Reply Brief — Rodriguez v. Louisiana Department of Transportation & Development

AUG 19 1999

a

98-1911

No. 98-1191 ob ICE OF THE CLERK

In The

Supreme Court of the United States

¢

WALTER S. RODRIGUEZ AND

ALPHONSE J. MARANTO,

Petitioners,

STATE OF LOUISIANA, DEPARTMENT OF

TRANSPORTATION AND DEVELOPMENT,

Respondent.

+

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Louisiana

*

PETITIONERS’ REPLY BRIEF

+

RANDALL A. SmitnH, Esa.

Of

SmitH, Jones & Fawer, L.L.P.

201 St. Charles Avenue, Suite 3702

New Orleans, Louisiana 70170

Telephone: (504) 525-2200

Counsel of Record for Petitioners

Walter S. Rodriguez and

Alphonse J. Maranto

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

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PA ET eT eT ee Ty eee ee ee ee eee

1. The DOTD’s Procedural Argument

2. The DOTD’s Substantive Argument

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TABLE OF AUTHORITIES

Page

Cases

Alden v. Maine, 119 S.Ct. 2240, U.S. _, __

ee Pe re ee rere rp 2

College Savings Bank v. Florida Prepaid Postsecondary

Education Expense Board, 119 S.Ct. 2219,___ US.

econo aang, VIE i, LUE yaw her sured eutratesaes 2

Flood v. Kuhn, 443 F.2d 264 (2nd Cir. 1971), aff'd,

407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972) ..... 7

Florida Prepaid Postsecondary Education Expense

Board v. College Savings Bank, 119 S.Ct. 2199,___

ti ne oh Ree re er errr eee 2

McMillion Dozer Service, Inc. v. State of Louisiana,

Department of Transportation & Development, 514

U.S. 1108, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1994) ..... 2

Spear v. Town of West Hartford, 789 F.Supp. 80

CEA ems. WOE oc cy ceeds te ee ee ee eae Beh

State of Louisiana, Department of Transportation &

Development v. Hellenic, Inc., 94-1637 (La.

BOS 7 F9O), GAG DOB Ge 6a ae eek rehearses 7

State of Louisiana, Department of Transportation &

Development v. McMillion Dozer Service, Inc.,

94-2345 (La. 11/29/94), 646 So.2d 399.............. 7

United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277,

OF Le. Bre Cee a ban eae eee ree ee leensesess 7

STATUTES

a Te Ses vs eon eae eee ea ee eens 9

SM. TD. QOS CEO abi crvcdecetveaenes 346, 7,9

1

ARGUMENT

This reply brief is submitted by petitioners Walter S.

Rodriguez and Alphonse J. Maranto (the “Landowners”)

in response to the opposition brief filed by respondent

State of Louisiana, Department of Transportation and

Development (the “DOTD”) in this matter.

Respondent offers essentially two reasons why this

Court should decline to exercise certiorari in this matter,

to which the Landowners respond in turn below:

(1) The Landowners failed to raise the consti-

tutional issue before this Court in the

proper manner in the courts below; and

(2) The Louisiana statute limiting interest on

an excess award of just compensation from

the date of a landowner’s “legal demand,”

instead of from the date of the expropria-

tion, does not violate the Fifth Amendment

to the United States Constitution, because it

only prescribes the timing of the citizen’s

right to interest.

The DOTD’s arguments, however, on the alleged pro-

cedural and jurisdictional bars to the consideration of this

matter by this Court are specious. Throughout this litiga-

tion, the Landowners have argued consistently that the

application of the 1988 version of La. R.S. 48:455 to this

matter would be unconstitutional, and the DOTD has

defended this statute on behalf of the State without

exception. On the substance of the Landowners’ writ

application, respondent’s arguments are simply weak.

Respondent does not even attempt to argue that unrea-

sonably depriving a property owner of post-taking inter-

est can be constitutional.

It is clear that based on this case and the other

expropriation cases from Louisiana that have preceded it,

2

Louisiana, as well as any other state, can and will inter-

pret a failure to rule upon this case as authority for a state

not to comply with the “just compensation” clause of the

United States Constitution. Although the Court has

recently upheld states’ sovereignty from Congressional

action under the Fourteenth Amendment,! this Court

should accept this writ and confirm that the states may

not ignore the requirements of the United States Consti-

tution.

