Reply Brief — Miami-Dade County v. Agripost, Inc.

a

2 FILED

Supreme Court, U.S. |

|

‘

No. 99-185 JUN 2 6 omg _|

In The & CLERK

Supreme Court of the United Statés

¢

MIAMI-DADE COUNTY, through its Manager and

Board of County Commissioners,

Petitioner,

VS.

AGRIPOST, INC., a Florida Corporation, and

AGRIDADE, LTD., a Florida Limited Partnership,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of ippeals

For The Eleventh Circv.t

Vv

REPLY BRIEF

v

HoLtanD & KNIGHT Rosert A. GINSBURG

701 Brickell Avenue Counsel of Record

Suite 3000 Miami-Dade County

Miami, Florida 33101-5441 Attorney

Telephone: (305) 374-8500 Suite 2810

Fax: (305) 789-7799 111 Northwest First Street

By: Dante S. PEARSON Miami, Florida 33128-1993

‘ , Telephone: (305) 375-5151

Fax: (305) 375-5634

By: Rosert LOWELL

KRAWCHECK

JAMEs J. ALLEN

Assistant County Attorneys

Counsel for Petitioner, Miami-Dade County

a ——

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

OR CALL COLLECT (402) 342-2831

i

QUESTIONS PRESENTED

DOES THE ELEVENTH CIRCUIT’S EXCEPTION TO

THIS COURT’S RULE AGAINST REVERSING STATE

COURT JUDGMENTS PREVENT STATE COURTS FROM

DECIDING WHETHER REGULATORY ACTIONS

SHOULD BE REVERSED AS CONFISCATORY IN

ORDER TO AVOID PERMANENT TAKINGS SUCH AS

THE CLAIMED $140,000,000 TAKING IN QUESTION?

IF A FEDERAL COURT LACKS JURISDICTION OVER A

FEDERAL REGULATORY TAKING CLAIM BECAUSE IT

IS UNRIPE, DOES THE COURT NEVERTHELESS HAVE

JURISDICTION TO ADJUDICATE PRECLUSION

DEFENSES?

BY HOLDING THAT A STATE TAKING CLAIM WAS

NEITHER BEFORE THE COURT NOR GERMANE, DID

THE ELEVENTH CIRCUIT DEPRIVE THE COUNTY OF

ITS RIGHT TO APPEAL THE DISTRICT COURT’S EXER-

CISE OF JURISDICTION OVER, AND ITS DISPOSITION

OF, THE COUNTY’S DEFENSES TO THAT CLAIM?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............0..2.c0e000

TABLE OF CONTENTS............--.-- ine. ii

TABLE OF AUTHORITIES ...............0..0se000 iv

STATEMENT OF THE CASE.............-..2.0-+ 1

REASONS FOR GRANTING THE PETITION....... 1

THIS CASE MERITS SUPREME COURT REVIEW

BECAUSE THE ELEVENTH CIRCUIT OPINION

(a) AUTHORIZES DISTRICT COURT JURISDIC-

TION TO REVERSE STATE COURT ADJUDICA-

TIONS, (b) PREVENTS STATE COURTS FROM

DECIDING WHETHER REGULATORY ACTIONS

SHOULD BE REVERSED AS CONFISCATORY IN

ORDER TO AVOID PERMANENT TAKINGS

SUCH AS THE CLAIMED $140 MILLION TAKING

IN THE PRESENT CASE, (c) AUTHORIZES THE

EXERCISE OF JURISDICTION WHERE SUBJECT

MATTER JURISDICTION IS EXPRESSLY FOUND

TO BE LACKING, AND (d) DENIES THE RIGHT

OP APEGAR. i. cccccccccsuneadne cscs vais euwsases 1

The Eleventh Circuit’s decision is in clear conflict

with Supreme Court case law ................... 1

1) First English - The Eleventh Circuit’s peculiar

definition of a Fifth Amendment taking claim

creates a “Catch 22,” undermining First

EIU. os cccedasucuaweckes abuse anes saaee 1

2) Rooker-Feldman — The Eleventh Circuit’s express

exceptions to Rooker-Feldman eviscerate that

GOs io 5. stcccasictantsanta yeeros iba peaus 3

(a) The Eleventh Circuit’s Exceptions To

SP a We Ch cdndanssrccisoreiesxe 3

iii

TABLE OF CONTENTS - Continued

Page

(b) The Florida court adjudicated Agripost’s

taking claim as a matter of both law and

Ds seeder ch whl in sp wedes ces aba ess vi

3) Lucas - The Eleventh Circuit opinion negates

the “takings” principles of Lucas. ............

