# Amicus Curiae 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%3A06

## Record

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

## Text

No. 17-647

in Une
Supreme Court of the Hnited States

ROSE MARY KNICK,

Petitioner,
v.

TOWNSHIP OF Scott, PA; CARL S. FERRARO,
Individually and in his Official Capacity as Scott
Township Code Enforcement Officer,

Respondents.

On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit

Amicus Curiae Brief Of Institute For Justice
Supporting Petitioner

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS
11355 West Olympic Blvd.

Los Angeles, CA 90064
Telephone: (310) 312-4185
Email: mmberger@manatt.com
Counsel for Amicus Curiae
Institute for Justice

ILI.

TABLE OF CONTENTS

WILLIAMSON COUNTY WAS
WRONGLY DECIDED. LATER
DECISIONS OF THIS COURT HAVE
PLAINLY DEMONSTRATED THAT

Ret REL: A Se

A Williamson County is Fatally
Heidi cileniscisretiatninittbinindiatiiabbinnassnase

B. This Court’s More Recent Cases
Are Not Compatible with
Williamson County ........................

NO OTHER CONSTITUTIONALLY
PROTECTED RIGHTS ARE
SHUNTED TO STATE COURTS FOR

THE WHOLE POINT OF 42 U.S.C.
§ 1983 WAS TO PROVIDE FEDERAL
COURTS FOR THE PROTECTION

OF FEDERAL RIGHTS ..................0cc0ce000
CONCLUSION

RRR ROR eee eee

LLL eee eee eee eee eee ee eee eee ee eee eee eee)

il

TABLE OF AUTHORITIES

CASES

Beck v. City of Pittsburgh,
89 F.3d 966 (3d Cir. 1996), cert.

den. 117 S. Ct. 1086 (1997)...

Bell v. Hood,

Se Cy Be Ce iceccccensensecescecsecesccscesees

Berkley v. Common Council,
63 F.3d 295 (4th Cir. 1995) (en

Boraas v. Village of Belle Terre,

476 F.2d 806 (2d Cir. 1973).............0..00.

Burnett v. Grattan,

468 U.S. 42 (1084)................cccccssssccceseeseeees

City of Boerne v. Flores,

521 U.S. GOT (1907).................cccccceeeeeceeees

City of Chicago v. International
College of Surgeons,

522 U.S. 156 (1997).............ccccccccceeeeeeeeenees

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

526 U.S. 687 (1999).............ccccccceceeeeeeeeeeeees

City of Renton v. Playtime Theatres,
Inc.,

ee es Ge Gi cnccecncecennsccssnscczesvescnscseve

Page

TABLE OF AUTHORITIES
(continued)

Complete Auto Transit, Inc. v. Brady,
EE 22

Cont'l T.V., Inc. v. GTE Sylvania, Inc.,
Se tistinbnapisiancterstussevesccnaceoctasnnssees 21

County of Allegheny v. Frank
Mashuda Co.,
EES A ae I 19

Dodd v. Hood River County,
59 F.3d 862 (Oth Cir. 1995) ...................00.....0000-- 2

Dolan v. City of Tigard,
EE AS Re ASRS Sed 5

Felder v. Casey,
en 9, 14, 21

Fields v. Sarasota-Manatee Airport
Auth.,
953 F.2d 1299 (11th Cir. 1992)......................000+. 2

