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

v.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE STATES OF TEXAS

AND OKLAHOMA AS AMICI CURIAE

IN SUPPORT OF PETITIONER

KEN PAXTON Scott A. KELLER

Attorney General of Texas Solicitor General

Counsel of Record

JEFFREY C. MATEER

First Assistant BILL DAVIS

Attorney Genera! Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

; lexas.gov

(512) 936-1700

TABLE OF CONTENTS

Page

Interest of amici curiae 1

Summary of argument 1

Argument 2

|. Williamson County's state-court litigation

“ripeness” requirement is erroneous 2

Il. The Court should overrule the erroneous

portion of Williamson County. )

Conclusion 12

TABLE OF AUTHORITIES

Page(s)

Cases:

Abbott Labs. v. Gardner, 387 US. 136 (1967)............... 4

Ankenbrandi v. Richards, 304 US. 689

(1992) 78

Arrigoni Enters., LLC v. Town of Durham,

136 S. Ct. 1409 (2016) 9, 10-12

Barber v. Barber, 62 U.S. (21 How.) 5&2

(1858) 4

City of Chicago v. Int’ Coll. of Surgeons, 522

U.S. 156 (1997) 7

City of Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432 (1985) 11

(1)

Cases—Continued: Page(s)

City of Renton v. Playtime Theatres, Inc.,

CE 11

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

ee eeecintnaereciepinneeitaiirihiatainadiaieinan titi ecitnencatmtasas 7

Dolan v. City of Tigard, 512 U.S. 374 (1994) .............. 11

Fair Assessment in Real Estate Ass'n, Inc.

v. McNary, 454 U.S. 100 (1981) .0....cccccccccceccceeceeeees s

First English Evangelical Lutheran Church

v. Los Angeles County, 482 U.S. 304

EES ae eee ee 2,7

Gardner v. Mayor of Baltimore, 969 F 2d 63

(4th Cir. 1992) 11

Horne v. Dep't of Agric., 569 U.S. 513 (2013) ...............2

Hudson v. Palmer, 468 US. 517 (1984) .o....cccccccoccoeeoeee 6

Koscielski v. City of Minneapolis, 435 F.3d

ES ee 11

Markham v. Allen, 326 U.S. 490 (1946) s

Marshall v. Marshall, 547 U.S. 298 (2006) ................... 7

Migra v. Warren City Sch. Dist. Bd. of

ee 9-10

Parratt v. Taylor, 451 U.S. 527 (1981) - 5-6

Pearson v. Callahan, 555 U.S. 223 (2009).............. i)

Reg'l Rail Reorganization Act Cases, 419

TE ea oe 2,1

Reno v. Catholic Soc. Servs., Inc., 509 U.S.

43 (1998) aisesanbbanal

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

EEE ae ee a ee 5

Cases—Continued: Page(s)

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

San Francisco, 545 U.S. 323 (2005).........2, 9, 10, 11

Stop the Beach Renourishment, Inc. v. Fla.

Dep't of Envtl. Prot., 560 U.S. 702 (2010)................ 3

Williamson Cty. Reg’l Planning Comm'n v.

Hamilton Bank of Johnson City, 473

Sets UIE neceenmnnnsmsnenstenstienteonstasmmessecsencss passim

Constitutional provisions and statutes:

U.S. Const.:

amend. | 11

amend. IV 11

amend. V 1, 2, 3, 4, 10, 11

Se creceenemeetemnmennnniiats 11

A Be isiticecrensasinommniisintnsinersensssscctniteséaniiininanins 1,8

28 U.S.C

§ 1341 tide 8

BP i isenccnsnssecnemsnsensenssenensecsennenseseteieness 7

eee sae - 4,9

42 U.S.C. § 1988... aiethnenpentaneesntectaineanennin 3, 6

Miscellaneous:

H.R. Rep. No. 106-518 (2000) 20.000... cecececeneeeeeeeenennens 10

J. David Breemer, Dying on the Vine: How

A Rethinking of “Without Just

Compensation” and Takings Remedies

Undercuts Williamson County’s

Ripeness Doctrine, 42 Vt. L. Rev. 61

Foe cinctectnnsthivenvennencitetinidntinticinustesmmunnnnemnee i)

IV

Miscellaneous—Continued: Page(s)

