Amicus Curiae Brief — Peters v. Village of Clifton, Illinois (No. 07-635)
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MOTION FILED
VY pee 17 200
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No. 07-635
Ju the Supreme Court of the Guited States
BRUCE PETERS
Petitioner
v.
VILLAGE OF CLIFTON, ILLINOIS, ET AL.
Respondents
ON PETITION FOR WRiT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND BRIEF AMICI CURIAE FOR ELIZABETH J.
NEUMONT (AND ALL OTHERS SIMILARLY
SITUATED) IN SUPPORT OF PETITIONER
ERIC GRANT
HAROLD E. WOLFE, JR. Counsel of Record
HAROLD E. WOLFE, JR., P.A. ATTORNEY AT LAW
Suite 302, Executive Centre Suite 100
2300 Palm Beach Lakes Boulevard 8001 Folsom Boulevard
West Palm Beach, FL 33409 Sacramento, CA 95826
(561) 697-4100 (916) 388-0833
Counsel for Amici Curiae
i
QUESTION PRESENTED
This brief will address the first question presented
by the petition, namely:
Whether the “state procedures” aspect of William-
son County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172, 194-97 (1985), which mandates that
property owners exhaust state judicial remedies before
pursuing federal claims for just compensation in federal
court, should be overruled.
il
TABLE OF CONTENTS
Page
BS) i
TABLE OF AUTHORITIES ................... ae
MOTION FOR LEAVE TO FILE
ES 1
ye ce cee ee ee eee es 2
SUMMARY OF ARGUMENT ...................... 3
ee 4
I. In Creating the State Procedures Require-
ment, Williamson County Deviated Sharply
from the Established Understanding of the
Just Compensation Clause..................-- 4
A. At Issue Here Is the Right to Recover
Just Compensation for Takings of Pri-
vate Property for Public Use ............... 4
B. It Was Always the Law that the Right
to Recover Just Compensation Accrues
eee eames On G00O BORING .............005. 5
Il. In Creating the State Procedures Require-
ment, Williamson County Built a House on
BE ES, 7
A. The Requirement Was Fabricated Without
Benefit of Serious Briefing or Argument ..... 8
B. The Requirement Rests Principally on Two
Flawed Analogies to Inapposite Decisions .... 9
1. Ruckelshaus v. Monsanto Co. .......... 10
I 12
C. The Requirement Finds No Support in the
Principle that the Amendment Proscribes
Only Takings Without Just Compensation ... 14
ill
TABLE OF CONTENTS—Continued
Page
Ill. The State Procedures Requirement Has Other
Defects that Show Its Doctrinal Incoherence .... 15
A. The Requirement Is Inconsistent with the
No-Exhaustion-of-Remedies Rule Govern-
ing Other Federal Rights ................ 15
B. The Requirement Is in Practice Ignored
by State Courts and by this Court ......... 17
C. The Requirement Invites Disrespect for
State Courts by Treating Them as Mere
Stations on the Road to Federal Court ...... 19
CAR VG RAFIIEEIES 0 on woe ees ao a we a aes a
iV
TABLE OF AUTHORITIES
Page
Cases
Armstrong v. United States,
ee a hs os bo o's oho bok ees Ue eked 5
Dolan v. City of Tigard,
ee Re RE sc ko bk we 6 oe 6b ee wee ee he 16
Eide v. Sarasota County,
908 F.2d 716 (11th Cir. 1990),
cert. denied, 498 U.S. 1120 (1991)................ 21
First English Evangelical Lutheran
Church v. County of Los Angeles,
Sn SF CRED 6 kod cheer cerwdeccecees 5, 8,13
Grubb v. Public Utilities Commission,
BR ee a 20
Hudson v. Palmer,
Oe Gi ET OE oe wk cme ee cauesberpeedas 12
Jacobs v. United States,
eG SPD oo oa a KO Nw ws A eRe 5
Jacobs Wind Electric Co., Inc. v.
Department of Transportation,
626 So. 2a 1353 (Pia. ISOS)... wc cc cc ccceeees 17
Kavanau v. Santa Monica Rent Control
Board, 941 P.2d 851 (Cal. 1997),
cert. denied, 522 U.S. 1077 (1998) ................ 18
Lawrence v. Texas,
ee er Eos ls a se re a ee ea ee 2, Zi
Lucas v. South Carolina Coastal Council,
ee AF SU LUI soe she ee bees baw ela eee eee 18
Mayhew v. Town of Sunnyvale,
964 S.W.2d 922 (Tex. 1987) 2... ccc ces cesees 18
V
TABLE OF AUTHORITIES—Continued
Page
Neumont v. State of Florida,
463 F.30 1286 (13th Cir. 2006)... wn cece rv eccsas 1
Neumont v. Monroe County, Florida,
242 F. Supp. 2d 1265 (S.D. Fla. 2002) ............. 1
Palazzolo v. Rhode Island,
ee Rs CE voc bcc veces war ses deuseuneen 19
Palazzolo v. State, 746 A.2d 707 (R.1.
