Opposition Brief — Knick v. Twp. of Scott, 139 S. Ct. 50 (2018) (No. 17-647)

No. 17-647

IN THE

Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

TOWNSHIP OF SCOTT,

Respondent.

On Petition For A Writ oF CERTIORARI TO THE UNITED

Sratres Court or APPEALS FOR THE THIRD Crecurr

BRIEF IN OPPOSITION

TERESA FICKEN SACHS

Counsel of Record

MARSHALL DENNEHEY WARNER

CoLEMAN & GoGcIN

2000 Market Street, Suite 2300

Philadelphia, PA 19103

(215) 575-2000

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

COUNTERSTATEMENT OF QUESTIONS

PRESENTED

1. Whether there is any compelling reason to grant

the Petition and reconsider Williamson County’s state

procedures requirement, where this Court has repeatedly

upheld that requirement, decades of case law have

applied it, the requirement is consistent with the Fifth

Amendment and principles of federalism, this Court

has recently denied certiorari in response to the same

arguments, and where this case would be a particularly

inappropriate one for any reconsideration of Williamson

County.

2. Whether there is any compelling reason to grant

the Petition and reconsider Williamson County’s state

procedures requirement, where there is no “circuit split”

as alleged by Petitioner.

3. Whether there is any compelling reason to grant

the Petition and reconsider Williamson County's state

procedures requirement, where the Third Circuit’s

opinion is fully consistent with this Court’s jurisprudence.

a

CORPORATE DISCLOSURE STATEMENT

Scott Township is a subdivision of Lackawanna

County, in the Commonwealth of Pennsylvania. The

Township has no parent corporation or corporate stock.

ut

LIST OF PARTIES

Carl S. Ferraro is no longer interested in this matter.

w

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS

Sa

CORPORATE DISCLOSURE STATEMENT ...... i

A iii

TABLE OF CONTENTS. ...................000:. iv

TABLE OF CITED AUTHORITIES .............. vi

Ns. ccneccccvecccees 1

COUNTERSTATEMENT OF THE CASE.......... 2

Ns nn . ccavccccocccceseed 3

Il. Procedural History..............ccsseeeseee 3

A. The State and Federal Pleadings ......... 3

B. The District Court's Dismissal ........... 4

C. The Third Circuit's Affirmance .......... 5

v

Table of Contents

1. There is No Important Question to Consider:

This Court Has for Decades Reaffirmed

Williamson County’s Prudential State

Litigation Requirement, has Denied

Certiorari in Response to the Same

Arguments, and this Case

A. Petitioner is not making a

“facial” challenge; rather, her

claim is “unavoidably” a claim for

B. Petitioner’s criticisms of Williamson

Il. There is no Conflict Among the Lower

Courts Regarding the Application of

It. There is no Conflict Between the Third

Circuit’s Decision and this Court’s Decision

in Williamson County ....... 6.66 cece ene 23

CERAM cvcccccceccccccccccceosccccseces .26

vt

TABLE OF CITED AUTHORITIES

CASES

A Forever Recovery, Inc. v.

Township of Pennfield,

2013 U.S. Dist. LEXIS 189092 (W.D. Mich. 2013),

aff'd, 606 Fed. Appx. 279 (6th Cir. 2015) .......... 14

Allen v. McCurry,

is cn ccndcuseccecesesssesscess 14

Alto Eldorado Partnership v.

County of Santa Fe,

634 F.3d 1170 (10th Cir. 2011), cert. denied,

IE, « cc ccbeccdeccseteboccess 22, 23

Alto Eldorado Partnership v. Santa Fe County,

565 U.S. 880 (October 3, 2011) .............- 6, 7, 16

Arrigoni Enterprises, LLC v. Town of Durham,

136 S. Ct. 1409, 2016 U.S. LEXIS 2830

(April 25, 2016)... 2... ccccecccccccccces 6, 14, 16

Arrigoni Enters., LLC v. Town of Durham,

18 F. Supp. 3d 188 (D. Conn. 2014). ............-- 16

vu

Cited Authorities

Clayland Farm Enterprises, LLC v.

Talbot County, Md.,

672 F. App’x 240 (4th Cir. 2016) ................. 19

Connolly v. Pension Ben. Guar. Corp.,

EE 25

County Concrete Corp. v. Town of Roxbury,

442 F.3d 159 (3d Cir. 2006) .................. 18-19

Cowell v. Palmer Township,

268 F.3d 286 Gd Cir. 2001)... 2... cece cece cccees x

Hodel v. Virginia Surface Mining

& Reclamation Ass'n,

Gc ccccccccccccccccccccss 12,24

Holliday Amusement Co. of Charleston

South Carolina,

493 F.3d 404 (4th Cir. 2007) .............00005. .20

International Union of Operating Engineers

Local 139 v. Schimel,

863 F.3d 674 (7th Cir. 2017).................... 20

vite

Cited Authorities

Keystone Bituminous Coal Ass'n v.

DeBenedicti

GED UE, GIO GIT). 0 cc ccccccccccscccceces

Linde Enters., Inc. v.

Lackawanna River Basin Sewer Auth.,

911 A.2d 658 (Pa. Commw. 2006)...........

Migra v. Warren City School Dist. Bd. of Ed.,

GED TAs Pe cv ccccccccceccccccceces

Muscarello v. Ogle County Bd. of Com'rs,

610 F.3d 416 (7th Cir. 2010), cert. denied,

562 U.S. 1200 (2011)... 2... eee cece ee eee

Opulent Life Church v.

City of Holly Springs, Miss.,

697 F.3d 279 (Sth Cir. 2012). ...............

Peters v. Village of Clifton,

498 F.3d 727 (7th Cir. 2007), cert. denied,

Philip Morris, Inc. v. Reilly,

312 F.3d 24 (ist Cir. 2002)................

Railroad Comm'n v. Pullman Co.,

Se Se EP vo vccccessccccccvcecece

Sansotta v. Town of Nags Head,

724 F.3d 533 (4th Cir. 2013). ...............

Sherman v. Town of Chester,

752 F.3d 554 (2d Cir. 2014) .............65.

Sinclair Oil Corp. v. County of Santa Barbara,

96 F.3d 401 (9th Cir. 1996)... .............-

Suitum v. Tahoe Reg’l Planning Agency,

Surf and Sand, LLC v. City of Capitola,

377 F. App’x 662 (9th Cir. 2010) ............

Temple B’Nai Zion, Inc. v.