First Assembly of God v. Collier

County,

20 F.3d 419 (11th Cir. 1994) .........................e 18
First English Evangelical Lutheran

Church v. County of Los Angeles,

RE 4, 7, 8, 9, 12
Front Royal etc. Corp. v. Town of Front

Royal,
135 F.3d 275 (4th Cir. 1998) ..................:.cc02000. 2

iv

Funk v. U.S.,

I I ic vncecccssccssconssnscessnscee

Gares v. Willingboro Twp.,

90 F.3d 720 (3d Cir. 1996).....................

Golden State Transit Corp. v. City of
Los Angeles,

GF re ic rceneccctnsecccevssseccceees

Gonzalez v. Ysleta Ind. School Dist.,

996 F.2d 745 (5th Cir. 1993) .................

Hammond v. County of Madera,

859 F.2d 797 (9th Cir. 1988) .................

Heck v. Humphrey,

I rccecsecstcscnsncussesceeeseves

Horne v. United States Dept. of
Agriculture,

133 S. Ct. 2053 (2013)......................200--

Jefferson v. City of Tarrant,

I Ce cervctnecenscsssensanecseossece

Kalina v. Fletcher

522 U.S. 118 (1997) eeccccccsccscccccceeccccccccsse

Kottschade v. City of Rochester,

319 F.3d 1038 (8th Cir.), cert. den.

Lake Country Estates v. Tahoe Reg.
Plan. Agency,

EF Os Ce Ce icenccececccecesscencenscsecsves

TABLE OF AUTHORITIES
(continued)
Page

Larkin v. Grendel's Den,

Ee ere 18
Lynch v. Household Fin. Corp.,

ST Ee RN a eee 20
McDaniel v. Sanchez,

ET EA aR te mA 22
Miller v. California,

ET NEN ees 17
Mitchum v. Foster,

I de cscccsenedascscsnsnsceseennes 5, 20, 21
Monell v. Dept. of Social Services,

a centnernensenasl 8, 20
Monroe v. Pape,

| Sf. eee 14, 16, 20
Nevada Dept. of Human Resources v.

Hibbs,

RES ee 7
Richardson v. Leeds Police Dept.,

71 F.3d 801 (11th Cir. 1995) .......................000+. 18
Roma Constr. Co. v. aRusso,

96 F.3d 566 (ist Cir. 1996)... 19
San Remo Hotel v. City & County of

San Francisco,

EES OO 4,13

TABLE OF AUTHORITIES
(continued)
Page

Santini v. Conn. Hazardous Waste

Mgmt. Serv.,

342 F.3d 118,130 (2d Cir. 2003)...........0.00.000000... 2
Screws v. U.S.,

ET RRR a aa 15
SEC v. United Benefit Life Ins. Co.,

EN 22
Simmons v. City of Philadelphia,

947 F.2d 1042 (3d Cir. 1991).................ccccc00ee0 18
Stringer v. United States,

471 F.2d 361 @th Cir. 1973) .............................. 9
Town of Greece v. Galloway,

i s caenieseuaiibiatans 18
Turner v. Upton County,

915 F.2d 133 (6th Cir. 1990) ............................ 18
U.S. v. General Motors Corp.,

os crrecieepenmonnionsnde 8
United States v. Herrero,

416 F.2d 945 (9th Cir. 1969) ..............00000..000000.. 9
Village of Belle Terre v. Boraas,

a cisislnsiornsinnens 17
Wainwright v. Sykes,

I cabal 15
Will v. Michigan Dept. of Police,

ee BI ictecpcentnmnacscnscursenconmpensetansenpeietin 7

TABLE OF AUTHORITIES
(continued)
Page

Williamson County Reg. Plan.

Comman. v. Hamilton Bank,

a mescmnnabeoened passim
Wilson v. Garcia,

I cpincettcivabon 9
Young v. American Mini Theatres,

gg 8 ES a 16

STATUTES
I i oa cdatietenasanemmaniite 4,12
I as cess ccrnnilsteaninsnteninedecdnidiedhioniilis 15
ice cinnccsictmiscinnctiimtiniiebeasspbsiienl passim
Tae ae ae 10
nis ccicscerinntnnneitncnnisacncsesntcunenatettl 9, 10
i ai aiicieetisccatasnsiibaibeiatn 10
CONSTITUTION

ki ceetenasinonsbins 16, 17

I i seeniteamasmnndinnniel passim

vill

OTHER AUTHORITIES

Berger, Michael M. & Gideon Kanner,
Shell Game! You Can't Get There
From Here: Supreme Court
Ripeness Jurisprudence in Takings
Cases at Long Last Reaches the
Self-Parody Stage, 36 Urb. Law.

Buchsbaum, Peter A., Should Land
Use Be Different? Reflections on
Williamson County Regional
Planning Board v. Hamilton Bank,
in Taking Sides on Takings Issues
(ABA 2002; Thomas E. Roberts,
a cemnnnnnees 20

Delaney, John & Duane Desiderio,
Who Will Clean Up The “Ripeness
Mess”? A Call For Reform So
Takings Plaintiffs Can Enter The
Federal Courthouse, 31 Urb. Law.
I hal renal tcenansis 15

Eagle, Steven J., Regulatory Takings
SN csi ctncecincssttivebeeimececarssevccosnssots 15

Mandelker, Daniel R., Land Use Law,
IE, BE cc cecinsnisisicedsnecsenseccesoceroseces 15

Stein, Gregory M., Regulatory Takings
and Ripeness in the Federal Courts,
48 Vand. L. Rev. 1 (1995) ....................00.-.ceee00- 16

INTEREST OF AMICUS CURIAE

The undersigned amicus curiae files this brief
in support of the Petitioner.' The Institute for
Justice is a nonprofit, public interest law center
committed to defending the essential foundations of
a free society through securing greater protection
for individual liberty and restoring constitutional
limits on the power of government. Central to the
mission of the Institute is strengthening the ability
of individuals to control and transfer property and
demonstrating that property rights are inextricably
connected to other civil rights.

