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

No. 17-647

in Unc

Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

v.

TOWNSHIP OF Scort; CARL S. FERRARO, I ndividuall

and in his Official Capacity as Scott Township e

Enforcement Officer

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

Amicus Curiae Brief Of Institute For Justice,

Owners Counsel of America, and

Professor Daniel R. Mandelker,

Supporting Petitioner

LL

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

11355 West Olympic Blvd.

Los Angeles, CA 90064

Telephone: (310) 312-4185

Email: mmberger@manatt.com

Counsel for Amici Curiae

Institute for Justice,

Owners Counsel of America,

Professor Daniel R. Mandelker

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .............2000cc0000000+ 1

DOVE PEP EFEEISD crescccascecesseversceveseocnsccossccsossocsseneses 3

SUMMARY OF ARGUMENT.......000.00.0..cccccccceeeeeees 4

I THE U.S. CONSTITUTION

PROVIDES A FLOOR OF

PROTECTION. STATES CANNOT

PORES ID cascecccsscecnseevesevensncscnossccecscoes 6

I STATE COURTS CANNOT SERVE

AS GATEKEEPERS, BLOCKING

THE ENTRY OF PROPERTY

OWNERS TO FEDERAL COURTS............. 8

(if THE WHOLE POINT OF 42 U.S.C. §

1983 WAS TO PROVIDE FEDERAL

COURTS FOR THE PROTECTION

OF FEDERAL RIGHTS ................:.0000000+ 13

[V STATE COURTS POSSESS NO

MAGICAL ABILITY TO APPLY

LOCAL LAW THAT ALLOWS THEM

TO EVADE FEDERAL COURT

PROTECTION OF FEDERAL

rep rcetcninnitneneateconenssnsenssncnsannenmnnntaniii 22

‘i

TABLE OF AUTHORITIES

CASES

Bank of U.S. v. Deveaux,

9 U.S. (5 Cranch) 87 (1809).....................

Bell v. Hood,

Pe ee I ics cnsccensetnctnsessoceesasanes

Boraas v. Village of Belle Terre,

476 F.2d 806 (2d Cir. 1973)..........00.0.......

Burnett v. Grattan,

ie I ce ccccscccscsscsccscnsecoesenccseee

Cipollone v. Liggett Group, Inc.,

I cccccutsccsactensecvenccsanes

City of Boerne v. Flores,

BREE WE Ge QU Pocsceceseccsscscccssencccssesscees

City of Chicago v. International

College of Surgeons,

ee DS I ccvccccesesccvessecensesesecssees

City of Newport v. Fact Concerts, Inc.,

Co

City of Renton v. Playtime Theatres,

Inc.,

I Ma TT risscrnscnnscteinnaitisasannisensonsie

Congregation Kol Ami v. Abington

Twp.,

309 F.3d 120 (3d Cir. 2002).....................

Page

ene 18

“ee

County of Allegheny v. Frank

Mashuda Co.,

De

Dodd v. Hood River County,

59 F.3d 852 (9th Cir. 1995) ..................

Dolan v. City of Tigard,

612 U.S. 374 (1902).................00eccceseeees

Felder v. Casey,

Gr Ee SE ticcninnctiicsonsonseconcences

Fields v. Sarasota-Manatee Airport

Auth

953 F.2d 1299 (11th Cir. 1992).............

First Assembly of God v. Collier

County,

20 F.3d 419 (11th Cir. 1994) ................

First English Evangelical Lutheran

Church v.County of Los Angeles,

482 U.S. 304 (1987).........0ccccceecseeceeeeeeee

Front Royal & Warren County Indus.

Park Corp. v. Town of Front Royal,

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

Golden State Transit Corp. v. City of

Los Angeles,

Gs FD i ic eececcevccscccesenccccecenees

Greenwood v. Peacock,

384 U.S. 808 (1966)...............ccccccccceeeeees

qnonasncsune 13

iv

TABLE OF AUTHORITIES

(continued)

Haywood v. Drown, 556 U.S. 729, 737

(2009),

selene 14, 15

Heck v. Humphrey,

I os csiseenebtmntntoinionennonns 13

Jefferson v. City of Tarrant,

i icelanennatiall 13

Kalina v. Fletcher,

I ein 15

Kottschade v. City of Rochester,

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

Lake Country Estates v. Tahoe Reg.

