Amicus Curiae Brief — Rockstead v. City of Crystal Lake (No. 06-1716)

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r OFFICE OF jeu. a

No. 06-1716 SUPREME COUNT as |

‘mi Tie

Supreme Court of the United States

SHIRLEY ROCKSTEAD, et ai.,

Petitioners,

CITY OF CRYSTAL LAKE,

Respondent.

On Petition for Wnt of Certiorari to

The United States Court of Appeals for the Seventh Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONERS

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Christopher M. Whitcomb

National Association of

Home Builders

1201 15™ Street, N.W.

Washington, D.C. 20005

(202) 866-8200

TABLE OF CONTENTS

Page (s)

INTEREST OF THE AMICUS CURIAE .........ccccccceeeee ]

SUMMARY OF ARGUMENT .....0...... cc ceccseesteeeenenes 2

TT isha ciicalalitarcacthasiicdncinicsbumiadannsassonaibincanss 3

I. THE PETITION PROVIDES AN APPROPRIATE

VEHICLE TO RECONSIDER THE STATE-

Se ET PR cies oncerwsintervnecehcctivenkannnsannebinannes 3

A. Williamson: The State-Litigation Rule.............. 3

B. San Remo: The State-Litigation Rule

Miecets Tesue Preclusion ................cccccccccccsccccsseces 4

C. The State-Litigation Rule was Essential to

the Court of Appeals’ Decision Below.............. 6

D. Unlike San Remo, This Case Squarely

Questions the Validity of the

SPOUT UMINIEE TRIED sncsescserssnsecssccosecseccssessenscees 9

II. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONTRADICTIONS IN THIS

COURT’S TAKINGS CASES AND CONFLICTS

IN THE LOWER COURTS — ALL ARISING

FROM THE STATE-LITIGATION RULE.......... 10

A. Contradictions in This Court’s

Se eicninaitenieitcinkecninssniictiussindi 10

1. Conflict Between Williamson

ESAT LAL EEN ILE 10

ii

TABLE OF CONTENTS (continued)

Page(s)

2. Conflict with This Court’s Decision on

Removal Jurisdiction in City of Chicago..... 13

3. Conflict with This Court’s Decision on

Seventh Amendment Rights in

a, .ccncseversocveccece 14

. Conflict in the Circuit Courts .....................606- 15

1. Circuit Conflict on Claim Preclusion .......... 15

2. Circuit Conflict on Removal Jurisdiction.... 17

3. Circuit Conflict on Application of State-

Litigation Rule to Other Constitutional

iii

TABLE OF AUTHORITIES

Page (s)

Cases

Agripost, Inc. v. Miami-Dade County,

195 F.3d 1225 (11th Cir. 1999),

cert. denied, 531 U.S. 815 (2000)............... ee 11

Bateman v. City of W. Bountiful, 89 F.3d 704

EE Ws aiclaicd:bishiapieducanatonabisaalshnetanieostlinn 11,19

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

SE i Be REE Biiidininessnianinsttensedidenicsiachiniscninteinss 15

City of Chicago v. Int'l Coll. of Surgeons,

Pee Bt: BME ITP ireicniidpansstahinnnsunchinncssscanens 9, 13,17

City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999)............ 14, 15

County Concrete Corp. v. Town of Roxbury,

WAZ F.3d TSR TSE CAE. TOG) csenssicsnesstnsvscsvnescnses 11,18

Deniz v. Mun. of Guaynabo, 285 F.3d 142

Oe IN idaliciticecanerehaiileadinniasiarnciieosiccalissteasdwtahetec 11

DLX, Inc. v. Kentucky,

Be ee i iiiiviticentancinccomrictaccitons 16

Dodd v. Hood River County, 59 F.3d 852

sn, eke nitmetiininiceninnniiotenns 16

Dougherty v. Town of N. Hempstead Bd. of Zoning

Appeals, 282 F.3d 83 (2d Cir. 2002)... 18

iv

TABLE OF AUTHORITIES (continued)

First English Evangelical Lutheran Church

of Glendale v. Los Angeles, 482 U.S. 304 (1987).... 19

Forseth v. Vill. of Sussex, 199 F.3d 363

I ccc cscininsdsia Miesiaenseninndlonsinnnns 11, 18-19

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

Town of Front Royal, Va., 135 F.3d 275

OE I ic ncsneshasancancoatneakniiercienananchinviniainennionan’ 18

Henry v. Jefferson County Planning Comm'n,

34 Fed. Appx. 92 (4th Cir. 2002)............ ccc eeeeeeeeee 11

International Coll. of Surgeons v. City of Chicago,

DOF a POA FUGA LI Dasecnsceccsnnecessossensinevesenene 17

John R. Sand & Gravel Co. v. United States,

457 F.3d 1345 (Fed. Cir. 2006), cert. granted,

75 U.S.L.W. 3474 (U.S. May 29, 2007)

Ns RR iene als chest dan disiciiieinebiacesi vases 8

Koscielski v. City of Minneapolis, 435 F.3d 898

I I ge iia has cil alin di Mlanacntaiacnoeaeisioen 17

Kottschade v. City of Rochester, 319 F.3d 1038

(8th Cir.), cert. denied, 540 U.S. 825 (2003)....... 6, 11

Luperini v. County of DuPage, 637 N.E.2d 1264

I I I cic cll Gull ccssincanaldbek venuseinieutadaniadlanenia 7

TABLE OF AUTHORITIES (continued)

