Opposition Brief — Peters v. Village of Clifton, Illinois (No. 07-635)

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| OFFICE OF THE Cr

No. 07-635 |_SUPREME COURT, «i,

IN THE

SUPREME COURT OF THE UNITED STATES

BRUCE PETERS,

Petitioner

V.

VILLAGE OF CLIFTON, an Illinois municipal

corporation; ALEXANDER, COX & McTAGGERT, INC.;

and JOSEPH McTAGGERT,

Respondents

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For the Seventh Circuit

Rrief For Resnondent In Opposition To Petition

James C. Kearns

Heyl, Royster, Voelker & Allen

102 E. Main Street, Suite 300

Urbana, IL 61801

(217) 344-0060

Counsel for Respondents

QUESTIONS PRESENTED

1. Whether a Fifth Amendment takings analysis

applies to Petitioner when he has alleged ultra vires,

unlawful and illegal acts by Respondent and when the

Fifth Amendment applies only to authorized

governmental acts.

2. If a Fifth Amendment takings analysis applies,

whether Petitioner has presented compelling reasons to

grant the Petition, where the Seventh Circuit's Opinion

affirming the District Court’s analysis under Williamson

County does not conflict with the decisions of this Court

or a Court of Appeals, and where Petitioner does not

claim the Seventh Circuit's ruling implicates an

important federal question that has not been settled by

this Court.

ii

CORPORATE DISCLOSURE STATEMENT

Alexander, Cox & McTaggert, Inc., has no parent

company and no publicly held company owns 109

more of that party's stock

i) OT

iii

TABLE OF CONTENTS

CHUSEAS EPIIW FEIN BEOED oc oc cc coerce ceeececeres i

CORPORATE DISCLOSURE STATEMENT ........... ii

EAE WIS GRMUEMEUED ccc cewhevessweevsesenees iii

SA IE PATTERSON 6 6 vo ce he wee cents eveevin V

ESSE on oo bok Tka ah benvthseseusesess ]

SUPPLEMENT TO PETITIONER’S STATEMENT

ir One Ge es ee eae een yaaa ees 2

iy. EE wees Sucay cee sues ose suas een eens 2

REASONS FOR DENYING THE PETITION ........... 3

I. This case is not a proper vehicle for

considering whether Williamson County

should be overruled because Petitioner

contends the government's conduct was

unauthorized, illegal, and ultra vires and

such alleged conduct does not give rise to

a Fifth Amendment takings claim. .......... 3

II. Petitioner's Petition should not be granted

because the Court's decision in Williamson

COUNNY WES CONTOCE «5b cece ce srseeeses 5

1V

TABLE OF CONTENTS - Continued

A. The Williamson County decision re-

affirmed more than 100 years of takings

jurisprudence.......... oieeee eee

B The State Compensation Requirement

Does Not Create A Contradictory And

Unpredictable Jurisdictional

gc , 13

C. The State Compensation Requirement

Does Not Conflict With Removal

ee fas ol eae 16

D Acceptance of Petitioner's theory would

impose an unnecessary undue burden

on States and their municipalities .... 18

I] Williamson County Applies to Allegations of

Physical Takings ................ ee Te

IV. The doctrine of stare decisis warrants denial of

Petitioner's Petition for Writ of Certiorari ... 23

Bo ee BRD Ae ere ae et ae

V

TABLE OF AUTHORITIES

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411,

Pe et PO LR hc 6s 2 ewes 13

Asociacion de Subscripcion Conjunta Del Seguro

De Reponsabilidad Obligatorio v. Flores Galarza,

et PE ad os Serre ees ye 20

Bay View, Inc. on behalf of AK Native Village Corps.

v. Ahtna, Inc., 105 F.3d 1281 (9 Cir. 1997) ......... 8

Belvedere Military Corp. v. County of Palm Beach,

Florida, 845 F. Supp. 877 (S.D. Fla. 1994) ......... 20

Carrollton Properties, Ltd. v. City of Carrollton,

Texas, 2006 WL 2559535 (E.D. Tex. 2006) ......... 16

Cherokee Nation v. Southern Kan. Ry. Co.,

135 U.S. 641, 10 S.Ct. 965 (1890) ... 5,11, 18, 20, 23

Chicago, Milwaukee St. Paul and Pacific Railroad

Co. v. United States, 799 F.2d 317 (7” Cir. 1986),

cert. denied, 481 U.S. 1069 (1987) .. 0... cee 4

City of Chicago v. International College of

Surgeons, 522 U.S. 156, 118 S.Ct. 523,

NOP EEG BO Ore (AGT) on csc cecsisdevieaideteds 17

Del Rio Drilling Programs Inc. v. United States,

146 F.3d 1358 (Fed. Cir. 1998) ........ vo er

Vi

Dickerson v. United States, 530 U.S. 428,

120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) ............ 23

Doney v. Pacific County, 2007 WL 1381515 (W.D

Wash. 2007) .... 16

Eastern Enterprises v. Apfel, 524 U.S. 498,

118 S. Ct. 2131, 141 L.Ed.2d 451 (1998) ............3

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, California,

482 U.S. 304, 107 S. Ct. 2378 (1987) ...... 3

Home Telephone & Telegraph Co. v. City of Los

Angeles, 227 U.S. 278, 33 S.Ct. 312 (1913) ...... 22

Hooe v. United States, 218 U.S. 322, 31 S.Ct. 85,

54 L.Ed. 1055 (1910) 4

Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194,

POR RE |: ee en , ez

Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267,

ee ee a ea 11, 20

Intern'l College of Surgeons v. City of Chicago,

1995 WL 9243 (N.D. Ill. 1995), rev'd, 91 F.3d 981

(7" Cir. 1996), rev'd, 522 U.S. 157 (1997) ...... oe:

Joslin Mfg. Co. v. City of Providence,

262 U.S. 668, 43 S.Ct. 684 (1923) .. 6, 18, 23

Vi

Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct.

