Petition for Writ of Certiorari — Kottschade v. City of Rochester

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» nergy aa. U.S.

No. (9.218 4 8 JUN 19 2003

* In The

Supreme Court of the United States

FRANKLIN P. KOTTSCHADE,

Petitioner,

CITY OF ROCHESTER,

Respondent.

On Petition for Writ Of Certiorari To

The U.S. Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

DUANE J. DESIDERIO MICHAEL M. BERGER

NATIONAL ASSOCIATION OF . Record

HOME BUILDERS IDEON KANNER

1201 15" Street, NW BERGER & NORTON

12121 Wilshire Blvd

Los Angeles, CA 90025

(310) 979-2500

Washington, D.C. 20005

(202) 266-8146

GEORGE O. LUDCKE

KELLY & BERENS, P.A.

80 SOUTH 8™ STREET

MINNEAPOLIS, MN 55402

(612) 349-6171

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Should this Court resolve the conflict between its

decisions in Williamson County Reg. Plan. Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985), and City of

Chicago v. International College of Surgeons, 522 U.S.

156 (1997)? The former requires landowners seeking

compensation for regulatory taking of property to sue in

the state courts and prohibits them from suing in U.S.

District Court. However, the latter simultaneously

grants municipal defendants in such cases the absolute

right to remove them to U.S. District Courts — even

though (a) removal is authorized by 28 U.S.C. § 1441(a)

only if the plaintiff could have filed suit in federal court

in the first instance which, under Williamson County,

landowners may not; and even though (b) the

combination of Williamson County and City of Chicago

gives municipal defendants a veto power over the

plaintiff's 7th Amendment right to a jury trial under City

of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999).

The Court of Appeals agreed with Petitioner that this

situation represents an "anomalous. . . gap in Supreme

Court jurisprudence," but declined to address it,

explicitly concluding that how to resolve the conflict "is

for the Supreme Court to say, not us."

2. When a city openly defies this Court's holding in Dolan

v. City of Tigard, 512 U.S. 374 (1994), by (1) imposing

onerous conditions on a land use approval that are

grossly disproportional to the burdens the proposed

project will create, and (2) flatly refusing its duty to

show any proportionality, has the landowner stated a

claim on which relief can be granted by a U.S. District

Court?

ee A ee ee Ra a GS

TABLE OF CONTENTS

QUESTIONS PRESEN TED Ms... coiccsncccvsvesssnsssveseooseitorssvnbesonesaes i

OPINIONS BELOW, .nisscissvssisssvsninnsansontiesionsuoeabeseijenintasdonadoonns 1

SURES TION.......esssiserrsooobecetren Oiservsescveniassepenriansevaebsideens ]

CONSTITUTIONAL AND ;

" STATUTORY PROV Ta nscvinsviscosciviceesssssseretanseveaptunvennens 2

STATEMENT OF TEGR CORB scsesccicsvcsevinccosstensasevtserngunncsvicnve 3

REASONS FOR GRANTING THE WRIT...........cceeeeeeeeeeees 4

I. THE CONUNDRUM TO BE RESOLVED................ 4

A. Do State Or Federal Courts Have Initial (Or Sole)

Jurisdiction Over Regulatory Taking Claims Under

The 5th Amendment? And Who Decides?................ +

B. Confusion And Unfairness Of "Catch-22" Proportions

Abound In The Wake Of Two Conflicting Decisions

Freee FIG COUR, os cians idversveessucsiusnenevnpaniiaeartiiniinss 5

C. The Unfairness And Confusion Created By This

Jurisdictional Conflict Are Widely Recognized......... 6

II. THERE IS DIRECT CONFLICT BETWEEN TWO

DECISIONS OF THIS COURT: WILLIAMSON COUNTY

PRECLUDES PROPERTY OWNERS FROM SUING IN

FEDERAL COURT FOR 5TH AMENDMENT REDRESS,

WHILE CITY OF CHICAGO WELCOMES MUNICIPAL

DEFENDANTS TO REMOVE THE SAME CASES TO

ee ee Se ee See, ee es eee oe ee

ill

FEDERAL COURT. THEY CANNOT OPERATE

IIIS Shieh thi Nahi tadtahieatcis ics crscdndsssnsocisensceare: 7

II]. EVEN BEFORE THIS COURT ISSUED ITS SECOND —

CONFLICTING — OPINION, LOWER COURTS HAD

MADE A HASH OF A RULE THIS COURT DESIGNED

AS "NOT YET RIPE FOR FEDERAL COURT,"

TURNING IT INTO A RULE OF "NOT EVER IN

INI igi alsscocsbhcculcdavickecuceksidiecevbonosace, 10

A. The Premise Of Williamson County Was That Property

Owners Would Be Able To Obtain A Federal Court

Ruling On The Merits Of Their Regulatory Taking

Claims After They First "Ripened" Their Cases In State

LARS CBOE tet Te CONS a 10

B. Lower Courts Have Misused Williamson County As A

Device To Prevent Property Owners — Alone Among

Citizens — From Litigating Federal Constitutional

Ie UR CE csc ssseasececsasinsscessieavessecsuces 14

1. Property Owners Are The Only Victims Of Bill Of

Rights Violations Who Are Barred From Seeking

Redress In Federal Court | ............s:sec...ccccssssssooeess 14

2. Doctrines Of Claim And Issue Preclusion Have Been

Misemployed By Lower Courts To Undercut

Williamson County's "Ripening" Process. ........... 17

C. With Respect, There Is A Flaw At The Core Of

Williamson County That Explains The Lower Court

Confusion: Its Assumption That A 5th Amendment

Taking Without Just Compensation Is Not Complete

Until A State Court Certifies That The Local Agency

ae eck oc ti Sons vin ps ens causid eevee 19

IV.

