Opposition Brief — Sophocleus v. Alabama Department of Transportation

Supreme Court, U.S

(2) JUN 15 2mng-

OFFICE OF THE CLERK

No. 04-1113

IN THE

Supreme Court of the Gr'ted States

4

vv

JOHN SOPHOCLEUS, et ux.,

Petitioners,

V.

ALABAMA DEPARTMENT OF TRANSPORTATION, et al.,

Respondents.

a

-

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

At

BRIEF IN OPPOSITION FOR RESPONDENTS

ALABAMA DEPARTMENT OF TRANSPORTATION,

TODD, BOWLIN, BUTTS, AND LEONARD

a

—.

TROY KING

Attorney General

KEVIN C. NEWSOM

Solicitor General

JIM R. IPPOLITO, JR. CHARLES B. CAMPBELL*

Assistant Attorney General & Assistant Attorney General

Chief Counsel Counsel of Record* ;

ALABAMA DEPARTMENT OF OFFICE OF THE ATTORNEY GENERAL

TRANSPORTATION — LEGAL DIVISION STATE OF ALABAMA

1409 Coliseum Boulevard 11 South Union Street

Montgomery, AL 36110-2060 Montgomery, AL 36130-0152

(334) 242-6350 (334) 242-7300; (334) 353-3198*

Se ee ered

i

QUESTION PRESENTED

(Restated)

Did the Court of Appeals for the Eleventh Circuit cor-

rectly affirm the district court’s dismissal for lack of

subject-matter jurisdiction under the Rooker-Feldman

doctrine where: (i) Petitioners’ claims are “inextricably

intertwined” with a state-court condemnation judgment;

and (ii) Petitioners raised or could have raised their

claims in the condemnation proceedings in state court?

(

i

TABLE OF CONTENTS

QUESTION Pais WP cctcnisesassnssdonscensecesssebcncqenewessianis

TABLE OF AU TER Aie MEI scssnsccseccsostsssopensconoutiintnsenctascens

BRIEF IN OPPOSITION FOR RESPONDENTS

ALABAMA DEPARTMENT OF TRANSPORTATION,

TODD, BOWLIN, BUTTS, AND LEONARD...................

OPINIONS BIW. ciicicns oteseiniacechiaeinowene

CONSTITUTIONAL AND STATUTORY PROVISIONS..1

I.

Il.

The Claims in This Action Are “Inextricably

Intertwined” With the Judgment in the State-

Court Condemnetion Proceedings Against

Petitioners, and Petitioners Raised or Could Have

Raised Their Claims in State Court ...............:::eeeees

A. Petitioners’ Claims Are “Inextricably

Intertwined” with the State-Court Judgment........ 7

B. Petitioners Raised or Could Have Raised Their

Canes Si TE

Petitioners Are Inviting the Federal Courts to

Review and Reject the State-Court Judgment in

Their Condemnation Proceedings...................s:eee-ee0s

III. Petitioners Allege No Conflict in the Circuits, and

this Case Presents a Poor Vehicle for Further

Refinement of the Rooker-Feldman Doctrine.............

CONC AFTEIS snicasustansicsinaucnssncsnnesenkbiencasbecalinbinpmaniiesesteis

TABLE OF AUTHORITIES

Cases

Allegheny County v. Frank Mashuda Co.,

a isonstoinmentanionen 12

Anderson v. Charter Township of Ypsilanti,

a cE an ciseensinmenmenmeninnl 9

Centifanti v. Nix,

a cae ee css iccocsssnsnernstecmacncnssennes 8

District of Columbia Court of Appeals v. Feldman,

GIRS capi arate melee passim

Ex parte Palughi,

494 So. 2d 404 (Ala. 1986) sect iciaicinadsiioeiiiaddalnidistiebteee 10, 11

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

is Gai BIT CIID aivninsersscchcccsactossceces 7-8, 10, 11, 12

Florence v. Williams,

I i 13

Fontana Empire Ctr., LLC v. City of Fontana,

reer oer We MOPED WU, SID oiscseciesstln ds Secscilsinsdhceidondonhonenac 9

Garry v. Geils,

ie cae ee Cte ee, SO acne secs cctcediccsences 7,9

Gober v. Stubbs,

ts I I AR ic csichsssinchnscinsicctsadinasortbdonves 13

Hachamovitch v. DeBuono,

A Bie Ee Ge Ga, HI veins ieseccdnssdinssanocendencnianives 8

Hendersonville Light & Power Co. v. Blue Ridge

Interurban Ry. Co., 243 U.S. 563 (1917).............000008 13

Hill v. Town of Conway,

RO Ore Ie Gs acai niente tncbitnsaiennins 8

Johnson v. Way Cool Mfg.,

20 Fed. Appx. 895 (Fed. Cir. 2001) ................cceseeeeeeeees 9

iV

Kaukauna Water Power Co. v. Green Bay & Miss.