SBS, G2 Le Fel SSS (IGT) ow ccc cece uccccceses 22, 23

Laguna Gatuna, Inc. v. U.S., 50 Fed. Cl. 336

Ue Se NE Cec ccr tees tecksavoete cd euesuee end 9

Langford v. United States, 101 U.S. 341,

11 Otto 341, 25 L.Ed.Zd 1010 (1879) .. 06. ccc ecee: 4

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S.Ct.

SGTS, S60 ©. GTO GHD oe pc vccnesretenes: 3, 4

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

1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) ....... 12

Matsushita Electric Indus. Co. v. Epstein,

516 U.S. 367, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) ... 13

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

ree I a ep ete ces bier eieens eeu 20

Moore v. Covinton County Comm 7,

2007 WL 1771384 (M.D. Ala. 2007) ............... 16

Moore v. Sims, 442 U.S. 415, 99 8.Ci. 2371,

co Ro rca hen 14

Nicholson v. United States, 77 Fed. Cl. 605 (Fed. CL.

FRE PUR ER aime ct Me a I ah ld ee ih ek oli Goeeeye i 4

Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct.

DOG, B50 Leer Ge COED onic wc othe ceww ee 12

Vill

Parratt v Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908

(1908), overruled on other grounds, Daniels v.

Williams, 474 U.S. 327 (1986) «0.000 ce eee 14,15

Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597,

S15 EBD Fae COE octaves oe ea eee 23

Preseault v. Interstate Commerce Commission,

494 US. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (990) . 7,8, 11

Raymond v. Chicago Union Traction Co., 207 U.S. 20,

SOS.G1. 7, TE hm FOCOTS 5 ob ic asses eee 21

Roedler v. U.S. Dep't of Energy, 1999 WL 1627346

ie Re, TO cok vc 5 060 kobe eee 4

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

Fancisco California, 545 U.S. 232, 125 S.Ct. 2491,

162 L.Ed.2d 315 (2005) .. 1, 2, 7, 9-11, 13, 15, 16, 19, 24

Schroder v. Bush, 263 F.3d 1169 (10" Cir. 2001) ..... 8

Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037,

49 L.Ed.2d 1067 (1976) 2... 0. ccc ccc ccc cece cece 14

Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725, 117 S.Ct.1659, 137 L.Ed.2d 980 (1997) . 10

Sweet v. Rechel, 159 U.S. 380, 16 S.Ct. 43,

OLB 106 AGRE is ks vc cressar nee t, @o

United States v. General Motors, 323 U.S. 373,

G5 S.Ct. 357, GO Ld Bil CIGES) 5 ke eck vc wennss 22

1X

United States v. International Business Machines

Corp., 517 U.S. 843, 116 S.Ct.1793,

135 L.Ed.2d 124 (1996) .......... peeece ae

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375

(2" Cir. 1995), cert denied, 519 U.S. 808 (1966) .... 20

Western Union Telegraph Co. v. Pennsylvania

Railroad Co., 195 U.S. 540, 25 S.Ct.133, 49 L.Ed. 312

6 ra peeeuusesns secces Oe

Williamson County Regional Planing

Commission v. Hamilton Bank of Johnson

County, 473 U.S. 172, 105 S. Ct. 3108, 87 L.Ed.2d 126

() | a 1-3, 5, 7-13, 15-16, 18, 20-21, 23-24

Yearsley v. W.A. Ross Const. Co., 309 U.S. 18,

60 S.Ct. 413, 84 L.Ed. 554 (1940) ... tee eeeeee IL, 20

OTHER

Thomas E. Roberts, Facial Takings Claims Under

Agins-Nector: A Procedural Loose End, 24 U

Hawaii L. Rev. 623, 624 (2002) ........... 9 ll

l

INTRODUCTION

Petitioner presents no compelling reason for his

Petition for a Writ of Certiorari (“Petition”) to be granted.

See Sup. Ct. R. 10. Petitioner fails to demonstrate that the

Seventh Circuit's August 22, 2007 Opinion is in conflict

with a decision of this Court or another Court of Appeals

or that the Seventh Circuit decided an important federal

question that has not been settled by this Court. See Sup.

Ct. R. 10(a)-(c). Petitioner has instead shown that the

District Court's dismissal of his federal claim was in

accordance with this Court's decisions in Williamson

County Reg] Planning Commission v. Hamilton Bank of

Johnson City and San Remo Hotel v. County of San

Francisco. Therefore, the Petition should be denied.

Petitioner claims the Court's decision in

Williamson County should be reconsidered because it

prevents him from bringing a Fifth Amendment takings

claim in Federal Court and consequently eliminates his

federal takings claim altogether.