D. Commentators Have Vied With Each Other Devising

Ways To Disparage The Quagmire The Lower Courts

Have Created In Their Applications Of Williamson

SI, echsisciisisiietincsdenisiebarcasaiarepmsmnamaadubaiatiudcaieed 23

AS A DIRECT RESULT OF LOWER COURT:

MISUSE OF WILLIAMSON COUNTY, AND NOW

THEIR DISREGARD OF CITY OF CHICAGO,

PROPERTY OWNERS IN 5TH AMENDMENT

TAKING CASES HAVE NOT ONLY BEEN DENIED

ACCESS TO FEDERAL COURTS TO PURSUE

FEDERAL REMEDIES UNDER 42 U.S.C. § 1983, BUT -

ALSO DENIED THE 7TH AMENDMENT RIGHT TO A

JURY GUARANTEED BY THIS COURT'S CITY OF

DEI ET CG E icctcise.cihstetcredisteeesnieiearviniotienis 26

A. The Williamson County Rule, As Applied By The

Lower Courts, Denies Property Owners The Protection

Ebene Sy 42 U.S.C, G TFBS... ..ncscsccsossevssnssesiosenss 27

B. The Lower Courts' Application Of Williamson County

And Disregard Of City Of Chicago Denies Property

Owners Their 7th Amendment Right To A Jury Trial

Ce Cr Ge I ovsieinivcck incsccascnresecendsestonveniavens 29

AIO AGT -cicicrnisichinigns ninseninctaaaiciomaddaenits ae ee ome 29

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Charter Township of Ypsilanti,

DGG FSA GBT CE Cie, TOD sss ssecesstcsevcccecddsevscosescssioancis 5

Barbian v. Panagis, 694 F.2d 476 (7" Cir. 1982)......000.. 11

Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996),

cert denied, 117 S.Ct. 1086 (1997)... ehcdashiaihaains 16

Bell v. Hood, 327 U.S. 678 (1946). ......ccccccccescesscseeees 4,14

Berkley v. Common Council, 63 F.3d 295

oh Oe 15

Burnett v. Grattan, 468 U.S. 42 (1984) ooo.cccccccccccsceseeeee. a?

Chicago B.&Q.R. Co. v. Chicago,

OEMs ES OT Piviischessinithboviesiinsansaiaassdkabedscinaaaiiounes 19

City of Boerne v. Flores, 521 U.S. 507 (1997) .......ccccc00e. 15

City of Chicago v. International College of Surgeons,

Pa PG CRITE Betiitiniceidicniemnbaieiadtiac acto aie passim

City of Monterey v. Del Monte Dunes,

ON Si SE Ee E inretnssencseiiiblanndds snasuncls aciaeas passim

City of Renton v. Playtime Theatres, Inc.

