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 Anited States

ROSE MARY KNICK,

Petitioner,

v.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNTTED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

ON THE MERITS

Counsel for Amicus Curiae

John Pagliaro

Counsel of Record

Martin J. Newhouse, President

New England Legal Foundation

150 Lincoln Street

Boston, Massachusetts 02111

Tel.: (617) 695-3660

June 5, 2018 johnpagliaro@nelfonline.org

TABLE OF CONTENTS

TABLE OF AUTHORITTEG....................ccccccseeeeeseseeeees ii

INTEREST OF AMICUS CURIAE ....0000.............00000 1

SUMMARY OF THE ARGUMENT............................ 2

ie eiiensiniciienntnntentntnniatumnssnsittaepiniapnimiame 4

I The Williamson County Court's

Reliance On Monsanto's

Nonjudicial “Process” Does Not

Support A Role For Courts In

Ripening Takings Claims....................... 4

I The Williamson County Court

Failed To Adhere To Its Own

Decision-Making That Ripens A

Claim And Remedial Court

Proceedings That Resolve A

GaP i ccsiceenscsercnnntrstcenscenmnmniiatnmentgnnenemneses )

Ill. Williamson County’s Reasoning

Stems From A Confusion That

Has Developed In Takings Law .......... 15

ae ctscsiiiticiinsiaicsicinesisniatastasinbiininaiiinstulasisiiadaiitea 23

TABLE OF AUTHORITIES

CASES

Arrigoni Enterprises, LLC v. Town of Durham,

136 S. Ct. 1409 (2016) ........................... 17 n.10

Albert Hanson Lumber Co. v. United States,

5 17 n.10, 21

Barron v. Mayor of Baltimore,

32 U.S. (7 Pet.) 243 (1833) .................... 17 n.10

Bauman v. Ross,

| eee 23 n.12

Brown v. Legal Foundation of Washington,

| ES 171.10

Cherokee Nation v. Southern Kan. Ry. Co.,

135 U.S. 641 (1890) ...................... 19, 21, 22, 23

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

166 U.S. 226 (1897) ................... 16 n.9, 17 0.10

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999)..................cccc000 13, 18

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

NE 17

BR Cs Ge GED ccccceccvcscecscsssscssssensees 21 n.11

Murr v. Wisconsin,

kG, 17 n.10

Parratt v. Taylor,

ELLE 162.8

Penn Central Transp. Co. v. City of New York,

RESET 16 2.9

Ruckelshaus v. Monsanto Co.,

gL eS 4-7

San Remo Hotel, LP v. City and County of San

Francisco, 545 U.S. 323 (2005) ................. 14-15

Seaboard Air Line Ry. Co. v. United States,

Se I i cccinicicninicinnetnieemntansiins 17 n.10

Searl v. School Dist. No. 2,

ET 17 n.10

Sweet v. Rechel,

EE 20, 21, 22

United States v. General Motors Corp.,

323 U.S. 373 (1946) ..............0000000000000200- 17 n.10

United States v. Jones,

| LEAL 171.10

United States v. Lynah,

188 U.S. 445 (1903) ................... ssesucsuiteti 17 0.10

Williamson Cty. Reg’l Planning Comm'n

v. Hamilton Bank,

ey I is ce stinictacncetuacsinmsnatie passim

STATUTES

ae OD certrmransrnessnersseneensersnsssnemmnenennes

Fe Ee Oe Se rtetrnnsnntennssestemecnnessnsccnnmnesnsenetes

OTHER AUTHORITIES

Berger, Michael M., Anarchy Reigns Supreme,

29 Wash. U. J. Urb. & Contemp. L. 39

Berger, Michael M. & Gideon Kanner, Shell

Game! You Can't Get There from Here:

Supreme Court Ripeness Jurisprudence

in Takings Cases at Long Last Reaches

the Self-parody Stage, 36 Urb. Law. 671

Nineteenth—Century State Just

Iv

Breemer, J. David, Overcoming Williamson

County’s Troubling State Procedures

Rule: How the England Reservation,

Issue Preclusion Exceptions, and the

Inadequacy Exception Open the Federal

Courthouse Door to Ripe Takings

Claims, 18 J. Land Use & Envtl. L. 209

GR SOP cenensszcssenccecscsacessecenecosssdnsconsscsceccsese 16

brief Amici Curiae for Elizabeth J. Neumont

et al., 2005 WL 176429, San Remo

Hotel LP v. City and County of San

Francisco, 545 U.S. 323 (2005) (No. 04-

2 Lewis, John, A Treatise on the Eminent

Domain in the United States (3rd ed.