2000), affd in part, rev'd in part,
ee OF PCE 6. vv bs ce es oped aeeeeeeesaews 18
Parratt v. Taylor,
Ee Glas EE CUR? 6 6s pe ok ee eo OP eee es 12-13
Patsy v. Board of Regents,
re hrs ROS oye os hw 6 00 ee 15,17
Payne v. Tennessee,
Pe Wee CRE) 5 caves pede cues eurss 21-22
Pennzoil Co. v. Texaco, Inc.,
Rg gi a pe ee dee eee 19-20
Richardson v. City & County
of Honolulu, 124 F.3d 1150
(9th Cir. 1997), cert. denied,
525 U.S. 871, 921, 1018 (1998) ............... 20-21
Ruckelshaus v. Monsanto Co.,
467 U.S. G66 CISS4) «ww ce ee cece eee of
San Diego Gas & Electric Co. v. City
of San Diego, 450 U.S. 621 (1981) ................ 7
San Remo Hotel, L.P. v. City & County
of San Francisco, 545 U.S. 323 (2005) ............. 2
Seminole Tribe of Florida v. Florida,
ae Gee, We Cee? eee we ce ae eee ta hh een 22
vi
TABLE OF AUTHORITIES—Continued
Page
Soriano v. United States,
I eu eeeeeuwrn 6, 15
Steel Improvement & Forge Co. v. United
States, 355 F.2d 627 (Ct. Cl. 1966) ................ 6
Steffel v. Thompson,
415 U.S. 462 (1974) . ww cw ec ccc 15, 20, 22
Tafflin v. Levitt,
ae CD ok sv 2s on weaver sees eer 20
Tahoe-Sierra Preservation Council v.
Tahoe Regional Planning Agency,
ee Ss we wae ca wbe dee 13-14
United States v. Clarke,
ne wa eww bib ee eu 6-7
United States v. Dickinson,
ee ise co bw ore x wa a alealelan 6
United States v. Dow,
PN MR bo ios, eel So ki oh eee ee 6-7
United States v. Rogers,
Nn hs wae tho owe ae ow lv a eee 6
Williamson County Regional Planning
Commission v. Hamilton Bank,
yp Rte Rosy 20): | a eae passim
Yee v. City of Escondido,
BUR ML) Ee.) rc 9
Younger v. Harris,
er) eT BNE OE ooo ee ws src One Se ee ee 19
Vili
TABLE OF AUTHORITIES—Continued
Page
Statutes, Legislative Materials,
and Court Rule
Oe Sr viene oes ee eee soe ceca ee eaeeees 16
2: rr er re err er en, eee 10
pe ae | ee rer ree 15-16
Private Property Rights Implementation
Act of 1997, H.R. 1534, 105th Cong. .............. 16
Private Property Rights Implementation
Act of 2000, H.R. 2372, 106th Cong............... 16
H.R. Rep. No. 106-518 (2000) ................ 16, 19-20
Supreme Court Mate 37.2... ec ee et cc ereneceses 1
Other Authorities
Brief for Respondent in Williamson
Cee CU SD oc os sv vs br oe ke ore ee Re ee 9
Brief for the United States as Amicus
Curiae Supporting Petitioners in
Williamson County (No. 84-4) ...................-. 9
Transcript of Argument in Williamson
County (No. 84-4), 1985 U.S. TRANS
Rdeeees FOUR OD. OD, TODD) 2. cc cc ewe cee cere seeues 9
1
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Because respondents have withheld their consent,
amici curiae hereby move to file the following brief pur-
suant to this Court’s Rule 37.2(b).’
Amici curiae are a certified class of property owners
in Monroe County, Florida, who are trying—and have
been trying for literally more than a decade—to litigate
a federal takings claim in federal court. See generally
Neumont v. State of Florida, 451 F.3d 1284 (11th Cir.
2006). Like petitioner (and thousands of other property
owners around the nation), amici are facing “ripeness”
arguments by a governmental defendant who seeks to
avoid federal-court adjudication of a federal constitu-
tional claim. In particular, despite class members hav-
ing filed at least two actions in state court regarding the
regulatory action for which they now seek just compen-
sation, amici have long been denied their day in federal
court because they have assertedly failed to satisfy the
“state procedures” requirement of Williamson County
Regional Planning Commission v. Hamilton Bank, 473
U.S. 172, 194-97 (1985). See Neumont v. Monroe Coun-
ty, Florida, 242 F. Supp. 2d 1265, 1274 (S.D. Fla. 2002)
(dismissing amici’s federal constitutional claims for just
compensation “because plaintiffs have failed to exhaust
their state remedies”).
' Petitioner has consented to the filing of this brief.
Counsel of record for all parties received notice at least ten
days prior to the due date of amici’s intention to file this brief.
No counsel for any party authored this bricf in whole or in
part, and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief.
No person other than amici curiae or its counsel made a mon-
etary contribution to its preparation or submission.
2
Accordingly, for themselves and their fellow prop-
erty owners around the country, amici move for leave to
file this brief in order to urge the Court to grant the first
question presented by petitioner and thereby reconsider
Williamson County’s state procedures requirement.
INTRODUCTION
In one of his final opinions, Chief Justice Rehnquist
wrote for himself and three other Justices “to explain
why I think part of our decision in Williamson County
. . may have been mistaken.” San Remo Hotel, L.P.
v. City & County of San Francisco, 545 U.S. 323, 348
(2005) (opinion concurring in the judgment). Although
he had joined that decision in 1985, two decades of “fur-
ther reflection and experience [led him] to think that the
justifications for its state-litigation requirement are sus-
pect, while its impact on takings plaintiffs is dramatic.”