FF Wa RE Fi icietaccicistiniiebidncitdaudintinGuicconsiceccenines 15

County of Allegheny v. Frank Mashuda Co.,

Ce eaiistbsihnceienkisincteindistiokiciicisieicius 16

Cumberland Farms v. Town of Groton, 808 A.2d 1107

CEERI: TIIIIE D sccisisssacoviactspecininjarciaeenatel aaa 29

Dodd v. Hood River County, 59 F.3d 852

FP Che: SI ici icant 24

Dodd v. Hood River County, 136 F.3d 12i9

("Cle TI Sink ccsaccccdiaipeansen a eeaeaeees 17

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... i, 1,14

England v. Louisiana State Bd. of Medical Examiners,

S75 US, QE isis ccsser entertain 5, 14, 18

Felder v. Casey, 487 U.S. 131 (1988)... 21, 23, 28

Fields v. Sarasota-Manatee Airport Auth.,

O53 F.20 1200-ChT COe FO ccieccotertnein 23

First Assembly of God v. Collier County, 20 F.3d 419

CE E* Che, TON a. csiccsssssecsssmmctintonslnananannreaaeaala 15

Fountain v. Metro Atlanta Rapid Transit Auth.,

G78 P28 WBE LUE Ce Tia iscccscecttsennntne 11

Gares v. Willingboro Township, 90 F.3d 720

(DG CAE, SPI xsiccsvvcecsoseveigesuscsiisumensemeunbiipnestantenanatancieal 16

Golden State Transit Corp. v. City of Los Angeles,

GOS EB. US CII ivcicccsnsicasncineceisninteliiviibeiieinatanntind 28

Gonzalez v. Ysleta Indep. School Dist., 996 F.2d 745

CF? CW.. POI va siccccrocceimrerchaintionsaamaaaaeene 16

Vil

Gordon v. City of Warren, 579 F.2d 386

rr ne 11

Hammond v. County of Madera, 859 F.2d 797

By SI ie tesicile eccentric et oo 16

Heck v. Humphrey, 512 U.S. 477 (1994) .....cccccceceseeeeeeee 27

Hernandez v. Lafayette, 643 F.2d 1188

gi | tEREAR eto 11

Inyo County v. Paiute-Shoshone Indians,

Se A CHIE I cshinssetbcdtcieadsiebaetrenendsictnesnbsatiai 27

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ........00.- 27

Kalina v. Fletcher, 522 U.S. 118 (1997)........cccccceeseeeeee 27

Lake Country Estates v. Tahoe Reg. Plan. Agency,

et SEE OF WF irchnnnssenitnibicaadibianibcaabindelicainatciiascnse 28

Larkin v. Grendel's Den, 459 U.S. 116 (1982)...........002. 15

Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) .....27

Martino v. Santa Clara Valley Water Dist.,

A I Ee Rs aseicscsceccnenionsncnnsnicbonndetas 11

Mitchum v. Foster, 407 U.S. 225 (1972) ......ccccceeceees 27, 28

Monell v. Department of Social Servs.,

FP rh WERE rin actiesddensinandntsbccsupnenninttanshencstsniaks 27

Monroe v. Pape, 365 U.S. 167 (1961) .........:..cccccceeees 21,27

Nemmers v. City of Dubuque, 764 F.2d 502

a ie uaanes 11

Nevada Dept. of Human Resources v. Hibbs,

SD atte BOTs CED cermncsveiernaneiniictteninnnncsninesiniiil 19-20

Palomar Mobilehome Park Assn. v. City of San Marcos,

te | ge | REE aereencned Weiner nN UNeEe 17

Patsy v. Florida Board of Regents,

SF Bes Se intatintenialaadaipipanititanianiintanniennticienens 28

Peduto v. City of North Wildwood, 878 F.2d 725

Ce Gi. Re scansentinencetehisiisiniaiadnncedinccciionsebicebeabaitiantigians 17

Rainey Brothers Constr. Co., Inc. v. Memphis & Shelby County

Bd. of Adjustment, 967 F. Supp. 998 (W.D. Tenn. 1997),

aff'd, 178 F.3d 1295 (6" Cir. 1999) (table)................00+ 17

Rau v. City of Garden Plain,

76 F.Supp.2d 1173 (D. Kans. 1999) ..............csscsssccsssseees 6

Reahard v. Lee County, 30 F.3d 1412

Lb eg RRCRRIEE eS a elaere arerenene renee ener: 5, 10

Richardson v. Leeds Police Dept., 71 F.3d 801

Lg 3. SR ENROR SCE fark a Laneane wee 15

Roma Constr. Co. v. aRusso, 96 F.3d 566

tS | BERR SES cee errr is Gore 16

Sandy Creek Investors, Ltd. v. City of Jonestown,

Oe Oe ee icc ec 5

Screws v. United States, 325 U.S. 91 (1945) ....cccccccccccece. 21

Simmons v. City of stein 947 F.2d 1642

EGRESS SEs yn Se Rae 16

Turner v. Upton County, 915 F.2d 133 (5" Cir. 1990)... 16

Vigilante v. Village of Wilmette,

88 F.Supp.2d 888 (N.D. Ill. 2000) oo... cccccccccecceceeeeeeees 6

Wilcox v. Consolidated Gas Co., 212 U.S. 19 (1909)......14

Wilkinson v. Pitkin County Bd. of Comm'rs,

142 F.3d 1319 (10 Cir. 1998).........:.sesscsecccsssessseee 17, 18

Will v. Michigan Dept. of Police, 491 U.S. 58 (1989).....19

Williamson County Reg. Plan. Comm'n vy.

Hamilton Bank, 473 U.S. 172 (1985)......0..ccccccccceeee passim

Wilson v. Garcia, 471 U.S. 261 (1985)........cccccccccceseeseeees 23

Young v. American Mini Theatres,

a aii hae idicitiscstieteensscetebaivadcroneceroiae 15

STATUTES AND REGULATIONS

EGER PONE ae Ok Ee 2, 7-8

I 2

Th schitisckinehancinotenebbichckcndeovadecseveneiveiia passim

OTHER

Brian Blaesser, Closing The Federal Courthouse Door On

Property Owners: The Ripeness and Abstention Doctrines in

Section 1983 Land Use Cases, 2 Hofstra Property L.J. 73

III cisnasi-vicocesianech otanpdannesindclenmunceneneneunemeniceeabce imation 28

Peter A. Buchsbaum, Should Land Use Be Different?

Reflections on Williamson County Regional Planning

Board v. Hamilton Bank, in Taking Sides on Takings

Issues: Public and Private Perspectives, (A.B.A. 2002;

PE Be Fe cine itecticisiinntinsovvivcens 22, 24, 25, 28

David A. Dana & Thomas W. Merrill, Property Takings

SINE cinis ccbechanicctinataan Ottaotialiiestemeuand Nobandompnanidusabanenaiens 25

John J. Delaney & Duane J. Desiderio, Who Will Clean Up the

“Ripeness Mess”? A Call for Reform So Takings Plaintiffs

Can Enter the Federal Courthouse,

Ce SE 1... ee nN err 6,9, 25

Steven J. Eagle, Regulatory Takings

ag BD retininicvtgdeaadsiiin vidi openiedenanns 13, 14, 22

Robert H. Freilich, Adrienne H. Wyker & Leslie Eriksen Harris,

Federalism at the Millennium: A Review of U.S. Supreme

Court Cases Affecting State and Local Government, 31 Urb.

