Amicus Curiae Brief — DLX, Inc. v. Kentucky

FEB 2 8 2005

i Supreme Court, US}

be ) FILED

i ;

|

No. 04-1018 OFFICE OF THE CLERK

In the

Supreme Court of the United States

+

DLX, INC..,

Petitioner,

V.

COMMONWEALTH OF KENTUCKY; KENTUCKY

ENVIRONMENTAL AND PUBLIC PROTECTION

CABINET; and THE SECRETARY, KENTUCKY

ENVIRONMENTAL AND PUBLIC PROTECTION

CABINET, in her official capacity,

Respondents.

+

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

+

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONER DLX, INC.

4—

J. DAVID BREEMER JAMES S. BURLING

GREGORY T. BRODERICK Counsel of Record

Of Counsel Pacific Legal Foundation

Pacific Legal Foundation 3900 Lennane Drive, Suite 200

3900 Lennane Drive, Suite 200 Sacramento, California 95834

Sacramento, California 95834 Telephone: (916) 419-7111

Telephone: (916) 419-7111 Facsimile: (916) 419-7747

Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

Does the Eleventh Amendment bar suits under the Fifth

Amendment seeking to force states to pay just compensation for

unconstitutional takings of private property?

ii

TABLE OF CONTENTS

QUESTION PRESENTED 2060 ssscdvoeseneardcessee

TABLE OF AUTHIORITERS 26 .o.cccnsccssvescocces

IDENTITY AND INTEREST OF AMICUS CURIAE ....

INTRODUCTION AND

SUMMARY GP-ARERIBEENE ci scssatenncasounsces

AIRINGS v0 co ctad cian Cananaeeemnaneerete.s

I. THIS CASE PRESENTS THE IMPORTANT

QUESTION OF WHETHER THE ELEVENTH

AMENDMENT’S IMMUNITY FROM .

SUIT BARS A LITIGANT FROM

BRINGING A REGULATORY TAKINGS

CLAIM AGAINST THE STATE ................

A. The Eleventh Amendment Does Not

Apply to Takings Claims Because the

Compensation Required by the Fifth

Amendment Is Not a Remedy but a

Constitutional Imperative ..................

B. Ifthe Eleventh Amendment Applies

to Takings Claims, Immunity Is

Abrogated by the “Self-Executing”

Nature of the Takings Clause ...............

1. The Fourteenth Amendment

Worked an Important Change in

the Application and Enforcement

of Constitutional Rights ................

2. The Takings Clause Abrogates State

Immunity Through Incorporation

in the Fourteenth Amendment ..........

iv

iii

TABLE OF CONTENTS—Continued

Page

C. The Decision Below Adopts a System

in Which Federally Protected Property

Rights Will Be at Risk of Lacking

any Forum for Vindication ................ 13

a ere ne a a 15

iv

TABLE OF AUTHORITIES

Page

Cases

Alden v. Maine, 527 U.S. 706 (1999) ......... 2-3, 6-8, 13

Armstrong v. United States, 364 U.S. 40 (1960) ... 2, 10, 14

Atascadero State Hospital v. Scanlon,

Pe as APT OUEE Vacs ceg thas kcsdedeakens eee

Blatchford v. Native Village of Noatak,

Pe Ws PIPED Kone dhadncckaneehenkeansedas 2

Board of Trustees of Univ. of Ala. v. Garrett,

Bes Se EE oe Awe ek oa ad en ee es 3

Boise Cascade Corp. v. Oregon,

Pek Wome eee eats Ge I TI 5 sn chee senscsans 12

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

SP Se OD 54-05 dv eeu daeenke vances auwkin 9

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999) ......... 7, 11, 14

DLX, Inc. v. Kentucky,

381 F.3d 511 (6th Cir. 2004).............. 4, 6, 13, 15

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 15

Ex parte Young, 209 U.S. 123 (1908) ............... 6, 9

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

A we. ee er re 2, 10-12, 14

Florida Dep’t of State v. Treasure

Salvors, Inc., 458 U.S. 670 (1982) .............006- 4

Hans v. Louisiana, 134 U.S. 1 (1890) ................. 9

Vv

TABLE OF AUTHORITIES—Continued

Hendler v. United States,

Te Fae Ee 0s AE ic 6c kk occ neh canas

Hurley v. Kincaid, 285 U.S. 95 (1932) .............