Ces Cap, BAR Ue. BBE CRB) nnn ncccccccscciscnncccossenseseees 13

Keene Corp. v. Cass,

BU Fe FO Ge Cir, TI nsec snssncccsssncesvecnisanececsssonsns 9

Lewis v. Anderson,

308 F.3d 768 (7th Cir. 2002),

cert. denied, 538 U.S. 908 (2003)..............sssessssssrorseccenes 9 -

N. Ward Co. v. Bd. of Street Commr’s of City of

Boston, 217 Mass. 381, 104 N.E. 965 (1914).............. 13

Pennzoil Co. v. Texaco, Inc.,

IRE FET FG siete censsioacevenihicnsnenssvstinarssninecivnanietans 8

Plyler v. Moore,

129 F.3d 728 (4th Cir. 1997),

cert. denied, 524 U.S. 945 (1998).................scsssssseseseeeees 8

Redevelopment Agency of City & County of San

Francisco v. Hayes, 122 Cal. App. 2d 777,

266 P.2d 105, cert. denied, 348 U.S. 897 (1954)......... 13

Rooker v. Fidelity Trust Co.,

ae i, Se ia adckictspticantasceddinsnesenaceneonaed passim

Siegel v. LePore,

BF BE TSE. Eo eae eee 9

State v. Reynolds,

Br tee aaah ctenpncnsensinnsoimeranin 10

Swan Lake Hunting Club v. United States,

SB 7.28 See ee Gt: A bc, 13

United States v. Chandler-Dunbar Water Power

ic, Be artis I a ic sidserenseseicosgbaccactcehdcccclitcrctias 13

Varallo v. Sup. Ct. of Colo.,

176 F.3d 490, 1999 WL 140161

ee UR UI TG, I ia aca anriveai suc aad ccuncance 9

Vv

Constitutional! Provisions

Sree IE: SIN cacatekatsarreptesadoicantndigcenaticnnanbibinenninns 1

Se I. IE: FEO 5 Biviiccicecacinindanavntihcohideticscsiatniineveaneie 1

Statutes

GE FRA s. B Be CN sincscchikpaipeteeiinidinchstocnin iaitinliaiibesesh 2

PRES FM Fk. REO etre ere aN ETT 2-3

Bite: GS TE 0 Cae ihscnctnstncccnceassviidctenteconeiss 10, 11

pt me 8 ee 2 ot: | SRR eee eee eer rr 3

Ala. Code §§ 18-1A-279 to 18-1A-282 (1997) ......scessseesssee-0 3

Ble, CSS TR TR sii enn 3

Bi. See Bi BG Ce ests sc stserdenicenntsinnnsinetiibeesionins 3

Rules

FB esis cin nepaadinniesinasceacdde asinine 10

a Fs ee aacaciaetaicia ni ao hia seni ecsscncmeaitoas 10

Other Authorities

26 Am. Jur. 2d Eminent Domain § 55 (1996)................6. 14

29A C.J.S. Eminent Domain § 29(c) (1992)............ccceeeeees 14

Eminent Domain: Combination of Public and Private

Uses or Purposes, 53 A.L.R. 9 (1928) .............ccccceeeeees 13

Suzanna Sherry, Judicial Federalism in the

Trenches: The Rooker-Feldman Doctrine in

Action, 74 Notre Dame L. Rev. 1085 (1999)................. 8

1

BRIEF IN OPPOSITION FOR RESPONDENTS

ALABAMA DEPARTMENT OF TRANSPORTATION,

TODD, BOWLIN, BUTTS, AND LEONARD

Respondents Alabama Department of Transportation

(ALDOT), and current and former ALDOT employees

Margie Champion Todd, Paul Bowlin, Jimmy Butts, and

DeJarvis Leonard, in their individual capacities, respect-

fully file this brief in opposition to the petition for a writ

of certiorari filed by Petitioners John Sophocleus and

Theresa Sophocleus.

