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

(sk FILED

@) AUG 2 4 2007

eS ee

In the Supreme Court of the Anited States

SHIRLEY A. ROCKSTEAD ET AL.

Petitioners

v.

CITY OF CRYSTAL LAKE, [ILLINOIS

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF AMICI CURIAE FOR ELIZABETH J.

NEUMONT (AND ALL OTHERS SIMILARLY

SITUATED) IN SUPPORT OF PETITIONERS

ERIC GRANT

HAROLD E. WOLFE, JR. Counsel of Record

HAROLD E. WOLFE, JR., P.A. ATTORNEY AT LAW

Suite 302, Executive Centre Suite 100

2300 Palm Beach Lakes Blvd. 8001 Folsom Blvd.

West Palm Beach, FL 33409 Sacramento, CA 95826

(561) 697-4100 (916) 388-0833

Counsel for Amici Curiae

i

QUESTION PRESENTED

This brief will address the first question presented by

the petition, namely:

Whether the “state procedures” aspect of Williamson

County Regional Planning Commission v. Hamilton Bank,

473 U.S. 172, 194-97 (1985), which mandates that property

owners exhaust state judicial remedies before pursuing fed-

eral claims for just compensation in federal court, should be

overruled.

ii

TABLE OF CONTENTS

Page

Re aY SIERO 5 en 6s SAK e Seen awe wee ween i

pr UN Ba £ igs 5. - Se rarer iv

INTEREST OF AMICI CURIAE ..................... 1

EEE RA hes 66 OT we 06 68 CURE N eeewes 2

RFRRRINE GI GUPEIUEMUE ve vec bd ce carevcavassesns 3

RE Fa Re CaN oe ee Abed ee eR ORES 4

I. In Creating the State Procedures Require-

ment, Williamson County Deviated Sharply

from the Established Understanding of the

Just Compensation Clause .................0055 a

A. At Issue Here Is the Right to Recover

Just Compensation for Takings of Pri-

vate Property for Public Use ................ 4

B. It Was Always the Law that the Right

to Recover Just Compensation Accrues

at the Time of the Taking .................. 5

II. In Creating the State Procedures Require-

ment, Williamson County Built a House on

Re A er ere eer eee 7

A. The Requirement Was Fabricated Without

Benefit of Serious Briefing or Argument ...... 7

B. The Requirement Rests Principally on Two

Flawed Analogies to Inapposite Decisions ..... 8

1. Ruckelshaus v. Monsanto Co. ............ 9

ee | er a er re 11

C. The Requirement Finds No Support in the

Principle that the Amendment Proscribes

Only Takings Without Just Compensation .... 12

iil

TABLE OF CONTENTS—Continued

III. The State Procedures Requirement Has Other

Defects that Show Its Doctrinal Incoherence...... 13

A. The Requirement Is Inconsistent with the

No-Exhaustion-of-Remedies Rule Govern-

ing Other Federal Rights .................. 13

B. The Requirement Is in Practice Ignored

by State Courts and by this Court........... 15

C. The Requirement Invites Disrespect for

State Courts by Treating Them as Mere

Stations on the Road to Federal Court ....... 17

PAPE ice eek Sea eh Ore Co LN ee RTA KES 18

iv

TABLE OF AUTHORITIES

Page

Cases

Armsirong v. United States,

ed vs che kaw eee een 5

Dolan v. City of Tigard,

sa a wk ela oo wee ete 14

Eide v. Sarasota County,

908 F.2d 716 (11th Cir. 1990),

cert. denied, 498 U.S. 1120 (1991) ............... 18

First English Evangelical Lutheran

Church v. County of Los Angeles,

Sie Se ED So ook bate bv hic ee eaeue 5, 8, 12

Grubb v. Public Utilities Commission,

an kf emer Ss 17

Hudson v. Palmer,

re ee ey hoo Kk SR RR OR 1l

Jacobs v. United States,

RA ERED hs vnc de veawcaes eae Rae aaa 5

Jacobs Wind Electric Co., Inc. v.

Department of Transportation,

og | ee rrr eee Be 15

Kavanau v. Santa Monica Rent Control

Board, 941 P.2d 851 (Cal. 1997),

cert. denied, 522 U.S. 1077 (1998) ............... 16

Lawrence v. Texas,

IID ok nv 5 wa Mok wa Ore Sae 2, 18-19

Lucas v. South Carolina Coastal Council,

Ec RR ea ere 16

Mayhew v. Town of Sunnyvale,

Pn oe. Wee DOC AOE) oko cc eciccckncusnsecs 16

v

TABLE OF AUTHORITIES—Continued

Page

Neumont v. State of Florida,

451. FP .2e 1206 (30th Cis. BOOS) «ww ww eee ees 1

Neumoni v. Monroe County, Florida,

242 F. Supp. 2d 1265 (S.D. Fla. 2002) ............. 1

Palazzolo v. Rhode Island,

te ES ides wee cde sereeeene 1, 16-17

Palazzolo v. State, 746 A.2d 707 (R.I.

