Petition for Writ of Certiorari — Guetersloh v. Texas

94 398 SEP -1 199%

No. _ OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

M. F. GUETERSLOH, JR.,

Petitioner

V.

THE STATE OF TEXAS; THE PUBLIC UTILITY

COMMISSION; PAUL MEEK, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE

PUBLIC UTILITY COMMISSION; THE TEXAS WATER

COMMISSION; JOHN HALL, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE

TEXAS WATER COMMISSION; DAN MORALES,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY

AS THE ATTORNEY GENERAL OF TEXAS; NORMA K.

SCOGIN AND KAREN PETTIGREW, INDIVIDUALLY

AND IN THEIR OFFICIAL CAPACITIES AS

ASSISTANT ATTORNEYS GENERAL OF TEXAS; AND

JAMES MILLER,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARILYN ELIZABETH PHELAN

4018 75th Street

Lubbock, Texas 79423

Telephone (806) 894-5178

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Is the Eleventh Amendment a

procedural bar to a takings claim under

the Fifth and Fourteenth Amendment to the

U. S. Constitution, in an inverse

condemnation suit against a State and its

officials?

LIST OF PARTIES TO THE PROCEEDINGS IN THE

COURT BELOW

The caption of the case in this Court

contains the names of all parties to the

proceedings in the United States Court of

Appeals for the Fifth Circuit.

ii

TABLE OF CONTENTS

Question Presented for

SE er ae ee ae, ee

List of Parties to the

Proceedings in the Court

Below

Table of Contents

Table of Authorities

Opinions Below .....

Statement of Jurisdiction

Constitutional Provisions

Twa... ys 6 ace

Statement of Case

The Rulings Below

Reasons for Granting Writ

Conclusion

Appendix

A. Opinion of U.S.

District Court

B. Order of U.S. Court of

Appeals for the Fifth

Clee Co oc «wie te)

C. Unpublished Opinion of

the Sixth Circuit in Wilson

v. Tennessee .

iii

Page

XXTI

XXVIT

TABLE OF AUTHORITIES

Page

CASES

Armstrong v. United States,

rp SN PR ee ea eee es er ee

Atascadero State Hosp... v.

Seppe, @¢2 Ucee. a08. 44905) .- « « 33

Bentley v. Ellam, 764 F.

Suppe..322 (M.D.Pa. i991)... --.-+-e- Mil

Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S.

CP et or Gre ae he a re

Chicago, Burlington and Quincy

Railroad v. City of Chicago,

Te eee ta ces te

Dolan v. City of Tigard, 129

L.Ed.2d 304, 114 S. Ct. 2309

[eee ea Se ee eS ee ek ll tl lCUME

Estate of Scott v. Victoria

County, 778 S.W.2d 585 (Tex.

App.--Corpus Christi 1989) ..... 22

Ex Parte Virginia, 10 S. Ct.

339 (1879) 24

First English Evan. Lutheran 16,313,323;

Angeles, 482 U.S. 304 (1987) . 28,29,34

Fitzpatrick v. Bitzer, 427

13¢ pty Bs) a) > eee er ee eee S|

Church v. County of Los 13,14,15,

:

:

iv

Page

Hans v. Louisiana, 134 U.S.

SC I a a a on a ee gp we | RR SS

Jacobs v. United atakes, 290

io ee oe kk De ‘ ee le 28

Lucas v. South Carolina

Coastal Council, 120 L.Ed.

an 2; Lhe oe CO. 20866

(cee os we eS wie se eee ts) 14, 29, 8C

MacDonald, Sommer, and Frates

¥. Yolo Cs., 477 U.S. 340

Ee ee eg cg me pe sera §

Papasan v. Allain, 478 U.S.

ae a gg ee a Ge le 16

Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89

i a ee aS, 2S,

Pennel v. City of San Jose, 485

ae Ce Ue Ok sk a eee ee ek OR

Port Authority Trans-Hudson

Corp. Vv. Feeiey, 495 U.S. 299

(ieee 6 6s er ie ig ig ig 33

Steele v. City of Houston, 603

Re ee |

U.S. v. Causby, 328 U.S. 256

(1946) . e * . ° . . * * . . . o 2 . 1l

Williamson Co. Regional

Planning v. Hamilton Bank,

Sin Gime Ste Ceeee) « «+ e ew el lt CS, 29, 3S

Page

Wilson v. Tennessee,

unpublished opinion (6th Cir.

1982) (Opinion included in

RRC GAG SO oe eae re SEAT, 26

CONSTITUTIONAL PROVISIONS

2,5,7,8,10,13,14,15

U. S. Constitution, 16,17,18,20,21,22

Fifth Amendment .. 23,24,25,27,30,34,36

U. S. Constitution, 2,5,7,13,16,17,21

Fourteenth Amendment. . 24,27,28,31,35

4;6;,7,8,9,12,16,147

U. S. Constitution, 18,19,20,25,26,30

Eleventh Amendment... 31,32,33,34,36

STATUTES

17 U.S.C. §§50l1(a) and 511 ... . 31,32

vi

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

M. F. GUETERSLOH, the petitioner

herein, respectfully prays that a writ of

certiorari issue to review the judgment of

the United States Court of Appeals for the

Fifth Circuit, entered in the above-

entitled case on June 3, 1994.

OPINIONS LOW

The June 3, 1994 opinion of the Court

of Appeals, whose judgment is herein

sought to be reviewed, is unpublished, and

is reprinted in the separate Appendix tn

this Petition. The prior opinion of the

United States District Court for the

Western District of Texas, Austin

Division, entered September 17, 1993, is

unpublished, and is reprinted in the

separate Appendix to this Petition.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals

was entered on June 3, 1994. The

1

jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eleventh Amendment bars suits

against a state that seek to impose a

liability which must be paid from public

funds. The question presented in this

case is whether it is also a procedural

bar for deprivation of property without

just compensation under the Fifth

Amendment as applied to the states through

the Fourteenth Amendment. The specific

question addressed to this Court is

whether the Eleventh Amendment can bar

actions against a State for a State's

taking of its citizen's property when the

Fifth and the Fourteenth Amendments to the

U. S. Constitution mandate that the State

pay for such takings.

STATEMENT OF THE CASE

This is an inverse condemnation claim

brought pursuant to the Fifth and

Fourteenth Amendments to the United States

Constitution. In a prior state-court

2

proceeding, petitioner, as plaintiff, sued

the State of Texas and various of its

agencies and representatives, for payment

of just compensation pursuant to the

requirements of Article 1, Section 17 of

the Texas Constitution.

The State of Texas, through various

of its agencies, placed a private water

system, which was the security for

petitioner's purchase money deed of trust

note, in receivership for a period of over

five years. During the receivership, the

State of Texas paid nothing of

petitioner's note. After petitioner sued

for foreclosure and regained title to the

water system, the State of Texas refused

to relinquish possession of the water

system to him. The State of Texas,

through its agencies, retained the system

in receivership to provide water to

citizens of a subdivision of Lubbock

County, Texas, until the City of Lubbock

could complete its water system to service

that area. Only after the City of Lubbock

3

ve

completed its system, did the State of

Texas, through its agencies, return

possession of the water system to

petitioner. At that time, however, the

System was worthless as all former

customers had become customers of the City

of Lubbock. Throughout the period of the

receivership, a period of over five years,

nothing was paid to petitioner for the use

of his system.

