# 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

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OFFICE OF Tey eR

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No. 04-340

In the

Supreme Court of the United States

= 3

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A22. Public record. Not legal advice.