2000), affd in part, rev'd in part,

ge os ks bw kb ae bw ow AS 16

Parratt v. Taylor,

EE ee 2 els ar ae cicg a tek i MAE 11-12

Patsy v. Board of Regents,

ee RED on bv. cbs obs Coonan dese 14-15

Payne v. Tennessee,

ee ORE tke ccvenesaneueva 18-19

Pennzoil Co. v. Texaco, Inc.,

ds vhs cnn es 44s sane w ane 17-18

Richardson v. City & County

of Honolulu, 124 F.3d 1150

(9th Cir. 1997), cert. denied,

ue Sie Oe he Es PPO CAMO) oc eee ese ees 18

Ruckelshaus v. Monsanto Co.,

re BP EE cic wa tees cnecsace 9-10, 12-13

San Diego Gas & Electric Co. v. City

of San Diego, 450 U.S. 621 (1981) ................ 6

San Remo Hotel, L.P. v. City & County

of San Francisco, 545 U.S. 323 (2005) ........... 1-2

Seminole Tribe of Florida v. Florida,

re eee ae Ck be ap vs Sack as CREO ED 19

vi

TABLE OF AUTHORITIES—Continued

Page

Soriano v. United States,

Oe ie EE, ooh cp kek eina ssa bas vb ¥5% 6, 13

Steel Improvement & Forge Co. v. United

States, 355 F.2d 627 (Ct. Cl. 1966) ............... 6

Steffel v. Thompson,

Cie ee ETO) oe vees esas ciuseves 14, 17,19

Tafflin v. Levitt,

nis eke wnes oeewscsneet 17

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

de dbeeeeawe § 12

United States v. Clarke,

iw idawkesos¥aan- eda 5-6

United States v. Dickinson,

331 U.S. 745 (1947) Se OO Pe eas OTe a eee 5-6

United States v. Dow,

ee ie io ewe c Sku N ee et eeev eure 5-6

United States v. Rogers,

ee eS kg Sikes Pa ae 6

Williamson County Regional Planning

Commission v. Hamilton Bank,

ee eb ci ada er esna nese passim

Yee v. City of Escondido, |

se ak eae aw yb ae ee ee 9.

Younger v. Harris,

NE EEE ipa ack oc aue Win ne hhoavaren 17

vii

TABLE OF AUTHORITIES—Continued

Page

Statutes, Legislative Materials,

and Court Rules

Se Aas OE ok ho ee ee a eo ke 14

DRE Cae doe keel beh s eae wes eee 9

Te 5 a ee aia ie a 14

Private Property Rights Implementation

Act of 1997, H.R. 1534, 105th Cong. ............. 14

Private Property Rights Implementation

Act of 2000, H.R. 2372, 106th Cong. ............. 14

H.R. Rep. No. 106-518 (2000) ............. 14-15, 17-18

oo Bk Se ee eee ern 2

PE Ee 5-6 hc oa kek ok Can NS be ee eee 2

Other Authorities

Brief for Respondent in Williamson

CE CE ks Scien Weick ay 000 se scan es 8

Brief for the United States as Amicus

Curiae Supporting Petitioners in

Williamson County (No. 84-4) ............-5 eee 8

Transcript of Argument in Williamson

County (No. 84-4), 1985 U.S. TRANS

Lge OO LO 2 SOD sc a ce wee Cee es cee we ees 8

1

INTEREST OF AMICI CURIAE

Amici curiae are a certified class of property owners

in Monroe County, Florida, who are trying—and have been

trying for literally more than a decade—to litigate a federal

takings claim in the federal courts. See generally Neumont

v. State of Florida, 451 F.3d 1284 (11th Cir. 2006). Like pe-

titioners (and thousands of other property owners around

the nation), amici are facing “ripeness” arguments by a gov-

ernmental defendant who seeks to avoid federal adjudica-

tion of a federal constitutional claim. In particular, despite

class members having filed at least two actions in the state

courts concerning the regulatory action for which they now

seek just compensation, amici have long been denied their

day in federal court because they have assertedly failed to

satisfy the “state procedures” requirement established by

Williamson County Regional Planning Commission v. Ham-

ilton Bank, 473 U.S. 172, 194-97 (1985). See Neumont v.

Monroe County, Florida, 242 F. Supp. 2d 1265, 1274 (S.D.

Fla. 2002) (dismissing amici’s federal constitutional claims

for just compensation “because plaintiffs have failed to ex-

haust their state remedies”).

Accordingly, for themselves and their fellow property

owners around the country, amici file this brief to urge the

Court to grant the first question presented by petitioners in

order to reconsider Williamson County’s state procedures

requirement. As explained herein, and as petitioners and

their amici will elaborate at the merits stage, that require-

ment was wrong in its inception and is wrong today. The

Court should grant the petition and, on the merits, discard

the state procedures requirement in its entirety.

With the same counsel of record, amici filed a similar

brief at the merits stage in San Remo Hotel, L.P. v. City &

County of San Francisco, 545 U.S. 323 (2005), there urging

the Court to overrule this aspect of Williamson County. In

addition, amici’s counsel of record represented the property

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

regulatory takings case, and he has filed numerous briefs

2

in takings cases in this Court and in the lower courts, both

federal and state.’

INTRODUCTION

In one of his final opinions, Chief Justice Rehnquist

wrote for himself and three other Justices “to explain why

I think part of our decision in Williamson County . .. may

have been mistaken.” San Remo Hotel, 545 US. at 348 (op-

inion concurring in the judgment). Although he had joined

that decision in 1985, two decades of “further reflection and

experience [led him] to think that the justifications for its

state-litigation requirement are suspect, while its impact

on takings plaintiffs is dramatic.” Jd. at 352. Because “no

court below ha[d] addressed the correctness of Williamson

County, [and] neither party has asked us to reconsider it,”

id., the Chief Justice and his colleagues ultimately deter-

mined that reconsideration was not then opportune. But in

“an appropriate case,” opined Chief Justice Rehnquist, “the

Court should reconsider whether plaintiffs asserting a Fifth

Amendment takings claim based on the final decision of a

state or local government entity must first seek compensa-

tion in state courts.” Id.