City of Sunny Isles Beach, F'la.,

727 F.3d 1349 n.6 (11th Cir. 2013)...........

Ventura Mobilehome Communities Owners

Ass’n v. City of San Buenaventura,

371 F.3d 1046 (9th Cir. 2004) ..............

Wayside Church v. Van Buren County,

847 F.3d 812 (6th Cir. Mich., Feb. 10, 2017). . .

zx

Cited Authorities

Page

Wayside Church v. Van Buren County,

2012 U.S. LEXIS 6615 (October 30, 2017) ......... 2

Wayside Church v. Van Buren County,

2017 U.S. LEXIS 6615 (U.S., Oct. 30, 2017)... .. 6, 17

Wilkins v. Daniels,

744 F.3d 409 (6th Cir. 2014)...............5.. 12, 21

Willtamson County Regional Comm'n v.

Hamilton Bank,

GI ls FD oc cc ccccccccccccccceces passim

York Rd. Realty Co., L.P. v. Cheltenham Twp.,

136 A.3d 1047 (Pa. Commw. 2016) ................ )

STATUTES AND OTHER AUTHORITIES

EEE © cbococcuveseseccesevécceseess 4

ee ED BY nvcccvcccecpececccocsessecnd 4

Cl CURE, BARTER. Vn oc cccccccccccvcccsccese passim

REE Sondeesersdvencsnescceanes 4

el Gas AE BE OE oc ccvcccccccccceveescccese 15

FF BE o oes bccccccvevececccccscocsevcsed 4

xt

Cited Authorities

Page

26 Pa. C.S. $§ 101-1106 . 2... cece cece eens ecees 8

BB Pa OB. § MBE) 2. cc ccccccccccccscccccccccccncs 9

G-GBE Pa. CB. § FOL... wc ccccccccccccccccccvcccccsess

l

INTRODUCTION

There are no compelling reasons to grant the Petition

for Writ of Certiorari. See Sup. Ct. R. 10. There is no

conflict between the Third Circuit’s decision and this

Court’s decision in Williamson County Regional Comm’n

v. Hamilton Bank, 473 U.S. 172 (1985), and there is no

conflict among the Circuit courts as to the application

of Williamson County to claims like this one, in which

Petitioner is seeking just compensation for a taking.

In Williamson County, this Court held that a claim

alleging a Fifth Amendment taking becomes ripe only

after (1) the government entity charged with implementing

the regulations has reached a final decision regarding the

i of the regulations to the property at issue, and

(2) the plaintiff has unsuccessfully exhausted the state’s

procedures for seeking just compensation, so long as

the provided procedures by the state are adequate. It is

undisputed that Pennsylvania law provides complete and

adequate procedures for compensation, and that Petitioner

chose not to pursue them. Petitioner instead seeks to avoid

or invalidate the state exhaustion requirement.

Petitioner’s arguments seeking to overturn

Williamson County, and the decades of precedent

applying it, misapprehend the case law and conflate two

distinct concepts, as the Third Circuit’s thorough opinion

explains. This case would be a particularly inappropriate

one to seek reversal of Williamson County in any event,

because Petitioner’s speculative, theoretical criticisms

of Williamson County relate to factual scenarios not

present here.

2

This Cc.*t has consistently upheld Williamson

County’s state litigation requirement and denied certiorari

in cases making the same arguments against Williamson

County, most recently on October 30, 2017, just over two

months ago. See Wayside Church v. Van Buren County,

2012 U.S. LEXIS 6615 (October 30, 2017). This Petition

should likewise be denied.

COUNTERSTATEMENT OF THE CASE

This is one of two cases brought by Petitioner Rose

Mary Knick against the Township of Scott, in Lackawanna

County, Pennsylvania. The Township enacted an

ordinance regulating cemeteries on public and private

property, including one on Knick’s property. Knick sued

the Township in state court, challenging the ordinance,

but has not pursued that case or sought compensation in

the state court. Knick also filed this federal case, claiming

that she is entitled to just compensation on the basis that

the ordinance constitutes a taking under the Fifth and

Fourteenth Amendments.

The District Court (the Honorable A. Richard Caputo)

dismissed Knick’s Takings claim as unripe, because

Pennsylvania law provides a constitutionally adequate

process for obtaining just compensation for the taking of

property, and Knick failed to pursue that process. (See

Appendix B).' The Third Circuit affirmed in a unanimous

published opinion authored by Chief Judge D. Brooks

Smith. (See Appendix A).

Petitioner has now filed a Petition for Writ of

1. The Appendix references are to the Appendices to Knick’s

Petition for Writ of Certiorari.

3

Certiorari. Petitioner still has not pursued compensation

in state court.

I. Relevant Facts

Petitioner Knick owns approximately 90 acres of

property in Scott Township, with a residence, farmland

and grazing areas. (B-2). After a citizen inquiry in 2008,

the Township Supervisors discussed the existence of an

alleged ancient burial ground on Petitioner’s property.’

(B-3). In 2012, the Township enacted an ordinance

(“the Cemetery Ordinance”) addressing the operation

and maintenance of cemeteries. (A-2). The Cemetery

Ordinance applies to public and private cemeteries, and

requires that cemeteries be properly maintained and

accessible to the public. (A-2, 3). In 2013, Petitioner was

determined to be in violation of the Cemetery Ordinance.

(A-4).