OPINIONS BELOW

The Court of Appeals’ opinion, Pet. App. la—5a, is un-

reported; it is noted in a “Table of Decisions Without

Reported Opinions” at 116 Fed. Appx. 246. The Court of

Appeals’ denial of rehearing en banc is noted at 124 Fed.

Appx. 644. The district court’s opinion and judgment

dismissing this case for lack of subject-matter jurisdiction,

Pet. App. 6a—32a, are reported at 305 F. Supp. 2d 1238.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Takings Clause of the Fifth Amendment to the

United States Constitution provides:

[NJor shall private property be taken for public

use, without just compensation.

U.S. Const. amend. V.

The Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution provides:

No State shall ... deprive any person of life, lib-

erty, or property, without due process of law ....

U.S. Const. amend. XIV, § 1.

—...

2

Section 1983 of Title 42 of the United States Code

provides, in relevant part, as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia, sub-

jects, or causes to be subjected, any citizen of the

United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper pro-

ceeding for redress....

42 U.S.C. § 1983 (2000).

Section 1985 of Title 42 of the United States Code

provides, in relevant part, as follows:

If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the

premises of another, for the purpose of depriving,

either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of

equal privileges and immunities under the laws; or

for the purpose of preventing or hindering the con-

stituted authorities of any State or Territory from

giving or securing to all persons within such State

or Territory the equal protection of the laws; or if

two or more persons conspire to prevent by force,

intimidation, or threat, any citizen who is lawfully

entitled to vote, from giving his support or advo-

cacy in a legal manner, toward or in favor of the

election of any lawfully qualified person as an elec-

tor for President or Vice President, or as a Member

of Congress of the United States; or to injure any

citizen in person or property on account of such

support or advocacy; in any case of conspiracy set

forth in this section, if one or more persons en-

gaged therein do, or cause to be done, any act in

rene er

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|

|

f

3

furtherance of the object of such conspiracy,

whereby another is injured in his person or prop-

erty, or deprived of having and exercising any

right or privilege of a citizen of the United States,

the party so injured or deprived may have an ac-

ticn for the recovery of damages occasioned by

such injury or deprivation, against any one or

more of the conspirators.

42 U.S.C. § 1985(3) (2000).

STATEMENT

In May 1998, the State of Alabama filed a petition for

condemnation in the Probate Court of Lee County, Ala-

bama, to condemn Petitioners’ home for the purpose of

widening U.S. Highway 280 from two to four lanes be-

tween Dadeville and Opelika, Alabama. Pet. App. 8a; see

Ala. Code § 18-iA-71 (1997). After appointing commis-

sioners to assess the value of Petitioners’ property, see

Ala. Code §§ 18-1A-279 to 18-1A-282 (1997), the probate

court entered a Decree of Condemnation awarding Peti-

tioners $85,000 for their property in August 1998. Pet.

App. 8a. The State paid $85,000 into the probate court on

August 7, see Ala. Code § 18-1A-284 (1997), and Petition-

ers received a letter demanding that they vacate their

property by September 10, 1998. Pet. App. 8a.

Petitioners refused to vacate their home, however.

Id. They also appealed the probate court decree to the

Circuit Court of Lee County, Alabama, for a trial de novo.

Pet. App. 9a; see Ala. Code § 18-1A-283 (1997). The State

cross-appealed. Because Petitioners refused to vacate

their property, in December 1998 the State also filed a

separate eviction proceeding against Petitioners in the

District Court of Lee County. Pet. App. 9a.~ After a trial

in January 1999, the district court entered a writ of

possession evicting Petitioners and turning over posses-

4

sion of their property to the State. Pet. App. 10a. Peti-

tioners did not appeal their eviction, and moved out of

their house on January 18, 1999. Id. at 10a—1la.