Id. at 352. Because “no court below ha[d] addressed the
correctness of Williamson County,” [and] neither party
has asked us to reconsider it,” id., the Chief Justice and
his colleagues ultimately determined that reconsider-
ation was not then opportune. But in “an appropriate
case,” he opined, “the Court should reconsider whether
plaintiffs asserting a Fifth Amendment takings claim
based on the final decision of a state or local government
entity must first seek compensation in state courts.” Id.
As petitioner persuasively argues, this is that case.
In contrast to San Remo Hotel, petitioner’s first question
presents the issue squarely. On the merits, and as ex-
plained herein, the “state procedures” requirement of
Williamson County “was not correct when it was decid-
ed, and it is not correct today”; therefore, it “ought not to
remain as binding precedent.” Lawrence v. Texas, 539
U.S. 558, 578 (2004). In a word, it should be overruled.
3
SUMMARY OF ARGUMENT
1. Itis important to comprehend the precise fed-
eral right at issue in cases within the sweep of the state
procedures requirement. The property owner in such
cases sues to enforce a right to recover just compensa-
tion for a taking. That right, and the corresponding
obligation of the government to pay just compensation,
was always understood to accrue or arise at the time of
the taking—and not later. In asserting that the right
and the obligation accrued at some later point after the
denial of state-law remedies in state court, Williamson
County deviated sharply from the established under-
standing of the Just Compensation Clause.
2. Thestate procedures requirement was not one
of the questions presented in Williamson County, and so
it received only the most cursory treatment in the brief-
ing and argument. Not surprisingly, therefore, the re-
quirement is poorly reasoned. It rests principally on
two flawed analogies to inapposite decisions that decree
the unavailability of (1) equitable relief against compen-
sable takings, and of (2) relief under the Due Process
Clause for random and unauthorized deprivations of
property, neither of which is remotely at issue. Nor can
the requirement be justified by the principle that the
Fifth Amendment proscribes only takings without just
compensation, which supports a no-equitable-relief rule
but not exhaustion of state judicial remedies.
3. The state procedures requirement possesses
other defects that demonstrate its doctrinal incoher-
ence. Among these are that the requirement is really
an exhaustion mandate that conflicts markedly with the
no-exhaustion-of-remedies rule governing other federal
rights, as twice recognized in bills passed by the House
4
of Representatives. In addition, the requirement is in
practice ignored by state courts (and by this Court in
cases originating from state courts), although it logically
should apply in those fora. Finally, while touted as pro-
moting local decisionmaking, the requirement affirm-
atively invites disrespect for state courts by treating
them as mere stations on the road to federal court.
ARGUMENT
For the following reasons, the Court should grant
the petition in order to give plenary consideration to
overruling the state procedures requirement fabricated
in Williamson County Regional Planning Commission v.
Hamilton Bank, 473 U.S. 172, 194-97 (1985).
I. In Creating the State Procedures Require-
ment, Williamson County Deviated Sharply
from the Established Understanding of the
Just Compensation Clause.
As petitioner notes, the court of appeals held that
he “had to unsuccessfully seek relief in state court un-
der a state law takings provision before his claim would
ripen” in federal court. Pet. 4. This holding, of course,
flowed directly from the “state procedures” requirement
of Williamson County, under which a property owner
must “seek compensation through the [state-law] pro-
cedures the State has provided for doing so” before pre-
senting to the federal courts his federal claims for just
compensation. 473 U.S. at 194.
A. At Issue Here Is the Right to Recover
Just Compensation for Takings of Pri-
vate Property for Public Use.
In fabricating the state procedures requirement,
Williamson County referred to a property owner’s claim-
ing or suffering “a violation of the Just Compensation
5
Clause.” 472 U.S. at 194-95; accord id. at 195 n.13 (re-
ferring to a “constitutional violation” stemming from a
taking of property). Though it is not unusual to employ
the term violation in a loose sense in connection with a
claim for just compensation, this terminology obscures
the true “nature of the constitutional right” at issue. Id.
Property owners who pursue just compensation in court
under the Fifth Amendment do not claim “constitutional
violations” in the sense that they sue to enjoin or rem-
edy state action that violates or transgresses constitu-
tional norms. Rather, as the Court articulated in First
English Evangelical Lutheran Church v. County of Los
Angeles, these property owners sue to enforce the gov-
ernment’s “constitutional obligation to pay just compen-
sation” along with their corresponding “right to recover
just compensation.” 482 U.S. 304, 315 (1987) (quoting
Armstrong v. United States, 364 U.S. 40, 49 (1960), and
Jacobs v. United States, 290 U.S. 13, 16(1933)). That is,
the owners are pursuing a monetary remedy that is
“grounded in the Constitution itself.” Jd. at 315.
B. It Was Always the Law that the Right to
Recover Just Compensation Accrues at
the Time of the Taking.
When does the government’s constitutional obliga-
tion to pay just compensation arise? Or, to ask the same
thing, when does a property owner’s claim for just com-
pensation accrue? The answer is that the taking, the
obligation of the taker to pay just compensation, and the
owner’s claim for compensation come into being simul-
taneously, as this Court and the lower federal courts
consistently held for decades before Williamson County.
This Court has explained:
6
When a taking occurs by physical invasion, .. .
the usual rule is that the time of the invasion
constitutes the act of taking, and “[it] is that
event which gives rise to the claim for com-
pensation and fixes the date as of which the
land is to be valued ... .”