Il. Procedural History

A. The State and Federal Pleadings

In May 2013, Petitioner filed a complaint for

declaratory and injunctive relief in the Lackawanna

County Court of Common Pleas. Petitioner asked the state

court to declare the Cemetery Ordinance unconstitutional,

to prohibit and enjoin the Township from enforcing it, and

2. Seott Township residents Robert Vail, Jr., and his father,

Robert Vail, Sr., identified the tombstones of their relatives,

including their ancestor and Revolutionary War veteran Micah

Vail, on the Knick property. See http://thetimes-tribune.com/news/

cemetery-dispute-heads-to-federal-court-1.1808245 (last visited

December 30, 2017).

4

to award her other relief including attorneys’ fees. (A-

4). However, after the state court ruled in October 2014

that the case was not in the proper posture for the relief

requested by Petitioner (A-4, 5), Petitioner did not seek

any further relief in that case, which remains pending

(Lackawanna County No. 2013-CV-2309). Petitioner

also did not pursue an inverse-condemnation proceeding

against the Township as provided for under Pennsylvania's

Eminent Domain Code. (A-5).

Instead, in November 2014, Petitioner filed this suit

against the Township in the United States District Court

for the Middle District of Pennsylvania, alleging multiple

violations of her First, Fourth, Fifth and Fourteenth

Amendment rights under 42 U.S.C. § 1983. (A-5). After

motions to dismiss and amendments, Petitioner’s only

remaining claim was her claim seeking compensation

for the alleged taking under the Fifth and Fourteenth

Amendments. (B-6; A-5, 6).

B. The District Court’s Dismissal

The District Court granted the Township’s motion to

dismiss Petitioner’s Takings Clause claims. (Appendix B,

Memorandum Decision and Order of September 7, 2016).

The District Court noted that such claims must satisfy

“unique ripeness requirements” under Williamson

County. (B-11). Relevant here, plaintiffs must seek just

compensation from the state before claiming that their

right to just compensation under the Fifth Amendment

has been violated, as long as the state provides adequate

procedures for compensation. (B-11). Pennsylvania law

provides compensation procedures through its Eminent

Domain Code, and those procedures have been held to be

5

constitutionally adequate. (B-14). Because Petitioner failed

to satisfy the state procedure exhaustion requirement,

her Takings claim was not ripe for federal review, and

the District Court dismissed it without prejudice. (B-12,

16-18).

C. The Third Circuit’s Affirmance

Petitioner appealed, arguing that her Takings claim

was a “facial” Takings claim that was exempt from

the exhaustion requirement. (A-21). The Third Circuit

rejected that argument and affirmed the District Court’s

dismissal. The Third Circuit explained that this Court has

used the word “facial” in two conceptually distinct ways:

to describe a type of “taking” where the mere enactment

of a provision itself constitutes a taking, and to describe

a type of legal challenge that seeks to invalidate a taking

rather than obtain just compensation. (A-23).

Petitioner’s argument failed to distinguish between

facial takings and facial challenges. A facial taking does not

violate the Fifth Amendment unless it is uncompensated.

(A-23, 24). A facial challenge, on the other hand, does not

seek compensation; it attacks the underlying validity of

the law, an issue that “arises logically and temporally

prior to the denial of compensation,” so “there is no reason

to wait for compensation to be denied; the constitutional

violation would occur at the moment the invalid statute

or regulation becomes effective.” (A-24).

Importantly, Petitioner’s claims were not facial

challenges; rather, they were “unavoidably, claims

for compensation.” (A-26; see also A-27-28, quoting

Petitioner’s Second Amended Complaint). Petitioner’s

6

argument that the Ordinance was invalid because it did

not provide a self-contained mechanism for compensating

property owners was rejected in Williamson County:

“(T]he Fifth Amendment [does not] require that just

compensation be paid in advance of, or contemporaneously

with, the taking; all that is required is that a reasonable,

certain and adequate provision for obtaining compensation

exist at the time of the taking.” (A-28, quoting Williamson

County, 473 U.S. at 194). Accordingly, Petitioner’s claims

under the Just Compensation Clause were subject to

Williamson County’s exhaustion requirement, and were

properly dismissed.*

REASONS FOR DENYING THE PETITION

Petitioner recites the same arguments seeking reversal

of Williamson County that this Court unanimously

rejected two months ago in Wayside Church v. Van

Buren County, 2017 U.S. LEXIS 6615 (Petition for Writ

of Certiorari denied October 30, 2017). This Court also

denied petitions attempting to avoid Williamson County

in Arrigoni Enterprises, LLC v. Town of Durham, 136

S. Ct. 1409, 2016 U.S. LEXIS 2830 (April 25, 2016) (with

Justices Thomas and Kennedy dissenting), and in Alto

Eldorado Partnership v. Santa Fe County, 565 U.S. 880

(October 3, 2011).*

3. The Third Circuit also rejected Petitioner’s alternative

arguments that she should be deemed to have complied

with Williamson County and/or that Williamson County’s

prudential requirements should be overlooked in the interest

of “efficiency”(A-28-32), and Petitioner did not pursue those

arguments in her Petition.

4. See 2017 U.S. 8. Ct. Briefs LEXIS 2489, *36-53 (petition

7

This Petition should likewise be denied. This Court

has reaffirmed Williamson County's prudential state

litigation requirement multiple times in the three decades

since that case was decided. The requirement is founded

in the very language of the Fifth Amendment, and is

consistent with Article III’s requirement of a case or

controversy, with other principles of federalism, and

with the recognition of the uniquely complex and local

issues presented by land use regulation. Even if there

were any basis to revisit Williamson County's prudential

requirement that state compensation procedures be

pursued before a facial takings compensation claim is ripe

(which is denied), this would be the wrong case to do so,

because the petition asserts hypothetical concerns about

Williamson County that simply do not exist in this case.