Suri iiisisstinitencstettinnsnnstiiadiiiuattinataincaimmulineeinecssensenees 21

Transcript of Oral Argument, Williamson Cty.

Reg'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985) (No. 84-4) ....... 4n.2

Transcript of Oral Argument, San Remo Hotel

LP v. City and County of San Francisco,

545 U.S. 323 (2005) (Mo. 04-340) .................. 15

INTEREST OF AMICUS CURIAE!

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm

incorporated in Massachusetts in 1977 and

headquartered in Boston. Its membership consists

of corporations, law firms, individuals, and others

who believe in NELF’s mission of promoting

balanced economic growth in New England and the

nation, protecting the free-enterprise system, and

defending individual economic rights and the rights

of private property. In fulfillment of its mission,

NELF has filed numerous amicus briefs in this

Court in a great variety of cases.

NELF believes that the rights of private property

are not second-class constitutional rights. The

immense expansion of regulatory law that has taken

place at all levels of government has adversely

affected the exercise of those rights, however. Since

its founding, NELF has staunchly supported

property owners in their efforts to vindicate their

Fifth Amendment rights against these and other

kinds of encroachment by government.

NELF appears as an amicus in the present case

because it believes that a grave injustice was done to

those rights in 1985, when this Court announced the

' Pursuant to Supreme Court Rule 37.6, NELF states that no

party or counsel for a party authored this brief in whole or in

part and that no person or entity, other than NELF, made any

monetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.3(a), NELF states that

both Petitioner and Respondents have filed written consents to

the filing of amicus briefs in support of either or neither party.

The consents were docketed on April 30 and May 2,

respectively.

so-called state litigation ripening requirement for

federal takings claims, in its decision in Williamson

County Regional Planning Commission v. Hamilton

Bank, 473 U.S. 172 (1985). For the reasons set out

here by NELF and elsewhere by the Petitioner,

NELF believes that the decision to recognize this

requirement is ill reasoned and poorly supported by

precedent. It rests on a series of confusions, perhaps

the most fundamental of which is the confusion of

just compensation with a money damages remedy

obtainable in court.

The Williamson County ripening requirement has

caused turmoil among property owners and

consternation among lower courts and legal

commentators, as this Court has been made aware

by a host of petitions filed since 1985 earnestly

asking it to reconsider the requirement. NELF

welcomes the Court’s decision to do so now, and it

submits this brief in order to assist the Court in its

reconsideration.

SUMMARY OF THE ARGUMENT

The “adequate process” for obtaining just

compensation which is discussed in Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1013 (1984), and which

is fundamental to the Williamson County Court's

reasoning, does not support the state litigation

requirement because it refers to private negotiations

and arbitration, not to court proceedings. In

addition, the process determined only the extent of

any taking that occurred, and so cannot support a

state litigation requirement that hinges on a

separate takings issue, ie., the denial of just

compensation.

For the same two reasons, Monsanto does not

support the next step in Williamson County Court's

reasoning, either, i.e., that federal litigation under

the Tucker Act ripens federal takings claims for just

compensation. Litigation under the Tucker Act

cannot ripen a takings claim because its purpose is

to resolve such claims. Least of all could Tucker Act

litigation ripen a takings claim for later litigation

under the Tucker Act, which is the mandatory

vehicle for pursuing such claims against the United

States. Hence, the attempted federal analogy fails to

support the supposed ripening effect of state

litigation.

Despite clearly stating earlier in Williamson

County that exhaustion of remedies is not required

for a 42 U.S.C. § 1983 takings claim, the Court

required precisely that when it set out the state

litigation requirement. It did so in the mistaken

belief that a state court’s final judgment denying

money damages is merely the judicial analog of local

government's failure to pay just compensation. In

adopting that belief, the Court brought to a head its

blurring of the distinction between ripening a claim

and judicially resolving it.

Underlying the reasoning of Williamson County

is the unexamined assumption that payment of just

compensation under the Takings Clause is a remedy.