Jacobs v. United States, 290 U.S. 13 (1933) .........

Kelo v. City of New London, Connecticut,

SOUR PUD. GURU. 6.6 6 hex nc ccdndasuanewionnas

Lingle v. Chevron U.S.A. Inc., Docket No. 04-163 ....

Nollan v. California Coastal Commission,

GES US. SESS) 40 adc VERS saa oem

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ......

San Diego Gas & Electric Co. v. City of

San Diego, 450 U.S. 621 (1981) ................

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

San Francisco, California, Docket No. 04-340 ....

SDDS, Inc. v. South Dakota, 650 N.W.2d 1 (S.D. 2002). .

Suitum v. Tahoe Regional Planning Agency,

SOP UL. TIS GST 4a ee Rhea eae sath

Constitution

Ue. COME CUNT Wn svc varkan snack hceweeane aes

amend. XIV, § 1.1... .. eee eee e ee ener e eee

Rules

ue. CK. TR. STA anc cnn cen once cas eek

eee

a a

12

vi

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Berger, Michael M. & Kanner, Gideon, Shell Game! You

Can't Get There from Here: Supreme Court Ripeness

Jurisprudence in Takings Cases at Long Last Reaches

the Self-Parody Stage, 36 Urb. Law. 671 (2004) ...... 5

Federal Courts and the Federal System, The

(Fallon, Meltzer & Shapiro, eds. 2003)............. 10

Grant, Eric, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) ........ccccscccece 5-6

Heald, Paul J. & Wells, Michael L., Remedies for the

Misappropriation of Intellectual Property by State and

Municipal Governments Before and After Seminole

Tribe: The Eleventh Amendment and Other Immunity

Doctrines, 55 Wash. & Lee L. Rev. 849 (1998) ....... 5

Lash, Kurt T., The Second Adoption of the Free Exercise

Clause: Religions Exemptions Under the Fourteenth

Amendment, 88 Nw. U. L. Rev. 1106 (1994) ......... 2)

Merrill, Thomas W., The Landscape of Constitutional

Property, 86 Va. L. Rev. 885 (2000) .............. 12

Percival, Robert V., “Greening” the Constitution—

Harmonizing Environmental and Constitutional

Values, 32 Envtl. L. 809 (2002) ..............206. 15

Power, Garrett, Palazzolo v. Rhode Island: Regulatory

Takings, Investment-Backed Expectations, and

Slander of Title, 34 Urb. Law. 313 (2002) .......... 12

Tribe, Laurence H., American

Constitutional Law (2d ed. 1988) .............0005- 5

Vii

TABLE OF AUTHORITIES—Continued

Troy, Daniel E., Advertising: Not “Low Value”

Speech, 16 Yale J. on Reg. 85 (1999) ............... 9

1

IDENTITY AND

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit, public interest law foundation ofits kind

in America. Litigating nationwide since 1973, PLF provides a

voice in the courts for thousands of Americans who believe in

the principles of limited government, free enterprise, and

individual freedom. For more than 30 years, PLF has been

litigating in support of the rights of individuals to make

reasonable use of their private property. PLF attorneys have

been before this Court on three occasions representing

individuals whose right to use their property was unlawfully

denied by government agencies. See, e.g., Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725 (1997); Nollan v. California

Coastal Commission, 483 U.S. 825 (1987). All parties have

consented to the filing of this brief.’

PLF has a long history of participation in important

litigation as amicus curiae, filing briefs in nearly every major

real property takings case heard by this Court in the last three

decades, including several cases that are now before this Court.