Petitioner's arguments ignore over 100 years of

takings jurisprudence wherein this Court has consistently

heid iiere is no Fifth Amendment takings claim when, at

the time of the taking, there is a state provision which is

“sufficiently reasonable, certain, and adequate to secure

just compensation...”

2

Petitioner presents no compelling reasons for the

grant of his Petition. His Petition addresses firmly

established issues which do not merit this Court's

attention. The Court's decision in Williamson County

echoed firmly established takings jurisprudence and it

was recently reaffirmed by this Court in San Remo.

Because the Petitioner has failed to carry his substantial

burden of demonstrating that there are any compelling

reasons for the Court to grant his Petition, the Petition

should be denied.

SUPPLEMENT TO PETITIONER'S

STATEMENT OF THE CASE

I. Background

Petitioner contended in his Complaint, and before

the Seventh Circuit Court of Appeals that “the Village's

sanitary drainage system and the occupation and use of

his property for that system are illegal and

unauthorized.”App. at A-7. Petitioner also contended in

his Opening Brief before the Seventh Circuit Court of

Appeals that the government's acts constituted “an ultra

vires physical occupation of property...” and that there

was an “illegal or ultra vires invasion of private property.”

Petitioner requested compensatory damages for the

taking and a permanent injunction. App. at A-5.

3

REASONS FOR DENYING THE PETITION

I. This case is not a proper vehicle for

considering whether Williamson Countyshould

be overruled because Petitioner contends the

government's conduct was’ unauthorized,

illegal, and ultra vires and such alleged

conduct does not give rise to a_ Fifth

Amendment takings claim.

A necessary prerequisite to a Fifth Amendment

takings claim is authorized governmental action. The

Fifth Amendment “does not bar government from

interfering with property rights, but rather requires

compensation ‘in the event of otherwise proper

interference amounting to a taking.” Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 543, 125 S. Ct. 2074, 2084, 161

L.Ed.2d 876 (2005) (quoting First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

California, 482 U.S. 304, 107 S. Ct. 2378, 96 L.Ed.2d 250

(1987) (emphasis added by Court in Lingle)). The Fifth

Amendment “presupposes what the government intends

to do is otherwise constitutional” and a takings analysis

should be reserved for “cases where the governmental

action is otherwise permissible.” Eastern Enterprises v.

Apfel, 524 U.S. 498, 545-46, 118 S. Ct. 2131, 2157-58, 141

L.Ed.2d 451 (1998) (Kennedy, J., concurring in judgment

and dissenting in part). “[A]t the heart of the Clause lies

a concer, not with preventing arbitrary or unfair

government action, but with providing compensation for

legitimate government action that takes ‘private property’

to serve the ‘public’ good.” Eastern Enterprises, 524 U.S.

at 554 (Stevens, J., dissent)(emphasis added). “The

4

constitutional prohibition against taking private property

for public use without just compensation is directed

against the government and not against individuals or

public officers proceeding” without authority. Hooe v.

United States, 218 U.S. 322, 335, 31 S.Ct. 85, 89, 54 L.Ed.

1055 (1910).

Consistent with the foregoing, the Court in Lingle

held that a formula inquiring whether government

regulation of private property “substantially advances”

legitimate state interest is not an appropriate takings

claim test because such test probes the regulation’s

underlying validity, and not whether just compensation

has been provided for an otherwise proper taking. Lingle,

944 US. at 543. The Seventh Circuit Court of Appeals, in

Chicago, Milwaukee St. Paul and Pacific Railroad Co. v.

United States, 799 F.2d 317, 326 (7™ Cir. 1986), cert.

denied, 481 U.S. 1069 (1987), cited this Court's decision in

Langford v. United States, 101 U.S. 341, 344-45, 11 Otto

341, 25 L.Ed.2d 1010 (1879) for the proposition that

“ fa]uthorized actsof the government may be takings...but

unauthorized or mistaken ones are torts for which the

officer alone is answerable.” (emphasis added).

Lower federal courts are in agreement that alleged

“unauthorized or tortious conduct [by the government] is

not compensable under the Fifth Amendment.” Nicholson

v. United States, 77 Fed. Cl. 605, 614 (Fed. Cl. 2007).

“(U]ltra vires conduct cannot give rise to a Fifth

Amendment taking...” Del Rio Drilling Programs Inc. v.

United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998). See

also Roedler v. U.S. Dep't of Energy, 1999 WL 1627346, p.

11 (D. Minn. 1999) (ultra vires acts “could not form the

5

basis of a taking claim”), aff'd, 255 F.3d 1347 (Fed. Cir.

2001), cert. denied, 534 U.S. 1056 (2001); Laguna Gatuna,

Inc. v. US. 50 Fed. Cl. 336, 341 (Fed. Cl.

2001) (recognizing only authorized government action can

form basis of takings claim; unauthorized acts are viewed

as torts, not takings).

Petitioner has alleged illegal, unauthorized, and

ultra vires acts by the Defendants. Because the Fifth

Amendment takings clause presupposes legitimate

authorized governmental action, Petitioner has not pled

a viable takings claim and the continuing viability of

Williamson County has no bearing on Petitioner's claim.

