Petition for Writ of Certiorari — Schwartz v. City of Flint

> E-1358 Py

No.

OfFice ul

Supreme Court, US.

k, i)

FEB 11 1992

fhe Cickh

In The

Supreme Court of the United States

October Term, 1991

¢

JOSEPH SCHWARTZ,

Petitioner,

VS.

CITY OF FLINT,

Respondent.

Petition For A Writ Of Certiorari To The

Michigan Court Of Appeals

*

PETITION FOR A WRIT OF CERTIORAFI

¢

Levin, Levin, GARVETT

AND Dit, P.C.

By: Erwin B. ELLMANN*

Jay W. Tower

Attorneys for Petitioner

3000 Town Center, Suite 1800

Southfield, MI 48075

313/352-8200

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

MAY A STATE COURT BAR A FEDERAL CLAIM

UNDER 42 U.S.C. §1983 FOR COMPENSATION FOR AN

UNCONSTITUTIONAL TAKING OF PETITIONER’S

PROPERTY BECAUSE HE DID NOT ASSERT IN A

PRIOR STATE ACTION THE FEDERAL CLAIM WHICH

WAS NOT THEN RIPE OR JUSTICIABLE UNDER DECI-

SIONS OF THIS COURT?

il

TABLE OF CONTENTS

Page

oo) yy OB i ty 2 enn ee oS: i

FARLS OF AL TRICA ee oi iis deecssnnacaeke eee iil

OPINIONS BELOW AND JURISDICTION .......... 1

CONSTITUTION AND STATUTE INVOLVED ...... 1

STAT EME! OF THE CABG. 66 i0cexcadéawiessoenes 3

REASONS FOR GRANTING THE WRIT ........... 7

PAE sou avy v9 0e owe eee eee Se ee 12

ill

TABLE OF AUTHORITIES

Page

CITATIONS

Atlantic Coast Line Railroad Company v. Burnette,

I Se ee ee 7

Austin v. City and County of Honolulu, 840 F.2d 678

eo as yk He dA C+ sso N aA AOD 11

Brown v. Western Railroad of Alabama, 338 U.S. 294

ears nek cada y veces cashes aes ces 8

Central Vermont Railway Company v. White, 238 U.S.

ee iy ak Gaba eee AKA SO Ke eR ES RENO 7

Chapman v. Crane, 123 U.S. 540 (1887)........... Eee,

Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th

CTs oe Sa wv n tka a4 cae sna ew awe eke 8 10

Cromwell v. Sac County, 94 U.S. 351 (1877)............ 5

DeVries v. Baumgartner’s Electric Construction Co.,

2...) nr Nee ae eas 12

District Lodge 34 v. Cavett Co., 355 U.S. 39 (1957).... 12

Eide v. Sarasota County, 895 F.2d 1326 (11th Cir.

a oa aOR TENS a ee ae ae 1]

Estate of Himelstein v. City of Fort Wayne, Indiana,

ee ee Bee Ee a |) 11

foer @ Geeey, Ger U.S. 131 (1968).................5. 8

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ....... 9

Hammond v. Baldwin, 866 F.2d 172 (6th Cir. 1989) .... 10

Howlett v. Rose, 496 U.S. , 110 L. Ed. 2d 332

ee a Gm Be aA WS EEE he:

iv

TABLE OF AUTHORITIES - Continued

Page

Landmark Land Company of Oklahoma v. Buchanan,

FS Bate FUP CUR CAE TOG nisi ke ek sansa es 10

Lawlor v. National Screen Service Corporation, 349

RR Gt a eer cee yr ae ee ee -

MacDonald, Sommer & Frates v. County of Yolo, 477

At ee SEE 6 ie hc ha ca cangs soca satewiees keaeanl 8

Mason v. City of Biloxi, 385 U.S. 370 (1966).......... 13

Mondou v. New York, New Haven & Hartford Rail-

WE Cig Bee Wie CONE E ER nk oa ee orcs sr annansees 12

Poirier v. Grand Blanc Township, 167 Mich. App. 770

SPUN Cad cak cet e kes FIG Oca eee aero or 10

Schwartz v. City of Flint, 426 Mich. 295 (1986) ...3, 4, 6

Sea-Land Services v. Gaudet, 414 U.S. 573 (1974)...... 10

Staub v. City of Baxley, 355 U.S. 313 (1958) ...-....... 9

Thompson v. City of Louisville, 362 U.S. 199 (1960).... 11

Williamson Planning Commission v. Hamilton Bank,

OE ee ai.) Pepa ee enn ae NAA erent 5, 8

CONSTITUTIONS AND STATUTES

United States Constitution, Article VI, Clause 2...... 1

Pe a aa es ae ae ee ele wee ee ek 2

Mmpemerment FIV, Section 1... . «5 svc eccccvuaswstades 2

USC 800... oa. L 27a 2

OPINIONS BELOW AND JURISDICTION

Petitioner filed suit under 42 U.S.C. §1983 for com-

pensation for unlawful taking of his property by the City

of Flint. The City’s motion for summary disposition, seek-

ing dismissal, was denied from the bench by the circuit

court for Genesee County, Michigan on September 11,

1989 (App. 1-5). Reconsideration was denied (App. 6-7)

and then the City obtained leave to appeal. By opinion

dated January 22, 1991, 187 Mich. App. 191; 466 N.W.2d

357 (1989) (App. 8), the Michigan Court of Appeals

reversed, dismissing Petitioner’s claims under both fed-

eral and state law. Timely application for leave to appeal

to the Supreme Ccurt of Michigan was denied, one justice

dissenting, October 11, 1991 (App. 15), and timely motion

for reconsideration was denied by order of the latter

court December 20, 1991, one justice again dissenting and

urging grant of leave to appeal (App. 16). This petition

for certiorari to the Michigan Court of Appeals, as the

State’s “court of last resort,” is filed within 90 days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§1257(3).

CONSTITUTION AND STATUTE INVOLVED

Article VI, Clause 2 of the United States Constitution

provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be

made, under the Authority of the United States,

shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

The pertinent language of Amendment V to the Constitu-

tion of the United States provides:

No person shall . . . be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

Pertinent language of Section 1 of the Fourteenth Amend-

ment to the United States Constitution provides:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protec-

tion of the laws.

42 U.S.C. §1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceedings for redress. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

STATEMENT OF THE CASE

Petitioner, Joseph Schwartz, the owner of a 28-acre

parcel of undeveloped land in the City of Flint, Michigan,

challenged respondent City’s zoning restrictions on his

property by complaint filed in 1971 in the Genesee

County Circuit Court, a state court of general jurisdiction.