In the state district court eviction proceeding, Peti-

tioner John Sophocleus filed a counter-affidavit stating

“that ‘officials from the Department of Transportation

now intend to use my house ... for use by public trans-

portation officials for work purposes. Consequently, this

property and the house located thereon are not currently

needed for the construction of Highway 280 as the De-

partment of Transportation has no intention of razing the

house.” Pet. App. at 9a—10a. Petitioners made similar

allegations, and requested relief based on those allega-

tions, in their state circuit court appeal in the condemna-

tion proceeding:

On August 11, 1999, the Sophocleuses filed an

“Amended Appeal” in the condemnation case in the

state trial court. In this pleading, the Sophocle-

uses stated that they were evicted in January 1999

“under allegations to the Court that there was an

immediate need for the property and that the

structures thereon would be immediately de-

stroyed,” but that “[dJespite these allegations to

the court, the State failed and refused, for an un-

reasonable period of time, to destroy the Appel-

lants’ home and/or to make use of the condemned

property.” They further alleged that the actions of

the State were “capricious, arbitrary and done in

bad faith.” They asked the court to “set aside the

decision of the Commissioners” as to the proper

compensation for their land, and to award “other,

further or different relief, including but not limited

to punitive damages, damages for mental anguish

and expenses for the second relocation, as may be

just and proper.”

Wee >

5

Also on August 11, the Sophocleuses filed pre-

trial contentions with the state trial court in which

they repeated the allegations, made in their

counter-affidavits in the eviction case, that in De-

cember 1998 “the State of Alabama had no current

need for the condemned property and that the

State intended to use the structures located on the

property for storage, despite the fact that no just

compensation had been paid for the same.” They

further alleged that since their eviction in January

1999, “their house remains intact and inhabitable.”

Pet. App. 12a—13a (footnotes omitted).

The day before the condemnation proceeding was set

for trial de novo, however, Petitioners settled with the

State. Pet. App. 13a. “The Sophocleuses agreed to the

condemnation[,] and the State agreed to pay them

$145,000.” Id. This amount was $60,000 more than the

appraised fair-market value fixed by the commissioners in

probate court. See Pet. App. 8a. The state circuit court

then entered an order and decree of condemnation hold-

ing, in relevant part, as follows:

“The parties to this cause reached a settlement

and advised this Court of the same. Thereupon,

the Court proceeded to hear the allegations of the

application or petition for an order of condemna-

tion, and upon the consideration of said application

and with the consent and agreement of the parties

and for good cause shown, it is the opinion and

judgment of the Court that the allegations of said

petition are true, and that it is necessary that the

property described in Exhibit “A” be condemned for

the uses and purposes stated in said petition and

that the said application for order of condemnation

should be granted.”

Pet. App. 13a—l4a. Petitioners’ house was razed in

November 1999, after which the Highway 280 expansion

6

project was completed and now occupies the land where

the house was located. Pet. App. 14a.

In May 2000—nearly nine months after the state cir-

cuit court entered its order and decree of condemnation—

Petitioners filed this action in the United States District

Court for the Middle District of Alabama. After the case

was reassigned from a magistrate judge to a district

judge, the district court dismissed the case for lack of

subject-matter jurisdiction under the Rooker-Feldman

doctrine. Disagreeing with the magistrate judge, the

district court held that Petitioners’ federal claims were

“inextricably intertwined” with the state-court judgment

in their condemnation proceedings. Pet. App. 2la—25a.!

The court also held that Petitioners had actually pre-

sented their claims, albeit in a different form, in the state-

court condemnation proceedings, Pet. App. 19a—20a, and

that “even if they had not raised their claims in state

court, [they] certainly had the opportunity to do so,” Pet.

App. 26a—27a. The court also concluded that Petitioners’

claims were barred under Rooker-Feldman although the

factual predicate for those claims did not arise until after

the State initiated the condemnation proceedings. Pet.

App. 27a—30a.

The Court of Appeals for the Eleventh Circuit af-

firmed the district court’s dismissal in a brief, unreported

per curiam opinion. Pet. App. la—5a. Based on its review

of the record, the court of appeals concluded that

the district court did not err by concluding, for

Rooker-Feldman purposes, that this claim is inex-

tricably intertwined with the state condemnation

proceedings. As the Seventh Circuit put it in an

analogous case, if Appellants meant to challenge

1 The district court also held that it was not required to follow the

magistrate judge’s conclusions under the law-of-the-case doctrine. Pet.

App. 15a—17a.

ee

7

the state condemnation proceeding as unconstitu-

tion, “they should have done so through the Illinois

condemnation process, and ultimately to the

United States Supreme Ccurt if necessary.”

Pet. App. 5a (quoting Garry v. Geils, 82 F.3d 1362, 1368—

69 (7th Cir. 1996)). The court of appeals also agreed that

Petitioners had the opportunity to raise their arguments

in the state-court proceedings. Id. Accordingly, the court

of appeals “affirm[ed] the district court’s dismissal of this

case for lack of subject-matter jurisdiction.” Id.

