dodd v. Hood River County, 59 F.3d 852 (9th Cir.

1995) (Dodd I), and Dodd v. Hood River County, 136 F.3d

1219, 1224 (9th Cir. 1998) (Dodd II), cert. denied, 525 U.S.

923 (1998). In Dodd I, 59 F.3d at 862, the Ninth Circuit Court

of Appeals ruled that claim preclusion did not prevent litigation

of the Dodds’ federal takings claim in federal court after they

had litigated their state takings claim in state court. The Dodds

had expressly reserved their federal claim pursuant to England

v. Louisiana State Board of Medical Examiners, 375 U.S. 411.

Dodd I, 59 F.3d at 857, 862. The Ninth Circuit Court

disagreed with a suggestion that “Williamson County is a thinly

veiled attempt by the [Supreme] Court to eliminate the federal

forum for Fifth Amendment taking plaintiffs and that any

federal remedy is limited to actions based on inadequate taking

procedure in the state court.” Jd. at 861. The Dodds returned

to the Federal District Court, which then held that issue

preclusion barred litigation of their federal claim in federal

court; the Ninth Circuit Court affirmed. Dodd II, 136 F.3d at

1227-28. The federal forum was effectively eliminated in spite

of the Ninth Circuit Court’s belief that was not the intent of

Williamson County.

7

The lower federal courts’ application of the standard rules

of issue preclusion to cases ripened under Williamson County

ensures that most takings claims can never be litigated in

federal court. Williamson County does not, as the plain

language of the opinion states, present a temporary delay on the

path to federal court. Rather, as applied by the lower federal

courts, Williamson County sets a permanent jurisdictional bar

by applying state rules of issue preclusion when property

owners attempt to have federal takings claims heard in federal

court. See 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, 240 (2003). Also see

John J. Delaney & Duane J. Desiderio, Who Will Clean Up the

“Ripeness Mess”? A Call for Reform so Takings Plaintiffs Can

Enter the Federal Courthouse, 31 Urb. Law. 195, 234-36

(1999), which includes testimony of Daniel R. Mandelker’

before the House Judiciary Committee Subcommittee on Courts

and Intellectual Property. Professor Mandelker expressed his

opinion that “federal judges have distorted the Supreme Court’s

ripeness precedents to achieve an undeserved and unwarranted

result: they avoid the vast majority of takings cases on their

merits.” Jd. at 236.

If the absurdity of extinguishing federal takings claims by

ripening them is not readily apparent, it becomes so when the

Williamson County ripeness requirements are applied to claims

brought to protect other federal constitutional rights, such as, in

the example below, free speech.

[A] mayor objects to a speech critical of his

administration and refuses to allow it to be delivered

? Professor of law at the University of Washington in St. Louis,

Missouri, and 4 prolific author on the law of zoning and land use

planning.

in the city’s main square or on its public cable TV

station for that reason. The speaker goes to federal

court, which exercises Pullman abstention. She then

bargains with the mayor’s office over possible

revisions to her draft, each time being turned down

with the encouragement to try again. Finally, she

obtains a denial or determines that further

application is futile. Then she works her way

through the hierarchy of state courts. Several years

later, she gets back to federal court, only to learn that

the local trial court determinations of critical facts

and the state intermediate court’s rulings of law are

dispositive of the issues.

Steven J. Eagle, Regulatory Takings § 13-5(d) at 1069-70 (2d

ed. 2001).

The duplicative, protracted, and ultimately unsuccessful

procedures for ripening a federal claim for violation of the right

to free speech are ridiculous; they are no less so in the context

of constitutional property rights. But the fact is that Williamson

County presents “a special ripeness doctrine applicable only to

constitutional property rights claims.” Timothy Kassouni, The

Ripeness Doctrine and the Judicial Relegation of

Constitutionally Protected Property Rights, 29 Cal. W.L. Rev.

1, 2 (1992). Others seeking to vindicate their federal

constitutional rights under 42 U.S.C. § 1983 can choose

between the federal and state courts in the first instance.

1 Sheldon H. Nahmod, Civil Rights and Civil Liberties

Litigation, ch. 1, § 1.1, at 1-3 to 1-4 (2004). Under Williamson

County, those seeking to enforce rights secured by the Fifth

Amendment to the United States Constitution do not have a

choice.

ei

9

After this Court’s decision in City of Chicago v.

International College of Surgeons, 522 U.S. 156 (1997), state

and local government defendants can remove Takings Clause

claims from state court. So, “[a]pparently only property owner

takings and substantive due process claims are relegated to state

court review under the Williamson ripeness doctrine.”

Robert H. Freilich, et al., Federalism at the Millennium: A

Review of U.S. Supreme Court Cases Affecting State and Local

Government, 31 Urb. Law. 683, 685 (1999).