United States v. Clarke, 445 U.S. 253, 258 (1980) (quot-
ing United States v. Dow, 357 U.S. 17, 22 (1958)).
Numerous decisions of this Court state essentially
the same rule using slightly different phraseology. In
United States v. Dickinson, 331 U.S. 745 (1947), the
Court rejected the government’s argument that Dickin-
son’s reclamation of a portion of property previously
taken by flooding rendered him ineligible to be paid for
the original taking: “[N]o use to which Dickinson could
subsequently put the property by his reclamation efforts
changed the fact that the land was taken when it was
taken and an obligation to pay for it then arose.” Id. at
751 (emphasis added). In Soriano v. United States, 352
U.S. 270 (1957), the Court held time-barred petitioner’s
claim for just compensation for supplies taken during
World War II. Although it rejected the argument that
the hostilities tolled the applicable limitations period,
the Court agreed that petitioner’s compensation claim
“accrued at the time of the taking.” Id.; accord United
States v. Rogers, 255 U.S. 163, 169 (1921) (Having taken
plaintiffs’ lands, “it was the duty of the government to
make just compensation as of the time when the owners
were deprived of their property.”).”
* The law in the Court of Claims was the same. See, e.g., Steel
Improvement & Forge Co. v. United States, 355 F.2d 627, 631
(Ct. Cl. 1966) (“It is axiomatic that a cause of action for an un-
constitutional taking accrues at the time the taking occurs.”).
7
In short, it was the consistent rule of this Court and
the lower federal courts for many decades that the con-
stitutional obligation to pay just compensation arises,
and the claim for just compensation accrues, at the time
of the taking. Whether stated that the event of taking
“gives rise to the claim for compensation,” Dow, 357 U.S.
at 22; Clarke, 445 U.S. at 258, or that the obligation to
pay just compensation is triggered “|a]s soon as private
property has been taken,” San Diego Gas & Electric Co.
v. City of San Diego, 450 U.S. 621, 654 (1981) (Brennan,
J., dissenting), the rule was well-established. Thus, in
asserting that a property owner’s monetary claim under
the Just Compensation Clause does not accrue “until
just compensation has been denied” by the state judicial
system, 473 U.S. at 195 n.13, Williamson County devi-
ated sharply from the traditional understanding of that
Clause.
ll. In Creating the State Procedures Require-
ment, Williamson County Built a House on
Jurisprudential Sand.
Did such a sharp deviation from decades of consis-
tent constitutional interpretation come after sustained
reflection in the face of compelling new authority? Was
the state procedures requirement forged in the fires of
intensive and extensive doctrinal reassessment in light
of developments in the law of just compensation? In a
word, no. In fact, quite the opposite: as explained be-
low, the requirement was fabricated without benefit of
serious briefing or argument, and it rests principally on
flawed analogies to inapposite cases, as well as other
misreadings of precedent.
8
A. The Requirement Was Fabricated Without
Benefit of Serious Briefing or Argument.
In the Court’s own words, it granted certiorari in
Williamson County to decide “whether Federal, State,
and Local governments must pay money damages to a
landowner whose property allegedly has been ‘taken’
temporarily by the application of government regula-
tions.” 473 U.S. at 185. The attorneys general of nine-
teen states and territories, together with the Solicitor
General of the United States, the National Association
of Counties, the City of New York, and the City of St.
Petersburg, Florida, joined the petitioner in urging the
Court to reverse the court of appeals’ judgment in favor
of the property owner on two alternative grounds: “that
a temporary regulatory interference with an investor’s
profit expectation does not constitute a ‘taking,’” and
“that even if such interference does constitute a taking,
the Just Compensation Clause does not require money
damages as recompense.” Jd. at 175 (emphases added).
Four professional and public-interest organizations filed
amicus curiae briefs urging affirmance of the judgment.
See id. at 174.
In the end, all of this briefing was for naught, be-
cause the Court did not decide the questions presented.
Instead, Williamson County left the temporary takings
issue “for another day,” as it concluded that the proper-
ty owner’s claim for just compensation was “premature.”
Id. at 186; cf. First English, 482 U.S. at 310 (deciding
the issue after observing that Williamson County and
other cases had left it undecided). The conclusion that
the just compensation claim was premature rested pri-
marily on the application of the rule that a regulatory
takings claim “is not ripe until the government entity
charged with implementing the regulations has reached
9
a final decision regarding the application of the regula-
tions to the property at issue.” Id.; see also id. at 186-94
(explicating this “final decision” requirement).
Logically, the opinion could have stopped at that
point—but it did not. Instead, the opinion put forth a
“second reason [why] the taking[s] claim is not yet ripe,”
namely, that the property owner “did not seek compen-
sation through the procedures the State has provided
for doing so.” Id. at 194. Out of the twelve merits briefs
filed in Williamson County, only the Solicitor General’s
amicus brief—and only as part of a single paragraph in
its Summary of Argument—argued for anything ap-
proaching this “second reason.” See Brief for the United
States as Amicus Curiae Supporting Petitioners at 10;
see also Brief for Respondent at 39 (responding to point
in two short paragraphs). Furthermore, although the
“state procedures” issue did arise very briefly at oral
argument in Williamson County, the Solicitor General’s
representative refused even to give an unequivocal an-
swer to the question whether “a property owner would
have to follow judicial review remedies as well for [regu-
latory action] to ripen into a taking.” 1985 U.S. TRANS
LEXIS 76, at *25-26 (Feb. 19, 1985); see also id. at *26
(“I think it tends to blend in with the question of whe-
ther there should be abstention on the state law ques-
tion of whether the commission had properly applied
state law.”).