Plan. Agency,

ET one ae 15

Larkin v. Grendel's Den,

a emsiieiaisinbeees 19

Lynch v. Household Fin. Corp.,

a essnisernbsennetinnans 14

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ..............c0cc0ccceeeeeeees 7

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) .......................... 11

Martinez v. California,

RR RE ET a A 15

TABLE OF AUTHORITIES

(continued)

Maryland v. Louisiana,

EE ee ae eee 7

McNeese v Board of Education,

a ssuutnesonoenons 10

Miller v. California,

nr crtcinl nenecicebienentiadids 17

Mitchum v. Foster,

ee 5,9, 10, 14

Monell v. Dep't of Soc. Servs.,

Er a 14

Monroe v. Pape,

I i 14

Nollan v. California Coastal Comman.,

en usennunenenece 16

Owen v. City of Independence,

A 14

Patsy v. Board of Regents of Fla.,

Re Be i ccicecincsectcccsosscvcosecesoes 9, 10, 14

Perez v. Campbell,

a ceiecliitiniih 15

Robertson v. Wegmann,

a eietuniboeeton 14

Santini v. Conn. Hazardous Waste

Mgmt. Serv.,

342 F.3d 118,130 (2d Cir. 2003) ......0..000000000000.. 22

vi

TABLE OF AUTHORITIES

(continued)

Page

Stringer v. United States,

471 F.2d 381 (th Cir. 1973) ........cccrecceccrereereere 12

Town of Greece v. Galloway,

4 EEE 19

United States v. Herrero,

416 F.2d 945 (9th Cir. 1969) ..................0..00000 12

Village of Belle Terre v. Boraas,

ee ee ttseaiclinteddatietineinssicsndictadesanediions 18

West Virginia State Board of Educ. v.

Barnette,

EAS 6

Williamson County Reg. Plan.

Comma. v. Hamilton Bank,

ee ee aitictiscictctnnsncteccisiinabens passim

Young v. American Mini Theatres,

ae es Ce iteteasdtineniteirerenenictocrercinntctiatn 17

STATUTES

SOC 0 oe ee 20

ee i brecetoccseregcssdenczecesesstapucesinciaiaal passim

i etisninsscccsstininniinatssiniuigumiiintammiaaa 12

es ee cicinicnccistnicicsitessiutibitinaednisenimmsaanal 12

i ictreccceccnccvitcnintenictitabsintnianiiatiniia 12

ee ivcicicesnnesensesssssestensieniinnininatnaan 12

GD TI F Gi evsccsecssecssavsecisersinciocsanincenansiiniiaia 12

TABLE OF AUTHORITIES

(continued)

OTHER AUTHORITIES

Amar, Akhil Reed, Philadelphia

Revisited: Amending the

Constitution Outside Article V, 55

U. Chi. L. Rev. 1043, 1100 (1988) ...................... 7

Delaney, John & Duane Desiderio,

Who Will Clean Up The “Ripeness

Mess”? A Call For Reform So

Takings Plaintiffs Can Enter The

Federal Courthouse, 31 Urb. Law.

EE 16

Ely, James W., The Guardian Of

Kanner, Gideon, Just How Just is Just

Compensation? 48 Notre Dame L.

EEE EE 7

Mandelker, Daniel R., & Michael M.

Berger, A Plea to Allow the Federal

Courts to Clarify the Law of

Regulatory Takings, 42 Land Use

Law & Zoning Digest, No. 1, p. 3

EEE 3

Mandelker, Daniel R., Land Use Law,

§ 2.24 at 2-32 (6th ed. 2003)............................. 16

TABLE OF AUTHORITIES

(continued)

Page

Stein, Gregory M., Regulatory Takings

and Ripeness in the Federal Courts,

Po SE 16

OE. Comme, GiB. VE, CB. Bcccccerccssccccccccccsesescccsecsseseasess 7

INTEREST OF AMICI CURIAE

The undersigned amici curiae file this brief in

support of the Petitioner,' seeking reversal of the

“ripeness” requirement in Williamson County

Regional Planning Agency v. Hamilton Bank, 473

U.S. 172 (1985) that compels property owners

seeking compensation for regulatory takings to sue

(and lose) in state court before being able to seek

relief in federal court. The cruel reality is that such

relief in federal court is never available under this

formula.

The Institute for Justice (lJ) is a nonprofit,

public interest law center committed to defending

the essential foundations of a free society through

securing greater protection for individual liberty

and restoring constitutional limits on the power of

government. Central to the mission of IJ is

strengthening the ability of individuals to control

and transfer property and demonstrating that

property rights are inextricably connected to other

civil rights.