4) Williamson County - The exercise of jurisdiction

where it is found to be lacking is the antithesis

of Williamson County. .............0ccececeeee

NOME 0s ook Chis SUD ada xd 45% du kas oa tin ain

iv

TABLE OF AUTHORITIES

Page

Albrecht v. State, 444 So.2d 8 (Fla. 1984).............. 6

Dade County v. National Bulk Carriers, Inc., 450

we ike: Me. | | Peeepereeer. weer rere rere Ter 5, 6

Disher v. Information Resources, Inc., 873 F.2d 136

CPA ie as os i AR wee ATES 9

District of Columbia Court of Appeals v. Feldman, 460

CER. GE De nts 545 disuse bcsendeoaguadaaaa 3, 4,9

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) ............ 1, 2, 9

Grayson v. K-Mart Corp., 79 F.3d 1086 (11th Cir.

fe, PP Sere Te Fe erp y ry Pre pee ror Meh oo SE 9

Jefferson National Bank at Sunny Isles v. Metropolitan

Dade County, 271 So.2d 207 (Fla. 3d DCA 1972)..... 7

Key Haven Associated Enterprises, Inc. v. Board of

Trustees of the Internal Improvement Trust Fund,

GAT SOAs See CPM TD ei ose cs cenceeascesesnas 6

Lucas v. South Carolina Coastal Council, 505 U.S.

LUE, Aa eh: Be CE, 5.5 kb os S30 W Rea Rae R Eee 8

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .. 3, 4, 9

Smalleylogics Corp. v. Dade County, 176 So.2d 574

CP FE TR BOPP oo a eed on kes aaa S05 ose d auenw ewes 7

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

(SON sac kekas ins deny ide ibeieseneeaabien hbaa en 9

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)............... 8, 9

STATEMENT OF THE CASE

Agripost’s Statement of the Case consists largely of

legal arguments pertaining to the state court adjudication

of its taking claims, which arguments are discussed infra.

Otherwise, Agripost extensively discusses (a) its contract

claim, Br. at 1, 2, 5, which is immaterial because it is not

involved in the Petition, and (b) its purported “cure-all,”

which was expressly rejected by the Florida court based

upon Agripost’s own admissions. App. 58. Significantly,

Agripost does not dispute that it admitted creating a

public health nuisance in violation of both of its condi-

tional zoning approval and its conditional lease upon

state lands. Pet. at 2-3.

&

v

REASONS FOR GRANTING THE PETITION

THIS CASE MERITS SUPREME COURT REVIEW

BECAUSE THE ELEVENTH CIRCUIT OPINION (a)

AUTHORIZES DISTRICT COURT JURISDICTION TO

REVERSE STATE COURT ADJUDICATIONS, (b) PRE-

VENTS STATE COURTS FROM DECIDING WHETHER

REGULATORY ACTIONS SHOULD BE REVERSED AS

CONFISCATORY IN ORDER TO AVOID PERMANENT

TAKINGS SUCH AS THE CLAIMED $140 MILLION TAK-

ING IN THE PRESENT CASE, (c) AUTHORIZES THE

EXERCISE OF JURISDICTION WHERE SUBJECT MAT-

TER JURISDICTION IS EXPRESSLY FOUND TO BE

LACKING, AND (d) DENIES THE RIGHT OF APPEAL.

The Eleventh Circuit's decision is in clear conflict with

Supreme Court case law.

1) First English - The Eleventh Circuit's peculiar

_ definition of a Fifth Amendment taking claim

creates a “Catch 22,” undermining First English.

Agripost erroneously argues that the conflict with

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987), is simply “a question of

Florida law.” Br. at 9. However, independent of Florida

case law and the facts of this particular case, the Eleventh

Circuit has established a “Catch 22” rule prohibiting the

raising or adjudication of a taking claim during any state

court zoning appeal. This deprives both property owners

and the states of the right to have confiscatory zoning

actions stricken and thereby prevent temporary takings

from becoming permanent takings.

