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

No. 17-647

In the Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

We

TOWNSHIP OF SCOTT, ET AL.,

Respondents.

On Writ of Certiorari to The United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE FOR THE

AMERICAN FARM BUREAU FEDERATION,

NATIONAL CATTLEMEN’S BEEF ASSOCIATION,

AND CATL FUND IN SUPPORT OF PETITIONER

ELLEN STEEN TrImoTny S. BISHOP

DANIELLE H. QUIST Counsel of Record

American Farm Bureau CHAD M. CLAMAGE

Federation Mayer Brown LLP

600 Maryland Ave., S.W., 71 South Wacker Drive

Suite 1000W Chicago, Illinois 60606

Washington, D.C. 20024 (312) 782-0600

(202) 406-3600 tbishop@mayerbrown.com

O 1 for Amici Curi

[Additional counsel listed on signature page]

een lea Mt en ihdiniaicsrneaenaaenonemsec

TABLE OF CONTENTS

Page

Interest of the Amici Curiae ........................cc0000000000e- l

te I aiceiccncccsiccccccnncascsvessuvesscesesseseees 3

f EET ERT ee Oe aD 6

1. Williamson County's Ripeness Rules Make

The Takings Clause The Poor Relation Of

Other Provisions Of The Bill Of Rights. ............... 9

Il. Stare Decisis Does Not Justify Continued

Adherence To Williamson County. ...................... 16

a el 22

‘

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

«IER ree ae eee 16

Alleyne v. United States,

I se tninesncnnnananianniiets 16, 20

Armstrong v. United States,

BO Be Gp Go iecccsceccccccccccccceescccesescccesesesncencses 12

Arrigoni Enters., LLC v. Town of Durham,

136 S. Ct. 1409 (2016)... eee eens passim

Briscoe v. Lahue,

en 13

Chi., B. & Q. R.R. Co. v. City of Chi.,

a eencninaseenonsieiins 7

Citizens United v. FEC,

568 U.S. 310 (BO1O).................ccceeecceeescceesseeeeseeeees 20

City of Chi. v. Intl Coll. of Surgeons,

I ssc catisistiscietiieniael 8

DLX, Inc. v. Kentucky,

381 F.3d 511 (6th Cir. 2004).......... 0c. 18

Dolan v. City of Tigard,

gE Ee ee PRT 9

ill

England v. La. State Bd. of Med. Exam’rs,

NE ee

Front Royal & Warren Cty. Indus. Park

Corp. v. Town of Front Royal,

135 F.3d 275 (4th Cir. 1908)...............ccccccccsccceeees

Halliburton Co. v. Erica P. John Fund, Inc.,

ee ee I ceuebinbseseuinsuosaisnans

Horne v. Dep't of Agric.,

IT ea ee

Hubbard v. United States,

ee I iiresnccnccntvestetetdscessucidssdessenssinns

Hurst v. Florida,

EI ee a ee

Koscielski v. City of Minneapolis,

435 F.3d 898 (8th Cir. 2006).........................00000+-

Lawrence v. Texas,

EEE EE RETY ae aA NE

Leegin Creative Leather Prods., Inc. v.

PSKS, Inc.,

er I itinctccinnncccinsessiicdoninmmnnensiconeaions

Mitchum v. Foster,

A RE aR Rr 12,

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

Se a iicrteiccetscncicastsessonsmesauseressesseene

Payne v. Tennessee,

| ERE IEE as R e seanee

iv

Pearson v. Callahan,

TS LAR se aD ee CL ee 17

Preiser v. Rodriguez,

RNS RE I NE aro 13

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

San Francisco,

EEE Sa SR a Se passim

Santini v. Conn. Hazardous Waste Mgmt.

Serv.,

Oe Bs BD Ge Ce BD ccecccecececcccocecccccesccsceses 18

Shelly v. Kraemer,

Ta NE RS el WE? are AI 9

State Oil Co. v. Khan,

ia iicndstintnrstrncesidciesnessaniciionetoetiathens 16

Stop the Beach Renourishment, Inc. v. Fla.

Dep't of Envtl. Protection,

TC 19

United States v. Dunn,

SES Re eR ME 11

Williamson County Regional Planning

Commission v. Hamilton Bank,

I accintiitccchditerssanssenaniiacesesen passim

Statutes and Rules

28 U.S.C.

eR Ree eee a 12

RES RRL Ra a A RE eet AN 14

Eee eee kOe, MC ke ODD 8, 19

EEA ILS SA Sha MNOS Me Ea 18

RT Eee Se oe eRe a 13

op SE Ee eee ee passim

IS a l

Other Authorities

Michael M. Berger & Gideon Kanner, Shell

Game! You Can't Get There from Here:

Supreme Court Ripeness Jurisprudence

in Takings Cases at Long Last Reaches

the Self-Parody Stage,

ee BG Ce CI ve cciccccececsscccecesovcssvscosecesses 21

David A. Dana & Thomas W. Merrill,

PROPERTY: TAKINGS EE eae 10, 15

John J. Delaney & Duane J. Desiderio, Who

Will Clean Up the “Ripeness Mess”? A

Call for Reform So Takings Plaintiffs

Can Enter the Federal Courthouse,

Sa 15

THE FEDERALIST No. 10 (James Madison)