As petitioners persuasively argue, this is that case. In

contrast to San Remo Hotel, petitioners’ first question pre-

sents the issue squarely. On the merits, and as explained

herein, the “state procedures” requirement of Williamson

County “was not correct when it was decided, and it is not

correct today”; therefore, the requirement “ought not to re-

main as binding precedent.” Lawrence v. Texas, 539 U.S.

558, 578 (2004). In a word, it should be overruled.

1 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, amici curiae affirm that no counsel for

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

son or entity made a monetary contribution for the preparation or

submission of this brief.

3

SUMMARY OF ARGUMENT

1. Itis important to comprehend the precise federal

right at issue in cases within the sweep of the state proce-

dures requirement. The property owner in such cases sues

to enforce a right to recover just compensation for a taking.

That right, and the corresponding obligation of the govern-

ment to pay just compensation, was always understood to

accrue or arise at the time of the taking, and not later. In

asserting that the right and the obligation accrued at some

later point after the denial of state-law remedies in a state

court, Williamson County deviated sharply from the estab-

lished understanding of the Just Compensation Clause.

2. The state procedures requirement was not one of

the questions presented in Williamson County, and so it re-

ceived only the most cursory treatment in the briefing and

argument. Not surprisingly, therefore, the requirement is

poorly reasoned. It rests principally on two flawed analo-

gies to inapposite decisions that decree the unavailability

of (1) equitabie relief against compensable takings, and of

(2) relief under the Due Process Clause for random and un-

authorized deprivations of property, neither of which is re-

motely at issue. Nor can the requirement be justified by the

principle that the Fifth Amendment proscribes only takings

without just compensation, which supports a no-equitable-

relief rule but not exhaustion of state judicial remedies.

3. The state procedures requirement has other de-

fects that show its doctrinal] incoherence. Among these are

that the requirement is really an exhaustion mandate that

conflicts with the no-exhaustion-of-remedies rule governing

other federal rights, as twice recognized in bills passed by

the House of Represertatives. In addition, the requirement

is in practice ignor « »y state courts (and by this Court in

cases originating from state courts), even though it logically

should apply in those fora. Finally, though touted as pro-

moting local decisionmaking, the requirement affirmatively

invites disrespect for state courts by treating them as mere

stations on the road to federal court.

4

ARGUMENT

For the following reasons, the Court should grant the

petition in order to give plenary consideration to overruling

the state procedures requirement fabricated in Williamson

County Regional Planning Commission v. Hamilton Bank,

473 U.S. 172, 194-97 (1985).

I. In Creating the State Procedures Require-

ment, Williamson County Deviated Sharply

from the Established Understanding of the

Just Compensation Clause.

As petitioners note, “the district court dismissed this

case on the grounds of lack of Williamson County ripeness,

ruling that petitioners should have appealed the [state trial

court’s] dismissal of their state inverse condemnation claim

to the Illinois appellate courts.” Pet. 10. That petitioners

felt they had to litigate in state court at all is, of course, a

consequence of the cited decision, which this Court handed

down in 1985. The “state procedures” requirement of Wil-

liamson County—so called to distinguish it from the “final

decision” requirement, which is not at issue here—decreed

that property owners must “seek compensation through the

[state-law] procedures the State has provided for doing so”

before presenting to a federal court their federal claims for

just compensation. 473 U.S. at 194.

A. At Issue Here Is the Right to Recover

Just Compensation for Takings of Pri-

vate Property for Public Use.

In fabricating the state procedures requirement, the

Williamson County opinion referred to a property owner’s

claiming or suffering “a violation of the Just Compensation

Clause.” 472 U.S. at 194-95; accord id. at 195 n.13 (refer-

ring to a “constitutional violation” stemming from a taking

of property). Though it is not unusual to employ the term

violation in a loose sense in connection with a claim for just

compensation, this terminology obscures the true “nature of

the constitutional right” at issue. Jd. Property owners who

5

pursue just compensation in court under the Fifth Amend-

ment do not claim “constitutional violations” in the sense

that they sue to enjoin or remedy state action that violates

or transgresses constitutional norms. Rather, as the Court

articulated in First English Evangelical Lutheran Church v.

County of Los Angeles, these property owners sue to enforce

the government’s “constitutional obligation to pay just com-

pensation” along with their corresponding “right to recover

just compensation.” 482 U.S. 304, 315 (1987) (quoting Arm-

strong v. United States, 364 U.S. 40, 49 (1960), and Jacobs

v. United States, 290 U.S. 18, 16 (1933)). Thus, the owners

are pursuing a monetary remedy that is “grounded in the

Constitution itself.” Id. at 315.

B. It Was Always the Law that the Right to

Recover Just Compensation Accrues at

the Time of the Taking.

When does the government’s constitutional obligation

to pay just compensation arise? Or, to ask the same thing,

when does a property owner’s claim for just compensation

accrue? The answer is that the taking, the obligation of the

taker to pay just compensation, and the owner’s claim for

compensation come into being simultaneously, as this Court

and the lower federal courts consistently held for decades

prior to Williamson County. This Court has explained:

When a taking occurs by physical invasion, . . .

the usual rule is that the time of the invasion con-

stitutes the act of taking, and “[it] is that event

which gives rise to the claim for compensation

and fixes the date as of which the land is to be

valued... .”