The complaint sought a declaratory judgment that the

restrictions were invalid under state law and their

enforcement should be enjoined. The City vigorously

resisted and the case went twice to the Michigan Court of

Appeals and twice to the Supreme Court of Michigan. In

1986 the latter court sustained Petitioner’s persistent

claim that the zoning was arbitrary and invalid and

resulted in an unconstitutional taking of his property, but

remanded the cause for a determination of the rea-

sonableness of his proposed use, Schwartz v. City of Flint,

426 Mich. 295 (1986).

After extended negotiations before re-trial, the par-

ties ultimately agreed to entry of a final judgment in that

action which permitted development of the property with

town houses and garden apartments essentially as Peti-

tioner had originally proposed (App. 17-18). After termi-

nation of that action, Petitioner requested compensation

from the City for the unlawful taking of his property,

noting that his accountants had calculated his losses in

excess of $7,000,000. When this request was summarily

rejected, Petitioner filed a complaint in the Genesee

County Circuit court.

His complaint contained the following allegation:

The

The

“The unconstitutional assertion by Defendant

City of its zoning authority constituted a ‘con-

structive taking’ or ‘de facto taking’ of Plain-

tiff’s property within the meaning of the

Uniform Condemnation Procedures Act, MCLA

213.51, MSA 8.265, and effected inverse condem-

nation of Plaintiff’s property, depriving him of

all reasonable and viable use of his land and his

reasonable, investment-backed expectations.

This constituted a taking of the property with-

out payment of just compensation, in violation

of Article X, Section 2 of the Michigan Constitu-

tion of 1963 and the Fifth Amendment to the

United States Constitution.” (§13)

following paragraph of the complaint recited:

“The acts and omissions of Defendant City fur-

ther deprived Plaintiff of his property without

due process of law, in violation of Article I,

Section 17 of the Michigan Constitution of 1963

and the Fourteenth Amendment to the United

States Constitution. Plaintiff is entitled to

redress from this Court pursuant to the Consti-

tutional provisions cited in this and the preced-

ing paragraph and 42 USC 1983.” (§14)

complaint also recited (§9) that it had been deter-

mined in Schwartz v. City of Flint, 92 Mich. App. 495, 503;

285 N.W.2d 344 (1979) that the zoning ordinance is “tak-

ing from plaintiffs the use of their property without just

compensation, contrary to the Federal and State Constitu- ;

tions;” that the judgment of the Circuit Court of April 22,

1988 (App. 17-18) finally determined the “reasonable”

permitted use of the property (§10); and that demand for

compensation was made March 3, 1989 (§11) and rejected

by the City March 15, 1989 (§12).

Before answer, the City moved for summary disposi-

tion of dismissal on the grounds, inter alia, that the for-

mer judgment barred any claim for compensation under

State res judicata doctrine. Petitioner pointed out that no

claim for compensation had been asserted or litigated in

the prior declaratory judgment action. In negotiating the

judgment, Petitioner had expressly “reserved” the right

to file a subsequent claim for compensation (Affdt of Jay

Tower, §3). Counsel for the City himself acknowledged

that under decisions of this Court, Petitioner had no

federal cause of action for compensation while “there was

not a final determination of how the land could be used”

(App. 4). The Circuit Court rejected the City’s claim of res

judicata, denied its motion from the bench (App. 5) and

thereafter denied reconsideration (App. 6-7).

The City obtained leave to appeal. Petitioner’s brief

in the Michigan Court of Appeals again resisted the

City’s claim of res judicata under both state and federal

law, invoking (p. 15) Cromwell v. Sac County, 94 U.S. 351,

353 (1877), and (p. 18) Lawlor v. National Screen Service

“orporation, 349 U.S. 322, 328 (1955), as well as Williamson

Planning Commission v. Hamilton Bank, 473 U.S. 172, 191

(1985). In a per curiam opinion, a three-judge panel of the

Court of Appeals reversed, 187 Mich. App. 191; 466

N.W.2d 357 (1989) (App. 8-14). Petitioner thereupon filed

an application to the Supreme Court of Michigan for

leave to appeal. Among the grounds for the application

were:

“(c) The Court of Appeals wrongfully

barred plaintiff in this action brought under

both state and federal law, including 42 USC

1983, from any claim for compensation for a

temporary regulatory taking of his property by

the City of Flint on the ground that plaintiff

could and should have asserted such claim in

the prior action which this Court remanded in

1986 for the specific and limited purpose of

determining the reasonableness of plaintiff's

proposed use of the property, Schwartz v. City of

Flint, 426 Mich. 295, 330 (1986).

» * *

(e) The Court of Appeals wrongfully

barred plaintiff's claim under federal law in this

case because he did not seek to assert an

unripened and anticipatory federal claim for

just compensation in the former suit which was

terminated in 1988. The asserted ground for bar-

ring this claim, which did not become justiciable

until more than a year after termination of the

former suit, violates federal law and the

Supremacy Clause of the United States Constitu-

tion.”

The Supreme Court of Michigan, by order dated October

11, 1991, denied the application for leave, one justice

dissenting (App. 15). Petitioner then filed a timely motion

for reconsideration on the following grounds, inter alia:

“1. Rejection without trial or mention of

plaintiff's federal constitutional claims under 42

USC 1983 on the basis of a purported state court

rule is an insufficient and improper “excuse” for

denying federal rights. Howlett v. Rose, 496 U.S.

__, 110 L.Ed.2d 332, 348-350 (1990); Corn v. City

of Lauderdale Lakes, 904 F.2d 585 (11th Cir. 1990).

2. Refusal to grant leave to review the

decision of the Court of Appeals violates the

Supremacy Clause of the United States Constitu-

tion, Article IV, §2,-clause 2. See Golden State

Transit Corp. v. City of Los Angeles, 493 US. __,

107 L.Ed.2d 420, 428 (1989).”

By order of December 20, 1991, the motion for recon-

sideration was denied, one justice again dissenting and

urging grant of leave to appeal (App. 16).

e

REASONS FOR GRANTING THE WRIT

The challenged decision of the Michigan Court of

Appeals is contrary to the decision of this Court in How!-

ett v. Rose, 496 US. __, 110 L.Ed.2d 332 (1990) which

reiterated established principles that “The elements of

and defenses to a federal cause of action are defined by

federal law” (p. 353); that when a state has opened its

doors to suits under 42 US.C. §1983, the Supremacy

Clause means that “federal law is law in the State” (p.

356) and that the State may not without valid excuse erect

a defense to a federal claim which “would not be avail-

able if the action had been brought in the federal forum”

(p. 342).

While the prior suit was pending Petitioner had no

existing federal cause of action for compensation for an

unconstitutional regulatory taking. His federal claim rip-

ened months after the former suit was terminated by

judgment. No state construction or application of res judi-

cata doctrine may bar or preclude Petitioner’s subsequent

assertion of his federal right. See Central Vermont Railway

Company v. White, 238 U.S. 507, 512 (1915); Atlantic Coast

Line Railroad Company v. Burnette, 239 US. 199, 200-201

(1915). A federal right “cannot be defeated by the forms

of local practice,” Brown v. Western Railroad of Alabama,

338 U.S. 294, 296 (1949). In holding that a state notice-of-

claim statute may not be invoked to bar or discriminate

against a federal claim under 42 U.S.C. §1983, this Court

emphasized in Felder v. Casey, 487 U.S. 131 (1988) that the

civil rights statute was specifically designed to create “a

species of liability in favor of persons deprived of their

federal civil rights by those wielding state authority” (487

U.S. at 139) and that “however laudable the State’s inter-

est in controlling liability expenses,” this is “patently

incompatible with the compensatory goals of the federal

legislation” (487 U.S. at 143).