McKenzie v. City of White Hall, 112 F.3d 313

Pins PT isd ctincontanctnc a specadinieustinsclaraienaiaents 18

Ochoa Realty Corp. v. Faria, 815 F.2d 812

RI aii I Picken ciuvshh schestiedecharsevastenennibhioepevanniiovicoe 18

Peduto v. City of N. Wildwood, 878 F.2d 725

ie ieee sicrnsicitiadsias bosssiechanicailthin edesesacaveliiin 16

People ex rel. Pratt v. Rosenfeld,

FF Dee TE hvinekicsicciswcssinstnaccwsiceavarenwens 6

Peters v. Fair, 427 F.3d 1035 (6th Cir. 2005) ............ 11

Rocky Mountain Materials & Asphalt, Inc. v. Bd. of

County Comm'rs of El Paso County, 972 F.2d 309

Ae > | SIREN RRA Aer: RRO re eon oun Te 18

Samaad v. City of Dallas, 940 F.2d 925

EG Nr Bical st nris aninsiakioceatieirshomvciiiilatos des 11

San Diego Gas & Elec. Co. v. City of San Diego,

gS ESS Rene ne Helter A CORTE a aoe 9

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

San Francisco, 545 U.S. 323 (2008)................. passim

San Remo Hotel, L.P. v. San Francisco City

and County, 364 F.3d 1088 (9th Cir. 2004)............. 16

Sandy Creek Investors, Ltd. v. City of Jonestown,

FED FS OS CR: BI pixies sinsivicrsserrvenizornisas 17-18

eee

vi

TABLE OF AUTHORITIES (continued)

Santini v. Conn. Hazardous Waste Mgmt. Serv.,

SOE FSO ETB GEG Cat: IIS) in sscesvccsnernesccnesscasisassonsss 16

Sinaloa Lake Owners Ass'n v. City of Simi Valley,

882 F.2d 1398 (9th Cir. 1989)... ceecseeeteeneeees 18

Sinclair Oil Corp. v. County of Santa Barbara,

96 F.3d 401 (9th Cir. 1996),

cert. denied, 523 U.S. 1059 (1998) ..........ceseseeeeeees 1]

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84

(2d Cir. 1992), cert. denied, 507 U.S. 987 (1993)... 11

Suitum v. Tahoe Reg’l Planning Agency,

Ry Fe ET Pirie cencentinissanckstodasnconacevesisnscenenseses 3

Tahoe-Sierra Pres. Council v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002)..............:006 18

United States v. Cress, 243 U.S. 316 (1917)............... 10

Williamson County Reg’l Planning Comm'n

v. Hamilton Bank, 473 U.S. 172 (1985)........... passim

Wilkinson v. Pitkin County Bd. of Comm'rs,

142 F.3d 1319 (10th Cir. 1998)..............csesscsesees 6, 16

Statutes

re NN a rinpdneennes 13

NN ee ee Re 8

Vii

TABLE OF AUTHORITIES (continued)

Be tik sk slips cstela nasa hainenicnicaia raat 4

Oe a ria iri cen sect beniesmnntenioastiigieniinnes 18, 19

Other

Michael Berger and 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.

EF I aicintitsncrcihnccabintinnpienniininninnidicinucsscctionss 5

John J. Delaney and Duane J. Desiderio, Who Will

Clean Up the “Ripeness Mess”’? A Call for Reform

so Takings Plaintiffs Can Enter the

Federal Courthouse, 31 Urb. Law. 195

EE NIUE cleinccincdedcascnsdesanndeniniibamiacoiansdnindasneverens 4-5

Steven J. Eagle, Regulatory Takings, 2d ed.

NE civic snc casehndsnindecDciailabaaicanneasdcischenscbuetisilas 1]

Madeline J. Meacham, 7he Williamson Trap,

32 Urb. Law. 239 (Spring 2000)... eeeseseeees 12

Thomas E. Roberts, Ripeness and Forum Selection in

Fifth Amendment Takings Litigation,

11 J. Land Use & Envtl. L. 37 (1995).......... ce eeeeee 11

Hearing on H.R. 1534 Before the Subcomm. on

Courts and Intellectual Prop., House Judiciary

Comm., 105th Cong. 67 (1997) reprinted in 31 Urb.

Law. 371 (Summer 1999) (testimony of Prof. Daniel _

NIN bitcsieacataissishscencturacnciandeaincanenasannni 5

INTEREST OF THE AMICUS CURIAE

The National Association of Home Builders (“NAHB”)

has received the parties’ written consent to file this amicus

curiae brief supporting Petitioners.' NAHB represents over

235,000 builder and associate members throughout the

United States, including individuals and firms that construct

and supply single-family homes, as well as apartment,

condominium, multi-family, commercial and industrial

builders, land developers and remodelers. It is the voice of

the American shelter industry. It is, and historically has

been, vitally concerned with judicial decisions regarding

government regulation and taking of private property.

NAHB appeared before the Court as a petitioner in a

case decided earlier this term concerning the Clean Water

and Endangered Species Acts, NAHB v. Defenders of

Wildlife, 551 U.S. ----, 127 S.Ct. 2518 (2007). It has also

participated as amicus curiae or “of counsel” in a number

of cases involving landowners aggrieved by over-zealous

regulation under a wide array of statutes and regulatory

programs. A list of those cases is attached as Appendix A

to this brief.