REASONS FOR DENYING THE PETITION

I. The Claims in This Action Are “Inextricably

Intertwined” With the Judgment in the State-

Court Condemnation Proceedings Against Peti-

tioners, and Petitioners Raised or Could Have

Raised Their Claims in State Court.

A. Petitioners’ Claims Are “Inextricably Inter-

twined” with the State-Court Judgment.

In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),

this Court held that the federal district courts’ jurisdic-

tion is “strictly original,” and that “no court other than

this court could entertain a proceeding to reverse or

modify” a state-court judgment. Jd. at 416. Sixty years

later, in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983), this Court noted that “lijf

the constitutional claims presented to a United States

district court are inextricably intertwined with the state

court's denial in a judicial proceeding of a particular

plaintiffs application for admission to the state bar, then

the district court is in essence being called upon to review

the state-court decision. This the district court may not

do.” Id. at 482 n.16 (emphasis added). Thus, as the Court

noted earlier this year, in Feldman, the Court “explained

that a district court could not entertain constitutional

8

claims attacking a state-court judgment, even if the state

court had not passed directly on those claims, when the

constitutional attack was ‘inextricably intertwined’ with

the state court’s judgment.” Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 125 S. Ct. 1517, 1523 n.1 (2005).

The “inextricably intertwined” aspect of Feldman can

be a thorny issue, but over the years “[t]he most useful—

and frequently quoted—definition of ‘inextricably inter-

twined’ comes from Justice Marshall’s concurrence in

Pennzoil Co. v. Texaco, Inc.{, 481 U.S. 1 (1987)].” Suz-

anna Sherry, Judicial Federalism in the Trenches: The

Rooker-Feldman Doctrine in Action, 74 Notre Dame L.

Rev. 1085, 1097 (1999). In Pennzoil, Justice Marshall

observed that

[w]hile the question whether a federal constitu-

tional challenge is inextricably intertwined with

the merits of a state-court judgment may some-

times be difficult to answer, it is apparent, as a

first step, that the federal claim is inextricably in-

tertwined with the state-court judgment if the fed-

eral claim succeeds only to the extent that the state

court wrongly decided the issues before it. Where

federal relief can only be predicated upon a convic-

tion that the state court was wrong, it is difficult to

conceive the federal proceeding as, in substance,

anything other than a prohibited appeal of the

state-court judgment.

481 U.S. at 25 (Marshall, J., concurring in judgment)

(emphasis added). Eleven of the thirteen circuit courts of

appeals have used Justice Marshall’s definition in decid-

ing whether federal claims are “inextricably intertwined”

with a state-court judgment within the merning of

Feldman. See Hill v. Town of Conway, 193 F.3d 33, 39

(1st Cir. 1999); Hachamovitch v. DeBuono, 159 F.3d 687,

694-95 (2d Cir. 1998); Centifanti v. Nix, 865 F.2d 1422,

1430 (3d Cir. 1989); Plyler v. Moore, 129 F.3d 728, 731-32

9

(4th Cir. 1997), cert. denied, 524 U.S. 945 (1998); Ander-

son v. Charter Township of Ypsilanti, 266 F.3d 487, 492—

93 (6th Cir. 2001), Lewis v. Anderson, 308 F.3d 768, 772

(7th Cir. 2062), cert. denied, 538 U.S. 908 (2003); Keene

Corp. v. Cass, 908 F.2d 293, 296-97 (8th Cir. 1990);

Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d

987, 992 (9th Cir. 2002); Varallo v. Sup. Ct. of Colo., 176

F.3d 490, 1999 WL 140161, at *1 (10th Cir. Mar. 16, 1999)

(unreported decision); Siegel v. LePore, 234 F.3d 1163,

1172 (11th Cir. 2000) (en banc); Johnson v. Way Cool

Mfg., 20 Fed. Appx. 895, 898 (Fed. Cir. 2001) (unreported

decision).?

In this case, the Eleventh Circuit affirmed the district

court’s conclusion that Petitioners’ claims in federal court

were “inextricably intertwined with the state condemna-

tion proceedings” against them, holding that Petitioners

should have presented their claims in the state-court

proceedings. Pet. App. 5a (quoting Garry v. Geils, 82 F.3d

1362, 1368-69 (7th Cir. 1996)). As the district court

correctly explained:

If the Sophocleuses were to prevail in this case by

convincing this court that the taking of their land

was for a private use from January to August

1999, and were to win damages based on that

claim, that would mean that the state court was

wrong in concluding (1) that the condemnation was

necessary and for a public use, and (2) that the

compensation the Sophocleuses received was ade-

quate.