But payment of just compensation is not a remedy; it

is a constitutional limiting condition placed upon the

power of government to take. Only when just

compensation has not been paid does there arise an

injury requiring a remedy. Hence, post-deprivation

procedures regulating the timing, amount, and

manner of payment of just compensation do not

support the Court’s conclusion that a state court

post-deprivation lawsuit for a money damages

3

remedy ripens a takings claim by finally determining

that the “State” will not pay just compensation.

ARGUMENT

“This is a case one can get easily

confused on[,] I might say.” Justice

William J. Brennan, at oral argument

of Williamson County?

L. The Williamson County Court's Reliance

On Monsanto’s Nonjudicial “Process”

Does Not Support A Role For Courts In

Ripening Takings Claims.

Williamson County’s state litigation ripening

requirement rests on a few broad brushstrokes of

reasoning. In the first, the Court wrote:

If the government has provided an

adequate process ffor 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.

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172, 194-95 (1985)

(quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1013, 1018, n.21 (1984)).

Monsanto, a decision which Justice Harry A.

Blackmun wrote only twelve months before he wrote

the Williamson County opinion, was a singularly bad

2 Tranacript of Oral Argument, Williamson Cty. Reg Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) (No. 84-4),

available at https://www .oyez.org/casea/ 1984/84-4 (last accessed

May 29, 2018).

place for him to look for support for a state litigation

ripening requirement, for in Monsanto the “adequate

process” was not judicial. In fact, that process was

created by Congress specifically to eliminate, to the

extent possible, the need for litigation.

The facts of Monsanto bear this out. In

Monsanto, the Court addressed the question of

whether a taking of property without just

compensation arose from the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA). 467 U.S. at

1000-01. The act allowed certain trade secrets filed

with the EPA by pesticide registrants to be used by

their competitors when the latter sought to register

their own pesticides. Jd. at 992-93. Monsanto

Company complained that the act thereby effected a

taking of its intellectual property. However, FIFRA

also required prior registrants like Monsanto and

their later-filing competitors to work out, either

through negotiations or through mandatory, binding,

unreviewable arbitration, a fair price to be paid for

any trade secrets so used. Id. at 994-95.

The FIFRA “process” therefore involved

proceedings for the nonjudicial valuation of property

and for the payment of a fair price for using it; the

process did not involve litigation over the threshold

question of whether there was any takings liability

in the first place, as is the situation in the typical

regulatory takings case, such as the present case or

Williamson County itself. Only after FIFRA’s

negotiations/arbitration procedures were employed

and only to the extent that Monsanto believed that

the resulting compensation did not represent a fair

valuation of its trade secrets was the company

allowed to pursue a Tucker Act claim against the

federal government for any shortfall. /d. at 1013 &

n.16, 1018 & n.21.

Hence, under Monsanto’s own highly exceptional

facts, it might be true to say that “if resort to that

process ‘yield[s] just compensation,’ then the

property owner ‘has no claim against the

Government’ for a taking.” Williamson County, 473

U.S. at 194-95 (quoting Monsanto). But it is very

difficult to see how Monsanto’s private, nonjudicial

valuation procedures support a requirement that a

takings plaintiff must ripen his federal claim by

engaging in state litigation over the question of

liability. The only sense in which Monsanto's

takings claims had been dubbed “premature” and not

“ripe” by the Court was that “no arbitration has yet

occurred” and so the Court “cannot preclude the

possibility that the arbitration award will be

sufficient to provide Monsanto with just

compensation, thus nullifying any claim against the

Government.” Monsanto, 467 U.S. at 1013 & n.16,

1020.

Significantly, in Monsanto the Court called

FIFRA’s unusual negotiation/arbitration scheme a

“precondition” that had to be fulfilled in order “to

determine the extent of the taking that has

occurred.” Id. at 1018 & n.21 (emphasis added). If

that was its function, then it is clearly much more

akin to Williamson County’s final decision-making

requirement for ripening a claim than to the state

litigation one. See Williamson County, 473 U.S. at

191 n.12 (final decision-making requirement: “it is

impossible to determine the extent of the loss or

interference until the Commission has decided

whether it will grant a variance from the application

of the regulations”), 195 (state litigation

requirement: “the State’s action here is not

‘complete’ until the State fails to provide adequate

coinpensation for the taking”) (emphasis added).

Hence, the Court’s own view of FIFRA’s “adequate

process” in Monsanto undercuts what the Court

sought to accomplish twelve months later when it

cited that decision, i.e., to find support for using

state litigation to ripen a federal takings claim based

on a failure to pay just compensation.