Further, as the DOTD reminds this Court, on page 17

of its opposition brief, this question has been raised

before in McMillion Dozer Service, Inc. v. State of Louisiana,

Department of Transportation & Development, 514 U.S. 1108,

115 S.Ct. 1958, 131 L.Ed.2d 850 (1994) (cert. denied).

Indeed, in the McMillion case, the landowners predicted

that there would be other similar petitions for writ of

certiorari on this same issue if not resolved then. Nearly

five years later, the issue is back before this Court and we

have no better answer than we did then.

1. The DOTD’s Procedural Argument

Contrary to the DOTD’s primary argument, the

record reveals that the Landowners did raise the constitu-

tional issue timely and properly throughout this litiga-

tion. The following procedural history demonstrates that,

starting with the filing of their Answer in June 1995, at

1 See, e.g., Florida Prepaid Postsecondary Education Expense

Board v. College Savings Bank, 119 S.Ct. 2199, ___ U.S. __, __

L.Ed.2d ___ (1999); College Savings Bank v. Florida Prepaid Post-

secondary Education Expense Board, 119 S.Ct. 2219, __ U.S. ___,

____ L.Ed.2d ___ (1999); and Alden v. Maine, 119 S.Ct. 2240, ___

US. _., —_... L.Ed. 2d ___ (1999).

3

trial, and on appeal, the Landowners have continually

argued that the application of the 1988 version of La. R.S.

48:455 to this matter would be unconstitutional, and the

DOTD has defended the statute’s constitutionality:

August 8, 1988 - The DOTD certifies that it has

authority to expropriate the Landowners’ property in St.

Charles Parish, Louisiana;

August 17, 1988 - The DOTD obtains the required

certificates from its engineers;

September 21, 1988 - Passed in July 1988, the revised

version of La. R.S. 48:455 (1988) becomes effective, chang-

ing the date from which legal interest begins to run on

excess awards of just compensation from the date of

taking to the date of “legal demand”;

November 18, 1988 - Over three months after it

obtained authority, the DOTD finally files its Petition for

expropriation of the Landowners’ property;

December 8, 1988 - The Landowners file their Motion

for Authority to Withdraw Amount Deposited in Registry

of Court, specifically reserving “all of their rights to have

an adequate compensation determined by this Court”;

February 22, 1995 - The DOTD files its Notice certify-

ing that the construction of the project which caused the

need to expropriate the Landowners’ property is “satis-

factorily completed . . . and is accepted” by the DOTD;

June 1, 1995 - The Landowners file their Answer,

specifically demanding “legal interest upon the excess

compensation that is owed to them as a result of the

taking, from the date of the taking on November 18, 1988,

until paid, pursuant to applicable statutory and constitu-

tional law,” and alleging that “any statute or holding to

the contrary, including La. R.S. 48:455 (1988), is uncon-

stitutional”;

4

June 1, 1995 - The Landowners send, via certified

U.S. mail, a letter to Richard Ieyoub, the Attorney Gen-

eral for the State of Louisiana, notifying him and the State

that they are challenging the constitutionality of La. R.S.

48:455 (1988), but the Attorney General’s office never

responds;

June 2, 1995 - Judge Ruche Marino of the 29th Judi-

cial District Court for the Parish of St. Charles, State of

Louisiana, enters an Order setting the matter for trial on

March 27, 1996;

February 7, 1996 — Judge Marino re-sets the matter

for a jury trial to start January 27, 1997;

January 21, 1997 - The DOTD and the Landowners

submit a Joint Pre-Trial Statement, in which the DOTD

identifies “defendants’ contention regarding the appli-

cability or constitutionality of La. R.S. 48:455 (1988)” as a

statement of disputed law and, in that same document,

submits a memorandum of law supporting the 1988 ver-

sion of that statute;

January 27, 1997 — Trial begins before Judge Emile St.

Pierre, who has replaced the retired Judge Marino;

January 28, 1997 - The Landowners file a Memoran-

dum in Response to Plaintiff’s Memorandum in Support

of Its Statement of Disputed Law Regarding Legal Inter-

est, arguing that the application of La. R.S. 48:455 (1988)

to this matter would be unconstitutional;

February 3, 1997 - The Landowners file a Supplemen-

tal Memorandum in Response to Plaintiff’s Memorandum

in Support of Its Statement of Disputed Law Regarding

Legal Interest;

February 3, 1997 — Trial concludes and Judge St.

Pierre reads to the jury the following instruction, to

which the DOTD does not object:

5

When this suit was filed, the State deposited

some money with the Court for the defendants’

benefit. The defendants have claimed more

money. The amount of the State’s deposit is not

important to your decision. You simply need to

decide what amount is true just compensation.