Despite having physically occupied

petitioner's property and totally

destroying the underlying value of a

validly perfected security interest in the

System, the State asserted that petitioner

was due nothing for the state's prolonged,

exclusive, and uncompensated use of his

privately owned water system. When

petitioner sought compensation in an

inverse condemnation suit filed in the

state district court in Texas, the state

district court granted the state's motion

for summary judgment. The decision of the

state trial court was affirmed by the

+

state court of appeals; the Texas Supreme

Court subsequently denied petitioner's

application for a writ of error.

Petitioner did not assert a claim

under the Fifth Amendment because, as this

Court has held, claims for "just

compensation" premised under the Fifth and

Fourteenth Amendments of the United States

Constitution are not ripe for review until

@ property owner has unsuccessfully sought

compensation from the State. Williamson

County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 194 (1985).

Under federal law, takings claims are

Supplemental to state proceedings, and are

therefore premature until state

compensation procedures have been

unsuccessfully pursued. See also

MacDonald, Sommer, and Frates v. Yolo Co.,

477 U.S. 340, 349 (1986).

Within three months after finally,

but unsuccessfully, exhausting his state

compensation remedies, petitioner filed

the present action in the U. S. District

5

Court for the Western District of Texas.

In that action he asserted that the

state's failure to pay him just

compensation for its taking of his

property and the state courts' refusal to

hear his claim violated his federal

constitutional right to just compensation.

THE RULINGS BELOW

After hearing, the U.S. District

Court for the Western District ruled that

the petitioner take nothing. The District

Court found that despite uncontroverted

evidence of physical appropriation by the

State, no “taking” occurred, the property

at issue had no value, and the claim was

barred by the Eleventh Amendment, the

statute of limitations, and the doctrine

of res judicata. Civil rights violations

asserted against various state officials

were similarly dismissed.

Petitioner appealed the decision of

the U.S. District Court to the Court of

Appeals for the Fifth Circuit. The Court

of Appeals modified the judgment of the

6

U.S. District Court, ruling that the suit

should have been dismissed for want of

jurisdiction under the Eleventh Amendment.

As modified, the judgment of the U.S.

District Court was affirmed.

Petitioner applies for writ of

certiorari praying that this Court will

review the judgment of the Court of

Appeals for the Fifth Circuit.

REASONS FOR GRANTING THE WRIT

The Fifth Circuit has ruled, in an

unpublished opinion, that the Eleventh

Amendment is a bar to a citizen's takings

Claim against a State under the Fifth and

Fourteenth Amendments to the U.S.

Constitution. The Sixth Circuit, on the

other hand, ruled, in 1982 in Wilson v.

Tennessee, also in an unpublished opinion,

that the Eleventh Amendment is not a bar

to an action for deprivation of property

without just compensation under the Fifth

Amendment and Fourteenth Amendments.

Thus, the circuits, albeit in unpublished

Opinions, are in conflict over the

.

oe ane. se

question of whether the Eleventh Amendment

effectively insulates a state from the

just compensation requirement of the Fifth

Amendment.

This petition invites this Court to

revisit the just compensation requirement

of the Fifth Amendment to determine

whether property owners who suffer

uncompensated, categorical state takings,

are ever actually entitled to litigate

those federal constitutional claims.

Given the unique interplay between federal

and state just compensation requirements,

property owners who suffer such takings

must first utilize available state

remedies before their Fifth Amendment

claim is available for review. Given the

present holding of the Fifth Circuit, once

that claim is “ripe” for review, it may

also be precluded because of the Eleventh

Amendment.

The decision of the Fifth Circuit in

this case has the effect of rendering the

takings clause of the Fifth Amendment

8

~~ ges

meaningless as applied to the states

because, according to the Fifth Circuit, a

citizen is jurisdictionally barred from

bringing a Fifth

Amendment takings claim against a state in

a federal court. This is a most important

question of federal law which has not

been, but should be, settled by this

Court. As Respondent, the State of Texas,

has agreed (in a letter to the Court of

Appeals of the Fifth Circuit asking that

the opinion be published), the opinion

concerns and discusses legal issues of

Significant public interest.

A right without a remedy is no right

at all. Where the state itself effects a

taking, the "unique nature" of the

property clause, when combined with

notions of sovereign immunity implied from

the Eleventh Amendment, effectively

reduces the constitutional promise of just

compensation to a mere tautology.

Petitioner contends that the opinion

of the Fifth Circuit is in direct conflict

9

with this Court's opinion in First English

van. uther Church v. County of Los

Angeles, 482 U.S. 304, 315 (1987) in which

this Court stated that government action

that works a taking of property rights

"necessarily implicates the constitutional

obligation to pay just compensation." In

footnote 9 of that opinion, this Court

addressed the contention of the Solicitor

General that the Fifth Amendment,

“combined with principles of sovereign

immunity," is only a limitation on the

power of the government to act, not a

remedial provision. This Court refuted

the argument of the Solicitor General that

"the Constitution does not of its own

force, furnish a basis for a court to

avoid damages against the government.”

This Court restated its position that in

“various jurisdictional settings," it is

"clear that it is the Constitution that

dictates the remedy for interference with

property rights amounting to a taking."

10

This Court has ruled in First English

Evan. Lutheran Church, 482 U.S. at 315,

that "...a landowner is entitled to bring

an action against the state in inverse

condemnation as a result of ‘the self-

executing character of the constitutional

provisions with respect to

compensation...” This Court noted in

First English that claims for just

compensation “are grounded in the

Constitution itself." This Court early

ruled, in U.S. v. Causby, 328 U.S. 256,

267 (1946), that when there is a taking,

the claim is “founded upon the

Constitution and within the jurisdiction

of a federal court to hear and determine."

The Court of Appeals for the Fifth

Circuit, on the other hand, has ruled that ;

a state's sovereign immunity is a

constitutional limitation of the

jurisdiction of a federal court to “hear

and determine" a takings claim against a

State.

ll

Because, as this Court stated in

First English, petitioner's suit is

“founded upon the Constitution of the

United States," the Eleventh Amendment

should not be, and indeed cannot be, a

procedural bar to his suit for just

compensation.

The Eleventh Amendment provides:

The Judicial power of the United

States shall not be construed to

extend to any suit in law or

equity, commenced or prosecuted

against one of the United States

by Citizens of another State, or

by Citizens or Subjects of any

Foreign State.

Although this language expressly

encompasses only suits brought against a

State by citizens of another State, this

Court ruled in Hans v. Louisiana, 134 U.S.

1, (1890) that the Amendment bars suits

against a State by its own citizens as

well. Thus, but for stare decisis, the

Eleventh Amendment clearly would have no

application to petitioner's suit against

the State of Texas for its taking of his

property.

12

The Fifth Amendment provides that

private property may not be taken "for

public use, without just compensation."

The Fourteenth Amendment states:

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 ife, liberty, or

roperty, without due process of

aw.

The Fifth Amendment, which requires

the government to pay just compensation

for a taking of private property for

public use, is made applicable to the

states through the Fourteenth Amendment.