a, CIE Oe ee hinttierin eerctnnnneiesominscnts vs ly ely

Robert H. Freilich, The Public Interest Is Vindicated: City of

Monterey v. Del Monte Dunes,

Fe I By. Be Cie Rivtcinteniccveninicies 17, 24, 25

Timothy J. Kassouni, The Ripeness Doctrine and the Judicial

Relegation of Constitutionally Protected Property Rights,

29 Cal. West. L. Rev. 1 (1992) ........0sscseesesceseess 14-15, 25

Kathryn E. Kovacs, Accepting the Relegation of Takings

Claims to State Courts: The Federal Courts’ Misguided

Attempts to Avoid Preclusion Under Williamson County,

£6 Boology L.0.. 1 (1999) .....cc.cescensarsserssssspeersevesrseveee 8, 23

Jan Laitos, Law of Property Rights Protection

CRMIINE ERIS DIIOD enesss conser nvessesacsscssessccscistaseccdes 23, 24

Prof. Daniel R. Mandelker, Testimony before the House

Judiciary Committee, reproduced at

PE EI, Es BP sicatscensnsvornieosicvenecsanecnsoxsens 24, 26

Daniel R. Mandelker, Jules B. Gerard & E. Thomas Sullivan,

Federal Land Use Law (Clark, Boardman,

RI NII Ah sidabiicidelatinetinissded sisiohRcridscsersedascnveseccadinces 25

Madeline J. Meacham, The Williamson Trap,

Be Is RAW, TIP QO) oveivevcssvercatssivsstserosverseces 13, 25, 29

Robert Meltz, Dwight H. Merriam & Richard M. Frank,

The Takings Issue (Island Press EPO TR sitiasbiipisnnionsnets 23, 24

Gregory Overstreet, Update on the Continuing and Dramatic

Effect of the Ripeness Doctrine on Federal Land Use

Litigation, 20 Zoning & Plan. L. Rep. 17 (1997)........... 24

Thomas E. Roberts, Ripeness and Forum Selection in Fifth

Amendment Takings Litigation, 11 J. Land Use &

ONT: Din TUMOR ii hicadledisacshsveieinsntilactinit 13, 18, 24, 25

Thomas Roberts, Fifth Amendment Taking Claims in

Xll

Federal Court: The State Compensation Requirement

and Principles of Res Judicata,

Be UR. LW, S78 CE aD stv cvsasivnavarsvcsnnnsivvesenioneens 10-11, 23

Gregory M. Stein, Regulatory Takings and Ripeness in the

Federal Courts, 48 Vand. L. Rev. 1 (1995)............... 15, 24

Arthur Train, Mr. Tutt Plays It Both Ways, in Mr. Tutt’s Case

Book (Charles Scribner’s Sons 1948) .0..........eceeeeeeeeeeeeeees 30

Report of Retreat on Takings Jurisprudence,

in Takings Sides on Takings Issues 568 (A.B.A 2002;

FRR Fi. IID GD sa vcnvieskidcevnseseperincdveinteioordeinnien 7

TABLE OF APPENDICES

A. Opinion of U.S. Court of Appeals for the 8" Circuit

CGD: Bay BD visi chcsnrinstcngtaedscinea enssideaemnainns App. 1

B. Order of U.S. Court of Appeals for the 8" Circuit

Denying Petition for Rehearing and for

Rehearing En Banc (March 21, 2003)..................00 App.8

C. Memorandum Opinion and Order of the U.S. District

Court, District of Minnesota (Jan. 22, 2002) ........... App.9

PETITION FOR WRIT OF CERTIORARI

Petitioner Franklin P. Kottschade respectfully prays

that a Writ of Certiorari issue to review a final judgment of

the United States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW ieee

The decision was filed on February 13, 2003, and is

reported as Kottschade v. City of Rochester, 319 F.3d 1038

(8th Cir. 2003). (App., p. 1.) A timely Petition for

Rehearing and Rehearing En Banc was denied in an

unreported order filed March 21, 2003. (App., p. 8.) The

District Court's opinion (App., p. 9) is unreported.

JURISDICTION

This case was filed because the City of Rochester

defied this Court's decision in Dolan v. City of Tigard, 512

U.S. 374 (1994). There, this Court held that a municipality

could constitutionally condition the issuance of a land

development permit only if its conditions were roughly

proportional to burdens the proposed development would

place on the community, and if the municipality satisfied

demonstrated that proportionality. Here, Rochester

imposed conditions that were grossly disproportionate, and

repeatedly refused Mr. Kottschade's requests to explain

how the conditions related to his development.

Mr. Kottschade sued in U.S. District Court for these

Sth Amendment violations. That court dismissed, believing

Williamson County Reg. Plan. Comm'n v. Hamilton Bank,

473 U.S. 172 (1985) required Mr. Kottschade to sue in state

court first. Mr. Kottschade relied on City of Chicago v.

International College of Surgeons, 522 U.S. 156 (1997),

There, this Court held that a city sued in state court had the

NN ENSIOESS!! AT

right to remove the case to federal court under 28 U.S.C. §

1441(a) vecause the plaintiff could have filed suit in federal

court in the first instance. Mr. Kottschade therefore urged

that City of Chicago modified Williamson County, for if a

defendant can remove, then perforce the plaintiff must be

able to file in federal court initially.

The District Court concluded that, City of Chicago

notwithstanding, Williamson County controlled and

dismissed the case. (App., p. 16-.) The 8th Circuit

affirmed. Although it agreed with Mr. Kottschade that the

situation was "anomalous" (App., p. 5), that Court refused

to address the anomaly, concluding that how to resolve it

"is for the Supreme Court to say, not us" (App., p. 5).

This Court's jurisdiction is by 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment, United States Constitution:

".. . nor shall private property be taken for public

use, without just compensation."

si Fourteenth Amendment, United States Constitution:

"Section 1 . . . nor shall any State deprive any person

of life, liberty, or property without due process of law; . . ."

42 U.S.C. § 1983:

"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 proceeding

for redress."

28 U.S.C. § 1441 (a):

"Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court of which

the district courts of the United States have original

jurisdiction, may be removed by the defendant or

defendants, to the district court of the United States for the

district and division embracing the place where such action

is pending."

STATEMENT OF THE CASE

Frank- Kottschade, a long-time resident of, and

developer in, the City of Rochester, Minnesota, sued under

42 U.S.C. § 1983 charging a regulatory taking of property.

Mr. Kottschade sought to develop a townhouse

project on a 16.4-acre parcel of land he acquired in 1992.

After years of attempting to Satisfy various city concerns

(through four different development proposals), the city

purported to grant a permit in June, 2000. However, it

attached conditions to the permit that reduced the number

of homes from 104 to 26, and added nearly $70,000 in

development costs to each unit — in a market where such

homes sell for $125,000. Economically, it was an

impossibility. Constitutionally, it was a taking.