B. The Requirement Rests Principally on Two
Flawed Analogies to Inapposite Decisions.
There are good reasons why the Court “ordinarily
doles} not consider questions outside those presented
in the petition for certiorari,” and why the Court dis-
regards that rule “only in the most exceptional cases.”
Yee v. City of Escondido, 503 U.S. 519, 535 (1992). The
10
“state procedures” aspect of Williamson County is a per-
fect illustration of such reasons. When the questions
presented did not even touch on state judicial remedies
and when the matter did not receive serious briefing or
argument, it is no surprise that the fabrication of the
state procedures requirement rested principally on two
flawed analogies to inapposite decisions.
1. Ruckelshaus v. Monsanto Co.
First, the opinion cited Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1016-20 (1984), for the notion that
“takings claims against the Federal Government are
premature until the property owner has availed itself of
the process provided by the Tucker Act.” 473 US. at
195. From this notion, the opinion purported to draw an
analogy: “Similarly, ifa State provides an adequate pro-
cedure for seeking just compensation, the property own-
er cannot claim a violation of the Just Compensation
Clause until it has used the procedure and been denied
just compensation.” Jd. at 196. Regardless of the plaus-
ibility of the analogy, the premise is wholly bogus. If
“takings claims” are meant in this passage to refer to
monetary claims for just compensation for completed
takings of private property—the actual claim that the
property owner asserted in Williamson County—then
the cited passage from Monsanto did not even consider
such claims, let alone declare them “premature” until
after the property owner had sued the United States
under the Tucker Act.°
* The Tucker Act grants the Court of Federal Claims subject
matter jurisdiction over “any claim against the United States
founded upon .. . the Constitution,” 28 U.S.C. § 1491(a)(1),
including monetary claims for just compensation under the
Fifth Amendment.
11
In Monsanto, a company sued in federal district
court “seeking injunctive and declaratory relief from the
operation of” various provisions of the Federal Insecti-
cide, Fungicide, and Rodenticide Act (FIFRA), alleging
that “all of the challenged provisions effected a ‘taking’
of property without just compensation, in violation of
the Fifth Amendment.” 467 U.S. at 998-99 (emphasis
added). Having concluded that some of the challenged
provisions might conceivably operate to take the com-
pany’s property in some circumstances, the Court pro-
ceeded to consider (in the passage cited by Williamson
County) whether that conclusion supported the request-
ed injunctive relief. Monsanto concluded that it did not,
based on the established rule that “[e]quitable relief is
not available to enjoin an alleged taking of private prop-
erty for public use ... when a suit for compensation can
be brought against the sovereign subsequent to the tak-
ing.” Id. at 1016 (emphasis added); see also id. at 1017-
19 (concluding that such a suit could be brought under
the Tucker Act). Thus, the company’s request for equit-
able relief under the Fifth Amendment was not merely
premature, it was not available at all. In other words,
there was nothing the company could do to “ripen” its
claim for equitable relief; rather, that claim simply had
no merit, period.
What about a Tucker Act suit against the govern-
ment in the Court of Federal Claims? Could such a suit
be called a prerequisite to asserting a monetary claim
against the government for just compensation for a tak-
ing of property? No, as the Monsanto decision confirms,
a Tucker Act lawsuit ts the assertion of a claim for just
compensation: “whatever taking may occur is one for
public use, and a Tucker Act remedy is available to pro-
vide Monsanto with just compensation.” Jd. at 1020;
12
accord supra note 3. Thus, if Williamson County were
correct that a property owner must “avail|[] itself of the
process provided by the Tucker Act” before pursuing its
claim for just compensation, 473 U.S. at 195, then it
would be the rule that a property owner must essen-
tially bring a Tucker Act suit before bringing a Tucker
Act suit. In other words, an owner’s Tucker Act suit for
just compensation would be “premature” until the pro-
perty owner had brought a Tucker Act suit for just com-
pensation. Jd. Obviously, this reductio ad absurdum
deserves no respect, and Monsanto provides no reasoned
basis for the state procedures requirement.
2. Parratt v. Taylor
The fabrication of the state procedures requirement
in Williamson County also rested on the supposed an-
alogy between takings of private property “without just
compensation” and deprivations of property “without
due process of law.” The Court relied on Parratt v. Tay-
lor, 451 U.S. 527 (1981), which it described as having
“ruled that a person deprived of property through a ran-
dom and unauthorized act by a state employee does not
state a claim under the Due Process Clause merely by
alleging the deprivation of property.” 473 U.S. at 195.
In this situation, “the State’s action is not ‘complete’ in
the sense of causing a constitutional injury ‘unless or
until the State fails to provide an adequate postdepriva-
tion remedy for the property loss.’” Jd. (quoting Hudson
v. Palmer, 468 U.S. 517, 532 n.12 (1984)). Then came
another purported analogy: “Likewise, because the Con-
stitution does not require pretaking compensation, and
is instead satisfied by a reasonable and adequate pro-
vision for obtaining compensation after the taking, the
State’s action here is not ‘complete’ until the State fails
to provide adequate compensation for the taking.” /d.
