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

FEB 8 - 200

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No. 07.635 SUPREME Count

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 Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

r

7

REPLY TO OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

a

4

J. DAVID BREEMER

Counsel! of Record

R.S. RADFORD

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioner

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........

io gy 9 0 Ge yf, Peru orenun nner:

REPLY ARGUMENT ........-ee85+

3

Il.

THE ONLY ISSUE

PROPERLY BEFORE THE

COURT IS THE VIABILITY OF

WILLIAMSON COUNTY'S

SECOND RIPENESS RULE ....

RESPONDENTS FAIL

TO IDENTIFY ANY

JUSTIFICATION FOR

RETAINING WILLIAMSON

COUNTY'S STATE

COMPENSATION

RIPENESS PREDICATE .......

A. Early Decisions Like Cherokee

e@¢ @ 6 & 2 84-9

a2 £8 2 29-8 Te

e 6 @ @ €¢ 2°s 42°24

e080 « #4 @# «4 @ @ @

Nation Do Not Supply a Doctrinal

Basis for Williamson County, but

Instead Highlight Its Novelty

B. The Tucker Act Procedure for

Just Compensation Suits Against

the Federal Government Does

Not Justify a “Go to State

Court” Ripeness Requirement

*_°* 8 © © © © © #

ll

TABLE OF CONTENTS—Continued

Page

Ill. THE CASE PRESENTS A

FUNDAMENTAL AND

IMPORTANT DISAGREEMENT

ABOUT WHEN A PROPERTY

OWNER CAN INVOKE THE

“SELF-EXECUTING” FEDERAL

JUST COMPENSATION PROVISION ..... 10

se eee vine vee eee de 13

ili

TABLE OF AUTHORITIES

Page

Cases

Armstrong v. United States, 364 U.S. 40 (1960) .. 11

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ...... 4

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

125 US. OEE Cle eich so ee eee 6-8

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

SOE UD Oe Ce ike cc eae ee 4-6, 11

J. Truett Payne Co., Inc. v. Chrysler Motors

Corp., 461 U.S. GOT GOST) civ cee eces tyes 6

Jacobs v. United States, 290 U.S. 13 (1933) ...... 11

Joslin Mfg. Co. v. City of Providence,

Se UF Be: ee vo wc ee eee era 7

Kelo v. City of New London, 545 U.S. 469 (2005)... 1

Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979) ......... 3

Lingle v. Chevron U.S.A. Inc.,

Bae aes ee a v5 vs 6 See 9

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...3

Preseauit uv. (CC, 494 U.S. 1 (1990)... 2.6... 9

Regents of the University of California v. Doe,

2 Bik 2k. oe a err eee te ones 2

Ruckelshaus v. Monsanto Co.,

GGT U7. ee Ce goo os can oh eueekess 8-9

1V

TABLE OF AUTHORITIES—Continued

Page

San Remo Hotel v. City and County of San

Francisco, 545 U.S. 323 (2005) .......... 1, 8, 12

Suitum v. Tahoe Reg'l Planning Agency,

eer Ar POURED fo hee ako sec uedevee sever. 3

United States v. Clarke, 445 U.S. 253 (1980) ..... 11

Williamson County Reg’ Planning Comm'n v.

Hamilton Bank of Johnson City,

OU Uw. Die CRO 6 oot ie ee he ts wees 1, 6, 9-10

Federal Statutes

ea OE ee eee ae ees eee 4

Rules of Court

Roane MU, ee og are oe ee a oe ee oo aes 2

1

INTRODUCTION

In San Remo Hotel v. City and County of San

Francisco, 545 U.S. 323 (2005), four Justices of this

Court expressed a desire to find an “appropriate case”

to revisit the portion of Williamson County Regi

Planning Comm’n v. Hamilton Bank of Johnson City,

473 U.S. 172, 194 (1985), holding that a federal takings

claim will not lie until the property owner “ripens” the

claim by unsuccessfully secking compensation in state

procedures. San Remo, 545 U.S. 323, 351 (2005)

(Renhquist, C.J., concurring). This case is the awaited

vehicle. It involves a physical invasion of Petitioner

Bruce Peters’ (Peters) farm, authorized by the Village

of Clifton, for the public purpose of disposing of the

Village’s excess sewage and to promote commercial

development that would increase its revenues.’ Peters

sought an injunction and monetary compensation. The

only issue addressed below was the issue of

jurisdiction, and particularly, whether Peters’ claim

was unripe in the federal forum because he first had to

litigate a state law compensation claim in state courts.