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

California, Docket No. 04-340; Lingle v. Chevron U.S.A. Inc.,

Docket No. 04-163; and Kelo v. City of New London,

Connecticut, Docket No. 04-108. PLF has consistently

maintained the position that property owners have a federal

constitutional right to cash compensation for a taking. PLF’s

' Pursuant to this Court’s Rule 37.2(a), all parties have consented to

the filing of this brief. Letters evidencing such consent have been

filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the prepara-

tion or submission of this brief.

2

Fifth Amendment expertise and litigation experience will

provide an additional, valuable viewpoint on the issues

presented in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case represents the impact point of two doctrines that

have been on a collision course for three decades: Eleventh

Amendment Immunity and Regulatory Takings. For while

states are sovereigns who “entered the federal system with their

sovereignty intact,” Blatchford v. Native Village of Noatak, 501

U.S. 775, 779 (1991), it is “axiomatic that the Fifth

Amendment’s just compensation provision is “designed to bar

Government from forcing some people alone to bear public

burdens which, in all fairness and justice, should be borne by

the public as a whole.’” First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304,

318-19 (1987) (quoting Armstrong v. United States, 364 U.S.

40, 49 (1960)). The question presented by this case is what

happens when a state takes property and these two principles

collide: Do private property rights yield to the Eleventh

Amendment or do principles of immunity yield to the Takings

Clause?

Where the Eleventh Amendment applies, states enjoy

immunity from all private suits for damages unless it has been

abrogated or the state has waived its immunity. This principle

of sovereign immunity is so important that the “Constitution

never would have been ratified if the States and their courts

were to be stripped of their sovereign authority except as

expressly provided by the Constitution itself.” Atascadero

State Hospital v. Scanlon, 473 U.S. 234, 238 n.2 (1985). Most

recently, Alden v. Maine clarified that principles of sovereign

immunity shield states from private suits for damages in state

courts as well as federal courts. 527 U.S. 706 (1999). After

Alden then, waiver or abrogation of sovereign immunity is

3

required for all suits in state or federal court unless those suits

seek only prospective injunctive relief. Jd. at 747 (explaining

the Ex parte Young exception exists to ensure that the

“Constitution is to remain the supreme law of the land,” despite

immunity).

But the Eleventh Amendment does not apply to the Fifth

Amendment, and it is unnecessary to examine whether

immunity has been waived or abrogated. The Takings Clause

demands compensation whenever government takes private

property—the compensation requirement is a substantive limit

on the state’s ability to take property without the owner’s

consent. The Takings Clause thus provides a unique exception

to the states’ usual immunity from suit. And while most

takings claimants sue local government entities that may not

invoke Eleventh Amendment immunity, a growing number of

litigants must sue the state itself. These claimants, entitled to

compensation by the constitutional text, find themselves

precluded from filing suits for compensation in jurisdictions

that apply the Eleventh Amendment.

If the Eleventh Amendment does apply to the Takings

Clause, it is necessary to examine whether the immunity has

been waived by the state or abrogated. The Takings Clause is

applicable to the states through the Fourteenth Amendment,

which permits the federal government to abrogate state

immunity. See, e.g., Board of Trustees of Univ. of Ala. v.

Garrett, 531 U.S. 356, 363 (2001). And while most abrogation

requires a statute, the Takings Clause is self-executing; claims

“based on the right to recover just compensation for property

taken” do not require “[s]tatutory recognition” but are “founded

upon the Constitution of the United States.” Jacobs v. United

States, 290 U.S. 13, 16 (1933). The self-executing nature of the

Fifth Amendment thus automatically abrogated state sovereign

immunity when it was incorporated through the Fourteenth

Amendment.

4

This analysis, although consistent with this Court’s

precedents, has been rejected by the lower federal courts. See

DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir. 2004) (citing

cases from the First, Fifth, Seventh, Ninth, and Eleventh

Circuits agreeing that the Eleventh Amendment bars takings

claims in federal court). The result is that property owners

cannot invoke the substantive protections of the Fifth

Amendment and the state may freely ignore the constitutional

condition placed on the use of the eminent domain power.