[See Chicago, B, & Q.R.R. v. Chicago, 166

U.S. 226 (1897), First English Luth.

Church, cited above}. The Fifth

Amendment's just compensation provision is

designed to bar the government from

foisting a disproportionate burden upon a

particular group of individuals for a harm

which is public and whose burden should be

shared by the public as a whole. Pennel

v. City of San Jose, 485 U.S. 1, 9 (1988).

13

is the Supreme Court stated in First

tnglish Luth. Church, 482 U.S. at 343555

jovernment action that works a taking of

droperty rights necessarily implicates the

‘constitutional obligation to pay

sompensation."

The concept of “just compensation"

sontemplates the fair treatment of

individuals whose rights in property must,

it times, be subordinated to the needs of

society as a whole. In Armstrong v.

Jnited States, 364 U.S. 40, 49 (1960), the

supreme Court stated:

The Fifth Amendment's guarantee

that private property shall not

be taken for a public use

without just compensation was

designed to bar Government from

forcing some people alone to

bear public burdens which, in

all fairness and justice, should

be born by the public as a

whole.

In Lucas _v. South Carolina Coastal

council, 120 L.Ed.2d 798 (1992), this

court ruled that a legislature could not

deprive a property owner of the only

economically valuable use of his land,

14

even if the legislature found it to be a

harmful use. 120 L.Ed. 2d at 819. This

Court stated: “In general (at least with

regard to permanent invasions), no matter

how minute the intrusion, and no matter

wow urpose behind it

Ww

Vv j ion." Id at

812. This Court confirmed that it had

stated “on numerous occasions" that "the

Fifth Amendment is violated when land-use

regulation...denies an owner economically

viable use of his land.” Id. at 813.

This Court, in First English Evan.

Luth. Ch. v. Los Angeles Cty, cited supra,

recognized that its ruling in English

would “undoubtedly lessen to some extent

the freedom and flexibility" of

governmental agencies. But it stated,

“such consequences necessarily flow from

any decision upholding a claim of

constitutional right.“ 482 U.S. at 321.

It then affirmed that “many of the

provisions of the Constitution are

designed to limit the flexibility and

15

freedom of governmental authorities and

the Just Compensation Clause of the Fifth

Amendment is one of them." Id. (Emphasis

added. )

In Dolan vy.

City of Tigard, 129

L.Ed.2d 304 (1994), this Cours stated:

We see no reason why the Takings

Clause of the Fift Amendment,

as much a part of the Bill of

Rights as the First Amendment or

the Fourth Amendment, should be

relegated to the status of a

poor relation...

Still, based on what Justice Brennan

characterized as "a number of ad hoc and

unmanageable rules bearing little or no

relation to one another or to any coherent

framework" [Papasan v. Allain, 478 U.S.

265, 292 (1986)], the Court of Appeals for

the Fifth Circuit ruled tha petitioner

cannot bring a suit, grounded on the Fifth

and Fourteenth Amendments <o the U.S.

Constitution, because of the Eleventh

Amendment.

The Sixth Circuit is in Gisagreement

with the Fifth Circuit. In Wilson v.

Tennessee, unpublished opinion, 1982, the

16

Sixth Circuit ruled that the "Eleventh

Amendment does not bar an action for

deprivation of property without just

compensation under the Fifth Amendment as

applied to the states through the

Fourteenth Amendment." In Bentley v.

Ellam, 764 F. Supp. 322, 328 (M.D. Pa.

1991), a U.S. District Court in

Pennsylvania also ruled that the Eleventh

Amendment does not bar a suit against a

state when the complaint is predicated on

violations of "federal due process, and

possibly, fifth amendment rights."

Justice Brennan characterized the

"hodgepodge" of law relating to the

Eleventh Amendment as having no effect

except "to impair or prevent effective

enforcement of federal law." He stated:

at: is -highl unlikely that,

having created a system in which

federal law was to be supreme,

the Framers of the Constitution

or of the Eleventh Amendment

nonetheless intended for that

law to be unenforceable in the

broad class of cases now barred

by this Court's precedents.

x7

It is highly unlikely that the

-ramers of the Eleventh Amendment (which,

mn its face, applies only to suits against

i State by citizens of another State or

subjects of a foreign State) intended it

-O apply to a suit against a State by a

zitizen of that State for just

compensation pursuant to the takings

slause of the Fifth Amendment.

Justice Brennan referred to what he

called the "magnitude of the Court's

1istake" in Hans v. Louisiana as the

‘first step" down an “ill-advised path, "

[Or as Justice Brennan pointed out, the

‘National Government and federal law play

1 much more important role in protecting

she rights of individuals today." 478

J5Oe BG: 292. According to Justice

3rennan:

Only stare decisis can Support

the Court's continued adherence

to this unfortunate doctrine.

Stare decisis is indeed a force

to be reckoned S dain tei:

the Court has not felt itse 4

particularly constrained b

Stare decisis in expanding the

18

ini Ti eas

protective mantle of sovereign

immunity.

The Court of Appeals for the Fifth

Circuit based its ruling in this case on

this Court's decision in Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89

(1984). Although a majority of this Court

did rule in Pennhurst that the Eleventh

Amendment is a jurisdictional bar to a

Suit for damages in federal court against

the state, this Court did not address in

Pennhurst the issue of whether a federal

court has jurisdiction to hear a citizen's

Fifth Amendment takings claim against a

state.

Justice Brennan referred to this

Court's decision in Pennhurst as an

example of this Court expanding the mantle

of sovereign immunity. He stated

The Court's Eleventh Amendment

guriepreaeuce is not supported

y history or by sound legal

reasoning; it is simply bad law.

In matters of such great

institutional importance as

this, stare decisis must yield.

19

Stare decisis need not yield for this

Court to rule the Eleventh Amendment is

not applicable to Fifth Amendment takings

claims. This Court has never ruled that

the Eleventh Amendment is a bar to a Fifth

Amendment takings claim. The Eleventh

Amendment was never intended to bar such a

suit. To permit a court of appeals to

expand further the Eleventh Amendment

decisions by letting stand a ruling of a

court of appeals that the Eleventh

Amendment takes precedence over the Fifth

Amendment will have the ultimate effect of

writing the Fifth Amendment, as it applies

to the states, out of the U.S.

Constitution because any federal suit

against the State for the State's taking

of its citizen's property would be barred

by the Eleventh Amendment. The Fifth

Circuit attempts to gloss over this

inevitable outcome by explaining that an

aggrieved citizen can bring a Fifth

Amendment claim in estate court even

though, at that point, the citizen will

20

i. ap

MEANT COR NS Ne ARATE ANE ad ak

&

$

Ss

§

Z

/

son

have already filed an unsuccessful inverse

condemnation suit in state court under the

state constitution.

The Fifth Circuit cursorily addressed

the problem of a citizen being

jurisdictionally incapable of filing a

Fifth Amendment claim against a state by

explaining in its opinion (Opinion, p. 3):

[T]he State of Texas through its

Attorney General confirms and as

Guetersloh admits, the courts of

the State of Texas are open to

inverse condemnation damage

claims against state agencies on

the basis of the Fifth

Amendment, as applied to the

states through the Fourteenth

Amendment, as well as on the

basis of the Texas Constitution

and laws."

