Amicus Curiae Brief — Rainey Bros. Construction Co. v. Memphis & Shelby County Board of Adjustment

_—

| Supreme Court, U9,

| FIBBA

AUG 5 1999

No. 99-60 © OG TH BER

In The

Supreme Court of the United States

RAINEY BROTHERS CONSTRUCTION

COMPANY, INC...

Petitioner,

VS.

MEMPHIS AND SHELBY COUNTY BOARD OF ADJUSTMENT;

AND CITY OF MEMPHIS, TENNESSEE,

Respondent's.

On Petition For A Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF

DEFENDERS OF PROPERTY RIGHTS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Nancie G. Marzulla*

DEFENDERS OF

PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

(202) 822-6770

*Counsel for Amici Curiae

August 5, 1999 Counsel of Record

QUESTION PRESENTED

Does the doctrine of res judicata bar a claim for relief under 42

U.S.C. § 1983 in federal court when the case has “ripened” in state

court pursuant to this Court’s decision in Williamson C. ounty Reg.

Plan. Comm'n v. Hamilton Bank?

TABLE OF CONTENTS

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TABLE OF PUT TE 8 sini iecciscsssansei ill

IDENTITY AND INTEREST OF

PDEA CCIE sink siissvtesssacaseddaresereaeteeieee l

DEAT EIS CP TURE CA eee csccnsscisvizucavsnscenssussancsens 2

SUUNENGAR SOF ARCIUIIIIIN 8 oc ctsniintsctntsicdeerenssicmuen 2

REASON FOR GRANTING THE PETITION................... 7

CRITE. LARGO iinixny cornices suvencunesaneacnngeaenan eee ee 15

TABLE OF AUTHORITIES

Accord Mission Oakes Mobile Home Park

v. City of Hollister,

Fo A, ee ee 8

Armstrong v. United States,

TI isan dan inns hcchienibsiecnapinnninaennlinpeiowieeienintees 5

Dodd v. Hood River County,

59 F.3d 852 (9th Cir. 1995) (Dodd I) ..0.......ceeeeceeeesteeeeeeeees 12

Dodd v. Hood River County,

136 F.3d 1219 (9th Cir. 1998) (Dodd II) «00.0.0... cece eeeeeeeeees 12

Dolan v. City of Tigard

acd ie dks cdeiuniaceinaekaridtaseinboned 2

Fields v. Sarasota Manatee Airport Auth.,

De Cee CB OO C8 Be, EDGED cevexcerasrennsssiccesesvecerensenses 8,9, 12

First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles,

I Tocca eeanncenvadoattedaeubooomnibendaceounsies 5,6

Front Royal & Warren County Indus. Park Corp. v.

Town of Front Royal,

Se aE Fe GEE. CRIED cevenierecsiensuncesenseserrertinnivevenes 11,12

Jacobs v. United States,

TES a a RI ee 10

Jennings v. Caddo Parish School Bd.,

Se te Es BOD enveinenscevvesaxcsvenvesoncsseessssmoeresovese 12

Lucas v. South Carolina Coastal Council,

Lk SE SE are ane 2, 3, 5, 6

TABLE OF AUTHORITIES-CONT'D

Monterey v. Del Monte Dunes at Monterey, Ltd.,

FO eee. Se Ce icccahshiiiennniiidactinsiictniieanincdibcimianduiatiepemianaesiais 2

Nasierowski Bros. Inv. Co. v. City of Sterling Heights,

SORE RI CO, TIED sicricssssrcsstonccsoneretainainnanninsivitice 10

New Port Largo, Inc. v. Monroe County,

ge Dk ga ae, Cece 9

Nollan v. Califomia Coastal Comm'n,

Oe i cnr tataicctsceteciat nennnimaneetieil came dbagsegin 5

Palomar Mobilehome Park Ass’n v. City of San Marcos,

Tae ee I rrrisiccscmsrscererencreencs 7,11

Peduto v. City of North Wildwood,

Tf & br Ree fe fe Rann 8, 11

United States v. Clarke,

Ph ec Ey. yg) ERROR estore ROA PERT PY Roe eo ce 5

Wilkinson v. Pitkin County Bd. of Comm'rs

PR ee EEA: SR cccksiancdinschennniacerseschuiedos 1]