Pet. App. 21a. In other words, “the Sophocleuses’ claims

directly implicate the correctness of the state court’s

judgment: if they are right that the State took their home

2 The Fifth Circuit and District of Columbia Circuit have

not disagreed; they simply have not addressed Justice Mar-

shall’s definition.

10

for private use, then the state court was wrong to con-

clude that the condemnation was for a public use.” Pet.

App. 28a.

Under the “inextricably intertwined” aspect of the

Rooker-Feldman doctrine—as refined in Exxon Mobil—

the district court lacked subject-matter jurisdiction over

Petitioners’ federal-court claims.

B. Petitioners Raised or Could Have Raised

Their Claims in State Court.

- Petitioners incorrectly maintain that they could not

present their claims in their condemnation appeal to the

state circuit court for trial de novo. See Pet. at 11. In

fact, the district court correctly found that Petitioners had

raised those claims in state court, albeit not in the same

form as their claims in federal court. Pet. App. 19a—20a.

Moreover, and in any event, Petitioners could have

presented their claims in state court in essentially the

same form they are in now—as counterclaims and third-

party claims. The Supreme Court of Alabama has al-

lowed a condemnee to bring a counterclaim for wrongful

condemnation in a circuit court appeal for trial de novo.

See Ex parte Palughi, 494 So. 2d 404, 407—08 (Ala. 1986)

(allowing condemnee to pursue counterclaim for wrongful

- condemnation under prior law). Although Ex parte

Palughi was decided under prior law, its holding that the

Alabama Rules of Civil Procedure govern condemnation

appeals to circuit court remains good law. See State v.

Reynolds, 887 So. 2d 848, 852-54 (Ala. 2004) (quoting

Palughi); Ala. Code § 18-1A-70 (1997) (Alabama Rules of

Civil Procedure govern procedure for eminent domain -

except as otherwise provided in Alabama Eminent Do-

main Code). Those rules provide for permissive and

compulsory counterclaims, see Ala. R. Civ. P. 13, and

third-party claims, Ala. R. Civ. P. 14(a), and Petitioners

could have asserted all of their present claims as counter-

claims or third-party claims under those rules. See

11

Palughi, 494 So. 2d at 408 n.1 (noting Ala. Code § 18-1A-

70).

Thus, as the court of appeals and the district court

concluded, Petitioners’ claims in this action are “inextri-

cably intertwined” with the judgment in the state-court

condemnation proceeding within the meaning of Feldman,

and Petitioners did (or could have) presented their claims

in state court. Accordingly, the courts below correctly

determined that the district court lacked subject-matter

jurisdiction.

II. Petitioners Are Inviting the Federal Courts to

Review and Reject the State-Court Judgment in

Their Condemnation Proceedings.

Now apparently convinced that they were on the los-

ing end of their state-court settlement, Petitioners seek to

have a federal district court effectively reverse (at least in

part) their state-court judgment and award them addi-

tional damages. As the district court recognized, to award

additional damages for the alleged private use of Peti-

tioners’ property from January—August 1999 would

require the district court effectively to reverse the state-

court judgment that the taking was for a public use—at

least for the eight months between January and August

1999.

Thus, this case fits the classic mold of Rooker-

Feldman doctrine: “cases brought by state-court losers

complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced

and inviting district court review and rejection of those

judgments.” Exxon Mobil, 125 S. Ct. at 1521-22. Peti-

tioners artfully plead their grievances as distinct claims

for damages, but the essence of their claims is nonethe-

less that the state court was wrong to hold that the

State’s taking was for a public purpose—at least for part

12

of the time the property was taken—and that the state

court’s compensation for the taking was inadequate. An

award of damages to Petitioners in federal court would

thus work a reversal, or at least a modification, of the

state-court judgment in a fashion prohibited by Rooker

and Feldman.

_

III.Petitioners Allege No Conflict in the Circuits,

and this Case Presents a Poor Vehicle for Fur-

ther Refinement of the Rooker-Feldman Doc-

trine.

