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

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No. 17-647

In The

Supreme Court of the Anited States

ROSE MARY KNICK,

Petitioner,

Vv.

TOWNSHIP OF SCOTT; CARL S. FERRARO,

Individually and in his Official Capacity as Scott

Township Code Enforcement Officer,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITIONER’S BRIEF ON THE MERITS

J. DAVID BREEMER

Counsel of Record

MERIEM L. HUBBARD

BRIAN T. HODGES

CHRISTINA M. MARTIN

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: jbreemer@pacificlegal org

Counsel for Petitioner

QUESTION PRESENTED

Whether the Court should reconsider the portion

of Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172, 194-96 (1985),

requiring property owners to exhaust state court

remedies to ripen federal takings claims, as suggested

by Justices of this Court. See Arrigoni Enterprises,

LLC v. Town of Durham, 136 S. Ct. 1409 (2016)

(Thomas, J., joined by Kennedy, J., dissenting from

denial of certiorari); San Remo Hotel, L.P. v. City and

County of San Francisco, 545 U.S. 323, 348 (2005)

(Rehnquist, C.J., joined by O’Connor, Kennedy, and

Thomas, JJ., concurring in judgment).

TABLE OF CONTENTS

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I i sleaduheeaniionsdiabenes l

TTT ns ici daschanianeapindciemaitinieatinteasiaaleeniiianads l

CONSTITUTIONAL PROVISIONS AT ISSUE. ........ |

I sis enelamediidiis I

STATEMENT OF THE CASE................00.00.0000000000eee ee 3

D0 ti(‘é éC*C*‘*R SESE 3

1. The Setting and Ms. Knick’s Property ..... 3

2. The Challenged Cemetery Ordinance ...... 5

3. Enforcement of the Ordinance

i ncescsintairasiieminestcennnns 6

F |. Si SaaS eevee 7

1. State Court Proceedings............................ 7

ELT TET 8

SUMMARY OF ARGUMENT .....000000000.0.. ccc 3)

ill

WILLIAMSON COUNTY'S STATE

LITIGATION REQUIREMENT IS

'JNWORKABLE IN PRACTICE AND

INCONSISTENT WITH THE REMEDIAL

NATURE OF THE JUST

COMPENSATION CLAUSE ......................... 15

A. Background Takings Law............................. 15

1. Condemnation and

Inverse Condemnation ........................... 15

2. Inverse Condemnation Takings

Claims Concern Liability; The

Just Compensation Clause

Provides a Remedy ..................2....ee2e0+0++- 17

B. Takings Ripeness Doctrine ............................ 19

1. Finality Rules Controlled Prior

to Williamson County's Articulation

of the State Litigation Doctrine............. 19

2. Williamson County's

State Litigation Dicta............................. 22

. The State Litigation Requirement

Is Incapable of Coherent and

Just Application ........... Soliiitl sliindatliiciidstipicisiad 23

1. The State Litigation Rule Ripens

Nothing, but Instead Strips

Federal Courts of the Ability

To Hear Takings Claims ........................ 24

2. The State Litigation Doctrine

Is Inconsistent With 42 U.S.C.

§ 1983 and 28 U.S.C. § 1331 .................. 27

3. The State Litigation Requirement

Deprives Takings Plaintiffs of

Reasonable Access to State Courts......... 30

D. The State Litigation Requirement Fails

To Account for the Just Compensation

re aicianteciiveninnte 33

Il. THE COURT SHOULD RECONFIRM

THE PRE-WILLIAMSON COUNTY

FINALITY RIPENESS FRAMEWORK

AND HOLD MS. KNICK’S CLAIMS

RIPE UNDER THAT REGIME ............0.0....... 40

A. Takings Claims Ripen When the

Government Clearly Injures

SESE 4]

B. Ms. Knick’s Physical Takings

SS EL Ee On 43

1. Ms. Knick’s As-Applied

a clasaemiamias 44

2. Ms. Knick’s Facial Claims

a cesses 45

C. Stare Decisis Does Not Bar the

Court from Correcting Course ....................... 48

Ii ceinicctnicinsscssistnpacnpiissidaanbensiamisiemenauianiiiadioiletdiada 50

TABLE OF AUTHORITIES

Cases

8679 Trout, LLC v. N. Tahoe Pub. Utils. Dist.,

No. 2:10-cv-01569, 2010 WL 3521952

Fg GL a nee 30-31

Abbott Laboratories v. Gardner,

i seliucibienebatiin 19

Agins v. City of Tiburon,

a lseuinepensiubbuinnend 38

Alleyne v. United States,

ss snsiiohicaanee 48

Am. Sav. & Loan Ass’n v. County of Marin,

653 F.2d 364 (Oth Cir. 1961)................................. 18

Anderson v. Chamberlain,

134 F. Supp. 2d 156 (D. Mass. 2001).................... 31

Archer Gardens, Ltd. v. Brooklyn Ctr. Dev. Corp.,

468 F. Supp. 609 (S.D.N.Y. 1979).................... 21-22

Arkansas Game & Fish Comm'n v. United States,

EES a ae EC Re 37

Arrigoni Enters., LLC v. Town of Durham,

136 S. Ct. 1409 (2016).............. 12, 24, 28, 30-31, 33

Blanchette v. Connecticut General

Ins. Corporations,

ae Rae 41, 44, 47

Brubaker Amusement Co., Inc. v. United States,

304 F.3d 1349 (Fed. Cir. 2002) ............................. 43

Burnet v. Coronado Oil & Gas Co.,

ESE ETE 48

Cherokee Nation v. S. Kansas Ry. Co.,

I I i siteunniinne 17, 36

Citizens United v. Federal Election Comm'n,

EE a ee 49

Cit.’ of Chicago v. International College

of Surgeons, 522 U.S. 156 (1997).................... 12, 30

Clifty Properties, LLC v. City of Somerset,

No. 6:17-41, 2017 WL 4003024

i SS ame 31

Danforth v. United States,

do ceteniunomnsiininninsid 16

Davis v. Mills,

EE EET ae Re ee 50

Del-Prairie Stock Farm v. County of Walworth,

572 F. Supp. 2d 1031 (E.D. Wis. 2008)................. 32

DLX, Inc. v. Kentucky,

381 F.3d 511 (6th Cir. 2004) ................. 24-26, 28-29

Doak Homes, Inc. v. City of Tukwila,

No. C07-1148MJP, 2008 WL 191205

ek Ge een 32

Dolan v. City of Tigard,

i calinnisidenieeh 10

Eastern Enters. v. Apfel,

i cclendaietinebocittinnta 15

Federal Election Comm'n v.

Wisconsin Right To Life, Inc.,

a astcpamebesineninntte 48-49

First English Evangelical Lutheran

Church of Glendale v. Los Angeles County,

482 U.S 304 (1987) ...13, 15-16, 18-19, 34-38, 45, 48

Foster v. City of Detroit,

405 F.2d 138 (6th Cir. 1968) ..........0ccccccccccceeeeeeeees 21

Foster v. Minnesota, No. 17-1177,

2018 WL 1881609 (8th Cir. Apr. 20, 2018)...... 26-27

Helvering v. Hallock,

I caesar 48

Henderson v. City of Columbus,

827 N.W.2d 486 (Neb. 2013) ..................... 18, 34, 37

Hodel v. Irving,

ER es eT a caer 35

Hodel v. Virginia Surface Mining &

Reclamation Ass’n,

I NE aE Te 19, 45-46

Home Telephone & Telegraph Co. v.

City of Los Angeles,

lie 29, 43

Horne v. Dep’t of Agric.,

569 U.S. 513 (2013)................... 39, 42, 44-45, 47-48

Hudson v. Palmer,

ESTER eRe axe eenioneee arr 39

-lacobs v. United States,

I i sedusnbnibinameniela 35

Kaiser Aetna v. United States,

ee Eis ittittcrticnenccnesesscnieeese 14-15, 17, 44

Keystone Bituminous Coal Ass’n v. DeBenedictis,

I TI ire icicnrnedonsisstcnianisiasahidmaaniatinitiein 45-46

Kirby Forest Indus., Inc. v. United States,

fg 2 hg SEE ee 13, 16-17, 22, 36, 42

Kirtsaeng v. John Wiley & Sons, Inc.,

a seauitunindioemndéiodneba 48

Knick v. Township of Scott,

ae I, SED... nc csmecenteccceccsonnsoss l

Koscielski v. City of Minneapolis,

435 F.3d 886 (6th Cir. 2006)................................. 31

Lawrence v. Texas,

senile 40, 48

Lingle v. Chevron U.S.A. Inc.,

a. . nesenennnonin 17, 35, 49

Logan v. Zimmerman Brush Co.,

Ee ae 40

Loretto v. Teleprompter Manhattan CATV Corp.,

I a sapeililiconl 37

Lujan v. National Wildlife Federation,

a ce stemmmnnsontion 41

Lynch v. Household Fin. Corp.,

a sennnlineniinon 12, 27

MacDonald, Sommer & Frates v. Yolo County,

i siebiniidpidnieaded 41

Martin v. Franklin Capital Corp.,

a sniepibdinsemmielignoagen 32

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816)...................0...c.00000 29

McDonald v. City of West Branch,

RR RS 24

Mitchum v. Foster,

I enema 27

Monongahela Nav. Co. v. United States,

cu sniasineniniinh 18

Monroe v. Pape,

I eniebnnael 28, 43

Murr v. Wisconsin,

ee ee eo naseiuoutenweensoens 18, 35

Nollan v. California Coastal Comm’n,

I I, I occ cccccscnsncncseccnes 2, 10, 14-15

Palazzolo v. Rhode Island,

533 U.S. 606 (001) ........................ mA 10, 40, 42-43

Parratt v. Taylor,

a asuiebanneens 39-40

Patsy v. Bd. of Regents of State of Fla.,

a saienidesecinupiasti 27

Payne v. Tennessee,

TE Te aN 14, 48-49

Pennsylvania Coal Co. v. Mahon,

ER Ee Cr 46

Reahard v. Lee County,

30 F.2a 1413 (i ite Cir. 1904) .............................-. 13

Regional Rail Reorganization Act Cases,

a a ssopdnseneuainiuaee 36

Rockstead v. City of Crystal Lake,

486 F.3d 963 (7th Cir. 2007) ....................000+0+- 25, 30

Ruckelshaus v. Monsanto Co.,

ee eccccc icicnsecereccssscaserinensseiaoets 23, 39

San Diego Gas & Elec. Co. v.

City of San Diego,

9 § | nee 34-35, 37-38

San Remo Hotel, L.P. v. City & County of

San Francisco, 545 U.S. 323 (2005)............... passim

Sansotta v. Town of Nags Head,

724 F.3d G33 (4th Cir. BOTS) ...........00...2..020.222002.... 32

Santini v. Connecticut Hazardous Waste

Mgmt. Serv., 342 F.3d 118 (2d Cir. 2003) ............ 25

Seiler v. Charter Tp. of Northville,

53 F. Supp. 2d 957 (E.D. Mich. 1999)................... 31

Sherman v. Town of Chester,

768 F.3d GE4 Cid Cir. BO14).............cccccccccecccccccesscee 32

Steffel v. Thompson,

| EEE ay eenanee enor see 43

Stop the Beach Renourishment, Inc. v.