If the “just compensation” you award is

more than that deposit, the State will have to

pay the difference, plus interest from the date

established by law.

February 3, 1997 — The jury renders a verdict, award-

ing more money to the Landowners than what was

deposited by the DOTD, thus entitling them to interest

“from the date established by law”;

February 27, 1997 - The Landowners file a Motion for

Entry of Judgment, again requesting that interest be

awarded from November 18, 1988, the date of taking, as

previously briefed to the court;

March 7, 1997 - The DOTD files a Memorandum in

Opposition to Defendants’ Motion for Entry of Judgment,

primarily objecting to any award of interest from the date

the Petition for expropriation was filed;

June 30, 1997 — Judge St. Pierre enters Judgment for

the jury’s award of just compensation, costs, and legal

interest on the difference between the amount deposited

by the DOTD and the amount awarded by the jury from

“November 18, 1998 until paid”; |

July 1, 1997 - The Landowners file a Motion for

Judgment Notwithstanding the Verdict, or alternatively

Motion for New Trial on various factual issues decided by

the jury; the DOTD does not file any post-trial motions,

but later files an appeal and petitioners cross-appeal;

April 24, 1998 - The DOTD files its Original Brief on

appeal to the Louisiana Fifth Circuit Court of Appeal,

6

challenging, inter alia, the district court’s award of inter-

est from the date of taking;

June 19, 1998 - The Landowners file their Original

Brief on appeal, supporting the district court’s award of

interest from the date of taking on the basis that La. R.S.

48:455 (1988) is unconstitutional;

July 14, 1998 - The DOTD files its Reply Brief on

appeal, supporting the constitutionality of the repealed

Louisiana legal interest statute;

October 28, 1998 - The Louisiana Fifth Circuit Court

of Appeal upholds the jury’s verdict and reverses the

district court’s granting of interest from November 18,

1998 to June 1, 1995; and

February 26, 1999 - The Louisiana Supreme Court

denies, without comment, both parties’ applications for

writs of certiorari, including the Landowners’ demand to

overturn the Louisiana Fifth Circuit’s denial of interest

from the date of taking until June 1, 1995.

Based on the foregoing, the DOTD’s repeated asser-

tions in its opposition brief that the constitutional issues

were “never appropriately raised in the Louisiana state

courts” are erroneous, at best. Indeed, from the Answer

filed in June 1995, through trial in January 1997, and on

appeal thereafter, the Landowners have argued consis-

tently that the application of the 1988 version of La. R.S.

48:455 to this matter would be unconstitutional, even

notifying the Attorney General’s office of this challenge.

And, throughout this time, the DOTD, a Louisiana State

agency, defended this statute on behalf of the State.

The DOTD’s related argument that the issue of legal

interest was not tried before the district court is also

meritless. As the plaintiff in this matter, the DOTD had

the opportunity and the burden to present any witnesses

7

or evidence it chose necessary to support the application

of the repealed interest statute at trial, but this was a legal

issue for which no formal offer of proof was required by

either party. Thus, when the matter was submitted to the

jury with the instruction quoted above, the decision of

when to tax interest was up to the presiding judge if the

jury’s award was greater than the amount deposited by

the DOTD. The jury’s award was in excess of the amount

deposited and the trial court subsequently entered its

decision based on the legal briefs of both parties.

Moreover, the DOTD’s complete speculation as to

why the Louisiana Supreme Court denied both parties’

applications for writs of certiorari is barely deserving of

response. It is well-established that an appellate court's

denial, without comment, of an application or petition for

writ of certiorari does not constitute an expression on the

merits. United States v. Shubert, 348 U.S. 222, 228 n. 10, 75

S.Ct. 277, 282 n. 10, 99 L.Ed. 279 (1955); Flood v. Kuhn, 443

F.2d 264, 268 n. 2 (2nd Cir. 1971), aff'd, 407 U.S. 258, 92

S.Ct. 2099, 32 L.Ed.2d 728 (1972); Spear v. Town of West

Hartford, 789 F.Supp. 80, 84 (D.Conn. 1992). Indeed, the

Louisiana Supreme Court has, without comment, denied

writs of certiorari in three separate expropriation matters,

including this case, concerning this same issue of the

application of the repealed version of La. R.S. 48:455

(1988). See State of Louisiana, Department of Transportation

& Development v. Hellenic, Inc., 94-1637 (La. 10/7/94), 644

So.2d 635; and State of I.ouisiana, Department of Transporta-

tion & Development v. McMillion Dozer Service, Inc.,

94-2345 (La. 11/29/94), 646 So.2d 399. Thus, merely

because the Louisiana Supreme Court chose to refuse to

hear this case, in which the constitutional issues were

8

properly raised, does not imply that the court found the

Landowners’ claim procedurally lacking.