IJ is also committed to the idea that the

protection of individual rights requires an engaged

federal judiciary that stands ready to defend those

' Counsel for the amici curiae authored this brief alone and

no other person or entity other than the amici curiae, its

members or counsel have made a monetary contribution to

the preparation or submission of this brief Both the

Petitioner and the Respondents consented to the filing of this

timely notified counsel for the parties that we intended to file

this brief.

rights when they are infringed. For too long,

however, the doors of federal courts have been all

but closed to property owners seeking to vindicate

their Fifth Amendment rights. While, in every

other area that IJ litigates, violation of a federal

constitutional right entitles (and should entitle) a

citizen to a federal constitutional remedy, property

owners are routinely denied access to a federal

forum for regulatory takings.

Owners Counsel of America (OCA) is a non-

profit organization sustained by its members. OCA

brings unique experience as a network of the most

experienced eminent domain and property rights

attorneys from across the country seeking to

preserve, defend, and advance the rights of private

property owners. OCA agrees that the freedom to

own and use private property is “the guardian of

every other right” and the basis of a free society.

See James W. Ely, The Guardian Of Every Other

Right: A Constitutional History Of Property Rights (2d

ed. 1998)). OCA leverages its members’ combined

knowledge and experience in the defense of private

property ownership in an effort to make the right to

own private property available and effective to all

property owners nationwide. OCA member

attorneys have litigated landmark cases in almost

all fifty states and many have been counsel of

record for a party or amicus in eminent domain and

takings cases that this Court has considered in the

past forty years. OCA members author treatises,

books, and articles on takings including chapters in

the seminal treatise Nichols On Eminent Domain.

Many of them serve as adjunct faculty at law

schools in all parts of the country, teaching courses

in takings, land use, zoning, and property law in

general.

Professor Daniel R. Mandelker is the

Howard A. Stamper Professor of Law at

Washington University in St. Louis. One of the

country’s leading scholars in land use law, he is the

co-author of Planning And Control Of Land

Development, now in its ninth edition, Land Use

Law, Federal Land Use Law, and Nepa Law And

Litigation, to name only a few of his current works.

An active scholar in the field, Prof. Mandelker has

studied and lectured about all aspects of land law

for nearly 70 years, teaching courses in

constitutional law, land use law, state and local

government law and environmental law. He has

long been a critic of the Williamson County

ripeness rule, having long ago co-authored an

article entitled Daniel R. Mandelker & Michael M.

Berger, A Plea to Allow the Federal Courts to

Clarify the Law of Regulatory Takings, 42 Land

Use Law & Zoning Digest, No. 1, p. 3 Wan. 1990).

Having written that article nearly 30 years ago,

Prof. Mandelker has remained interested in

eradicating what he sees as a serious error in

constitutional interpretation that keeps federal

constitutional cases from being litigated on their

merits in federal courts.

INTRODUCTION

This brief is filed on behalf of a broad amicus

coalition to demonstrate the widespread agreement

of practitioners, public interest organizations, and

academics that experience with the formula

established in Williamson County in 1985 for

determining ripeness in regulatory taking cases

has been an abject failure at all levels. Thus, the

amici joined in this brief consist of a non-profit

public interest organization dedicated to the

advancement of the rights of individuals — the

Institute for Justice; a national organization of

practicing lawyers who represent property owners

in constitutional (i.e., takings and eminent domain)

litigation — Owners Counsel of America; and one of

the Nation's leading land use law scholars who has

studied, taught, and written numerous books and

articles about all phases of land use law for nearly

70 years — Professor Daniel R. Mandelker of

Washington University in St. Louis. They are

filing this brief together to help the Court

understand the breadth and depth of the practical

and jurisprudential issues raised by Williamson

County Reg. Plan. Agency v. Hamilton Bank, 473

U.S. 172 (1985) as seen from their varying

perspectives and the reasons why allowing state

courts to act as gatekeepers barring entry to federal

courts on this fundamental federal constitutional

issue is as legally wrong as it is pragmatically

unnecessary.

SUMMARY OF ARGUMENT

1. Both Williamson County and this case were

brought under the Federal Civil Rights Act,

42 U.S.C. § 1983. Such cases are probably the

worst cases in which to inject a state court

litigation requirement. As this Court has held, the

point of section 1983 was to “interpose the federal

courts between the States and the people, as

guardians of the people’s federal rights.” Mitchum

v. Foster, 407 U.S. 225, 243 (1972) (emphasis

added). There is no room in that formulation for a

rule that interposes the state courts as a bar to

federal court access.

2. Deferring to state courts is tantamount to

granting states a veto over access to federal courts,

making them de facto federal court gatekeepers.