In their Petition, Petitioners do not allege any conflict

among the courts of appeals on the application of the

Rooker-Feldman doctrine to their federal claims. More-

over, as Respondent Reese & Howell, Inc., explains, the

alleged conflict between the decision below and prior

decisions of this Court is illusory. In particular, reconsid-

eration in light of Exxon Mobil is not warranted because,

as already shown, Petitioners fit the Rooker-Feldman

paradigm of “state-court losers complaining of injuries

caused by state-court judgments.” Exxon Mobil, 125 S.

Ct. at 1521-22.

In addition, this case presents a poor vehicle for fur-

ther refinement of the Rooker-Feldman doctrine after

Exxon Mobil. This is so, first, because the underlying

“private use” claims are frivolous. See Allegheny County

v. Frank Mashuda Co., 360 U.S. 185, 199 n.1 (1959)

(Clark, J., dissenting) (characterizing as frivolous respon-

dents’ claim that lease of strip of condemned land to

contractor for storage of supplies while contractor ex-

panded public airport constituted abandonment of public

use). Even if a court were to accept Petitioners’ assertion

that the temporary use of their home by a contractor

while engaged in widening a highway constituted a

private use, such incidental use would not change the

overarching character of the condemnation of Petitioners’

13

property for a public use. “The general rule is well settled

that the exercise of eminent domain for a public purpose

which is primary and paramount will not be defeated by

the fact that incidentally a private use or benefit will

result which would not of itself warrant the exercise of

the power.” Eminent Domain: Combination of Public and

Private Uses or Purposes, 53 A.L.R. 9, 12 (1928); see

Hendersonville Light & Power Co. v. Blue Ridge Interur-

ban Ry. Co., 243 U.S. 563, 569-70 (1917) (Holmes, J.)

(sale of surplus electric power generated by dam was “a

possible incident, necessary to prevent waste, of the

primary public use”); United States v. Chandler-Dunbar

Water Power Co., 229 U.S. 53, 73 (1913) (“If the primary

purpose [for building dam] is legitimate, we can see no

sound objection to leasing any excess of power over the

needs of the government.”); Kaukauna Water Power Co. v.

Green Bay & Miss. Canal Co., 142 U.S. 254, 273 (1891)

(“But if, in the erection of a public dam for a recognized

public purpose, there is necessarily produced a surplus of

water, which may properly be used for manufacturing

purposes, there is no sound reason why the state may not

retain to itself the power of controlling or disposing of

such water as an incident of its right to make such im-

provement.”); Swan Lake Hunting Club v. United States,

381 F.2d 238, 242 (5th Cir. 1967) (“Where both public and

private use are to be made of property sought to be

condemned, the exercise of the power will not be defeated

if the private use is sufficiently subordinate to the public

use as to be incidental to it.”); Gober v. Stubbs, 682 So. 2d

430, 435 (Ala. 1996) (“‘“Once it is determined that the

taking is for a public purpose the fact that private persons

may receive benefit is not sufficient to take away from the

enterprise the characteristics of a public purpose.” ’”)

(quoting Florence v. Williams, 439 So. 2d 83, 89 (Ala.

1983), in turn quoting Redevelopment Agency of City &

County of San Francisco v. Hayes, 122 Cal. App. 2d 777,

804, 266 P.2d 105, 122, cert. denied, 348 U.S. 897 (1954));

N. Ward Co. v. Bd. of Street Commr’s of City of Boston,

14

217 Mass. 381, 386, 104 N.E. 965, 967 (1914) (“Nor can it

be said that this taking was invalid because made at the

request of a contractor and because the land taken was

intended to be used, for some time at least, by that

contractor.”); see generally 29A C.J.S. Eminent Domain §

29(c) (1992); 26 Am. Jur. 2d Eminent Domain § 55 (1996).

Second, this case presents a poor vehicle because the

Court of Appeals’ opinion in this case is not reported, and

is not even reprinted in the Federal Appendix. Thus, the

Court of Appeals’ decision is unlikely to have much, if

any, impact on the Rooker-Feldman doctrine.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

TROY KING

Attorney General

KEVIN C. NEWSOM

Solicitor General

CHARLES B. CAMPBELL*

Assistant Attorney General

Counsel of Record*

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-7300; (334) 353-3198*

JIM R. IPPOLITO, JR.

Assistant Attorney General &

Chief Counsel

ALABAMA DEPARTMENT OF

TRANSPORTATION — LEGAL DIVISION

1409 Coliseum Boulevard

Montgomery, Alabama 36110-2060

June 15, 2005 (334) 242-6350