Florida Dep't of Envil. Prot.,

ee io cininiiciciintnidanemedeniiins 10

Suitum v. Tahoe Reg’l Planning Agency,

i seme 19, 42-45

Sweet v. Rechel, 159 U.S. 380 (1895)................... 16-17

Swift & Co., Inc. v. Wickham,

as Be aia, sonicinnsesmpentuennedenuienabeiel 49

Tahoe-Sierra Pres. Council v.

Tahoe Reg'l Planning Agency,

Re re, Se ei incccsivcnsnccnnnsmenercussenesan 41-42, 44

Trafalgar Corp. v. Miami County Bd. of Comm'rs,

519 F.3d 285 (6th Cir. 2008)..........................-. 24-25

United States v. Clarke,

ie i hestivcinccniniticscnenbinnmsaian 17, 36, 42

United States v. Dow,

I esbeneuiictiia 42

United States v. Gaudin,

I amepsesunvesesnonsin 49

United States v. Gen. Motors Corp.,

ET 16

United States v. Scott, 437 U.S. 82 (1978) ............... 48

Urbanizadora Versalles, Inc. v. Rivera Rios,

i 21

W.J.F. Realty Corp. v. Town of Southampton,

220 F. Supp. 2d 140 (E.D.N.Y. 2002).................... 25

Wayside Church v. Van Buren County,

sD 11

Williamson County Regional Planning Commission

v. Hamilton Bank of Johnson City,

EE passim

Zine wn v. Burch, 494 U.S. 113 (1990)............ 28, 39

Constitution

i i essuieeneoeoucons 1, 15

Statutes

SIRES coe l

Nc emtevineemanen 1, 12, 27-28

EE 27

EE 16

a esmemsmuenuabonsnnt 16

nn ccccocccocnscnsecerevsceserons 1, 12, 27

ET 34

ry nn, i nesemnemnie 37

Other Authorities

1A Moore, James Wm., et al.,

Moore’s Federal Practice (1961) .................000....... 21

Berger, Michael M., Supreme Bait & Switch:

The Ripeness Ruse In Regulatory Takings,

3 Wash. U. J.L. & Pol’y 99 (2000)............0.000000..... 25

Bloom, Frederic & Serkin, Christopher, Suing

Courts, 79 U. Chi. L. Rev. 553 (2012)........0..00000... 12

Frankfurter, Felix & Landis, James M., The Business

of the Supreme Court: A Study in the Federal

Se ND Gi ceccccnccsncnecteccnnsnensimntcnsenecans 28

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

Has the U.S. Supreme Court Been Competent in Its

Effort to Formulate Coherent Regulatory Takings

Law?, 30 Urb. Law. 307 (1998)........................000+- 29

Keller, Scott A., Judicial Jurisdiction Stripping

Masquerading as Ripeness: Eliminating

the Williamson County State Litigation

Requirement for Regulatory Takings Claims,

85 Tex. L. Rev. 199 (2006)..................................... 33

Monaghan, Henry Paul, State Law Wrongs, State

Law Remedies, and the Fourteenth Amendment,

86 Colum. L. Rev. 979 (1986)...................c0cccccese0e 39

Preis, John F., Alternative State Remedies

in Constitutional Torts,

40 Conn. L. Rev. 723 (Feb. 2008).......................... 28

Roberts, Thomas, Ripeness and Forum Selection

in Land-Use Litigation, in Takings: Land-

Development Conditions and Regulatory

Takings after Dolan and Lucas

Salkin, Patricia E., Zoning and Land Use Planning,

39 Real Est. L.J. 526 (Spring 2011)..........00000000000... 3

Smith, Craig, Home burial on legislators’ radar;

Meyersdale plans vote, TribLive, Apr. 5, 2014,

http://triblive.com/state/pennsylvania/57887 17-

74/burial-funeral-property ...................cccccccceeeeeeeeees 3

OPINIONS BELOW

The opinion of the Third Circuit Court of Appeals

is reported at Knick v. Township of Scott, 862 F.3d 310

(3d Cir. 2017). It is attached to the Petition as Petition

Appendix (Pet. App.) A. The decision of the district

court is unpublished. It is attached to the Petition as

Appendix B.

JURISDICTION

The lower courts had jurisdiction over this case

under 28 U.S.C. § 1331, 42 U.S.C. § 1983, and the

Fifth Amendment to the United States Constitution.

The Court of Appeals for the Third Circuit entered

final judgment on July 6, 2017. Pet. App. C. The

Petition for Certiorari was timely filed on October 31,

2017, after an extension of time up to and including

November 1, 2017. The Court granted the Petition on

March 5, 2018. It has jurisdiction under 28 U.S.C.

§ 1254.

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment to the U.S. Constitution

provides: “nor shall private property be taken for

public use, without just compensation.” U.S. Const.

amend. V.

INTRODUCTION

The central issue in this case is whether American

property owners like Petitioner Rose Mary Knick

(Ms. Knick) are entitled to a realistic and fair

opportunity to seek compensation for a “taking” of

property within the meaning of the Fifth Amendment.

As it stands now, they have no such opportunity due

to the ripeness doctrine set out in Williamson County

Regional Planning Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172, 194-96 (1985). Under that

decision, property owners cannot hold the government

liable for a taking of property in federal court until

they exhaust state court remedies. Jd. In application,

this rule bars citizens from vindicating their

constitutional property rights in federal courts and

strips them of reasonable access to state courts. In this

case, Williamson OCountys _ state litigation

requirement prevented the district court from hearing

Ms. Knick’s claim that the Township of Scott

(Township) took her property when it gave members

of the public and Township officials a right to

physically occupy her land. Pet. App. A at 32; see

generally, Nollan v. California Coastal Comm'n, 483

U.S 825, 831 (1987).

The dispute traces to the Township’s enactment of

an ordinance (Ordinance) that allows Township

officials and the public to access any private land

containing a burial ground of any size. The Township

decided that this law applies to Ms. Knick, a single

woman who owns and lives on 90 acres of private

farmland. Pet. App. A at 3-4. After searching her land,

it commanded her to open it to daily public access—

originating from some undefined point along the

nearest public road—and to allow people to intrude

300 yards into her property to reach an area the

Township identified as a small gravesite. Joint

Appendix (JA) at 10, 97, 110-12.

When Ms. Knick asserted below that the

Ordinance’s property access requirements cause a

compensable taking, the Third Circuit Court of

Appeals agreed that the Ordinance is “extraordinary”

and “constitutionally suspect.” Pet. App. A at 3. Yet, it

held that, under Williamson County, the district court

could not rule on whether the law caused a taking

warranting compensation until Ms. Knick sought

compensation in Pennsylvania state courts. Jd. This

was wrong. Contrary to the dicta in Williamson

County, the existence of a state damages remedy has

no bearing on the ripeness of a federal takings claim,

and property owners need not exhaust state remedies

before litigating a crystallized takings controversy like

this one.

STATEMENT OF THE CASE

A. Factual Background

1. The Setting and Ms. Knick’s Property

The Township of Scott is a small community

located in Lackawanna County, Pennsylvania, a rural

area in the eastern part of the state. The Township

lies approximately twenty miles to the north of

Scranton, Pennsylvania. It is common to find private,

family gravesites in the area because Pennsylvania

state law allows so-called “backyard burials;” the

practice of burying the deceased on private property.

See Patricia E. Salkin, Zoning and Land Use

Planning, 39 Real Est. L.J. 526, 530 (Spring 2011); see

also Craig Smith, Home burial on legislators’ radar;

Meyersdale plans vote, TribLive, Apr. 5, 2014,

http://triblive.com/state/pennsylvania/57887 17-74/bu

rial-funeral-property (noting “[t|he practice of tending

to one’s dead is not new, as evidenced by the number

of centuries-old burial sites with time-worn

tombstones on private properties throughout Western

Pennsylvania”). As the Township explained in a

district court hearing, the area “goes back several

hundred years in terms of families and burial plots. So

while these may not be . . . sprawling cemeteries, you

will have small plots that families have maintained

for years.” JA at 115.

Ms. Knick and her family have owned 90 acres of

land in the Township since 1970. The property,

located at 49 Country Club Road, Scott Township,! JA

at 94, 4 7, is bisected by a two-lane country road. /d.

Ms. Knick values her privacy and safety, and her land

is accordingly bounded on all sides by stonewalls,

fences, and similar monuments. /d. 4 8. Signs stating

“No Trespassing” exist at regular intervals along the

boundary. /d.

Ms. Knick lives on the property in a single-family

residence. JA at 94, 4 7. The remaining land is used

as a grazing area for horses and other animals. /d.

There is no public cemetery or public access easement

on the land. Ms. Knick has never authorized the

public or government agents to cross or otherwise use

her land. JA at 95, 4 12.

In 2008, Scott Township officials discussed an

alleged burial ground on Ms. Knick’s property, in

apparent response to a public inquiry. JA at 95, 4 10.

In the following period, Ms. Knick informed the

Township that the title to her property does not

include a reference to a burial ground. After

additional research, she also informed the Township

that there is no official state registration or

documentation of a cemetery. Knick also told the

' In 2008, Ms. Knick’s sister deeded her interest in the property

to Ms. Knick, leaving Ms. Knick as sole owner. JA at 150.

Township that she was not aware of any physical proof

of a burial ground. /d. ¥ 11.

2. The Challenged Cemetery Ordinance

In December of 2012, the Township enacted a new

law, Ordinance 12-12-20-001, pertaining to the

existence, operation, and maintenance of cemeteries.

JA at 96, | 14; JA at 20-24 (Ordinance). Two of the

Ordinance’s provisions are relevant here.

Section 5 requires that “[ajll cemeteries . . . shall

be kept open and accessible to the general public

during daylight hours.” JA at 22. This provision

applies to “[a|ll cemeteries, whether private or public,

and whether existing or established prior to the .. .

Ordinance.” JA at 21. A “cemetery” is defined as “[a]

place or area of ground, whether contained on private

or public property, which has been set apart for or

otherwise utilized as a burial place for deceased

human beings.” /d.

In the district court, the Township explained that

section 5 creates a public “easement” from the nearest

public road to any cemetery lying on private land. JA

at 126; id. at 119. The provision “is written to apply to

all property owners in Scott Township across the

board .. . if there’s a cemetery—.” JA at 115. The

Ordinance does not define the boundaries of the

easement imposed on affected properties. JA at 119.

Nor does it “limit who specifically should be permitted

on” this public right-of-way, JA at 127, the frequency

with which people may come and go, or the type of

activities they may engage in. The Ordinance does not

offer protection for property owners ‘rom any liability

that may arise from public use of their property.

Section 6 of the Ordinance similarly authorizes

the Township’s “code enforcement” agents to “enter

upon any property within the Township for the

purposes of determining the existence of and location

of any cemetery ....” JA at 22 (emphasis added).