Williamson County Reg. Plan. Comm’n. v. Hamilton Bank,

ee i I J nccicancetecsnantteannadistAaesnieiiineacas: passim

Federal Statutes

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UG BITTE i dich ok ae 9

RARE 0 ON eco cat ecee 9,11, 14

TABLE OF AUTHORITIES-CONT'D

Other Authorities

Alex F. Annett, The Heritage Foundation,

How Congress Can End the ‘Regulatory Limbo”

Blocking Property Owners’ Access to Justice,

FYI Me. 1946 Gatabbar 1, 8067 ..ccccrccccccvesicssectceseqvesseommusssesoresns 13

Michael M. Berger, The ‘“Ripeness” Mess in Federal Land

Use Cases or How the Supreme Court Converted Federal

Judges into Fruit Peddlers, in Institute on

Planning, Zoning, and Eminent Domain

£7 (héatthow Bondar 1991) ...-cccscccccecsescsorsevresrsssccensesaconconnvenes 7

Douglas W. Kmiec, Disentangling Substantive Due

Process and Taking Claims,

13 Zoning & Planning Law Report 57 (1990). ........eceeeees 7

Gregory Overstreet, The Ripeness Doctrine of the Takings

Clause: A Survey of Decisions Showing Just How Far

Federal Court's Will Go to Avoid Adjudicating Land

Use Cases

10 3.Land Uso and Bavt'l L.. 91, 92 cccecccccscrecossonseterensessensceves 14

Mandelker, Gerard, & Sullivan, Federal Land Use Law

§4A.02(6} at p. 4A-21 (Clark, Boardman, Callaghan

Constitutional Provisions

U.S, CORBET, CI VY ccccececctsinctncsnttonsivcenssntniccnnnenransameiee passim

U.S. CONST. aameind XIV ....cccccccesccccccseccssosscsensoseccrsosessevessseenseees 9

IDENTITY AND INTEREST OF

AMICUS CURIAE'

Defenders of Property Rights is the only national legal

defense foundation devoted exclusively to protecting private

property rights. Defender’s was founded in 1991 asa non-profit,

public interest law foundation whose members are property

Owners, users, and beneficiaries of the rights protected by

traditional Anglo-American property law. Incorporated under

the laws of the District of Columbia. Defenders of Property

Rights participates in legal actions affecting the public interest

and private property rights. Defenders of Property Rights

engages in litigation across the country on behalf of its

membership to stem government incursion forbidden by the Fifth

Amendment.

Defenders has devoted a significant portion of its resources

to the litigation of these issues to ensure that property rights, the

comerstone of any democracy, are preserved. Defenders of

Property Rights has participated in every significant property

' Counsel for either party did not author this brief in whole or in part. No person

or entity, other than the Amicus Curiae, its members, or its counsel made a

monetary contribution to the preparation and submission of this brief.

]

rights case before this Court since its founding including

Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S.Ct. 1624

(1999), Dolan v. City of Tigard, 512 U.S. 374 (1994), Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992).

STATEMENT OF THE CASE

Amicus curiae herein adopts Petitioner Rainey Brothers

Construction, Co., Inc., statement of the case. (See Pet’r Pet. for

Cert. at 3-7.)

SUMMARY OF ARGUMENT

This case affords this Court an opportunity to provide badly

needed guidance as to whether the requirement that a plaintiff

first seek review of his taking claim in state court before filing in

federal court—as set forth in Williamson County Reg. Plan.

Comm'n. v. Hamilton Bank, 473 U.S. 172 (1985)—requires

modification in light of more recent decisions by this Court.

Williamson County places two ripeness hurdles in the way of

a taking claim brought in federal court against states and their

political subdivisions. The first requirement of Williamson

County, that a claimant exhaust state administrative remedies

before filing an action in federal court, was satisfied in this case.

The second, and independent, requirement of Williamson County

dictates that plaintiffs “seek compensation through the [judicial]

procedures the State has provided for doing so” before turning to

the federal courts. /d. at 194. Neither Williamson County nor

have subsequent takings decisions by this Court treated

Williamson County as mandating a jurisdictional requirement.