The Institute for Justice is also committed to
the idea that the protection of individual rights
requires an engaged federal judiciary that stands
ready to defend those rights when they are
infringed. For too long, however, the doors of
federal courts have been all but closed to property
owners seeking to vindicate their 5th Amendment
rights. While, in every other area the Institute
litigates, violation of a federal constitutional right
entitles (and should entitle) a citizen to a federal
constitutional remedy, property owners are
routinely denied access to a federal forum.

' Counsel for the amicus curiae authored this brief alone
and no other person or entity other than the amicus curiae,
its members or counsel have made a monetary contribution to
the preparation or submission of this brief. Both the
Petitioner and the Respondents consented to the filing of this
brief by stipulations filed with the Court. The amicus curiae
timely notified counsel for the parties that we intended to file
this brief.

For more than three decades, the judiciary in
this country has been hamstrung in its ability to
properly adjudicate federal takings claims because
of the decision in Williamson County Reg. Plan.
Commn. v. Hamilton Bank, 473 U.S. 172 (1985).
Lower federal courts have expressed frustration at
their inability to adjudicate federal takings claims
after Williamson County, with descriptions running
the gamut from “odd” and “unfortunate” (Fields v.
Sarasota-Manatee Airport Auth., 953 F.2d 1299,
1306, 1307 [11th Cir. 1992]) to “draconian” (Dodd v.
Hood River County, 59 F.3d 852, 861 [9th Cir.
1995]), with one concluding that the situation
presents “a Catch-22 for takings plaintiffs” (Santini
v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d
118,130 [2d Cir. 2003]), and another describing the
plaintiff as having “already passed through
procedural purgatory and wended its way to
procedural hell” (Front Royal etc. Corp. v. Town of
Front Royal, 135 F.3d 275, 283-84 [4th Cir. 1998]).?

Enough cases have been decided to make it
clear that the law is every bit as confused and
unjust as the commentators cited in footnote 2
describe. It is also clear that lower courts feel
unable to solve the problem because the problem

2 A collection of the harshly critical analyses directed at
Williamson County by commentators from all parts of the
jurisprudential spectrum — even those who agree that this
litigation belongs in state court — appears in Michael M.
Berger & Gideon Kanner, Shell Game! You Can't Get There

stems from this Court's jurisprudence. How to
bridge the “anomalous gap” in that jurisprudence
as described by one Circuit Court “is for the
Supreme Court to say, not us.” (Kottschade v. City
of Rochester, 319 F.3d 1038, 1041 [8th Cir.], cert.
den. {2002].)

The core issue in this case is one that has
caused confusion and injustice since this Court's
decision in Williamson County Reg. Plan. Commn.
v. Hamilton Bank, 473 U.S. 172 (1985). The issue
is whether property owners claiming that
government action has taken their property
without just compensation in violation of the 5th
Amendment to the U.S. Constitution have the right
— like other constitutional claimants — to have
their cases decided on the merits in federal courts.
(See, e.g., Bell v. Hood, 327 U.S. 678, 681 [1946]
[complaint seeking compensation for violation of
4th and 5th Amendments belongs in federal court if
the plaintiff so chooses|.) The decisions by lower
state and federal courts have been confused and
unjust. The only consistency about them is that
they have deprived property owners of access to the
federal courts, while saying that they are applying
a rule that will “ripen” the cases for federal court
litigation. As those decisions have made clear, this
Court is the only court that can clarify and make
sense of this foundational question of federal court
jurisdiction.

The Institute for Justice, sometimes on behalf

of property owners and sometimes on behalf of
itself as an organization, has regularly litigated

about ripeness in property-rights cases and urges
the Court to resolve the inequities in that doctrine.

SUMMARY OF ARGUMENT

1. It is time for the Court to reconsider
Williamson County's state court litigation prong,
which requires state court confirmation that there
is no state remedy for a governmental taking of
property. Only then will it be said that a 5th
Amendment claim is “ripe” for federal court
litigation. The premise of that rule goes beyond the
plain language and meaning of the 5th
Amendment. A municipality's taking of private
property without just compensation is complete
when property is taken and compensation is not
paid by the government. Itdoes not require a
judicial determination to complete, or ripen, the
taking. And, if it did, there is no reason why such a
determination must take place in state court.