More than 20 years after he first challenged Flint’s

zoning restrictions on use of his land, Petitioner finally

was able to obtain the City’s consent to entry of a judg-

ment which permitted him to develop it essentially as he

had originally proposed. The judgment entered in the

former suit on April 28, 1988 (App. 17-18) constituted a

“final decision regarding the application of the regula-

tions to the property,” Williamson Planning Commission v.

Hamilton Bank, 473 U.S. 172, 194-195 (1985), or, as stated

in MacDonald, Sommer & Frates v. County of Yolo, 477 U.S.

340, 348 (1986), “a final and authoritative determination

of the type and intensity of development legally permit-

ted on the subject property.” The duration and extent of

the “taking” having been fixed by the judgment, Peti-

tioner then sought to determine “what, if any, compensa-

tion,” MacDonald, Sommer & Frates v. County of Yolo, 477

U.S. 340, 350 (1986), the City of Flint intended to provide.

His request for compensation was rejected outright by the

City, March 15, 1989, many months after termination of

the former suit. Only then did Petitioner have a ripened

federal cause of action for just compensation, First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 311 (1987), which claim he appro-

priately asserted in his complaint herein.

Petitioner did not, of course, allege a federal right to

compensation in his 1971 complaint or during the pen-

dency of the former action because he then had no justi-

ciable federal claim. However, expansively applied, res

judicata “cannot be given the effect of extinguishing

claims which did not even exist and which could not

possibly have been sued upon in the previous case.”

Lawlor v. National Screen Service Corporation, 349 U.S. 322,

328 (1955). “The new liability was not affected by what

had been adjudicated before.” Chapman v. Crane, 123 U.S

540, 548 (1887).

The challenged decision of the Michigan Court of

Appeals dismissing the present action makes no direct

mention of Petitioner’s federal claim under 42 U.S.C.

§1983. This represents a discriminatory refusal even to

consider Petitioner’s federal cause of action,' or a deter-

mination that it is barred by state-fashioned res judicata

doctrine. In either event, it invites this Court’s attention

for whatever “springes the State may set,” the assertion

of federal rights is “not to be defeated under the name of

local practice.” Staub v. City of Baxley, 355 U.S. 313, 318,

' The court’s reference (App. 13) to First English Evangelt

cal Lutheran Church of Glendale, 482 U.S. 304 (1987) plainly

confuses the issue of ripeness of a regulatory taking claim with

the period for which compensation for such a taking is permit-

ted. This case involves no physical intrusion by government.

10

319 (1958). The Michigan court implies that under state

law a claim — not yet justiciable under federal law — for

compensation for an unconstitutional taking should be

coupled in a single action to declare a zoning restriction

invalid, and that amendment of the original 1971 com-

plaint “should have been a viable means for plaintiff to

establish his claim for damages in that suit.” (App. 12).

This is disingenuous. Under Michigan practice such an

amendment would, at the least, have required special

leave of the trial court. It is questionable whether such

leave would have been granted after years of litigation of

the original complaint and its appellate scrutiny in 92

Mich. App. 495 (1979); 408 Mich. 905 (1980); 120 Mich.

App. 449 (1982); and 426 Mich. 295 (1986).

In Poirier v. Grand Blanc Township, 167 Mich. App. 770

(1988), cited by the court below, the parties and the court

apparently agreed without question that the complaint

could be amended before the cause was remanded for

trial; here it cannot be presumed that so obdurate a

municipality as Flint would have similarly acquiesced in

assertion of a new and distinct cause of action, See Corn v.

City of Lauderdale Lakes, 904 F.2d 585, 587 (11th Cir. 1990);

cf. Sea-Land Services v. Gaudet, 414 U.S. 573, 578 (1974). But

such an amendment, even if permitted, could not have

made Petitioner’s federal claim ripe or justiciable. If

asserted ina federal forum, it would have been dismissed

as premature. See, e.g., Hammond v. Baldwin, 866 F.2d 172,

178 (6th Cir. 1989); Landmark Land Company of Oklahoma v.

* Notably, the Poirier decision was not published until

after entry of the consent judgment on April 22, 1988 (App.

17-18) and thus had no precedential effect (MCR 7.215).

11

Buchanan, 874 F.2d 717, 719-720 (10th Cir. 1989); Estate of

Himelstein vs. City of Fort Wayne, Indiana, 898 F.2d 573, 576

(7th Cir. 1990). A federal court has no jurisdiction to hear

an unripe claim, Austin v. City and County of Honolulu, 840

F.2d 678, 682 (9th Cir. 1988); Eide v. Sarasota County, 895

F.2d 1326, 1328-1329 (11th Cir. 1990), and a state court is

plainly without power to confer federal jurisdiction or to

penalize a litigant for not acquiescing in such an

unauthorized attempt.

The federal claim for compensation was not pre-

sented in the former suit and could not have been pre-

sented; only after the original action was terminated

could a justiciable federal claim arise. There was, accord-

ingly, no “valid excuse” for the court below to reverse the

circuit court which had entertained this action under 42

U.S.C. §1983. Application of the state’s notion of res judi

cata to a nonjusticiable claim is as idiosyncratic and

unjustified as Florida’s effort to restrict the availability of

the same statute under its immunity doctrines, rejected in

Howlett v. Rose, 496 U.S. __ (1990); 110 L.Ed.2d 332

(1990). As the Court there emphasized (p. 350):

“An excuse that is inconsistent with or violates

federal law is not a valid excuse: the Supremacy

Clause forbids state courts to disassociate them-

selves from federal law because of disagreement

with its content or a refusal to recognize the

superior authority of its source.”

Even when the amount involved is minimal, this

Court will grant a petition for certiorari to redress a

substantial infringement of due process, Thompson v. City

of Louisville, 362 U.S. 199, 203 (1960). This Petitioner, with

a far larger investment in personal effort, anguish and

12

funds, has been denied all opportunity for redress of his

claim for fair compensation under federal law.

Today federal dockets are congested, not the least by

actions brought under 42 U.S.C. §1983. There is good

reason to encourage litigation of such claims in the courts

of the state. But litigants are entitled to assurance that

their federal rights will receive no less consideration in

the courts of the states than in a federal forum. Michigan

courts plainly had jurisdiction to consider Petitioner’s

federal claim and, accordingly, a duty to exercise it. Mon-

dou v. New York, New Haven & Hartford Railroad Co., 223

U.S. 1, 58 (1912). The court below either ignored the

federal claim or imposed a barrier to its exercise which

was unjustified. Petitioner, other victims of abusive zon-

ing and, indeed, litigants seeking vindication of other

federal claims in state courts, have a heavy stake in this

Court’s removal of such a barrier.