Knowing that this Court's decision in Dolan v. City

of Tigard, 512 U.S. 374 (1994) allowed conditions only if

they bore a rough proportionality to the burdens the

proposed development would place on the community (and

knowing that these conditions bore no relationship to his

project whatever), Mr. Kottschade asked the city to explain

the nexus and its proportionality. Even though Dolan

placed the burden on the city to provide such an

explanation, the city flatly refused. Twice. In writing.

a Mr. Kottschade then filed this suit. The District

Court dismissed (App., p. 17) and the 8th Circuit Court of

Appeals, albeit with some expressly voiced discomfort

(App., p. 5), affirmed (App. p. 7). Thus, this Petition.

REASONS FOR GRANTING THE WRIT

I. THE CONUNDRUM TO BE RESOLVED

A. Do State Or Federal Courts Have Initial (Or

Sole) Jurisdiction Over Regulatory Taking

Claims Under The 5th Amendment? And Who

Decides?

In City of Chicago v. International College of '

Surgeons, 522 U.S. 156 (1997), this Court held that a

municipal defendant in a state court action challenging the

validity of land use regulations (under both state and federal

law)! may remove that case to federal court. The rationale

was that the plaintiff could have filed suit in federal court in

the first instance (as the suit raised federal questions) and

therefore 28 U.S.C. § 1441(a) granted the defendant the

reciprocal right to remove the case. (522 U.S. at 164.)

However, in Williamson County Reg. Plan. Comm'n vy.

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

such plaintiffs may not file such actions in federal court,

but must first repair to the state courts and seek

compensation there, before their claims can be deemed ripe

for federal court litigation. (473 U.S. at 200.) 2

In fairness to this Court, it appears that the briefs in

City of Chicago did not call Williamson County to the

Court's attention. The adversary system failed to disclose

the doctrinal cliff toward which the Court was being urged.

1 The plaintiff in City of Chicago raised federal due process,

equal protection and taking claims, as the trial court noted (1997

WL 171350) and this Court confirmed (522 U.S. at 160). It is

the allegations in the complaint that determine federal

jurisdiction. (E.g., Bell v. Hood, 327 U.S. 678, 681 [1946].)

That is likely why neither the majority nor the dissent in

City of Chicago mentions Williamson County. As a

consequence, the constitutional law of regulatory takings

now contains two contradictory jurisdictional holdings.

B. Confusion And Unfairness Of "Catch-22"

Proportions Abound In The Wake Of Two

Conflicting Decisions From This Court.

The interaction between these two holdings has

given rise to a true "Catch-22" conundrum. No matter

which court property owners choose to file suit, their

municipal adversaries can muster decisional law saying that

they should be in the other court system.

Under Williamson County, landowners are said to be

barred from federai court while simultaneously — under

City of Chicago — defendants in the same cases can force

_ them into federal court on the bizarre theory that the

plaintiffs could have sued there in the first place, although

— under Williamson County — they could not. Adding

insult to injury, some federal courts have dismissed such

removed cases on the stunning ground that the plaintiffs

(who were brought to federal court involuntarily by the

defendants) should have pursued their action in state court.2

The upshot is that either City of Chicago modified

2 E.g., Sandy Creek Investors, Ltd. v. City of Jonestown, 325

F.3d 623, 626 (Sth Cir. 2003); Reahard v. Lee County, 30 F.3d

1412, 1414, 1418 (11th Cir. 1994) (after two federal trials and

two appeals). See Anderson v. Charter Township. of Ypsilanti,

266 F.3d 487 (6th Cir. 2001) (landowner sued in state court,

municipality removed to federal court, district court abstained

and remanded state claims to state court; when property owner

returned to district court to litigate federal claims, district court

dismissed the case under the Rooker-Feldman doctrine).

Williamson C ounty or the C ourt has inadvertently c reated

not only an insoluble anomaly in the law, but also a class of

American litigants who are de facto pariahs — second class

citizens whose sole access to federal court rests on the

whim of the defendant, and who are at times subjected to a

judicial "ping-pong game" whereby they file suit in state

court, only to have it removed to federal court, which then

remands it back to state court. (E.g., Rau v. City of Garden

Plain, 76 F. Supp. 2d 1173 [D. Kans. 1999]; Vigilante v.

‘Village of Wilmette, 88 F. Supp. 2d 888 [N.D. Ill. 2000].)

Mr. Kottschade submits that this Court could not

have intended to bring about such a grotesque procedural

regime, and urges that the prevailing "ripeness mess"? cries

out for a second look by this Court to reconcile Williamson

County with City of Chicago, and inform aggrieved

property o wners whether t hey can e ver have their federal

constitutional cases heard on the merits in federal court.

C. The Unfairness And Confusion Created By This

Jurisdictional Conflict Are Widely Recognized.

Courts and commentators expressed confusion and

unhappiness with the jurisdictional problems created when

Williamson County held that property owners could try

their regulatory taking cases in federal court, but only after

first "ripening" them in state court. (See post, pp. 23-26.)

City of Chicago exacerbated the situation. Lawyers

from the ABA's State and Local Government Law Section,

representing diverse clients, concluded after a weekend

3 See John J. Delaney & Duane J. Desiderio, Who Will Clean

Up the "Ripeness Mess"? A Call for Reform So Takings

Plaintiffs Can Enter the Federal Courthouse, 31 Urb. Law. 195,

196, fn. 5 (1999).

retreat devoted to this and related issues that either both

parties or neither ought to have access to the federal courts:

"The second and third recommendations deal with the

apparent anomaly in effect, though probably not in

intent, when Williamson is juxtaposed against City of

Chicago v. International College of Surgeons, 522 U.S.

156 (1997). Under City of Chicago, governmental

defendants can, and frequently do, remove takings

claims initiated in state court to federal court under the

federal removal statute. At the same time, under

Williamson, plaintiffs who bring those very same claims

in federal court are told they must litigate in state court.

As a result, the defendants in takings claims have a

choice of forum — state or federal — while takings

plaintiffs under Williamson are apparently required to

go only to state court." (Report of Retreat on T. akings

Jurisprudence, in Taking Sides on Ti akings Issues 568,

574 [ABA 2002; Thomas E. Roberts, ed.].)