2. This Court’s cases since Williamson County
have shown the need to disapprove the state court
litigation requirement. First, in City of Chicago v.
International College of Surgeons, 522 U.S. 156
(1997) this Court authorized a municipal defendant
sued for a taking in state court to remove the case
to federal court, even though removal is proper only
if the plaintiff could have brought suit in federal
court in the first place (28 U.S.C. § 144l1[a]) —
something Williamson County forbids. Second, in
San Remo Hotel v. City & County of San Francisco,
545 U.S. 323 (2005), the Court held that, once a
case is brought and tried in state court — as
commanded by Williamson County — issue

5

preclusion would prevent prosecuting such a case
in federal court. Four concurring Justices urged
reconsideration of Williamson County. Third, in
Horne v. United States Dept. of Agriculture, 133
S. Ct. 2053, 2062, n. 6 (2013), the Court concluded
that, once there has been a taking without
payment, a proper constitutional claim has been
presented, without the need for further “ripening.”

3. No other constitutionally protected right is
subjected to state court “ripening” as a condition
precedent to suit in federal court. If the 5th
Amendment's protection of property is truly no
“poor relation” to the rest, as this Court proclaimed
in Dolan v. City of Tigard, 512 U.S. 374, 392 (1994),
then it is entitled to equal access to federal courts.

4. Both Williamson County and this case were
brought under the Federal Civil Rights Act,
42 U.S.C. § 1983. Such cases are probably the
worst cases in which to inject a state court
litigation requirement. As this Court has held, the
point of section 1983 was to “interpose the federal
courts between the States and the people, as
guardians of the people’s federal rights.” (Mitchum
v. Foster, 407 U.S. 225, 243 [1972].) There is no
room in that formulation for a rule that interposes
the state courts as a bar to federal court access.

ARGUMENT

WILLIAMSON COUNTY WAS WRONGLY
DECIDED. LATER DECISIONS OF THIS
COURT HAVE PLAINLY DEMONSTRATED
THAT ERROR

The 5th Amendment's Just Compensation
Clause prohibits government from taking private
property for public use unless it pays just
compensation. It has only two components: taking
property and payment. A violation of that
provision occurs as soon as government action
takes private property and the municipality fails or
refuses to pay. There is nothing in either logic or
language to require a state court to certify that
there will be no payment under state law before the
taking is complete.

A.

Williamson County is Fatally Flawed

Here is the flaw at the heart of Williamson
County: it held that the taking was not complete
until compensation was denied not just by the
taking entity, but also by the state courts.

Williamson County quite properly began its
analysis with the words of the 5th Amendment,
noting that the constitutional provision “does not
proscribe the taking of property; it proscribes
taking without just compensation.” (473 U.S. at

194.) The problem arises because the Court then
blurred the distinction between acts of the agency
that actually committed the taking and the State
that may or may not have provided compensation
through its judiciary. (473 U.S. at 195-96.)

But the state is not involved in 42 U.S.C. § 1983
cases. States and their officials cannot be sued
under Section 1983 (Will v. Michigan Dept. of
Police, 491 U.S. 58 [1989]), nor (with very narrow
exceptions [Nevada Dept. of Human Resources v.
Hibbs, 538 U.S. 721 (2003)]) can they be brought
into federal court at all against their will (U.S.
Const., 11th Amend.; but see First English, 482
U.S. at 316, n. 9). The real issue in cases like this
is whether the local entity — like the Township of
Scott — is alleged to have taken private property
for public use and failed to pay for it. Ifso, the
question whether the town can be compelled to pay
lies at the heart of litigation in either state or
federal court.

The crux of the problem with Williamson
County is that it merged the state legal system with
the local agency defendant and disregarded the
plain words of the Constitution. Nothing in the 5th
Amendment requires multiple litigation or state
court deference. It does not say “... nor shall
private property be taken for public use without
just compensation as finally determined by
unsuccessfully suing a municipality in state court.”

The issue is not whether a state’s judiciary has
countenanced the constitutional violation, but

whether the municipal defendant has committed it.
42 U.S.C. § 1983 forbids any person, including
municipalities (Monell v. Dept. of Social Services,
436 U.S. 658, 690 [1978]), acting under color of
state law from violating rights secured by federal
law. The gravamen of a 5th Amendment claim is a
taking of property® and nonpayment by the taker.
When a municipality — like Scott — conscripts
private property without any pretext of
compensation, it violates the 5th Amendment. The
presence or absence of a state remedy has no
bearing on whether the malefactor did the deed.

Two years after Williamson County, the Court
understood this, describing Williamson County as
holding that “an illegitimate taking might not occur
until the government refuses to pay’ (First English
Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304, 320, n. 10 [1987]; emphasis
added), without any reference to whether a state
court had refused to order payment. In any event,
if a municipality refuses to provide compensation
as required by the U.S. Constitution and recourse
to the courts must be had, there is no reason why
such recourse should — let alone must — be had
only in stale courts when the federal constitution is
being violated.