(Clinton Rossiter ed., 1961) ................0ccccccccccccceeeee 6

THE FEDERALIST No. 54 (James Madison)

(Clinton Rossiter ed., 1961) ....................cccccccccceeeee 9

vi

Timothy V. Kassouni, The Ripeness

Doctrine and the Judicial Relegation of

Constitutionally Protected Property

Rights,

29 CAL. WESTERN L. REV. 1 (1992) .................

Max Kidalov & Richard H. Seamon, The

Missing Piece of the Debate over Federal

Property Rights Litigation,

27 HASTINGS CONST. L.Q. 1 (1999) .................

Michael W. McConnell, Contract Rights and

Property Rights: A Case Study in the

Relationship Between Individual

Liberties and Constitutional Structure,

76 CAL. L. REV. 267 (1968)...................0.-...000+

Jennifer Nedelsky, PRIVATE PROPERTY AND

THE LIMITS OF AMERICAN

CONSTITUTIONALISM: THE MADISONIAN

FRAMEWORK AND ITS LEGACY (1990)...............

Gregory Overstreet, The Ripeness Doctrine

of the Taking Clause: A Survey of

Decisions Showing Just How Far

Federal Courts Will Go to Avoid

Adjudicating Land Use Cases,

10 J. LAND USE & ENVTL. L. 91 (1994) ...........

Gregory M. Stein, Regulatory Takings and

Ripeness in the Federal Courts,

48 VAND. L. REV. 1 (1995) .....................ecee00ee

BRIEF AMICUS CURIAE IN SUPPORT OF

PETITIONER

INTEREST OF THE AMICI CURIAE

The American Farm Bureau Federation, Nation-

al Cattlemen’s Beef Association, and CATL Fund

submit this brief as amici curiae in support of peti-

tioner.'

The American Farm Bureau Federation (Farm

Bureau) is a voluntary national membership organi-

zation with nearly six million member families in all

50 states and Puerto Rico. Established in 1919, the

Farm Bureau’s primary purpose is to advance and

promote the interests and betterment of farming and

ranching; the farming, ranching, and rural communi-

ty; and the individual families engaged in farming

and ranching. This effort involves protecting, pro-

moting, and representing the business, economic, so-

cial, and educational interests of American farmers

and ranchers.

The National Cattlemen’s Beef Association

(NCBA) is the largest and oldest national trade asso-

ciation representing American cattle producers.

Through state affiliates, NCBA represents more than

175,000 of America’s farmers and ranchers, who pro-

vide a significant portion of the nation’s supply of

food. NCBA works to advance the economic, political,

and social interests of the U.S. cattle business and to

' Pursuant to Rule 37.6, amici affirm that no counsel for a par-

ty authored this brief in whole or in part and that no person

other than amici and their counsel made a monetary contribu-

tion to its preparation or submission. All parties have consented

to the filing of this brief by blanket consent.

2

be an advocate for the cattle industry's policy posi-

tions and economic interests.

The CATL Fund is an organization that assists

landowners and others similarly situated, including

cattlemen, in establishing broad-based legal prece-

dent to protect property rights, promote free enter-

prise, and minimize regulatory abuses.

The exhaustion/ripeness rules invented in Wil-

liamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985), have for three

decades blocked farmers’ and ranchers’ pursuit of

takings claims to recover compensation for govern-

ment actions that reduce the value of their land or

business. Williamson County’s requirement that a

plaintiff exhaust state judicial remedies before an

inverse condemnation claim is ripe in federal court

adds enormously to the duration and expense of a

takings claim—often making litigation too costly to

contemplate. And state court litigation generally

makes a later federal suit pointless, because state

court determinations have preclusive effect in later

federal actions. Making an England reservation of

federal rights to address this preclusion problem is

ineffective, as this Court held in San Remo Hotel,

L.P. vy. City and County of San Francisco, 545 U.S.

323 (2005).

For takings plaintiffs, this combination of ex-

haustion, ripeness, and preclusion presents a bleak

prospect. It bars the federal courthouse door to most

federal takings claims. Farmers and ranchers are left

to state court actions to try to protect their constitu-

tional property rights against state and local gov-

ernment officials, with no hope of obtaining federal

relief unless lightning strikes in the form of a grant

3

of certiorari from this Court to review the final state

court judgment.

These barriers to vindicating individual constitu-

tional rights rest on errors that it is time to correct.

Amici focus this brief on two issues that support the

need for this Court to abandon Williamson County.

First, no other claim under our Bill of Rights has

to be ripened in this costly, time-consuming, and

cumbersome way. Final action by state and local

government officials is typically enough to give rise

to a federal constitutional claim, without first testing

that claim in state court. This Court’s decisions iden-

tify no plausible basis for applying a different rule to

just compensation claims.

Second, this Court should not follow Williamson

County merely as a matter of stare decisis. Its 30

years in effect have made it not venerable, but in-

stead have exposed its lack of a solid foundation an’

its dire practical consequences. None of the princi-

ples that make stare decisis generally beneficial ap-

ply here to justify perpetuating so faulty a decision.