II. Petitioner’s Petition should not be granted

because the Court’s decision in Williamson

County was correct

A. The Williamson County decision re-

affirmed more than 100 years of takings

jurisprudence

Petitioner's argument that the Court's state

compensation requirement set forth in Williamson

County Regional Planing Commussion v. Hamilton Bank

of Johnson County, 473 U.S. 172, 105 S. Ct. 3108, 87

L.Ed.2d 126 (1985) has no plausible support cannot

withstand scrutiny. The underlying basis for the

Williamson County decision dates back to the late 1800s.

In Cherokee Nation v. Southern Kan. Ry. Co., 135 U.S.

641, 10 S. Ct. 965, 34 L.Ed. 295 (1890), the plaintiff

contended congressional law violated the takings clause

because the law did not provide for pre-takings

6

compensation. This argument was rejected, with the

court stating:

This objection to the act cannot be

sustained. The constitution declares that

private property shali not be taken ‘for

public use without just compensation.’ It

does not provide or require that

compensation shall be actually paid in

advance of the land to be taken; but the

owner is entitled to reasonable, certain

and adequate provision for obtaining

compensation before his occupancy is

disturbed.

135 U.S. at 659 (emphasis added). In determining the

constitutional requirement had been met, the Court

looked to the statutory provisions for obtaining

compensation and found they were “sufficiently

reasonable, certain, and adequate to secure just

compensation...” Id.

In accord is the Court's decision in Joslin Mfg. Co.

v. City of Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed.

1167 (1923), wherein the plaintiffs argued a state law

was an unconstitutional taking because it authorized the

taking of property without an “offer to pay compensation

therefor or a determination of it in advance.” Rejecting

the argument, this Court noted “it has long been settled

that the taking of property for public use by a state or

one of its municipalities need not be accompanied or

preceded by payment, but the requirement of just

5

compensation is satisfied when the public faith and

credit are pledged to areasonably prompt ascertainment

and payment, and there is adequate provision for

enforcing the pledge.” 262 U.S. at677 (emphasis added).

The Court determined, moreover, that the state law's

provisions “adequately fulfill the requirement in respect

of the ascertainment and payment of just

compensation.” Id.' See also Sweet v. Rechel, 159 U.S.

380, 16 S.Ct. 43, 40 L.Ed. 188 (1895): Preseault v.

Interstate Commerce Commission, 494 U.S. 1, 10, 110

S.Ct. 914, 921, 108 L.Ed.2d 1 (1990) (recognizing Fifth

Amendment does not require that just compensation be

paid in advance of or even contemporaneously with the

taking).

The foregoing cases reflect more than 100 years

of takings jurisprudence which was echoed in

Williamson County and affirmed by the Court in San

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

California, 545 U.S. 232, 125 S.Ct. 2491, 162 L.Ed.2d 315

(2005). In analogous cases involving takings claims

against the federal government, this Court has applied a

similar analysis, requiring takings plaintiffs to seek just

compensation in the federal court of claims under the

' Petitioner suggests on page 15 of his brief that Williamson

County is nonsensical because it requires the property owncr “to

ask the state for compensation before the property owner can sue

the local government in federal court.” Williamson Countydoes not

require a property owner to “ask the state for compensation,” it

instead provides that there can be no Fifth Amendment takings

claim in federal district court when the property owner has an

available compensatory remedy under state law.

8

Tucker Act before asserting a Fifth Amendment takings

challenge in a federal district court. Preseault, 494 U.S.

at 11-17 (holding takings claim in federal court of

appeals was premature because the plaintiff failed to

pursue an available remedy in the Court of Claims under

the Tucker Act).* See also Bay View, Inc. on behaif of AK

Native Village Corps. v. Ahtna, Inc., 105 F.3d 1281, 1285

(9 Cir. 1997) (holding federal district court had no

jurisdiction to address merits of takings claims where

Congress provided a means for paying compensation for

any taking that might have occurred); Schroder v. Bush,

263 F.3d 1169, 1177 (10 Cir. 2001) (takings claims

7 On page 11 of the Brief Amici Curiae for Elizabeth

Neumont, Amicus contend Williamson County's reliance on

Ruckelshaus v. Monsanto Co. 467 U.S. 986 (1984) is misplaced

because the Ruckelshaus plaintiff sought only equitable relief. The

Court's decision in Preseault, however, parallels the Williamson

County analysis, concluding a federal court of appeals could not

consider a takings claim until the plaintiff avails itself of the process

provided by the Tucker Act in the federal court of claims. Preseault,

494 US. at 11-12. Amici further suggests the Tucker Act line of cases

are inapposite, stating “could such a suit be called a prerequisite to

asserting a monetary claim against the government for

compensation for a taking of property?” The question is not whether

a property owner has to ripen his claim to obtain compensation

under the Tucker Act; rather, the question is what action a property

owner must take to assert a takings claim in federal district court

against the federal government. Like state takings, property owners

alleging federal takings are required to first assert their takings

claim in the Federal Court of Claims under the Tucker Act before

bringing a takings claim in a Federal District Court. Preseault, 494

U.S. at 17 (“petitioner's failure to make use of the available Tucker

Act remedy renders their takings challenge [before the Second

Circuit Court of Appeals] to the ICC’s order premature’).