Without an avenue of redress for takings claims, “all

property rights . . . exist only at the whim of the sovereign,” a

situation clearly at odds with the principles animating the

Constitution. Florida Dep’t of State v. Treasure Salvors, Inc.,

458 U.S. 670, 697 (1982). Because of the importance of this

question and the widespread misunderstanding among the

courts of appeals, this Court should grant the petition for

certiorari and announce that the self-executing character of the

Takings Clause compels a unique exception to the general

immunity from suit provided by the Eleventh Amendment.

ARGUMENT

I

THIS CASE PRESENTS THE

IMPORTANT QUESTION OF WHETHER

THE ELEVENTH AMENDMENT’S IMMUNITY

FROM SUIT BARS A LITIGANT FROM

BRINGING A REGULATORY TAKINGS

CLAIM AGAINST THE STATE

A. The Eleventh Amendment Does Not Apply to

Takings Claims Because the Compensation

Required by the Fifth Amendment Is Not a

Remedy but a Constitutional Imperative

The Eleventh Amendment does not apply to the Takings

Clause, incorporated against the states through the Fourteenth

5

Amendment. It is instead a concrete limit on government

power to compel the transfer of property. Though commonly

discussed in terms of a remedy, the Takings Clause’s

requirement that private property not be taken without just

compensation is just that: a constitutional requirement. It is

therefore unnecessary to examine whether immunity has been

abrogated or whether the state has consented to suit: the

analysis simply is not required.

The phrase “without just compensation” is not the

remedial arm of the Takings Clause but a distinct limit on

government power. See Paul J. Heald & Michael L. Wells,

Remedies for the Misappropriation of Intellectual Property by

State and Municipal Governments Before and After Seminole

Tribe: The Eleventh Amendment and Other Immunity

Doctrines, 55 Wash. & Lee L. Rev. 849, 870-71 (1998)

(explaining that the “central aim” of the Takings Clause “is to

limit the ‘government’s power to isolate particular individuals

for sacrifice to the general good’” (quoting Laurence H. Tribe,

American Constitutional Law § 9-6, at 605 (2d ed. 1988))).

The Takings Clause is not “an invitation to sue for payment,”

but an affirmative limit on state and local power, requiring that

they either pay for property or leave it alone. See 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 the Self-Parody Stage, 36 Urb.

Law. 671, 695 (2004). Viewed properly, then, Petitioner DLX

does not ask the federal courts to give it a damages remedy for

a constitutional violation but simply asks the courts to enforce

the Constitution’s plain text. Because this text was

incorporated directly against the states through the adoption of

the Fourteenth Amendment, the Eleventh Amendment has

nothing to do with the compensation requirement of the

Takings Clause.

Further, “[i]t is a proposition too plain to be contested that

the Just Compensation Clause of the Fifth Amendment is

6

‘repugnant’ to sovereign immunity and therefore abrogates the

doctrine.” Eric Grant, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause, 91 Nw. U. L.

Rev. 144, 199 (1996). The very origins of the notion of

immunity—that the government both defines the rights of

citizens and determines whether and to what extent citizens

may enforce those rights against their sovereign

government—is contrary to the idea of self-government,

particularly so when “We the People” have expressly declared

that government shall not take private property “for public use

without just compensation.” U.S. Const. amend. V. Put

simply, “a taking without payment of just compensation is a

constitutional oxymoron.” Grant, A Revolutionary View, 91

Nw. U. L. Rev. at 200.

But the Sixth Circuit misapprehended the special

characteristics of the Takings Clause. The court below

recognized that “First English makes clear that the Fifth

Amendment Takings Clause is a self-executing remedy,

notwithstanding sovereign immunity,” but found that the

Eleventh Amendment bars DLX’s claims. DLX, Inc. v.

Kentucky, 381 F.3d at 527. This analysis assumes that Eleventh

Amendment immunity is absolute, but this Court has long

recognized that “certain suits for declaratory or injunctive

relief” must be permitted, despite the Eleventh Amendment, “if

the Constitution is to remain the supreme law of the land.”