Had the court below treated the second prong of Williamson

County as a prudential matter, it would have been required to

defer to the trial court’s factual determination that the case was

sufficiently concrete for adjudication by the court, especially

now that the case has been fully tried on previous occasions and

reviewed on appeal. See, e.g., Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (ripeness treated as a prudential rather

than a jurisdictional issue.) Moreover, the court below ignored

the fact that Petitioners originally filed this lawsuit in state court,

and were prevented from pursuing the case when Respondent

removed the action to federal court in October of 1989 on the

ground that the action to federal question arising under the Fifth

Amendment to the United States Constitution and thus did not

belong in state court. Likewise, at the time the lawsuit was filed,

the State of Florida recognized no cause of action for inverse

condemnation, rendering his state action futile as well as

impossible.

By failing to understand Williamson County in light of later

decisions of this Court, the court below has joined many federal

courts across the nation which continues to apply Williamson

County as if takings jurisprudence had not developed beyond the

state of law in 1985. As discussed below, the holding in

Williamson County has been interpreted inconsistently by federal

courts as a jurisdictional, prudential and even a procedural

requirement. Much of the inconsistency and confusion arises

from the uncertainty at the time of Williamson County decision

surrounding the fundamental nature of a just compensation case.

This Court has addressed many of these questions since 1985.

Indeed, while it may now be fairly said that the Williamson

County decision is inconsistent with this Court’s subsequent

holdings in important respects, some lower courts continue to

apply Williamson County as if subsequent decisions had not

answered many of the open questions. -Thus, the time has come

for this Court to reexamine Williamson County in light of

subsequent holdings of this Court, including First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304 (1987), Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), and Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992), all of which have

fleshed out the diiinigul a Fifth Amendment cause of action.

As this Court has held on numerous occasions, the obligation

for just compensation attaches whenever government action

works a taking of private property rights. Armstrong v. United

States, 364 U.S. 40, 49 (1960). This constitutional obligation is

so evident that this Court has held that an aggrieved property

owner need not look to a statute or other legislative authorization

in order to obtain the remedy of just compensation to which he is

entitled. First English, 482 U.S. 304 (1987); United States v.

Clarke, 445 U.S. 253, 257 (1980).

In short, subsequent decisions of this Court have determined

that the Fifth Amendment cause of action arises at the time the

administrative decision becomes final as a matter of fact.

Nothing in those decisions suggest that the cause of action is

incomplete until after the plaintiff had litigated his case in state

court, nor do they stand for the proposition that a plaintiff whose

state court case is removed to federal court is thereby defeated

because the federal court lacks jurisdiction. Although

Williamson County may have been i good guess at what was to

come in Fifth Amendment jurisprudence in 1985, subsequent

decisions of this Court require that Williamson County be

revisited in light of current Fifth Amendment jurisprudence.

Accordingly, Amicus Curiae urges this Court to grant this

Petition for review and declare that their case has satisfied the

prudential concerns of the state exhaustion ripeness requirement

set forth by this Court in Williamson County, or, alternatively, to

reverse summarily the opinion below as inconsistent with this

Court’s subsequent holdings in First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, 482 U.S.

304 (1987), and Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992).

Reason For Granting the Petition

An oddly perverse result occurs, which this case well

illustrates, when the Williamson County ripeness doctrine

combines with res judicata principles, barring a plaintiff from

“relitigating” the takings claim which they filed in state court in

obedience to the second ripeness hurdle. Under this “catch-22”,

a plaintiff must first file in state court (Williamson County) and,

having litigated his claim to judgment, will be dismissed from

federal court precisely because he did so. Thus, a plaintiff may

be barred from bringing his constitutional claim to federal

court—either because he has not yet litigated it in state court

first, or because he has done so. See generally Michael M.