¢

RELIEF

For the foregoing reasons Petitioner prays that this

petition for writ of certiorari be granted. In view of the

Court’s recent restatement of controlling principles, sum-

mary remand to the Michigan Court of Appeals may be

appropriate. District Lodge 34 v. Cavett Co., 355 U.S. 39

(1957); DeVries v. Baumgartner’s Electric Construction Co.,

13

359 U.S. 498 (1959); Mason v. City of Biloxi, 385 U.S. 370

(1966).

Respectfully submitted,

Levin, Levin, Garvett

AND Dit, P.C

By: Erwin B. E.tMANN*

Jay W. Tower

Attorneys for Petitioner

3000 Town Center, Suite 1800

Southfield, MI 48075

313/352-8200

*Counsel of Record

DATED: February 10, 1992

App. 1

STATE OF MICHIGAN

SEVENTH JUDICIAL CIRCUIT COURT

(COUNTY OF GENESEE)

JOSEPH SCHWARTZ,

PLAINTIFF,

-VS-

THE CITY OF FLINT, A

MUNICIPAL CORPORATION,

DEFENDANT.

)

)

)

) FILE NUMBER:

) 89-104678-NZ

)

)

)

MOTION

BEFORE THE HONORABLE VALDEMAR L.

WASHINGTON, CIRCUIT JUDGE

FLINT, MICHIGAN - MONDAY, AUGUST 21, 1989

APPEARANCES:

FOR THE PLAINTIFF:

FOR THE DEFENDANT:

REPORTED BY:

MR. ERWIN B. ELLMANN

(P-13168) Attorney at Law.

MR. BARRY A. WOLF

(P-40709) Assistant City Attor-

ney.

Robert F. Gunterman, CSR

0198 Certified Shorthand

Reporter.

App. 2

THE COURT: The matter of Schwartz versus

the City of Flint, 89-104678-NZ.

Mr. Wolf and Mr. Tower. As I read the response filed

by the City of Flint, they’re saying that somehow Mr.

Schwartz was precluded from going forward with his

damages claim because when they were discussing the

resolution of the original litigation, there was never a

mention of going forward with the damages claim.

And | guess what I would ask [sic] counsel for the

City: If you’re saying there’s some sort of release docu-

ment or some sort of document that precludes Mr. Schwa-

rtz from proceeding, I’d like to see it. I didn’t see it in any

of your responsive pleadings. But if there’s no document

like that, I think you’re baving at the moon at this point.

MR. WOLF: Your Honor, there is no signed

release that, that this was a final, final agreement, other

than the judgment itself which says that it’s a final judg-

ment. There is no document that precludes damages. Our

position is that the issue of damages is barred either by

the doctrine of res judicata and then the Court Rules that

were cited.

THE COURT: Well, except I don’t see anything

in the judgment that says Mr. Schwartz is unable to have

- come back for damages. Am! missing that language? If

so, please point it out to me

MR. WOLF: No, there is nothing in the docu

ment that says that they’re precluded from coming back

for damages.

THE COURT: The Supreme Court says that if

the property’s taken, even if it’s a temporary take, people

App. 3

can proceed on a damages claim. How would that be

something that’s res judicata if the original judgment

didn’t speak to it?

MR. WOLF: Well, we don’t - at this point we're

not disputing whether - what the Supreme Court has said

in relation to damages for temporary taking. Our dispute

is when that claim should have been raised.

THE COURT: All right, but what I’m —- but you

acknowledge that there’s, one, no release that prevents

Mr. Schwartz from coming into court seeking the deter-

mination of damages; you acknowledge that.

MR. WOLF: There is no, there is no release on

that.

THE COURT: Secondly, there’s nothing in the

judgment that was entered in the other litigation, | guess

that’s 71-20222-CZ, that would — that spoke to the issue of

damages.

MR. WOLF: That’s correct.

THE COURT: But yet you say somehow he

ought to be barred from coming into court in this action

in his damages claim.

MR. WOLF: That’s correct, because our position

is that damages is an issue that, that could have and

should have been litigated with the issue of the taking.

THE COURT: All right. But you recognize that

only until such time as that there’s a determination on the

merits does res judicata come into play.

App. 4

MR. WOLF: And our position is that when we

look at the determination on the merits, it’s my under-

standing from the broad definition of res judicata that all

issues that could have been and should have been deter-

mined in the first litigation are precluded from being

raised in the second litigation, and you determine those

issues by whether the same facts and evidence would be

used to, to prove the second, the second issue, the dam-

age issue.

THE COURT: Well, how can that be true then if

you look at the fact that the Supreme Court only recently

came out with that decision to clarify it whether or not

you could have money damages even for a temporary

take?

MR. WOLF: Well, the issue of money damages

is — has been addressed by the United States Supreme

Court since 1981; first in dissent in SanDiego Gas &

Electric versus SanDiego, then again in the cases — two of

the cases cited by the Plaintiff in their responsive brief,

Williamson Planning Commission and then MacDonald,

Sommer & Frates, I believe.

And in those cases the issue of damages was raised at

the same time that the issue of declaratory judgment was

raised, and the reason that they found that the issue of

damages was premature was because there was not a

final determination of how the land could be used in

those cases.

THE COURT: I know, but I’m just saying this

issue wasn’t clarified on the state level. | mean, we’re

here in state court notwithstanding our wonderful

App. 5

Supreme Court, U.S. Supreme Court. That issue wasn’t

decided until some time recently, was it?

MR. WOLF: Number one, the Michigan

Supreme Court -

THE COURT: Yes or no?

MR. WOLF: I don’t believe that it’s been

decided by, by the Michigan Supreme Court at all.

THE COURT: Then maybe they'll have the

chance with this case.

MR. WOLF: Possibly.

THE COURT: Your motion is denied.

* * *

App. 6

STATE OF MICHIGAN

SEVENTH JUDICIAL CIRCUIT COURT

(COUNTY OF GENESEE)

JOSEPH SCHWARTZ,

sian. FILE NUMBER:

-VS- 89-104678-NZ

)

)

)

)

THE CITY OF FLINT, )

A MUNICIPAL ;

CORPORATION, :

)

DEFENDANT.

MOTION

BEFORE THE HONORABLE VALDEMAR L.

WASHINGTON, CIRCUIT JUDGE

FLINT, MICHIGAN - MONDAY, SEPTEMBER 11, 1989

APPEARANCES:

FOR THE DEFENDANT: MR. BARRY A. WOLF

(P-40709)

Assistant City Attorney.

REPORTED BY: Robert F. Gunterman, CSR

0198

Certified Shorthand

Reporter.

Flint, Michigan

Monday, September 11, 1989

THE COURT: The matter of Schwartz versus

the City of Flint, 89-104678-NZ.

Mr. Wolf, this is your motion for reconsideration of

the decision granted upon 8-21 relative to the damages

App. 7

claim of Plaintiff Schwartz. Since oral argument’s not

permitted, I’m not going to grant any.

I’ve reviewed the motion that was filed and I find

nothing in it that sets forth any grounds for changing the

decision that | rendered on the 21st, which was that you

admit that there is not order. The fact that there is a

proposed order that was bandied about during settlement

negotiations and was not signed doesn’t carry any weight

with me. It tells me only that someone didn’t do his or

her homework in terms of getting this included in the

final proposal.