9

against federal government in federal district court are

premature until property owner has availed itself of

process available under the Tucker Act), cert. denied,

534 U.S. 1083 (2002).

Decisions from this Court reflect that the

determinative issue is not the compensation owedto the

property owner at the time of the taking; but is instead

the adequacy and availability of the compensatory

provisions at the time of taking. If the state has

provisions available for obtaining compensation, the

property owner cannot assert a Fifth Amendment

takings claim in federal district court.°

* In the Brief of Amicus Curiae Joyce Yamagiwa, several

words are pulled form various cases and articles to purportedly

describe the holding of Williamson County. See Yamagiwa Brief,

pages 6-9. Without reviewing each of the cited authorities, it is

impossible to know the context in which the purported words were

used. In some cases, the words appear to be taken out of context.

As but one example, Amicus cites one authority for the proposition

that Williamson County was “ill-considercd.” id. ai page 6 (citing

Thomas E. Roberts, Facial Takings Claims Under Agins-Nector: A

Procedural Loose End, 24 U. Hawaii L. Rev. 623, 635 (2002)). That

author, however, did not opine that Williamson County was ill-

considered; he instead indicated the Court's use of the tern

“ripeness” may have been “ill-considered”. 24 U. Ilawaii L. Rev. at

635. The author further notes the state compensation rule is not a

“ripeness rule”, but is “better viewed as an element in the unique

Fifth Amendment takings cause of action.” Jd. at 625-26. Amicus’

citations, moreover, all pre-date the Court's decision in San Remo.

10

The basis for these decisions stems directly from

the express terms of the Fifth Amendment:

[Blecause the Fifth Amendment

proscribes takings without just

compensation, no constitutional violation

occurs until just compensation has been

denied. The nature of the constitutional

right therefore requires that a property

owner utilize procedures for obtaining

compensation before bringing a § 1983

action.

Williamson County, 473 U.S. at 195, fn. 13 (emphasis in

original). See also Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725, 734, 117 S.Ct. 1659, 1665, 137

L.Ed.2d 980 (1997)(noting the state compensation

requirement “stems from the Fifth Amendment's proviso

that only takings without ‘just compensation’ infringe

that Amendment”).‘ In effect, “the state compensation

* In his concurring opinion in San Remo, Justice Rehnquist

noted that the couri in Suitum referred to the state compensation

requirements as “merely a prudential requirement.” 545 U.S. at

349. Although it is true the Suitum Court referred to the Williamson

Countyrequirements as “prudential,” the Court went on to note that

“[o}rdinarily a plaintiff must seek compensation through state

inverse condemnation proceedings before initiating a takings suit

in federal court unless the State does not provide adequate

remedies for obtaining compensation.” Suitum, 520 U.S. at 734, fn.

8 (emphasis added). Although the Court's discussion in Suitim is

arguably dicta because the state compensation requirement was

not at issue, the language re-affirms, rather than disproves, the

constitutional basis for the state compensation requirement.

11

rule is an element of a Fifth Amendment takings claim.”

Thomas E. Roberts, Facial Takings Claims Under Agins-

Nector: A Procedural Loose End, 24 U. Hawaii L. Rev.

623, 624 (2002).°

Petitioner reasons on pages 13-15 of his Brief that

because a duty to pay just compensation accrues at the

time of a taking, “the issue of whether the taking is

‘without just compensation’ should also be ascertained

at that point.” In making this argument, Petitioner

ignores this Court's established holdings, both before

and after Williamson County, that the Fifth Amendment

does not require that just compensation be paid in

advance of or even contemporaneously with the taking.

See, e.g., Preseault, 494 U.S. at 10; Yearsley v. W.A. Ross

Const. Co., 309 U.S. 18, 21, 60 S.Ct. 413, 415, 84 L.Ed.

554 (1940); Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct.

267, 269, 76 L.Ed. 637 (1932); Cherokee Nation, 135 US.

at 649. Thus, while the compensation owed may be

measured from the time of a physical intrusion, “as a

matter of law, an illegitimate taking might not occur until

In his San Remo concurrence, Justice Rehnquist

questioned why takings claims should be relegated to state courts

while land-use regulations challenged under the First Amendment

or the Equal Protection clause can proceed directly to federal court.

945 U.S. at 350-51. The difference in treatment stems directly from

the express language of the Constitution. Unlike the Fifth

Amendment, the applicability of the First Amendment or the Equal

Protection Clause is not dependent upon whether the violation is

“without just compensation.”

12

the government refuses to pay...” First English, 482 U.S.

at 320, fn. 10, (emphasis added).

Whether there has been a taking without just

compensation therefore depends on whether, at the

time of the taking, the plaintiff has a remedy under state

law which is sufficiently reasonable, certain, and

adequate to secure just compensation and not whether

compensation has been paid at the time the taking

occurred. Because of the express “just compensation”

prerequisite, the State’s action is not “‘complete’ until

the State fails to provide adequate compensation for the

taking.” Williamson County, 473 U.S. at 195; Hudson v.

Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L.Ed.2d 393

(1984). See also Hudson, 468 U.S. at 539 (O’Connor, J.,

concurring) (plaintiff challenging a taking must either

avail himself of the remedies guaranteed by state law or

prove the available remedies are inadequate).°

° Brief Amici Curiae for Elizabeth J. Neumont suggest this

Court failed to apply the state compensation requirements in Lucas

v. South Carolina Coastal Council, 505 U.S. 1003, 1003, 112

S.Ct.2886, 2887, 120 L.Ed.2d 798 (1992) and Palazzolo v. Rhode

Island, 533 U.S. 606, 606, 121 S.Ct. 2448, 2451, 150 L.Ed.2d 592

(2001). In both of those cases, the Court's recitation of the factual

background established the state compensation requirement had

been met because, in each case, the property owner had sued for

a Fifth Amendment taking in state court.