Although the State of Texas does posit

that there are "adequate" remedies for the

State's taking of its citizen's property

in state courts, it is questionable how

the Fifth Circuit could conclude that

petitioner "admits" to their adequacy.

Petitioner already filed one suit in state

court for a claim under the Texas

Constitution for the state's taking of his

21

Pe ee ES Ne CR ee Te Le Pe ee nee OE ge Ge eee a gee TNT

‘Se

we 5 * - apubaye ones wer pie ‘ ail Beate aly Mi pase Br oS.

eee 5 4 + RNR le A ane! Dagny ~ ae SAD MPA g TEES fe NOE» SIT ae RS a ree

fein mie Sain AE rm igre ie ie ells nie aenv abloetat

property. The state district court

granted the State's motion for summary

judgment. The state appellate court

affirmed the decision of the district

court, and the Texas Supreme Court refused

to grant petitioner's application for a

writ of error. The Court of Appeals for

the Fifth Circuit is suggesting that

petitioner must now go anew into the state

court system, one that was completely

hostile to his takings claim under the

Texas Constitution, and begin again to

assert his rights, his second litigation

to be a takings claim under the Fifth

Amendment.

As authority for its position that

petitioner has an adequate remedy in the

state courts to assert now a taking claim

under the Fifth Amendment, the Fifth

Circuit cited Estate of Scott v. Victoria

County, 778 S.W.2d 585 (Tex. App.--Corpus

Christi 1989). In Estate of Scott, the

plaintiff brought an inverse condemnation

Suit against the State of Texas under both

22

the Fifth Amendment and the Texas

Constitution. The Corpus Christi

appellate court ruled that there was no

taking of the plaintiff's property that

would require the State to pay

compensation. The Corpus Christi court

ruled that all property “is held subject

to the valid exercise of the police power

and compensation is generally not required

for losses resulting therefrom."

In petitioner's inverse condemnation

Suit filed in state court, the appellate

court also ruled, as a matter of law, that

the state's taking of his property was “a

valid exercise of the police power" and

that compensation was not required for the

loss petitioner sustained. Petitioner

asserts that the rulings of the Texas

appellate courts have confirmed that the

state remedy is inadequate in actual

Practice to provide him with just

compensation for the state's taking of his

property.

POG APS TIA Y | comb or 8 eta eae

Oe Sate

Petitioner has exhausted state

remedies. He should not be required to

file suit again in state court, alleging a

Claim under the Fifth Amendment, rather

than the Texas Constitution, to

demonstrate anew that state remedies are

not adequate. The claim against the State

under the Fifth and Fourteenth Amendments

to the U.S. Constitution is a federal

Claim. The Court of Appeals for the Fifth

Circuit should not refuse jurisdiction by

contending such a suit could have been

brought in state court. The jurisdiction

of a federal court is not determined by

whether or not a suit “could have been

brought" in state court.

In Ex Parte Virginia, 10 S.Ct. 339,

346 (1879), this Court ruled that the

prohibitions of the Fourteenth Amendment

are directed to the States and that they

are restrictions of State power. This

Court stated in Ex Parte Virginia that the

enforcement of these prohibitions “is no

invasion of State sovereignty."

24

LG ARO LE OTR ee

Four justices of the Court dissented

in Pennhurst, the decision relied upon by

the Fifth Circuit. The dissenting

justices, Justices Brennan, Stevens,

Marshall and Blackmun, pointed out that

the Eleventh Amendment is the product of

what they termed a “remarkable

misapplication of the ancient doctrine of

sovereign immunity." They noted that the

Eleventh Amendment, on its face, applies

only to suits against a state brought by

citizens of other states and foreign

nations. The doctrine of sovereign

immunity, as noted by the dissenting

opinion in Pennhurst, developed in England

where it was thought the King could not be

sued. But the Fifth Amendment to the u.

S. Constitution provided citizens with a

right to be paid when their property was

taken by the government. The framers of

the Constitution surely intended that the

King could be sued if the King refused to

Pay compensation for the taking of its

subjects property. Although the changes

25

in our social fabric favor the limitation,

rather than the expansion of sovereign

immunity, this Court has not chogen to

limit the doctrine. As the dissenting

Opinion pointed out in Pennhurst, "the

concept that a sovereign can do no wrong

and that citizens should be remediless in

the face of its abuses is more a relic of

medieval thought than anything else." In

his dissenting opinion, Justice Brennan

commented

Whether this immunity [sovereign

semua. ty] is an absolute

surviva of the monarchial

privilege, or is a manifestation

merely of power, or rests on

abstract logical grounds, it

undoubtedly runs ‘counter to

modern democratic notions of the

moral responsibilit of the

state...It is the doctrine of

absolutism, pure, simple, and

naked.

Justice Brennan noted that the reason

for adding the Eleventh Amendment to the

Constitution was federalism. But as he

noted, the Civil War “irrevocably and

profoundly altered the balance of power

between the federal and state

26

q

governments. " He noted that’ the

Fourteenth Amendment was adopted by the

people and added to the Constitution to

place a check upon the “arrogance of some

of the states.”

The “arrogance” of the State of Texas

is exemplified in the current case. The

State of Texas has absolutely refused to

Pay petitioner for its taking of his

property. It refused him a hearing in its

courts. The Court of Appeals for the

Fifth Circuit has ruled that he also can

have no hearing in the federal courts to

address a right constitutionally granted

him by the Fifth Amendment to the U.S.

Constitution because of this ancient and

archaic doctrine that “the State can do no

wrong." The State of Texas has committed

a wrong. It has blatantly refused to

follow the constitutional mandate as set

out in the Fifth Amendment. To refuse,

because of federalism, to permit

petitioner to file a suit against the

“state to require the state to do what it

27

x Pee PO AE ee MR Oe RE TIE, Bae ie (3

is constitutionally mandated to do, is

“absolutism, pure, simple, and naked.”

When a state refuses to compensate a

property owner for the state's taking of

such property for a public use, a property

owner may sue the state directly under the

Fifth and Fourteenth Amendments to the U.

S Constitution. (See Bivens v. Six

U Federal Narcotics ents, 403 U.

S. 388 (1971).] In Bivens, this Court

ruled that, with respect to the Fourth

Amendment, “..it is...well settled that

where legal rights have been invaded, and

a federal statute provides a general right

to sue for such invasion, federal courts

may use any available remedy to make good

the wrong done." 403 U. S. at 395-6. In

First English, this Court recognized that

landowners are entitled to bring an action

in inverse condemnation as a result of

"the self-executing character of the

constitutional provision with respect to

compensation..." 482 U.S. at 315. This

Court quoted Jacobs v. United States, 290

28

U.S. 13 (1933) as establishing that

"claims for just compensation are grounded

in the Constitution itself..." Id. ._.As

this Court stated, the suits were “founded

upon the Constitution of the United

States." Id. [See also Lucas v. South

Carolina Coastal Council, 120 L.Ed.2d at

810, wherein this Court referred to

“ripeness” as the only deterrent to a

property owner being entitled to the

Court's adjudication of his takings

claim. } In First English, 482 U.S. at

316, nn. 9, this Court refuted the

government's argument that the

Constitution does not furnish a basis for

& court to award money damages against the

government. It affirmed that "it is the

Constitution itself that dictates the

remedy for interference with property

rights amounting to a taking.”