: The ABA retreat thereby ended by asking for

» judicial help in resolving the dissonance between

| Williamson and City of Chicago. Mr. Kottschade asks this

> Court to take this opportunity to correct the anomalous state

| of regulatory takings jurisdictional jurisprudence.

e Il. THERE IS DIRECT CONFLICT BETWEEN

: TWO DECISIONS OF THIS COURT:

WILLIAMSON COUNTY PRECLUDES PROPERTY

OWNERS FROM SUING IN FEDERAL COURT

FOR STH AMENDMENT REDRESS, WHILE CITY

OF CHICAGO WELCOMES ' MUNICIPAL

DEFENDANTS TO REMOVE THE S AME C ASES

TO FEDERAL COURT. THEY CANNOT

OPERATE HARMONIOUSLY.

Simply put, Williamson County and City of Chicago

are — as applied below — in direct conflict. City of

Chicago is based on the even-handed rule of 28 U.S.C. §

1441(a), i.e., if the plaintiff could have filed suit in federal

court but chose the state venue instead, then the defendant

has the absolute right to remove the case to federal court.

Thus, if City of Chicago is to be viewed as rational, Mr.

Kottschade should have been permitied to file suit directly

in federal court. The courts below, however, refused to

apply City of Chicago because, in their view, until this

Court itself reconciles it with Williamson County, then

Williamson County mandates dismissal regardless of what

City of Chicago may have said later. Under the lower

courts’ reading of this Court's decisions, only one of the

parties to litigation like this has free access to federal court,

while the other has none. 4 A s summarized ina leading

treatise:

"While not put so starkly, the message for property

owners seems to be: ‘You can't be heard in federal

court, but your opponents can.' " (Steven J. Eagle,

Regulatory Takings 1091 [2d ed. 2001].)

That cannot be the law.

28 U.S.C. § 1441(a) restricts removal to:

"... any civil action brought in a State court of which

the district courts of the United States have original

jurisdiction." (Emphasis added.)

Thus, unless the International College of Surgeons

4 That the City of Chicago complaint also contained due process

and equal protection claims is of no moment. As Professor

Kovacs has explained, the same Williamson County ripeness

rule has been applied to those claims. (Kathryn E. Kovacs,

Accepting the Relegation of Takings Claims to State Courts: The

Federal Courts' Misguided Attempts to Avoid Preclusion Under

Williamson County, 26 Ecology L.Q. 1, 19 [1999] [collecting

exemplars of each].)

could have brought its regulatory taking case in U.S.

District Court initially, based on that court's original

jurisdiction, the City of Chicago could not have been

permitted to remove the case to federal court. But had the

International C ollege o f S urgeons filed initially in federal

court, it would have received the same response as Mr.

Kottschade: case dismissed. That has been the consistent

lower court treatment since Williamson County. (See

Delaney & Desiderio, supra, 31 Urb. Law. at 206-231

[collecting and analyzing in tabular form all federal land

use cases decided between 1990 and 1998].)

In ruling that removal was proper, this Court

concluded simply that, "a case containing claims that local

administrative action violates federal law . . . is within the

jurisdiction of federal district courts." (City of Chicago,

522 U.S. at 528-529.) The Court was well aware of the

momentous nature of its decision. Any doubt was dispelled

by Justice Ginsbwrg's dissent, characterizing the decision as

both a "watershed" (522 U.S. at 175) and a "landmark" (522

U.S. at 180), because:

"After today, litigants asserting federal-question or

diversity jurisdiction may routinely lodge in federal

courts direct appeals from the actions of all manner of

local (county and municipal) agencies, boards, and

commissions." (522 U.S. at 175; Ginsburg, J.,

dissenting.)

Here, the Courts below concluded that, until this

Court expressly says otherwise, they would have to apply

Williamson County and dismiss this case because it had not

gone through state court on the way to federal court. (App.,

pp. 5, 16.) As the Court of Appeals put it, the result of this

"perceived gap in Supreme Court jurisprudence" is

"anomalous" (App., p. 5), but whether City‘ of Chicago

authorizes any relief from this anomaly "is for the Supreme

Court to say, not us" (App., p. 5).

It cannot be the rule that property owning plaintiffs

are barred from federal court while municipal defendants in

the same cases have a free pass into federal court whenever

they like. The issue goes to jurisdiction. Property owners

are said to be unable to file in federal court because the

federal courts lack jurisdiction. (E.g., Reahard, 30 F.3d at

1415.) But jurisdiction cannot magically appear out of thin

air merely because some municipal defendant wants it.

Jurisdiction exists, or it does not. Yet City of Chicago and

Williamson County now simultaneously answer the same

jurisdictional question "yes" and "no." The decisions below

make p lain t hat | ower c ourts wili not address this "mess"

without guidance. Clarification by this Court is necessary.

Ill, EVEN BEFORE THIS COURT ISSUED ITS

SECOND — CONFLICTING — OPINION,

LOWER COURTS HAD MADE A HASH OF A

RULE THIS COURT DESIGNED AS "NOT YET

RIPE FOR FEDERAL COURT," TURNING IT

INTO A RULE OF "NOT EVER IN FEDERAL

COURT."

A. The Premise Of Williamson County Was That

Property Owners Would Be Able To Obtain A

Federal Court Ruling On The Merits Of Their

Regulatory Taking Claims After They First

"Ripened" Their Cases In State Court.

Even commentators opposed to landowners concede

(as they must) that the plain language of Williamson County

contains a clear promise of federal court access:

"Reliance [by the Court] on the ripeness rationale,

unfortunately, suggests to property owners that their

complaints will be ripe and heard in the federal courts

after their state suits are over." (Thomas Roberts, Fifth

Amendment Taking Claims in Federal Court: The State

Compensation Requirement and Principles of Res

Judicata, 24 Urb. Law. 479, 480 [1992].)