13

B. The State Compensation Requirement

Does Not Create A Contradictory And

Unpredictable Jurisdictional Framework

Petitioner contends the state compensation

requirement necessarily means that Fifth Amendment

takings claimants will never be able to assert their claim

in federal court. Although this may be the outcome in

some cases, it is neither contradictory nor unpredictable.

With this Court’s decisions in Williamson County and

San Remo, there should be no doubt that a Fifth

Amendment takings claim cannot be brought in federal

district courtifthere a reasonable, certain, and adequate

provision for compensation that is available under state

law. There should also be no question regarding the

application of res judicata to state court decisions. The

predictability of the rules set forth by this Court is

evidenced by the fact that Petitioner has cited no case

occurring after San Remo in the context of his

“unpredictable” argument. See Pet. Brief, pages 16-21.

Despite Petitioner's arguments to the contrary,

Plaintiffs asserting federal claims do not have any

constitutional right to a federal forum and it is therefore

not coniradictory to apply the state compensation

requirement. Allen v. McCurry, 449 U.S. 90, 103-04, 101

S.Ct. 411, 419-20, 66 L.Ed.2d 308 (1980); Matsushita

Electric Indus. Co. v. Epstein, 516 U.S. 367, 386, 116

S.Ct.873, 883, 134 L.Ed.2d 6 (1996). In rejecting the

plaintiffs argument that he had a right to vindicate

federal claims in a federal forum, the Court in San Remo

stated:

14

We have repeatedly held, to the contrary,

that issues actually decided in valid state-

court judgment may well deprive plaintiffs

of the ‘right’ to have their federal claims

relitigated in federal court... This is so even

when the plaintiff would have preferred

not to litigate in state court, but was

required to do so by statute or prudential

rules.

545 US. at 342 (citations omitted). The mere fact that a

plaintiffs takings claims is litigated in state court

produces no untoward result because state courts are

deemed fully capable of interpreting and upholding

federal law. Moore v. Sims, 442 U.S. 415, 429, 99 S.Ct.

2371, 2380, 60 L.Ed.2d 994 (1979) ; Stone v. Powell, 428

U.S. 465, 493-94, n. 35, 96 S.Ct. 3037, 3051-52, n. 35, 49

L.Ed.2d 1067 (1976).

Petitioners suggestion that the _ state

compensation requirement “completely terminates the

takings claim” and “deprives the plaintiffs of their

Seventh Amendment right to a jury trial” is without

merit. Although it is true that a takings plaintiff may be

required to litigate his federal constitutional claim in

state court, the claim is not eliminated but is instead

adjudicated by a state court. Moreover, this Court

rejected the “deprivation of jury trial argument” in

Parratt, stating:

Although the state remedies may not

provide the respondent with all the relief

15

which may have been available if he could

have proceeded under § 1983, that does

not mean that the state remedies are not

adequate to satisfy the requirements of

due process. The remedies provided

could have fully compensated the

respondent for the property loss he

suffered, and we hold they are sufficient to

satisfy the requirements of due process.

Parratt v. Taylor, 451 U.S. 527, 544, 101S. Ct. 1908 (1908),

overruled on other grounds, Daniels v. Williams, 474 U.S.

327 (1986). In short, Petitioner's implicit and overriding

argument that he is entitled to a federal forum was

soundly rejected by the Court in San Remo. 545 U.S. at

342.

Petitioner's argument also fails to recognize that

in considering whether the state compensation

requirement is met, federal courts are required to

determine whether state law provides a “reasonable,

certain and adequate provision for obtaining

compensation.” Williamson County, 473 U.S. at 194.

if the piaintiff proves the state provision is non-

existent, unreasonable, uncertain or inadequate or if

resort to such provision would be futile, the plaintiff may

proceed with his takings claim in federal court.

16

‘. The State Compensation Requirement

Does Not Conflict With Removal

Jurisdiction

Petitioner implicitly suggests there is continuing

confusion because of some defendants attempts to

remove takings claims. The cases relied on by

Petitioner, however, suggest that any confusion was

caused by the plaintiffs’ pleading, and not the

Williamson Countystate compensation requirement. In

Moore v. Covinton County Comm'n, 2007 WL 1771384

(M.D. Ala. 2007), the plaintiff had alleged takings claims

and violations of the equal protection clause. In the

remand order, the court found the equal protection

violations were not well pled. In Doney v. Pacific County,

2007 WL 1381515 (W.D. Wash. 2007), the plaintiff's

complaint alleged takings claims and violations of

substantive due process. Although the court remanded

the takings claims, it exercised jurisdiction over and

dismissed the due process claim. Also in Carrollton

Properties, Ltd. v. City of Carrollton, Texas, 2006 WL

2559535 (E.D. Tex. 2006), the complaint alleged takings

and due process claims. In its remand order, the court

determined the due process claim was, in fact, a takings

claim.