In Williamson Co. Regional Planning

Co. v. Hamilton Bank, 473 U.S. 172 (1985),

this Court recognized a property owner's

right to sue the state under the Fifth

29

ey aed Beton Ae ee =

Amendment for compensation for a state's

taking of property for a public use. This

Court dismissed the claim but on the basis

that the property owner's claim was

premature because the owner did not

exhaust state remedies. In Hamilton Bank,

this Court set out its approach to taking

claims. A property owner may sue the

state in federal court after the owner has

demonstrated that there are no adequate

state procedures to satisfy the property

owner's claim. (This Court referred to

its decision in Hamilton Bank in its most

recent takings decision in Lucas v. South

Ca ina Coastal Councils, 120 L.Ed.2d at

810.)

In Fitzpatrick v. Bitzer, 427 U.S.

445 (1976), this Court discussed the

Eleventh Amendment and the principle of

state sovereignty which, the Court

recognized, is embodied in the Eleventh

Amendment. This Court in Fitzpatrick

acknowledged that when Congress enacts

legislation enforcing the Fourteenth

30

Amendment, it may provide citizens with a

direct cause of action against the states.

As this Court ruled in Fitzpatrick,

section five of the Fourteenth Amendment

enables Congress to compel state

compliance with the Fourteenth Amendment.

This Court stated in Fitzpatrick:

Were it not for the fifth

section of the amendment there

might be room for argument that

the first section is. onl

declaratory of the moral duty o

the State. But the Constitution

expressly gives authority for

congressional interference and

Or ee in the cases embraced

within the fourteenth amendment.

It is but a limited epee eo

true, extending only to a single is

class of cases; but within its ¢

limits it is complete. 427 U.S.

at 456

Congress has waived Eleventh 7

Amendment immunity with respect to a suit

against a state based upon a state's

infringing an author's copyright in the %

author's creation. [See 17 U.S.C. §511. 4

See also 17 U.S.C. §501(a).] Congress has

recognized that a state, as a private

citizen, should not be permitted to

appropriate another's property interest in

31

the form of a created work. The framers

of the U.S. Constitution recognized that a

state should not be permitted to

appropriate another's property interest by

taking private property for a public use

without paying the property owner just

compensation. As Congress has

specifically provided, a suit against the

i state for damages for infringing a

copyright, an intangible property

ae Ne IE OES eT ea a PT ew eo. Fe Pe Le ee SI ey ee ey eS ae

interest, is not barred by the Eleventh

Amendment. (See 17 U.S.C. §511.) A suit |

against the state for refusing to pay

compensation to an owner of tangible

property for the state's taking of that

property should also not be barred by the

Eleventh Amendment. The right to just

a eee Ly: ~

compensation is a right grounded in the

Constitution itself based upon the

people's concern that tyranny and

arrogance on the part of the states should

not be tolerated. A court should not

write this right out of the Constitution

SO ee Rey SN PAE. eRe Pr eee he eT Cg oe ne eT ae ee

32

by a misapplication of the Eleventh

Amendment.

The Eleventh Amendment only bars

Suits against an unconsenting state;

therefore, when a state consents to suit

in federal court; it waives Eleventh

Amendment immunity. [See Atascadero State

Hosp. ov. Scanlon, 473 U.S. 234, 238

(1985).] Although this Court in

Atascadero, and more recently in Port

ority Trans-Hudson Corp. v. Feeney,

495 U.S. 299 (1990), ruled that a state

must express definite language of consent

in a statute or a constitutional

provisions, the Texas Constitution has in

and of itself provided that express

consent. Article I, §17 of the Texas

Constitution states that no _ person's

“property shall be taken, damaged or

destroyed for or applied to public use

without adequate compensation being

paid.." It further provides that "...no

irrevocable or uncontrollable grant of

special privileges or immunities, shall be

33

made." In Steele v. City of Houston, 603

S.W.2d 786, 791 (Tex 1980), the Texas

Supreme Court recognized that a cause of

action under Article I, §17 of the Texas

Constitution was not grounded upon proof

of either a tort or a nuisance. The Texas

Supreme Court ruled that the Texas

Constitution itself was the authorization

for compensation for the destruction of

property and was a waiver of governmental

immunity for the taking, damaging, or

destruction of property for public use.

The Texas Constitution specifies that

no immunities are available. MThis Court

recognized in footnote 9 in First English

that sovereign immunity is not a bar to a

taking claim under the Fifth Amendment.

The concept of sovereign immunity and

federalism as embodied in the Eleventh

Amendment should not be available to the

State as immunity from a citizen's suit to

require the State to pay just compensation

for its taking of the citizen's property,

34

.: 5G wh: Dadar anak RI hase oe * Pek ah en Re ET Oe

open ig ihe MY NR Ra Nee A ARG Ro NC ate ba i aah ah ON Cate) a ae

as required by the Fifth and Fourteenth

Amendments to the U.S. Constitution.

SIO

To implicate the federal takings

question, a state must not only take

someone's property, it must also deny him

or her compensation as well. In

Williamson Co. Regional Planning v.

Hamilton Bank, 473 U.S. 172 (1985), this

Court stated that a property owner may sue

the state in federal court after the owner

has demonstrated that there are no

adequate state procedures to satisfy the

property owner's claim. Petitioner has

demonstrated there are no adequate state

procedures to satisfy his claim.

Plaintiff was required to utilize the

state court procedures prior to filing a

claim under the Fifth and Fourteenth

Amendments to the U. S. Constitution.

Plaintiff's takings claim under the Fifth

and Fourteenth Amendments was predicated

upon his having adjudicated his claim in

state court and his having been denied

35

just compensation. His Fifth Amendment

takings claim for just compensation became

ripe after he exhausted state remedies.

The Eleventh Amendment should not, and

cannot, effectively eliminate his takings

claim by providing a jurisdictional bar to

his clain.

For the reasons stated, petitioner

prays that this Court review and reverse

the judgment of the United States Court of

Appeals for the Fifth Circuit and remand

the case to the Fifth Circuit for its

consideration of petitioner's claim that

the U.S. District erred in its ruling on

the merits of petitioner's claim.

Respectfully submitted,

po Rar ete

4018 75th Street

Lubbock, Texas 79423

Telephone (806) 894-5178

Telecopier (806) 894-5259

H PHE

Attorney for Petitioner

—_—

36

APPENDIX

Opinion of U.S. District

Court ae Wie a aaa apa

Order of U.S. Court of

Appeals fo the Fifth

Circuit Me Boek ee

Unpublished Opinion, Wilson

v. Tennessee (6th Cir. 1982)

Page

II

XXII

XXVII

NO. A-92-CA-359

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

M. F. GUETERSLOH, JR.,

Vv.

THE STATE OF TEXAS, ET AL.

ORDER

Comes now the Court and enters the

following final Order in the above-styled

cause of action.

BACKGROUND

The Court makes the following finding

of facts:

tn 1982, Plaintiff had a lienholder's

interest in a privately owned rural water

System near Lubbock, Texas. Plaintiff

sold the water system to a Mr. Ray Nichols

and retained a vendor's lien and deed of

trust as security for the purchase price.