United States v. Clarke, 445 U.S. 253, 258 (1980) (quoting

United States v. Dow, 357 U.S: 17, 22 (1958)).

Numerous decisions of this Court state essentially the

same rule using slightly different phraseology. In United

States v. Dickinson, 331 U.S. 745 (1947), the Court rejected

the government’s argument that Dickinson’s reclamation of

6

a portion of property previously taken by flooding rendered

him ineligible to be paid for the original taking: “[N]o use

to which Dickinson could subsequently put the property by

his reclamation efforts changed the fact that the land was

taken when it was taken and an obligation to pay for it then

arose.” Id. at 751 (emphasis added). In Soriano v. United

States, 352 U.S. 270, 275 (1957), the Court affirmed as time-

barred the dismissal of petitioner’s claim against the gov-

ernment “for just compensation for supplies . . . taken from

him . .. during the Japanese occupation of the Philippines.”

As it rejected petitioner’s argument that the hostilities to]-

led the applicable statute of limitations, the Court agreed

that petitioner’s compensation claim “accrued at the time of

the taking.” Id.; accord United States v. Rogers, 255 U.S.

163, 169 (1921) (Having taken plaintiffs’ lands, “it was the

duty of the government to make just compensation as of the

time when the owners were deprived of their property.”).”

In short, it was the consistent rule of this Court and

of the lower federal courts for many decades that the con-

stitutional obligation to pay just compensation arises, and

the claim for just compensation accrues, at the time of the

taking. Whether stated that the event of taking “gives rise

to the claim for compensation,” Dow, 357 U.S. at 22; Clarke,

445 U.S. at 258, or that the obligation to pay just compen-

sation is triggered “[a]s soon as private property has been

taken,” San Diego Gas & Electric Co. v. City of San Diego,

450 U.S. 621, 654 (1981) (Brennan, J., dissenting), the rule

was well-established. Therefore, in asserting that a prop-

erty owner’s monetary claim under the Just Compensation

Clause does not accrue “until just compensation has been

denied” by the state judicial system, 473 U.S. at 195 n.13,

Williamson County deviated sharply from the traditional

understanding of that Clause.

? The law in the old Court of Claims was the same. See, e.g., Steel

Improvement & Forge Co. v. United States, 355 F.2d 627, 631 (Ct.

Cl. 1966) (“It is axiomatic that a cause of action for an unconsti-

tutional taking accrues at the time the taking occurs.”).

7

II. In Creating the State Procedures Require-

ment, Williamson County Built a House on

Jurisprudential Sand.

Did such a sharp deviation from decades of consistent

constitutional interpretation come after sustained reflection

in the face of compelling new authority? Was the state pro-

cedures requirement forged in the fires of intensive and ex-

tensive doctrinal reassessment in light of developments in

the law of just compensation? In a word, no. In fact, quite

the opposite: as explained below, the requirement was fab-

ricated without benefit of serious briefing or argument, and

it rests principally on flawed analogies to inapposite cases,

as well as other misreadings of precedent.

A. The Requirement Was Fabricated Without

Benefit of Serious Briefing or Argument.

In the Court’s own words, it granted certiorari in the

Williamson County case to decide “whether Federal, State,

and Local governments must pay money damages to a land-

owner whose property allegedly has been ‘taken’ temporar-

ily by the application of government regulations.” 473 U.S.

at 185. The attorneys general of 19 states and territories,

together with the Solicitor General of the United States, the

National Association of Counties, the City of New York, and

the City of St. Petersburg, Florida, joined the petitioner in

urging the Court to reverse the court of appeals’ judgment

in favor of the property owner on two alternative grounds:

“that atemporary regulatory interference with an investor’s

profit expectation does not constitute a ‘taking,’” and “that

even if such interference does constitute a taking, the Just

Compensation Clause does not require money damages as

recompense.” Jd. at 175 (emphases added). Four profes-

sional and public-interest organizations filed amicus curiae

briefs urging affirmance of the judgment. See id. at 174.

. In the end, all of this briefing was for naught, because

the Court did not decide the questions presented. Instead,

Williamson County left the temporary takings issue “for an-

other day,” as it concluded that the property owner’s claim

8

for just compensation was “premature.” Id. at 186; cf. First

English, 482 U.S. at 310 (deciding the issue after observing

that Williamson County, among other cases, had left it un-

decided). The conclusion that the just compensation claim

was premature rested primarily on the Court’s applying the

rule that a regulatory takings claim “is not ripe until the

government entity charged with implementing the regula-

tions has reached a final decision regarding the application

of the regulations to the property at issue.” Jd.; see also id.

at 186-94 (explicating this “final decision” requirement).

Logically, the opinion could have stopped at that point,

but it did not. Instead, the opinion put forth a “second rea-

son [why] the taking[s] claim is not yet ripe,” namely, that

the property owner “did not seek compensation through the

procedures the State has provided for doing so.” Jd. at 194.