Williamson County's procedural limitations to

protecting property rights in federal court would be

unrecognizable to the Framers of the simple and di-

rect mandate of the Takings Clause. Amici have a

strong interest in having this Court rein in the ex-

haustion/ripeness doctrine to afford America’s farm-

ers and ranchers a fair opportunity to vindicate their

federal rights to just compensation in a federal fo-

rum.

SUMMARY OF ARGUMENT

This Court should overrule Williamson County's

state-litigation requirement. That requirement bars

4

farmers and ranchers from obtaining federal court

remedies for state and local government violations of

the Takings Clause. No other right secured by the

Bill of Rights is treated this way. The barrier that

this Court constructed in Williamson County violates

our constitutional design and the intent of the Re-

construction Congress that adopted the Fourteenth

Amendment and enacted Section 1983. Stare decisis

does not protect this erroneous decision.

I. The Framers regarded protection of private

property as a keystone right. They guaranteed that

right in the Takings Clause, which they listed along-

side other foundational rights like free speech, assis-

tance of counsel, and due process of law. The Court

should not make it harder for citizens to invoke their

rights under the Takings Clause than other protec-

tions in the Bill of Rights.

Williamson County does precisely that. It prohib-

its land owners from seeking federal-court remedies

under the Takings Clause until after they have ex-

hausted all state judicial remedies. When combined

with preclusion under the full faith and credit stat-

ute, Williamson County bars federal courts from re-

viewing state takings at all. It thereby relegates the

Takings Clause to second-class status, allowing fed-

eral courts to guard against violations of every indi-

vidual right in the Bill of Rights except for the Tak-

ings Clause.

There is no justification for treating the Takings

Clause as a poor relation of the other protections in

the Bill of Rights. The Court’s three-paragraph dis-

cussion in Williamson County is thoroughly uncon-

vincing, as is the Court's later attempt in San Remo

Hotel to justify the doctrine.

5

Congress enacted Section 1983, providing for

federal adjudication of violations of federal constitu-

tional rights, because state governments and state

courts were not adequately protecting those rights.

In line with that purpose, the Court should overturn

Williamson County's state-litigation requirement

and restore landowners’ ability to seek federal court

remedies against unconstitutional state takings.

When Congress intends to restrict access to fed-

eral courts to litigate federal constitutional claims, it

says so. For example, it has specified that habeas

corpus petitioners must exhaust state remedies be-

fore they may turn to federal court. But Congress

placed no such restriction on rights under the Tak-

ings Clause. And this Court should not invent such

restrictions without congressional action.

Williamson County's state-litigation requirement

improperly makes the Takings Clause unenforceable

in federal court when state or local governments vio-

late the Constitution. The Court should overrule the

requirement.

Il. Stare decisis compels no different result.

Stare decisis is at its weakest when this Court inter-

prets the Constitution, and Williamson County pur-

ported to interpret the Takings Clause. This Court

later shifted the rationale for the state-litigation re-

quirement, turning it into a prudential rule. But

when this Court makes shifting judge-made rules,

stare decisis is weak. Both rationales thus signifi-

cantly diminish the strength of stare decisis here.

Three decades of experience have proved the

state-litigation requirement to be unworkable. The

Court’s language in Williamson County suggested

that property owners would be able to litigate their

6

takings claims in federal court once they exhausted

their state judicial remedies. But experience has

shown that the preclusive effect of the state court lit-

igation ends the federal cases at the start.

The Court’s later attempts to recast the state-

litigation requirement have spawned more confusion.

There are now circuit splits on whether the state-

litigation requirement is jurisdictional or prudential,

and on whether the requirement is waivable. Some

federal courts even have allowed state and local gov-

ernments to remove takings claims from state court

to federal court—which then dismisses the claims for

failure to exhaust state remedies. These courts

thereby prevent landowners from litigating their tak-

ings claims in any forum. The result is a charade

that prevents the Takings Clause from serving as a

bulwark protecting private property rights.

There are no serious reliance interests at stake.

No private citizens have altered their behavior based

on where they must litigate takings claims. If any-

thing, Williamson County encourages unconstitu-

tional takings because state and local governments

know that there is no effective federal court over-

sight. That possibility is a reason to overturn Wil-

liamson County.

Williamson County's state-litigation requirement

was not correct when it was decided, and it is not

correct today. The Court should overturn the re-

quirement and restore the Takings Clause to its

rightful place as a foundational protection in the Bill

of Rights.

ARGUMENT

The protection of individual property rights was

a core concern of the Framers of the Constitution and

7

the Bill of Rights. The Framers regarded it as “the

first object of government.” THE FEDERALIST No. 10,

at 78 (James Madison) (Clinton Rossiter ed., 1961).

The Fifth Amendment's Just Compensation or Tak-

ings Clause—which applies to the States through the

Fourteenth Amendment (Chi., B. & @. R.R. Co. v.