J. David Breemer, 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

ee ateetnreicncnrnnscnnasscinsnsentiniannitiineienianenamemessvcscsrnnce 6

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

Self-Parody Stage, 36 Urb. Law. 671

i esernennsnsscveernepenscecernavensemnstesenemesnsscsccsesesseseeseseess 10

Richard H. Fallon, Jr. et al., Hart and

Wechsler’s The Federal Courts and The

Federal System (6th ed. 2009) ...........cccceceeeeeeereenees 4

INTEREST OF AMICI CURIAE

The amici States of Texas and Oklahoma (and their

agencies and officials) are frequent litigants in takings

cases, and property owners in the amici States sue all

levels of government—federal, state, and local—

seeking just compensation for takings. Since this

Court’s decision in Williamson County Regional Plan-

ning Commission v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985), adjudication of takings cases has

been complicated and prolonged when property owners

seek a federal forum for resolution of their Fifth

Amendment claims. The federal courts are competent

to resolve claims under the Fifth Amendment when

those claims are ripe for Article III and prudential pur-

poses, and both the amici States and their citizens have

an interest in efficient resolution of those claims free of

the non-jurisdictional “ripeness” constraint that Wil-

liamson County erroneously imposed.*

SUMMARY OF ARGUMENT

I. The Court erred in Williamson County in stat-

ing that Fifth Amendment takings claims are not ripe

unless and util they have been adjudicated in state

court. That conclusion was not based on the doctrine of

ripeness in its jurisdictional sense, and other decisions

confirm that a takings claim may be ripe for Article III

and prudential purposes even if a state court has not

resolved it. In light of its res judicata implications, Wil-

liamson County’s state-litigation “ripeness” rule essen-

* This amicus curiae brief is filed with written consent of all

parties as reflected on the docket.

(1)

2

tially strips federal courts of jurisdiction over specific

types of claims. That result is not justified either by the

decisions Williamson County cited or the Court’s

broader body of precedent.

Il. The Court should overrule the challenged por-

tion of Williamson County. That portion of the decision

is not only erroneous, but also imposes a substantial

impediment to Fifth Amendment plaintiffs’ access to

lower federal courts. As explained in San Remo Hotel,

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

326-27 (2005), that impediment arises by virtue of the

full faith and credit statute, which requires federal

courts to give preclusive effect to state-court judgments

resulting from proceedings mandated by Williamson

County’s state-litigation requirement. Plaintiffs in oth-

er constitutional cases do not face that barrier, and

there is no sound basis to retain it in the Fifth Amend-

ment context.

ARGUMENT

|. Williamson County’s State-Court Litigation

“Ripeness” Requirement Is Erroneous.

When a governmental entity takes private property,

the property owner’s injury is not speculative. Liability

arises when the government interferes with property

rights, not when a court later concludes that property

was taken. First English Evangelical Lutheran Church

v. Los Angeles County, 482 U.S. 304, 319-20 (1987); see

also Reg’l Rail Reorganization Act Cases, 419 U.S. 102,

143 (1974) (explaining that “[wJhere the inevitability of

the operation of a statute against [a takings plaintiff] is

patent, it is irrelevant to the existence of a justiciable

3

controversy that there will be a time delay before the

disputed provisions will come into effect”). A Fifth

Amendment takings claim is therefore ripe, as that

term is routinely used in justiciability analysis, see, e..,

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 & n.18

(1993), regardless of whether a state court has already

adjudicated such a claim.

In Williamson County, however, the Court used the

word “ripe” in a different sense to preclude federal-

court review of a Fifth Amendment takings claim be-

fore exhaustion of state-court remedies. 473 U.S. at 194.

The Court has already recognized that Williamson

County’s “ripeness” requirement “is not, strictly speak-

ing, jurisdictional.” Horne v. Dep't of Agric., 569 U.S.

513, 526 (2013) (citing Stop the Beach Renourishment,

Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 729 &

n.10 (2010)). It should now recognize that imposing a

state-court litigation requirement was error.

A. The plaintiff landowner in Williamson County

sued a local land-use planning commission in federal

court under 42 U.S.C. § 1983, alleging a Fifth Amend-

ment taking based on the commission’s rejection of a

preliminary proposal to develop its land. 473 U.S. at

175, 182. The landowner had not requested variances

from the commission, appealed the commission’s deci-

sion to a zoning board of appeals, or sued under state

law for inverse condemnation. /d. at 188.