In the Seventh Circuit, Peters expressly raised the

issue of whether the court should follow Williamson

County's state procedures ripeness rule in light of the

heavy criticism heaped on the rule by the San Remo

Justices. The lower court chose to strictly apply the

rule to require dismissal of Peters’ claim, compelling

Peters to seek this Court’s review.

In their Opposition to the Petition (Opposition),

Respondents identify nothing that warrants avoidance

of the important federal jurisdictional issue raised by

' See Kelo v. City of New London, 545 U.S. 469 (2005) (economic

development designed to benefit public treasury qualifies as a

public use).

2

this case. Rather, the Opposition reinforces the need

for review by highlighting a substantial debate about

whether state court litigation is a proper federal

jurisdictional predicate for a Fifth Amendment takings

claim. Although Respondents say that this debate is

unworthy of this Court’s attention, four Justices of this

Court have clearly stated differently, believing

Williamson County is “mistaken” and worthy of

reconsideration.

REPLY ARGUMENT

I

THE ONLY ISSUE

PROPERLY BEFORE THE

COURT IS THE VIABILITY

OF WILLIAMSON COUNTY’S

SECOND RIPENESS RULE

Respondents assert that the Court should not use

this case to address the issue of whether Williamson

County's state procedures takings predicate remains

good law because Peters “has not [otherwise] pled a

viable takings claim.” Opp. at 5. The argument seems

to be that Peters’ claim would fail to state a Fifth

Amendment takings claim if tested on non-ripeness

grounds, and that Williamson County should not be

addressed here until this occurs. /d., at 4-5. There is

nothing to this. The Petition raised only Williamson

County ripeness issues, and Respondents “failure to

state a claim” question, see Opp. at 3, is not fairly

included therein; they cannot inject the issue now.

U.S. Sup. Ct. R. 14.1(a); Regents of the University of

California v. Doe, 519 U.S. 425, 432 (1997) (Court will

not address issues raised by Respondent when not

included in the Petition.). Moreover, as described

3

below, the only issue addressed and decided below was

whether Peters’ takings claim is barred by Williamson

County's state procedures requirement. Consequently,

that Williamson County issuc is all that can or should

be decided in this forum.

Consistent with this Court’s precedent,”

Respondents asserted, and the lower courts treated,

Williamson County’s state procedures rule as a

threshold jurisdictional barrier that is applicable at the

outset to allegations—like those here—that a property

owner has suffered an unconstitutional invasion of his

property. Petition for Writ of Certiorari, Appendix

(App.) at A-6, 16. Thus, the issue was approached as

one that must be resolved before any other challenge to

the allegations could be considered. See App. at C-4

(district court stating: “[r]ipeness is an issue of subject

matter jurisdiction, therefore the Court will address

Defendant's ripeness argument first. If the case is not

ripe ... we must dismiss . . . for lack of subject matter

jurisdiction”). The lower courts consequently assumed

that Peters’ complaint raised a federal takings claim

that implicated Williamson County, App. at A-13-15;

App. at C-5. They refused to pass on any different

argument, including the “ultra vires” “failure to state

a claim” contentions raised now by Respondents.* See

* See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)

(ripeness is a “threshold consideration”); Suitum v. Tahoe Reg'l

Planning Agency, 520 U.S. 725, 736, 733-34 (1997); Lake Country

Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 398

(1979).

3

In arguing that Peters’ allegations would fail to state a viable

claim due to purported “ultra vires” allegations, Respondents do

not accurately summarize the proceedings below. Peters’

(continued...)