City of Chi., 166 U.S. 226 (1897))}—lies at the very

heart of the constitutional design. See Jennifer

Nedelsky, PRIVATE PROPERTY AND THE LIMITS OF

AMERICAN CONSTITUTIONALISM: THE MADISONIAN

FRAMEWORK AND ITS LEGACY 9 (1990) (private prop-

erty supplied “the clear, compelling, even defining,

instance of the limits that private rights place on le-

gitimate government”); Michael W. McConnell, Con-

tract Rights and Property Rights: A Case Study in the

Relationship Between Individual Liberties and Con-

stitutional Structure, 76 CAL. L. REV. 267, 270 (1988)

(“protection of private property was a nearly unani-

mous intention among the founding generation”).

It is no secret that, despite the central role of

property rights in our Constitution, protecting those

rights through takings litigation is fraught with dif-

ficulties. Difficult-to-satisfy takings tests that apply

to different types of government actions—all well

worth this Court revisiting—have made the winning

takings plaintiff a rare animal. No lawyer navigating

this minefield could ever predict success in a takings

suit.

But this case is about a procedural barrier that

dooms most inverse condemnation claims from the

very start, before federal courts even have the oppor-

tunity to apply the tests in Loretto, Lucas, Do-

lan/Nollan, or Penn Central/Pennsylvania Coal. In

Williamson County this Court held that “because the

Constitution *** is satisfied by a reasonable and

8

adequate provision for obtaining compensation after

the taking, the State’s action is not ‘complete”—the

fact or extent of the taking is not known—“until the

State fails to provide adequate compensation for the

taking.” 473 U.S. at 195. On this analysis, no taking

occurs until the state courts deny adequate compen-

sation. As a result, this Court held, no federal claim

for just compensation ripens until the plaintiff has

exhausted state court remedies and thereby “fixed”

the scope of any taking.

San Remo Hotel then magnified the adverse im-

pact of Williamson County on takings plaintiffs. It

applied the full faith and credit statute to bind fed-

eral courts to rulings made in the required state

court litigation, which precludes a federal remedy in

most cases. San Remo Hotel, 545 U.S. at 326-327.

“San Remo Hotel dooms plaintiffs’ efforts to obtain

federal review of a federal constitutional claim even

after the plaintiffs comply with Williamson County's

exhaustion requirement.” Arrigoni Enters., LLC v.

Town of Durham, 136 S. Ct. 1409, 1411 (2016)

(Thomas and Kennedy, JJ., dissenting from denial of

certiorari).

These doctrines generate additional peculiarities.

For example, the exhaustion requirement creates

particular problems in states, such as Ohio, that pro-

vide no cause of action for inverse condemnations.

See Brief Amicus Curiae for the Ohio Farm Bureau

Federation, in which amici here concur. And the doc-

trines invite “gotcha” litigation tactics in which a de-

fendant removes a takings claim from state to feder-

al court under 28 U.S.C. § 1441. See City of Chi. v.

Intl Coll. of Surgeons, 522 U.S. 156, 161 (1997). The

defendant then seeks to have the removed suit dis-

missed by the federal court for failure to exhaust

9

state court remedies. See Arrigoni Enters., 136 S. Ct.

at 1411 (Thomas and Kennedy, JJ.) (“This games-

manship leaves plaintiffs with no court in which to

pursue their claims”).

The consequence of all this is that it is “almost

impossible for fe*eral courts to remedy violations of

the Just Compwusation Clause.” Max Kidalov &

Richard H. Seamon, The Missing Piece of the Debate

vver Federal Property Rights Litigation, 27 HASTINGS

Const. L.Q. 1, 5 (1999). That relegation of Fifth

Amendment rights to second-class status is unjusti-

fied. The precedent that caused it, Williamson Coun-

ty, does not meet the standards for stare decisis and

should be overturned.

I. Williamson County’ Ripeness Rules Make

The Takings Clause The Poor Relation Of

Other Provisions Of The Bill Of Rights.

A. The Framers of our Constitution placed prop-

erty rights on an equal footing with other civil rights

guaranteed in the Bill of Rights. See THE FEDERALIST

No. 54, supra, at 339 (lames Madison) (government

is “instituted no less for the protection of the proper-

ty, than of the persons, of individuals”). Protection of

property “was regarded by the framers” as “an essen-

tial precondition to the realization of other basic civil

rights and liberties.” Shelly v. Kraemer, 334 U.S. 1,

10 (1948). This Court thus has said that there is “no

reason why the Takings Clause of the Fifth Amend-

ment, as much a part of the Bill of Rights as the

First Amendment or Fourth Amendment, should be

relegated to the status of a poor relation.” Dolan v.

City of Tigard, 512 U.S. 374, 392 (1994).

But Williamson County does exactly that. It cre-

ates an exception to the usual principles of federal

10

jurisdiction by insisting that a plaintiff cannot im-

mediately bring a federal takings claim in federal

court, but must instead litigate the claim all the way

through the state court system—at which point rules

of preclusion and res judicata bar federal court relief.

The effect is that “in most instances the final word of

the state supreme court in a land use case is the final

word, period,” given this Court’s limited capacity for

additional review. David A. Dana & Thomas W. Mer-

rill, PROPERTY: TAKINGS 264 (2002).