A defendant that removes a state court action

asserting a Fifth Amendment takings claim knows, or

should know from this Court's decisions in Williamson

County and San Remo, that it risks remand if the federal

district court finds the state compensation requirement

17

has not been met. A plaintiff that allows such removal

without objection faces the same risks.

Although the state compensation requirement

may be a trap for litigants whose counsel have not

reviewed the law, the requirement is well-established

and is not a trap at all.

Petitioner suggests, and Amicus contend, that this

Court in City of Chicago v. International College of

Surgeons, 522 U.S. 156, 118 S.Ct. 523, 139 L.Ed.2d 525

(1997), “found removal to federal court appropriate for

a federal takings claim.” Petitioner and Amicus’

statement, however, is unsupported by the City of

Chicago opinion or the history of that case. As reflected

in the district court's opinion, the action was in the lower

court “on removal from the state court, given plaintiff's

federal constitutional claims that [the defendants’

conduct] violated various of plaintiffs’ federal due

process and equal protection rights.” Intern'l College of

Surgeons v. City of Chicago, 1995 WL 9243, p. 2 (N.D. Il.

1995) (emphasis added), rev'd, 91 F.3d 981 (7" Cir. 1996),

rev'd, 522 U.S. 157 (1997).

While a federal takings claim was also alleged, it

was dismissed with prejudice and all that remained was

a takings claim brought under the Illinois Constitution.

Id. at p. 2, 15. The issue before this Court in City of

Chicago was whether the federal district court had

supplemental jurisdiction over state claims which called

for deferential on-the-record review of administrative

findings. The Court in City of Chicago did not suggest, or

18

even imply, that removal jurisdiction was predicated on

a Fifth Amendment takings claim.

D. Acceptance of Petitioner's theory would

impose an unnecessary undue burden

on States and their municipalities

The essence of Petitioner's argument is that a

property owner should be entitled to assert a Fifth

Amendment takings claim in a federal district court at

the moment of any taking. Under this theory, the state

actor can conceivably avoid a takings claim only if and

when a pre-deprivation process has occurred.

As an initial matter, this theory is directly contrary

to century-old takings jurisprudence holding the Fifth

Amendment does not require compensation to be paid

prior to or contemporaneously with the taking. See, e.g.,

Cherokee Nation, 135 U.S. at 659; Joslin, 262 U.S. at 677.

From a practical standpoint, such requirement

would require the State actor to weigh the risk of a

federal lawsuit against a possible exigent need for the

taking of the property. Under the Williamson County

State compensation requirement, post-deprivation

compensation to property owners undoubtedly avoids

takings litigation in a number of cases.

Under Petitioner's theory, however, the property

owner would be entitled to file in lawsuit in federal

district court the instant a physical invasion occurs.

Allowing such action would not only turn this Court's

19

takings jurisprudence on its head, it would allow

property owners a federal forum the instant a physical

intrusion has occurred, thus causing a backlog in an

already overloaded federal court system.

The result sought by Petitioner and Amicus Curiae

is neither contemplated, nor required, by the Fifth

Amendment takings clause. Property owners know, or

should know that they must seek compensation under

State compensation laws. If an aggrieved property

owner does not believe he has sufficiently reasonable,

certain, and adequate remedy under state law, he can

pursue his takings claim in federal court, with full

knowledge that the case may be dismissed if the court

finds such provision is available. The property owner

does not lose his Fifth Amendment takings claim; to the

contrary, he can fully litigate that claim in state court.

Petitioner and Amicus Curiae also assert untold

injury because they are required to first seek

compensation under the state’s compensation

provisions. Their argument of “unfairness” or

“prejudice” necessarily presumes state courts are

incapable of fairly compensating property owners when

a taking has occurred. This presumption is just that,

with no support in case law or otherwise. As this Court

has acknowledged “state courts undoubtedly have more

experience than federal courts do in resolving the

complex factual, technical, and legal questions related

to zoning and land-use regulations”. San Remo, 545 U.S.

at 347. The unsupported “unfairness” arguments of

Petition and Amicus Curiae should be disregarded.

20

Il. Williamson County Applies to Allegations Of

Physical Takings

Petitioner contends Williamson County should

apply only to cases involving regulatory takings, and not

those involving physical takings. Prior to Williamson

County, this Court applied a Williamson County - type

analysis to alleged physical takings and there is no

reasoned basis for excluding physical takings from the

state compensation requirement. See, e.g., Yearsley,

309 U.S. at 21; Hurley, 285 U.S. at 104; Cherokee Nation,

135 U.S. at 658-659.

The Court in Williamson County “drew no

distinction between physical and regulatory takings, and

the rationale of that case, that a property owner has not

suffered a violation of the Just Compensation Clause

until the owner has unsuccessfully attempted to obtain

just compensation through the procedures provided by

the State...demonstrates that any such distinction would

be unjustified.” Villager Pond, Inc. v. Town of Darien, 56

F.3d 375, 380 (2"° Cir. 1995), cert denied, 519 U.S. 808

(1966). See also McKenzie v. City of White Hall, 112 F.3d

313, 317 (8" Cir. 1997)(rejecting argument that

Williamson County did not apply to physical takings):

Belvedere Military Corp. v. County of Palm Beach,

Florida, 845 F. Supp. 877 (S.D. Fla. 1994) (rationale of

Williamson County equally appiicable to physical

takings) .’