Deferring to state courts is tantamount to
granting states a veto over access to federal court,

° As explained in U.S. v. General Motors Corp., 323 U.S.
373, 378 (1945), it is the deprivation of the owner that
constitutes the compensable taking.

making them de facto federal court gatekeepers.
The Court has repeatedly concluded that “Congress
surely did not intend to assign to state courts and
legislatures a conclusive role in the formative
function of defining and characterizing the
essential elements of a federal cause of action.”
(Felder v. Casey, 487 U.S. 131, 144 [1988], quoting
Wilson v. Garcia, 471 U.S. 261, 269 [1985].)

Mandating suit in state court adds to the 5th
Amendment a remedial requirement. But the just
compensation language has repeatedly been read
by this Court as a limitation on government's
power, not an invitation for an injured property
owner to sue for payment. The Just Compensation
Clause is self-executing. (First English, 482 U.S. at
315.)

If nothing else, any required suit for payment
is contrary to Congressional policy established in
1970 in the Uniform Relocation Assistance and
Real Property Acquisition Policies Act, which
provides that the old days of grabbing property first
and then saying “sue me” to the aggrieved owner
are over. (Compare Stringer v. United States, 471
F.2d 381, 384 [9th Cir. 1973]; United States v.
Herrero, 416 F.2d 945, 947 [9th Cir. 1969].) That
Act makes it illegal for government agencies to
make it necessary for property owners to sue for

10

their just compensation.‘ Rather, the duty is the
government's to acquire whatever property
interests are needed for the public good, either by
negotiation (42 U.S.C. § 4651[1]) or, failing that,
condemnation (42 U.S.C. § 4651[8)}).

In any event, if suit is required to demonstrate
the actuality of a 5th Amendment violation, there
is nothing in the 5th Amendment directing that the
only place to seek that determination is in state
court. As state and federal courts have concurrent
jurisdiction to decide constitutional claims, the
choice of forum, as in other cases, should belong in
the first instance to the plaintiff. (Bell, 327 U.S. at
681.)

There is no need to sue in State court merely to
confirm the non-payment of just compensation.
The non-payment is obvious; it is the reason for the
suit. Had there been payment, there would be no
litigation. This can be seen in any regulatory
taking case. In City of Monterey v. Del Monte
Dunes at Monterey, Lid., 526 U.S. 687 (1999), for
example, the taking occurred in 1986, the case was
furiously litigated, through two appeals to the 9th
Circuit and one trip to this Court. That process

* The Act provides succinctly, “No Federal agency head
shall intentionally make it necessary for an owner to institute
legal proceedings to prove the fact of the taking of his real
property.” (42U.S.C. § 4651[8].) To make this a truly
“uniform” law, as its title advertised, the policies in Section
4651 were made applicable to the states — by directing that
federal funds could not be spent on state projects unless the
state agreed to comply with these policies. (42 U.S.C. § 4655.)

1]

consumed 13 years. At no time — even after a trial
on ‘he merits resulted in a compensatory judgment
— uid the city volunteer to pay anything. Suit was
not necessary to determine the lack of
compensation, or the city's lack of interest in

paying.

Nor is a state suit needed to inform the
defendant of the problem. Given the complexity of
today's land use procedures — usually requiring
years of effort and endless public hearings before
action is taken — any agency that is not comatose
is well aware by the end of the process that the
property owner claims the city action violates the
5th Amendment. Scott was not in doubt about that
claim. It simply chose not to honor it. Imposing on
Ms Knick (not to mention the time of the state
courts) merely to confirm that obvious fact serves

no legitimate purpose.

With respect, Williamson County erroneously
construed the 5th Amendment to require a wasteful
detour through state courts as a precursor to
federal court litigation of a core federal
constitutional issue. As shown below, it is even
worse. Lower court efforts to grapple with this
rule, attempting to apply it while also giving
deference to general rules of preclusion, have
created only chaos. It is time for this Court to
acknowledge the original error and overrule the
state court ripening requirement.

12

B.

This Court’s More Recent Cases Are Not
Compatible with Williamson County

This Court’s post-Williamson County cases
cannot be reconciled with it. Williamson County's
rule is that takings claims (whether directly under
the Constitution or via 42 U.S.C. § 1983) must first
be brought (and lost) in state court in order to
render them ripe and viable in federal court.

But this Court has repeatedly held to the
contrary, albeit without directly noting the conflict
thus created with Williamson County.