That works an extraordinary limitation on access

to the federal courts. As two leading scholars have

explained, “Section 1983—the primary vehicle by

which citizens seek damages for federal constitution-

al wrongs committed by state or local officials—has

no exhaustion requirement.” Dana & Merrill, supra,

at 262 (citing Patsy v. Fla. Bd. of Regents of Fla., 457

U.S. 496, 500-516 (1982)). To the contrary, the “gen-

eral rule” is that

plaintiffs who believe that they have been

deprived of some federal constitutional right

by state or local officials acting under color of

law may bring an action in federal district

court under [Section] 1983 without first

bringing any sort of state lawsuit, even when

state court actions addressing the underlying

behavior are available. For example, when an

individual claims that his Fourth Amend-

ment rights have been violated by an unwar-

ranted search or seizure, he may bring a Sec-

tion 1983 action without first bringing a state

court tort action for trespass or battery.

Ibid. Why should takings claimants be treated dif-

ferently, precluding them from ever vindicating their

federal constitutional rights in federal court?

11

B. This Court's three-paragraph discussion in

Williamson County offers no persuasive explanation

for this stark difference in treatment. The Court re-

ferred to the “the special nature of the Just Compen-

sation Clause.” 473 U.S. at 196 n.14. Supposedly, be-

cause the clause allows government to take private

property provided it pays just compensation, a “prop-

erty owner ‘has no claim against the Government for

a taking” if the plaintiff's resort to “an adequate pro-

cess for obtaining compensation * * * ‘yield|s] just

compensation.” Jd. at 194-195. An “adequate post-

deprivation remedy” prevents the takings claim from

arising. /d. at 195.

But the substantive adequacy of the state court's

decision is never tested in federal court because of

preclusion rules. Owners thus never find out wheth-

er a takings claim truly arose. The “special nature” of

the Takings Clause, under Williamson County, is

that federal courts can rarely pass on whether the

federal takings claim arose.

Justice Stevens’ majority opinion in San Remo

Hotel offered another justification for singling out

takings claims for adverse treatment: state courts

“have more experience than federal courts do in re-

solving the complex factual, technical, and legal

questions related to zoning and land-use regula-

tions.” 545 U.S. at 347. But federal courts are hardly

unfamiliar with state property law. For example, this

Court has often addressed the state law curtilage

concept in Fourth Amendment decisions such as

United States v. Dunn, 480 U.S. 294, 300 (1987). And

federal courts are the source of every important sub-

stantive takings standard. If the “familiarity” ra-

tionale were sufficient, as Chief Justice Rehnquist

pointed out in his concurrence in San Remo Hotel, it

12

“would apply to any number of federal claims,” in-

cluding, “for example, challenges to municipal land-

use regulations based on the First Amendment.” 545

U.S. at 350-351.

C. A more telling question is why takings claims

should not fall under Section 1983 like other civil

rights claims. Constitutional rights vary widely, yet

all fit under the Section 1983 umbrella absent Con-

gressional direction to the contrary—except the Just

Compensation Clause.

Congress in Section 1983 provided litigants a

federal remedy for deprivations of their federal

rights committed under color of state law. 42 U.S.C.

§ 1983. “The very purpose of § 1983 was to interpose

the federal courts between the States and the people,

as guardians of the people’s federal rights—to protect

the people from unconstitutional action under color

of state law.” Mitchum v. Foster, 407 U.S. 225, 242

(1972). And federal question jurisdiction under Arti-

cle Il and 28 U.S.C. § 1331 entitles a plaintiff alleg-

ing a violation of the Takings Clause to choose a fed-

eral forum. The Reconstruction Congress drew no

distinction in Section 1983 between different civil

rights: the statute applies to “the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution.” 42 U.S.C. § 1983 (emphasis added).

Plaintiffs alleging that state or local officials

have taken their property without just compensation

may be forgiven for doubting that they will get a fair

shake in state courts. Those courts are often staffed

by elected judges, and the costs of providing compen-

sation would fall on local governments and ultimate-

ly on local taxpayers (and voters). See Armstrong v.

United States, 364 U.S. 40, 49 (1960) (the Fifth

Amendment ensures that government may not

13

“forcje] some people alone to bear public burdens

which, in all fairness and justice, should be borne by

the public as a whole”). In fact, skepticism about

state courts’ willingness to hold state and local offi-

cials to federal constitutional requirements lay be-

hind the enactment of Section 1983. The Reconstruc-

tion Congress “displayed no solicitude for state

courts.” Briscoe v. Lahue, 460 U.S. 325, 363 (1983).

Far from it, the “debates over the 1871 Act are re-

plete with hostile comments directed at state judicial

systems.” Id. at 363-364.

D.To be sure, plaintiffs cannot vindicate every

constitutional right immediately in federal court. But

exceptions to the general rule that federal courts

provide a federal remedy for constitutional violations

must be established by “congressional directive” or

careful justification. San Remo Hotel, 545 U.S. at 351

(Rehnquist, C.J., concurring in judgment).