13
This analogy has two fatal flaws. First, it provides
no support for the go-first-to-state-court requirement
actually imposed by Williamson County. When a state
does indeed “provide an adequate postdeprivation rem-
edy for the property loss” as contemplated by Parratt,
the deprived property owner does not pursue that state-
law remedy before suing in federal court under the Due
Process Clause. To the contrary, the property owner
must pursue the state-law remedy instead of suing in
federal court. As Williamson County put it, the owner
who has such a remedy categorically “does not state a
claim under the Due Process Clause.” 473 U.S. at 195.
If the analogy with the Just Compensation Clause were
valid, the property owner having a state-law remedy for
just compensation categorically could not state a claim
under the Just Compensation Clause in any court. Ob-
viously, no one believes that, then or now.
Second, and more important, the notion that “the
State’s action [in respect to a taking] is not ‘complete’
until the State fails to provide adequate compensation
for the taking,” id., is flatly contrary to the Court’s sus-
tained and reasoned consideration of the matter in First
English. There, the Court held that the government’s
taking of property, without more, gives rise to an “obli-
gation to pay just compensation” on the government’s
part, and a corresponding “right to recover just compen-
sation” on the owner’s part. 482 U.S. at 315. While a
postdeprivation remedy might allow the government to
escape liability for a denial of procedural due process (as
in Parratt), once a taking has occurred, governmental
liability for just compensation is inescapable: “no subse-
quent action by the government can relieve it of the duty
to provide compensation.” /d. at 321 (emphasis added).
This formulation has continued to command the Court’s
assent. See Tahoe-Sierra Preservation Council v. Tahoe
14
Regional Planning Agency, 535 U.S. 302, 328 (2002)
(quoting this passage and opining that “nothing that we
say today qualifies [that] holding” of First English).
C. The Requirement Finds No Support in the
Principle that the Amendment Proscribes
Only Takings Without Just Compensation.
Along with flawed analogies to Monsanto and Par-
ratt, Williamson County relied on the uncontroversial
principle that the “Fifth Amendment does not proscribe
the taking of property; it proscribes taking without just
compensation.” 473 U.S. at 194. Indeed, this principle
was so significant that the opinion both reiterated and
emphasized the point: “because the Fifth Amendment
proscribes takings without just compensation, no con-
stitutional violation occurs until just compensation has
been denied.” Jd. at 195 n.13.
Both of these propositions are quite true; both are
also quite irrelevant to whether property owners must
seek just compensation in state court under state law.
As explained in Part I.A above (pp. 4-5), property own-
ers who seek just compensation under the Fifth Amend-
ment are not seeking to “proscribe” (i.e., enjoin) takings,
and they are not asserting “constitutional violations.”
Instead, these owners are asserting a federal “right to
recover just compensation,” the monetary remedy that
is “grounded in the Constitution itself.”
To put the point another way, the principle that the
Fifth Amendment proscribes (only) those takings that
are without just compensation leads not to the state pro-
cedures requirement but rather to the rule (reiterated in
Monsanto) that “[e]quitable relief is not available to en-
join an alleged taking of private property for public use
... when a suit for compensation can be brought against
15
the sovereign subsequent to the taking.” 467 U.S. at
1016, discussed at supra p. 11. That is, the “proscribes
takings without just compensation” point cited by Wil-
liamson County is a perfectly good basis for rebuffing
property owners who ask federal courts to enjoin state
regulatory programs; however, it is no basis whatever
for rebuffing property owners who ask federal courts to
award just compensation.
Ill. The State Procedures Requirement Has Other
Defects that Show Its Doctrinal Incoherence.
If Williamson County’s state procedures require-
ment was not correct when it was decided, then it is also
defective in additional ways that have come to light in
the past two decades. Petitioner has explicated some of
those defects. See Pet. 11-24. In the following sections,
amici discuss three other defects.
A. The Requirement Is Inconsistent with the
No-Exhaustion-of-Remedies Rule Govern-
ing Other Federal Rights.
The intended effect of Williamson County’s state
procedures requirement is to remit property owners
with what had long been described as “accrued” federal
claims for just compensation, Soriano, 352 U.S. at 275,
to state courts to pursue remedies under state law. This
result is anomalous on its face, and it is especially jar-
ring given the Court’s long-standing and firm refusal,
with respect to other federal claims asserted under 42
U.S.C. § 1983, to “require[] exhaustion of state judicial
... remedies, recognizing the paramount role Congress
has assigned to the federal courts to protect constitu-
tional rights.” Steffel v. Thompson, 415 U.S. 452, 472-
73 (1974) (emphasis added), quoted in Patsy v. Board of
Regents, 457 U.S. 496, 500 (1982). In practice, there-
fore, the state procedures requirement has effectively
16
caused the Just Compensation Clause, “as much a part
of the Bill of Rights as the First Amendment or [the]
Fourth Amendment, [to] be relegated to the status of a
poor relation,” despite protestations to the contrary in
Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).
The House of Representatives views the state pro-
cedures requirement as an “exhaustion” mechanism ap-
plying only to claims for just compensation, and it has
twice passed bills to eliminate it.* The House Judiciary
Committee’s report on the latter bill made clear that the
non-exhaustion provision had as its target Williamson
County’s state procedures requirement, for the House
viewed the requirement as the kind of exhaustion-of-
judicial-remedies rule that was rejected in Steffel, Patsy,
and many other decisions of this Court. See H.R. Rep.