4

App. at A-4, n.1 (noting, without otherwise addressing,

that “Mr. Peters claims that... both the Village and

the private defendants were acting under color of state

law for purposes of lability under 42 U.S.C. § 1983”).

This was likely because such arguments were

considered secondary and irrelevant to the Williamson

County issue.

In light of this posture, the only issues this Court

need address are the same Williamson County

questions raised by the Petition and passed on by the

lower court. See First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S.

304, 312 (1987); Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388, 397-98

(1971) (Court will not consider issue not passed upon

by the Court of Appeals.). Indeed, in First English, the

Court rejected an argument, quite like the one here,

that this Court had to independently test the legal

sufficiency of a takings complaint before addressing

the issue of whether damages was a proper remedy.

The Court explained:

> (...continued)

complaint alleged the taking he suffered was conducted under

color of state law and authorized by the Township. He

characterized the taking as “illegal” in the sense of being outside

statutory authority, but did not allege the taking was

constitutionally “illegitimate” in the sense of being for a private

use. In the district court, no one discussed “ultra vires” takings.

In the Seventh Circuit, Peters briefly contended that an injunction

under the Fifth Amendment may be available if the taking was

“ultra vires,” while independently pressing his claim for just

compensation. Respondents argued that any issuc along these

lines was waived. The Seventh Circuit refused to pass on the

issue, deciding the case solely under Williamson County.

5

We reject appellee’s suggestion that,

regardless of the state court’s treatment of

the question, we must independently

evaluate the adequacy of the complaint and

resolve the takings claim on the merits before

we can reach the remedial] question. However

“cryptic”—to use appellee’s description—the

allegations with respect to the taking were,

the California courts deemed them sufficient

to present the issue. We accordingly have no

occasion to decide whether the ordinance at

issue actually denied appellant all use of its

property or whether the county might avoid

the conclusion that a compensable taking had

occurred by establishing that the denial of all

use was insulated as a part of the State’s

authority to enact safety regulations.

[Citations omitted.] These questions, of

course, remain open for decision on the

remand we direct today.

First English, 482 U.S. at 312-13.

These considerations apply here. Whether or not

Respondent believes Peters’ allegations fail to state a

viable Fifth Amendment taking claim, the federal

courts “deemed them sufficient to present the issue” of

whether the claim is ripe under Williamson County’s

state compensation procedures rule. That issue was

then directly addressed and its resolution formed the

only basis for dismissal of Peters’ complaint. While

there may be other potential arguments available to

Respondents—including the disputed contention that

Peters does not state a viable claim because he

6

challenges ultra vires action’—this Court has no

occasion to decide them before considering Williamson

County. Id; see also, J. Truett Payne Co., Inc. v.

Chrysler Motors Corp., 451 U.S. 557 (1981) (declining

to address liability issue where Court of Appeals

bypassed issue and “went directly to issue of

damages’). Such “questions, of course, remain open for

decision on... remand” should the Court grant the

Petition and vacate the lower court opinion, but they

are not at issue here. First English, 482 U.S. at 313.

I]

RESPONDENTS FAIL TO

IDENTIFY ANY JUSTIFICATION

FOR RETAINING WILLIAMSON

COUNTY’S STATE COMPENSATION

RIPENESS PREDICATE

On the cental issue presented by the Petition—

whether the Court should overrule Williamson

County's state procedures rule—Respondents strive to

find some precedential basis that might save the rule.

The effort fails.

A. Early Decisions Like Cherokee

Nation Do Not Supply a Doctrinal

Basis for Williamson County,

but Instead Highlight Its Novelty

Respondents initially point to two early decisions,

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

4

Peters disagrees on the merits with Respondents’ argument

that an “illegal” taking (one outside statutory authority),

conducted under color of state law for a public use cannot be

challenged under the Takings Clause. But this is not the proper

forum for that debate; if the case is remanded, Respondents can

take it up in district court.

7

641 (1890), and Joslin Mfg. Co. v. City of Providence,

262 U.S. 668 (1923), as a legitimate “underlying basis

for the Williamson County” state procedures predicate.