Based upon that, there’s nothing to reconsider.

There’s no release; there’s no judgment that says it’s not

to be included or that it was wrapped up in the first

package. Therefore your motion for reconsideration is

denied.

MR. WOLF: Okay, thank you

App. 8

STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH SCHWARTZ, January 22, 1991

10:10 a.m.

Plaintiff-Appellee,

Vv No. 121219

CITY OF FLINT, FOR

PUBLICATION

Defendant-Appellant.

Before: Sullivan, P.J., and Maher and Griffin, JJ.

PER CURIAM.

Defendant appeals by leave granted, the denial of its

motion for summary disposition. Defendant argues that

plaintiff’s claim, seeking money damages for an uncon-

stitutional taking of his property, is barred by res judi-

cata. We agree and reverse.

This action represents a continuing legal saga that

began in 1971, when plaintiff, desiring to erect town-

houses and apartment buildings on his property, first

instituted suit claiming that defendant’s single family

residential zoning ordinance was unreasonable as applied

to his land. Plaintiff’s action was one for declaratory

relief, seeking to have the ordinance declared unconstitu-

tional. Although a consent judgment was agreed to in

1973, it was set aside after a group of neighboring prop-

erty Owners were permitted to intervene in the suit. The

case then proceeded to trial, resulting in a verdict in favor

of defendant. This Court reversed, however, holding that

defendant’s zoning ordinance was unreasonable as

eee

App. 9

: applied to plaintiff's property, and therefore, constituted

a “taking [of] property without just compensation, con-

trary to the Federal and State Constitutions.”! Schwartz v.

City of Flint, 92 Mich App 495, 503; 285 NW2d 344 (1979).

This Court then remanded to the circuit court for the

determination of an appropriate use pursuant to the pro-

cedures set forth in Zaagman, Inc v. Kentwood, 406 Mich

137; 277 NW2d 475 (1979).

On remand, the circuit court did not accept either

party’s proposed use, but instead, adopted its own “mid-

satisfactory” use. Plaintiff appealed once again and this

Court, although modifying the circuit court order in part,

affirmed in all other respects. Schwartz v. City of Flint,

(After Remand), 120 Mich App 449; 329 NW2d 26 (1982).

Plaintiff then appealed to our Supreme Court, which

proceeded to overrule Zaagman, finding it to be an

improper usurpation by the judiciary of a legislative

function. Schwartz v. City of Flint, 426 Mich 295, 305; 395

NW2d 678 (1986). Adopting the “Illinois approach,” the

Court held that where a zoning ordinance is found to be

unconstitutional as applied to a plaintiff's property, the

plaintiff's proposed use of the property is to be permitted

provided that use is reasonable. Id., pp 325-330. The

Court then remanded the case to the trial court for a

determination on the question of reasonable use. Id., p

330.

Following the remand, the parties entered extended

negotiations to settle the case and on February 8, 1988,

the City of Flint adopted a resolution agreeing to a speci-

fic use of the property. On April 22, 1988, the circuit court

App. 10

then entered a “Final Judgment” providing for-the devel-

opment of the subject property in accordance with an

agreed upon plan of use. The judgment indicated that the

use was “fair and reasonable and in the best interests of

the parties hereto, thereby settling this action.”

Although seemingly put to rest, the matter was resur-

rected almost one year later when, in a letter dated March

3, 1989, plaintiff demanded compensation in excess of

$7,000,000 for the previous unconstitutional taking of his

property. Pursuant to a letter dated March 15, 1989,

defendant rejected this demand, asserting that it consid-

ered the matter fully litigated and the issue of damages to

be moot. As a result, plaintiff commenced the instant

action on June 27, 1989, demanding, in addition to com-

pensation for the unconstitutional taking, treble damages

pursuant to MCL 600.2907; MSA 27A.2907, alleging that

the maintenance of the unconstitutional zoning ordinance

“for more than two decades resulted in the malicious

vexation of plaintiff.” Defendant moved for summary

disposition, asserting that plaintiff's action was barred by

res judicata, citing MCR 2.116(C)(7) and (8), and MCR

2.203(A)(2). The trial court, reasoning that there was no

signed release explicitly barring plaintiff from suing for

money damages, denied the motion. Defendant’s motion

for rehearing was also denied. Defendant then applied

for leave to appeal, which we granted.

We hold that plaintiff's claim for money damages is

barred by res judicata, and accordingly, reverse the trial

court’s order denying defendant’s motion for summary

disposition.

App. 11

The doctrine of res judicata is a manifestation of the

recognition that interminable litigation leads to vexation,

confusion and chaos for the litigants, resulting in the

inefficient use of judicial time. Rogers v. Colonial Federal

Savings & Loan Ass’n of Grosse Pointe Woods, 405 Mich 607,

615; 275 NW2d 499 (1979); Sherrell v. Bugaski, 169 Mich

App 10, 12; 425 NW2d 707 (1988). The Michigan Supreme

Court has adopted the “broad” application of the res

judicata doctrine, barring both claims actually litigated in

the prior action and those claims arising out of the same

transaction which plaintiffs could have brought, but did

not. Gose v. Monroe Auto Equipment Co. 409 Mich 147, 160;

294 NW2d 165 (1980); Vutci v. Indianapolis Life Ins Co., 157

Mich App 429, 436; 403 NW2d 157 (1986). Res judicata

applies to default judgments and consent judgments as

well as to judgments derived from contested trials. In re

Cook Estate, 155 Mich App 604, 609; 400 NW2d 695 (1986).

The test as to whether two claims arise out of the same

transaction and are identical for res judicata purposes, is

whether the same facts or evidence are essential to the

maintenance of the two actions. Mazzola v. Vineyard

Homes, Inc., 54 Mich App 608, 613-614; 221 NW2d 406

(1974); Vutci, supra, p 436.

It is clear to us that plaintiff's present claim arises out

of the same transaction involved in the prior suit (i.e. an

unconstitutional taking of plaintiff's property through

application of defendant’s zoning ordinance) and that a

claim for money damages properly belonged in that suit.

Plaintiff argues, however, that he could not have

brought a claim for money damages in the first suit

because such a remedy had not been expressly recog-

nized at the time that suit was initially filed. We disagree.

App. 12

It was not until the United States Supreme Court

decided First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, 482 US 304; 107 S Ct 2738; 96

L Ed 2d 250 (1987), that it was first recognized that an

award of damages was available as a remedy, pursuant to

the just compensation clause of the Fifth Amendment,

where a governmental land-use regulation has effected a

temporary unconstitutional taking of property. Shortly

thereafter, this Court applied the rationale of First

English, and decided in Poirier v. Grand Blanc Twp, 167

Mich App 770, 777; 423 NW2d 351 (1988), lv den 431 Mich

913 (1988), that such a remedy was also available under

the Michigan Constitution. Plaintiff’s prior suit was still

pending at the time each of these cases were decided.