Apparently intending to illustrate by an example

the statement it just made, the Williamson County

Court goes on to write, again in reliance on

Monsanto:

Thus, we have held that taking claims

against the Federal Government are

premature until the property owner has

availed itself of the process provided by

the Tucker Act, 28 U.S.C. § 1491.

473 U.S. at 195 (citing Monsanto, 467 U.S. at 1016—

20).

This step in the Court’s reasoning is beset

with problems too. First, the pages cited from

Monsanto do not refer to using Tucker Act

litigation to ripen a takings claim; in fact, they

specifically state that it is FIFRA’s

negotiation/arbitration process that ripens a

claim for later Tucker Act litigation. See

Monsanto, 467 U.S. at 1018 (“precondition to a

Tucker Act claim”).

Second, the statement literally makes no sense.

Takings claims against the federal government must

be brought under the Tucker Act, and needless to

say they must be ripe when brought. So this

enigmatic statement seems to envisage a ripe, and

yet somehow not truly ripe, Tucker Act claim failing

on the merits in federal court and thereby somehow

ripening a later, identical Tucker Act claim that will

enter the federal court through the front door while

the first Tucker Act claim is being ushered out the

back door. How could that possibly be? Litigation

Act is the congressionally

mandated means to resolve such takings claims; it

does not ripen those claims, least of all so that the

same litigation can be played out all over again in

federal court with a retread of the first, failed Tucker

Act claim.’

Having begun to blur the distinction between

ripening a claim and judicially resolving it, and on

that basis having established, to its own satisfaction

at least, a role for federal courts in ripening takings

claims, the Williamson County Court next turned its

attention to the ripening role of state litigation.

3 NELF is not the first to notice the circularity of the Court's

statement. See Michael M. Berger, Anarchy Reigns Supreme,

29 Wash. U. J. Urb. & Contemp. L. 39, 57-58 (1985) (“The

Court cannot have meant what it said... . Use of the Tucker

Act is not a prerequisite to another remedy, it is the remedy.”)

(original emphasis); Brief Amici Curiae for Elizabeth J.

Neumont et al., 2005 WL 176429, at 12, San Remo Hotel LP v.

City and County of San Francisco, 545 U.S. 323 (2005) (No. 04-

340) (absurd to say that “an owner's Tucker Act suit for just

compensation would be ‘premature’ until the property owner

had brought a Tucker Act suit for just compensation”). The

Court’s statement would make perfect sense in the context of

Monsanto itself if “FIFRA” were substituted for the “Tucker

Act,” for FIFRA’s negotiation/arbitration process may be a

prelude to a claim against the federal government, as we have

noted. But we have also observed that the process is

fundamentally dissimilar to the state litigation requirement in

that it only fixes the extent of a taking and is not judicial. The

nonsensical substitution of the Tucker Act for FIFRA is an

indication of how badly Monsanto had to be distorted to support

Williamson County's reasoning.

Ul. The Williamson County Court Failed To

Adhere To Its Own Distinction Between

The Court next presented a second illustration of

ripening, this one dealing with takings claims

brought against a state entity rather than against

the federal government. We now come to the

foundational statement of the state litigation

requirement.

Similarly, 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.

Williamson County, 473 U.S. at 195. In the

following paragraph, the Court restated this key

point:

[Blecause the Constitution does not

require pretaking compensation, and is

instead satisfied by a reasonable and

adequate provision for obtaining

compensation after the taking, the

State’s action here is not “complete”

until the State fails to provide adequate

compensation for the taking.

Id. Before a federal claim can be brought in federal

court, therefore, the Court held that takings claims

must be ripened by state litigation. Pointing out

that Tennessee law permits inverse condemnation

actions to be brought in state court for takings

claims, the Court ruled that the bank “has not

shown that the inverse condemnation procedure is

unavailable or inadequate, and until it has utilized

that procedure, its [federal] taking claim is

premature.” Id. at 196—97.