Williamson County made clear that this Court was

(a) deciding whether a claim was YET ripe for litigation in

federal court and (b) that there were things which FIRST

had to be done in state court AFTER WHICH the federal

constitutional claims WOULD BE RIPE for federal court.

The Court's analytical discussion begins by saying

that". . . respondent's claim is premature." (473 U.S. at

185; emphasis added.)> Prematurity necessarily means that

something is yet to be done to make the matter mature, or

jurisprudentially "ripe." Williamson County then says that,

because of the lack of both a final administrative decision

(not in issue here®) and the absence of an attempt to seek

compensation in state court, ". . . respondent's claim is not

> The Court did not say there was no valid claim. Nor could

it. Federal courts at that time had dealt with such claims — as

they routinely deal with other Bill of Rights claims — for years.

See, e.g., Nemmers v. City of Dubuque, 764 F.2d 502 (8th Cir.

1985); Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141

99th Cir. 1983); Barbian v. Panagis, 694 F.2d 476 (7th Cir.

1982); Fountain v. Metro Atlanta Rapid Transit Auth., 678 F.2d

1038 (1ith Cir. 1982); Hernandez v. Lafayette, 6 43 F .2d 1188

(Sth Cir. 1981): Gerdon v. City of Warren, 579 F.2d 386 (6th

Cir. 1978).

to financially ruinous conditions, and refused any variances.

Thus, in Williamson County's words, we know precisely "how

[he] will be allowed to develop [his] property." (473 U.S. at

190.) As the court below pointed out, Mr. Kottschade — in

contrast to Williamson County — had _ exhausted his

administrative remedies (App., p. 5) and thus had obtained a

final determination of what the city would approve.

seating

eadaamaaaaaataacaaaiaas alia aaa: ee a

ripe." (473 U.S. at 186; emphasis added.) Absence of

ripeness necessarily means that the matter can be ripened.

Throughout t he o pinion, the C ourt returns to t hese

twin concepts, emphasizing and reemphasizing the

temporal nature of its holding, repeatedly saying that such

cases can be ripened and then litigated in federal court.

The Court's language demonstrates that the Court plainly

was delaying a property owner's entry into the federal

courthouse, not barring it. That concept of a dilatory plea is

crucial in analyzing the development of the law since then.

"A second reason the taking claim is not yet ripe is that

respondent did not seek compensation through the

procedures the State has provided for doing so." (473

U.S. at 194; emphasis added.)

"Similarly, if a State provides an adequate procedure for

seeking just compensation, the property owner cannot

claim a violation of the Just Compensation Clause until

it has used the procedure and been denied just

compensation." (473 U.S. at 195; emphasis added.)

". . . until [plaintiff] has utilized that procedure, its

taking claim is premature." (473 U.S. at 197; emphasis

added.)

The opinion ends as it began, with this conclusion:

"In sum, respondent's claim is premature, whether it is

analyzed as a deprivation of property without due

process under the Fourteenth Amendment, or as a taking

under the Just Compensation Clause of the Fifth

Amendment." (473 U.S. at 200; emphasis added.)

Thus, Williamson County is founded on the twin

concepts of "not yet" and "not until." But lower courts have

lost track of that. Instead, property owners who satisfy

Williamson County find, when attempting to file their now-

ripened federal suits, that the door is barred by res judicata

and collateral estoppel. (See post, p. 17.)7 Thus, the upshot

is that this Court's endorsement of property owners' right to

litigate in federal court after ripening their suits in state

court has been overruled by lower courts. Instead, takings

plaintiffs have been banished to state courts.

If that had been this Court's intent, Williamson

County could have said so. Directly. Its holding could

have been simple and straightforward: "All takings

litigation must be brought in state courts; federal courts

have no jurisdiction to entertain it, even though it involves

the application of the federal Constitution." Period.

Plainly, neither the Congress that enacted 42 U.S.C. § 1983

nor the Court that wrote Williamson County had that in

mind. Quite the contrary. All commentators agree that the

Court's words plainly tell property owners that the way to

litigate their Sth Amendment cases in federal court is to

"ripen" them by litigating first in state court.8

Williamson County's evident establishment of a

system by which property owners could eventually litigate

federal issues in federal court was in keeping with a long

line of decisions holding that those who plead federal

7 As the 8th Circuit put it below, Mr. Kottschade was "justly"

concemed about this likelihood. (App., p. 6; 319 F.3d at 1041.)

8 E.g., Steven J. Eagle, Regulatory Takings 1063 (2d ed. 2001)

("The '‘ripeness' metaphor is one that promises ultimate

vindication"); Thomas E. Roberts, Ripeness and Forum Selection

in Fifth Amendment Takings Litigation, 11 J. Land Use & Envtl.

L. 37, 67 (1995) ("the language . . . suggests that the state law

suit is merely preparatory to a federal suit"); Madeline J.

Meacham, The Williamson Trap, 32 Urb. Law. 239 (2000)

("language . . . suggested that, eventually, a litigant's taking

claim would be heard in federal court"); Jd. at 249 ("language of

Williamson suggests that-a federal claim will survive after

disposition in the state court").

claims and seek the aid of federal courts have a right to a

federal determination. (E.g., Willcox v. Consolidated Gas

Co., 212 U.S. 19, 40 [1909]; Bell v. Hood, 327 U.S. 678,

681 [1946]; England v. Louisiana State Bd. of Medical

Examiners, 375 U.S. 411, 415 [1964].) As this Court put it,

there are "fundamental objections" to compelling a plaintiff

who has legitimately invoked federal jurisdiction "without

his consent and with no fault of his own, to accept instead a

state court's determination of those claims." (England, 375

U.S. at 415.) It is no different here.