There is no limit on the number of instances the

agents can enter the property, the point at which they

can enter or leave, or the amount of time they can

stay.

The Ordinance authorizes fines of $300-$600 for

every violation of its provisions, plus all court costs,

including attorney fees. Each day that a violation

exists is deemed a separate offense. JA at 23.

3. Enforcement of the Ordinance

Against Ms. Knick

On April 10, 2013, after enactment of the

Ordinance, the Township’s Code Enforcement Officer

entered Ms. Knick’s land without her consent. JA at

97, | 20. A day later, the Township issued a Notice of

Violation to Ms. Knick informing her that an

“inspection” of her land identified “[m]ultiple grave

markers/ tombstones.”? JA at 107-08. According to the

Notice, “stones located on [the] property” constitute a

“cemetery” subject to the Ordinance. Jd.

The Notice goes on to declare that Ms. Knick is “in

violation of section # 5 ... which requires that all

cemeteries within the Township shall be kept open

and accessible to the general public during daylight

2 Ms. Knick’s suit does not challenge the validity of the

Township's burial ground determination, but takes issue with

the property access requirements triggered by that

determination.

hours.” It orders her “to make access to the cemetery

available to the public during daylight hours.” JA at

108. The Township briefly rescinded this Notice after

Ms. Knick filed a complaint in state court. However, a

few months later, the Township issued a second,

almost identical Notice of Violation to Ms. Knick. JA

at 110-12. It too commands her to “make access to the

cemetery available to the public” and threatens daily

civil fines if she refuses to do so. Jd. at 111-12.

B. Judicial Procedure

1. State Court Proceedings

After the Township issued the first Notice of

Violation, Ms. Knick filed a Complaint in the

Pennsylvania Court of Common Pleas. JA at 132-43.

That complaint sought “Declaratory and Injunctive

Relief from the Ordinance,” in part on the basis that

the law caused a taking of property. JA at 126-38. The

Township subsequently agreed to withdraw its

April 11, 2013, Notice of Violation and to stay

enforcement of the Ordinance during the state

proceedings. JA at 98, ‘| 24. However, the state court

later declined to rule on Ms. Knick’s complaint

because it believed her claims would not be fit for a

decision until the Township filed a separate civil

enforcement action against Ms. Knick.* JA at 5; id. at

98-99, 4 25.

8 The Township has previously asserted that Ms. Knick’s state

court action is still “pending.” This is true only in the sense that

the suit is effectively stayed until the Township files a civil

enforcement action, and it has not done that, leaving the case in

an unresolvable posture over which Ms. Knick has no control.

2. Federal Procedure

At this point, Ms. Knick turned to the federal

district court. There, she filed a complaint alleging

that the Ordinance violated her rights under the

Fourth Amendment and the Takings Clause of the

Fifth Amendment. JA at 6-19. On October 28, 2015,

the district court granted the Township’s motion to

dismiss Ms. Knick’s First Amended Complaint. JA at

90-91. However, the court granted Ms. Knick leave to

re-plead and clarify some claims, including her federal

takings claims. /d.

Ms. Knick then filed a Second Amended

Complaint. JA at 92-112. That complaint made clear

that her federal takings claims consisted of facial and

as-applied claims against the Ordinance’s property

access provisions. JA at 102-03. It alleges, in part, that

“Scott Township enacted an ordinance—Ordinance

12-12-20-001—that violates the [TJakings Clause of

the Fifth Amendment both on its face and as-applied

because it authorizes a physical invasion and seizure

of Plaintiffs private land.” Id. at 92-93. It seeks “a

Declaratory Judgment declaring [the] Ordinance

unconstitutional, as well as “economic ... [and]

compensatory . . . damages.” JA at 93.

On September 7, 2016, the district court issued an

order dismissing all of Ms. Knick’s takings claims as

unripe under Williamson County. Pet. App. B at 11-

18. The Court specifically held that Ms. Knick’s claims

would not be ready for a federal decision until she filed

and finished a new, “inverse condemnation” suit in

state court. Id. Ms. Knick timely appealed to the Third

Circuit.

At the Third Circuit, Ms. Knick argued that her

facial and as-applied takings claims are ripe. The

Third Circuit disagreed, however. The court below

concluded that this Court’s precedent authorizes

immediate federal review of a facial takings claim (i.e.,

without prior state procedures) only if the claim rests

on the now-defunct theory that a regulation “fails to

substantially advance a legitimate state interest.”

Pet. App. A at 24-26. It reasoned that this was because

such a claim does not invoke the principle of “just

compensation.” /d.

By the same token, the Third Circuit concluded

that facial takings claims resting on existing physical

and regulatory takings tests are subject to Williamson

Countys state litigation requirement because they

seek the remedy of just compensation. /d. at 24-27. It

ultimately held that Ms. Knick’s facial claim alleging

that the Ordinance causes an immediate physical

taking of property is unripe until she prosecutes

another state court lawsuit. Jd. at 27-28. The court

below also held that Ms. Knick’s as-applied claims

would not ripen under Williamson County until she

files and completes an inverse condemnation action in

state court. Jd. at 32.

Ms. Knick petitioned this Court to reconsider the

Williamson County doctrine that has thus far barred

her takings claims. On March 5, 2018, the Court

granted the Petition.

SUMMARY OF ARGUMENT

The right to exclude others from private land is a

fundamental and protected property right, the denial

of which amounts to a taking requiring just

compensation. Nollan, 483 U.S at 831. In this case,

the Township stripped Ms. Knick of her right to

exclude strangers from her rural land by creating an

easement on the property that allows regular public

and governmental access to the land. JA at 22, 126.

This encumbrance deprives her of privacy, endangers

her safety, threatens to cause damage to her land and

saddles her with potential civil liabilities. The

burdens on her property amount to a compensable

taking under a straightforward application of this

Court’s precedent, and Ms. Knick sued to establish

that fact. Dolan v. City of Tigard, 512 U.S. 374, 384-

85 (1994) (“Without question, had the city simply

required petitioner to dedicate a strip of land along

Fanno Creek for public use . . . a taking would have

occurred.”).

It is generally true, of course, that one may not

hold the government accountable for a taking until the

issue is ripe for a conclusive determination. Palazzolo

v. Rhode Island, 533 U.S. 606, 618 (2001). Prior to the

decision in Williamson County, this ripeness

requirement meant that an owner could not claim a

taking until the challenged government action causes

a clear and final injury to property. San Remo Hotel,

L.P. v. City & County of San Francisco, 545 U.S. 323,

346-47 (2005). This traditional “finality” ripeness

regime is not challenged here.

Unfortunately, in dicta,4 Williamson County

added to the finality inquiry by creating an

unprecedented and qualitatively different ripeness

4 Stop the Beach Renourishment, Inc. v. Florida Dep't of Envtl.

Prot., 560 U.S. 702, 742 (2010) (Kennedy, J., concurring)

(referring to “[t]his Court’s dicta in Williamson County’).

requirement. The Williamson County decision states

that one claiming a taking of property cannot raise the

claim in federal court until she has “unsuccessfully

attempted to obtain just compensation through the

procedures provided by the State for obtaining such

compensation.” 473 U.S. at 195. Williamson County

pointed to a state inverse condemnation action as an

example of a state compensation procedure required

for ripeness. Id. at 196

This was an unnecessary and counterproductive

mistake. In practice, Williamson County's state

litigation ripeness requirement causes great harm to

property owners, federal courts, and to the overall

development of federal takings law. San Remo Hotel,

545 U.S. at 348-52 (Rehnquist, C.J., concurring);

Wayside Church v. Van Buren County, 847 F.3d 812,

825 (6th Cir. 2017) (Kethledge, J., dissenting) (“[I|f

anyone has undermined the adjudication of federal

takings claims ... it is the federal courts—by the

application of Williamson County.”). Though the

requirement is framed as a means to ensure that

takings claims arrive in federal courts in a ripe state,

473 U.S. at 185, it undermines this goal in application.

San Remo, 545 U.S. at 351 (Rehnquist, C.J.

concurring). Litigating for just compensation in state

court does not ripen federal judicial review of a

takings claim; it bars that review. This is because the

state court action triggers claim and issue preclusion

barriers at the federal court that prevent it from

hearing a takings claim related to the prior suit. San

Remo, 545 U.S at 342-45. While a takings claim may

be “ripe” in federal court after a property owner

litigates in state court under Williamson County, it is

also dead on arrival due to preclusion rules. /d.; see

also Arrigoni Enters., LLC v. Town of Durham, 136 S.

Ct. 1409, 1410 (2016) (Thomas, J., dissenting from

denial of cert.) (Williamson County “dooms plaintiffs’

efforts to obtain federal review of a _ federal

constitutional claim.”).

Williamson Countys effect in closing off the

federal courts to federal takings claims is contrary to

Williamson County's intent and irreconcilable with

Congress's desire to create a federal forum for federal

claims through 42 U.S.C. § 1983 and 28 U.S.C. § 1331.

See Lynch v. Household Fin. Corp., 405 U.S. 538, 542-

43 (1972) (confirming that federal courts have

jurisdiction over federal property rights claims raised

under 42 U.S.C. § 1983). But the requirement’s

harmful impacts do not stop there.

Since Williamson County’ bars federal

adjudication of takings claims, property owners must

file Fifth Amendment takings claims in state court or

not at all. Frederic Bloom & Christopher Serkin,

Suing Courts, 79 U. Chi. L. Rev. 553, 605 (2012)

(“State courts thus get first bite at these [takings]

actions under Williamson County—and they get the

only bite under San Remo.”). Yet, including a federal

claim in a_ state court complaint allows the

government defendant to remove the case to a federal

court under 28 U.S.C. § 1441. City of Chicago v.

International College of Surgeons, 522 U.S. 156, 164

(1997). In the federal forum, the removed claim is

unripe because removal prevented the plaintiff from

completing the state litigation required by Williamson

County. The removed takings claim instantly goes

from ripe (in state court) to nonjusticiable (in federal

court) and is subject to outright dismissal or remand

to state court. Reahard v. Lee County, 30 F.3d 1412,

1414 (11th Cir. 1994) (appellate court finds a removed

takings claim unripe under Williamson County after

the claim was fully litigated on the merits in the

district court, nullifying a $700,000 compensatory

award). In this scenario, Williamson County prevents

takings litigation in federal and state court.

The jurisdictional pitfalls created by the state

litigation requirement are sufficient to condemn the

rule as an unworkable and unacceptable ripeness

concept. But the doctrine is also deeply flawed at a

theoretical level because it rests on an incorrect view

of the role of the Just Compensation Clause in takings

litigation. Contrary to Williamson County's

assumptions, a takings lawsuit does not rest on a

violation of the “without just compensation” language

in the Just Compensation Clause. 473 U.S at 195. It

asserts that a government act must be recognized as

a de facto taking, and that the Just Compensation

Clause provides a federal damages remedy in that

event. First English Evangelical Lutheran Church of

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

(1987). The Clause operates as a takings remedy, not

as an element of a claim and, as a result, it does not

bear on the question of whether a takings claim is fit

for review. Kirby Forest Indus., Inc. v. United States,

467 U.S. 1, 5 (1984) (The “owner has a right to bring

an ‘inverse condemnation’ suit .. . on the date of the

intrusion{.]”).