Without reaching the question on which certiorari

was granted, the Court “examine[d] the procedural pos-

ture of [the landowner’s] claim” and held that the claim

was not ripe for two reasons. /d. at 175-76, 185-86.

First, the commission had denied only a preliminary

4

proposal, and because the landowner had not sought

variances from the commission, the denial was “not a

final, reviewable decision.” Jd. at 186-94. Second, the

landowner “did not seek compensation through the pro-

cedures [Tennessee] hald] provided,” including litiga-

tion in state court of an inverse-condemnation claim un-

der state law. Jd. at 194-97.

B. Though presented as a principle of ripeness, the

second element of Williamson County’s reasoning did

not suggest a lack of ripeness under traditional analysis

of “the fitness of the issues for judicial decision and the

hardship to the parties of withholding court considera-

tion.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

The first Williamson County consideration, whether

the defendant has issued a final decision, 473 U.S. at

194, is alone sufficient to inform the fitness inquiry. And

requiring a Fifth Amendment plaintiff to obtain a state-

court judgment that will resolve the live controversy

and have preclusive effect certainly imposes a “hard-

ship,” Abbott Labs., 387 U.S. at 149, when the plaintiff

seeks a federal forum for resolution of a federal claim.

See infra Part I1.A (discussing the combined effect of

Williamson County’s state-court litigation requirement

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

Williamson County’s litigation “ripeness” require-

ment is more accurately described as a Court-created

doctrine stripping lower federal courts of jurisdiction

over Fifth Amendment takings claims for just compen-

sation. See, e.g., Richard H. Fallon, Jr. et al., Hart and

Wechsler’s The Federal Courts and The Federal Sys-

tem 1049-1151 (6th ed. 2009) (discussing judicially de-

veloped limitations on federal-court jurisdiction). But

5

neither the cases Williamson County relied on nor oth-

er decisions of this Court offer adequate support for

that doctrine.

1. Williamson County cited Ruckelshaus v. Mon-

santo Co., 467 U.S. 986 (1984), and Parratt v. Taylor,

451 U.S. 527 (1981), as support for the state-court litiga-

tion requirement. 473 U.S. at 194-95. That reliance was

misplaced in each instance.

a. Monsanto held that “[e|quitable relief is not

available to enjoin an alleged taking of private property

... when a suit for compensation can be brought against

the sovereign subsequent to the taking.” 467 U.S. at

1016. As that holding indicates, the Monsanto plaintiff

requested equitable relief, not just compensation. /d. at

998-99.

Monsanto supports the proposition that “[ijf the

government has provided an adequate process for ob-

taining compensation, and if resort to that process

‘yield[s] just compensation,’ then the property owner

‘has no claim’” for equitable relief “‘against the Gov-

ernment’ for a taking.” Williamson Cty., 473 U.S. at

194-95 (quoting Monsanto, 467 U.S. at 1013, 1018 n.21).

That conclusion does not provide a basis for William-

son County’s litigation “ripeness” requirement for

claims seeking just compensation. After all, the Court

concluded in Monsanto that such a claim could be

brought in federal court under the Tucker Act. 467 U.S.

at 1017-20.

b. In Parratt, an inmate sued prison officials who

allegedly failed to follow their own mail-distribution pol-

icies, resulting in the loss of packages containing hobby

materials that the inmate had purchased. 451 U.S. at

6

530-31. The Court held that the inmate’s due process

claim was not actionable under 42 U.S.C. § 1983 be-

cause the State provided a postdeprivation remedy for

the challenged “random and unauthorized act by a state

employee,” for which a predeprivation hearing was nec-

essarily unavailable. Jd. at 541, 543-44. Reasoning by

analogy, Williamson County applied Parratt’s holding

to takings claims, concluding that a “State’s action is

not ‘complete’ in the sense of causing a constitutional

injury ‘unless or until the State fails to provide an ade-

quate postdeprivation remedy for the property loss.’”

Williamson Cty., 473 U.S. at 195 (quoting Hudson v.

Palmer, 468 U.S. 517, 582 n.12 (1984)).