First, in City of Chicago v. International College
of Surgeons, 522 U.S. 156 (1997) this Court
authorized a municipal defendant sued for a taking
in state court to remove the case to federal court.
But removal is proper only if the plaintiff could
have brought suit in federal court in the first place.
(28 U.S.C. § 1441fa].) Under Williamson County,
however, the plaintiff could not have filed suit
initially in federal court. Such a suit would have
been dismissed, with the lower courts relying on
Williamson County. Acknowledging that the
juxtaposition of Williamson County and College of
Surgeons was “anomalous,” the Eighth Circuit
Court of Appeals concluded that how to resolve that
conundrum “is for the Supreme Court to say, not
us.” (Kottschade, 319 F.3d at 1041.)

13

Second, in San Remo Hotel v. City & County of
San Francisco, 545 U.S. 323 (2005), the Court held
that, once a case is brought and tried in state court
— as commanded by Williamson County — issue
preclusion would prevent prosecuting such a case in
federal court. Thus, state court litigation does not
ripen a 5th Amendment claim, it ends it. The
rationale for state court litigation has been
undermined by San Remo.

Third, in Horne v. United States Dept. of
Agriculture, 133 S. Ct. 2053, 2062, n. 6 (2013), the
Court concluded that, once there has been a taking
without payment, a proper constitutional claim has
arisen. This undermines another key element of
Williamson County, i.e., the idea that mere non-
payment is not enough to ripen 5th Amendment
litigation. In addition, there must be a holding by a
state court that compensation is not required.
Horne is contrary to this Williamson County
holding.

In these three post- Williamson County opinions,
the Court has eliminated any jurisprudential basis
for continuing to hew to that plainly outmoded
precedent.

It is time, as the late Chief Justice and three
others proclaimed in San Remo, for the Court to
reconsider Williamson County and remove it from
the precedential rolls. (545 U.S. at 348-52
{[Rhenquist, C.J., concurring, joined by O’Connor,
Kennedy, and Thomas, JJ.].)

14

NO OTHER CONSTITUTIONALLY
PROTECTED RIGHTS ARE SHUNTED TO
STATE COURTS FOR “RIPENING”

Property rights are the only constitutional
rights subjected to a Williamson County-like
ripening. This Court's cases dealing with other
rights make this plain.

Just as the Constitution forbids taking property,
but only without just compensation, so the
Constitution forbids the deprivation of life and
liberty — but only if done without due process of
law: “... nor shall any State deprive any person of
life, liberty, or property, without due process of law

. .” (U.S. Const., 14th Amend.) An yet,
plaintiffs complaining about deprivations of life or
liberty without due process of law are not told they
must first sue in state courts to determine whether
relief can be had there, as a precondition to seeking
redress in federal court. Quite the contrary. Their
suits take place in federal court; the validity of the
defendant's actions under state law, and the
availability of state remedies is irrelevant. (See,
e.g., Monroe v. Pape, 365 U.S. 167 [1961] [police
brutality case not required to be preceded by state
tort suit for assault and battery]; Felder v. Casey,
487 U.S. 131, 148 [1988] [Section 1983 suits are

15

enforceable in federal court “in the first instance”];
cf. Screws v. U.S., 325 U.S. 91, 108 [1945].)®

If, as Williamson County said, the federal
violation is not ripe until a state court verifies that
state law provides no remedy, then all Section 1983
litigation would have to begin in state courts.
In the words of the leading treatise, “If there is a
reason why free speech cases are heard by federal
judges with alacrity and property rights cases
receive the treatment indicated above |i.e.,
diversion to state courts], it is not readily
discernible from the Constitution.” (Steven J.
Eagle, Regulatory Takings 1070 [2d ed. 2001].)

That property owners have been singled out is
clear.6 As one commentator concluded, “[t]he state
compensation portion of [Williamson County] finds

5 The lone exception is habeas corpus, where all issues
(state and federal) must be raised in state court first.
(28 U.S.C. § 2254 [b].) However, once done, a habeas
petitioner is not subjected to res judicata and full faith and
credit barriers upon arriving in federal court. The issues may
be argued afresh. (See, e.g, Wainwright v. Sykes, 433 U.S. 72,
80 [1977].)

® See, e.g., Daniel R. Mandelker, Land Use Law, § 2.24 at 2-
32 (5th ed. 2003) [“The Supreme Court has adopted a special
set of ripeness rules to determine whether federal courts can
hear land use cases.”|; John Delaney & Duane Desiderio, Who
Will Clean Up The “Ripeness Mess”? A Call For Reform So
Takings Plaintiffs Can Enter The Federal Courthouse, 31 Urb.
Law. 195, 196 (1999) [“the ripeness and abstention doctrines
have uniquely denied property owners, unlike the bearers of
other constitutional rights, access to the federal courts on
their federal claims” |.