Williamson County's state litigation doctrine fails

to serve a ripeness purpose, causes tremendous harm

to takings litigation in application, and is inconsistent

with the remedial role of the Just Compensation

Clause. For all these reasons, the Court should

remove the doctrine and thereby restore the prior

“final decision” ripeness regime. See San Remo Hotel,

545 U.S. at 348-52 (Rehnquist, C.J, concurring). Stare

decisis policies do not counsel against this result; they

favor it. See Payne v. Tennessee, 501 U.S. 808, 827

(1991) (abrogating “unworkable” and “poorly

reasoned” rules serves the principles underlying the

doctrine of stare decisis).

Under the _ traditional “finality” inquiry,

compensation remedies are irrelevant to the ripeness

determination. Physical and regulatory takings

claims become ripe—in federal or state court—when

the government carries out an act, or arrives at a

definitive regulatory position, that causes clear injury

to property rights. Williamson County, 473 U.S. at

192. Ms. Knick’s takings claims are justiciable under

this framework. The Township formally enacted the

Ordinance more than five years ago. Its plain terms

authorize public and local governmental access to any

land with a burial ground, and the Township has

made clear that these provisions apply to Ms. Knick’s

property. JA at 20-24.

The Township’s demand that Ms. Knick open her

land to the public causes immediate and serious harm

to her constitutionally protected right to exclude

strangers. Kaiser Aetna v. United States, 444 U.S. 164,

179-80 (1979) (The “right to exclude” is “a

fundamental element of the property right.”). Nothing

more needs to occur before a court can apply this

Court’s physical takings precedent and declare that

the Ordinance causes a taking requiring just

compensation. Nollan, 483 U.S at 842 (“[I]f [the state]

wants an easement ... it must pay for it.”); Kaiser

Aetna, 444 U.S at 180. When this occurs, the

Township may rescind the Ordinance’s access

provisions to minimize its compensatory duty or pay

full compensation to sustain the Ordinance as written.

First English, 482 U.S at 321. In all events, Ms. Knick

is entitled to a hearing on the merits of her takings

claims.

ARGUMENT

WILLIAMSON COUNTY'S STATE LITIGATION

REQUIREMENT IS UNWORKABLE

IN PRACTICE AND INCONSISTENT

WITH THE REMEDIAL NATURE OF

THE JUST COMPENSATION CLAUSE

A. Background Takings Law

1. Condemnation and

Inverse Condemnation

The Fifth Amendment to the Constitution

provides: “nor shall private property be taken for

public use, without just compensation.” This

amendment “is designed not to limit the governmental

interference with property rights per se, but rather to

secure compensation in the event of otherwise proper

interference amounting to a taking.” First English,

482 U.S. at 315; Eastern Enters. v. Apfel, 524 U.S. 498,

545 (1998) (Kennedy, J., concurring) (The Clause

permits “the government to do what it wants so long

as it pays the charge.”).

A taking of private property may occur, within the

meaning of the Fifth Amendment, in several different

ways. See Kirby, 467 U.S. at 4-5. The most

straightforward situation occurs when the

government institutes eminent domain proceedings in

a court of law. In such proceedings, the government

declares its intent to take property and deposits funds

to guarantee payment of just compensation. See Kirby,

467 U.S. at 4-5; 40 U.S.C. § 3114(a). Assuming the

validity of the public use, the only disputed issues

relate to how and when the affected owner will receive

just compensation. United States v. Gen. Motors Corp.,

323 U.S. 373, 374-75 (1945) (in the eminent domain

context, “the problem involved is the ascertainment of

the just compensation required by the Fifth

Amendment”); 40 U.S.C. § 3114(c)(1) (‘Compensation

shall be determined and awarded in the proceeding

and established by judgment.”). In these cases, the

Just Compensation Clause functions predominately

as a condition on the government’s power to complete

eminent domain proceedings. A taking is final and

legitimate when the owner receives adequate

compensation. Danforth v. United States, 308 U.S.

271, 284-85 (1939) (“[T]itle does not pass until

compensation has been ascertained and paid ... .”);

First English, 482 U.S at 320 (in “condemnation

proceedings|,| a taking does not occur until

compensation is determined and paid”).

The same is true in a quasi-condemnation case,

where a_ legislative body “enacts a_ statute

appropriating the property ... [while] setting up a

special procedure for ascertaining, after the

appropriation, the compensation due to the owners.”

Kirby, 467 U.S. at 5; see also Sweet v. Rechel, 159 U.S.

380, 399 (1895) (“[I]t is a condition precedent to the

exercise of [the taking] power that the statute

jauthorizing a taking] make provision for reasonable

compensation.”). In such cases, takings liability is

undisputed. The essence of a “takings” claim in this

scenario is that the government has failed to comply

with its admitted compensatory duties. See Cherokee

Nation v. S. Kansas Ry. Co., 135 U.S. 641, 659 (1890).

2. Inverse Condemnation Takings

Claims Concern Liability; The

Just Compensation Clause

Provides a Remedy

The government can also take property without

using a formal condemnation procedure. It can do so,

for instance, through administrative and legislative

acts that, while not explicitly designed to appropriate

property, cause an impact creating a taking. Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 538-42 (2005).

Regulatory action causes a per se taking when it

authorizes a “physical invasion” of property, id. at

538, such as through imposition of an easement.

Kaiser Aetna, 444 U.S. at 180 (“[E]ven if the

Government physically invades only an easement in

property, it must nonetheless pay just

compensation.”).

When a property owner believes that an intrusion

into her property, or a restriction on its use, causes a

taking, the owner is entitled to sue in an “inverse

condemnation” action to establish the existence of a

taking. Kirby, 467 U.S. at 5; United States v. Clarke,

445 U.S. 253, 257 (1980) (“The phrase ‘inverse

condemnation’ .. . [is] a shorthand description of the

manner in which a _ landowner recovers just

compensation for a taking of his property when

condemnation proceedings have not been instituted.”).

In such a suit, the central allegation is that the

government is liable for a “taking” in a constitutional

sense: “The issue is not the same in condemnation

cases and in inverse condemnation cases. In

condemnation cases the issue is damages: How much

is due the landowner as just compensation? In inverse

condemnation the issue is liability: Has the

government's action effected a taking of the

landowner’s property?” Am. Sav. & Loan Ass’n v.

County of Marin, 653 F.2d 364, 369 (9th Cir. 1981);

Henderson v. City of Columbus, 827 N.W.2d 486, 489

(Neb. 2013) (“[T]he initial question is whether the

governmental entity’s actions constituted the taking

or damaging of property for public use.”).

In inverse condemnation cases, the dust

Compensation Clause supplies a damages remedy

once a court finds that a government act amounts to a

taking. First English, 482 U.S. at 315-16; Murr v.

Wisconsin, 137 S. Ct. 1933, 1951 (2017) (Roberts, C.J.,

dissenting) (“[I|f ‘private property’ has been ‘taken,’

the last item of business is to calculate the ‘just

compensation’ the owner is due.”). The Clause

guarantees indemnification in the event the

government takes property without formally

condemning it. /d.; see also Monongahela Nav. Co. v.

United States, 148 U.S. 312 (1893). In First English,

the Court sharply confirmed this remedial reading.

There, the United States argued that the Just

Compensation Clause “is only a limitation on the

power of the Government to act, not a remedial

provision” authorizing “money damages.” 482 U.S. at

316 n.9. The Court rejected this interpretation,

holding that the Clause requires a “compensation

remedy” “in the event of a taking.” /d. at 316.

In short, an inverse condemnation suit

challenging an injury to property seeks to establish a

right to the damages remedy supplied by the Just

Compensation Clause by establishing the existence of

a taking. Id.

B. Takings Ripeness Doctrine

1. Finality Rules Controlled Prior to

Williamson County's Articulation

of the State Litigation Doctrine

This Court has made clear that courts cannot

adjudicate inverse condemnation takings claims until

it is plain the claims are ripe for review. Suitum v.

Tahoe Regl Planning Agency, 520 U.S. 725, 735-38

(1997) (reviewing cases). The “basic rationale [fof the

ripeness doctrine] is to prevent the courts, through

avoidance of premature adjudication, from entangling

themselves in abstract disagreements over

administrative policies.” Abbott Laboratories ov.

Gardner, 387 U.S. 136, 148-49 (1967). It is “also to

protect the agencies from judicial interference until an

administrative decision has been formalized and its

effects felt in a concrete way by the challenging

parties.” /d.

The Court has implemented these polices in the

takings context by requiring plaintiffs to refrain from

asserting a claim until a governmental action limiting

property rights is concrete and final. Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264,

297 (1981) (holding that a property owner had to

pursue “administrative solutions” that might reduce

the impact of property restrictions to ripen a takings

claim); San Remo Hotel, 545 U.S. at 346-47 (“It was

settled wel! before Williamson County’ that a

regulatory takings claim “is not ripe until the

government entity charged with implementing the

regulations has reached a final decision|.]” (quoting

Williamson County, 473 U.S. at 186)).

In Williamson County, the Court confirmed and

elaborated on the finality ripeness doctrine. The case

arose when a developer asserted that land use

regulations took its property by temporarily depriving

it of economically viable use. 473 U.S. at 186-90. A

jury found the defendant liable for a taking and

awarded monetary compensation to the developer.

The Sixth Circuit upheld the jury decision on appeal.

This Court subsequently granted certiorari to decide

“whether Federal, State, and Local governments must

pay money damages to a landowner whose property

allegedly has been ‘taken’ temporarily by the

application of government regulations.” Jd. at 185.

Yet, the Court concluded that it could not reach that

issue because the underlying takings claims were

unripe. Id.

In addressing the ripeness issue, the Williamson

County Court reiterated that a regulatory takings

claim is premature until the government reaches a

“final decision” applying its regulations to the

plaintiffs property. /d. at 186-94. The Court explained

that, to obtain a final agency decision, a claimant

must normally pursue any discretionary procedure

within the regulatory scheme that might allow the

government to soften the challenged regulations. /d.

at 191-92.

However, the Court emphasized that finality

ripeness doctrine does not require a takings claimant

to exhaust state remedies:

[T]he finality requirement is concerned with

whether the initial decisionmaker has

arrived at a definitive position on the issue

that inflicts an actual, concrete injury; the

exhaustion requirement generally refers to

administrative and judicial procedures by

which an injured party may seek review of an

adverse decision and obtain a remedy ....

473 U.S at 192-93. The Court ultimately held that the

takings claimant in Williamson County had not

obtained a final agency decision because it had not

applied for variances that might have allowed the

defendant to permit more use of the subject property.

Id. at 191.