Others are equally dismayed.

[I}f we were to take the Williamson County

reasoning as reflecting reasoned constitutional

doctrine, we would have to conclude that plaintiffs

claiming any deprivation of constitutionally

protected rights without due process of law—the life’s

blood of 42 U.S.C. § 1983 litigation—should not be

able to sue in federal courts either, without a

preliminary detour through the state courts in an

effort to secure from them the lacking due process.

But that, of course, is not generally prevailing

law—it is only a “rule” concocted specifically for

plaintiff-landowners seeking redress of violation of

their constitutional property rights in the context of

land-use regulations.

See Gideon Kanner, Hunting the Snark, Not the Quark: Has the

U.S. Supreme Court Been Competent in Its Effort to Formulate

Coherent Regulatory Takings Law?, 30 Urb. Law. 307, 327-28

(1998).

This different treatment of takings plaintiffs exists in spite

of this Court’s pronouncement that there is “no reason why the

Takings Clause of the Fifth Amendment, as much a part of the

Bill of Rights as the First Amendment or Fourth Amendment,

should be relegated to the status of a poor relation.” Dolan v.

10

City of Tigard, 512 U.S. 374, 392 (1994).’ If that is so, it is

inconceivable why application of Williamson County’ s ripeness

doctrine makes state courts the first and only arbiters of federal

constitutional takings claims brought pursuant to 42 U.S.C.

§ 1983, which Congress enacted for the specific purpose of

opening “the doors of the United States courts’ to individuals

who were threatened with, or who suffered, the deprivation of

constitutional rights ....” See Patsy v. Bd. of Regents of the

State of Florida, 457 U.S. 496, 504 (1982) (citations omitted).

FEDERAL COURTS MUST DEFINE

THE CONTOURS OF FEDERAL TAKINGS

LAW; THAT RESPONSIBILITY CANNOT

BE LEFT TO THE STATE COURTS

When federal judges exercise their federal-question

jurisdiction under the “judicial power” of Article III of the

Constitution, it is “emphatically the province and duty” of those

judges to “say what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803). “At the core of this power is the

federal courts’ independent responsibility—independent from

its coequal branches in the Federal Government, and

independent from the separate authority of the several

states—to interpret federal law.” Williams v. Taylor, 529 U.S.

362, 378-79 (2000).

* In dissent to a property rights decision by the California Supreme

Court, Associate Justice Janice Rogers wrote as follows: “The

Constitution bespeaks no hierarchy of rights, no preferences with

respect to its constraints on government action, no partiality among

its protections of liberty.” Galland v. City of Clovis, 16 P.3d 130,

166 (Cal.) (Brown, J., dissenting), cert. denied, 534 U.S. 826 (2001).

11

The federal courts do not contribute to the development of

the law pertaining to Fifth Amendment takings when takings

claims ripened through state procedures are precluded from

resolution in the federal courts by claim or issue preclusion.

State courts will decide when compensation is appropriate and

how it should be measured (see George A. Yuhas, The Ever-

Shrinking Scope of Federal Court Takings Litigation, 32 Urb.

Law. 465, 475 (2000)), and the only remaining federal court

review is direct review by this Court (see id. at 466). Some

commentators suggest that is acceptable,‘ but this Court

disagreed in England v. Louisiana State Board of Medical

Examiners. \n England, this Court said that appellate review by

the High Court does not provide adequate recourse to those who

want to litigate federal claims in federal court.

It is true that, after a postabstention

determination and rejection of his federal claims by

the state courts, a litigant could seek direct review in

this Court. But such review . . . is an inadequate

substitute for the initial District Court determination

. . . to which the litigant is entitled in the federal

courts. This is true as to issues of law; it is

especially true as to issues of fact. Limiting the

litigant to review here would deny him the benefit of

a federal trial court’s role in constructing a record

and making fact findings. How the facts are found

will often dictate the decision of federal claims. It is

the typical, not the rare, case in which constitutional

* E.g., Thomas E. Roberts, Procedural Implications of Williamson

County/First English in Regulatory Takings Litigation:

Reservations, Removal, Diversity, Supplemental Jurisdiction,

Rooker-Feldman, and Res Judicata, 31 Envtl. L. Rev. 10353, 10354

(2001); Kathryn E. Kovacs, Accepting the Relegation of Takings

Claims to State Courts: The Federal Courts’ Misguided Attempts to

Avoid Preclusion Under Williamson County, 26 Ecology L.Q. 1, 34-

47 (1999).

12

claims turn upon the resolution of contested factual

issues. There is always in litigation a margin of

error, representing error in factfinding .... 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. The

possibility of appellate review by this Court of a

state court determination may not be substituted,

against a party’s wishes, for his right to litigate his

federal claims fully in the federal courts.