Congress has “clearly required exhaustion of ad-

equate state remedies” when it intends to require a

constitutional plaintiff to go to state court before

pursuing a claim in a federal forum. Preiser v. Rodri-

guez, 411 U.S. 475, 489-490 (1973). That is the case

for habeas corpus claims by state prisoners. 28

U.S.C. § 2254(b) requires a habeas corpus applicant

in federal court to “ha[ve] exhausted the remedies

available in the courts of the State” or have shown

that those remedies are non-existent or “ineffective.”

“{Ljongstanding principle[s] of comity” between

federal and state jurisdictions, reflected in federal

statutes like the Tax Injunction Act, also displace the

usual rule. San Remo Hotel, 545 U.S. at 339 (majori-

ty), 349-350 (concurrence).

14

Neither exception applies here. Congress has

never carved the Just Compensation Clause out of

Section 1983 or erected a habeas-corpus-like bar to

takings claims. Nor has it embraced strong comity

principles towards state determination of takings

claims comparable to its insulation of state tax re-

gimes from direct federal challenge in the Tax In-

junction Act, 28 U.S.C. § 1341.

E. While the reasons for the Williamson County

rule are “suspect,” its “impact on takings plaintiffs is

dramatic.” San Remo Hotel, 545 US. at 352

(Rehnquist, C.J.). The exhaustion requirement

serves as an unfair means test for entry into federal

court. Only those with huge financial resources and

the stamina to outlast government bureaucracies can

hope to satisfy this test of endurance all the way

through the state court system. See Timothy V.

Kassouni, The Ripeness Doctrine and the Judicial

Relegation of Constitutionally Protected Property

Rights, 29 CAL. WESTERN L. REV. 1, 11 (1992) (‘The

time and money required to comply with myriad

ripeness requirements will prevent most middle-

class property owners from pursuing their constitu-

tional right to just compensation [and] * ** make

substantive review virtually impossible”); Gregory

M. Stein, Regulatory Takings and Ripeness in the

Federal Courts, 48 VAND. L. REV. 1, 43 (1995) (“Prac-

tically speaking, the universe of plaintiffs with the

financial ability to survive the lengthy ripening pro-

cess is small”).

If a rare takings plaintiff survives this gauntlet,

he likely will have no federal remedy anyway. Pre-

clusion and res judicata, endorsed by this Court in

San Remo Hotel, make sure of that. Though a federal

takings claim may be “nominally permissible” after

15

exhausting state court remedies, it is in practice

“pointless.” Dana & Merrill, supra, at 264. Surveys

during the 1990s showed that 80 to 90 percent of tak-

ings claims were dismissed from federal court on

ripeness or abstention grounds. See John J. Delaney

& Duane J. Desiderio, Who Will Clean Up the “Ripe-

ness Mess”? A Call for Reform So Takings Plaintiffs

Can Enter the Federal Courthouse, 31 URB. LAW. 195,

203-204 (1999); Gregory Overstreet, The Ripeness

Doctrine of the Taking Clause: A Survey of Decisions

Showing Just How Far Federal Courts Will Go to

Avoid Adjudicating Land Use Cases, 10 J. LAND USE

& ENVTL. L. 91 (1994).

F. In short, Williamson County “has downgraded

the protection afforded by the Takings Clause to se-

cond-class status.” Arrigoni Enters., 136 S. Ct. at

1411 (Thomas and Kennedy, JJ.). “Plaintiffs alleging

violations of other enumerated constitutional rights

ordinarily may do so in federal court without first

availing themselves of state court.” /bid. And this

relegation to poor relation status is unjustified. Nei-

ther “constitutional [nJor prudential principles re-

quire claimants to utilize all state compensation pro-

cedures before they can bring a federal takings

claim.” San Remo Hotel, 545 U.S. at 349 (Rehnquist,

C.J.); see also Arrigoni Enters., 136 S. Ct. at 194

(state litigation rule is “ahistorical, atextual, and

anomalous’).

This Court should end the Williamson County

anomaly and restore the Fifth Amendment to its

proper place among the other provisions of the Bill of

Rights.

16

Il. Stare Decisis Does Not Justify Continued

Adherence To Williamson County.

Stare decisis does not require keeping in place

this Court’s erroneous decision in Williamson Coun-

ty. “/Sjtare decisis is not an inexorable command.”

State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). This

Court “overrule[s] prior decisions where the necessi-

ty and propriety of doing so has been established.”

Hurst v. Florida, 136 S. Ct. 616, 623 (2016). That

test is easily satisfied here. Both the necessity and

propriety of overruling Williamson County are com-

pelling.

A. “The force of stare decisis is at its nadir” in

this case. Alleyne v. United States, 570 U.S. 99, 116

n.5 (2013). Stare decisis “is at its weakest” when this

Court interprets the Constitution, because this

Court’s “interpretation can be altered only by consti-

tutional amendment or by overruling [its] prior deci-

sions.” Agostini v. Felton, 521 U.S. 203, 235 (1997);

see also Halliburton Co. v. Erica P. John Fund, Inc.,

134 S. Ct. 2398, 2411 (2014) (contrasting the “special

force” of stare decisis in statutory cases). And stare

decisis is especially weak in cases “concerning proce-

dural rules that implicate fundamental constitution-

al protections”—exactly what is at issue here.

Alleyne, 570 U.S. at 116 n.5.