Berger, The “Ripeness"’ Mess in Federal Land Use Cases or

How the Supreme Court Converted Federal Judges into Fruit

Peddlers, in Institute on Planning, Zoning, and Eminent Domain

§ 7 (Matthew Bender 1991) and Douglas W. Kmiec,

Disentangling Substantive Due Process and Taking Claims, \3

Zoning & Planning Law Report 57 (1990). For example, in

Palomar Mobilehome Park Ass'n v. City of San Marcos, 989

F.2d 362 (9" Cir. 1993), a property owner filed suit in state court

to challenge a mobile home rent control ordinance as an

unconstitutional taking. He lost. The plaintiffs then filed in

federal court, where the case was dismissed on the grounds of

res judicata:

Palomar’s first argument that its takings claim cannot be

barred because it was not ripe until the state court ruled

on its claim, lacks merit. Palomar correctly interprets

Williamson County, to require that a plaintiff take its

takings claim to start court before the case will be ripe

for federal adjudication. However, this requirement does

not prevent the doctrine of res judicata from barring

subsequent federal action...” Appellants have exhausted

their state claims, which, under Williamson, is a

necessary predicate to their federal cause of action; but

in doing so, they received a full and fair adjudication of

their constitutional claims against the City in state court.

Due process guarantees them no less, but entitles them

no more.”...We are compelled to conclude that res

judicata bars Palomar’s claims in federal court, despite

the requirements of Williamson.

Id. at 364-365 (citations omitted), quoting Peduto v. City of

North Wildwood, 878 F.2d 725, 729 (3d. Cir. 1989) (subsequent

federal claim for just compensation was also barred by the

doctrine of res judicata). Accord Mission Oakes Mobile Home

Park v. City of Hollister, 989 F.2d 359 (9" Cir. 1993).

In Fields v. Sarasota Manatee Airport Authority, 953 F.2d

1299 (11" Cir. 1992) the neighbors of the Tampa Airport sought

compensation in state court for the taking of noise and aviation

8

easements over their properties. They restricted their state

lawsuit to Florida law, and raised no claims under the federal

constitution. Having lost their suit at the state level, they filed

their lawsuit in federal court, raising their federal claims. The

case was dismissed as being barred by res judicata and collateral

estoppel. The Fie/ds court correctly framed the issue which

must be resolved by this Court:

This case presents a jurisdictional problem created by

the interplay between 28 U.S.C.A. § 1738 and the

Supreme Court’s holding in Williamson County. On the

one hand, Williamson County requires potential federal

court plaintiffs to pursue any available state court

remedies that might lead to just compensation before

bringing suit in federal court under section 1983 for

claims arising under the Fourteenth and Fifth

Amendments for the taking of property without just

compensation. On the other hand, if a litigant brings a

takings claim under the relevant state procedure, he runs

the risk of being barred from returning to federal court;

most state courts recognize res judicata and collateral

estoppel doctrines that would require a state court

litigant to raise his federal law claims with the state

claims, on pain of merger and bar of such federal claims

in any attempted future proceeding.

Id. at 1302-03 (citations omitted). Cf New Port Largo, Inc. v.

Monroe County, 985 F.2d 1488 (11" Cir. 1993) (case was not

time-barred because it was premature to file in federal court until

state litigation was complete).

Thus, a broad application of the second prong of the

Williamson County ripeness requirement is not only a time-

wasting hurdle for the courts and litigants, but may, in fact, bar

altogether federal court adjudication of their Fifth Amendment

claim for just compensation. While Williamson County may

have been originally intended to require the litigation of state

issues in state court, leaving the federal forum available in those

instances where the state failed to provide compensation for a

violation of the takings clause, the ripeness requirement was

never intended to bar altogether Fifth Amendment litigants from

federal court. Indeed, it would be anomalous to suggest that a

right guaranteed by the United States Constitution could not be

litigated in federal court. See Jacobs v. United \siaves, 290 U.S.

13 (1933) (inverse condemnation suit rests on the Fifth

Amendment and is therefore based on the Constitution).

In order to avoid such a result, some circuits have interpreted

Williamson County narrowly, holding that it only applies in

claims for just compensation. See, e.g., Nasierowski Bros. Inv.

Co. v. City of Sterling Heights, 949 F.2d 890 (6" Cir. 1991)

(aggrieved landowner asserted deprivation of procedural due

10

process so his action was ripe even though he did not exhaust

administrative remedies).

Granting certiorari in this case would help to provide

guidance and uniformity of lower court decisions on a crucial

constitutional question. The views of the lower appellate courts

are often contradictory in nature resulting in constitutional

justice being applied unevenly depending on geographical

presence. The Third, Sixth, Ninth and Tenth Circuits have been

the most strict in applying the doctrine of res judicata to prevent

litigants from trying to exercise their rights under the Fifth

Amendment and 42 U.S.C. §1983. [See, E.g., Wilkinson v.