Of the twelve merits briefs filed in Williamson County, only

the Solicitor General’s amicus brief—and only in a single

paragraph in its Summary of Argument—argued for any-

thing approaching this “second reason.” See Brief for the

United States as Amicus Curiae Supporting Petitioners at

10; see also Brief for Respondent at 39 (responding to point

in two short paragraphs). Furthermore, although the “state

procedures” issue did arise very briefly at ora] argument in

Williamson County, the Solicitor General’s representative

refused even to give an unequivocal answer to the question

whether “a property owner would have to follow judicial re-

view remedies as well for [regulatory action] to ripen into a

taking.” 1985 U.S. TRANS LEXIS 76, at *25-26 (Feb. 19,

1985); see also id. at *26 (“I think it tends to blend in with

the question of whether there should be abstention on the

state law question of whether the commission had properly

applied state law.”).

B. The Requirement Rests Principally on Two

Flawed Analogies to Inapposite Decisions.

There are very good reasons why the Court “ordinarily

doles] not consider questions outside those presented in the

petition for certiorari,” and why the Court disregards that

9

rule “only in the most exceptional cases.” Yee v. City of Es-

condido, 503 U.S. 519, 535 (1992). The “state procedures”

aspect of Williamson County is a perfect illustration of such

reasons. Given that the questions presented did not even

touch on state judicial remedies and that the matter did not

receive serious briefing or argument, it is no surprise that

the fabrication of the state procedures requirement rested

principally on two flawed analogies to inapposite decisions.

1. Ruckelshaus v. Monsanto Co.

First, the opinion cited Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1016-20 (1984), for the notion that “takings

claims against the Federal Government are premature until

the property owner has availed itself of the process provided

by the Tucker Act.” 473 U.S. at 195. From this notion, the

opinion purported to draw an analogy: “Similarly, ifa State

provides an adequate procedure for seeking just compensa-

tion, the property owner cannot claim a violation of the Just

Compensation Clause until it has used the procedure and

been denied just compensation.” Granting that the analogy

is not wholly implausible, the premise is wholly bogus. If

“takings claims” are meant in this passage to refer to mone-

tary claims for just compensation for completed takings of

private property—the very claim that the property owner

asserted in Williamson County—then the cited passage in

Monsanto did not even consider such claims, let alone de-

clare them “premature” until after the property owner had

sued the United States under the Tucker Act.’

In Monsanto, a company sued in federal district court

“seeking injunctive and declaratory relief from the operation

of” various provisions of the Federal Insecticide, Fungicide,

and Rodenticide Act (FIFRA), alleging that “all of the chal-

lenged provisions effected a ‘taking’ of property without just

° The Tucker Act grants the Court of Federal Claims subject mat-

ter jurisdiction over “any claim against the United States founded

upon ... the Constitution,” 28 U.S.C. § 1491(a)(1), including mon-

etary claims for just compensation under the Fifth Amendment.

10

compensation, in violation of the Fifth Amendment.” 467

U.S. at 998-99 (emphasis added). Having concluded that

some of the challenged provisions might conceivably operate

to take the company’s property in some circumstances, the

Court proceeded to consider (in the passage later cited by

Williamson County) whether that conclusion supported the

requested injunctive relief. Monsanto ruled that it did not,

based on the established rule that “lelquitable relief is not

available to enjoin an alleged taking of private property for

public use . .. when a suit for compensation can be brought

against the sovereign subsequent to the taking.” Jd. at 1016

(emphasis added); see also id. at 1017-19 (concluding that

such a suit could be brought under the Tucker Act). Thus,

the company’s request for equitable relief under the Fifth

Amendment was not merely premature, it was not available

at all. In other words, there was nothing the company could

do to “ripen” its claim for equitable relief; that claim simply

had no merit, period.

What about a Tucker Act suit against the government

in the Court of Federal Claims? Could such a suit be called

a prerequisite to asserting a monetary claim against the gov-

ernment for just compensation for a taking of property? No,

as the Monsanto decision confirms, a Tucker Act suit is the

assertion of a claim for just compensation: “whatever taking

may occur is one for public use, and a Tucker Act remedy is

available to provide Monsanto with just compensation.” Id.

at 1020; accord supra note 3. So if Williamson County were

correct that a property owner must “avail [] itself of the pro-

cess provided by the Tucker Act” before pursuing its claim

for just compensation, 473 U.S. at 195, then it would be the

rule that a property owner must essentially bring a Tucker

Act suit before bringing a Tucker Act suit. In other words,

an owner’s Tucker Act suit for just compensation would be

“premature” until the property owner had brought a Tucker

Act suit for just compensation. Jd. Obviously, this reductio

ad absurdum deserves no respect, and Monsanto provides

no reasoned basis for the state procedures requirement.

11

2. Parraitt v. Taylor

The fabrication of the state procedures requirement in

Williamson County also rested on the supposed analogy be-

tween takings of private property “without just compensa-

tion” and deprivations of property “without due process of

law.” The Court relied on Parratt v. Taylor, 451 U.S. 527

(1981), which it described as having “ruled that a person de-

prived of property through a random and unauthorized act

by a state employee does not state a claim under the Due

Process Clause merely by alleging the deprivation of prop-

erty.” 473 U.S. at 195. In such circumstances, “the State’s

action is not ‘complete’ in the sense of causing a constitu-

tional injury ‘unless or until the State fails to provide an ad-

equate postdeprivation remedy for the property loss.’” Jd.

(quoting Hudson v. Palmer, 468 U.S. 517, 532 n.12 (1984)).

Then, another purported analogy: “Likewise, because the

Constitution does not require pretaking compensation, and

is instead satisfied by a reasonable and adequate provision

for obtaining compensation after the taking, the State’s ac-

tion here is not ‘complete’ until the State fails to provide ad-

equate compensation for the taking.” Id.