16

no parallel in the ripeness cases from other areas of
the law.”’

No parallel, indeed. The settled rule in other
areas of substantive litigation under 42 U.S.C.
§ 1983 is that the federal forum is available at the
plaintiffs demand, regardless of alternative
remedies under state law:

“It is no answer that the State has a
law which if enforced would give relief.
The federal remedy is supplementary
to the state remedy, and the latter
need not be first sought and refused
before the federal one is invoked.”
(Monroe, 365 U.S. at 183.)

Paradoxically, federal court protection is
routinely provided in some land use cases — but
only those involving aspects of the Bill of Rights
other than the 5th Amendment's’ dust
Compensation Clause. Federal court
lst Amendment cases abound, for example, in
which the validity of local land use ordinances
regulating or zoning for (or against) sexually
explicit work has been challenged.* There is no
requirement of first presenting the issues to state
courts, even though they implicate the same zoning
policies and land use ordinances as do other land

’ Gregory M. Stein, Regulatory Takings and Ripeness in the
Federal Courts, 48 Vand. L. Rev. 1, 23 (1995).

® E.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986); Young v. American Mini Theatres, 427 U.S. 50 (1976).

17

use cases. Cases are thus decided in federal court,
based on “local community standards,” without
initial state court suits. Similarly, whether an
artistic or literary work is obscene under the Ist
Amendment is determined by “contemporary
community standards” and “applicable state law.”®
But state court judges do not have a monopoly on
measuring the works against those local standards.

Nor have federal judges shown any hesitation to
embroil themselves in local issues invoking the
kind of neighborhood and family values typically
involved in land use cases. In a celebrated zoning
case, this Court concluded that:

“|a] quiet place where yards are wide,
people are few, and motor vehicles
restricted are legitimate guidelines in
a land use project addressed to family
needs... . It is ample to lay out zones
where family values, youth values,
and the blessings of quiet seclusion
and clean air make the area a
sanctuary for people.” (Village of Belle
Terre v. Boraas, 416 U.S. 1, 9 [1974].)

The Court of Appeals in that case had “start/ed]
by examinfing/”’ the zoning ordinance with
reference to “the interest of the local community in
the protection and maintenance of the prevailing
traditional family pattern ....” (Boraas v. Village
of Belle Terre, 476 F.2d 806, 815 [2d Cir. 1973].) If

% Miller v. California, 413 U.S. 15, 24 (1973).

18

it is acceptable for a federal court to examine such
intensely local and personal issues in the context of
disapproving a proposed development planning
pattern, how does it become unacceptable when a
landowner wants to challenge regulatory
restrictions on constitutional grounds?

First Amendment cases dealing with the land
use aspects of establishment of religion are also
litigated in federal courts in the first instance. '°

Moreover, at the behest of aggrieved citizens,
federal courts have involved themselves in the local
intricacies of city budget policy,'' county law
enforcement policy,'? municipal policy governing
the use of force during arrests,'* county road
acquisition policy," municipal employment
policy,'® city medical care policy,'© random drug

© E.g., Town of Greece v. Galloway, 134 S. Ct. 1811 (2014);
City of Boerne v. Flores, 521 U.S. 507 (1997); Larkin v.
Grendel's Den, 459 U.S. 116 (1982); First Assembly of God v.
Collier County, 20 F.3d 419 (11th Cir. 1994).

"| Berkley v. Common Council, 63 F.3d 295 (4th Cir. 1995)
(en banc).

‘2 Turner v. Upton County, 915 F.2d 133 (5th Cir. 1990).

'8 Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), cert.
den. 117 S. Ct. 1086 (1997).

' Hammond v. County of Madera, 859 F.2d 797 (9th Cir.
1988).
Richardson v. Leeds Police Dept., 71 F.3d 801 (11th Cir.
1995).

‘© Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir.
1991).

19

testing of students,'’? school district sexual abuse
policy,"* police department sexual harassment
policy,'* and even the question whether “extortion
of outsiders, businessmen, or developers” was town
policy. As this Court itself has noted, federal
courts routinely review issues involving exercise of
a state's sovereign prerogative, including the power
to regulate fishing in its waters, its power to
regulate intrastate trucking rates, a city's power to
issue bonds without a referendum, and a host of
others. ?!

Many of the cited cases deal with parallel
features of the Bill of Rights, notably the Due
Process Clause, routinely protected in federal court
through 42US.C. § 1983 — even against
unconstitutional land use regulations. All sorts of
local governmental issues are litigated in federal
courts every day. And they involve all aspects of
the Bill of Rights — except the 5th Amendmert's
Just Compensation Clause.