In order to hold that the Florida court did not adjudi-

cate Agripost’s Fifth Amendment taking claim, the Elev-

enth Circuit had to define a taking claim in such a

peculiar way as to require Agripost or any other litigant

to do the impossible. Agripost would have had to allege

to the Florida court hearing its zoning appeal that that

very court had already taken its property. The Eleventh

Circuit held:

Agripost had to have filed a pleading (with the

Circuit Court) alleging the following: 3

The Circuit Court’s decision affirming the

County’s revocation of the permit effec-

tively rendered Agripost’s property . . .

worthless [therefore] Agripost has a ripe

Fifth Amendment takings claim.

App. at 13.

Agripost itself confirms that the Eleventh Circuit

held that the Florida court “could not have had such a

[peculiar] claim before it.” Br. at 12. See Eleventh Circuit

Op. at 14-16. At the same time, however, Agripost con-

cedes that “First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987), held that State

courts have the power to strike down zoning actions that are

confiscatory.” Br. at 9. By the foregoing, Agripost itself has

highlighted the “Catch 22” created by the Eleventh Cir-

cuit opinion and the ensuing conflict with First English

that warrants Supreme Court review.

2) Rooker-Feldman - The Eleventh Circuit's

express exceptions to Rooker-Feldman evisce-

rate that doctrine.

(a) The Eleventh Circuit’s exceptions to

Rooker-Feldman.

Unable to defend the Eleventh Circuit’s express

exception to Rooker-Feldman,! Agripost avoids it by misin-

forming the Court that the “Eleventh Circuit ‘exception’

to Rooker-Feldman [was not] involved.” Br. at 11. This

statement, of course, flies in the face of the record. See the

District Court’s express application of this “exception” at

App. 29-30, and the Eleventh Circuit’s recognition and

affirmance of this holding based, inter alia, upon unripe-

ness at App. 7, 11-14, 18.

Independent of Florida case law and the facts of this

case, the Eleventh Circuit has created a new rule of law in —

conflict with Supreme Court case law. The Eleventh Cir-

cuit’s exception to Rooker-Feldman permits district courts

1 The Rooker-Feldman doctrine provides that “a United

States District Court has no authority to review final judgments

of a state court in judicial proceedings.” District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923). The doctrine extends to

claims “inextricably intertwined” with the state court’s

judgment. Feldman at 483 n.16.

to exercise jurisdiction to effectively reverse state court

adjudications of dispositive issues whenever a new claim

ripens and, even more broadly, whenever a prior state

adjudication did not “unambiguously dispose . . . of a

federal constitutional claim.” App. 6. See Pet. at 12. This

effectively eviscerates Rooker-Feldman by allowing district

court jurisdiction whenever (a) a new claim ripens, even

though the essential elements of that claim have been

previously adjudicated by the state court, and (b) when-

ever the prior adjudication either did not involve, or did

not expressly decide, a federal constitutional claim.

(b) The Florida court adjudicated Agripost’s

taking claim as a matter of both law and

fact.

As discussed, supra, the Eleventh Circuit has created

new, sweeping precedents that transcend the particular

facts and state law involved in this case. However, the

Eleventh Circuit’s effective reversal of Florida Supreme

Court precedent, and its error as to the adjudication of

Agripost’s taking claims, in themselves, warrant review.

This is so because of both the violation of fundamental

principles of federalism, and the enormous financial con-

sequences for the state of Florida, matters which Agripost

seeks to minimize. See Br. at 8-9.

Try as it might, Agripost simply fails to rebut the

County’s showing that the taking claims were adjudi-

cated by the Florida court. When stripped of its name-

calling, Agripost’s discussion of this issue relies on noth-

ing but the very Eleventh Circuit opinion which the Peti-

tion demonstrates to be both erroneous and in conflict

_ ee

with multiple Supreme Court decisions. While Agripost

repeatedly accuses the County of misrepresenting that

Agripost’s taking claims were adjudicated by the Florida

court, Br. 4, 5, 8, 11, it presents nothing to substantiate its

false accusations and engages in the very kind of conduct

which it condemns.