Opp. at 5. They are nothing of the sort. Cherokee

Nation and Joslin Mfg. considered whether a property

invasion could be enjoined as a violation of the Takings

Clause, in part because it occurred without immediate

payment of compensation. Cherokee Nation, 135 U.S.

at 651. The Court held that all the Takings Clause

demanded was a certain post-taking compensation

provision, that such provisions existed, and that there

was no constitutional infraction. Cherokee Nation,

135 U.S. at 659.

These decisions bear no similarity to Williamson

County. Unlike Williamson County, they did not treat

post-taking compensation procedures as a ripeness

predicate that must be pursued before the Fifth

Amendment takings claim can be raised. To the

contrary, they reviewed such takings claims on the

merits. Cherokee Nation, 135 U.S. at 656-61.

Moreover, neither Cherokee Nation or Joslin Mfg.

identify state court as a required post-taking

compensation procedure; they contemplated a federal

trial on damages, pursuant to the statutes causing the

taking. Indeed, the federal takings litigation in

Cherokee Nation occurred (without controversy) in

federal court. See id.

All Cherokee Nation and Joslin Mfg. stand for is

the uncontested proposition that damages do not have

to be in the owner’s hands prior to the taking.”

Contrary to Respondents’ beliefs, Opp. at 11, Peters is not

demanding that money had to be handed to him at the moment of

the invasion. He simply contends that he can pursue the

(continued...)

8

Cherokee Nation, 135 U.S. at 659. It takes a giant leap

in logic to get from this basic idea to Williamson

County's conclusion that a claimant cannot seek

compensation under the “self-executing” federal

Compensation Clause until he uses state law

compensation procedures in state court. This leap is

not explained by Respondents’ early decisions; instead,

they just beg the question of how Williamson County’s

state compensation rule became law.

B. The Tucker Act Procedure

for Just Compensation Suits

Against the Federal Government

Does Not Justify a “Go to State

Court” Ripeness Requirement

Respondents fall back on one of Williamson

County’s own explanations for the state procedures

requirement; namely, an analogy to Tucker Act takings

suits against the United States in the Court of Federal

Claims. Opp. at 7-8. In so doing, Respondents fail to

note that the San Remo concurrence criticized this _

basis for Williamson County. See San Remo, 545 U.S.

at 349, n.1 (Rehnquist, C.J.) (concurring). Nor do they

refute the able attack on the Tucker Act/Ruckelshaus

v. Monsanto Co., 467 U.S. 986, 1016 (1984),

justification leveled by amicus curiae Elizabeth J.

Neumont, with which the San Remo concurrence

agreed. San Remo, 545 U.S. at 349, n.1 (Rehnquist,

C.J.).

* (..continued)

compensation provision promised by the federal Just

Compensation Clause at the time of the taking without having to

use state procedures.

9

Respondents do make much of Preseault v. ICC,

494 U.S. 1 (1990), see Opp. 8 n.2, but Preseault says

nothing to support Williamson County’s “go to state

court first” rule. To the contrary, Preseault is just

another inapposite case applying the rule that

“fe]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 subsequent to the taking.” Ruckelshaus,

467 U.S. at 1016. As in Monsanto, the Preseault

plaintiffs sought only injunctive relief, claiming the

statutory authority for an ICC Order was

“unconstitutional on its face because it takes private

property without just compensation.” Preseaullt,

494 U.S. at 10. Preseault did not hold that relief

unripe, but categorically not available, because a suit

for compensation could be brought against the federal

government in the court of claims subsequent to the

taking. Id. at 12.

Preseault did repeat the unfortunate line from

Williamson County that “taking claims against the

Federal Government are premature until the property

owner has availed itself of the process provided by the

Tucker Act.” Jd. at 11 (quoting Williamson County,

473 U.S. at 195). But for the reasons set forth in the

Neumont Amici Brief at 11-12, that notion is

nonsensical, and no amount of repetition can make it

otherwise. Cf. Lingle v. Chevron U.S.A. Inc., 544 U.S.

528, 531 (2005) (“On occasion, a would-be doctrinal

rule or test finds its way into our case law through

simple repetition of a phrase—however fortuitously

coined.”); (“Today we correct course.”), id. at 548.