“For years, federal lawsuits telling
state and local governments how to
run their hospitals, jails, police forces,

'' Board of Education v. Earls, 536 U.S. 822 (2002).

"® Gonzalez v. Ysleta Ind. School Dist., 996 F.2d 745
(5th Cir. 1993).

' Gares v. Willingboro Twp., 90 F.3d 720 (3d Cir. 1996).
*” Roma Constr. Co. v. aRusso, 96 F.3d 566 (let Cir. 1996).

"| County of Allegheny v. Frank Mashuda Co., 360 U.S. 185,
191-92 (1959) [collecting cases] [retaining federal court
jurisdiction over a state eminent domain case}.

20

and mental institutions have been
accepted as a matter of course.” 22

There is nothing so special about land use cases
as to insulate them from federal court review.

THE WHOLE POINT OF 42 U.S.C. § 1983 WAS
TO PROVIDE FEDERAL COURTS FOR THE
PROTECTION OF FEDERAL RIGHTS

As this Court has repeatedly stressed, a § 1983
case is a “species of tort liability” (Heck v.
Humphrey, 512 U.S. 477, 483 [1994]), specifically, a
statutorily created “constitutional tort” (Jefferson v.
City of Tarrant, 522 U.S. 75, 79 [1997]) that sweeps
within its ambit all manner of governmental
actions that defy Bill of Rights protections.
Properly so. Section 1983 was intended to provide
“a uniquely federal remedy” (Mitchum v. Foster,
407 U.S. 225, 239 [1972]) with “broad and sweeping
protection” (Lynch v. Household Fin. Corp., 405
U.S. 538, 543 [1972] [quoting with approval]) “read
against the background of tort liability that makes
a man responsible for the natural consequences of
his actions” (Monroe v. Pape, 365 U.S. 167, 187
[1961], overruled in part, to expand government
liability, in Monell, 436 U.S. 658) so that
individuals in a wide variety of factual situations

2 Peter A. Buchsbaum, Should Land Use Be Different?
Reflections on Williamson County Regional Planning Board v.
Hamilton Bank, in Taking Sides on Takings Issues, ch. 20,
p. 472 (ABA 2002; Thomas E. Roberts, ed.).

21

are able to obtain a federal remedy when their
federally protected rights are abridged (Burnett v.
Grattan, 468 U.S. 42, 50, 55 [1984]).

While read against the general common law tort
os “[t]he coverage of the statute [§ 1983]
. broader “ (Kalina v. Fletcher, 522 U.S. 118
11997), and must be broadly and liberally
construed to achieve its goals (Golden State Transit
Corp. v. City of Los Angeles, 493 U.S. 103, 105
[1989]; Lake Country Estates v. Tahoe Reg. Plan.
Agency, 440 U.S. 391, 399-400 [1979)).

“(T]he central purpose of the Reconstruction-Era
laws is to provide compensatory relief to those
deprived of their federal rights by state actors”
(Felder v. Casey, 487 U.S. 131, 141 [1988]) by
“interpos[ing] the federal courts between the States
and the people, as guardians of the people's federal
rights” (Mitchum, 407 U.S. at 243). Williamson
County's state court litigation mandate inverted
this basic building block of 42 U.S.C. § 1983: it
interposed state courts to shield municipalities
from federal accountability. It is time for this
Court to end that practice.

CONCLUSION

Precedents are not cast away lightly. However,
when scholars have been sharply critical of
decisions,** when application of a precedent has
produced a rule that “stands only as a trap for the

% =6Contl T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 48
(1977).

22

unwary,”"** when necessary to clarify the
implications of earlier decisions,*® when decisions
of the Court are “if not directly . . . [conflicting,] are
so in principle,”* or when “the answer suggested
by [the Court’s] prior opinions is not free of
ambiguity,”27 the Court has reviewed its earlier
decisions and corrected its own errors. Each of
those factors applies to Williamson County.

Certiorari should be granted.

Respectfully Submitted,

MICHAEL M. BERGER*
*Counsel of Record

MANATT, PHELPS & PHILLIPS
11355 West Olympic Blvd.
Los Angeles, CA 90064
(310) 312-4000
mmberger@manatt.com

Counsel for Amicus Curiae
Institute for Justice

4 =Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279
(1977).

% =SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 207
(1967).

% =Funk v. U.S., 290 U.S. 371, 374 (1933).

#7 ~McDaniel v. Sanchez, 452 U.S. 130, 136 (1981).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0796%3A06. Public record. Not legal advice.