NAHB has frequently asked this Court to clarify

procedural and jurisdictional issues so Fifth Amendment

takings claims can be resolved on their merits. Too often,

ripeness principles are misapplied to operate as an unfair

bar, denying land owners full and fair federal court access

' Letters of consent are on file with the Clerk. Pursuant to Rule

37.6 of this Court, NAHB states that its counsel authored this

brief. The brief was not written in whole or part by counsel for a

party, and no one other than amicus made a monetary

contribution to its preparation.

on constitutional takings claims. NAHB thus offers its

experience in this field and a national perspective to support

the Petitioners.

SUMMARY OF ARGUMENT

This matter provides another opportunity for the Court

to clarify the confusion regarding ripeness for claims under

the Fifth Amendment’s Takings Clause. Williamson

County Reg’l Planning Comm'n vy. Hamilton Bank, 473

U.S. 172 (1985), established the rule that a takings claim

does not become ripe for federal court adjudication until the

aggrieved property owner pursues inverse condemnation

litigation in state court. Four concurring Justices in San

Remo Hotel, L.P. v. City and County of San Francisco, 545

U.S. 323 (2005), stated that this state-litigation rule “may

have been mistaken,” and that “[iJt is not clear that

Williamson County was correct in demanding” that a

claimant must first seek a compensation remedy through

state litigation as a prerequisite to ripen a federal takings

claim. /d. at 348-349 (Rehnquist, C.J., concurring). The

San Remo concurring Justices believed that Williamson’s

“state-litigation rule has created some real anomalies,

justifying our revisiting the issue." /d. at 351.

The court of appeals’ decision provides the opportunity

“revisit” the “real anomalies” created by Williamson. The

state-litigation rule has been thoroughly aired in the lower

federal and state courts. Postponing review will not

contribute to resolution of the open questions generated by

Williamson, inconsistencies within this Court’s takings

jurisprudence will linger, and conflicting lower court

decisions will proliferate. Respectfully, NAHB encourages

this Court to grant the petition, reconsider the state-

litigation element of Williamson’s ripeness doctrine — and

dispense with it.

ARGUMENT

1. THE PETITION PROVIDES AN APPROPRIATE

VEHICLE TO RECONSIDER THE STATE-

LITIGATION RULE.

A. Williamson: The State-Litigation Rule.

“There are two independent prudential hurdles” to ripen

a takings claim. Suitum v. Tahoe Reg'l Planning Agency,

520 U.S. 725, 733-34 (1997). These were established in

Williamson. First, takings claims are not ripe “until the

administrative agency has arrived at a final, definitive

position regarding how it will apply the regulations at issue

to the particular land in question.” Williamson, 473 U.S. at

191. This “finality requirement is concerned with whether

the initial decisionmaker has arrived at a definitive position

on the issue that inflicts an actual, concrete injury ....” Jd.

at 193. The finality requirement is not at issue.

Williamson’s second ripeness requirement is called into

question here: “[If] a State provides an adequate procedure

for seeking just compensation, the property owner cannot

claim a violation of the Just Compensation Clause until it

has used the procedure and has been denied just

compensation.” Jd. at 195.- Concurring in San Remo, the

late Chief Justice Rehnquist, joined by former Justice

O’Connor and Justices Kennedy and Thomas, labeled this

requirement the “state-litigation rule.” San Remo, 545 U.S.

at 349, (Rehnquist, C.J., concurring). They described the

rule as follows: “Until the claimant had received a final

decision of compensation through all available state

procedures, such as by an inverse condemnation action ...

he ‘could not claim a violation of the Just Compensation

4

Clause.” Jd. at 349 (citing Williamson, 473 U.S. at 195-

196).

B. San Remo: The State-Litigation Rule Meets

Issue Preclusion.

San Remo did not directly address the validity of the

State-litigation rule. Rather, the question was whether a

takings claimant, in initial state litigation, could reserve a

Fifth Amendment claim for subsequent federal

adjudication. San Remo ruled that such a reservation was

inappropriate, resolving a circuit split on that point. Jd. at

337-338. The Court further held it was “not free to

disregard the full faith and credit statute [28 U.S.C. § 1731]

solely to preserve the availability of a federal forum” after

initial state litigation mandated by Williamson. Id. at 347.

Issue preclusion was thus held to bar relitigation in federal

court after a “state court actually decided an issue of fact or

law that was necessary to its judgment” — even if a takings

plaintiff “would have preferred not to litigate [first] in state

court, but was required to do so by statute or prudential

rules.” Jd. at 342.

The San Remo concurrence was concerned that the

Court’s holding regarding issue preclusion “ensures that

litigants who go to state court to seek compensation will

likely be unable later to assert their federal takings claims

in federal court ....” Jd. at 351 (Rehnquist, C.J.,

concurring).? Takings law experts have put the problem

this way:

? This is exactly what has transpired. By the mid-1990s, the

lower federal courts overwhelmingly invoked the state-litigation

rule to avoid adjudicating the merits of Fifth Amendment takings

claims. See John Delaney and Duane Desiderio, Who Will Clean

Up the “Ripeness Mess”? A Call for Reform so Takings

[A]s a reward for following the rules and trying to ripen

their federal claims in state court as spelled out by

Williamson County, property owners have the rug

yanked out from under them by federal courts saying

the door to that courthouse is now closed, because the

very act of “ripening” the case aciually sounded its

death knell.