No. 106-518, at 13 & n.3 (2000). The committee report
explained that the “combined effect of Williamson Coun-
ty, and the application of issue and claim preclusion, is
to drive out of Federal court virtually all Federal claims
for just compensation for takings of private property by
local governments.” Jd. at 13. As a result of the state
procedures requirement, then, “property rights are pro-
cedurally disadvantaged compared to other civil rights.”
Id. (section heading).
* See Private Property Rights Implementation Act of 1997,
H.R. 1534, 105th Cong., § 2 (adding 28 U.S.C. § 1343(e)(3) to
provide that property owners secking to enforce the Just Com-
pensation Clause pursuant to 42 U.S.C. § 1983 need not “ex-
haust judicial remedies provided by any State or territory”);
Private Property Rights Implementation Act of 2000, H.R.
2372, 106th Cong., § 2 (adding 28 U.S.C. § 1343(e)(4) to pro-
vide that claims for just compensation asserted pursuant to
§ 1983 are “ripe for adjudication even if the party seeking re-
dress does not exhaust judicial remedies provided by any State
or territory”).
17
B. The Requirement Is in Practice Ignored
by State Courts and by this Court.
If the state procedures requirement truly derives
from the “nature” of the federal right to just compensa-
tion—as opposed to being merely a “procedural scheme
under which claims may be heard in federal courts,”
Patsy, 457 U.S. at 501—then the requirement necessar-
ily governs regardless of the judicial forum in which the
federal right is asserted. In other words, under the logic
of Williamson County, “a property owner cannot claim
a violation of the Just Compensation Clause” even in
state court until he has used the “procedure for seeking
just compensation” provided by the state. 473 U.S. at
195. In other words, no federal claim for just compen-
sation may be presented to a state court until the owner
has fully (and unsuccessfully) litigated his state-law
claim for compensation (in the state judicial system).
This precept follows unassailably from the state
procedures requirement; this precept is also uniformly
ignored both by state courts themselves and this Court.
As for state courts, amici are aware of none that refuses
to adjudicate federal claims for just compensation on the
ground that they are premature until a property owner
has pursued to completion all claims for compensation
under state law. To the contrary, it is not difficult to cite
examples of state judicial systems that will adjudicate
federal ciaims for just compensation before state-law
compensation claims have been fully litigated.°
° See, e.g., Jacobs Wind Electric Co. v. Department of Transpor-
tation, 626 So. 2d 1333, 1337 (Fla. 1993) (contemplating that
a patent holder would assert its claims under the federal Just
Compensation Clause alung with its claims under the state
(continued...)
18
As for this Court, consider the last two pure regu-
latory takings cases it has entertained on certiorari to
state courts. In Lucas v. South Carolina Coastal Coun-
cil, 505 U.S. 1003, 1009 (1992), the Court observed that
following the enactment of the relevant state statute,
“Lucas promptly filed suit in the South Carolina Court
of Common Pleas, contending that the Beachfront Man-
agement Act’s construction bar effected a taking of his
property without just compensation.” Even though the
Court postponed its discussion of the merits to address
whether Lucas had satisfied Williamson County’s “final
decision” requirement, see id. at 1010-14, the Court was
not concerned in the least whether Lucas had also sat-
isfied Williamson County’s “state procedures” require-
ment by litigating to completion whatever state-law
claims for compensation he might have had prior to his
asserting his federal claim for just compensation.
» (...continued)
analogue thereto and state common law); Kavanau v. Santa
Monica Rent Control Board, 941 P.2d 851, 855 (Cal. 1997) (ob-
serving that the property owner brought a claim for “ ‘just com-
pensation’ in the form of lost rental income and interest” under
both “article I, section 19 of the California Constitution and
the Fifth Amendment of the United States Constitution”), cert.
denied, 522 U.S. 1077 (1998); Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 930 (Tex. 1997) (finding ripe the plaintiffs
“just compensation takings claims” brought at the same time
“under the United States Constitution and Texas Constitu-
tion”); Palazzolo v. State, 746 A.2d 707, 711(R.I. 2000) (observ-
ing that plaintiff “brought an inverse condemnation action”
that asserted “a taking of his property for which he was entit-
led to compensation pursuant to the United States and Rhode
Island Constitutions”), a/fd in part, rev'd in part, 533 U.S. 606
(2001).
19
Likewise, in Palazzolo v. Rhode Island, 533 U.S.
606, 611 (2001), the Court observed that following pro-
ceedings before the state Coastal Resources Manage-
ment Council, Palazzolo “sued in state court, asserting
the Council’s application of its wetlands regulations took
the property without compensation in violation of the
Takings Clause of the Fifth Amendment.” Again, while
the Court addressed the final decision requirement at
length, see id. at 618-26, it gave no attention to the state
procedures rule. In contrast to Williamson County, the
Court surely did not bother to assure itself that, before
Palazzolo first asserted his federal claim for just com-
pensation, he did indeed “seek compensation through
the procedures the State has provided for doing so.”
C. The Requirement Invites Disrespect for
State Courts by Treating Them as Mere
Stations on the Road to Federal Court.
