# 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

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1132%3A5. Public record. Not legal advice.