Thus, at the very least, plaintiff was clearly apprised of

the possibility of claiming damages before termination of

his prior suit. Amending his complaint to include a claim

for money damages would have been a viable means for

plaintiff to establish his claim for damages in that suit.

Indeed, this is exactly what the plaintiff in Poirier did.

Moreover, the mere fact that the availability of dam-

ages had not ben formally recognized in a judicial deci-

sion, as of the commencement of the prior suit, did not

mean that plaintiff was precluded from asserting such a

claim himself. This, after all, was not a situation where

settled law had expressly rejected such a remedy. Indeed,

the idea of awarding damages, and the possibility of

plaintiff asserting such a claim, was discussed in our

Supreme Court’s decision in the prior lawsuit. See Schwa-

rtz, 426 Mich 315-316. The Court found the concept to be

an “intriguing one,” but declined to consider the issue,

App. 13

noting that plaintiff had not asked for that type of relief.

Id.

Plaintiff further argues that he could not have sought

damages in the first suit, as he contends that such a claim

does not accrue until a municipality has both terminated

its unlawful taking and then refuses to pay. Accordingly,

it is plaintiff’s contention that his claim did not accrue

until March 15, 1989, when defendant formally rejected

his request for compensation. We disagree.

The Supreme Court made clear in First English that

damages for the value of the use of land are not limited to

the period subsequent to a judicial determination that a

taking has occurred, but instead, must be calculated as of

the time of taking. First English, 482 US at 306-307,

319-320. In doing so, the Supreme Court rejected the

notion that a compensable taking does not occur until a

challenged ordinance has been ultimately held invalid. /d.

at 320. Moreover, plaintiff's argument ignores the fact

that the plaintiffs in First English and Poirier, supra, both

pursued their damage claims in the same suit in which an

unconstitutional taking was alleged, not to mention our

own Supreme Court’s seeming acknowledgment of the

possibility of pursuing damages in Schwartz, supra, 426

Mich at 315.

Accordingly, we reject plaintiff's arguments that he

could not have brought a claim for money damages in the

first lawsuit.

As previously noted, plaintiff's present claim for

money damages arises out of the same transaction

involved in the prior suit. While the issue of damages

was not specifically raised in the former suit, we find, for

the reasons discussed above, that it clearly could have

been. Poirier, supra. Accordingly, we conclude that plain

tiff, having obtained a final judgment in the prior suit, is

now barred by the doctrine or res judicata from presently

pursuing his claim for money damages. Thus, we find

that defendant’s motion for summary disposition should

have been granted.

Reversed.

/s/ Joseph B. Sullivan

/s/ Richard M. Maher

/s/ Richard Allen Griffin

! See US Const, Am V; Const 1963, art 10, § 2?

App. 15

ORDER Michigan Supreme Court

Entered: October 11, 1991 Lansing, Michigan

Michael F. Cavanaugh

Chief Justice

Charles L. Levin

James H. Brickley

Patricia J. Boyle

Dorothy Comstock Riley

Robert P. Griffin

Conrad L. Mallett, Jr.

Associate Judges

90898

JOSEPH SCHWARTZ.

Plaintiff-Appellant,

SC: 90898

Z COA: 121219

CITY OF FLINT, LC: 89-104678-NZ

Defendant-Appellee.

On order of the Court, the application for leave to

appeal is considered, and it is DENIED, because we are

not persuaded that the questions presented should be

reviewed by this Court.

Levin, J., would grant leave to appeal.

70926

(seal) I, CORBIN R. DAVIS, Clerk of the Michigan

Supreme Court, certify that the foregoing is a true

and complete copy of the order entered at the

direction of Court.

October 11, 1991 /s/ Jacqueline B. MacKinnon

Deputy Clerk

App. 16

ORDER Michigan Supreme Court

Entered: December 20, 1991 Lansing, Michigan

Michael F. Cavanaugh

Chief Justice

Charles L. Levin

James H. Brickley

Patricia J. Boyle

Dorothy Comstock Riley

Robert P. Griffin

Conrad L. Mallett, Jr.

Associate Judges

90898(36)

JOSEPH SCHWARTZ.

Plaintiff-Appellant,

_. 90898

Vv COA: 121219

toe ee PUNT. LC: 89-104678-NZ

Defendant-Appellee.

On order of the Court, the motion for reconsideration

of this Court’s order of October 11, 1991 is considered,

and it is DENIED, because it does not appear that the

order was entered erroneously.

Levin, J.. would grant reconsideration and on recon-

sideration would grant leave to appeal.

91217

(seal) I, CORBIN R. DAVIS, Clerk of the Michigan

Supreme Court, certify that the foregoing is a true

and complete copy of the order entered at the

direction of Court.

December 20, 1991 /s/ Jacqueline B. MacKinnon

Deputy Clerk

App. 17

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE

COUNTY OF GENESEE

JOSEPH SCHWARTZ and CASE NO:

LILLIAN SCHWARTZ, 71-20222-CZ

Plaintiffs, JUDGE

on VALDEMAR L.

WASHINGTON

THE CITY OF FLINT,

Defendant. FINAL

y JUDGMENT

ERWIN B. ELLMANN (P13168)

JAY W. TOWER (P27996)

Levin, Levin, Garvett and Dill

Attorneys for Plaintiff ;

3000 Town Center, Suite 1800 Clerk

Southfield, MI 48075

(313) 352-8200

S. OLOF KARLSTROM (P15718)

TIMOTHY G. BOGRAKOS (P25774)

MICHAEL T. JOLIAT (P32086)

Attorneys for Defendant

aon /

At a session of said Court held in the Court-

house, City of Flint, County of Genesee, State of

Michigan, this 22nd day of April, A.D., 1988.

PRESENT: HONORABLE VALDEMAR L. WASHING-

TON, Circuit Judge

A TRUE COPY

John H. Trecha,

The Supreme Court reversed and remanded this

cause to the Court to “allow for a determination of rea-

sonableness” of Plaintiff's proposed use of his property.

App. 18

These parties have since engaged in negotiations and

have stipulated and agreed that the plan of use of the

property indicated in the annexed exhibit, which is herein

incorporated by reference, is fair and reasonable and in

the best interests of the parties hereto, thereby settling

this action.

IT IS THEREFORE ORDERED, that Plaintiff, his

heirs, successors and assigns shall be free to develop and

utilize said property in accord with the annexed plan of

use, notwithstanding the zoning classification currently

set forth in the ordinance, but consistent with other

municipal land use regulations.

IT IS FURTHER ORDERED that no costs or fees be

awarded either party, a public question at issue having

been settled.

VALDEMAR L. WASHINGTON

P-27165

HONORABLE VALDEMAR L.