Williamson County acknowledged that “[t}he anal-

ogy to Parratt is imperfect because Parratt does not

extend to situations ... in which the deprivation of

property is effected pursuant to an established state

policy or procedure, and the State could provide pre-

deprivation process.” 473 U.S. at 195 n.14. Indeed, be-

cause a taking is always the result of an established pol-

icy or procedure, a government employee’s random act

can never be the basis of a takings claim. See J. David

Breemer, Overcoming Williamson County’s Troubling

State Procedures Rule: How the England Reservation,

Issue Preclusion Exceptions, and the Inadequacy Ex-

ception Open the Federal Courthouse Door to Ripe

Takings Claims, 18 J. Land Use & Envtl. L. 209, 229

(2003). For that reason, Parratt provides no support for

Williamson County’s litigation “ripeness” rule.

2. Other decisions of this Court confirm that Wil-

liamson County’s state-court litigation requirement is

7

neither a ripeness rule nor a valid rule limiting federal-

court jurisdiction.

a. City of Chicago v. International College of Sur-

geons, 522 U.S. 156 (1997), illustrates the first point. If

Williamson County’s litigation “ripeness” requirement

deprived a federal district court of jurisdiction, a tak-

ings claim could not be removed to federal court before

state litigation was complete because removal requires

the federal court to have jurisdiction over the state-

court action. 28 U.S.C. § 1441(a). But in City of Chicago,

the Court permitted removal of a takings claim that a

state court had not yet adjudicated. 522 U.S. at 164-65.

That disposition was correct because the City of Chica-

go plaintiff alleged a concrete injury flowing from a fina!

decision denying his permit applications. /d. at 160.

Contrary to the erroneous reasoning of Williamson

County, the takings claim was therefore ripe. See First

English, 482 U.S. at 319-20; Reg’l Rail Reorganization

Act Cases, 419 U.S. at 143.

b. Whenever the Court creates a rule limiting

f. eral-court jurisdiction, it is subject to the challenge

at federal courts “have no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given.” Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 404 (1821); see Marshall v. Marshall,

547 U.S. 2938, 298-99 (2006). But even putting that chal-

lenge aside, Williamson County’s state-court litigation

requirement is not a valid jurisdiction-limiting rule.

In the few instances in which the Court has imposed

such a rule, it has identified strong historical or

federalism-based grounds. In Ankenbrandt v. Rich-

ards, the Court found that “an understood rule .. . rec-

8

ognized [since 1859)” justified its conclusion that federal

courts lack jurisdiction over state-law questions of do-

mestic relations. 504 U.S. 689, 694-95 (1992) (referenc-

ing Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1858));

see id. at 700-03. The judicially imposed limitations on

federal jurisdiction over probate matters stem from the

jurisdiction of the English Court of Chancery in 1789.

Markham v. Allen, 326 U.S. 490, 494 (1946). And the

rationale for stripping federal courts of jurisdiction

over matters of state taxation is based on a unique com-

bination of history and federalism. Fatr Assessment in

Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102-

03, 107-15 (1981).

None of those grounds applies here. Williamson

County’s state-court litigation requirement was first

conceived in that case and is unrelated to any jurisdic-

tional limitations of the Court of Chancery. And alt-

hough there are some federalism concerns in the tak-

ings context, they are not nearly as strong as those the

Court relied on in the state-taxation context. See id. at

102-08 (citing 28 U.S.C. § 1341 as evidence of congres-

sional “recognil tion] that the autonomy and fiscal stabil-

ity of the States survive best when state tax systems

are not subject to scrutiny in federal courts”). For those

reasons, Williamson County’s requirement of state-

court litigation is unjustified when viewed as what it is:

a Court-imposed rule stripping lower federal courts of

jurisdiction they would otherwise possess under ordi-

nary Article III case-or-controversy principles.

9

Il. The Court Should Overrule the Erroneous

Portion of Williamson County.

Williamson County’s litigation “ripeness” analysis

has drawn criticism from several current and former

Members of the Court. E.g., Arrigoni Enters., LLC v.

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

joined by Kennedy, J., dissenting from the denial of

certiorari); San Remo Hotel, 545 U.S. at 351-52

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

Thomas, JJ., concurring in the judgment). Numerous

commentators have also criticized Williamson County.