375 U.S. at 416-17 (internal quotations, citations, and footnote

omitted).

England is an abstention case, not a takings case, but this

Court’s words are equally relevant to Fifth Amendment takings

cases.

[A]s the Court acknowledged in abstention cases, it

now seems necessary, as the lowest level of

protection affordable to Fifth Amendment property

rights, for the Court to acknowledge that in the

unique class of land use ripeness cases a trial in state

court may be a precondition designed to weed out

the cases where relief is granted by state law.

Obtaining state court relief may moot ‘the federal

issue, but unsuccessful state court litigation “may not

be substituted, against a party’s wishes, for his right

to litigate his federal claims fully in federal courts.”

Berger, Supreme Bait & Switch, supra, at 129-30 (quoting

England v. Louisiana State Board of Medical Examiners, 375

U.S. at 417).

In Santini v. Connecticut Hazardous Waste Management

Service, 342 F.3d 118, 129 (2d Cir. 2003), cert. denied, 125 S.

Ct. 104 (2004), the Second Circuit Court of Appeals applied the

13

reasoning of this Court’s decision in England v. Lousiana to

conclude that issue preclusion would not bar litigation of a

federal takings claim even though Santini initially filed a state

takings claim in state court, and litigated and lost that claim

before proceeding to federal court. The Court acknowledged

that the procedural posture of Santini was different from that of

England, but said that the distinction “is not a meaningful one.”

Id.° The Second Circuit Court, citing to England v. Louisiana,

relied on the fact that the claimant was not voluntarily litigating

his claim in state court. /d. at 130. The Court refused to

believe that Williamson County was intended “to deprive all

property owners in states whose takings jurisprudence generally

follows federal law . . . of the opportunity to bring Fifth

Amendment takings claims in federal court.” Jd. at 130.

The Santini Court took what it termed a “middle ground”

by recognizing that the preclusion issues arising under

Williamson County ripeness can be resolved by allowing

property owners to reserve their federal claims for later

resolution in federal court, and by denying the state-law claim

any preclusive effect in the subsequent federal action. /d. at

128, 130. One commentator refers to this sort of approach as

a “multijurisdictional solution{].” See Barry Friedman, Under

the Law of Federal Jurisdiction: Allocating Cases Between

Federal and State Courts, 104 Colum. L. Rev. 1211 (2004).

Professor Friedman argues that

[t]he primary obstacle to a coherent theory of

jurisdictional allocation is “either-or” thinking.

When scholars and judges discuss jurisdictional

> The Second Circuit Court also recognized that other states do not

preclude a claimant from bringing a federal takings claim in state

court, as does Connecticut. But, the Court explained, that does not

matter. In England this Court relied on the fact that the plaintiff was

not voluntarily in state court. Jd. at 130 n.7.

14

allocation, the common assumption is that cases

must be litigated either in federal or in state court.

Rarely is the answer thought to be “both.”

Id. at 1214.

But, Professor Friedman continues: “[{w]hen interest

analysis so requires, cases should be litigated in both the state

and federal court systems.” Jd. at 1211. In other words, some

cases implicate both state and federal interests, and those cases

cannot be assigned to one court without sacrificing the interest

of the other. Interest analysis would then require a

multijurisdictional approach. See id. at 1214, 1274. Such

multi-jurisdictional solutions are used in the areas of habeas

corpus and certification.® Jd. at 1214.

Professor Friedman recommends expanding use of the

England doctrine to employ multijurisdictional solutions to

state civil cases, such as those where takings plaintiffs are

forced into state court under Williamson County. Id. at 1264,

1268-70. “Preclusion law should provide no more of an

obstacle [when litigating a takings claim] than it did in England

itself.” Jd. at 1270.

Rigid adherence to either-or thinking creates serious

problems. For instance, interpreting Williamson County in such

a way as to cut lower federal courts out of federal takings cases

ignores the distinct roles of the Federal Constitution and state

constitutions. The United States Constitution “prescribes a

floor below which protections may not fall, rather than a ceiling

beyond which they may not rise.” United States v. Hammad,

858 F.2d 834, 839 (2d Cir. 1988), cert. denied, 498 U.S. 871

* “[C]ertification procedures serve the state interest of allowing a

state’s highest court to provide an authoritative interpretation of the

meaning of state law in a case otherwise properly litigated in federal

court to serve federal interests.” Jd. at 1214.

15

(1990). Thus, it is the federal courts that must set the floor for

federal constitutional rights and define the contours of federal

law.

State courts are free to interpret rights in state

constitutions differently than federal courts interpret similar

federal constitutional rights. And, particularly in the area of

property rights, they do so regularly. One commentator

explored the influence of three of the most prominent modern

Supreme Court takings decisions,’ and concluded that the

majority of state court cases mention Supreme Court decisions

much more than they actually rely on them.