WASHINGTON

Circuit Judge

Approved as to form and substance:

/s/ Erwin B. Ellmann

Erwin B. Ellmann (P13168)

Attorney for Plaintiff

ALLOWED BY

CITY COUNCIL RESOLUTION

of February 8, 1988

OPPOSITION

BRIEF

$49 74) 210C

No. 91-1358 Mirus CV 1922

SS ETE

a

In The

Supreme Court of the United States

October Term, 1991

JOSEPH SCHWARTZ,

Petitioner

CITY OF FLINT,

Respondent

Petition For Writ Of Certiorari

To The Michigan Court Of Appeals

—— oa a

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

Loyst Fietcier, Jr. (P-29799)

By: Barry A. Wor (P 40709)

Attorneys for Respondent

718 Beach Street

Flint, MI 48502

(313) 238-4410

COCKLE LAW BRIEF PRINTING CO, (so

OR CA COLLE« 4012 5a

i

QUESTION PRESENTED

IS PETITIONER PRECLUDED FROM PROSECUTING A

42 U.S.C. §1983 CLAIM FOR DAMAGES DUE TO AN

UNCONSTITUTIONAL TAKING OF PROPERTY WHEN

IT FAILED TO SEEK JUST COMPENSATION THROUGH

THE APPROVED STATE PROCEDURE OF INVERSE

CONDEMNATION?

TABLE OF CONTENTS

Question Presented

lable Of Authorities

Statement Of The Case

Reasons For Denying The Writ

Reliet

TABLE OF AUTHORITIES

CITATIONS

Christy v Servitto, 699 F.Supp. 618, 654 (E.D. Mich.

1988), affirmed, 932 F.2d 502 (6th Cir. 1991)

Electro-Tech v Campbell Co., 433 Mich. 57, 81. 445

N.W.2d 61 (1989)... «|

Executive Act Studio v Charter Town hip of

Kalamazoo, 674 F.Supp. 1288, 1293 (WJ) Mich

) ara ef

Four Seasons Apartment v City of Mayfield Heights,

775 F.2d 150, 151-152 (6th Cir. 1985)

G.M. Engineers and Associates v West Bloomfield

Township, 922 F.2d 328 (6th Cir. 1990)

MacDonald, Sommer & Frates v County of Yolo. et al

77 U.S. 340, 348, 91 L.Fd.2d 285, 294, 106 S. Ct

2561 (1986)

Schwartz 7 City of Flint, 426 Mic h. 295, 395 N.W2d

678 (1986) .

Schwartz v City of Flint. 187 Mich App. 191, 466

N.W.2d 357, 359 (1991)

Williamson Planning Commission v Hamilton Bank,

473 US 172, 87 L.Ed 2d 126, 105 S.Ct. 3108

>

a 4,

,

Page

|

5. 6

7

7

7

ie

6, 7

yf

STATEMENT OF THE CASE

Pursuant to Rule 24.2 of the Rules Of The Supreme

Court of the United States, it is necessary for Respondent

to correct misstatements contained within and omissions

from Petitioner’s Statement Of The Case.

It its Statements Of The Case, Petitioner stated that

“liln negotiating the judgment, Petitioner had expressly

‘reserved’ the right to file a subsequent claim for compen-

sation (Affidavit of Jay Tower, §3).” (Pet. Br., p. 5). Peti-

tioner failed to inform this Court that each person listed

in Jay Tower’s Affidavit denied the substance of his claim

by way of their own Affidavit. A copy of each Affidavit

was provided to the Trial Court, the Michigan Court of

Appeals and the Michigan Supreme Court.

Petitioner also failed to inform this Court that in its

Brief In Opposition To Respondent’s Application For

Leave To Appeal to the Michigan Court Of Appeals that it

Stated that Petitioner deliberately refrained from raising

the issue of damages for fear that it would extend litiga-

tion in the original 1971 lawsuit.

Petitioner also failed to inform this Court that the

Michigan Supreme Court in the predecessor to this case,

being Schwartz v City Of Flint, 426 Mich. 295, 395 N.W.2d

678 (1986) addressed the issue of damages for an uncon-

stitutional taking of property. In that case, the Michigan

Supreme Court stated that “[p]laintiffs have not asked for

that type of relief; nor would it be an appropriate way to

terminate this particular litigation, given its history.” Id.

at 315, 316.

Further, Petitioner failed to inform this Court that the

documents generated during settlement negotiations of

the predecessor case clearly showed that the Petitioner

intended to completely settle that case.

Petitioner also misstated or misrepresented Respon-

dent’s statement to the Trial Court regarding the ripeness

of Petitioner’s claim. In its Statement Of The Case, Peti-

tioner stated that “[c]ounsel for the City himself acknowl-

edged that under decisions of this Court, Petitioner had

no federal cause of action for compensation while ‘there

was not a final determination of how the land could be

used’.” (Pet. Br, p. 5).

Counsel for the City never suggested that there had

not been a final determination regarding the use to which

Petitioner could put his land. Further, counsel for the

City never suggested that Petitioner’s federal cause of

action was not ripe.

REASONS FOR DENYING WRIT

In reversing the Triai Court and granting Defendant/

Respondent’s Motion For Summary Disposition the Court

Of Appeals held “that Plaintiff's claim for money dam

ages is barred by res judicata " Schwartz v City Of

Flint, 187 Mich. App. 191, 466 N.W.2d 357, 359 (1991). The

Court went on to state that

“It is clear to us that Plaintiff's present claim

arises out of the same transaction involved in

the prior suit (i.e. an unconstitutional taking of

Plaintiff’s property through application of

Defendant’s zoning ordinance) and that a claim

for money damages properly belonged in that

suit.” 466 N.W.2d at 360

Petitioner seeks to have that decision overturned by

claiming that the Michigan Court Of Appeais used a state

procedural tool, res judicata, to preclude him from assert

ing his federal cause of action.

Through his Motion For Reconsideration to the Mich-

igan Supreme Court and his Petition For Writ Of Cer-

tiorari to this Court, Petitioner has apparently conceded

that his state claims are barred by res judicata. Therefore,

the only issue that remains is whether or not the state

court erred in precluding Petitioner from proceeding on

his 42 U.S.C. §1983 claim. For the reasons set forth herein

Respondent believes that Petitioner’s Petition For Writ Of

Certiorari should be denied.

The question before this Court is whether a party

who fails to utilize an approved state procedure to obtain

just compensation due to a temporary taking of property,

and who is now barred by res judicata from utilizing that

procedure, may prosecute a 42 U.S.C. §1983 claim for an

unconstitutional taking of property

£

This Court in Williamson Planning Commission v Ham

ilton Bank, 473 U.S. 172, 87 L.Ed.2d 126, 105 S.Ct. 3108

held that before a claim under 42 U.S.C. §1983 may be

raised, there must first be a final determination by the

governmental entity charged with implementing land use

regulations as to the degree and intensity to which prop

erty may be utilized. The Court further held that “if a

State provides an adequate procedure for seeking just

compensation, the property owner cannot claim a viola

tion of the Just Cx. mpensation Clause until it has used the

procedure and been denied just compensation.” Id at 195,

87 L.Ed.2d at 144.

Throughout these proceedings, Petitioner has erro-

neously stated that the “final decision regarding the

application of the regulation to the property”, Williamson

Planning Commission v Hamilton Bank, 473 U.S. 172, 198, 87

L.Ed.2d 126, 139, did not occur until after the judgment

was entered on April 28, 1988.” (Pet. Br., p. 8). This is

contrary to the Court’s holding in Williamson Planning

Commission, supra, which stated that:

“a claim that the application of government reg-

ulations effects a taking of a property interest is

not ripe until the government entity charged

with implementing the regulations has reached

a final decision regarding the application of the

regulations to the property at issue.” 473 U.S. at

186, 87 L.Ed.2d at 139.