Petitioner’s allegations of a conflict among the circuits,

or between the Third Circuit’s decision and this Court's

jurisprudence, fail for the reasons set forth in the thorough

and thoughtful opinion authored by Third Circuit Chief

Judge Smith, joined by former Chief Judge Theodore

A. McKee and Senior Judge Marjorie O. Rendell. That

opinion correctly disposed of Petitioner’s arguments, and

in particular, carefully explained the distinction between

claims seeking compensation for facial takings (like

this case) and facial legal challenges, which do not seek

compensation and thus do not require a plaintiff to seek

state compensation first.

in Wayside Church); 2015 U.S. S. Ct. Briefs LEXIS 4105, *23-40

(petition in Arrigoni Enterprises); U.S. S.Ct. No. 11-50, petition

in Alto Eldorado filed July 8, 2011, pp. 11-16.

8

I. There is No Important Question to Consider: This

Court Has for Decades Reaffirmed Williamson

County’s Prudential State Litigation Requirement,

has Denied Certiorari in Response to the Same

Williamson County Arguments, and this Case

Would be Particularly Inappropriate for Any

Reconsideration of Williamson County

The Fifth Amendment does not proscribe the taking

of property; it proscribes the taking of property without

just compensation:

| N Jor shall private property be taken for public

use, without just compensation.

U.S. Const. Amend. V; see Williamson County, 473 U.S.

at 194. In Williamson County, this Court held that a claim

for compensation on the basis that a government action

had effected a taking of private property is not ripe until

(1) the government entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue,

and (2) the plaintiff has unsuccessfully exhausted the

state’s procedures for seeking just compensation, as long

as the state provides adequate procedures for doing so.

Williamson County, 473 U.S. at 186, 194-95 (1985).

There is no dispute here that Pennsylvania's Eminent

Domain Code provides Petitioner with an available,

adequate compensation remedy,° and that she has not

5. Pennsylvania’s Eminent Domain Code, 26 Pa. C.S.

§§ 101-1106, provides a well-organized procedure for seeking just

compensation for an alleged taking. Cowell v. Palmer Township,

263 F.3d 286, 290-91 (3d Cir. 2001). Section 701 of the Code

mandates compensation for a taking: “A condemnee shal! be

9

pursued any such remedy. Instead, Petitioner seeks

to avoid that remedy by asking this Court to overrule

Williamson County. Petitioner argues that her challenge

is “facial,” that “facial” takings claims are ripe without

regard to state court compensation procedures, that

Williamson County's ripeness requirement “destroys”

takings claims, and that the ripeness requirement is

“doctrinally flawed and unnecessary.” Each argument is

meritless.

A. Petitioner is not making a “facial” challenge;

rather, her claim is “unavoidably” a claim for

compensation

Petitioner’s Petition should be rejected for the simple

reason that her challenge in this case is not “facial.”

Rather, as the Third Circuit recognized, Petitioner's claim

is “unavoidably” one for compensation. (A-27).

entitled to just compensation for the taking, injury or destruction

of the condemnee’s property, determined as set forth in this

chapter. Other damages shall also be paid or awarded in this

title.” 26 Pa.C.S. § 701 (emphases supplied). Chapter 5 of the Code

describes in detail the procedure to pursue relief through inverse

condemnation proceedings for an alleged taking. Importantly,

Section 102 states that the Code procedures are complete and

exclusive: “This title provides a complete and exclusive procedure

and law to govern all condemnations of property for public

purposes and the assessment of damages.” 26 Pa.C.S. §102(a). See

also, e.g., York Rd. Realty Co., L.P. v. Cheltenham Twp., 136 A.3d

1047, 1050 (Pa. Commw. 2016) (“[W]Je have held that the [Code]

provides the exclusive method and practice governing eminent

domain proceedings, including de facto takings|.]”); Linde Enters.,

Inc. v. Lackawanna River Basin Sewer Auth., 911 A.2d 658, 661

(Pa. Commw. 2006) (“It is well established that the Code provides

the exclusive method and practice governing eminent domain

proceedings, including de facto takings.”)

10

The Third Circuit explained that Petitioner was

conflating two “conceptually distinct” uses of the word

“facial”: (1) facial challenges (a type of legal challenge

that seeks to invalidate a statute rather than obtain just

compensation), and (2) facial Takings (which assert a claim

that a statute on its face constitutes a taking that requires

payment of just compensation to the property owner). See

Third Circuit Opinion. (A-23). The Third Circuit correctly

recognized that despite Petitioner’s attempt to dress up

her challenge to the ordinance as a “facial” challenge, her

claim was “unavoidably” one for compensation:

Despite their being characterized as

facial challenges, | Petitioner’s] claims are,

unavoidably, claims for compensation.

| Petitioner] does not claim that the alleged taking

violates the Public Use Clause. Furthermore,

the District Court dismissed the

claims asserted in [Petitioner]’s original

complaint, and | Petitioner] does not appeal that

ruling. All that remains is the allegation that

the Township violated the Fifth Amendment

because it took [ Petitioner]’s property without

compensation.

To be sure, [Petitioner|’s Second Amended

Complaint seeks injunctive relief. But

[Petitioner] has no surviving claim that the

that she has not received compensation. The

remedy for an uncompensated (but otherwise

valid) taking is compensation.

1]

(A-26-27, emphasis in original). The Petition even admits

this is a claim for compensation. (See, e.g., Petition at 22).

Petitioner’s claims “are therefore subject to exhaustion

under Williamson County.” (Id., A-27).

Petitioner nevertheless continues to make the same

“facial” error here, lumping these distinct concepts

together and referring to the combination as “facial

takings claims.” (Petition at 11-12). Petitioner does not

even address the Third Circuit’s opinion in this regard.

Petitioner’s claim remains, “unavoidably,” a claim for

compensation, not a facial challenge to the validity of the

statute, and it was properly dismissed as unripe.

B. Petitioner’s criticisms of Williamson County

misstate the reach of that case

Petitioner next argues that Williamson County should

be reviewed because it demands that every taking claim

be preceded by a state court lawsuit (id. at 12), “forecloses

both federal and state court review” or “prevents state

court review” (id. at 15-20), and is “doctrinally flawed and

unnecessary.” (Jd. at 20-24). In San Remo Hotel, L.P. v.