Those principles greatly diminish the force of

stare decisis here. “The Court in Williamson County

purported to interpret the Fifth Amendment in di-

vining th[e] state-litigation requirement.” San Remo

Hotel, 545 U.S. at 349 (Rehnquist, C.J.). The Court

incorrectly “reasoned” that the “language” of the

Takings Clause “does not ‘require that just compen-

sation be paid in advance of, or contemporaneously

with, the taking; all that is required is that a reason-

17

able, certain and adequate provision for obtaining

compensation exist at the time of the taking.”

Arrigoni Enters., 136 S. Ct. at 1409 (Thomas and

Kennedy, JJ.) (quoting Williamson County, 473 U.S.

at 194). That Williamson County interpreted the

Takings Clause—a fundamental constitutional pro-

tection—means that stare decisis is at its lowest ebb.

This Court later switched the rationale for Wil-

liamson County—a sure sign that the case was

wrongly decided. Instead of treating the state-

litigation rule as a substantive requirement of the

Takings Clause, this Court turned it into a “pruden-

tial requirement.” San Remo Hotel, 545 U.S. at 349

(Rehnquist, C.J.); see Arrigoni Enters., 136 S. Ct. at

1411 (Thomas and Kennedy, JJ.) (“As early as 1992,

the Court began to recast the state-litigation rule”).

When this Court makes shifting judge-made law in

this way, rather than interprets statutory text, the

force of stare decisis is weak. E.g., Leegin Creative

Leather Prods., Inc. vy. PSKS, Inc., 551 U.S. 877, 899

(2007). Indeed, it is “particularly appropriate” to

“[rjevisi[t] precedent” when, as here, “the precedent

consists of a judge-made rule” intended “to improve

the operation of the courts.” Pearson vy. Callahan,

555 U.S. 223, 233 (2009).

Thus, no matter which of the Court’s changing

justifications best explains Williamson County's rule,

stare decisis provides an anemic defense for retaining

that incorrect decision.

B. “[W]hen this Court has confronted a wrongly

decided, unworkable precedent,” it has “chosen not to

compound the original error, but to overrule the

precedent.” Payne v. Tennessee, 501 U.S. 808, 842-

843 (1991) (Souter and Kennedy, JJ., concurring).

The Court should follow that course here.

18

This Court did not have the benefit of briefing on

the critical issues it decided in Williamson County,

and as a result the decision was not well or fully rea-

soned. Except for a single paragraph in the Sum-

mary of Argument section of the Solicitor General's

amicus brief, none of the twelve merits briefs in Wil-

liamson County argued for the state litigation re-

quirement. See Br. for U.S. as Amicus Curiae Sup-

porting Pet’rs at 10 (No. 84-4) (Nov. 15, 1984).

Misled by this inadequate exploration of the is-

sues, the Court in Williamson County inadvertently

set a trap for property owners by failing to consider

preclusion. The Court clearly thought that the claim

at issue could eventually ripen and be heard in a fed-

eral forum. 473 U.S. at 194 (“the taking claim is not

yet ripe”) (emphasis added); id. at 195 (“the property

owner cannot claim a violation * * * until it has used

the procedure”). But the Court did not consider the

full faith and credit statute, 28 U.S.C. § 1738, which

precludes litigation in federal court once a property

owner complies with Williamson Countys state-

litigation requirement.

Courts of appeals spotted this trap and tried to

dodge it. To avoid the unfair and constitutionally

suspect results of the exhaustion rule, these courts

declined to apply full faith and credit to state court

judgments. E.g., DLX, Inc. v. Kentucky, 381 F.3d 511,

520-521, 523-524 (6th Cir. 2004) (avoiding the “unan-

ticipated effect of Williamson County’); Santini v.

Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118,

127-130 (2d Cir. 2003) (avoiding the “ironic and un-

fair” “Catch-22” of Willuamson County); Front Royal

& Warren Cty. Indus. Park Corp. v. Town of Front

Royal, 135 F.3d 275, 283 (4th Cir. 1998).

19

In San Remo Hotel, this Court disapproved these

end-runs around the full faith and credit statute. But

in doing so, the Court unleashed the full force of Wil-

liamson County's exhaustion rule. In springing the

preclusion trap on federal takings plaintiffs, San

Remo Hotel made clear to the four concurring Justic-

es that the “real anomalies” created by Williamson

County justified reconsidering the decision. 545 U.S.

at 351 (Rehnquist, C.J.).

The problems Williamson County generates have

since become even worse. “|C]lever state-government

attorneys have rendered a nullity even the chance at

review in state court.” Arrigoni Enters., 136 S. Ct. at

1411 (Thomas and Kennedy, JJ.). State-government

attorneys have removed federal takings claims filed

in state court under 28 U.S.C. § 1441 and then “have

moved to dismiss on the ground that ‘the plaintiff did

not litigate first in the state court.” /bid. Some fed-

eral courts have blessed this practice. E.g., Koscielski

v. City of Minneapolis, 435 F.3d 898, 903 (8th Cir.

2006). At that point, a plaintiff has “no court in

which to pursue their [takings] claims.” Arrigoni En-

ters., 136 S. Ct. at 1411 (Thomas and Kennedy, JJ.).