The County’s Petition meticulously demonstrated

that Agripost asserted to the state court a $30 million

taking claim under both the United States and Florida

Constitutions. Agripost argued that “[bJoth the Federal

and State constitutions provide that the Legislature shall

not take property without due process of law and just

compensation.” Pet. at 3, citing AF 3-31. The Petition also

thoroughly documented how the $30 million taking claim

was not only expressly recognized by the Court, Pet. at 4

citing App. 60, but also how the claim or its elements

were both directly and necessarily adjudicated as a matter

of law in no less than four separate ways by the Florida

circuit pursuant to a Florida Supreme Court requirement

to adjudicate taking claims. See Pet. at 16-21 and Dade

County v. National Bulk Carriers, Inc., 450 So.2d 213 (Fla.

1984).

Unable to refute even one of those four showings,

Agripost merely bootstraps its conclusion using the Elev-

enth Circuit opinion, which, as discussed supra, defines a

taking claim so peculiarly that no one could have raised

it. On the one hand, Agripost even says that the County’s

analysis of the state court taking claim adjudications was

never made. On the other hand, Agripost acknowledges

that the argument was made and repeats its complaint

that the County dares to disagree with the Eleventh Cir-

cuit. In its “Statement of the Case,” Agripost argues:

The Eleventh Circuit expressly held that no Flor-

ida court had ever adjudicated Agripost’s taking

claim or could have. Dade sets forth no reason to

show that holding was wrong but ignores it, and

writes as if the Florida state court had adjudi-

cated the takings claim. Pet. 4.

Br. at 8. In its argument, Agripost contradicts itself:

[P]etitioner engages in a discussion of why the Flor-

ida State court “had rejected Agripost’s taking

claims,” Pet. 16, in the teeth of the Eleventh

Circuit’s express holding that the Florida State

court had no such takings claim before it, could

not have had such a claim before it, and had

made no such adjudication.

Br. at 12.

Agripost further argues in its “Statement of the Case”

that the County “does not address either of the cases

cited by the Eleventh Circuit to show that the takings

claim could not have been raised” before the Florida

court. Pet. at 5. This is patently untrue. See the Eleventh

Circuit’s discussion of National Bulk Carriers, and Key

Haven Associated Enterprises, Inc. v. Board of Trustees of the

Internal Improvement Trust Fund, 427 So.2d 153 (Fla. 1982),

at App. 16-17, and the County’s analysis of both these

cases demonstrating the facially apparent error in the Elev-

enth Circuit’s opinion, at Pet. 19-21. Moreover, Agripost’s

reliance, in its Statement of the Case, upon Albrecht v.

State, 444 So.2d 8 (Fla. 1984), highlights the error of its

argument. Albrecht, like Key Haven, was expressly distin-

guished by the Florida Supreme Court in National Bulk as

inapplicable to a Dade County unusual use zoning reso-

lution, the identical kind of zoning action involved in the

present case. 450 So.2d 213 at 216.

Agripost further misinforms this Court as follows:

The Florida cases cited by the three-judge Florida

opinion went to the question of . . . substantial

competent evidence ... not to any takings claim, as

the Eleventh Circuit expressly found.

Contrary to Agripost’s representations and the asserted

Eleventh Circuit finding, those cases had nothing to do

with the substantial competent evidence rule and every-

thing to do with the Florida court's rejection of Agripost’s

taking claim.

The case of Smalleylogics Corp. v. Dade County, 176

So.2d 574 (Fla. 3d DCA 1975), cited by the Florida court at

App. 58 and discussed in the County’s Petition at 17,

involved a property owner’s contention that it had “a

substantial vested property right in” a Miami-Dade County

conditional zoning approval. 176 So.2d 574, 577. The Flor-

ida Court held that under Florida law the owner “cannot

now claim that he can violate the conditions without

forfeiting his right to the conditional [zoning approval].”

Id. at 578. Similarly, the case of Jefferson National Bank at '

Sunny Isles v. Metropolitan Dade County, 271 So.2d 207 (Fla.

3d DCA 1972), was cited by the Florida court at App. 59

to negate Agripost’s estoppel claim. As demonstrated in

the Petition, estoppel is the equivalent of a taking of a

vested property right under Florida zoning law. Pet. at 19

n.11.