The Defendant put on evidence that the

water system was in poor condition at the

time of the sale from Plaintiff to Mr.

Nichols. After receiving complaints, the

Public Utility Commission ("PUC")

IT

a Nea tod

eee eee ed f

ithe <vene cia ce

no egtag .

“eiehe

conducted an investigation into Nichols’

alleged mismanagement of the System. The

PUC entered an Order on October 22, 1982,

directing Nichols to take certain steps

and advising him that his failure to do so

might result in the imposition of a

receivership. Time passed, the violations

continued, and the PUC obtained an Order

from a Texas District Court on July 21,

1983, in he State o Texas v. Ray

Nichols, d/b/a Carlisle Water Supply,

Cause Number 343,820, in the 250th

Judicial District of Travis County (the

“receivership suit") naming a receiver to

take possession and operate the water

service in compliance with appropriate

health standards.’ Defendant Miller, by

‘The summary judgment evidence

establishes that the receivership lasted

about five years, the last three of which

occurred during the period of time that

the Plaintiff claims to have had

ownership of the property. Plaintiff did

not intervene in the receivership,

although he had the legal right to do so.

The Plaintiff has no explanation for his

failure to do so beyond his subjective

It!

the same Court Order, was appointed as the

Receiver for the utility. Attorneys from

the Attorney General's office gave notice

to the Plaintiff of various matters that

were going on in the receivership

proceedings. More time passed, and in

1985 the Plaintiff foreclosed and took

legal title of the land. In December,

1985, the Plaintiff attempted to re-enter

and take possession of the system,

including physically removing one of the

pumps from the plant, and the receiver

obtained injunctive relief that prevented

Plaintiff from having access onto the

Property. The application to vacate the

receivership was filed on February 1,

1988. The Court entered an order vacating

belief that he would not have been

successful. The Plaintiff's failure to

intervene resulted in a forfeiture of his

right to litigate within that forum his

claims of waste and collusion by the City

of Lubbock as well as objecting to the

final accounting and obtaining judicial

review of the district court's oversight

of the receiver.

IV

the receivership on March 25, 1988. The

Plaintiff now has control of the water

system.

Thus the Plaintiff had from 1985

through March, 1988, to intervene in the

receivership case and assert any legal

rights he had concerning the water supply

system. The Plaintiff made a conscious

decision not to intervene in the state

receivership action. Instead, the

Plaintiff filed a suit in the district

court of Lubbock County, Texas, against

the receiver, Miller, and the City of

Lubbock (the "state suit"). In that state

case, Plaintiff originally brought claims

under both the state and federal

constitutions alleging a "taking,

damaging, or destroying . . . without

adequate compensation." Plaintiff then

amended his pleadings to delete the claims

under the U.S. Constitution. More time

passed, and the state court terminated the

receivership--without objection from the

Plaintiff-- and the final accounting was

V

haw

yi rw

lla im

a Rhee SSeS FF Fo Fo Ga ee

approved on April 5, 1988. The state

district court soon thereafter granted the

defendants' motion for summary judgment

for all parties other than the PUC and

transferred the case to Travis County,

Texas. The state district court--in the

absence of any evidence from the

Plaintiff, even evidence of legal title to

the water supply System--granted summary

judgment for the puc. The Plaintiff

appealed these decisions through all of

the state appellate courts, including the

Texas Supreme Court. The Texas Supreme

Court denied the Plaintiff's writ of

error. The Plaintiff has now filed this

Suit in federal court against a host of

Defendants under a number of theories.

PLAINTIFF'S CLAIMS FOR RELIEF

Plaintiff weeks relief under several

theories. First, that the State of Texas

is liable under the fifth and fourteenth

amendments to the United States

Constitution for "just compensation” under

a theory of “taking” by the state of

VI

Plaintiff's property. The claims against

the individual Defendants are less well

defined, but amount to liability under 42

U.S.C. § 1983 for their actions relating

to the “taking” or the tortious exercise

of the state's police power.

EFENDANTS' RESPONSES

The State disputes that any permanent

and compensable "taking" of the

Plaintiff's water System ever occurred.

To the contrary, the State argues, the PUC

placed the Plaintiff's "property", which

was a utility, into receivership. This

action, the State contends, was not a

permanent taking of property. The

Defendants argue that the state court

receivership suit was the proper forum to

determine the Plaintiff's property rights

with regard to the water System. Thus the

Plaintiff has no cause of action to be

compensated as opposed to if the water

System had been taken under the concept of

eminent domain or inverse condemnation.

VII

The State relies heavily on the twin

defenses of res judicata and statute of

limitations. The State also asserts the

defenses of the Eleventh Amendment and

qualified immunity.

: The 42 U.S.C. § 1983 Claims Against

the Texas Attorney General ant iis

Assistants.

The Plaintiff has alleged 42 u.s.c. §

1983 claims against the attorneys who

represented the state in the state case.

The Court finds this claim to be spurious

at best.

The Plaintiff's claims are barred by

the qualified immunity that the state's

attorneys have in acting within the scope

of their employment in representing the

state in litigation. The attorneys for

the PUC did no more in defending the

Plaintiff's claims against the PUC and the

other state defendants than what all

attorneys are ethically bound to do:

zealously represent their client, and win

their suits. The state's attorneys raised

the defense that Plaintiff's claims should

VIII

have been raised in the receivership

action. At every level, the state courts

ruled in favor of the Defendant. In other

words, the Plaintiff seeks to hold liable

attorneys that raised defenses that were

endorsed by a state district judge, by the

state appellate court, and by the state

Supreme court. The Court finds that the

Plaintiff had actual notice of the

receivership lawsuit and made a conscious

decision not to intervene. After a

careful review of Plaintiff's Exhibits pP-3

and P-4, this Court rejects Plaintiff's

contention that he was prohibited by any

state court injunction from intervening in

the receivership action. The receivership

court was the appropriate forum for the

Plaintiff to establish his rights

concerning the water system.

Despite the fact that the Plaintiff

litigated his claims in the case he filed

in state court, he requests this federal

Court to collaterally attack the state

court litigation under the patina of a

IX

ET a ee ee ee SPE ete ean ee aes

federal civil rights claim. Plaintiff's

Claim that he was "deprived" of his

constitutional right to be heard in the

State courts is without merit. Plaintiff

had notice of, but chose not to intervene

in, the receivership suit. Plaintiff

filed and fully litigated an inverse

condemnation suit in Lubbock County,

Texas. The PUC intervened in this case

and had it transferred to Travis County,

Texas. The Plaintiff prosecuted this case

through the state court System and he

lost. The federal courts do not sit to

determine whether state courts properly

decide legal issues. The Plaintiff has

failed to prove that he was deprived of

any rights in the state court System. He

filed his suit. The Courts considered his

claims and the defenses raised by the

state. The Plaintiff lost at the trial

court level, the appellate court level,

and the supreme court level. There is no

merit to the Plaintiff's claim that these

Defendants deprived him of rights by

X

raising a “new" defense for the first time

On appeal. The decision of whether the

state's attorneys raised improper legal

arguments was for the state appellate and

Supreme courts to decide, both of which

ruled in favor of the Defendants and the

Plaintiff has failed to produce any

evidence that the actions of the state

courts or the state's attorneys deprived

him of any rights.

