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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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