City & Cnty. of San Francisco, 545 U.S. 323, 345 (2005),

this Court stated, “Petitioners have overstated the reach

of Williamson County throughout this litigation.” The

same is true here.

First, Williamson County does not “demand” a

state court lawsuit prior to the assertion of any and all

challenges relating to a federal takings claim. (Petition

at 12). On the contrary, Williamson County’s prudential

state compensation requirement does not apply to cases

raising facial legal challenges. In fact, that is what this

12

Court stated in San Remo: the plaintiffs were never

required to “ripen” their facial challenges, which “by

their nature requested relief distinct from the provision

of ‘just compensation,” in state court; they could have

raised them directly in federal court. San Remo, 545 U.S.

at 344-45. See also, e.g., Hodel v. Virginia Surface Mining

& Reclamation Ass'n, 452 U.S. 264 (1981) (facial challenge

regarding whether a governmental action constitutes a

“taking”); Lingle v. Chevron USA, Inc., 544 U.S. 528, 543

(2005)(state compensation requirement would not apply to

determination of whether a governmental action fails to

meet the “public use” requirement). Williamson County’s

state compensation requirement also does not apply

where there is no state compensation process available.

Asociacion de Subscripcion Conjunta del Seguro de

Responsibilidad Obligatorio v. Flores Galarza, 484 F.3d

1 (1st Cir. 2007). Moreover, as a prudential requirement, it

may be excused in appropriate circumstances as a matter

of discretion. See, e.g., Wilkins v. Daniels, 744 F.3d 409,

417 (6th Cir. 2014).

Second, Williamson County does not “destroy”

takings claims. Petitioner argues that “the Full Faith

and Credit statute [sic] bars federal courts from hearing

a case after a related state court suit,” citing San Remo.

(Petition at 16-17). However, as this Court pointed out in

San Remo, the plaintiffs in that case were not required

to submit their facial challenges to the state court;

they could have litigated such challenges in the federal

court from the beginning. Alternatively, they could have

reserved those facial challenges, which were distinct from

the compensation claims, and pursued only the latter.

The plaintiffs instead chose to advance broader issues,

and having “gratuitously” presented those issues to the

13

state court, could not get a second bite at the apple by

relitigating the same substantive issues in federal court.

San Remo, 545 U.S. at 344-346. In any event, there is no

preclusion issue in this case. Quite the contrary: Petitioner

“did not pursue the complete and exhaustive procedure to

obtain compensation|[.|”(A-29, citation omitted).

This Court in San Remo also rejected the argument,

made again by Petitioner here, that plaintiffs are entitled

to a federal forum for any and all federal claims, regardless

of prior litigation:

| Petitioners] ultimately depend on an assumption

that plaintiffs have a right to vindicate their

federal claims in a federal forum. We have

repeatedly held to the contrary. ... The relevant

question in such cases is not whether the

plaintiff has been afforded to a federal!

forum; rather, the question is whether the state

court actually decided an issue of fact or law

that was necessary to its judgment.

San Remo, 545 U.S. at 343. In fact, the argument that a

claimant asserting federal rights is always entitled to a

federal forum has been “emphatically” rejected by this

Court:

There is, in short, no reason to believe that

Congress intended to provide a person claiming

a federal right an unrestricted opportunity

to relitigate an issue already decided in state

court simply because the issue arose in a state

proceeding in which he would rather not have

been engaged at all.

14

Id., citing Migra v. Warren City School Dist. Bd. of Ed.,

465 U.S. 75, 86 (1984), and Allen v. McCurry, 449 U.S.

90, 93 (1980).

Petitioner’s argument that removal of cases from state

to federal court renders the ripeness doctrine “illusory”

and leaves “many” federal takings plaintiffs “without any

access to the courts” (Petition at 18-19) is speculative and

meritless. A facial challenge may always be brought in

federal court, as discussed above. If the plaintiff files an

action seeking compensation in a state court and the case

is improperly removed, it will be remanded to the state

court. See, e.g., A Forever Recovery, Inc. v. Township of

Pennfield, 2013 U.S. Dist. LEXIS 189092 (W.D. Mich.

2013) (remanding and also awarding attorneys’ fees for

bad faith removal), affd 606 Fed. Appx. 279 (6th Cir. 2015).

Alternatively, federal courts may waive the prudential

ripeness requirement — and have done so — where

defendants removed state claims to federal court and then

claimed they were unripe. See, e.g., Sherman v. Town of

Chester, 752. F.3d 554 (2d Cir. 2014); Sansotta v. Town of

Nags Head, 724 F.3d 533 (4 Cir. 2013). These options

counter any concern about a potential for manipulation.

See Arrigoni, supra, 136 S. Ct. at 1409 (2016) (Thomas,

J., dissenting). In any event, this case does not involve

removal, so this is another completely speculative

argument.

Third, Williamson County’s longstanding ripeness

requirement i is not “doctrinally flawed” or “entirely

unnecessary.” (Petition at 20). On the contrary, it is

entirely consistent with, and derived from, the Fifth

Amendment itself: only a taking without just compensation

violates the Amendment, so no constitutional violation can

15

occur until that compensation has been determined. The

ripeness requirement is also fully consistent with Article

III’s requirement limiting federal court jurisdiction to

cases involving a justiciable case or controversy. See U.S.

Const. Art. III, §2. The ripeness requirement is consistent

with other principles of federalism such as abstention: the

state government entity may choose to pay for the taking,

or may withdraw the regulations. See First English Evan.

Luth. Church of Glendale v. County of Los Angeles, 482

U.S. 304, 317 (1987).

Finally, the ripeness requirement is consistent

with the recognition, as set forth in San Remo, that

state courts are not only “fully competent to adjudicate

constitutional challenges to local land-use decisions,”

but that “Indeed, state courts undoubtedly have more

experience than federal courts do in resolving the complex

factual, technical, and legal questions related to zoning

and land-use regulations.” San Remo, 545 U.S. at 347. See

also Suitum, supra, 520 U.S. at 725 at 738-39 (noting that

local land-use boards characteristically possess a high

degree of discretion and flexibility). Petitioner attempts

to avoid that important consideration by alleging that “in

almost all takings cases” the state is not the entity taking

the property or compensating for it (Petition at 21), but

that argument is also unavailing. If there is no applicable

state compensation procedure, Williamson County’s

requirement would not apply anyway. In any event, that

argument is another “red herring” because in this case,

the alleged taking was by a state entity.