This analogy has two fatal flaws. First, it provides no

support for the go-first-to-state-court requirement actually

imposed by the second prong of Williamson County. When

a state does indeed “provide an adequate postdeprivation

remedy for the property loss” as contemplated by Parratt,

the deprived property owner does not pursue that state-law

remedy before suing in federal court under the Due Process

Clause. To the contrary, the property owner must pursue

the state-law remedy instead of suing in federal court. As

Williamson County put it, the owner who has such a remedy

categorically “does not state a claim under the Due Process

Clause.” 473 U.S. at 195. Ifthe analogy with the Just Com-

pensation Clause were valid, the property owner having a

state-law remedy for just compensation categorically could

not state a claim under the Just Compensation Clause in

any court. Obviously, no one believes that, then or now.

12

Second, and more important, the specific notion that

“the State’s action [in respect to a taking] is not ‘complete’

until the State fails to provide adequate compensation for

the taking,” id., is flatly contrary to the Court’s sustained

and reasoned consideration of the matter in First English.

There, the Court held that the government’s taking of prop-

erty, without more, gives rise to an “obligation to pay just

compensation” on the part of the government, and a corres-

ponding “right to recover just compensation” on the part of

the owner. 482 U.S. at 315. While a postdeprivation rem-

edy might allow the government to escape liability for a de-

nial of procedural due process (as in Parratt), once a taking

has occurred, governmental liability for just compensation

is inescapable: “no subsequent action by the government

can relieve it of the duty to provide compensation.” Id. at

321 (emphasis added). This formulation has continued to

command the Court’s assent. See Tahoe-Sierra Preservation

Council v. Tahoe Regional Planning Agency, 535 U.S. 302,

328 (2002) (quoting passage and opining that “nothing that

we say today qualifies [that] holding” of First English).

C. The Requirement Finds No Support in the

Principle that the Amendment Proscribes

Only Takings Without Just Compensation.

Along with flawed analogies to Monsanto and Parratt,

Williamson County relied on the uncontroversial principle

that the “Fifth Amendment does not proscribe the taking of

property; it proscribes taking without just compensation.”

473 U.S. at 194. Indeed, this principle was so significant

that the opinion both reiterated and emphasized the point:

“because the Fifth Amendment proscribes takings without

just compensation, no constitutional violation occurs until

just compensation has been denied.” Jd. at 195 n.13.

Both of these propositions are quite true; both are also

quite irrelevant to whether property owners must seek just

compensation in state court under state law. As explained

in Part I.A above (pp. 4-5), property owners who seek just

compensation under the Fifth Amendment are not seeking

13

to “proscribe” (i.e., enjoin) takings, and they are not assert-

ing “constitutional violations.” Instead, they are asserting

a federal “right to recover just compensation,” the monetary

remedy that is “grounded in the Constitution itself.”

To put the point another way, the principle that the

Fifth Amendment proscribes (only) those takings that are

without just compensation leads not to the state procedures

requirement but rather to the rule (reiterated in Monsanto)

that “[e]quitable relief is not available to enjoin an alleged

taking of private property for public use... when a suit for

compensation can be brought against the sovereign subse-

quent to the taking.” 467 U.S. at 1016, discussed at supra

p. 10. That is, the “proscribes takings without just compen-

sation” point cited by Williamson County is a fine basis for

rebuffing ee owners who ask federal courts to enjoin

state regulatory programs; however, it is no basis at all for

rebuffing property owners who ask federal courts to award

Just compensation.

If. The State Procedures Requirement Has Other

Defects that Show Its Doctrinal Incoherence.

If Williamson County’s state procedures requirement

was not correct when it was decided, then it is also defective

in additional ways that have come to light in the past two

decades. Petitioners have catalogued the extensive schol-

arship that has illuminated the depths to which Williamson

County has brought takings procedure. See Pet. 15-16 n.10.

In the following sections, amici discuss three other defects.

A. The Requirement Is Inconsistent with the

No-Exhaustion-of-Remedies Rule Govern-

ing Other Federal Rights.

The intended effect of Williamson County’s state pro-

cedures requirement is to remit property owners with what

had long been described as “accrued” federal claims for just

compensation, Soriano, 352 U.S. at 275, to state courts to

pursue remedies under state law. This result is anomalous

on its face, and it is especially jarring in light of the Court’s

14

long-standing and firm refusal, with respect to other federal

claims asserted pursuant to 42 U.S.C. § 1983, to “require[]

exhaustion of state judicial . . . remedies, recognizing the

paramount role Congress has assigned to the federal courts

to protect constitutional rights.” Steffel v. Thompson, 415

U.S. 452, 472-73 (1974) (emphasis added), quoted in Patsy

v. Board of Regents, 457 U.S. 496, 500 (1982). In practice,

therefore, the state procedures requirement has effectively

caused the Just Compensation Clause, “as much a part of

the Bill of Rights as the First Amendment or [the] Fourth

Amendment, [to] be relegated to the status of a poor rela-

tion,” notwithstanding the Court’s protestations to the con-

trary in Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).

The House of Representatives views the state proce-

dures requirement as an “exhaustion” mechanism applying

only to claims for just compensation, and has twice passed

bills to eliminate it.* The House Judiciary Committee’s re-

port on the latter bill made clear that the non-exhaustion

provision had as its target Williamson County’s state pro-

cedures requirement because the House viewed the require-

ment as a kind of exhaustion-of-judicia]l-remedies rule that

was rejected in Steffel, Patsy, and many other decisions of

this Court. See H.R. Rep. No. 106-518, at 13 & n.3 (2000).