Alden, 527 U.S. at 747 (citing Ex parte Young, 209 U.S. 123

(1908)). At its core, this limited exception to the Eleventh

Amendment for injunctive relief embraces the practical reality

that there must be a federal forum available to enforce the plain

text of the Constitution lest its protections become meaningless.

The Petitioner asks for nothing more here, requesting only that

the federal courts enforce the plain text of the Constitution and

determine whether the state must comply with the Fifth

Amendment’s just compensation requirement for taking their

private property. After successfully running the Williamson

7

County gauntlet by seeking a state-based remedy for the taking

of their property and being denied, Petitioner must be allowed

to vindicate a violation of the Constitution’s plain text in

federal court. :

The Sixth Circuit instead adopted a scheme in which a

property owner must litigate his federal takings claim in state

court and state court alone. Though the court below was

undoubtedly correct that the Takings Clause abrogates

sovereign immunity in state courts, there is no reason for so

limiting the abrogation. According to the court below, the self-

executing nature of the Takings Clause is strong enough to

abrogate sovereign immunity in state court but not in federal

court. But where it applies, “sovereign immunity bars relief

against States and their officers in both state and federal

courts.” Alden, 527 U.S. at 747. Indeed, the principle that

immunity extends to state courts is so central that it was the

motivation for this Court’s creation of the Ex parte Young

exceptions. See Alden, 527 U.S. at 747-48. In short, there is no

principled reason to abrogate state immunity in state court but

not federal court.

The Takings Clause applies to the states, and the Takings

Clause expressly requires just compensation when government

takes private property. Petitioners thus seek a ruling requiring

the federal courts to apply the Clause’s plain text. In this way,

they are similar to a litigant asking the federal courts for relief

under Ex parte Young: both come to the Court seeking

judicially compelled enforcement of constitutional text. The

logic and reasoning behind the Eleventh Amendment is

inapplicable to the Takings Clause—compensation is a

condition of the government’s eminent domain power and any

taking without such payment is illegitimate. See City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,

717 (1999) (“Although the government acts lawfully when,

pursuant to proper authorization, it takes property and provides

just compensation, the government’s action is lawful solely

—~

8

because it assumes a duty, imposed by the Constitution, to

provide just compensation.”). This Court has never made this

important but implicit principle explicit, which has resulted in

a confused collage of law on the subject in the lower federal

courts. The petition should be granted to resolve this important

question of law.

B. If the Eleventh Amendment Applies

to Takings Claims, Immunity Is

Abrogated by the “Self-Executing”

Nature of the Takings Clause

If the Eleventh Amendment does apply to Takings claims,

the incorporation of the Fifth Amendment through the adoption

of the Fourteenth Amendment abrogated sovereign immunity.

Even when viewed as a remedy or “damages,” then, a lawsuit

seeking compensation required by the Takings Clause is

nevertheless unencumbered by the Eleventh Amendment.

Though states normally enjoy immunity from damages for suit,

the Takings Clause does not provide an ordinary cause of

action. It is self-executing insofar’ as it requires no

implementing legislation: suits for compensation are founded

directly upon the Constitution itself. This self-executing

character, as part and parcel of the Takings Clause, was

incorporated against the states through the adoption of the

Fourteenth Amendment.

1. The Fourteenth Amendment Worked an

Important Change in the Application and

Enforcement of Constitutional Rights”

States generally enjoy immunity from suits for damages in

federal court, but this immunity is not absolute. See Alden v.

Maine, 527 U.S. at 713. The Constitution, as it existed before

the adoption of the Fourteenth Amendment, left states with the

exclusive power to allow suits seeking damages for a violation

of a federal right, regardless of whether that right arose from a

federal statute or constitutional provision. See id. at 755

9

(explaining that, before the adoption of the Fourteenth

Amendment, the consent of the States was the only exception

to the states’ immunity from private suits designed to enforce

the Constitution); see also Hans v. Louisiana, 134 U.S. 1, 14-15

(1890) (upholding a state’s immunity from a suit arising under

the Constitution). But the adoption of the Fourteenth °

Amendment transformed the preexisting federal-state balance.