While this chain of reasoning does not suffer from

the circularity of the earlier statement about Tucker

Act claims, it now completely blurs the distinction

between what courts do and what local state

agencies, boards, commissions, counties, and

municipalities do when the latter take and do not

justly compensate. See Michael M. Berger and &

Gideon Kanner, Shell Game! You Cant Get There

from Here: Supreme Court Ripeness Jurisprudence in

Takings Cases at Long Last Reaches the Self-parody

Stage, 36 Urb. Law. 671, 695 (2004) (original

emphasis) (“[T]he festering problem at the core of

Williamson County is blurring the state leyal system

with the local agency defendant . . . .”).*

Oddly, at the conclusion of its discussion of the

final decision-making requirement for ripening a

claim, the Williamson County Court drew a

distinction between that requirement and a

requirement to exhaust remedies.

concepts often overlap, the finality

requirement is concerned with whether

the initial decisionmaker has arrived at

* Arguably, underlying that “festering problem” is a more

fundamental one, ie., the Court's confusion of the just

damages the bank was required to seek from the state court as

remedy for that failure to pay just compensation. See infra

pp. 15-23.

10

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 if the decision is

found to be unlawful or otherwise

inappropriate.

473 U.S. at 193 (emphasis added).

To clarify the distinction, the Court noted that

while the final decision rule required the bank in

Williamson County to follow procedures for obtaining

variances to determine definitively the extent to

which its land development would be curtailed by

local regulations, the bank “would not be required to

exhaust” remedial procedures for its 42 U.S.C.

§ 1983 takings claim. /d.

While it appears that the State provides

would not be required to resort to those

procedures before bringing its § 1983

action, because those procedures clearly

are remedial.

Resort to those procedures would

result in a judgment whether the

Commission’s actions violated any of

respondent's rights. In contrast, resort

to the procedure for obtaining variances

11

“Judgment” and a “remed[y]” is given. Plainly, the

also City of Monterey v. Del Monte Dunes at

Monterey, Lid., 526 U.S. 687, 710 (1999) (“Damages

for a constitutional violation are a legal remedy.”).

In other words, the state litigation requirement gives

to a state court’s remedial proceedings the same

power to ripen a federal takings claim as that

possessed by the final agency decision that “inflicts

[the] actual, concrete injury” by taking without just

money damages as if it were simply the judicial

analog of the local government’s failing to pay just

compensation. Just compensation or compensatory

damages—the Court saw no real difference. See

Williamson County, 473 U.S. at 195 n.14 (“Nor has

the Court ever recognized any interest served by

confuses a local government entity’s denial, as party

defendant, of any liability to pay compensation with

a state court’s judgmert as adjudicator of the dispute

between the local government entity and the

property cwner. As pled by the bank, it was the

county’s denial as taker and as party defendant that

created the violation of the Takings Clause, i.e.,

“inflict{ed] an actual, concrete injury.” For similar

reasons, the Court’s reference to “the State’s action”

not being “complete” until the “State” fails to provide

adequate compensation for the taking by a court

judgment compounds the confusion. It was not the

once a money damages remedy has been denied by a court. See

473 U.S. at 494 0.13. For the underlying confusion between

just compensation and a money damages remedy, see infra

pp. 15-23.

13

“State,” no more than it was the state court, whose

actions were alleged to have taken the property

interest of the bank, and it was not the “State,” no

more than it was the state court, that refused to pay

just compensation; it was the county and the organs

of county government that did both.

By veering from the sound, fundamental

distinction it articulated just moments before, the

Court unwittingly put in place an erroneous ripening

requirement that would prove to be the graveyard of

making requirement, state litigation culminates in a

final judgment, which implicates the claim-

extinguishing principles of claim and _ issue

preclusion and the Full Faith and Credit statute (28

U.S.C. § 1738). That fact should have raised a red

flag alerting the Court that it was not laying down a

procedure for ripening a takings claim for federal

litigation, but rather for extinguishing it. A state

court judgment denying a plaintiff relief on a state

takings claim adds nothing to the ripeness of a

federal claim, and in fact, under Williamson County,

it imperils such a claim.

During oral argument in San Remo Hotel, LP v.

City and County of San Francisco, 545 U.S. 323

(2005), Justice Sandra Day O’Connor said:

[F]rankly, it isn’t clear to me that the

Court ever contemplated just cutting off

any determination in Federal court of

takings claims in the way that it seems

to work out by application of

Williamson County. . . . So now we're

faced with the consequences of that,

and it looks to me like the lower courts

have run pretty far with Williamson

14

County. So what's a takings claimant

supposed to do??

It is clear to NELF what this Court should do.