In addressing the issue of when the “final decision”

occurs the Court in Williamson Planning Commission,

supra, held that “the finality requirement is concerned

with whether the initial decision maker has arrived at a

definitive position on the issue that inflicts an actual

concrete injury...” 473 U.S. at 193, 87 L.Ed.2d at 143.

In interpreting the finality requirement the Michigan

Supreme Court in Electro-Tech v Campbell Co., 433 Mich.

57, 81, 445 N.W.2d 61 (1989), held that “[a]ccording to

Williamson, requiring a final decision from the appropri-

ate administrative body prior to initiating a §1983 action

‘is compelled by the very nature of the inquiry required

by the Just Compensation Clause.’ ” quoiing Williamson

Planning Commission v Hamilton Bank, 473 U.S. 172, 190, 87

L.Ed.2d 126, 105 S. Ct. 3108. =

In the case at bar the “final and authoritative deter-

mination of the type and intensity of development legally

permitted on the subject property”, MacDonald, Sommer &

Frates v County Of Yolo, et al, 477 U.S. 340, 348, 91 L.Ed.2d

285, 294, 106 S. Ct. 2561 (1986), had been made in 1971 by

the Flint City Council. It was, at that time, that the City

Council rejected Petitioner’s request for a zoning change

and definitively stated to what degree and intensity that

Petitioner could use his property. It was also, at that

point, that “the initial decision maker ha[d] arrived at

[its] definitive position on the issue that inflict[ed] an

actual concrete injury ...” Williamson Planning Commis-

sion v Hamilton Bank, 473 U.S. at 193, 87 L.Ed.2d at 143, on

Petitioner. Therefore, the first finality requirement as set

forth by the court in Williamson was met in 1971.

“The Williamson Court set forth the finality require-

ments which must be satisfied before a Plaintiff may

bring an action under §1983 for damages resulting from

an unconstitutional regulatory taking.” Electro-Tech v

Campbell Co., 433 Mich. 57, 81, 445 N.W.2d 61 (1989). In

addition to there being a final determination as to the

degree and intensity to which Plaintiff's property may be

used, Plaintiff must also “seek compensation through the

procedures the state has provided .. . ”. Williamson Plan-

ning Commission v Hamilton Bank, 473 U.S. at 194, 87

L.Ed.2d at 143.

In its Petition For Writ Of Certiorari, Petitioner stated

that it:

“sought to determine ‘what if any. « ympensa-

tion,’ MacDonald, Somomnert? brates > County OF

Yolo, 477 U.S. 340, 350 (1984 he City Of Flint

~

intended to provide. His request for compensa-

tion was rejected outright by the City, March 15,

1989, many months after termination of the for-

mer suit. Only then did Petitioner have a rip-

ened federal cause of action for just

compensation.” (Pet. Br., pp. 8, 9).

Petitioner’s claim that its request for compensation

satisfied the second finality requirement of Williamson,

supra, is completely erroneous. The Court in Williamson,

supra, held that:

“if a state provides an adequate procedure for

seeking just compensation, the property owner

cannot claim a violation of the Just Compensa-

tion Clause, until it has used the procedure and

has been denied just compensation.” Williamson

Planning Commission v Hamilton Bank, 473 US. at

195, 87 L.Ed.2d at 144.

In Williamson, supra, the State Of Tennessee permitted

an aggrieved property owner to seek just compensation

through a state inverse condemnation action. In Michigan

the Court in Electro-Tech v Campbell Company, 433 Mich.

57, 61, 445 N.W.2d 61 (1989), held that:

“before proceeding under 42 USC $1983, a

property Owner must first obtain a final decision

from the particular governmental entity that is

alleged to have unconstitutionally taken his

property and also attempt to obtain just com-

pensation through inverse condemnation.”

In the case at bar, Petitioner never sought to recover

compensation through an inverse condemnation action

Petitioner’s failure to seek recovery through this ade-

quate state procedure precludes him from proceeding on

his §1983 claim. “Because [Petitioner] makes ‘no claim

that the State Of [Michigan] does not have an adequate

inverse condemnation law permitting citizens to recover

just compensation tor governmental takings’, [Petitioner]

failed to state a claim under the Just Compensation

Clause.” G.M. Engineers and Associates v West Bloomfield

Township, 922 F.2d 328 (6th Cir. 1990) quoting Four Seasons

Apartment v City Of Mayfield Heights, 775 F.2d 150, 151-152

(6th Cir. 1985)

i

The Courts have further held that the “[e]xhaustion

of state law remedies is a prerequisite to maintaining a

[aking Clause Claim in Federal Court.” Executive Act

Studio v Charter Township Of Kalamazoo, 674 F.Supp. 1288,

1293 (W.D. Mich 1987) citing Williamson Planning Commis

ston v Hamilton Bank, supra. Petitioner’s “failure to seek

compensation through available state procedures is

fatal to [his} claim.” Christy v Servitto, 699 F.Supp. 618,

654 (E.D. Mich. 1988), affirmed, 932 F2d 502 (6th Cir

1991)

In this case Petitioner failed to seek compensation

through the available state procedure of inverse condem

nation. A state claim for inverse condemnation was a

recognized remedy available to Petitioner throughout his

Original litigation in this matter. In fact, the Michigan

Supreme Court in the predecessor to this case specifically

mentioned the use of inverse condemnation and an

award of money damages for a temporary taking. See

Schwartz v City Of Flint, 426 Mich. 295, 315, 316, 317, 395

N.W.2d 678, 686 (1986), n. 15

Petitioner could have and should have raised a claim

for inverse condemnation in his original litigation. Peti

tioner failed to assert his inverse condemnation claim and

is now bared from doing so due to res judicata. Peti-

tioner’s failure to seek compensation through an inverse

condemnation action is fatal to his §1983 claim. Christy v

Servitto, 699 F.Supp. 618, 654 (E.D. Mich. 1988), affirmed,

932 F.2d 502 (6th Cir. 1991). Therefore, the Michigan

Court Of Appeals did not err in dismissing Petitioner’s

§1983 claim.

RELIEF

Respondent prays that this Honorable United States

Supreme Court will deny Petitioner’s Petition For Writ Of

Certiorari.

Respectfully submitted,

DATED: 3-9-92 Loyst FLetcHer, Jr. (P-29799)

BY: Barry A. Wo rr (P-40709)

Attorneys for Respondent

718 Beach Street

Flint, MI 48502

(313) 238-4410

PREPARED BY:

Loyst FLETCHER, Jr.

Attorneys at Law

718 Beach Street

Flint, MI 48502

(313) 238-4410