Under the traditional finality concepts affirmed in

the initial portion of Williamson County, state takings

remedies are not pertinent to the determination of

whether a takings claim is ripe. 473 U.S at 192-93;

Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d

993, 997-99 (Ist Cir. 1983) (rejecting an argument

that the takings claimant had to use “their local

remedies, judicial and administrative,” because “there

is no requirement of exhaustion of administrative

remedies in section 1983 actions.”); Foster v. City of

Detroit, 405 F.2d 138, 144 (6th Cir. 1968) (holding, in

a takings case, that “a party may normally resort to a

federal court without having first exhausted the

judicial remedies of the state courts” (quoting 1A

James Wm. Moore, et al., Moore’s Federal Practice,

P0.201, p. 2023 (1961))); Archer Gardens, Lid. v.

Brooklyn Ctr. Dev. Corp., 468 F. Supp. 609, 613

(S.D.N.Y. 1979) (holding a takings claimant did not

need to exhaust state remedies). If a government

agency makes a formal and final decision harming

property, the owner may sue to establish that it is a

taking warranting a compensation remedy under the

Just Compensation Clause. Kirby, 467 U.S. at 5.

2. Williamson County's State

Litigation Dicta

The Court’s application of the final decision rule

to the claim in Williamson County should have ended

the case. Yet, in dicta, and without adequate briefing

from the parties,5 the Williamson County Court went

on to articulate a second, novel ripeness barrier: the

state litigation requirement.

The Court started with the observation that the

Just Compensation Clause “proscribes” takings

“without just compensation.” 473 U.S. at 194. From

there, it proposed that the Clause 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.” Jd. (citations omitted). This led the

Court to conclude that “[iJf the government has

provided an adequate process for obtaining

compensation, and if resort to that process ‘yield|s]

just compensation,’ then the property owner ‘has no

claim against the Government’ for a taking.” /d. at

5 See Brief Amicus Curiae of Western Manufactured Housing

Communities Association at 5-8 (discussing the nature of party

briefing in Williamson County and the Solicitor General's

introduction of the ripeness issue in an amicus brief).

194-95 (quoting Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1018 n.21 (1984)). This ultimately meant “if

a State provides an adequate procedure for seeking

just compensation, the property owner cannot claim a

violation of the Just Compensation Clause until it has

used the procedure and been denied just

compensation.” Jd. at 195. The Court held that the

claim in Williamson County was unripe under the new

principle because the plaintiff had not filed an inverse

condemnation suit—a judicial action—under

Tennessee law in Tennessee state court. /d.

In San Remo, the Court treated Williamson

County's second ripeness requirement as a command

that property owners seek compensation through

state court litigation. San Remo Hotel, 545 U.S. at

342; id. at 349 (Rehnquist, C.J., concurring). At the

same time, four Justices of the Court criticized the

principle and suggested it should be overruled. 545

U.S. at 349 (Rehnquist, C.J., concurring). They were

correct.

C. The State Litigation Requirement

Is Incapable of Coherent and

Just Application

The Williamson County Court apparently

believed that adding the state litigation requirement

to the pre-existing “final decision” ripeness inquiry

would render takings claims fully mature for review

in federal court. 473 U.S. at 197. But after more than

30 years in application, it is clear it does no such thing.

In practice, the requirement entirely bars takings

litigants from federal court, frustrates their access to

state court, and generally turns an attempt to

establish a compensable taking into a chaotic, self-

defeating, and wasteful endeavor. San Remo Hotel,

545 U.S. at 350-52 (Rehnquist, C.J., concurring). It

should not continue to exist.

1. The State Litigation Rule Ripens

Nothing, but Instead Strips Federal

Courts of the Ability To Hear

Takings Claims

The state litigation doctrine’s most startling effect

is to ban property owners from asserting their federal

constitutional rights in federal court. This outcome

arises from the interplay between a plaintiffs

compliance with Williamson County's state litigation

rule and the Full Faith and Credit Act. On the one

hand, Williamson County declares that property

owners may claim a taking in federal court after a

state court denies them compensation. 473 U.S. at

194-96. On the other hand, res judicata and issue

preclusion rules arising from the Act prevent federal

courts from hearing a case related to a previously

litigated dispute. McDonald v. City of West Branch,

466 U.S. 284, 287 (1984); San Remo, 545 U.S. at 336

& n.16.

The result is that, when a property owner

unsuccessfully pursues a claim for compensation in

state court to comply with Williamson County, the

claim is barred from federal court, not ripened. See

San Remo, 545 U.S. at 346-47; Arrigoni, 136 S. Ct. at

1410 (Thomas, J., dissenting from denial of cert.);

DLX, Inc. v. Kentucky, 381 F.3d 511, 519-20 (6th Cir.

2004); Trafalgar Corp. v. Miami County Bd. of

Comm'rs, 519 F.3d 285, 287 (6th Cir. 2008) (Because

“the issue of just compensation under the Takings

clause ... was directly decided in a previous state

court action, it cannot be re-litigated in federal district

court.”).

Although the Williamson line of cases that

requires the property owner to seek

compensation in the state courts speaks in

terms of “exhaustion” of remedies, that is a

misnomer. For if. . . the property owner goes

through the entire state proceeding, and he

loses, he cannot maintain a federal suit . . .

by virtue of the doctrine of res judicata . . . .

Rockstead v. City of Crystal Lake, 486 F.3d 963, 968

(7th Cir. 2007); see also W..J.F’. Realty Corp. v. Town of

Southampton, 220 F. Supp. 2d 140, 146 (E.D.N-Y.

2002).

In application, the state litigation rule does the

opposite of what Williamson County claims it will do.

DLX, 381 F.3d at 518 n.3 (Williamson County “clearly

contemplates that a takings plaintiff who loses her

claim in state court will have a day in federal court.”).

Utilization of state compensation procedures

prevents, rather than secures, federal jurisdiction

over takings claims. Given this outcome, lower courts

have aptly described Williamson County's doctrine as

a “catch-22,"° and a “trap.”7 The doctrine lures

property owners to file state court suits that defeat,

rather than ripen, federal review of their takings

6 Santini v. Connecticut Hazardous Waste Mgmt. Serv., 342 F.3d

118, 127 (2d Cir. 2003).

7 DLX, 381 F.3d at 518 n.3 (referring to the “Williamson trap”

created in connection with res judicata); see also Michael M.

Berger, Supreme Bait & Switch: The Ripeness Ruse In

Regulatory Takings, 3 Wash. U. J.L. & Pol'y 99, 103 (2000).

claims. “Like a tomato that suffers vine rot, [the claim]

goes from being green to mushy red overnight. It can

never be eaten.”®

In the 2005 San Remo Hotel case, the Court

considered the conflict between the state litigation

requirement and preclusion doctrines. The Court

recognized that takings claims “ripened” through

state court litigation normally cannot be raised in

federal court, contrary to Williamson County's intent

and language, due to preclusion rules. 545 U.S. at 346-

47. Nevertheless, the San Remo Hotel Court refused

to create an exception from these preclusion rules,

such as one that would allow takings plaintiffs to

“reserve” (protect) their federal claim for federal

review while litigating in state court. The Court also

refused to overrule the state litigation rule because

that question was not properly presented. /d. at 352

(Rehnquist, C.J., concurring).

San Remo Hotel thereby solidified Williamson

Countys state litigation ripeness doctrine as a

complete barrier to prosecution of federal takings

claims in federal court. 545 U.S. at 349-52 (Rehnquist,

C.J., concurring). There is no indication that the

Williamson County Court intended to foreclose federal

judicial review of takings claims, DLX, 381 F.3d at

518, and yet, that is the inevitable and ongoing result

of the state litigation doctrine. Foster v. Minnesota,

No. 17-1177, 2018 WL 1881609, at *2 (8th Cir. Apr. 20,

2018) (‘When a property owner has unsuccessfully

® Thomas Roberts, Ripeness and Forum Selection in Land-Use

Litigati ie Witten Resch Mined + Condes

Regulatory Takings after Dolan and Lucas 68 (ABA, Callies ed.,

1996).

asserted a Fifth Amendment takings claim in state

court, as Foster did . . . her later assertion of the same

claim in federal court is precluded .. . .”).

2. The State Litigation Doctrine

Is Inconsistent With 42 U.S.C. § 1983

and 28 U.S.C. § 1331

It is impossible to reconcile Williamson County's

relegation of takings claims to state courts with

Congress’s intent to provide a federal forum for

federal civil rights claims under 28 U.S.C. § 1331 and

42 U.S.C. § 1983. See 28 U.S.C. § 1343(a)(3). This

Court has repeatedly emphasized that the “purpose

lof enacting § 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, 242 (1972); see also Patsy v. Bd. of Regents

of State of Fla., 457 U.S. 496, 504 (1982) (“Congress

intended ... to throw open the doors of the United

States courts to individuals who were threatened

with, or who had suffered, the deprivation of

constitutional rights, and to provide these individuals

immediate access to the federal courts ....”

(quotations & citations omitted)). Neither Congress

nor this Court has ever carved out an exception from

these federal jurisdictional grants for takings

claimants or property owners more generally. Lynch,

405 U.S. at 542-43 (“This Court has never adopted the

distinction between personal liberties and proprietary

rights as a guide to the contours of § 1343(3)

jurisdiction.”).

By denying a federal forum to property owners

claiming a “taking” of property under the Fifth

Amendment, the Williamson County doctrine

radically departs from the congressionally mandated

framework for litigating constitutional rights. John F.

Preis, Alternative State Remedies in Constitutional

Torts, 40 Conn. L. Rev. 723, 726 (Feb. 2008) (requiring

state exhaustion represents “a marked change from

past practice” in which “the federal government

assumed primary responsibility for the enforcement of

civil rights”). While one may not have a right to a

federal forum after filing a prior, similar suit in state

court, San Remo Hotel, 545 U.S. at 347, the idea that

an entire class of constitutional plaintiffs can be shut

out of federal courts in the first instance is unknown

to constitutional doctrine. Monroe v. Pape, 365 U.S.

167, 180 (1961) (Section 1983 affords “a federal right

in federal courts.”); Felix Frankfurter & James M.

Landis, The Business of the Supreme Court: A Study

in the Federal Judicial System 65 (1928) (After

passage of 28 U.S.C. § 1331, federal courts “became

the primary and powerful reliances for vindicating

every right given by the Constitution, laws, and

treaties of the United States.”).

No other type of constitutional plaintiff faces such

a stern barrier to federal court access. Arrigoni, 136 S.

Ct. at 1411. While some plaintiffs may face hurdles

similar to Williamson County's initial, “final decision”

requirement, none confront a broadly applicable

exhaustion of state remedies requirement that

prevents access to federal courts. See Zinermon v.

