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

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## Record

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

## Text

ANI 24 9NAG
%S 7 JAN 34 20%8
:

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1683%3A2. Public record. Not legal advice.