The Plaintiff has failed to establish

by a preponderance of the evidence that

the conduct of the defendant attorneys

violated any clearly established

constitutional or federal statutory rights

of the Plaintiff of which an objective,

reasonable person would have known. These

Defendants therefore enjoy immunity from

liability from the claims made by the

Plaintiff. Harlow v. Fitzgerald, 457 U.S.

800, 102 S.Ct. 2727 (1982). The Court

finds further that, regardless of the

state's attorneys right to immunity,

XI

Plaintiff's claims against the state's

attorneys have no merit.

The Plaintiff's Claim against

Attorney General Morales is without merit

given the total lack of any evidence that

Defendant Morales had any personal

involvement in the lawsuit or that he

maintained any policies, practice, or

custom that resulted in the loss of the

Plaintiff's civil rights. At best,

Attorney General Morales is the ultimate

Supervisor of the other attorneys general

named as Defendants. Defendant Morales

was not even the Attorney General at the

time when most of the salient events

occurred. Supervisors are not vicariously

liable for § 1983 violations of their

subordinates. Vv. 2 tment of

Social Serv., 436 U.S. 658, 98 S.Ct. 2018

(1978). The Plaintiff presented no

evidence that Attorney General Morales

knew or should have known of any

misconduct on the part of his

subordinates--especially since the Court

XII

has seen no evidence of any misconduct on

the part of the state's attorneys.

y

J er.

Defendant, James Miller, was

appointed as the receiver for the water

System after Mr. Nichols was removed by

state court order. The evidence

established that Defendant Miller took

over an aging water system that barely

serviced the nine families still on the

System. Miller labored on the weekends to

keep the system in working order. He did

not increase the monthly payment for the

service to the eight families and did not

personally profit from his tenure as

receiver beyond guaranteeing his own

family the system as a source for water.

He managed to keep the system in

sufficient working order until the City of

Lubbock was willing and able to provide a

water source to the eight families. The

Court finds that the Defendants, in any

combination, did not conspire to deprive

XIII

the Plaintiff of his rights concerning the

water system until the City of Lubbock

made water available. To the contrary,

the Court commends Defendant Miller for

his selfless efforts to ensure a supply of

water to the handful of customers who were

dependent on the water system.

Defendant Miller argues that he

enjoys a quasi-judicial immunity since he

was acting as the receiver. The Court

disagrees and holds that Defendant Miller

is not entitled to judicial immunity.

Defendant Miller next argues that as the

receiver he is entitled to qualified

immunity under Harlow, supra. The Court

agrees. The Plaintiff is entitled to

qualified immunity for all actions he took

as the receiver. To the extent that the

Plaintiff complains that there was a

discrepancy in the inventory that

Defendant Miller executed on February 1,

1988, concerning the outstanding debts of

the water system; the Court finds that

these complaints should have been raised

XIV

in the state court in the receivership

suit. The Court makes an additional

finding that the statute of limitations

has run on any claim against Defendant

Miller.

The Court finds that the claims

against this Defendant is barred by the

state of limitations. Assuming that the

Plaintiff has a claim against this

Defendant under 42 U.S.C. § 1983, that

cause of action accrued on May 5, 1988--

the date that the Order discharging the

receiver became final and unappealable.

The statute of limitations applicable to a

§ 1983 claim is the two year statute of

limitations for personal injury actions.

Tex. Civ. Prac. & Rem. Code Ann. § 16.003

(Vernon 1986); Wilson v. Garcia, 195 S.Ct.

193s (71965).

Fe The Claims Against John Hall.

Defendant, John Hall holds a

Supervisory position with the Texas Water

Commission. The Plaintiff presented no

evidence of any kind against Defendant

XV

ss yi eae: 2 sana eee ee

aA RN BOS 5 2 He BAEK bs ttn Ree

Hall. The Court heard no evidence that

would support any finding of liability

against Defendant Hall. Accordingly, the

Court finds for Defendant Hall on all of

Plaintiff's claims.

4. The State of Texas, the Texas Water

Se HS UL OXAS WATET

Commission, and the PUC.

The Court finds that the Plaintiff

has failed to prove that these Defendants

violated the Plaintiff's rights under the

Fifth or Fourteenth Amendments of the U.S.

Constitution. The court holds that the

claims against these defendants for

damages are barred by the Eleventh

Amendment of the United States

Constitution. Pennhurst v. State School

v._ Halderman, 465 U.S. 79 (1984). These

parties have not waived their right to

immunity under the Eleventh Amendment.

The Court finds that the claims

against these Defendants are barred by the

statute of limitations. Assuming that the

Plaintiff has a claim against any of the

Defendants under 42 U.S.C. § 1983, that

XVI

cause of action accrued on May 5, 1988--

the date that the Order discharging the

receiver became final and unappealable.

The statute of limitations applicable to a

§ 1983 claim is the two year statute of

limitations for personal injury actions.

Tex. Civ. Prac. & Rem. Code Ann. § 16.003

(Vernon 1986); Wilson v. Garcia, 195 S.Ct.

193 (1985).

The Court finds that the claims

against these Defendants are barred by the

doctrine of res judicata. The Court holds

that, as a matter of law, between

identical parties, a final judgment of a

state court of competent jurisdiction on

the merits of a claim will bar the party

from bringing the same claim in federal

court as well as any other cause of action

that could have been raised and resolved

in the state court. Allen v. McCurry, 101

S.Ct. 411 (1980); and Lubrizol Corp. v.

Exxon Corp., 871 F.2d 1297, 1287 (5th Cir.

1989). Plaintiff could have intervened in

the receivership action, but he failed to

XVII

do so. He could have raised these claims

in his state court law suit but failed to

do so. The Court holds that the Plaintiff

is precluded from pursuing these claims by

the doctrine of res judicata.

The Court finds that the Plaintiff

failed to prove that these Defendants

acted intentionally to deprive Plaintiff

of his constitutional rights. To the

contrary, the Court finds that the

Plaintiff intentionally chose to forfeit

his rights to compensation by deciding not

to intervene in the receivership suit.

The water system in question is not

typical private property, rather it is a

utility within the statutory definition

and therefore is governed as is any

operating utility, by the Public Utilities

Regulatory Act (“PURA"), Tex. Rev. Civ.

Stat. Ann. art. 1446(c) § 2 (Vernon 1992).

This statute was in effect at the time of

the receivership proceedings. Under this

statute, the PUC had the express authority

to impose a receivership on this utility,

XVIII

and could do so without compensation from

the state. ucas_ v. South Carolina

Coastal Council, 112 S.Ct. 2886, 2900

(1992). The Plaintiff has no legal right

in this Court to force these Defendants to

compensate him for the use or

deterioration of the water supply system.

S$. Plaintiff's Failure to Prove Damages.