For all of these reasons, the Petition does not

demonstrate any basis for granting a Writ of Certiorari.

16

C. This Court has rejected other recent petitions

making the same arguments against

Williamson County

Petitioner’s arguments in this case, and the arguments

of amici, rehash the arguments made in other recent

cases. In Alto Eldorado Partnership v. Santa Fe County,

565 U.S. 880 (2011), a number of local businesses and

resident landowners challenged an Ordinance which

required property owners to build affordable housing

for the county’s residents. The Tenth Circuit applied

Williamson County’s state litigation requirement, and

found that Petitioners had not exhausted their state court

remedies, thereby leaving their federal takings claims

unripe. This Court unanimously denied certiorari.

Similarly, in Arrigoni Enterprises v. Town of

Durham, 136 8. Ct. 1409* (2016), a company was denied

excavation permits on the basis that the specific type of

excavation required was prohibited by ordinance in that

zone. The company was denied injunctive relief in state

court, and subsequently filed suit in the federal district

court seeking compensation for the alleged taking. The

district court dismissed the plaintiff's takings claims

as unripe under the Williamson County state litigation

requirements, because the plaintiff had not pursued

monetary compensation pursuant to Connecticut’s

inverse condemnation statute. Arrigoni Enters., LLC

v. Town of Durham, 18 F. Supp. 3d 188 (D. Conn. 2014).

The plaintiff subsequently petitioned this Court, arguing

that “the Court should reconsider Williamson County’s

unworkable demand that property owners exhaust state

court procedures to ripen federal takings claims.” 2015

U.S.S. Ct. Briefs LEXIS 4105, *23. This Court once again

denied certiorari.

17

Most recently, in Wayside Church v. Van Buren

County, 2017 U.S. LEXIS 6615 (U.S., Oct. 30, 2017), the

plaintiff-landowners failed to pay property taxes, and

their properties subsequently became subject to forfeiture

and foreclosure. Wayside Church v. Van Buren County,

847 F.3d 812 (6th Cir. Mich., Feb. 10, 2017). The plaintiffs

did not pursue any state court remedy, claiming that there

was no available remedy. The district court agreed “that

no adequate state procedures existed in which Plaintiffs

could challenge the alleged taking.” /d. at 818. The Sixth

Circuit reversed, finding that the plaintiffs could have

brought their claims in state court, and therefore, the issue

was unripe for review in federal court. /d. at 822. Again,

the plaintiff subsequently petitioned this Court, arguing

that “[t]his case raises an important issue as to whether

the Court should reconsider Williamson County’s demand

that property owners exhaust state court procedures

to ripen federal takings claims.” 2017 U.S. S. Ct. Briefs

LEXIS 2489, at 19. Once again, this Court unanimously

denied certiorari.

This case presents no more compelling interest to

revisit Williamson County than any of the above cases.

In fact, this would be a particularly inappropriate case to

reconsider Williamson County, because the hypothetical!

concerns of Petitioner and the amici regarding Williamson

County simply do not exist here: there was no improper

removal of a state case, no danger of issue preclusion, no

lack of an appropriate forum, a complete and adequate

remedy available in state court, and the alleged taking

is by a state entity, not a federal one. Amici also suggest

that this Court should “clarify” the status of substantive

due process claims, but this case does not present any

such claims. This Court should deny certiorari.

18

Il. There is no Conflict Among the Lower Courts

Regarding the Application of Williamson County

Ripeness Requirements to Claims for Compensation

Petitioner next argues that this Court should

reconsider Williamson County because of what Petitioner

claims is a “deep conflict” in the lower courts as to

whether Williamson County bars “facial takings claims.”

See Petition at 24. According to Petitioner, the First,

Fourth and Seventh Circuits are on one side of the

purported “split.” In those circuits (which she describes

as “Williamson County-free circuits”),”takings plaintiffs”

are “free to raise facial Fifth Amendment challenges in

federal courts in the first instance.” See Petition at 24-25.

Petitioner puts the Sixth, Ninth and Tenth Circuits on

the other side of the “split,” with the Third Circuit now

“siding with” them in applying Williamson County to

“facial takings claims.” Petition at 27-29.

In rejecting Petitioner’s claim of conflict, the Third

Circuit explained that this “seeming inconsistency” arises

from the use of the word “facial” in two distinct ways. One

use of “facial” refers to a legal challenge that does not seek

compensation. The other use of “facial” refers to a type of

taking, which does not violate the Fifth Amendment unless

the plaintiff has been denied compensation. Petitioner

nevertheless continues to lump these “conceptually

distinct” uses together as “facial takings claims,” and

argues that the circuits treat such claims inconsistently.

A review of the “conflicts” alleged by Petitioner shows

that there is no circuit conflict, and that the Third Circuit

was correct: its decision in this case, and its prior decision

in County Concrete Corp. v. Town of Roxbwry, 442 F.3d

19

159 (3d Cir. 2006), are “fully compatible” with this Court’s

jurisprudence. In cases involving facial legal challenges,

the courts do not require exhaustion of state compensation

remedies. However, in cases seeking compensation for

takings, the courts do require such exhaustion unless

there is a reason to excuse the failure to pursue it.