8

3) Lucas - The Eleventh Circuit opinion negates

the “takings” principles of Lucas.

In Lucas v. South Carolina Coastal Council, 112 S. Ct.

2886, 2899 (1992), this Court reaffirmed traditional state

and federal case law recognizing the truism that one

cannot assert a taking for the alleged deprivation of

rights that were “not part of his title to begin with.”

Although there is nothing new about this holding, Agri-

post would have this Court accept that because Lucas was

decided after the Florida circuit court opinion, the Florida

circuit court could not have applied the time-honored

principles recognized therein. Br. at 10.

Contrary to Agripost’s distortion, the County does

not contend that the Florida court relied upon Lucas,

itself, but upon the pre-existing state and federal law

confirmed therein. Furthermore, the Eleventh Circuit's

subsequent rejection of the Florida adjudication, which

adjudication was predicated upon these longstanding

legal principles, does conflict with Lucas itself. Finally, the

Eleventh Circuit’s disallowance of a state court's right to

reverse confiscatory zoning and avoid a permanent tak-

ing establishes a second, independent conflict with Lucas.

See 112 S. Ct. at 2901, n.17, Pet. at 8. r

4) Williamson County -— The exercise of jurisdic-

tion where it is found to be lacking is the

antithesis of Williamson County.

Perhaps the most patent conflict of the Eleventh Cir-

cuit opinion is with the case of Williamson County Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985),

which holds that a district court lacks subject matter

jurisdiction altogether over an unripe taking claim.

Understandably, Agripost wishes to avoid this patent

conflict by labeling it “not relevant,” Br. at 10, and by

distorting the issues raised by the Petition as involving

standing and appellate jurisdiction as opposed to district

court jurisdiction. Br. at 12-13.

The Eleventh Circuit affirmed as to both the district

court's lack of jurisdiction over the taking claim and that

court's exercise of jurisdiction over the County’s defenses

to that very claim. See App. 10, n.11. This is in clear

conflict with both Williamson County and the Supreme

Court’s strict holdings that lack of jurisdiction deprives

the district court of the power to adjudicate the merits.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998), discussed at Pet. 22. Not only are Williamson

County and Steel Company highly relevant, but also they

underscore the clear, unequivocal conflict of the Eleventh

Circuit opinion with Supreme Court case law on a matter

of great importance going both to the essence of a federal

district court’s power and to the foundation of our consti-

tutional, federal structure of government. Moreover, the

improper exercise of jurisdiction enabled by this conflict

leads directly to, and exacerbates, the additional conflicts

with First English, Rooker-Feldman, and Lucas discussed

supra.

Finally, Agripost’s contention that because the case

was ultimately dismissed without prejudice it is of little

consequence, Br. at 8, runs directly counter to Agripost’s

own cited cases of Disher v. Information Resources, Inc., 873

F.2d 136, 138-39 (7th Cir. 1989) and Grayson v. K-Mart

Corp., 79 F.3d 1086, 1095 n.10 (11th Cir. 1996), Br. at 13,

10

which recognize the aggrievement of a party in having to

face repeated litigation.

CONCLUSION

In opposing certiorari review, Agripost finds nothing

to rely upon other than the demonstrably erroneous and

conflicting Eleventh Circuit opinion itself. This is perhaps

the best indication that the conflicts identified by the

Petition are both real and significant. If allowed to stand,

the opinion will condone a vast expansion of federal

district court jurisdiction in conflict with multiple

Supreme Court decisions, all to the prejudice of both

Miami-Dade County and innumerable other state and

local governments.

Respectfully submitted,

Ho.LtaND & KNIGHT Rosert A. GINSBURG

Suite 3000 "faa? County

701 Brickell Avenue Suite 2810

Miami, Florida 33101-5441 111 Northwest First Street

Phone: (305) 374-8500 Miami, Florida 33128-1993

DanteL S. PEARSON Phone: (305) 375-3771

Florida Bar Number 062079 Fax: (305) 375-5634

Rosert L. KRAWCHECK

Florida Bar Number 128019

and

JAMEs J. ALLEN

Florida Bar Number 317861