10

Iil

THE CASE PRESENTS

A FUNDAMENTAL AND

IMPORTANT DISAGREEMENT

ABOUT WHEN A PROPERTY

OWNER CAN INVOKE THE

“SELF-EXECUTING” FEDERAL

JUST COMPENSATION PROVISION

At bottom, Respondent’s Opposition rests on faith

in the basic rule of Williamson County, see Opp. at 9,

11-12. In this way, the Opposition highlights the

important disagreement on the timing of a suit under

the federal Just Compensation Clause raised by this

case. Respondents believe that

[w]hether 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 ...

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.’ Opp.

at 12 (quoting Williamson County, 473 U.S.

at 195) (italics in original, underline added).

Respondents try to favorably contrast the above

position with the idea (which they wrongly attribute to

Peters) that money damages should be handed over at

the time of the taking. However, this is not the right

comparison, because it is not Peters’ position. As

Respondents eventually acknowledge, Opp. at 18,

Peters contends that when private property is invaded,

11

the property owner has an immediate right to invoke

the self-executing just compensation remedy promised

by the Takings Clause, and because this is a federal

question, he may do so in federal court. When Peters

stated that “the issue of whether the taking is ‘without

just compensation’ should also be ascertained at” the

time of the taking, he meant that the federal Just

Compensation Clause becomes actionable in federal (or

state) court at that point.

This case accordingly offers diametrically opposed

positions on the proper timing of a claim for

compensation under the Fifth Amendment, and thus,

on whether Williamson County was correct in

demanding state court compensation proceedings as a

initial predicate. While the Village defends the idea

that state court and state law must come first, Peters

contends that the federal Just Compensation Clause

provides an actionable federal remedy at the time of

the taking. The bulk of this Court’s jurisprudence

supports Peters’ position. See, e.g, First English,

482 U.S. at 315 (“[A] landowner is entitled to bring an

action in inverse condemnation as a result of ‘the

self-executing character of the constitutional provision

with respect to compensation... .’) (quoting United

States v. Clarke, 445 U.S. 253, 257 (1980)); Armstrong

v. United States, 364 U.S. 40, 49 (1960) (a property

invasion triggers the federal “constitutional obligation

to pay just compensation”); Jacobs v. United States,

290 U.S. 13, 16 (1933) (the right to sue for just

compensation “rested upon the Fifth Amendment.

Statutory recognition was not necessary. A promise to

pay was not necessary. Such a promise was implied

because of the duty to pay imposed by the Amendment.

The suits were thus founded upon the Constitution of

the United States.”). Against this precedent stands

12

Williamson County's state compensation predicate.

This case thus cleanly sets the stage for the

reevaluation of the state procedures rule urged by the

San Remo concurrence. See San Remo, 545 U.S.at 352

(Rehnquist, C.J., concurring) (“[T]he 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

compensation in state courts.”).

Respondents lament that it would be a “burden” if

Williamson were altered along the lines suggested by

Peters because they would have to “weigh the risk of a

federal lawsuit against a possible [] need for the taking

of the property.” Opp. at 18. If it can be called a

“burden” for the government to weigh and potentially

face a claim under the Just Compensation Clause

when it takes property, it is one imposed by the

Constitution. Moreover, the possibility of having to

answer in federal court for just compensation is no

different than the “burden” local governments already

face in answering for damages when they unreasonably

seize property or engage in any other conduct violative

of the United States Constitution. The Just

Compensation Clause is a part of the Constitution, too,

and like other provisions, it is designed to condition

and constrain the exercise of official power.

Williamson County provides no legitimate reason why

this federal constraint should await state law litigation

in state court, particularly where this creates “some

real [jurisdictional] anomalies, justifying our revisiting

the issue.” San Remo, 545 at 351 (Rehnquist, C.J.,

concurring).

13

CONCLUSION

The Court should grant the Petition.

DATED: February, 2008.

Respectfully submitted,

J. DAVID BREEMER

Counsel of Record

R.S. RADFORD

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioner