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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 961

## Text

> 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0233%3A1. Public record. Not legal advice.