The vast majority of state cases often make trivial,

passing references to the Supreme court holdings [in

Nollan, Lucas, and Dolan). ... The U.S. Supreme

Court’s doctrine has not been ignored by the state

courts, but it generally has not been utilized as a

basis for limiting community and state land-use and

environmental regulation.

Ronald H. Rosenberg, The Non-Impact of the United States

Supreme Court Regulatory Takings Cases on the State Courts:

Does the Supreme Court Really Matter? , 6 Fordham Envtl. L.J.

523, 555 (1995). Although the Supreme Court has handed

down a number of what could be termed “pro-landowner”

decisions, statistics show that government “overwhelmingly

wins litigation” in the state courts. Jd. at 555.

The California state courts present a particularly egregious

example of how some state courts “apply” federal takings

decisions. Since 1987, only one published California state

court decision has awarded monetary damages in compliance

with the “self-executing” nature of the Just Compensation

” Dolan v. City of Tigard, 512 U.S. 374, Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992), and Nollan v. California

Coastal Commission, 483 U.S. 825 (1987).

16

Clause. See Ali v. City of Los Angeles, 91 Cal. Rptr. 2d 458

(Ct. App. 1999). For a general description of California’s

abysmal record in the takings arena, see Breemer, supra, at 260-

63. Also see San Remo Hotel v. City and County of San

Francisco, 41 P.3d 87 (Cal. 2002) (Brown, J., dissenting),

wherein Associate Justice Janice Brown noted that private

property is an endangered species in California, and “is now

entirely extinct in San Francisco.” Jd. at 120. Justice Brown

expressed her “hope the plaintiffs find a more receptive forum

in the federal courts.” Jd. at 128.

Federal takings claimants should have the same access to

the federal courts as do other constitutional claimants. The

federal courts and federal civil rights law were established to

provide constitutional claimants with a judicial forum free from

local politics and biases.*

Federal judges tend to have broader outlooks

than local judges constrained by ethos and electorate

of their communities. The fact that there are apt to

be more competing interests in their districts also

makes them more disposed to vindicate the exercises

of property rights that do not benefit immediate

neighbors.

Steven J. Eagle, Regulatory Takings, § 13-5(d), at 1069 (2d ed.

2001).

* See 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 Urb.

Law. 671, 704-06 (2004). The authors explain that the theory of

protecting federal rights in federal courts dates to the founding of the

Republic, and that one reason for adopting the Civil Rights Act was

to provide a federal forum.

17

Strict adherence to the traditional rules of issue preclusion

does not allow federal takings claimants to litigate their federal

takings claims in federal court, and does not allow the federal

courts to shape federal takings law. If England and Williamson

County are to have any practical meaning, then, in the face of

a proper reservation, a state-court judgment should have no

preclusive effect whatsoever on a later federal claim.

CONCLUSION

This Court phrased the Williamson County prerequisites

to federal takings litigation in terms of ripeness. The ripeness

inquiry in a takings claim involves a determination that a

property owner has exhausted all avenues for obtaining

compensation.’ The ripeness requirements cannot and should

not extinguish the opportunity to litigate in federal court. As

the Second Circuit Court of Appeals recently noted, such a

result “would be both ironic and unfair.” Santini v. Connecticut

Hazardous Waste Management Service, 342 F.3d at 130.

Amici Pacific Legal Foundation, National Association of

Realtors, Paul and Sherry Lambert, and Charles and Nell

Sweeney respectfully request that this Court recapture the role

of the federal courts in developing federal takings law. Amici

respectfully request that this Court rule that where takings

claimants are forced to ripen federal claims by pursuing state

claims in state court, an express reservation of federal claims

% Laurence H. Tribe, American Constitutional Law 337 (3d ed.

2000).

18

will actually preserve those claims for litigation in federal court

because the normal rules of claim preclusion do not apply.

DATED: January, 2005.

Respectfully submitted,

RALPH W. HOLMAN MERIEM L. HUBBARD

National Association of Realtors Counsel of Record

430 North Michigan Avenue R.S. RADFORD

Chicago, Illinois 60611 Pacific Legal Foundation

Telephone: (312) 329-8375 3900 Lennane Drive, Suite 200

Facsimile: (312) 329-8256 Sacramento, California 95834

Telephone: (916) 419-7111

GARY G. GRIMMER Facsimile: (916) 419-7747

Of Counsel

Carlsmith Ball LLP

ASB Tower, Suite 2200

1001 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 523-2500

KENNETH R. KUPCHAK

ROBERT H. THOMAS

Damon Key Leong

Kupchak Hastert

1600 Pauahi Tower

1001 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 531-8031

Counsel for Amici Curiae