In a letter expressing its (unsuccessful) opposition
to passage by the House of a bill eliminating the state
procedures requirement, see supra note 4 and accom-
panying text, the Justice Department cited “‘a proper
respect for State functions’” in contending that “State
courts are as capable as Federal courts in adjudicating
local land use cases.” H.R. Rep. No. 106-518, at 37, 42
(quoting Younger v. Harris, 401 U.S. 37, 44 (1971)). An
argument like this naturally evokes the decisions of this
Court calling for a “proper respect for the ability of state
courts to resolve federal questions presented in state-
court litigation.” Pennzoil Co. v. Texaco, Inc., 481 U.S.
1, 14 (1987). Amici concur with the Department that
this respect should influence the Court’s thinking about
the state procedures requirement. But as set forth be-
low, the requirement in fact invites disrespect for state
courts and their ability to resolve federal questions.
20
It has long been recognized that, notwithstanding
“the paramount role Congress has assigned to the fed-
eral courts to protect constitutional rights,” Steffel, 415
U.S. at 473, generally “the state and federal courts have
concurrent jurisdiction of suits of a civil nature arising
under the Constitution and laws of the United States.”
Grubb v. Public Utilities Commission, 281 U.S. 470, 476
(1930); accord, e.g., Tafflin v. Levitt, 493 U.S. 455, 459
(1990). Monetary claims under the Just Compensation
Clause are within this general rule, and state courts
routinely adjudicate such federal claims against state
and local governments.
Consider a procedural regime in which both state
courts and lower federal courts adjudicate the federal
claims for just compensation respectively presented to
each. The property owners who agree with the Justice
Department’s prediction that “State courts are likely to
be as sympathctic to local property owners as Federal
courts,” H.R. Rep. No. 106-518, at 37, will gravitate na-
turally toward the former; those who disagree, toward
the latter. Each court system will develop federal tak-
ings law subject to this Court’s review and without in-
terference from the other. Such a regime would not only
yield more efficient decisionmaking, it would also truly
show that “proper respect for ability of state courts to
resolve federal questions presented in state-court liti-
gation” enunciated in Pennzoil Co., 481 U.S. at 14.
By contrast, consider the regime created by the
state procedures requirement of Williamson County.
Under that regime, federal courts consider state cuurts
not as parallel departments of a dual sovereign but in-
stead as “hurdles” to be overcome on the read to resolu-
tion of claims by federal courts. E.g., Richardson v. City
& County of Honolulu, 124 F.3d 1150, 1165 (9th Cir.
21
1997), cert. denied, 525 U.S. 871, 921, 1018 (1998); Eide
v. Sarasota County, 908 F.2d 716, 720-21 (11th Cir.
1990), cert. denied, 498 U.S. 1120(1991). Moreover, fed-
eral courts send property owners packing off to state
courts to litigate state-law claims they do not wish to
pursue and to obtain rulings that may have absolutely
no consequence in later federal proceedings. Forcing
pointless detours to state courts in order to litigate side-
show issues show affirmative disrespect for those courts
rather than the requisite proper respect.
CONCLUSION
As the Court has often reiterated, the doctrine of
stare decisis is “not... an inexorable command.” Law-
rence, 539 U.S. at 577 (quoting Payne v. Tennessee, 501
U.S. 808, 828 (1991)). It is, instead, “a principle of pol-
icy’ that must yield when the rationale of a prior deci-
sion “does not withstand careful analysis.” Jd. As this
brief has shown, the state procedures requirement of
Williamson County cannot withstand such analysis: it
was fashioned in circumstances that warrant no confi-
dence its soundness, and “precedents before and after
its issuance contradict its central holding.” Jd. Though
state and local governments “rely” on it as a convenient
means to exhaust property owners having the temerity
to assert federal claims for just compensation, “there
has been no individual or societal reliance on [it] of the
sort that could counsel against overturning its holding
once there are compelling reasons to do so.” Jd.
This last point is crucial, for we may expect a chor-
us from respondents and their amici regarding how the
state procedures requirement is a pillar of Western Civ-
ilization and how overruling it will usher in a new Dark
Ages. We think this chorus is largely driven by the de-
sire of these governments and their allies to narrow the
22
substantive scope of takings law. While that desire is
understandable, we are confident that all Members of
this Court will resist the temptation to treat the state
procedures requirement as a stand-in for disputes about
the substantive reach of the Just Compensation Clause.
Whether that Clause affords broad relief to property
owners, narrow relief, or even no relief at all, should not
matter here: in accord with “the paramount role Con-
gress has assigned to the federal courts to protect con-
stitutional rights,” Steffel, 415 U.S. at 473, the answers
to that question ought to be resolved in federal court
without requiring exhaustion of state-law remedies in
state court.
As the Court has repeatedly stated, when “govern-
ing decisions are unworkable or are badly reasoned, this
Court has never felt constrained to follow precedent.”
Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996) (quot-
ing Payne, 501 U.S. at 827). The Court should not feel
constrained here: this is truly the “appropriate case” to
reconsider—and ultimately overrule—the unworkable,
and badly reasoned, state procedures requirement of
Williamson County.
The petition for writ of certiorari should be granted.
Respectfully submitted.
ERIC GRANT
HAROLD E. WOLFE, JR. Counsel of Record
HAROLD E. WOLFE, JR., P.A. ATTORNEY AT LAW
Suite 302, Executive Centre Suite 100
2300 Palm Beach Lakes Boulevard 8001 Folsom Boulevard
West Palm Beach, FL 33409 Sacramento, CA 95826
(561) 697-4100 (916) 388-0833
Counsel for Amici Curiae
December 2007
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