The First, Fourth and Seventh Circuit cases. The

cases cited by Petitioner from the First, Fourth and

Seventh Circuits involved facial challenges to the statutes

or regulations, claims for compensation whether the

Williamson County state exhaustion requirement was

unavailable or excused, or claims for compensation where

Williamson County was enforced. See Philip Morris, Inc.

v. Reilly, 312 F.3d 24 (1st Cir. 2002) (facial challenge to

Flores Galarza, 484 F.3d 1 (1" Cir. 2007) (plaintiff allowed

to proceed in federal court without having pursued a state

compensation remedy because there was no available and

adequate state court remedy for the alleged taking; the

court distinguished the unusual situation in that case from

cases like this one, where a state proceeding for ir-urse

condemnation is available and “(rjequiring plaintiffs to

avail themselves of such a procedure before bringing a

federal takings claim protects the state’s opportunity to use

the scheme it designed specifically to avoid constitutional

injury.”); Clayland Farm Enterprises, LLC v. Talbot

County, Md., 672 F. App’x 240, 244 n.6 (4" Cir. 2016)

(compensation claims were deemed ripe where the plaintiff

had filed the case in state court, the defendant county had

removed it to federal court, and “Maryland does not have

a separate statutory or inverse condemnation remedy to

challenge an alleged regulatory taking of property.”);

20

Holliday Amusement Co. of Charleston South Carolina,

493 F.3d 404, 407 (4" Cir. 2007) (affirming the district

court’s dismissal because the plaintiff was “maintaining

this suit for just compensation[,]” and “[bjeing such a

suit, state procedures for the award of just compensation

must be utilized.”); International Union of Operating

Engineers Local 139 v. Schimel, 863 F.3d 674 (7 Cir.

2017) (affirming that the plaintiff's challenge in that case

was a pre-enforcement facial challenge, and therefore

was ripe under that exception to Williamson County even

though the plaintiff did not first seek just compensation

in the state court); Peters v. Village of Clifton, 498 F.3d

727, 733 (7 Cir. 2007), cert. denied, 552 U.S. 1251 (2008)

(affirming the district court dismissal of the plaintiffs

claim as unripe because the plaintiff failed to seek

compensation in the state court, and explicitly rejecting

the plaintiffs argument that it would be futile to litigate

in the state court: “In Illinois, inverse condemnation is

a judicially recognized remedy arising out of the self-

executing takings provision of the Illinois Constitution” as

recognized by the Illinois Supreme Court); Muscarello v.

Ogle County Bd. of Com’rs, 610 F.3d 416, 422 (7 Cir. 2010),

cert. denied, 562 U.S. 1200 (2011) (affirming the district

court’s dismissal of the plaintiff's takings claim as unripe

because the plaintiff did not pursue state compensation

procedures, and in doing so, rejecting the plaintiff's

attempt to couch her claim as a “facial challenge”: “It

is true that pre-enforcement facial challenges to the

constitutionality of a law under the Takings Clause are not

subject to the exhaustion requirement. ... But Muscarello’s

claim is not a pre-enforcement facial challenge. She has

focused on the economic deprivation that she herself will

suffer if and when the taking occurs — the characteristic

‘as applied’ challenge.”).

21

The Fifth and Eleventh Circuit cases.'The cases cited

by Petitioner from the Fifth and Eleventh Circuits likewise

involved facial challenges not subject to Williamson

County’s state litigation exhaustion requirements. See

Opulent Life Church v. City of Holly Springs, Miss., 697

F.3d 279, 286-87 (5” Cir. 2012) (even if Williamson County

applied to a Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) challenge to an ordinance, the

finality requirement of Wiliamson County would not bar

a facial challenge to an ordinance); Temple B’Nai Zion,

Inc. v. City of Sunny Isles Beach, Fla.,727 F.3d 1349, 1359

n.6 (11 Cir. 2013) (facial challenge to ordinance was not

subject to Wiliamson County’s finality requirements).

The Third, Sixth, Ninth and Tenth Circuit cases.

Finally, the case law from the Third, Sixth, Ninth and

Tenth Circuits applies Williamson County the same way

as the First, Fourth and Seventh Circuits: it does not apply

to facial challenges, but does apply (unless excused) to

claims for compensation. See Wilkins v. Daniels, 744 F.3d

409, 417 (6" Cir. 2014) (applying Williamson County to

Just Compensation challenge, and rejecting the plaintiffs’

attempt to characterize their claim as a “facial” challenge,

an argument that “oversimplifies Takings Clause

jurisprudence.” The plaintiffs were seeking compensation

for a facial taking, and therefore Williamson County's

state litigation requirement applied.)* ; Sinclair Oil Corp.

v. County of Santa Barbara, 96 F.3d 401, 407 (9 Cir. 1996)

6. The Wilkins court nevertheless went on to address the

merits, noting that Williamson County ripeness is a prudential

doctrine, that no jurisprudential purpose is served by delaying

consideration of a claim that “clearly has no merit,” and that the

statute at issue did not effect a “taking.” Wilkins, 744 F.3d at

418-19.

22

(facial challenge to statute as not advancing a legitimate

state interest was ripe; claim that the regulations

deprived him of economically viable use of his property

was not ripe, because he had not sought compensation)’;

Ventura Mobilehome Communities Owners Ass'n v.

City of San Buenaventura, 371 F.3d 1046, 1053 (9" Cir.

2004) (rejecting plaintiff's attempted to avoid Williamson

County’s ripeness requirement by arguing that its facial

takings claim did not seek compensation, but rather,

sought to adjudicate “constitutionality;” this argument

was “belied by [the plaintiff's] claims for damages.”); Surf

and Sand, LLC v. City of Capitola, 377 F. App’x 662, 664

(9" Cir. 2010) (rejecting the plaintiffs facial challenge

to an ordinance (that it was not for a “public use”), and

the plaintiff had not pursued compensation in state court

or alleged that the state remedies were deficient).

The last Tenth Circuit case Petitioner cites, Alto

Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170

(10 Cir. 2011), cert. denied 565 U.S. 880 (2011), warrants

particular mention here, because the Tenth Circuit

rejected the same arguments being made here in seeking

to avoid Williamson County’s ripeness requirement,

and this Court unanimously denied certiorari. The

plaintiff-developers in Alto Eldorado alleged that their

challenge was a “facial” one in that they were arguing

that the regulation at issue did not substantially advance

a legitimate state interest. The Tenth Circuit held that

7. Although Sinclair’s facial challenge was ripe, the

Ninth Circuit concluded that the district should apply Pullman

abstention to defer adjudicating that claim. Sinelair, 96 F.3d at

409, citing Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941).