The Court also makes the following

determination concerning Plaintiff's claim

to damages. The Court specifically

rejects the Plaintiff's testimony that the

water system was worth $50,000 at the time

the Receiver took it over. The Court

accepts as true and sworn testimony that

only nine families, paying $15 per month,

remained paying customers at the time of

the receivership. The Court finds that

the plaintiff would not have made a profit

during the period of time that the water

System was run by the receiver. To the

contrary, the evidence is that he would

have lost money. There was credible

testimony that the water from the Carlisle

XIX

water supply has been contaminated by the

actions of an Air Force base and is now

without value. The Court finds that there

was nothing illegal or improper about the

City of Lubbock making water available to

the customers who had previously used

Plaintiff's water system. Once these

customers had access to a better water

System, there was nothing improper about

them changing to the new system. The

Plaintiff has attempted to frame this as a

"taking." The Court finds that no taking

occurred. To the contrary, the

Plaintiff's water system was operated by a

receiver pursuant to a legitimate court

Order until a better and more reliable

source became available. The Court finds

that the Plaintiff failed to prove that he

has incurred any compensable damages.

The Court holds that the plaintiff

has failed to prove any of his claims

against any of the Defendants and that he

has failed to prove that he has suffered

any compensable damages. The Court holds

XX

that the Plaintiff shall take nothing, and

that the Defendants shall have judgment

for their costs.

SIGNED this the 17th day of

September, 1993.

ALAN D. ALBRIGHT

UNITED STATES MAGISTRATE JUDGE

XXI

NO. 93-8729

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

M. F. GUETERSLOH, JR.,

Plaintiff-Appellant

V.

STATE OF TEXAS, ET AL,

Defendant-Appellee

Appeal from the United States

District Court for the Western

District of Texas

Before GARWOOD, JOLLY and SMITH, Circuit

Judges

PER CURIAM:

This is an inverse condemnation suit

for money damages only brought by

Plaintiff-Appellant, mM. PF. Guetersloh,

Jr., (Guetersloh) in the court below

against the State of Texas and certain of

its agencies and officers in their

“Local Rule 47.5 provides: "The

publication of opinions that have no

precedential value and merely decide

particular cases on the basis of well-

settled principles of law imposes

needless expense on the public and

burdens on the legal profession."

Pursuant to that Rule, the court has

determined that this opinion should not

be published.

XXII

official capacities under 42 U.S.C. § 1983

and the takings clause of the Fifth

Amendment, as extended to the states by

the Fourteenth Amendment.’ Guetersloh

claimed a temporary taking during and by

virtue of a receivership, which had

terminated prior to the judgment below, of

a water company on the assets of which he

had a lien which he had foreclosed before

the receivership ended. Although

defendants raised the Eleventh Amendment

as a jurisdictional bar to this federal

court suit, and the court below found that

the suit was barred by the Eleventh

Amendment, it nevertheless reached the

merits and found Guetersloh's claims

barred by limitations and res judicata,

"To the extent that Guetersloh may

have sought damages from any of the state

officers in their individual capacities,

he does not complain on appeal of the

dismissal on the merits of any such

Claims; nor do we perceive any error in

any such dismissal, as it is plain, inter

alia, that any such claim would be

defeated by qualified immunity.

XXIII

that there was no compensable taking, and

that no damages were proved; and

accordingly it dismissed the suit.

It is settled that the Eleventh

Amendment is a jurisdictional bar to a

Suit for damages in federal court against

a state or any state agency or state

officer in his official capacity, and that

any abrogation or waiver of such bar must

be express and unequivocal. Quern v.

Jordan, 99 S.Ct. 1139, 1146 --¢€3979)3

Penhurst State Sch. & Hosp. v. Halderman,

104 S.Ct. 900, 907-8 (1984); Ford Motor

Co. vs. Department of Treasury, 65 S.Ct.

347, 350 (1945). Waiver of sovereign

immunity in state courts does not waive

Eleventh Amendment immunity from suit in

federal court. Penhurst at 907 n.9.

Under the circumstances, it is clear that

the instant suit should have ben dismissed

for want of jurisdiction under’ the

Eleventh Amendment. See Barry v. Fordice,

814 F.Supp. 511 (S.D. Miss. 1992), aff'd

on the pasis of the district court

XXIV

Opinion, 8 F.3d 1 (5th Cir. 1993); John G.

& Marie Stella Kenedy Mem. Found. Vv.

Mauro, No. 92-7714, slip Op. 4415 (5th

Cir. May 27, 1994); Harrison v. Hickel, 6

F.3d 1347 (9th Cir. 1993). We note in

this connection that, as the State of

Texas through its Attorney General

confirms and as Guetersloh admits, the

courts of the State of Texas are open to

inverse condemnation damage claims against

state agencies on the basis of the Fifth

Amendment, as applied to the states

through the Fourteenth Amendment, as well

as on the basis of the Texas Constitution

and laws. See, e.g., Estate of Scott v.

Victoria County, 778 S.W.2d 585, 589-91

(Tex. App.-Corpus Christi 1989; n.w.h.)

(Benavides, J.). In short, application of

the Eleventh Amendment does not of itself

deny a judicial forum, with ultimate

review available in the United States

Supreme Court, for resolution of

Guetersloh's Fifth Amendment takings

Claim. Cf. Harrison at 1352-54.

XXV

We accordingly modify the judgment

below SO that the dismissal of

Guetersloh's claims against the State of

Texas, the state agencies, and the state

officers in their official Capacities is

for want of jurisdiction under the

Eleventh Amendment; and, as so modified,

the judgment is affirmed.

MODIFIED and AFFIRMED AS MODIFIED

XXVI

NO. 80-550

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ERNEST WILSON, Plaintiff-Appellant

V.

STATE OF TENNESSEE, Defendant -Appellee

My bape from the United States

District Court for the Middle

District of Tennessee

Before LIVELY and MERRITT, Circuit Judges,

and PHILLIPS, Senior Circuit Judge

ORDER:

This appeal has been referred to a

Panel of the court Pursuant to Rule 9(a),

Rules of the Sixth Circuit. After

examination of the briefs and record, this

panel agrees unanimously that oral

argument is not needed. Rule 34(a),

Federal Rules of Appellate Procedure.

Plaintiff filed this civil complaint

against the State of Tennessee seeking

damages and injunctive relief. The

complaint alleged that Plaintiff had been

deprived of a4 tract of real Property

without due process and that state

Officials had acted improperly on several

XXVII

occasions. The District Court granted the

state’s motion to dismiss due to sovereign

immunity. Plaintiff filed a timely notice

Of appeal and now seeks to Challenge this

ruling.

Upon consideration, we affirm the

district court's Order. The Eleventh

Amendment bars Suits against a state that

seek to impose a liability which must be

paid from public funds, Edelman vy. Jordan,

415 U.S. 651 (1974), except that the

Eleventh Amendment does not bar an action

for deprivation of Property without just

compensation under the Fifth Amendment as

applied to the States through the

Fourteenth Amendment. Since Tennessee has

not consented to a waiver of immunity, 4

T.C.A. § 20-13-102, the demand for damages

for other than the Fifth Amendment

violation was Properly dismissed. To the

extent the complaint may be construed as

One for a taking without just compensation

Or for equitable relief, we conclude that

XXVIII

late hd Lee

it is insufficient and fails to state

facts upon which relief may be granted.

The judgment of the district court is

affirmed. Rule 9(d)3, Rules of the Sixth

Circuit.

XXIX