Among other things, it imposed a new requirement upon states

to refrain from “depriv[ing] any person of life, liberty, or

property, without due process of law.” See U.S. Const. amend.

XIV, § 1.

This due process provision incorporated many if not all of

the individual rights protected by the federal Constitution and

thus bound states by those rights. Kurt T. Lash, The Second

Adoption of the Free Exercise Clause: Religions Exemptions

Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106,

1147 n.188 (1994) (discussing the selective incorporation

doctrine). That is, “the prohibitions of the [Fourteenth]

amendment refer to all the instrumentalities of the state,—to

its legislative, executive, and judicial authorities.” Chicago,

B. & O.R. Co. v. City of Chicago, 166 U.S. 226, 233 (1897).

The Fourteenth Amendment’s Due Process requirement

“recognizes the right of the owner to be compensated if his

property be wrested from him and transferred to the public.” Jd.

at 236.

To date, most of the rights guaranteed by the Bill of Rights

have been incorporated against the states through the

Fourteenth Amendment. See Daniel E. Troy, Advertising: Not

“Low Value” Speech, 16 Yale J. on Reg. 85, 109 (1999). Asa

result, individuals may sue state officers to halt the ongoing

violation of a federal constitutional right, the state’s immunity

from suit notwithstanding. See Ex parte Young, 209 U.S. at

159-60 (sovereign immunity does not preclude a suit against

state officers in federal court designed to secure prospective

equitable relief from constitutional violation). Incorporating the

10

Takings Clause through the Fourteenth Amendment, worked

an important change: It applied the Fifth Amendment’s

compensation limit to the states eminent domain power and

made it a federally protected right.

2. The Takings Clause Abrogates State

Immunity Through Incorporation

in the Fourteenth Amendment

Even if the Fifth Amendment’s just compensation

requirement is viewed as a remedy, the Eleventh Amendment

still does not bar this suit because the Takings Clause abrogates

state immunity through its incorporation under the Fourteenth

Amendment. Unlike the Fifth Amendment, other constitutional

rights do not provide their own remedy. In fact, the

Constitution “refers explicitly to remedies in only two

instances”: habeas corpus and the Takings Clause. See The

Federal Courts and the Federal System (Fallon, Meltzer &

Shapiro, eds. 2003) (pointing out that the “remedy of habeas

corpus is safeguarded” and that the “Just Compensation Clause

‘dictates the remedy for interference with property amounting

to a taking’—compensation for the impairment of value”).

With these two exceptions, the incorporation ofall other federal

constitutional rights against the states via the Fourteenth

Amendment do not by themselves impose a remedy against the

states and so waive the states’ immunity.

But the Takings Clause is “self-executing.” First English,

482 U.S. at 315. Because the Clause declares its own redress,

a taking of private property for public use must always be

remedied by the payment of compensation for the property right

taken. See id. (“[G]overnment action that works a taking of

property rights necessarily implicates the ‘constitutional

obligation to pay just compensation.’ ” (emphasis added)

(quoting Armstrong, 364 U.S. at 49)). Given its unique

characteristics, no congressional abrogation of immunity or

state consent to compensation is necessary to enforce the

11

Takings Clause. The compensation cure is self-evident and

self-executing and thus, incorporated through the Fourteenth

Amendment, requires the states to pay money whenever they

take private property. First English, 482 U.S. at 319 (“Where

[a] burden [on a property owner] results from governmental

action that amounted to a taking, the Just Compensation Clause

of the Fifth Amendment requires that the government pay the

landowner for the value of the use of the land during this.

period.”).

Because of its self-executing nature, the Takings Clause

is an exception to the general framework requiring additional

legislative action before state immunity is abrogated. See id. at

315 (explaining that “claims for just compensation are

grounded in the Constitution itself’). As explained above,

governments lack the power to take property unless they

provide just compensation. Thus, immediately upon

incorporation, the Clause itself abrogated the states’ immunity

from suit because the Clause brings with it a compensation

remedy. Four members of this Court have recognized as much,

openly questioning whether immunity “retains its vitality” in

the context of the Fifth Amendment, citing to First English.

