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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

FIED |
(Y AUG 22 23 |
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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1132%3A4. Public record. Not legal advice.