The committee report explained that the “combined effect of

Williamson County, and the application of issue and claim

preclusion [as presented in this case], is to drive out of Fed-

eral court virtually all Federal claims for just compensation

* See Private Property Rights Implementation Act of 1997, H.R.

1534, 105th Cong., § 2 (adding 28 U.S.C. § 1343(e)(3) to provide

that property owners seeking to enforce the Just Compensation

Clause pursuant to 42 U.S.C. § 1983 need not “exhaust judicial

remedies provided by any State or territory”); Private Property

Rights Implementation Act of 2000, H.R. 2372, 106th Cong., § 2

(adding 28 U.S.C. § 1343(e)(4) to provide that claims for just com-

pensation asserted pursuant to § 1983 are “ripe for adjudication

even if the party seeking redress does not exhaust judicial reme-

dies provided by any State or territory”).

15

for takings of private property by local governments.” Id. at

13. As a result of the state procedures requirement, then,

“property rights are procedurally disadvantaged compared

to other civil rights.” Jd. (section heading).

B. The Requirement Is in Practice Ignored

by State Courts and by this Court.

If the state procedures requirement truly derives from

the “nature” of the federal right to just compensation—as

opposed to being merely a “procedural scheme under which

claims may be heard in federal courts,” Patsy, 457 U.S. at

501—then the requirement necessarily governs regardless

of the judicial forum in which the federal right is asserted.

That is, under the logic of Williamson County, “a property

owner cannot claim a violation of the Just Compensation

Clause” even in state court until he has used the “procedure

for seeking just compensation” provided by the state. 473

U.S. at 195. In other words, no federal claim for just com-

pensation may be presented to a state court until the owner

has fully (and unsuccessfully) litigated his state-law claim

for compensation (in the state judicial system).

This precept follows unassailably from the state pro-

cedures requirement; this precept is also uniformly ignored

both by state courts themselves and by this Court. As for

state courts, amici are aware of none that refuses to adjudi-

cate federal claims for just compensation on the ground that

they are premature until a property owner has pursued to

completion all claims for compensation under state law. To

the contrary, it is not difficult to cite numerous examples of

state judicial systems that will hear and determine federal

claims for just compensation before state-law compensation

claims have been fully litigated.®

® See, e.g., Jacobs Wind Electric Co. v. Department of Transporta-

tion, 626 So. 2d 1333, 1337 (Fla. 1993) (contemplating that a pat-

ent holder would assert its claims under the Just Compensation

Clause along with its claims under the state analogue thereto and

(continued...)

16

As for this Court, consider the last two pure regulatory

takings cases it has entertained on certiorari to state courts.

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003,

1009 (1992), the Court observed that following enactment

of the relevant state statute, “Lucas promptly filed suit in

the South Carolina Court of Common Pleas, contending that

the Beachfront Management Act’s construction bar effected

a taking of his property without just compensation.” Even

though the Court postponed its discussion of the merits to

address whether Lucas had satisfied Williamson County’s

“final decision” requirement, see id. at 1010-14, the Court

was not concerned in the least whether Lucas had also sat-

isfied Williamson County’s “state procedures” requirement

by litigating to completion whatever state-law claims for

compensation he might have prior to asserting his federal

claim for just compensation.

Likewise, in Palazzolo v. Rhode Island, 533 U.S. 606,

611 (2001), the Court observed that following proceedings

before the state Coastal Resources Management Council,

Palazzolo “sued in state court, asserting the Council’s appli-

cation of its wetlands regulations took the property without

compensation in violation of the Takings Clause of the Fifth

Amendment.” Again, while the Court addressed the final

® (...continued)

under state common law); Kavanau v. Santa Monica Rent Control

Board, 941 P.2d 851, 855 (Cal. 1997) (observing that the property

owner brought a claim for “just compensation’ in the form of lost

rental income and interest” under both “article I, section 19 of the

California Constitution and the Fifth Amendment of the United

States Constitution”), cert. denied, 522 U.S. 1077 (1998); Mayhew

v. Town of Sunnyvale, 964 S.W.2d 922, 930 (Tex. 1997) (finding

ripe the plaintiffs “just compensation takings claims” brought at

the same time “under the United States Constitution and Texas

Constitution”); Palazzolo v. State, 746 A.2d 707, 711 (R.L 2000)

(observing that plaintiff “brought an inverse condemnation action”

that asserted “a taking of his property for which he was entitled

to compensation pursuant to the United States and Rhode Island

Constitutions”), affd in part, rev’d in part, 533 U.S. 606 (2001).

17

decision requirement at length, see id. at 618-26, it gave no

attention to the state procedures requirement. In contrast

to Williamson County, the Court certainly did not go out of

its way to assure itself that, before Palazzolo first asserted

his federal claim for just compensation, he did indeed “seek

compensation through the procedures the State has provid-

ed for doing so.”

C. The Requirement Invites Disrespect for

State Courts by Treating Them as Mere

Stations on the Road to Federal Court.

In a letter expressing its (unsuccessful) opposition to

passage by the House of a bill eliminating the state proce-

dures requirement, see supra note 4 and accompanying text,

the Department of Justice cited “‘a proper respect for State

functions’” in arguing that “State courts are as capable as

Federal courts in adjudicating local land use cases.” H.R.