Michael Berger and 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, 687 (Fall 2004). The

preclusive effect of state takings decisions, causing the

virtual wholesale relinquishment of jurisdiction by the

federal courts over Fifth Amendment takings claims,

prompted the San Remo concurring Justices to question the

state-litigation rule’s propriety. They wrote it was not

“clear” that Williamson “was correct in demanding that,

once a government entity has reached a final decision with

respect to a claimant’s property, the claimant must seek

compensation in state court before bringing a federal

takings claim in federal court.” San Remo, 545 U.S. at 349

(Rehnquist, C.J., concurring). The concurrence doubted

Plaintiffs can Enter the Federal Courthouse, 31 Urb. Law. 195,

203-205 (Spring 1999) (surveying all land-use takings cases with

a federal court decision from 1990-1998). As a preeminent

takings scholar testified before Congress, the lower federal

courts have exhibited “wholesale abdication of federal

jurisdiction” over Fifth Amendment claims and have achieved

the “undeserved and unwarranted result [of] avoid[ing} the vast

majority of takings cases on their merits.” Hearing on H.R. 1534

Before the Subcomm. on Courts and Intellectual Prop., House

Judiciary Comm., 105th Cong. 67 (1997) reprinted in 31 Urb.

Law. 234, 236 (Summer 1999) (testimony of Prof. Daniel

Mandelker).

that “either constitutional or prudential principles” should

first require exhaustion of all state compensation

procedures before a claimant can vindicate Fifth

Amendment rights. /d. The concurring Justices

acknowledged that Williamson’s “state-litigation rule has

created some real anomalies, justifying our revisiting the

issue.” Jd. at 351.°

C. The State-Litigation Rule was Essential to the

Court of Appeals’ Decision Below.

The decision below provides a text book example of

Williamson’s effect in barring federal courts from deciding

Fifth Amendment takings claims on their merits. Here,

Petitioners’ parcel is adjacent to stormwater detention

ponds and wastewater treatment facilities owned by the

city. The city’s management of these features caused

periodic flooding on Petitioners’ property, thereby

converting “productive farmland into worthless wetlands.”

Pet. App. 3a. Since 1948, Illinois case law has held that an

inverse condemnation suit will not lie for damages from

“intermittent flooding,” and Petitioners thus lost their case

at the state trial level. Pet. App. 3a (citing People ex rel.

Pratt v. Rosenfeld, 77 N.E.2d 697, 699-700 (Ill. 1948)).

No further appeals were sought in the Illinois courts

because Petitioners saw “no point in continuing in state

> The lower courts would agree. See, e.g., Kottschade v. City of

Rochester, 319 F.3d 1038, 1041 (8th Cir.) (state-litigation rule

has created an “anomalous .. gap in Supreme Court

jurisprudence”), cert. denied, 540 U.S. 825 (2003); Wilkinson v.

Pitkin County Bd. of Comm'rs, 142 F.3d 1319, 1325 n. 4 (10th

Cir. 1998) (“It is difficult to reconcile the [state litigation]

ripeness requirement of Williamson” with issue and claim

preclusion).

court because the outcome is foreordained by state law.”

Pet. App. 4a. So, they filed a Fifth Amendment takings suit

in federal court. The court of appeals, however, deemed the

suit unripe under Williamson. Writing for the court, Judge

Posner decided that further pursuit of state appeals could

still provide a light at the end of the tunnel because judges

“can — and do — change common law doctrines.” Jbid.

The court of appeals saw a “glimmering of recognition”

provided by a single 1994 state intermediate appellate

decision that Illinois law could, after all of these years,

change course to recognize an inverse condemnation claim

due to intermittent flooding. Pet. App. 6a. (citing Luperini

v. County of DuPage, 637 N.E.2d 1264 (Ill. App. 1994)).

Judge Posner thus concluded that the district court properly

dismissed Petitioners’ federal takings claim because they

did not pursue state litigation to its ultimate appellate

conclusion. Pet. App. 9a-10a.

In the entire, tortured history of post-Williamson cases,

the court of appeals’ decision is among the more extreme.

Until now, no circuit has so harshly decided that the state-

litigation rule compels takings claimants to pursue all levels

of appeals up through and including a state supreme court

(assuming the state supreme court accepts the case under its

own rules for certiorari review). And, Judge Posner’s

decision requires takings claimants to possess predictive

powers and/or incredible luck, in the hope that a state’s

highest court might possibly reverse earlier, long-standing

precedent. For, if a takings plaintiff does not pursue state

litigation and appeals at all levels of the state system, they

will never have the merits of their Fifth Amendment claim

decided by any court. As Judge Posner stated, if “the

property owner goes through the entire state proceeding,

and he loses, he cannot maintain a federal suit” due to res

judicata and the doctrine against claim splitting. Pet. App.

9a. In other words, [t]he litigation in state court is the end

of the road” for property owners bringing Fifth Amendment

claims. /bid.

Thus, the court of appeals held that: (1) Williamson

requires federal takings claims to be filed in state court; and

(2) that claim will never be heard in federal court, because

res judicata would preclude federal adjudication. If this

Court agrees with the court of appeals’ reading of

Williamson — that the lower federal courts are effectively

barred from deciding the merits of cases arising under the

Takings Clause — then it needs to announce that radical

notion once and for all, in clear and unmistakable terms.