23

“|djespite the developers’ insistence, the claim the

developers bring here under the Takings Clause is not

a facial claim challenging the validity of the regulation

itself.” Rather, their claims were that the ordinances

“do not provide for any compensation for the burdens

they place.” /d. at 1175. In so holding, the Tenth Circuit

emphasized that facial challenges, which do not depend

on whether the property owner is compensated, “differ

dramatically” from takings claims seeking compensation.

Id. at 1175-76.

In sum, Petitioner’s claim that there is widespread

disagreement among the circuit courts, and/or that the

First, Fourth, and Seventh circuits have held that “facial

takings claims” are “exempt” from Williamson County,

is error and mischaracterizes those decisions. The Circuit

split alleged by Petitioner does not exist.

Ill. There is no Conflict Between the Third Circuit's

Decision and this Court’s Decision in Williamson

County

Petitioner’s last argument is that the Third Circuit’s

decision conflicts with this Court’s takings precedents,

because (according to Petitioner) her “facial takings

claims” are exempi from Williamson County’s state court

exhaustion requirement. Petitioner continues to make the

discussed above: she fails to distinguish between facial

challenges and claims seeking just compensation for facia!

takings. See Petition at 29-31. Instead, Petitioner merely

recites, almost verbatim, passages from the petitions this

Court denied in Wayside Church, Alto Eldorado, and

Arrigoni. See footnote 4, supra.

24

Petitioner also continues to rely upon the same cases

she cited in the Third Circuit, which still do not support

her attempt to avoid Williamson County. For example,

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.

470 (1987) was not a “facial takings case” filed “without

concern for state remedies” as Petitioner claims. Rather,

Keystone resolved a facial challenge, not a takings claim

for compensation, in which the parties stipulated to seek

certification on the question of whether the regulations

that restricted mining constituted any “taking.” The case

of Hodel v. Virginia Surface Mining & Reclamation Ass'n,

452 U.S. 264 (1981) likewise did not involve any claim for

compensation; it was a pre-enforcement challenge to a

federal statute, and this Court’s holding was contrary

to Petitioner’s current argument. This Court rejected

the plaintiffs’ facial challenge, and held that any taking

claim under the Compensation clause was

Moreover, any compensation in Hodel would be owed by

the federal government, not the state (see 452 U.S. at

305-306), so Hodel is certainly not an example of a federal

court affording merits review of a claim for compensation

“without prior state court litigation,” as Petitioner claims.

In Suttum v. Tahoe Reg’l Planning Agency, 520 U.S.

725, 736 n.10 (1997), only the “final decision” requirement

of Williamson County was at issue, not the exhaustion

requirement. The cited footnote from Suitum (regarding

“facial” challenges being ripe when the challenged

regulation is passed), refers to exactly what the Third

Circuit explained above. A facial challenge is ripe when

a regulation is passed. However, while a regulation may

constitute a facial taking when it is passed, that taking

does not violate the Fifth Amendment (7.e., it is not ripe)

unless it is uncompensated.

25

Petitioner similarly cites San Remo Hotel, LP. v. City

and County of San Francisco, 545 U.S. 323, 344-45 (2005)

for the proposition that the plaintiffs there were never

required to “ripen” their claims in state court, but rather,

could have raised them in directly in federal court. See

Petition at 30. However, those were facial challenges — that

the statute did not “substantially advance” state interests

— which the plaintiffs “gratuitously” presented to the state

court. San Remo, 545 U.S. at 344. This Court emphasized

that the facial challenges “by their nature requested

relief distinct from the provision of ‘just compensation.”

Id. at 345. Finally, Petitioner cites two circuit court

decisions, Peters, supra, and Opulent Life, supra. The

Peters case merely notes the general principle that facial

challenges can be litigated immediately in federal court,

and directly contradicts Petitioner’s argument here: the

court in Peters affirmed the dismissal of the plaintiff's

takings claim (which was not a facial challenge) because

the plaintiff did not pursue compensation in state court

or demonstrate that those procedures were inadequate.

In Opulent Life, the case was a facial challenge (unlike

this case). The cases of F-C.C. v. Florida Power Corp.,

480 U.S. 245 (1987) and Connolly v. Pension Ben. Guar.

Corp., 475 U.S. 211, 244-45 (1986) (Petition at 32), likewise

involved facial challenges, and neither involved any

potential “state remedies.” In both cases, this Court held

that the respective federal statutes at issue did not effect

Fifth Amendment “takings” requiring compensation.

See F.C.C., 480 U.S. at 250-254; Connolly, 475 U.S. at

221-228. In sum, not one of the cases cited by Petitioner

represents a “merits review” of a “facial takings claim”

for compensation without requiring, or appropriately

excusing, the exhaustion requirement.

26

Finally, Petitioner erroneously argues that a statute

may be “facially” challenged if it does not provide a

“concurrent mechanism” for compensating property

owners (see Petition at 30-31 and n. 3). That argument was

explicitly rejected in Williamson County: “(T]he Fifth

Amendment [does not] require that just compensation

be paid in advance of, or contemporaneously with, the

taking; all that is required is that a reasonable, certain

and adequate provision for obtaining compensation exist

at the time of the taking.” (A-28, quoting Williamson

County, 473 U.S. at 194).

In sum, as the Third Circuit correctly held, its

decision in this case is “fully compatible” with this Court’s

jurisprudence.

CONCLUSION

For all of the foregoing reasons, the petition for

certiorari in this case should be denied.

Respectfully submitted,

TERESA FICKEN Sacus

Counsel of Record

MARSHALL DENNEHEY WARNER

CoLEMAN & GOGGIN

2000 Market Street, Suite 2300

Philadelphia, PA 19103

(215) 575-2000

tfsachs@mdweg.com

Attorneys for Respondent