Rep. No. 106-518, at 37, 42 (quoting Younger v. Harris, 401

U.S. 37, 44 (1971)). These arguments naturally evoke the

decisions of this Court that call for a “proper respect for the

ability of state courts to resolve federal questions presented

in state-court litigation.” Pennzoil Co. v. Texaco, Inc., 481

U.S. 1, 14 (1987). Amici concur with the Department that

this respect should influence the Court’s thinking about the

state procedures requirement. As set forth below, however,

the requirement actually invites disrespect for state courts

and their ability to resolve federal questions.

It has long been recognized that, notwithstanding “the

paramount role Congress has assigned to the federal courts

to protect constitutional rights,” Steffel, 415 U.S. at 473, as

a general matter “the state and federal courts have concur-

rent jurisdiction of suits of a civil nature arising under the

Constitution and laws of the United States.” Grubb v. Pub-

lic Utilities Commission, 281 U.S. 470, 476 (1930); accord,

e.g., Tafflin v. Levitt, 493 U.S. 455, 459 (1990). Monetary

claims under the Just Compensation Clause are within this

general rule, and state courts routinely adjudicate such fed-

eral claims against state and local governments.

Bape

18

Consider a procedural regime in which both the state

courts and the lower federal courts adjudicate the federal

claims for just compensation respectively presented to each.

Property owners who agree with the Justice Department’s

prediction that “State courts are likely to be as sympathetic

to local property owners as Federal courts,” H.R. Rep. No.

106-518, at 37, will naturally gravitate toward the former;

those who disagree, the latter. Each court system will de-

velop federal takings law subject to this Court’s review and,

significantly, without interference from the other. Such a

regime would not only yield more efficient decisionmaking,

it would also truly show that “proper respect for ability of

state courts to resolve federal questions presented in state-

court litigation” enunciated in Pennzoil Co., 481 U.S. at 14.

By contrast, consider the regime created by the state

procedures requirement of Williamson County. Under that

regime, federal courts consider state courts not as parallel

departments of a dual sovereign but rather as “hurdies” to

be overcome on the road to resolution of claims by federal

courts. E.g., Richardson v. City & County of Honolulu, 124

F.3d 1150, 1165 (9th Cir. 1997), ceri. denied, 525 U.S. 871,

921, 1018 (1998); Eide v. Sarasota County, 908 F.2d 716,

720-21 (11th Cir. 1990), cert. denied, 498 U.S. 1120 (1991).

Moreover, federal courts send property owners packing off

to state courts to litigate state-law claims they do not wish

to pursue and to obtain rulings that may have absolutely no

consequence in subsequent federal proceedings. Forcing

pointless detours to state courts to litigate sideshow issues

demonstrates affirmative disrespect for those courts rather

than the requisite proper respect.

CONCLUSION

As the Court has often reiterated, the doctrine of stare

decisis is “not .. . an inexorable command.” Lawrence, 539

USS. at 577 (quoting Payne v. Tennessee, 501 U.S. 808, 828

(1991)). It is, instead, “a principle of policy” that must yield

when the rationale of a prior decision “does not withstand

careful analysis.” Jd. As this brief has demonstrated, the

19

state procedures requirement of Williamson County cannot

withstand such analysis: it was fashioned in circumstances

that warrant no confidence its soundness, and “precedents

before and after its issuance contradict its central holding.”

Id. Although state and local governments “rely” on it as a

ready means to exhaust property owners having the tem-

erity to assert federal claims for just compensation, “there

has been no individual or societal reliance on [the require-

ment] of the sort that could counsel against overturning its

holding once there are compelling reasons to do so.” Id.

This last point is crucial, for we may expect a chorus

from respondent and its amici regarding how the state pro-

cedures requirement is a pillar of Western Civilization and

how overruling it will usher in a new Dark Ages. We think

this chorus is largely driven by the desire of governments

and their allies to narrow the substantive scope of takings

law. While that desire is understandable and, in the proper

case, a legitimate litigating position, we are confident that

all Members of this Court will resist the temptation to treat

the state procedures requirement as a stand-in for disput-

ing the substantive reach of the Just Compensation Clause.

Whether that Clause affords broad relief to property own-

ers, narrow relief, or even no relief at all, should not matter

here: in accord with “the paramount role Congress has as-

signed to the federal courts to protect constitutional rights,”

Steffel, 415 U.S. at 473, the answers to that question ought

to be resolved in federal court without requiring exhaustion

of state-law remedies in state court.

As the Court has repeatedly stated, when “governing

decisions are unworkable or are badly reasoned, this Court

has never felt constrained to follow precedent.” Seminole

Tribe v. Florida, 517 U.S. 44, 63 (1996) (quoting Payne, 501

U.S. at 827). The Court should not feel constrained here:

this is the “appropriate case” to reconsider—and ultimately

overrule—the unworkable and badly reasoned state proce-

dures requirement of Williamson County.

20

The petition for writ of certiorari should be granted.

Respectfully submitted.

ERIC GRANT

HAROLD E. WOLFE, JR. Counsel of Record

HAROLD E. WOLFE, JR., P.A. ATTORNEY AT LAW

Suite 302, Executive Centre Suite 100

2300 Palm Beach Lakes Blvd. 8001 Folsom Blvd.

West Palm Beach, FL 33409 Sacramento, CA 95826

(561) 697-4100 (916) 388-0833

Counsel for Amici Curiae

August 2007