This is contrary to settled precepts. The Court has

repeatedly concluded that “Congress surely did not

intend to assign to state courts and legislatures a

conclusive role in the formative function of defining

and characterizing the essential elements of a

federal cause of action.” Felder v. Casey, 487 U.S.

131, 144 (1988).

3. It is time for the Court to reconsider — and

reject — Williamson County's state court litigation

requirement, which demands _ state court

confirmation that there is no state remedy for a

governmental taking of property before allowing a

Fifth Amendment claim to be held “ripe” for federal

court litigation. The premise of that rule goes

beyond both the language and meaning of the Fifth

Amendment. A municipality's taking of private

property without just compensation is complete

when property is taken and compensation is not

paid by the government agency taking the action.

It does not require any judicial determination to

complete, or ripen, the taking. And, if it did, there

is no reason why such a determination must take

place in state court.

ARGUMENT

The core issue in this case is one that has

caused confusion and injustice since this Court's

decision in Williamson County. The issue is

whether property owners claiming that government

action has taken their property without just

compensation in violation of the Fifth Amendment

to the U.S. Constitution have the right — like other

constitutional claimants — to have their cases

decided on the merits in federal courts.

As the Court held, for example, in Bell v.

Hood, 327 U.S. 678, 681-82 (1946), a complaint

seeking compensation for violation of the Fourth

and Fifth Amendments belongs in federal court if

the plaintiff so chooses. If, as the Court plainly held

in Dolan v. City of Tigard, 512 U.S. 374, 392 (1992),

property rights are not to be some “poor relation”

among the guarantees in the Bill of Rights, then

the anomalous refusal to permit federal litigation of

regulatory takings claims needs to end.

THE U.S. CONSTITUTION PROVIDES A

FLOOR OF PROTECTION. STATES CANNOT

PROVIDE LESS

The point of our Constitution in general — and

its Bill of Rights, in particular — is to provide a

baseline of minimal protection to all the rights of

all citizens, with individual states having the

discretion to provide more, but never less protection.

West Virginia State Board of Educ. v. Barnette, 319

U.S. 624, 637-8 (1943). If there is a role for state

courts and state laws, this is it: providing more

protection than the U.S. Constitution mandates.

As Professor Akhil Amar summarized it, “the

federal constitution stands as a secure political

safety net—a floor below which state law may not

fall.”* Any conflicting state law is simply “without

effect.” In other words, as the Court classically

held in Marbury v. Madison,* it is the Court’s job to

see that other levels of government remain true to

the Constitution. That would include protecting

the rights of property owners from the depredations

of state and local government. Here, that is done

by enforcing the will of Congress to provide

protection against state agencies and officials,

regardless of what state law might otherwise say.

U.S. Const. art. VI, cl. 2.

Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1100

(1988) (emphasis added). See also Gideon Kanner, Just How

Just is Just Compensation? 48 Notre Dame L. Rev. 786, 784

(1973) C{I}t seems safe to say that the Constitution—or at

least the Bil! of Righta—was the product of the framers’ fear

of an overreaching government, and their desire to protect

individual citizens from governmental excesses.... [T]he

purpose of the .. . Bill of Rights [] was to protect the people

from the government, not vice versa.”)

* Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

* §60U.S. Cl Cranch) 137, 177 (1803).

STATE COURTS CANNOT SERVE AS

GATEKEEPERS, BLOCKING THE ENTRY OF

PROPERTY OWNERS TO FEDERAL COURTS

Deferring to state courts is tantamount to

granting states a veto over access to federal court,

making them de facto federal court gatekeepers.

The Court has repeatedly concluded that “Congress

surely did not intend to assign to state courts and

legislatures a conclusive role in the formative

function of defining and characterizing the

essential elements of a federal cause of action.”

Felder v. Casey, 487 U.S. 131, 144 (1988).

Indeed, to relegate Section 1983 suits to control

by state courts (as Williamson County does with

respect to regulatory takings) is to ignore the entire

history of the statute. As the Court summarized in

Felder, 487 U.S. at 147:

Congress enacted § 1983 in response

to widespread deprivations of civil

rights in the Southern States and the

inability or unwillingness of

authorities in those States to protect

those rights or punish wrongdoers.

How ironic that property owners in regulatory

taking cases find themselves shunted right back to

the very courts that Congress intended to shield

them from.

“(T]he central purpose of the Reconstruction-Era

laws is to provide compensatory relief to those

deprived of their federal rights by state actors|,|”

Felder, 487 U.S. at 141, by “interpos/ing] the federal

courts between the States and the people, as

guardians of the people's federal _rightsj.|”

Mitchum, 407 U.S. at 242 (emphasis added).

