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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0796%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2018

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0796%3A03. Public record. Not legal advice.