2. The DOTD’s Substantive Argument

As for the remaining arguments in the DOTD’s oppo-

sition brief, respondent has divided the constitutional

issue into three separate questions. However, each of its

questions centers on the same concern of whether the

application of La. R.S. 48:455 (1988) is constitutional, even

though it deprives a landowner’s right to claim legal

interest on an award of just compensation from the date

of taking until he or she makes legal demand for compen-

sation beyond what was initially deposited by the DOTD.

Respondent first argues that the statute does not deny a

landowner the right to interest, but rather defines when

this interest begins to run, especially since a landowner

can make “legal demand” any time after the expropria-

tion proceeding is filed. However, the DOTD fails to give

a single example of what would constitute legal demand

and instead suggests that legal demand is broader than

“judicial demand,” which is defined under Louisiana law

as a formal pleading, such as a petition (complaint) or

reconventional demand (counterclaim). On appeal to the

Louisiana Fifth Circuit Court of Appeal, the Landowners

tried to make such an alternative argument that their

initial pleadings reserving their right to additional com-

pensation were legal demand, but the court of appeal did

not recognize the distinction now proposed by the DOTD

and found that these pleadings filed prior to the Answer

were not sufficient “legal demand” under the statute.

The DOTD next argues that Louisiana’s statutory

framework does not violate the Fifth Amendment of the

9

United States Constitution because the State’s expropria-

tion statutes do not prohibit a landowner from making

“legal demand” at any time after the expropriation pro-

ceeding is commenced. However, it would be impractical

to file an answer demanding additional compensation

until the State has comp'eted the subject construction

project and there is no further chance of more property

being taken by the State, which in this case did not occur

until over seven years and four months after the. DOTD

filed the Petition for expropriation. Then, as discussed in

the Landowners’ original brief, as soon as an answer is

filed, the matter can be set for trial within 60 days. La.

R.S. 48:451. In this matter, the Landowners filed their

Answer, which was their “legal demand,” merely three

and a half months after the DOTD filed its notice that the

project was complete, and the next day Judge Marino set

the matter for trial. As a result, even though a landowner

could file an answer with a legal demand for additional

compensation immediately after being served with the

expropriation Petition, as the DOTD argues, the effect of

the DOTD’s delay in completing the project and Louisi-

ana’s statutory framework makes such a practice impossi-

ble, as evidenced by the record of this matter.

Finally, the DOTD contends that Louisiana affords

landowners greater rights and remedies than federal law,

such as “delay damages,” so the State has the constitu-

tional authority to define such rights and to promulgate

when such rights may accrue. First, if respondent

believed that the award of delay damages to plaintiffs in

Louisiana courts was unconstitutional, it surely would

have filed for review by cross-petition in this Court.

Otherwise, it is certainly inappropriate to try to “offset” a

constitutional violation with an argument that plaintiffs

10

received more money than it would have had the case

been heard under federal takings law. Second, respon-

dent fails to appreciate the cases decided by this Court,

and cited in the Landowners’ original brief, which hold

that interest from the date of taking is a required compo-

nent of just compensation under the Fifth Amendment.

Instead, the DOTD relies upon nothing more than unsup-

ported argument that the timing of legal interest is within

the State’s right under the Tenth Amendment. Based

upon the multiple decisions cited in the Landowners’

original brief, an award of legal interest from the date of

taking is constitutionally required.

*

CONCLUSION

Based on the foregoing, and those arguments set

forth in the Landowners’ original brief, the Petition for

Writ of Certiorari should be granted, and this Court

should exercise its discretion to reverse and remand by

summary process, so as to clarify that pre-judgment inter-

est from the date of the taking is a requirement of “just

compensation” under the Fifth Amendment which

applies equally to state takings through the Fourteenth

Amendment.

Respectfully submitted,

RANDALL A. SMITH, Esa.

Of

SmITH, Jones & Fawer, L.L.P.

201 St. Charles Avenue, Suite 3702

New Orleans, Louisiana 70170

Telephone: (504) 525-2200

Counsel of Record for Petitioners

Walter S. Rodriguez and

Alphonse J. Maranto