To effectuate those goals, Congress intended to

“throw open the doors of the United States courts” to

those who had been deprived of constitutional

rights “and to provide these individuals immediate

access to the federal courts .. .” Patsy v. Board of

Regents of Fla., 457 U.S. 496, 504 (1982) (emphasis

added).

Far from being “thrown open,” the federal

courthouse doors have been slammed shut to

regulatory taking victims since Williamson County

was decided more than 30 years ago.

Put another way, section 1983 is one of the most

consequential laws passed by Congress. It was

enacted to enforce the protections intended by the

Fourteenth Amendment.® Its goal was a significant

restructuring of the relationship between the

citizens of the states and the local and state

officials in those states, with the courts of the

United States acting as guarantors of federal

rights. See Mitchum, 407 U.S. at 238-39. In other

® Section 5 of that Constitutional provision granted

Congress “the power to enforce, by appropriate legislation, the

provisions of this article.”

10

words, the “dominant characteristic” of such actions

is that “they belong in court.” Burnett v. Grattan,

468 U.S.42, 50 (1984). And, by that, the Court

plainly intended to focus on “belong{ing]” in federal

court, because it emphasized that the judicial

remedy exists “independent of any other legal or

administrative relief that may be available as a

matter or federal or state law. They are judicially

enforceable in the first instance.” /bid. (emphasis

added).

In the Court’s stirring words:

“We yet like to believe that wherever

the Federal courts sit, human rights

under the Federal Constitution are

always a _ proper’ subject for

adjudication, and that we have not the

right to decline the exercise of that

jurisdiction simply because the rights

asserted may be adjudicated in some

other forum.”

McNeese v Board of Education, 373 U.S. 668, 674,

n.6 (1963) (emphases added) (quoting with

approval Stapleton v. Mitchell, 60 F. Supp. 51, 55

(D. Kan. 1945), appeal dismissed pursuant to

stipulation 326 U.S. 690).

To those who have found their property rights

regulated into near or total valuelessness since

Williamson County, the Court’s words ring hollow.

They need to have life breathed back into them by

overruling Williamson County and once again

“throw[ing] open the doors of the United States

1]

courts” for “immediate access” as envisioned in

Patsy, 467 U.S. at 504.)

This theory of protecting federal rights in

federal courts dates to the founding of the Republic

(i.e., it predates adoption of either the Fourteenth

Amendment or Section 1983), and makes clear why

Williamson County is historically and doctrinally

mistaken. As James Madison bluntly put it, “.. . a

review of the constitution of the courts in the many

states will satisfy us that they cannot be trusted

with the execution of federal laws.” 1 Ann. Cong.

813, quoted in Greenwood v. Peacock, 384 U.S. 808,

836 (1966) (Douglas, J., dissenting); see also Martin

v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-348

(1816); Bank of U.S. v. Deveaux, 9 U.S. (5 Cranch)

87 (1809).

Williamson Countys state court litigation

mandate inverted this basic building block of

42 U.S.C. § 1983: it interposed state courts to

shield municipalities from federal accountability.

Having watched lower courts and local

governments experiment with that wrong-headed

view of the law, it is time for this Court to set

things right.

Indeed, any requirement to file an unsuccessful

suit to establish that there is no remedy under

state law would contravene not only Section 1983,

but subsequent Congressional action as well. Since

adopting Section 1983, Congress has clearly

reinforced the need for strongly enforcing that

bedrock civil rights law. Any required suit for

12

payment would be contrary to Congressional policy

established in 1970 in the Uniform Relocation

Assistance and Real Property Acquisition Policies

Act, which provides that the days when

government could simply grab property first and

then say “sue me” to the aggrieved owner are over.

Cf. Stringer v. United States, 471 F.2d 381, 384 (9th

Cir. 1973); United States v. Herrero, 416 F.2d 945,

947 (9th Cir. 1969). That Act makes it illegal for

government agencies to make it necessary for

property owners to sue for their just compensation.

Rather, the duty is the government's to acquire

whatever property interests are needed for the

public good, either by negotiation (42 U.S.C. §

4651(1)) or, failing that, condemnation (42 U.S.C. §

4651(8)).®

Moreover, mandating suit in state court adds to

the Fifth Amendment a remedial requirement

contrary to its plain words. The just compensation

language has repeatedly been read by this Court as

a limitation on government's power (i.e., that the

power of eminent domain is subject to two

preconditions — public use and just compensation).