In addition, the Court’s attempts to change the

rationale for Williamson County's state-litigation

rule “have spawned only more confusion in the lower

courts.” Arrigoni Enters., 136 S. Ct. at 1411 (Thomas

and Kennedy, JJ.). As described above, this Court

converted Williamson Countys state-litigation re-

quirement from a substantive demand of the Takings

Clause to “a ‘prudential,” “not ‘jurisdictional” con-

sideration—and prudential! requirements generally

can be “waived.” Jd. at 1411 (citing Stop the Beach

Renourishment, Inc. v. Fla. Dep't of Envtl. Protection,

560 U.S. 702, 729 (2010), and Horne v. Dep't of

20

Agric., 569 U.S. 513, 526 (2013)). Yet “several Courts

of Appeals” continue to treat Williamson County's

rule as jurisdictional. /d. at 1412 (citing examples).

And the courts that treat it as prudential “are divid-

ed over whether the rule may be waived.” /bid. (cit-

ing examples). This “quagmire” in “the lower courts

is yet another reason” to overturn Williamson Coun-

ty. Ibid.

Experience has confirmed that Williamson Coun-

ty’s state-litigation rule inflicts an unworkable and

severe deprivation of constitutional protections. It

undercuts “[t]he very purpose of § 1983” to establish

“the federal courts * * * as guardians of the people's

federal rights.” Mitchum, 407 U.S. at 242. The deci-

sion should be set aside.

C. Another reason why stare decisis does not pro-

tect Williamson County is that “[n]o serious reliance

interests are at stake.” Citizens United v. FEC, 558

U.S. 310, 365 (2010). Williamson County imposes a

“procedural rulje]” that “dojes} not govern primary

conduct and dofes] not implicate the reliance inter-

ests of private parties.” Alleyne, 570 U.S. at 119

(Sotomayor, J., concurring). It simply slams shut the

federal courthouse doors to a landowner seeking to

vindicate her constitutional rights when her land has

been taken by state or local government unconstitu-

tionally.

It also makes no sense to talk about government

reliance on a procedural rule about where to litigate

constitutional deprivations. But even if state or local

governments have relied on Williamson County, it is

precisely that type of reliance that this Court must

stamp out. State and local governments know that

under Williamson County and San Remo Hotel, they

may take private property without effective federal

21

court oversight. Those takings “have no claim on

[this Court’s] solicitude,” and changing state and lo-

cal practices by restoring teeth to the Takings Clause

is “a small price to pay for the uprooting of th{e]

weed” of Williamson County. Hubbard v. United

States, 514 U.S. 695, 717 (1995) (Scalia, J., joined by

Kennedy, J., concurring in part and concurring in

judgment).

D. Finally, “criticism” of Williamson County's

state-litigation rule “has been substantial and con-

tinuing, disapproving of its reasoning in all respects.”

Lawrence v. Texas, 539 U.S. 558, 576 (2003). In San

Remo Hotel, Chief Justice Rehnquist wrote in a four-

Justice concurrence that “the affirmative case for the

state-litigation requirement has yet to be made” and

that the “justifications” for the requirement “are sus-

pect, while its impact on takings plaintiffs is dra-

matic.” 545 U.S. at 351-352. In Arrigoni Enterprises,

Justices Thomas and Kennedy reaffirmed those con-

clusions, asked “whether there are any justifications

for the ahistorical, atextual, and anomalous state-

litigation rule,” and called for its reconsideration.

136 S. Ct. at 1412.

Beyond those observations, courts and commen-

tators have noted Williamson Countys “Alice in

Wonderland quality” and described it as creating a

“procedural morass,” a “labyrinth,” a “quagmire,” a

“Kafkaesque maze,” a “fraud or hoax on landowners,”

a “weapon of mass obstruction,” and a “Catch-22.”

Michael M. Berger & Gideon Kanner, Shell Game!

You Can't Get There from Here: Supreme Court Ripe-

ness Jurisprudence in Takings Cases at Long Last

Reaches the Self-Parody Stage, 36 Urs. LAW. 671,

702-703 (2004) (cataloging courts’ and commentators’

characterizations of Williamson County).

22

It is beyond time for this Court to overrule Wil-

liamson County's state-litigation requirement. The

Court should restore the Takings Clause to a co-

equal provision in the Bill of Rights.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

ELLEN STEEN Timotny S. BIsHoP

DANIELLE H. QuIST Counsel of Record

American Farm Bureau CHAD M. CLAMAGE

Federation Mayer Brown LLP

600 Maryland Ave., S.W., 71 South Wacker Drive

Suite 1000W Chicago, IL 60606

Washington, D.C. 20024 (312) 782-0600

(202) 406-3600 tbishop@mayerbrown.com

Scott YAGER BILL THOMAS

National Cattlemen's CATL Fund

Beef Association 9110 E. Nichols Ave.,

1275 Pennsylvania Ave., Suite 300

S.W., Suite 801 Centennial, CO 80112

Washington, D.C. 20004 (303) 694-0305

(202) 879-9102

JUNE 2018

Counsel for Amici Curiae