If Judge Posner’s conclusion is correct, then the only

cases in which lower federal courts are available to decide

takings claims occur when the United States is sued and the

amount in controversy exceeds $10,000. In that narrow set

of cases, 28 U.S.C. § 1491(a) confers jurisdiction on the

Court of Federal Claims and the Federal Circuit has

appellate review. See, e.g., John R. Sand & Gravel Co. v.

United States, 457 F.3d 1345 (Fed. Cir. 2006), cert.

granted, 75 U.S.L.W. 3474 (U.S. May 29, 2007) (No. 06-

1164). Otherwise, the only other federal court that will

substantively interpret the Takings Clause is this Court,

when it elects to grant certiorari from the decision of a

state’s highest court. Thus, the federal district courts and

circuit courts of appeals are divested from analysis of a Bill

of Rights provision. They are deprived the opportunity to

serve as laboratories for Fifth Amendment study, as the

Takings Clause has become the virtual exclusive domain of

state courts.

This cannot be right. “[A] case containing claims that

local administrative action violates federal law ... is within

the jurisdiction of the federal district courts.” City of

Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156-163

(1997). With respect, the Court should grant certiorari to

reverse the court of appeals.

D. Unlike San Remo, This Case Squarely Questions

the Validity of the State-Litigation Rule.

The state-litigation rule’s validity was not directly put to

the Court in San Remo, as it is in the case at bench. In San

Remo, many amici (including NAHB) urged the Court to

directly confront Williamson. But the invitation was

declined because “no court below ha[d] addressed the

correctness of Williamson County, neither party ha{d] asked

us to reconsider it, and resolving the issue could not [have]

benefit[ed] petitioners.” Jd. San Remo, 545 U.S. at 352.

(Rehnquist, C.J., concurring). The converse is true here.

First, the court of appeals did consider Williamson’s impact

(Pet. App. 4a-5a; 9a-10a), and second, one of the petition’s

questions plainly asks the Court to reconsider the state-

litigation rule.

Third, resolving the issue would benefit Petitioners. If

the Court reconsiders the state-litigation rule and removes it

from the ripeness landscape, Petitioners would receive a

federal adjudication on the merits of their physical takings

claim arising from intermittent but recurring floods — which

they can not obtain in state court, because Illinois’s well-

settled law allows compensation only for permanent

flooding. Pet. App. 6a-8a. But see San Diego Gas & Elec.

Co. v. City of San Diego, 450 U.S. 621, 657 (1981)

(Brennan, J., plurality dissent) (“Nothing in the Just

Compensation Clause suggests that ‘takings’ must be

permanent and irrevocable. Nor does the temporary

reversible quality of a regulatory ‘taking’ render

compensation for the time of the ‘taking’ any less

10

obligatory. This Court more than.once has recognized that

temporary reversible ‘takings’ should be analyzed

according to the same constitutional framework applied to

permanent, irreversible ‘takings’”’); United States v. Cress,

243 U.S. 316, 328 (1917) (“the right to compensation must

arise” whether inundation is “permanent” or “intermittent

but inevitably recurring”).

In short, this is an “appropriate case” to “reconsider

whether plaintiffs asserting a Fifth Amendment takings

claim based on the final decision of a state or local

government entity must first seek compensation in state

courts.” San Remo, 545 U.S. at 352 (Rehnquist, C.J.,

concurring).

Ii. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONTRADICTIONS IN THIS

COURT’S TAKINGS CASES AND CONFLICTS

IN THE LOWER COURTS — ALL ARISING

FROM THE STATE-LITIGATION RULE.

The San Remo concurring Justices acknowledged that

Williamson’s “state-litigation rule has created some real

anomalies, justifying our revisiting the issue.” /d. at 351.

Those anomalies include contradictions within this Court’s

own takings decisions as well as divisions among the

circuit courts.

A. Contradictions in This Court’s Takings Cases.

1. Conflict Between Williamson and San Remo.

Tension is especially pronounced between Williamson and

San Remo. The Williamson Court stated that exhaustion of

state compensation procedures is a first step to ripen federal

takings claims: “/U/ntil [plaintiff] has utilized [state]

procedure[s], its takings claim is premature.” Williamson,

1]

473 U.S. at 197 (emphasis supplied).* Virtually every court

of appeals has interpreted this language to mean that a Fifth

Amendment takings claim is not ripe — it does not exist —

until a property owner has filed suit for inverse

condemnation in state court and has been denied

compensation.” Many commentators also read Williamson

as providing the opportunity for ultimate federal

adjudication following denial of compensation in state

court.®

* See also Williamson, 473 U.S. at 194 (“A second reason the

takings claim is mot yet ripe is that respondent did not seek

compensation through the procedures the state has provided for

doing so”) (emphasis supplied); id. at 195 (“the property owner

cannot claim a violation of the Just Compensation Clause until it

has used the [available state] procedure and been denied just

compensation”) (emphasis supplied). id.

> Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002);

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 99-100 (2d

Cir. 1992), ceri denied, 507 U.S. 987 (1993); County Concrete

Corp. v. Town of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006);

Henry v. Jefferson County Planning Comm ’n, 34 Fed. Appx. 92,

96 (4th Cir. 2002); Samaad v. City of Dallas, 940 F.2d 925, 933-

36 (Sth Cir. 1991); Peters v. Fair, 427 F.3d 1035, 1038 (6th Cir.

2005); Forseth v. Vill. of Sussex, 199 F.3d 363, 368-73 (7th Cir.

2000); Kottschade v. City of Rochester, 319 F.3d 1038, 1041(8th

Cir.), cert. denied, 540 U.S. 825 (2003); Sinclair Oil Corp. v.