It is not an invitation for an injured property owner

6 The Act provides succinctly: “No Federal agency head

shall intentionally make it necessary for an owner to institute

legal proceedings to prove the fact of the taking of his real

property.” 42 U.S.C. § 4651(8). To make this a truly

“uniform” law, as ite title advertised, the policies in section

4651 were made applicable to the states — by directing that

federal funds could not be spent on state projects unless the

state agreed to comply with these policies. 42 U.S.C. § 4655.

13

to sue for payment, as the Relocation Act now

makes clear. That is why the Court has held the

Just Compensation Clause to be self-executing.

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 315 (1987).

In any event, if suit is required to demonstrate

the actuality of a Fifth Amendment violation, there

is nothing in the Fifth Amendment directing that

the only place to seek that determination is in state

court. As state and federal courts have concurrent

jurisdiction to decide constitutional claims, the

choice of forum, as in other cases, should belong in

the first instance to the plaintiff. Bell, 327 U.S. at

681 (‘the party who brings a suit is master to

decide what law he will rely upon”).

THE WHOLE POINT OF 42 U.S.C. § 1983 WAS

TO PROVIDE FEDERAL COURTS FOR THE

PROTECTION OF FEDERAL RIGHTS

Section 1983 has been before the Court on many

occasions and has been oft-explained. As the Court

has repeatedly stressed, a Section 1983 case is a

“species of tort liability” (Heck v. Humphrey, 512

U.S. 477, 483 (1994)), specifically, a statutorily

created “constitutional tort” (Jefferson v. City of

Tarrant, 522 U.S. 75, 79 (1997)) that sweeps within

its ambit all manner of governmental actions that

defy Bill of Rights protections. Section 1983 was

intended by Congress to expose municipalities and

local officials to “a new form of liability.” City of

14

Newport v. Fact Concerts, Inc., 453 U.S. 247, 259

(1981). Properly so.

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

the people from unconstitutional action under color

of state law, whether that action be executive,

legislative, or judicial.” Patsy, 457 U.S. at 503

(emphases added; quotation marks omitted). This

was not the sole purpose, however. Another

important purpose was “to serve as a deterrent

against future constitutional deprivations.” Owen

v. City of Independence, 445 U.S. 622, 651 (1980).

This form of liability “runs only against a specific

class of defendants: government bodies and their

officials.” Felder, 487 U.S. at 141. In other words,

it was Congress’ judgment “that all persons who

violate federal rights while acting under color of

state law shall be held liable for damages”

(Haywood v. Drown, 556 U.S. 729, 737 (2009)) and

that all “persons injured by deprivation of federal

rights and . . . abuses of power by those acting

under color of state law” would be compensated.

Robertson v. Wegmann, 436 U.S. 584, 590-91

(1978).

Section 1983 was intended to provide “a

uniquely federal remedy” (Mitchum v. Foster, 407

U.S. 225, 239 (1972)) with “broad and sweeping

protection” (Lynch v. Household Fin. Corp., 405

U.S. 538, 543 (1972) (quotation marks omitted))

“read against the background of tort liability that

makes a man responsible for the natural

consequences of his actions” (Monroe v. Pape, 365

U.S. 167, 187 (1961), overruled in part by Monell v.

Dep't of Soc. Servs., 436 U.S. 658 (1978)) so that

individuals in a wide variety of factual situations

15

are able to obtain a federal remedy when their

federally protected rights are abridged. See

Burnett v. Grattan, 468 U.S. 42, 50, 55 (1984).

While read against the general common law tort

background, “[t}he coverage of [§ 1983] is . . .

broader “ (Kalina v. Fletcher, 522 U.S. 118 (1997)),

and must be broadly and liberally construed to

achieve its goals. Golden State Transit Corp. v.

City of Los Angeles, 493 U.S. 103, 105 (1989); Lake

Country Estates v. Tahoe Reg. Plan. Agency, 440

U.S. 391, 399-400 (1979).

In other words, the purpose of Congress “is the

ultimate touchstone” of any preemption analysis.

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516

(1992) (quotation marks omitted). Anything

“incompatible with the compensatory goals of the

federal legislation . . .” cannot stand. Felder, 487

US. at 143. The question, in other words, is

whether state action “stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.” Perez v. Campbell, 402

U.S. 637, 649 (1971). Allowing states to erect any

obstacles to federal court access violates this

precept.

A state law, regardless of its intent, cannot

“thwart the congressional remedy” or subvert

Congress’ clear goals in following its mandate to

enforce the rights created and protected by the 14th

Amendment. Felder, 487 U.S. at 139 (citing

Martinez v. California, 444 U.S. 277, 284 (1980)).