E.g., J. David Breemer, Dying on the Vine: How A Re-

thinking of “Without Just Compensation” and Takings

Remedies Undercuts Williamson County’s Ripeness

Doctrine, 42 Vt. L. Rev. 61, 62 & n.2 (2017) (collecting

commentators’ reactions to Williamson County). The

question in this case is whether those or other criti-

cisms warrant overruling the challenged portion of Wil-

liamson County. Pet. i.

As the Court has explained, “[rjevisiting precedent

is particularly appropriate where ... a departure would

not upset expectations, the precedent consists of a

judge-made rule that was recently adopted to improve

the operation of the courts, and experience has pointed

up the precedent’s shortcomings.” Pearson v. Callahan,

555 U.S. 223, 233 (2009). These considerations favor

overruling the portion of Williamson County that im-

posed the litigation “ripeness” requirement.

A. Under 28 U.S.C. § 1738, “a federal court must

give to a state-court judgment the same preclusive ef-

fect as would be given that judgment under the law of

the State in which the judgment was rendered.” Migra

10

v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

(1984). That means that claim preclusion (or “res judi-

cata”) bars federal-court litigation of any claim between

the same parties that could have been raised in state

court, and issue preclusion (or “collateral estoppel”)

bars federal-court litigation of any issue actually decid-

ed in state court. See id. at 77 n.1.

“{N jearly every State has a compensation provision

that is, or has been interpreted to be, very similar to the

Just Compensation Clause” of the Fifth Amendment.

H.R. Rep. No. 106-518, at 13 (2000). For that reason,

takings plaintiffs who seek federal forums for their

Fifth Amendment claims encounter a “Catch-22” under

Williamson County: to ripen their federal claims, they

must litigate in state court, but once they litigate in

state court, the resulting decisions preclude their claims

in federal court. 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 Self-Parody Stage, 36 Urb. Law.

671, 677 (2004).

The majority opinion in San Remo Hotel highlights

this problem, and the Chief Justice’s opinion concurring

in the judgment correctly identifies Williamson County

as the obstacle to its resolution. See San Remo Hotel,

545 U.S. at 326-48, 348-52. As it stands, the litigation

“ripeness” requirement is a significant impediment to

takings plaintiffs’ access to the lower federal courts—

and, in some jurisdictions, to any court at all. As Justice

Thomas noted in his dissent from the denial of certiora-

ri in Arrigoni, “some federal judges have dismissed

[takings] claims, rather than remanding them,” after

1]

defendants removed suits “in state court to exhaust .. .

remedies as Williamson County instructs.” 136 S. Ct.

at 1411 (citing Koscielski v. City of Minneapolis, 435

F.3d 898, 903 (8th Cir. 2006), as an example).

B. Overruling the challenged portion of Williamson

County will neither deprive litigants of appropriate fo-

rums for resolution of Fifth Amendment takings claims

nor overwhelm the federal courts. Like lower state

courts, lower federal courts are fully capable of consid-

ering evidence of property value and adjudicating par-

ties’ disputes.

Some decisions have suggested that state courts are

better equipped to resolve the issues that often arise in

takings cases involving interpretation of municipal land-

use regulations. E.g., San Remo Hotel, 545 U.S. at 347;

Gardner v. Mayor of Baltimore, 969 F.2d 63, 67 (4th

Cir. 1992). But the same could be said of other issues

that federal courts have unquestioned competence to

resolve, such as First Amendment and Equal Protec-

tion Clause challenges to the same types of regulations.

See, e.g., City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 43-46 (1986); City of Cleburne v. Cleburne Liv-

ing Ctr., Inc., 473 U.S. 432, 435-39 (1985).

As the Court accurately observed in Dolan v. City of

Tigard, there is “no reason why the Takings Clause of

the Fifth Amendment, 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.” 512

U.S. 374, 392 (1994). Because the state-court litigation

requirement erroneously “downgraded the protection

afforded by the Takings Clause to second-class status,”

Arrigoni, 136 S.Ct. at 1411 (Thomas, J., dissenting

12

from the denial of certiorari), and adherence to that re-

quirement is not justified on stare decisis grounds, the

Court should overrule the portion of Williamson Coun-

ty that imposed it.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

MIKE HUNTER KEN PAXTON

Attorney General Attorney General

of Oklahoma of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

Scott A. KELLER

Solicitor General

Counsel of Record

BILL DAVIS

Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

-texas.gov

JUNE 2018 (512) 986-1700