Burch, 494 U.S. 113, 124-39 (1990) (state remedies

may be required only in the rare procedural due

process case where it is not feasible for the

government to provide pre-deprivation process); DLX,

Inc., 381 F.3d at 521 (“[Ojther § 1983 plaintiffs do not

have the requirement of filing prior state-court

actions... .”). This confirms the unusual nature of the

state litigation rule and gives substance to the

recurring complaint that Williamson County reduces

property owners to second-class citizens in the

protection of their rights. San Remo Hotel, 545 U.S at

351 (Rehnquist, C.J., concurring) (questioning “why

federal takings claims in particular should be singled

out to be confined to state court, in the absence of any

asserted justification or congressional directive”); see

also Gideon Kanner, Hunting the Snark, Not the

Quark: Has the U.S. Supreme Court Been Competent

in Its Effort to Formulate Coherent Regulatory

Takings Law?, 30 Urb. Law. 307, 332-33 (1998) (The

Williamson County doctrine shows the “constitutional

rights of landowners as not quite deserving of a full

measure of judicial protection, on par with other

constitutional rights.”).°

® The status of federal courts is also diminished by application of

the state litigation rule, as it renders them subservient to state

courts in the development of Fifth Amendment takings law. This

too is inconsistent with long-standing precedent. Home

Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278,

284-85 (1913) (rejecting an argument that federal courts cannot

decide a due process property deprivation claim until state courts

act, in part because it would “cause the state courts to become

the primary source for applying and enforcing the constitution of

the United States in all cases covered by the [Fourteenth]

Amendment”); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304,

344-50 (1816) (defending primacy of federal review of

constitutional issues to avoid state court bias and to ensure

uniformity of decision making).

3. The State Litigation Requirement

Deprives Takings Plaintiffs of

Reasonable Access to State Courts

In San Remo Hotel, the Court seemed to believe

that takings claimants at least have prompt access to

state courts under Williamson County's state

litigation doctrine. San Remo Hotel, 545 U.S. at 346.

But, in practice, this is not true. State court access is

also often illusory due to a _ conflict between

compliance with the state litigation rule and the

government's right to remove certain state court cases

to federal court under 28 U.S.C. § 1441. Arrigoni, 136

S. Ct. at 1411 (Thomas, J., dissenting from denial of

cert.).

Since property owners cannot file a Fifth

Amendment takings claim in federal court as an

initial matter under Williamson County, and cannot

sue in that forum after a failed state court proceeding

due to preclusion rules, they are forced to file Fifth

Amendment claims in state court or not at all.

Rockstead, 486 F.3d at 968. Yet, doing so sets the case

up to be removed to federal court under 28 U.S.C.

§ 1441 on the basis that it raises a “federal question.”

International College of Surgeons, 522 U.S. at 164

(affirming removal of a complaint including a takings

claim). Filing a federal takings claim in state court

allows the government to drag it right back to federal

court, where the claim is unripe under Williamson

County because state compensation procedures

remain unexhausted. A properly filed and ripe state

court takings claim instantly becomes unripe due to a

defendant's unilateral choice to remove. 8679 Trout,

LLC v. N. Tahoe Pub. Utils. Dist., No. 2:10-cv-01569,

2010 WL 3521952, at *5-6 (E.D. Cal. Sept. 8, 2010)

(“Although the claim was ripe when it was originally

filed in state court, it became unripe the moment that

Defendants removed it.”).

When federal courts confront a removed takings

claim, they are often compelled to dismiss the claim as

unripe for lack of compliance with Williamson

County's state litigation requirement. Arrigoni, 136 S.

Ct. at 1411 (Thomas, J., dissenting from denial of

cert.); Koscielski v. City of Minneapolis, 435 F.3d 898,

903 (8th Cir. 2006) (affirming dismissal of a removed

takings claim for failure to exhaust state court

procedures); Clifty Properties, LLC v. City of Somerset,

No. 6:17-41, 2017 WL 4003024 (E.D. Ky. Sept. 11,

2017) (a takings claim is removed twice and dismissed

twice under Williamson County).!° The removed

takings plaintiff is thus left without reasonable access

to either the state or federal forum. The takings claim

cannot be raised as an initial matter in federal court,

it cannot be adjudicated in state court because of

removal, and it cannot be litigated in federal court

after removal due to Williamson County. This outcome

is striking—and emblematic of the state litigation

doctrine’s wholly unworkable character—because it

arises from perfect compliance with the doctrine. By

filing in state court, the takings plaintiff did exactly

what is required to secure a hearing on a takings

claim. San Remo Hotel, 545 U.S. at 346. Yet, through

0 See also Seiler v. Charter Tp. of Northville, 53 ¥F. Supp. 2d 957,

962 (E.D. Mich. 1999); Anderson v. Chamberlain, 134 F. Supp.

2d 156 (D. Mass. 2001) (federal nature of takings claim justified

removal! but state litigation ripeness rule compelled subsequent

refusal to hear the claim).

no fault of the plaintiff, the claim instantly goes from

alive to dead based on a defendant’s choice to remove.

Doak Homes, Inc. v. City of Tukwila, No. C07-

1148MJP, 2008 WL 191205, at *4 (W.D. Wash.

Jan. 18, 2008) (“Defendants’ decision to remove this

case from state court effectively denied [the plaintiff]

an opportunity to utilize [the state’s] procedure for

reimbursement, and brought a takings claim to this

Court that was not ripe for review.”).!!

In recent years, a few federal circuit courts have

held that a defendant waives Williamson County's

state litigation rule when removing a takings claim

from state to federal court. See Sansotia v. Town of

Nags Head, 724 F.3d 533, 545-48 (4th Cir. 2013);

Sherman v. Town of Chester, 752 F.3d 554, 564 (2d

Cir. 2014). But, after shuffling takings claims between

state and federal courts for 33 years under Williamson

County, with judicial and litigant resources wasted

‘'Tt is true that some federal courts will remand a removed

takings claim to state court, rather than dismiss it, upon finding

the claim unripe under Williamson County. Del-Prairie Stock

Farm v. County of Walworth, 572 F. Supp. 2d 1031, 1034 (E.D.

Wis. 2008). This outcome is of little solace to the plaintiff. That

removed and remanded litigant has been involuntarily yanked

from the state court—which is supposedly the only proper forum

for a takings claim—to a federal court—which is not a proper

forum—only to be sent back to the state court where it all began,

without any hearing in the process. Through it all, valuable

resources and time are wasted, allowing government defendants

to prevail by attrition. Cf. Martin v. Franklin Capital Corp., 546

U.S. 132, 140 (2005) (“The process of removing a case to federal

court and then having it remanded back to state court delays

resolution of the case, imposes additional costs on both parties,

and wastes judicial resources.”).

and claims disappearing along the way, this bit of

progress is not enough.

Courts have tried for decades to apply the state

litigation requirement in a rational and predictable

fashion, and failed. Arrigoni, 136 S. Ct. at 1411-12. At

this point, it is abundantly clear that Williamson

County's state litigation requirement does not serve a

ripeness purpose or any other useful purpose in

application. Instead, it demeans and diminishes

rights protected by the Takings Clause, wrongly

frustrates the federal courts’ congressionally

mandated authority to review civil rights claims, and

impedes the orderly development of takings law. See

generally Scott A. Keller, Judicial Jurisdiction

Stripping Masquerading as Ripeness: Eliminating the

Williamson County State Litigation Requirement for

Regulatory Takings Claims, 85 Tex. L. Rev. 199

(2006).

D. The State Litigation Requirement

Fails To Account for the Just

Compensation Clause Remedy

The state litigation requirement is not only

unworkable, it suffers from significant logical flaws.

San Remo Hotel, 545 U.S. at 349 (Rehnquist, C.J.,

concurring). In particular, it fails to account for the

remedial character of the Just Compensation Clause

and conflates the issues in a traditional condemnation

case with those in an inverse condemnation takings

case.

At the core of Williamson County's reasoning is

the assumption that a takings claim asserts a

“violation” of the Just Compensation Clause. The

Court stated this assumption early in the Williamson

County opinion when it noted that it would “examine

the posture of respondent’s cause of action . . . by

viewing it as stating a claim under the Just

Compensation Clause.” 473 U.S. at 186. Focusing on

the Clause’s “without just compensation” language,

the Court subsequently concluded that “no

constitutional violation occurs until just compensation

has been denied.” Jd. at 194 n.13. This led the Court

to hold that no actionable claim exists “until the State

fails to provide adequate compensation for the

taking.” Jd. at 195.

The critical flaw in this reasoning is that the Just

Compensation Clause does not supply the cause of

action when a property owner asserts a taking in an

inverse condemnation action; it supplies the remedy.

First English, 482 U.S. at 315-16, 321. The cause of

action is that the government has carried out an act

that must be treated as a taking. The claim is not that

the injury to property “violated” the dust

Compensation Clause’s language, but that it entitles

the property owner to a damages remedy under the

Clause. Id.; 54 U.S.C. § 100735 (allowing mining claim

holders to bring an inverse condemnation action “to

recover just compensation, which shall be awarded if

the court finds that the loss constitutes a taking of

property compensable under the Constitution”

(emphasis added)); see also San Diego Gas & Elec. Co.

v. City of San Diego, 450 U.S. 621, 654 (1981)

(Brennan, J., dissenting); Henderson, 827 N.W.2d at

489 (“[A]fter it has been established that a

compensable taking or damage has occurred | |

consideration [should] be given to what damages were

proximately caused by the taking.”).

Contrary to Williamson County's assumption, a

takings claim does not assert that an injury to

property is constitutionally invalid because it

occurred “without just compensation.” 473 U.S. at 194.

It seeks to show that the injury is a taking “requiring

[the remedy of] just compensation.” Lingle, 544 U.S.

at 537; Hodel v. Irving, 481 U.S. 704, 713 (1987); see

also Murr, 137 S. Ct. at 1952 (Roberts, C.J.,

dissenting) (“[I]f a taking has occurred, the remaining

matter is tabulating the ‘just compensation’ to which

the property owner is entitled.”). That is, at least in

the inverse condemnation context, the Just

Compensation Clause does not “proscribe”

uncompensated takings; it provides a “self-executing”

damages remedy once a court finds a taking. First

English, 482 U.S. at 315; id. at 316 n.9; Jacobs v.

United States, 290 U.S. 13, 16 (1933); San Diego Gas

& Elec. Co., 450 U.S. at 658 (Brennan, J., dissenting)

(“[O]nce a court finds a police power regulation has

effected a ‘taking,’ the government entity must pay

just compensation” under the Just Compensation

Clause.).

The flaws in Williamson Countys reasoning are

put into further relief by considering the syllogism

supporting the Court’s reasoning:

|Ajll that is required is that a “reasonable,

certain and adequate provision for obtaining

compensation” exist at the time of the taking.

If the government has provided an adequate

process for obtaining compensation, and if

resort to that process “yield[s] just

compensation,” then the property owner “has

no claim against the Government.”

473 U.S. at 194-95 (citations omitted).

This rationale makes some sense in a

condemnation-type dispute where the government

acknowledges it is taking property and that it has a

resulting compensatory duty. Kirby, 467 U.S at 5.