” In the Amicus Brief filed by The Coalition for Property

Rights, Amicus contend the court in Asociacion de Subscripcion

21

Petitioner's suggestion that physical takings

claims have historically warranted scrutiny in federal

courts is unsupported by his cited case law as none

address a Fifth Amendment takings claim against a State

government or municipality, most do not even address

a physical takings claim and none support the

proposition that a federal district court will consider a

takings claim when there is a state provision for

reasonable, certain, and adequate compensation.

For example, Petitioner cites Raymond v. Chicago

Union Traction Co., 207 U.S. 20, 28 S.Ct.7 , 52 L.Ed. 78

(1907). In that case, the plaintiff complaining of unequal

tax assessments alleged a taking of “of property without

Conjunta Del Seguro De Reponsabilidad Obligatorio v. Flores

Galarza, 484 F.3d 1 (1" Cir. 2007) declared Williamson County was

only applicable to regulatory takings. See Coalition for Property

Rights Brief, page 8. The Flores Galarza court held only that the

final decision prong of Williamson County was inapplicable to

physical takings. 484 F.3d at 15. Amicus also erroneously contend

the First Circuit in Flores Galarza “determined that Williamson

County's procedures does not include litigation at all” and that

ripeness is satisfied if “all administrative avenues of relief have been

cut off.” See Coalition for Property Rights Brief, page 11; see a/so

Brief Amicus Curiae of The American Farm Bureau Federation,

page 6, fn. 2. Amicus reads Flores Galarza far too broadly as that

court recognized Williamson County would require “plaintiffs to

avail themselves of [an inverse condemnation cause of action]

before bringing a federal takings claim...” Flores Galarza, 484 F.3d

at 17. The Flores Galarza court distinguished between “a state

takings claim” [which it found was not required by Williamson

County] and “an inverse condemnation proceeding [which would

be required by Williamson County] designed to enable plaintiffs to

obtain compensation.” 484 F.3d at 18.

22

due process of law” and a denial of “the equal

protection of laws”, but there was no allegation of a

physical taking without just compensation. 207 U.S. at

20. The issues before the Court in Home Telephone &

Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33

S.Ct. 312, 57 L.Ed.510 (1913) likewise did not involve a

physical takings claim, but were instead alleged

violations of due process arising frorn a state regulation.

In Western Union Telegraph Co. v. Pennsylvania

Railroad Co., 195 U.S. 540, 25 S.Ct. 133, 49 L.Ed. 312

(1904), the “construction of the [act of 1866 was] the

fundamental question in the case” and the court

concluded the act was an exercise of Congress of its

power to withdraw from state interference interstate

commerce by telegraph. 195 U.S. at 559, 571.

In United States v. General Motors, 323 U.S. 373,

65 S.Ct.357, 89 L.Ed. 311 (1945), the United States

initiated proceedings to condemn property pursuant to

the Second War Powers Act. 323 U.S. at 358. The issue

before this Court was the “scope and meaning of” of the

takings clause, and not whether a takings claim arising

from a state actor taking could be considered by a

federal court. 323 U.S. at 377.

The Court's decision in Kaiser Aetna v. United

States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)

likewise does not support Petitioner's position. In that

case, the issue was whether the government's

imposition of a navigational servitude constituted a

taking for which just compensation was owed. The

underlying action was brought by the United States in

23

federal district court to determine its regulatory authority

and there was no attempt by Kaiser to seek “just

compensation” in that proceeding. 444 US. at 168.

Conspicuously missing from Petitioner's “history”

of takings jurisprudence is any citation to Cherokee

Nation, Joslin, Sweet, or any other historic case

indicating the Fifth Amendment takings requirement is

satisfied where, at the time of the taking, there is a

reasonable, certain and adequate provision for obtaining

compensation. Petitioner's analysis and case law

citations are inapposite and do not support the

proposition that Williamson County is inapplicable to

physical takings.

IV. The doctrine of stare decisis warrants denial of

Petitioner’s Petition for Writ of Certiorari

The doctrine of stare decisis is not an “inexorable

command,” particularly where an interpretation of the

Constitution is at issue. Dickerson v. United States, 530

U.S. 428, 443, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405

(2000). However, “even in constitutional cases, the

doctrine carries such persuasive force that [the Court]

nas aiways required a departure from precedent to be

supported by some ‘special justification.’” Jd. (quoting

United States v. International Business Machines Corp.,

517 U.S. 843, 856, 116 S.Ct. 1793, 135 L.Ed.2d 124

(1996) (quoting Payne v. Tennessee, 501 U.S. 808, 842,

111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)(Souter, J.

concurring)).

24

As reflected by Petitioner’s Brief, this Court has

been asked on at least five occasions since San Remo to

reconsider Williamson County. The same reasons for

denying certiorari in those cases apply with equal force

here. The Court's decision in Williamson County was

not a blip on the radar screen but was instead a

recitation of pronouncements made by this Court in the

preceding 100 years. Neither Petitioner nor Amicus

Curiae have identified any “special justification” for

overruling Williamson County and the century old

takings jurisprudence reflected in that decision. Denial

of Petitioner's Petition is warranted.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully Submitted,

James C. Kearns

Heyl, Royster, Voelker & Allen

102 E. Main Street, Suite 300

Urbana, IL 61801

(217) 344-0060

Counsel for Respondent