The courts have not hesitated to strike down state

policies that do so. See Haywood, 556 U.S. at 739

(“A jurisdictional rule cannot be used as a device to

16

undermine federal law, no matter how evenhanded

it may appear”); Felder, 487 U.S. at 153 (striking

down state notice of claim statute). That is why the

Court warned expressly that the rights of property

owners need to be protected by the judiciary

against the “cleverness and imagination” of state

government word games. WNollan v. California

Coastal Commn., 483 U.S. 825, 841 (1987).

STATE COURTS fF : NO MAGICAL

ABILITY TO APPLY LOCAL LAW THAT

ALLOWS THEM TO EVADE FEDERAL

COURT PROTECTION OF FEDERAL RIGHTS

Regulatory takings are the only constitutional

rights subjected to a Williamson County-like

ripening. That property owners have been singled

out is clear.? As one commentator concluded, “[t]he

state compensation portion of [Williamson County]

’ See, e.g., Damiel R. Mandelker, Land Use Law, § 2.24 at 2-

32 (5th ed. 2003) (The Supreme Court has adopted a special

set of ripeness rules to determine whether federal courts can

hear land use cases.”); John Delaney & Duane Desiderio, Who

Will Clean Up The “Ripeness Mess”? A Call For Reform So

Takings Plaintiffs Can Enter The Federal Courthouse, 31 Urb.

Law. 195, 196 (1999) (‘the ripeness and abstention doctrines

have umiquely denied property owners, unlike the bearers of

other constitutional rights, access to the federal courts on

their federal claims’).

17

finds no parallel in the ripeness cases from other

areas of the law.”®

No parallel, indeed.

There are two possible bases on which such

discrimination might rest. First, as property law is

generally based on the customs and practices of

localities, it might be thought that the courts that

are closest to the action would be more familiar

with and thus better able to apply the law. Second,

some misguided aspect of federalism might create

the belief that each state should be responsible for

its own law. Neither holds water.

First, and somewhat paradoxically in light of

this theory, federal court protection is routinely

provided in some land use cases — but only those

involving aspects of the Bill of Rights other than

the 5th Amendment's Just Compensation Clause.

Federal court Ist Amendment cases abound, for

example, in which the validity of local land use

ordinances regulating or zoning for (or against)

sexually explicit work has been challenged.’ There

is no requirement of first presenting the issues to

state courts, even though they implicate the same

zoning policies and land use ordinances as do other

land use cases — and, indeed, as does any

regulatory taking case. Cases are thus decided in

® Gregory M. Stein, Regulatory Takings and Ripeness in the

Federal Courts, 48 Vand. L. Rev. 1, 23 (1995).

* E.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986), Young v. American Mini Theatres, 427 U.S. 50 (1976).

18

federal court, based on local “community

standards,” without initial state court suits." But

state court judges do not have a monopoly on

measuring the works against those local standards.

Nor have federal judges shown any hesitation to

embroil themselves in local issues invoking the

kind of neighborhood and family values typically

involved in regulatory taking cases. In a celebrated

zoning case, this Court concluded that:

[a] quiet place where yards are wide,

people are few, and motor vehicles

restricted are legitimate guidelines in

a land use project addressed to family

needs. ... It is ample to lay out zones

where family values, youth values,

and the blessings of quiet seclusion

and clean air make the area a

sanctuary for people.”

Village of Belle Terre v. Boraas, 416 U.S. 1, 9

(1974).

The Court of Appeals in that case had “startjed]

by examiniing/” the zoning ordinance with

reference to “the interest of the local community in

the protection and maintenance of the prevailing

‘0 Sumilarly, whether an artistic or literary work is obscene

under the lst Amendment is determined by “contemporary

community standards” and “applicable state law.” Miller v.

California, 413 U.S. 15, 24 (1973).

19

traditional family pattern... .” Boraas v. Village

of Belle Terre, 476 F.2d 806, 815 (2d Cir. 1973).

Even after Williamson County, federal courts

have relied on Belle Terre as authority for

measuring zoning laws against the blessings of

wide yards and peaceful neighborhoods, with no

concern that they should not be adjudicating issues

of state law. See, e.g., Congregation Kol Ami v.

Abington Twp., 309 F.3d 120, 135 (3d Cir. 2002).

If it is acceptable for federal courts to examine such

intensely local and personal issues in the context of

zoning validity and proposed development, it

cannot become unacceptable when a landowner

wants to challenge regulatory restrictions on

constitutional grounds.

First Amendment cases dealing with the land

use aspects of establishment of religion are also

litigated in federal courts in the first instance, even

though they all involve intensely local issues. '!