Such was the case in Cherokee Nation, from which the

Court derived the foregoing logic. Williamson County,

473 U.S. at 194 (citing Regional Rail Reorganization

Act Cases, 419 U.S. 102, 124-25 (1974) (quoting

Cherokee Nation, 135 U.S. at 659). In Cherokee

Nation, the United States statutorily authorized a

physical invasion of property, while providing a

procedure in that same act for affected owners to

obtain compensation for that taking. The Nation

asserted that the taking was invalid because it had

not been paid before the invasion of its property. The

dispute accordingly centered on the provision of just

compensation. The existence of a taking was not at

issue. The Court held the Nation had no claim for a

constitutional violation because the act authorizing

the taking created an adequate process for it to

“obtain” compensation. /d.

The same rationale is inapt when a dispute is

about whether a taking has occurred in the first place

and a property owner sues in an_ inverse

condemnation action to litigate that issue. First

English, 482 U.S. at 315-16; see also Clarke, 445 U.S.

at 258. In these cases, the property owner has no right

to just compensation—or to use an existing process for

obtaining it—until the owner first proves that liability

for a compensable taking exists. First English, 482

U.S at 316. Williamson County essentially holds that

one must try to collect a compensatory debt before

there is entitlement to it. 473 U.S at 195. That is

wrong. The entitlement must first be established, and

proof of that entitlement—not proof a violation of the

Just Compensation Clause—is the essence of a

takings claim. See, e.g., Arkansas Game & Fish

Comm'n v. United States, 568 U.S. 23, 29 (2012)

(“[T]he Commission filed the instant lawsuit ...

claiming that the temporary _ [flood-causing]

deviations from the Manual constituted a taking of

property that entitled the Commission to

compensation.”); Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 421 (1982) (“[T] he question

fis) whether a minor but permanent physical

occupation of an owner's property ... constitutes a

‘taking’ of property for which just compensation is due

under the Fifth and Fourteenth Amendments.”); San

Diego Gas & Electric, 450 U.S. at 660 (Brennan, J.,

dissenting) (“[T]he landowner must be able

meaningfully to challenge a regulation that allegedly

effects a ‘taking,’ and recover just compensation if it

does so.”).!2

'2 Williamson County's failure to fully grasp this point is evident

in its conclusion that one can ripen a federal takings suit by filing

a state inverse condemnation action. Like inverse condemnation

suits generally, a state inverse condemnation procedure is a

process for proving a taking that warrants a damages remedy.

See 26 Pa. Cons. Stat. § 502(c) (outlining Pennsylvania’s inverse

condemnation process); Henderson, 827 N.W.2d at 489. In

essence, Williamson County's doctrine declares that one must try

and establish a taking (in a state inverse condemnation action)

before asserting a taking (in a federal inverse condemnation

action). This confirms that takings claims hinge on an allegation

Once the nature of an inverse condemnation

takings action and the remedial role of the Just

Compensation Clause is understood,'® it is clear that

the use of compensation procedures is not an element

of a takings claim, as Williamson County presumed. |‘

473 U.S at 196. State compensation procedures are

simply an _ alternative remedy to the dust

Compensation Clause. As such, they do not play into

that an act causes a taking, not that it occurred without a

compensatory procedure.

‘8 In the Williamson County Court's defense, the remedial

nature of the Just Compensation Clause in regulatory takings

cases was not established at the time of the decision. On two

occasions before Williamson County, the Court tried to decide

whether the Clause functions as a damages remedy, but found

the issue unripe. Agins v. City of Tiburon, 447 U.S. 255, 260-63

(1980); San Diego Gas & Electric Co., 450 U.S. at 633. In

Williamson County, the Court granted certiorari to address the

issue but, of course, it failed to reach it, too. 473 U.S. at 185. The

Court finally addressed the remedial question head-on in First

English, two years after it issued the Williamson County opinion.

482 U.S. at 310-12. There, a majority confirmed that the Just

Compensation Clause is a self-executing damages remedy in the

inverse condemnation context. Id. at 315-16.

4 Even if one accepts the Williamson County premise rejected

here—that an inverse condemnation claim rests on a “violation”

of the Just Compensation Clause—the state litigation ripeness

requirement is not a correct deduction from this premise.

Accepting the premise for the sake of argument, the issue of

whether an alleged taking is “without just compensation” and

“complete” would depend on the actions of the responsible

government entity at the time of the taking, not on the actions of

a state court. If an agency charged with taking property fails to

provide or guarantee compensation at the time of the property

injury challenged as a taking, the alleged taking would be

“without just compensation.” A claim would be complete and ripe

for review at that point under Williamson County's own logic,

regardless of what a state court might do.

a property owner's ability to assert an actionable

takings claim. Horne v. Dep’t of Agric., 569 U.S. 513,

526 n.6 (2013) (“[W]hether an alternative remedy

exists does not affect the jurisdiction of the federal

court” to hear an otherwise ripe takings claim.);

Zinermon, 494 U.S. at 124 (“[O]verlapping state

remedies are generally irrelevant to the question of

the existence of a cause of action under § 1983.”);

Henry Paul Monaghan, State Law Wrongs, State Law

Remedies, and the Fourteenth Amendment, 86 Colum.

L. Rev. 979, 989-90 (1986) (“No authority supports use

of ripeness doctrine to bar federal judicial

consideration of an otherwise sufficiently focused

controversy simply because corrective state judicial

process had not been invoked.”).'

'6 The Williamson County Court attempted to buttress the state

litigation requirement by analogizing to Ruckelshaus ov.

Monsanto, 467 U.S. 986 (1984), and Parratt v. Taylor, 451 U.S.

527 (1981). Yet, neither decision supports Williamson County's

logic. San Remo, 545 U.S. at 349 n1 (Rehnquist, C.J.,

concurring). The claimant in Monsanto did not seek just

compensation for a taking; it sought to enjoin a federal statute.

In rejecting that relief, the Court did not find the claim unripe; it

held it unavailable. Moreover, Monsanto did not rule that a

property owner must exhaust some preliminary judicial process

to ripen a takings claim seeking just compensation in the Court

of Federal Claims. 467 U.S. at 1016-17. It held that an owner

may directly file such a takings claim. Id.

Parratt held that a prisoner challenging a negligent loss of

personal property could not state a procedural due process claim

until he used available state post-deprivation remedies. 451 U.S.

at 541. The Court reasoned that the asserted due process injury

was not complete “unless or until the state fails to provide an

adequate postdeprivation remedy for the property loss.” Hudson

v. Palmer, 468 U.S. 517, 532 n.12 (1984). Parratt applies only to

“a random and unauthorized” deprivation of property, 451 U.S.

THE COURT SHOULD RECONFIRM

THE PRE-WILLIAMSON COUNTY

FINALITY RIPENESS FRAMEWORK

AND HOLD MS. KNICK’S CLAIMS

RIPE UNDER THAT REGIME

In light of the state litigation requirement’s

harmful impacts and flawed logic, the Court should

abrogate the requirement and return takings ripeness

doctrine to the framework that existed prior to

Williamson County. San Remo, 545 U.S. at 348

(Rehnquist, C.J., concurring); Lawrence v. Texas, 539

U.S. 558, 578 (2003) (A rule that is “not correct when

it was decided, and it is not correct today . . . ought not

to remain binding precedent.”).

Abandoning the dysfunctional and illogical! state

litigation requirement does not leave property owners

free to raise unripe takings claims. Takings claimants

must still assert claims that are factually developed

and nonspeculative. But the identification of ripe

claims does not depend on whether the state has a

general process for remedying a taking of private

property. It depends on whether the governmen: has

at 541, for which the government cannot plausibly provide pre-

deprivation process. It is accordingly inapplicable to deprivations

of property arising from official policies or formal administrative

actions, since pre-deprivation process can be provided in that

context. Id.; Logan v. Zimmerman Brush Co., 455 U.S. 422, 436

(1982). Since takings claims arise only from official policies and

formal decision making, Palazzolo, 533 U.S. at 620, Parratt's

reasoning is inapposite to the takings context. The analogy to

Parratt also fails because the Just Compensation Clause is

remedial! in nature, unlike the Due Process Clause construed in

Parratt.

inflicted concrete harm to private property interests.

Blanchette v. Connecticut General Ins. Corporations,

419 U.S. 102, 138-44 (1974); Lujan v. National

Wildlife Federation, 497 U.S. 871, 891 (1990).

Ms. Knick’s claims, which allege that the

Ordinance <ffects a physical taking of private property

on its face and as-applied to her particular parcel of

land, are ripe under traditional and correct ripeness

principles.

A. Takings Claims Ripen When the

Government Clearly Injures

Property Interests

In the absence of Williamson County's state

litigation doctrine, the ripeness inquiry in takings

cases properly focuses on whether the issues relevant

to takings liability are postured for review. 473 U.S.

at 191 (explaining that the “final decision” ripeness

requirement ensures that a court can apply regulatory

takings tests to decide if a taking occurred);

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340, 348 (1986) (“A court cannot determine

whether a regulation has gone ‘too far’ unless it knows

how far the regulation goes.”). The considerations

relevant to determining whether the government has

caused a taking are generally fit for review once the

government arrives at “a definitive position” that

inflicts “an actual, concrete injury” to property.

Williamson County, 473 U.S. at 193; Lujan, 497 U.S.

at 891.

Just compensation issues raise remedial concerns

that do not affect the issue of takings liability or a

court's ability to decide that question. Tahoe-Sierra

Pres. Council v. Tahoe Regi Planning Agency, 535

U.S. 302, 322 n.17 (2002) (“In determining whether

government action affecting property is an

unconstitutional deprivation of ownership rights

under the Just Compensation Clause, a court must

interpret the word ‘taken.”); Suitum, 520 U.S. at 747

(Scalia, J., concurring) (“[A] cash payment from the

government would not relate to whether the

regulation ‘goes too far’ (i.e., restricts use of the land

so severely as to constitute a taking.”)). Thus, when

the government causes concrete harm to property

without initiation of condemnation proceedings—

whether through enactment of a law that burdens

property or conclusive application of an existing

regulation—an affected property owner may assert

that the result is a compensable taking. Horne, 569

U.S. at 525; Kirby, 467 U.S. at 5 (The “owner has a

right to bring an ‘inverse condemnation’ suit . . . on the

date of the intrusion” into property.); see also Clarke,

445 U.S. at 258 (“When a taking occurs by physical

invasion [as opposed to one by formal condemnation]

... the usual rule is that the time of the invasion

constitutes the act of taking, and ‘[i]t is that event

which gives rise to the claim for compensation ... .”

(quoting United States v. Dow, 357 U.S. 17, 22

(1958))).

This injury-based ripeness inquiry may vary

slightly depending on the type of alleged taking.'® See

‘6 The ripeness inquiry may be more intensive when a case

involves a regulatory takings claim. In this context, a “final

agency decision” may not exist until the property owner exhausts

administrative procedures that allow the government to clarify

the scope and effect of its regulations. Palazzolo, 533 U.S. at 620.