Williamson County confuses both the “State” and the

state courts with the local agencies, boards,

commissions, towns, etc., that make the only

decisions that count for ripeness, i.e., the final

decision to take and the decision not to pay just

compensation. It also muddles the huge, legally

consequential difference between local government's

refusal to pay just compensation and a state court's

final judgment not to award a damages remedy for

an alleged taking. See infra pp. 15-23. This Court

should therefore abandon the atate litigation

ripening requirement. It was ill supported and

badly reasoned, and its effect on the defense and

vindication of constitutionally protected property

rights has been uniformly pernicious.

Ill. Williamson County’s Reasoning Stems

From A Confusion That Has Developed

In Takings Law.

As we have suggested, underlying the Williamson

County Court’s reasoning is a confusion between the

just compensation owed by government and a money

damages remedy awarded by courts. These are not

the same, and a fortiori neither are government's

refusal to pay just compensation and a state court's

denial of a money damages remedy to a property

owner on a takings claim. Once these distinctions

’ Transcript of Oral Argument, San Remo Hotel LP v. City and

County of San Francisco, 545 U.S. 323 (2005) (No. 04-340),

available at http://www.scotussearch.com/casefiles/719#1 (last

accessed April 30, 2018).

15

Just

" and Takings Remedies Undercuta

Williamson County's Ripeness Doctrine, 42 Vt. L.

Rev. 61, 66 (Fall 2017).

slate

ee

procedures that involve money start to look a lot

blurred, al!

placed by the Fifth Amendment on the power of

alike, as they apparently did to the Williamson

County Court." See J. David Breemer, Dying on the

Vine How a Rethinking of “Without

government to take private property for public use.’

become

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16

It follows that when the condition of paying just

compensation is fulfilled, the taking is lawful and

inflicta no injury. See Williamson County, 473 U.S.

Glendale v. Loa Angeles County, 482 U.S. 304, 314

Firat English Evangelical Lutheran Church of

(1987).'°

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17

at 195 n.13 (“no constitutional violation occurs until

just compensation has been denied”); Monterey, 526

U.S. at 710, 718 (‘The constitutional injury alleged,

therefore, is not that property was taken but that it

was taken without just compensation. .. . Simply

put, there is no constitutional or tortious [§ 1983)

injury until the landowner is denied just

compensation.”). Hence, it is not any sort of remedy.

In contrast to the payment of just compensation,

payment of money damages is the remedy given by a

court when government has injured an owner by

taking property without having paid just

compensation. See Monterey, 526 U.S. at 710 (“[I}n a

confusion on this point in the following sentence:

Nor does the Fifth Amendment 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.

is drawn the from Cherokee

phrase

Southern Kansas Ry. Co., 135 U.S. 641,

quoted

é

taking, when the taker stands ready, willing, and

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19

confusion is based on the unexamined and erroneous

assumption that one form of “compensation” is as

Just as the Court had to squeeze Monsanto to

make it fit into Williamson County, the Court did the

same when it applied to state litigation the

“reasonable, certain and adequate

with all ite attendant ever merited being

called a “certain” method for obtaining

constitutionally provision for being paid

just com when it is paid post-deprivation.

169 U.S. at 400. The Court

Commissioners, 103 Maaa. 120, 124 (1869)). It noted

constitution of the United States that forbids the

Clearly, a statute permitting an owner to litigate

rule that there muat at least be in place at the time

of the taking an “adequate provision” for later

ascertaining and obtaining just compensation

promptly and with certainty, so toward the end of

the 19th Century courte laxly came to view laws

allowing for recovery of a money damages remedy

they clearly intend only the former,’ the 1887

passage of the Tucker Act likely encouraged federal!

courts, including this Court, to slip into this new way

of viewing “compensation.” See Breemer (2003),

supra, at 222.

liability in state court has led, time and again, to a

premature demise of their federal claims. This case

provides the Court with an opportunity to dispel the

confusion and to end the injustice.

CONCLUSION

F-r the reasons stated above, the Court should

amy .nce the abandonment of the state litigation

ripping requirement set out originally in this

Court’s decision in Williamson County.

June 5, 2018

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION,

By its attorneys,

4/ Sohn Pagliaro

John Pagliaro, Staff Attorney

Counsel of Record

Martin J. Newhouse, President

New England Legal Foundation

150 Lincoln Street

Boston, Massachusetts 02111

Telephone: (617) 695-3660

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