Pitkin County Bd. of Comm'rs, 142 F.3d 1319, 1325 (10th Cir.

1998); Palomar Mobilehome Park Assn. v. City of San Marcos,

989 F.2d 362, 264-265 (9th Cir. 1993); Peduto v. City of North

Wildwood, 878 F.2d 725, 726-728 (3d Cir. 1989)].

The Fourth and Eleventh Circuits avoid res judicata by

allowing property owners to file initially in federal court while

filing a “reservation” in state court. This “reservation” allows

the state court to hear issues of state law while reserving federal

constitutional issues to be decided later by a federal trial. [See

11

Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299 (11th

Cir. 1992); Front Royat & Warren County Indus. Park Corp. v.

Town of Front Royal, 135 F.3d 275 (4th Cir. 1998); Jennings v.

Caddo Parish School Bd., 531 F.2d 1331 (Sth Cir. 1976)].

The Ninth Circuit, in particular, has vacillated about which

approach to take. It hinted at accepting the approach of the

Fourth and Eleventh Circuits in Dodd v. Hood River County, 59

F.3d 852 (9th Cir. 1995) (Dodd I). However, in Dodd I] it went

back to its old approach of treating Williamson County as being a

basis for res judicata. Dodd v. Hood River County, 136 F.3d

1219 (9th Cir. 1998) (Dodd II).

It is clear that the lower courts need guidance in this area.

Arguing simply from an efficiency standpoint neither system

works well. The Ninth Circuit approach will have certiorari

petitions to this Court increase dramatically if it is the only

avenue of appeal from a state court decision in property rights

cases. The Fourth and Eleventh Circuits tie up two court

systems for the sake of balancing constitutional rights with the

requirements of Williamson County and the traditional notions of

judicial restraint.

12

soccer

From a constitutional point of view, “(t)he Supreme Court

could hardly have intended the ripeness rules to become a trap

for federal litigants.” Mandelker, Gerard, & Sullivan, Federal

Land Use Law §4A.02(6) at p. 4A-21 (Clark, Boardman,

Callaghan 1998).

The role of the court as the final interpreter of the

Constitution and the grant of federal courts to have original

jurisdiction under 28 U.S.C. § 1332 for federal questions is

severely undermined if res judicata is allowed to prevent

property owners from receiving just compensation for

governmental takings.

A review of the use of Williamson County ripeness bar

utilized by lower courts severally undercuts the notion of the

federal courts as being the protector of federal constitutional

rights. The result on property owners is an unsure future.

Between 1990 and 1997 federal courts used the Williamson

County ripeness doctrine to refuse to review over 90 percent of

all cases that dealt with land-use taking issues. Alex F. Annett,

The Heritage Foundation, How Congress Can End the

“Regulatory Limbo” Blocking Property Owners’ Access to

13

Justice, FY] No. 154 October 1, 1997. See also Gregory

Overstreet, The Ripeness Doctrine of the Takings Clause: A

Survey of Decisions Showing Just How Far Federal Court's Will

Go to Avoid Adjudicating Land Use Cases \0 J.Land Use and

Envt’l L. 91, 92 (for cases showing the lengths some federal

courts will go to avoid hearing property rights cases).

The effect on landowners is painfully obvious. They are the

only class of individuals in a Section 1983 that are singled out

“ripen” their case in this manner. However, as this case

demonstrates, if the state has a procedure to address the taking

then they are barred by res judicata from litigating in federal

court even if the state court has found that a taking has occurred

but has failed to order just compensation. Property rights are the

only area where states and localities are allowed to ignore the

constitutional requirement that a taking requires just

compensation. Until this Court reviews its decision in

Williamson County and clarifies how it is affected by res

judicata, this unconscionable situation will continue to the

detriment of private property rights.

14

ne

CONCLUSION

For the forgoing reasons, the judgment of the court below should

be reversed.

Respectfully submitted,

Nancie G. Marzulla

President and Chief

Legal Counsel

DEFENDERS OF

PROPERTY RIGHTS

1350 Connecticut Ave., N.W.

Washington, D.C. 20015

(202) 686-4197

Counsel for amicus curiae

August 5, 1999

15