As this Court itself has noted, federal courts

routinely review issues involving exercise of a

state's sovereign prerogative, including the power

to regulate fishing in its waters, its power to

regulate intrastate trucking rates, a city's power to

‘| E.g., Town of Greece v. Galloway, 134 S. Ct. 1811 (2014);

City of Boerne v. Flores, 521 U.S. 507 (1997); Larkin v.

Grendel's Den, 459 U.S. 116 (1982); First Assembly of God v.

Collier County, 20 F.3d 419 (11th Cir. 1994).

20

issue bonds without a referendum, and a host of

others. !2

Many of the cited cases deal with parallel

features of the Bill of Rights, notably the Due

Process Clause, routinely protected in federal court

through 42 U.S.C. § 1983—even against

unconstitutional land use regulations. All sorts of

local governmental issues are litigated in federal

courts every day. And they involve all aspects of

the Bill of Rights—except the 5th Amendment's

Just Compensation Clause.

Equally important, this Court itself has already

recognized that federal regulatory taking cases can

be tried in federal court without first being tried in

state court. In City of Chicago v. International

College of Surgeons, 522 U.S. 156 (1997), the

property owner filed suit in state court, as

instructed by Williamson County. But the city was

not satisfied with that venue and, invoking 28

U.S.C. § 1441(a), removed the case to federal court

before any substantive proceedings could be had in

state court under state law and the Court upheld

removal. 522 U.S. at 174. Thus, the state law

issues remained unresolved at either the time the

matter was removed or this Court affirmed the

removal. In other words, the Court saw nothing

untoward in trying the case in federal court, with

'2 County of Allegheny v. Frank Mashuda Co., 360 U.S. 185,

191-92 (1959) (collecting cases) (retaining federal court

jurisdiction over a state eminent domain case).

21

no proceedings in state court under state law to

guide the way.!®

There is nothing so special about regulatory

taking cases as to insulate them from federal court

review.

Second, there is nothing so endemic to the

concept of federalism to stand in the way of

protecting basic aspects of the Bill of Rights.

Indeed, in Felder, the Court was told that it should

rule in the government’s favor out of some respect

for “equitable federalism,” i.e., a belief that states

needed to retain some measure of control over their

own litigation. Felder rejected the idea, concluding

strongly that “it has no place under our Supremacy

Clause analysis.” 487 U.S. at 150.

In other words, Section 1983, being a federal

statute of uncommon strength, adopted by

Congress for the specific purpose of restricting the

ability of state and local government officials to

impose on the rights of ordinary citizens, had to

prevail. 487 U.S. at 153.

‘8 The Eighth Circuit later tried to reconcile Williamson

County and City of Chicago, but found the outcome

“anomalous.” Kottschade v. City of Rochester, 319 F.3d 1038,

1041 (8th Cir. 2002). The Eighth Circuit concluded that how

to resolve the resulting conundrum “is for the Supreme Court

to say, not us.” Ibid. Presumably, the Court understood that

need when it granted certiorari here.

22

Williamson. County's ripeness rule that has, for

more than three decades, diverted legitimate

constitutional claims away from the federal court

system has no basis in history or precedent or

constitutional exegesis.

CONCLUSION

Precedents are not cast away lightly.

Williamson County, however, has not stood the test

of time. For more than three decades, the judiciary

has been hamstrung in its ability to properly

adjudicate federal takings claims because of

Williamson County. Lower federal courts have

expressed frustration at their inability to

adjudicate federal takings claims after Williamson

County, with descriptions running the gamut from

“odd” and “unfortunate” (Fields v. Sarasota-

Manatee Airport Auth., 953 F.2d 1299, 1306 n.5,

1307 n.8 (11th Cir. 1992)) to “draconian” (Dodd v.

Hood River County, 59 F.3d 852, 861 (9th Cir.

1995)), with one concluding that the situation

presents “a Catch-22 for takings plaintiffs” (Santini

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

118,127 (2d Cir. 2003)), and another describing the

plaintiff as having “already passed through

procedural purgatory and wended its way to

procedural hell.” Front Royal & Warren County

Indus. Park Corp. v. Town of Front Royal, 135 F.3d

275, 283-84 (4th Cir. 1998).

It is time for the Court to eliminate the

“ripeness” component of Williamson County that

mandates seeking compensation for a regulatory

23

taking in state court under state law before seeking

federal constitutional relief in federal court.

Respectfully Submitted,

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

11355 West Olympic Blvd.

Los Angeles, CA 90064

(310) 312-4000

mmberger@manatt.com

Counsel for Amicus Curiae

Institute for Justice

Owners Counsel of America

Professor Daniel R. Mandelker