This rule arises from the nature of regulatory takings analysis.

generally Brubaker Amusement Co., Inc. v. United

States, 304 F.3d 1349, 1357-59 (Fed. Cir. 2002)

(summarizing finality ripeness rules). But in no case

must the claimant prove that state remedies will not

provide compensation before suing to establish a

taking. “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; see also Steffel v. Thompson,

415 U.S. 452, 472-73 (1974) (“When federal claims are

premised on [§ 1983] ... we have not required

exhaustion of state judicial or administrative

remedies... .”); Home Tel. & Tel. Co., 227 U.S. at 284-

85.

B. Ms. Knick’s Physical Takings

Claims Are Ripe

Ms. Knick alleges that the Ordinance causes a

taking of private property because it (1) allows “the

general public to enter, traverse, and occupy | |

private land,” including her _ parcel, and

(2) “authoriz[es] the Township’s ‘Code Enforcement

Officer [and] agents” to enter, traverse, and occupy

any private property to look for a cemetery. JA at 102,

‘|| 36-37. These requirements sanction an invasion of

her land for public use and eviscerate her

473 U.S at 192. A court cannot determine how far a regulation

goes in restricting the use and value of property until the

government uses its discretion to arrive at a definitive position

on the application of its regulation. Once it does so, 533 U.S. at

620, or it becomes clear that the agency lacks discretion to soften

the regulations, Suitum, 520 U.S. at 739, or “the permissible uses

of the property are [otherwise] known to a reasonable degree of

certainty,” Palazzolo, 533 U.S. at 620, finality exists, and a

regulatory takings claim is ripe.

“fundamental right to exclude others.” See JA at 102,

| 39; see generally Kaiser Aetna, 444 U.S. at 180.

Ms. Knick accordingly claims that the Ordinance

causes a taking entitling her to “compensatory

damages.” JA at 103, 4 43. Under the correct

analytical framework, these claims are ripe.

1. Ms. Knick’s As-Applied Claims Are Ripe

A claim that regulatory action causes a

compensable physical taking is ripe once the

government determines that its regulations require

an invasion of property.'? Blanchette, 419 U.S. at 143

(takings claim ripe where “the conveyance [of

|property] allegedly violative of Fifth Amendment

rights is in no way hypothetical or speculative”); see

also Horne, 569 U.S. at 525 (claim ripened by a “final

agency order imposing concrete fines and penalties”

due to a property owner’s refusal to convey property

to the government).

Here, the Township conclusively decided that the

Ordinance’s property access provisions apply to

Ms. Knick’s land. JA at 111-12; cf. Suitum, 520 U.S.

at 739 (claim ripe where a government agency decided

the plaintiffs land was within a _ restricted

development zone). The Township inspected

(trespassed on) the property and then sent Ms. Knick

written notification that her land contains a burial

site subject to the Ordinance. JA at 110-12. The Notice

declares that she is “in violation of section #5...

'T Unlike in the regulatory takings context, a property owner

asserting a physical takings claim need not pursue

administrative variances that might reduce the scope of an

invasion, since a physical invasion of any size is a taking of

property. Tahoe-Sierra, 535 U.S. at 322.

which requires that all cemeteries within the

Township shall be kept open and accessible to the

general public during daylight hours.” JA at 110-11.

Finally, it orders her “to make access to the cemetery

available to the public during daylight hours.” Jd. at

111. It states that she is subject to civil penalties for

every day she fails to comply with this public access

order. Id. at 111-12.

The application of the Ordinance to Ms. Knick’s

property is sufficiently final and concrete to allow a

court to decide whether it causes a physical taking of

her property. Horne, 569 U.S. at 525. In the event the

district court finds that the Ordinance renders the

Township liable for a taking, “the compensation

remedy [afforded by the Just Compensation Clause] is

required,” entitling Ms. Knick to damages for the

duration of the taking.'® First English, 482 U.S at 316.

2. Ms. Knick’s Facial Claims Are Also Ripe

A claim asserting that a law or regulation takes

private property on its face ripens at the time of

enactment. Hodel, Inc., 452 U.S. at 297; Suitum, 520

U.S. at 736 n.10; Keystone Bituminous Coal Ass’n v.

'8 Ms. Knick’s claims are ripe even if one concludes, as

Williamson County wrongly does, that a claim ripens upon a

“violation” of the “without just compensation” language in the

Just Compensation Clause. This is because the Ordinance

contains no provision for compensation, the Notices of Violation

offer no compensation, and the Township took no other steps to

guarantee compensation when it ordered Ms. Knick to open her

land to the public. The Township’s actions accordingly should be

deemed “without just compensation” and actionable, without use

of state procedures, even under Williamson County's (incorrect)

treatment of the “without just compensation” language as an

element of a takings claim, rather than as a remedy.

DeBenedictis, 480 U.S. 470, 494 (1987). The logic is

straightforward. When the government passes a law

that plainly and immediately restricts property

interests, the burden on property is apparent. There

is nothing uncertain about the impact of such law.

Without more, a court can determine if that impact

rises to the level of a taking requiring compensation.

While a plaintiff may face a “battle” to prevail in such

a facial challenge, Hodel, 452 U.S. at 296-97, no

principle of ripeness bars the claim.!9

There is no dispute that the Township formally

enacted the Ordinance six years ago, and it remains

on the books today. The Ordinance requires that all

private burial areas “shall be kept open and accessible

to the general public during daylight hours.” JA at 22.

It further authorizes Township officials to “enter upon

any property within the Township for the purposes of

determining the existence of and location of any

cemetery ... .” Id.

There is also nothing speculative about these

provisions. The Township acknowledges that the first

provision creates a public access easement on all

private property containing a burial ground. JA at

126. The second is a broad “authorization to conduct

searches of privately owned property.” Pet. App. A at

19-20. Ms. Knick’s land is currently subject to these

'® Ifa court finds that a law causes a taking on its face, the initial

remedy is a declaration to that effect. The government then has

the option to amend or rescind the law or to pay compensation to

affected property owners to retain the law. Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 413 (1922) (When an act “reaches a

certain magnitude .. . there must be an exercise of eminent

domain and compensation to sustain the act.”).

access requirements, and thus, there is a clear injury

to her property warranting legal action. Blanchette,

419 U.S. at 143.

Yet, as things stand now, Ms. Knick’s only hope

for a hearing is to wait for the Township to institute a

state law civil enforcement action or to file a second,

“inverse condemnation,” action in state court.?° In the

meantime, under the threat of large, accumulating

daily fines, Ms. Knick must allow anyone to enter her

land, with no legal limits on where or how they enter

or how long they remain and no way to determine if

their presence is consistent with the Ordinance. JA at

126-27.

Ripeness doctrine does not demand this situation.

Given the Township’s decisive enactment and

implementation of its Ordinance’s access provisions,

Ms. Knick has a ripe claim that the provisions effect a

taking by depriving subject landowners of the

fundamental right to exclude strangers. Ms. Knick

need not utilize an alternative state compensation

process before seeking (1) a declaration that the

Township is taking property and must pay

compensation to sustain the Ordinance and

(2) damages under the Just Compensation Clause in

the event the Township chooses to retain the

*” Notably, an inverse condemnation action in Pennsylvania

state court would not raise different takings issues than those

presented here. Such a suit would require the state court to apply

this Court's takings precedent to decide if a taking occurred, the

same task presented by Ms. Knick’s federal complaint. The state

court is not better suited to this job than a federal court. San

Remo Hotel, 545 U.S. at 350-51 (Rehnquist, C.J., concurring). In

any event, ripeness principles do require resort to state court. See

Horne, 569 U.S. at 526 n.6.

Ordinance. Horne, 569 U.S. at 526 n.6; see also First

English, 482 U.S. at 321.

C. Stare Decisis Does Not Bar the

Court from Correcting Course

The Township will likely argue that the Court

cannot reach the foregoing conclusions because the

doctrine of stare decisis prevents it from abandoning

Williamson County's state litigation rule. It does not.

Stare decisis is neither an “inexorable command,”

Lawrence, 539 ').S. at 577, nor “a mechanical formula

of adherence to the latest decision,” Helvering v.

Hallock, 309 U.S. 106, 119 (1940). This is especially

true when considering dicta. Kirtsaeng v. John Wiley

& Sons, Inc., 568 U.S. 519, 548 (2013) (The Court is

not “bound by dicta should more complete argument

demonstrate that the dicta is not correct.”).

Stare decisis also has less force when dealing with

a constitutional rule, see United States v. Scott, 437

U.S. 82, 101 (1978), as it “is practically impossible” to

correct such a rule by legislative action. Payne, 501

U.S. at 828 (quoting Burnet v. Coronado Oil & Gas

Co., 285 U.S. 393, 407 (1932)). The doctrine is

similarly weakened in the context of procedural rules,

because such rules generate fewer reliance interests

than substantive legal standards. Alleyne v. United

States, 570 U.S. 99, 119 (2013) (stare decisis has less

application with respect to “procedural rules . . . that

do not govern primary conduct and do not implicate

the reliance interests of private parties’).

When a constitutional or procedural rule is

erroneous and “unworkable,” stare decisis concerns

“carry little weight.” Federal Election Comm’n v.

Wisconsin Right To Life, Inc., 551 U.S. 449, 501

(2007); Swift & Co., Inc. v. Wickham, 382 U.S. 111,

116 (1965) (“[O]nce [a procedural rule] is proved to be

unworkable in practice; the mischievous consequences

to litigants and courts alike from the perpetuation of

an unworkable rule are too great.”). Indeed, in such a

situation, “[a]brogating the errant precedent, rather

than reaffirming or extending it, [| |] better preserve[s]

the laws coherence and curtails the precedent’s

disruptive effects.” Citizens United v. Federal Election

Comm'n, 558 U.S. 310, 378-79 (2010) (Roberts, J.,

concurring).

The state litigation requirement is dicta that

purports to be a constitutionally based procedural

rule. Cf United States v. Gaudin, 515 U.S. 506, 521

(1995). It is mistaken in theory and unworkable in

application. Payne, 501 U.S. at 828. Given its

procedural nature and unpredictable application, the

state litigation ripeness doctrine gives rise to few

reliance interests. That some government defendants

may hope to continue defeating takings claims

through procedural attrition rather than on the

merits is not the type of reliance concern that supports

stare decisis. Nor is the mere fact that Williamson

Countys state litigation principle has survived to

date. See, e.g., Lingle, 544 U.S. at 544 (abrogating a

25-year-old takings standard due to its doctrinal

flaws). In light of these realities, stare decisis cannot

save the state litigation requirement. Gaudin, 515

U.S. at 521 (“[Sltare decisis cannot possibly be

controlling” when considering a “manifestly

erroneous,” constitutionally based procedural rule.).

Abrogating the state litigation requirement to

return ripeness doctrine to the pre cxisting finality-

based inquiry is the correct result. The Court should

take that step. Davis v. Mills, 194 U.S. 451, 457 (1904)

(The Constitution is “intended to preserve practical

and substantial rights, not to maintain theories.”). It

should then hold Ms. Knick’s takings claim ripe under

the proper inquiry and remand for further litigation

in federal court.

CONCLUSION

The Court should overrule Williamson County's

state litigation requirement, vacate the judgment

below and remand for further proceedings.

DATED: May, 2018.

Respectfully submitted,