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. at 714 (Kennedy, J., joined by the Chief Justice and

Justices Stevens and Thomas) (“Even if the soverei gn immunity

rationale retains its vitality in cases where [the Fifth]

Amendment is applicable, cf: First English ....”).

A necessary corollary to the fact that the federal just

compensation requirement is self-executing and fully

incorporated is that states must answer suits alleging that they

owe compensation for a completed taking. See First English,

482 U.S. at 315 (“We have recognized that a landowner

is entitled to bring an action in inverse condemnation as a

result of ““the self-executing character of the constitutional

_ provision with respect to compensation ....”””). If this were

not so, either Congress or the state would have to act before an

12

individual could enforce the right to damages. In this scenario,

the Takings Clause would merely be capable of execution, not

“self-executing.”

But the Takings Clause is self-executing and, as a result,

principles of immunity must yield to compensation for a taking.

See First English, 482 U.S. at 316 n.9 (rejecting the United

States’ argument that sovereign immunity principles compel the

conclusion that the Takings Clause does not provide a damages

remedy); see also Hendler v. United States, 952 F.2d 1364,

1371 (Fed. Cir. 1991) (noting that, because a federal takings

suit is “based upon the constitutional provision protecting

property rights, and the provision was considered to be

self-executing with respect to compensation, it escaped the

problems of sovereign immunity”); SDDS, Inc. v. South

Dakota, 650 N.W.2d 1 (S.D. 2002) (self-executing nature of

just compensation claims overrides state’s immunity); Boise

Cascade Corp. v. Oregon, 991 P.2d 563 (Or. Ct. App. 1999)

(same); see generally Thomas W. Merrill, The Landscape of

Constitutional Property, 86 Va. L. Rev. 885, 981 (2000) (citing

First English for proposition that “the Takings Clause has been

held to incorporate a self-executing waiver of state and federal

sovereign immunity against claims for monetary

compensation”); Garrett Power, Palazzolo v. Rhode Island:

Regulatory Takings, Investment-Backed Expectations, and

Slander of Title, 34 Urb. Law. 313, 324 (2002) (A regulatory

takings “claim would not be barred on sovereign immunity

grounds because ‘the self-executing’ nature of the Fifth and

Fourteenth Amendments to the U.S. Constitution would

override any such claim federal or state governments would

have.”).

The Fourteenth Amendment incorporated the Takings

Clause of the Fifth Amendment against the states, lock, stock,

and barrel. Neither this Court, nor any other, has suggested that

this provision was partially incorporated. And while only

certain provisions of the Bill of Rights have been incorporated

13

thus far, this Court has never found that the Fourteenth

Amendment partially incorporates the constitutional

_ protections that it does import. There is thus no reason to

suspect that anything less than entire the Takings Clause,

compensation requirement included, was incorporated against

the states through the Fourteenth Amendment. This Court

should, therefore, grant the petition for certiorari to end the

misperception that the Eleventh Amendment is a bar to suits

against states for violations of the Fifth Amendment.

C. The Decision Below Adopts a System

in Which Federally Protected Property

Rights Will Be at Risk of Lacking

any Forum for Vindication

If the decision below is left undisturbed and the state is

immune from suit for federal takings claims in federal court,

States may assert next that they are also immune from suit for

federal takings claims in state court. See Alden v. Maine, 527

U.S. at 745 (“We have said on many occasions, furthermore,

that the States retain their immunity from private suits

prosecuted in their own courts.”). As noted above, Alden is

clear that decades of this Court’s jurisprudence are dedicated to

the principle that sovereign immunity is equally applicable in

state and federal courts. Jd. at 747-48. The position adopted by

the court below—that the Takings Clause abrogates sovereign

immunity in state court but not in federal court—is difficult to

reconcile with Alden. See DLX, 381 F.3d at 527-28. In

accordance with Alden and as explained in section I.A., supra,

if a federal takings claim may not be heard in federal court

without a state’s consent, states will argue that a claim may not

be heard in any court without a state’s consent. In such a

system, the Takings Clause is robbed of its vitality and reduced

to a mere declaration or aspiration of moral government.

