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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1683%3A3

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1683%3A3. Public record. Not legal advice.