County of Santa Barbara, 96 F.3d 401, 405-07 (9th Cir. 1996),

cert. denied, 523 U.S. 1059 (1998); Bateman v. City of W.

Bountiful, 89 F.3d 704, 708-09 (10th Cir. 1996); Agripost, Inc. v.

Miami-Dade County, 195 F.3d 1225, 1234 (11th Cir. 1999), cert

denied, 531 U.S. 815 (2000).

® See, e.g., Steven J. Eagle, Regulatory Takings, 1062, 2d ed.

(2001) (“The ‘ripeness’ metaphor is one that promises ultimate

vindication”); Thomas E. Roberts, Ripeness and Forum

Selection in Fifth Amendment Takings Litigation, 11 J. Land Use

& Envtl. L. 37, 67 (1995) (“the language ... suggests that the

12

The Court’s opinion in San Remo, however, upends this

widespread understanding. It declared that federal takings

claims could, in fact, be asserted during a state lawsuit:

The requirement that aggrieved property owners must

seek “compensation through the procedures the State

has provided for doing so” ... does not preclude state

courts from hearing simultaneously a plaintiff's request

for compensation under state law and the claim that, in

the alternative, the denial of compensation would

violate the Fifth Amendment of the Federal

Constitution. |

San Remo, 545 U.S. at 346 (citing Williamson, 473 U.S. at

194) (emphasis supplied). Thus, while Williamson rules

that a federal takings claim is not ripe until affer the state

denies compensation, San Remo rules that federal claims

can be brought simultaneously with state claims in state

court.

So, which is the rule? Are Williamson and San Remo

reconcilable, or in hopeless conflict? How is it that a Fifth

Amendment claim can be brought simultaneously with a

state inverse condemnation claim in state court, if that

federal claim is not ripe until after the state denies

compensation? How would the process of bringing

simultaneous claims work? Should the state and federal

takings claims be brought in state court sequentially, in that

order? Are they part of the same, or separate, lawsuits?

state law is merely preparatory to a federal suit”); Madeline J.

Meacham, The Williamson Trap, 32 Urb. Law. 239, 249 (2000)

(“language ... of Williamson suggests that a federal claim will

survive after disposition in the state court”).

13

What effect does San Remo’s simultaneous claim rule have

on case law from the lower federal courts, cited supra n. 5,

which have been virtually unanimous that they lack

jurisdiction over Fifth Amendment takings claims until

after state litigation is over? Are these opinions now

overruled?

The petition should be granted so the Court can clarify

the apparent contradictions between Williamson’s rule that

state litigation is a condition precedent to ripen a federal

takings claim, and San Remo’s rule that federal and state

takings cases can be brought simultaneously in state court.

2. Conflict With This Court’s Decision on Removal

Jurisdiction in City of Chicago. Another anomaly is that the

state-litigation rule is irreconcilable with City of Chicago v.

Int’l Coll. of Surgeons, 522 U.S. 156 (1997). There, a

plaintiff brought both federal and state takings claims in

state court. The city then removed the case to federal court.

This Court, without discussing Williamson, allowed the

removal to stand because “a case containing claims that

local administrative action violates federal law ... is within

the jurisdiction of the federal district courts.” /d. at 528-

529. Under the federal removal statute,’ a case can be

removed from state to federal court only if it could have

been brought in federal court originally.

Therein, the seeds of more conflict are sown. Under

Williamson, federal courts do not have original jurisdiction

over federal takings claims because they are not ripe until

7 “TA Jny civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be

removed by the defendant ... to the district court.” 28 U.S.C. §

1441(a) (emphasis supplied.)

14

the property owner brings state litigation and loses. San

Remo confirms that there is no original federal court

jurisdiction over federal takings claims, and counsels that

they may be brought simultaneously with state inverse

. condemnation claims in state court. Yet under City of

Chicago, federal courts do have original jurisdiction over

federal takings claims because a municipality has the right

to remove them to federal court. The upshot is that federal

courts decide federal takings claims only at the whim of

municipal defendants who decide to exercise their removal

option. The petition should be granted to address the

dilemma created by Williamson, San Remo, and City of

Chicago, as to whether federal courts do, in fact, possess

“original jurisdiction” over Fifth Amendment takings

claims.

3. Conflict With This Court’s Decision on Seventh

Amendment Rights in Del Monte Dunes. The state-

litigation rule also generates friction with City of Monterey

v. Del Monte Dunes, 526 U.S. 687 (1999). There, this

Court held that takings plaintiffs in Section 1983 litigation

have a Seventh Amendment right to a jury trial on issues of

government liability. That is in stark contrast to the

practice in state courts generally, which do not submit

takings liability issues to juries. Jd. at 719. Indeed, here

the Petitioners did not receive a jury trial on whether their

claim for intermittent but recurring flooding rendered

Respondent liable to pay just compensation. If Williamson

truly compels state litigation to ripen Fifth Amendment

claims, and San Remo allows simultaneous litigation of

federal and state takings claims in state court, then the

Seventh Amendment rights confirmed by De/ Monte Dunes

are illusory in states that do not provide jury trials on

takings liability.

15

Unlike the Fifth Amendment, which was the first

guarantee in the Bill of Rights to apply to the states through

the Fourteenth Amendment, see Chicago, B. & OQ. R. Co. v.

Chicago, 166 U.S. 226 (1897), “i]t is settled law that the

Seventh Amendment does not apply” to “suits decided by

state court.” Del Monte Dunes, 526 U.S. at 719. This

Court’s attention is needed to ensure that the state-litigation

tule does not abrogate Seventh Amendment rights

guaranteed by the United States Constitution.

B. Conflict in the Circuit Courts.

1. Circuit Conflict on Claim Preclusion. San Remo’s

holding is arguably limited to issue preclusion or collateral

estoppel,® but the language in the Court’s opinion is broad

enough to encompass claim preclusion or res judicata as

well.’ In any event, there is a circuit conflict as to whether

the state-litigation rule triggers res judicata to bar

subsequent federal takings claims. While not citing San

Remo, in the case at bench the court of appeals stated that

the rule against claim splitting applies, “thus barring by

virtue of the doctrine of res judicata a subsequent suit filed

® See San Remo, 545 U.S. at 342 (“The relevant question ... is

whether the state court actually decided an issue of fact or law

that was necessary to its judgment”); id. at 343 (“... we are

presently concerned only with issues actually decided by the .

state court[s] that are dispositive of federal claims raised under §

1983”).

° Id. at 336 (full faith and credit statute “has long been

understood to encompass the doctrines of res judicata, or ‘claim

preclusion,’ and collateral estoppel, or ‘issue preclusion’”); id. at

344 (federal courts may not “simply create exceptions” to full

faith and credit statute and “depart[ ] from traditional rules of

preclusion”) (citations omitted).

16

under federal law.” Pet. App. 9a. The Seventh Circuit thus

joined the Third and Tenth Circuits in extending claim

preclusion to bar subsequent federal takings claims after

mandatory state proceedings have resulted in the denial of

compensation under state law.'° The Second, Sixth, and

Ninth Circuits disagree. They have decided that compelled

resort to state court under Williamson does not extinguish

Fifth Amendment claims subsequently filed in federal

court.'' As the Sixth Circuit observed in rejecting a claim

preclusion defense: “[The] interaction of Williamson

County's ripeness requirements and the doctrine of claim

preclusion could possibly operate to keep every regulatory

takings claimant out of federal court.” DLX, Inc., 381 F.3d

at 521.

Significantly, the Ninth Circuit has _ plainly

distinguished between issue and claim preclusion in the

context of the state-litigation rule. In San Remo, 364 F.3d

1088, 1096 (9th Cir. 2004), it invoked issue preclusion to

bar relitigation in subsequent federal proceedings, and this

Court affirmed, 545 U.S. 323 (2005). But in Dodd, 59 F.3d

at 869-70, the Ninth Circuit refused to deal the claim

preclusion card:

[To] hold that a takings plaintiff must first present a

Fifth Amendment claim to the state court system ...

'© See Peduto v. City of N. Wildwood, 878 F.2d 725 (3d Cir.

1989); Wilkinson v. Pitkin County Bd. of County Comm'rs, 142

F.3d 1319 (10th Cir. 1998).

'! See Santini v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d

118 (2d Cir. 2003), overruled as to issue preclusion and claim

reservation by San Remo, 545 U.S. at 342; DLX, Inc. v.

Kentucky, 381 F.3d 511 (6th Cir. 2004); Dodd v. Hood River

County, 59 F.3d 852 (9th Cir. 1995).

17

would be to deny a federal forum to every takings

claimant. We are satisfied that Williamson County may

not be interpreted to command such a revolutionary

concept and draconian result. (Emphasis supplied.)

The circuits thus disagree on the application of claim

preclusion following Williamson state proceedings, and this

Court should intervene.

2. Circuit Conflict on Removal Jurisdiction. As

discussed supra pp. 13-14, City of Chicago allows a

municipal defendant to remove a takings case to federal

court after a plaintiff's initial state filing. However, the

lower courts are split on whether they have jurisdiction to

decide Fifth Amendment takings claims that have been so

removed. The Seventh Circuit, on remand in City of

Chicago, decided it could resolve a removed federal takings

claim on the merits, despite the lack of prior state litigation.

Int'l Coll. of Surgeons v. City of Chicago, 153 F.3d 356,

360 (7th Cir. 1998). In contrast, the Eighth Circuit has held

it lacked jurisdiction over a federal takings claim that a

municipal defendant removed to federal court, precisely

because no original state proceedings ripened the federal

claim. The stunning aspect of this decision is that the

federal court dismissed for lack of jurisdiction, even though

the plaintiff filed initially in state court and was forced into

federal court upon the city’s removal motion. Koscielski v.

City of Minneapolis, 435 F.3d 898, 903-904 (8th Cir. 2006).

The Fifth Circuit has similarly whipsawed a takings

plaintiff who filed suit originally in state court, only to see a

municipal defendant remove the matter to federal court —

and then argue for dismissal because Williamson’s state-

litigation rule went unsatisfied. The Fifth Circuit rewarded

the city for its chutzpah by dismissing the case. See Sandy

18

Creek Investors, Ltd. v. City of Jonestown, 325 F.3d 623,

626 (5th Cir. 2003).

“{C]onsiderations of fairness and justice” lie at the heart

of the Takings Clause. Tahoe-Sierra Preservation Council

v. Tahoe Reg’! Planning Agency, 535 U.S. 302, 333 (2002).

It is neither fair nor just to allow a municipal defendant to

remove a takings case to federal court, and then seek and

receive a dismissal for lack of a prior state ripening suit.

The circuits are split on how to handle removed takings

cases, and this Court should address the conflict.

3. Circuit Confli Applicati tate-Litigation

Rule to Other Constitutional Claims. The lower federal

courts also clash on whether the state-litigation rule applies

to due process and equal protection claims, in addition to

takings claims. In many constitutional property rights

cases, plaintiffs assert some combination of takings, due

process, and equal protection violations under 42 U.S.C. §

1983. Some circuits restrict Williamson’s state remedies

requirement to takings claims only.' However, the

Seventh Circuit, in parsing a land owner’s § 1983 claims,

held that Williamson state procedures apply to takings and

due process, but not equal protection. See Forseth v. Vill.

"2 See, e.g., County Concrete Corp. v. Town of Roxbury, 442

F.3d 159, 169 (3d Cir. 2006) (“[G]iven that the ‘exhaustion of

just compensation procedures’ requirement only exists due to the

‘special nature of the Just Compensation Clause,’ it is

inapplicable to appellants’ facial [substantive due process] and

[equal protection] claims”; citations omitted). Accord Sinaloa

Lake Owners Ass'n. v. City of Simi Valley, 882 F.2d 1398, 1404

(9th Cir. 1989); Front Royal and Warren County Indus. Park v.

Town of Front Royal, 135 F.3d 275, 283 n.3 (4th Cir. 1998);

McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir.

1997).

19

of Sussex, 199 F.3d 363, 370-71 (7th Cir. 2000). The First

Circuit has held that state inverse condemnation claims

must be exhausted for both federal takings and due process

claims, without opining on equal protection. See Ochoa

Realty Corp. v. Faria, 815 F.2d 812, 817 n.4 (ist Cir.

1987). The Second Circuit has extended Williamson to its

outer limits, requiring ripening state litigation for all three

types of claims. See Dougherty v. Town of No. Hempstead

Bd. of Zoning App., 282 F.3d 83, 88 (2d Cir. 2002).

The Tenth Circuit has issued two, irreconcilable rulings

on this point. It has applied Williamson's state-litigation

rule to takings and procedural due process claims brought

under § 1983. See Rocky Mountain Materials & Asphalt,

Inc. v. Bd. of County Comm'rs of El Paso County, §.2 F.2d

309, 311 (10th Cir. 1992). Yet it has also ruled that the

state-litigation rule is not applicable to any claims sounding

in takings, due process, or equal protection, because a

plaintiff “need not exhaust his available administrative

remedies prior to filing a § 1983 action ....” See Bateman v.

City of West Bountiful, 89 F.3d 704, 708 (10th Cir. 1996).

This Court should grant the petition to provide guidance on

whether the state-litigation rule encompasses due process

and equal protection, as well as takings, claims.

CONCLUSION

The Court should no longer delay its reconsideration of

the state-litigation rule. When Williamson was decided in

1985, this Court’s modern takings jurisprudence was still in

its infancy. Indeed, only after Williamson, in First English

Evangelical Lutheran Church of Glendale v. Los Angeles,

482 U.S. 304 (1987), did this Court even decide that

monetary compensation was the self-effecting remedy

required by the Takings Clause. Since then, the contours of

20

the Fifth Amendment’s substantive protections have

become somewhat more defined, but the most basic,

fundamental jurisdictional question — “Can a federal court

ever decide a federal takings claim?” — _ remains

undeciphered. This is a question of overwhelming

constitutional importance.

For the foregoing reasons, the petition should be

granted.

August 22, 2007

Respectfully Submitted,

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Christopher M. Whitcomb

National Association of Home Builders

Attorneys for Amicus Curiae

APPENDIX A

Cases in which NAHB has participated as an amicus

curiae or “of counsel” before this Court include: Agins v.

City of Tiburon, 447 U.S. 255 (1980); San Diego Gas and

Elec. Co. v. City of San Diego, 450 U.S. 621 (1981);

Williamson County Reg'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); MacDonald, Sommer & Frates

v. Yolo County, 477 U.S. 340 (1986); First English

Evangelical Lutheran Church y. Los Angeles County, 482

U.S. 304 (1987); Nollan v. Cal. Coastal Comm’n, 483 U.S.

825 (1987); Pennell v. City of San Jose, 485 U.S. 1 (1988);

Yee v. City of Escondido, 503 U.S. 519 (1992); Lucas v.

S.C. Coastal Council, 505 U.S. 1003 (1992); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Ore., 515 U.S. 687 (1995);

Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725

(1997); City of Monterey v. Del Monte Dunes at Monterey,

Lid., 526 U.S. 687 (1999); Solid Waste Agency of N. Cook

County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001);

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

Assocs. v. United States, 536 U.S. 129 (2002); Tahoe-

Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

53. U.S. 302 (2002); Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs, 537 U.S. 99 (2002); City of Cuyahoga

Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003);

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,

541 U.S. 95 (2004); San Remo Hotel, L.P. v. City and

County of San Francisco, 545 U.S. 323 (2005); Lingle v.

Chevron U.S.A., Inc., 544 U.S. 528 (2005); Kelo v. City of

New London, 545 U.S. 469 (2005); S.D. Warren Co. v. Me.

Bd. of Envtl. Prot., 126 S.Ct. 1843 (2006); Rapanos v.

United States, 126 S.Ct. 2208 (2006); and John R. Sand and

Gravel Co. v. United States, No. 06-1164 (U.S. cert.

granted May 29, 2007).