14

As noted above, this Court made clear in First English that

compensation is the required remedy for a taking. First

English, 482 U.S. at 315 (explaining that “government action

that works a taking of property rights necessarily implicates the

‘constitutional obligation to pay just compensation’” (quoting

Armstrong, 364 U.S. at 49)). This was no mere passing

mention in First English but the result of a nearly decade long

jurisprudential parley begun in earnest with Justice Brennan’s

1981 dissent in San Diego Gas & Electric Co. v. City of San

Diego, 450 U.S. 621, 636 (1981), and completed when the First

English Court adopted Justice Brennan’s view in 1987. And

while other “postdeprivation remed[ies]” may also be available,

City of Monterey, 526 U.S. at 712, “the compensation remedy

is required by the Constitution” when a taking is alleged. First

English, 482 U.S. at 316. In earlier cases, this Court made clear

that the remedy for takings claims is nearly always “just

compensation” and not injunctive relief. Hurley v. Kincaid,

285 U.S. 95, 104 (1932).

If compensation claims are subject to traditional sovereign

immunity principles, however, a claim for compensation could

never be filed against a nonconsenting state in federal court.

This cruel trap forces a property owner whose land has been

taken by the state to seek a “remedy” which forces him out of

federal court and arguably precludes him from state court. For

any other kind of claim, such a litigant could simply elect to

pursue prospective injunctive relief in federal court and avoid

Eleventh Amendment problems, but even this avenue is

unavailable because he is constitutionally compelled to pursue

compensation. Under the scheme adopted by the court below,

nonconsenting states are potentially immune from federal

takings claims in any forum. Even a litigant subjected to a

physical invasion of his property would not be able to press his

federally protected rights but would, instead, be forced to

pursue whatever remedies, if any, the state may

philanthropically agree to provide.

15

“If a state may not be sued for damages by a private

citizen in federal court, and a state may not be sued by a

private citizen in its own courts, what recourse does a

plaintiff have?” Robert V. Percival, “Greening” the

Constitution—Harmonizing Environmental and Constitutional

Values, 32 Envtl. L. 809, 839 (2002). If the decision below is

correct, this is the exact catch-22 that property owners will find

themselves subjected to. Normally required to sue for

compensation by this Court’s decision in First English and

Hurley, they find the doors of the federal courthouse closed.

Potentially subject to the strictures of sovereign immunity in

state courts, they will find their federally protected rights at risk.

Their right to use and retain private property thus becomes

wholly dependant on the whims of the Legislature’s

underdeveloped capacity for accountability and self-restraint.

In such a scheme, the Takings Clause is not even a “poor

relation” but a forgotten relic. Dolan v. City of Tigard, 512

U.S. 374, 392 (1994). This result is inconsistent with the

primacy of individual rights in property and with 200-plus years

of this Court’s Takings Clause jurisprudence.

CONCLUSION

Ata minimum, it is unclear whether this Court’s decisions

on the self-executing nature of the Takings Clause abrogate

state immunity in federal court, state court, neither, or both. As

the Sixth Circuit noted in the decision below, legal scholars and

this Court’s dicta suggest that the question remains open. See

DLX, 381 F.3d at 527 (noting that leading commentators

suggest this question is an open one). This petition thus

presents an important question: whether the principles behind

the Takings Clause must give way to the principles behind the

16

Eleventh Amendment. For the foregoing reasons, this Court

should grant the petition for certiorari and reverse the decision

of the court below.

DATED: February, 2005.

Respectfully submitted,

J. DAVID BREEMER JAMES S. BURLING

GREGORY T. BRODERICK Counsel of Record

Of Counsel Pacific Legal Foundation

Pacific Legal Foundation 3900 Lennane Drive, Suite 200

3900 Lennane Drive, Suite 200 Sacranento, California 95834

Sacramento, California 95834 Telephone: (916) 419-7111

Telephone: (916) 419-7111 Facsimile: (916) 419-7747

Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation

a A I GD ER Eat a Se a te