B. Lower Courts Have Misused Williamson County As

A Device To Prevent Property Owners —Alone

Among Citizens — From Litigating Federal

Constitutional Issues In Federal Court.

"We see no reason why the Takings Clause of the Fifth

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... ." (Dolan v.

City of Tigard, 512 U.S. 374, 392 [1994].

Notwithstanding this Court's clear language,

property owners have been de facto singled out for virtual

exclusion from the federal court system for redress of their

Sth Amendment grievances against local government

agencies. As things stand now American land owners like

Mr. Kottschade — unlike any other citizens — may never

obtain federal adjudication of their federal rights.

1. Property owners are the only victims of Bill of

Rights violations who are barred from seeking

redress in federal court.

That property owners have been singled out is clear.

(See, e.g., Eagle, supra at 1068-1070; Timothy J. Kassouni,

The Ripeness Doctrine and the Judicial Relegation of

Constitutionally P rotected P roperty Rights, 29 Cal. West.

L. Rev. 1, 2 [1992]; Robert H. Freilich, Adrienne H. Wyker

& Leslie Eriksen Harris, Federalism at the Millennium: A

Review of U.S. Supreme Court Cases Affecting State and

Local Government, 31 Urb. Law. 683, 685 [1999].) As one

commentator concluded, "[t]he state compensation portion

of [Williamson] finds no parallel in the ripeness cases from

other areas of the law." (Gregory M. Stein, Regulatory

Takings and Ripeness in the Federal Courts, 48 Vand. L.

Rev. 1, 23 [1995].)

Paradoxically, federal court protection is routinely

provided in some land use cases — but only those involving

aspects of the Bill of Rights other than the Fifth

Amendment. Federal court First Amendment cases

abound, for example, in which the validity of local land use

ordinances regulating, or zoning for, sexually explicit work

has been challenged.9 There is no requirement of first

presenting the issues to state courts, even though they

implicate the same zoning policies and land use ordinances

as do other land use cases. First Amendment cases dealing

with the land use aspects of establishment of religion are

also litigated in federal courts in the first instance!

Moreover, at the behest of aggrieved citizens,

federal courts have involved themselves in the local

intricacies of city budget policy,!! county law enforcement

9 E.g., City of Renton v. Playtime Theatres, Inc., 475 US. 41

(1986); Young v. American Mini Theatres, 427 U.S. 50 ( 1976).

10 E.g., City of Boerne v. Flores, 521 U.S. 507 (1997); Larkin v.

Grendel's Den, 459 U.S. 116 (1982); First Assembly of God v.

Collier County, 20 F.3d 419 (11th Cir. 1994).

11 Berkley v. Common Council, 63 F.3d 295 (4th Cir. 1995) (en

banc). —

policy,!2 municipal policy governing the use of force

during arrests,!3 county road acquisition policy,!4

municipal employment policy,!5 city medical care policy,!¢

school district sexual abuse policy,!’ police department

sexual harassment policy,!8 and even the question whether

"extortion of outsiders, businessmen, or developers" was

town policy.!9 As this Court once noted, federal courts

routinely review issues involving exercise of a state's

sovereign prerogative, including the power to regulate

fishing in its waters, its power to regulate intrastate trucking

rates, a city's power to issue bonds without a referendum,

and a host. of others. (County of Allegheny v. Frank

Mashuda Co., 360 U.S. 185, 191-192 [1959] [collecting

cases] [retaining federal court jurisdiction over a state

eminent domain case].) :

The cited cases deal with parallel features of the Bill

of Rights, routinely protected in federal court through 42

U.S.C. § 1983 — even against unconstitutional land use

regulations. All sorts of local governmental issues are

litigated in federal courts every day. And they involve all

12 Turner v. Upton County, 915 F.2d 133 (5th Cir. 1990).

13 Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), cert.

denied 117 S.Ct. 1086 (1997).

14. Hammond v. County of Madera, 859 F.2d 797 (9th Cir.

1988).

15 Richardson v. Leeds Police Dept., 71 F.3d 801 (11th Cir.

1995).

16 Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir.

1991).

17 Gonzalez v. Ysleta Indep. School Dist., 996 F.2d 745 (Sth Cir.

1993).

18 Gares v. Willingboro Township., 90 F.3d 720 (3d Cir. 1996).

19 Roma Constr. Co. v. aRusso, 96 F.3d 566 (1st Cir. 1996).

aspects of the Bill of Rights — except the 5th Amendment's

Just Compensation Clause.

2. Doctrines of claim and issue preclusion have been

misemployed by lower courts to undercut

Williamson County's "ripening" process.

The mechanism for keeping property owners out of

federal court has been the combination of Williamson

County's requirement of state court litigation with res

judicata and collateral estoppel. The law is used as a

diabolical trap. Once a property owner sues in state court,

any attempt to follow Williamson County's directive to then

litigate the "ripened" Sth Amendment case in federal court

is met by one or more of the preclusion doctrines and the

case is summarily dismissed.

Federal cases dismissing property owners' "ripened"

efforts at federal court litigation abound. (E.g., Dodd v.

Hood River County, 136 F.3d 1219 [9th Cir. 1998]; Peduto

v. City of North Wildwood, 878 F.2d 725, 726-729 [3d Cir.

1989]; Palomar Mobilehome Park Assn. v. City of San

Marcos, 989 F.2d 362, 364-365 [9th Cir. 1993]; Wilkinson

v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319 [10th Cir.

1998]; Rainey Brothers Constr. Co., Inc. v. Memphis &

Shelby County Bd. of Adjustment, 967 F. Supp. 998, 1002

(W.D. Tenn. 1997], affd 178 F.3d 1295 [6th Cir.

1999][table][unpublished Sixth Circuit opinion at 1999

U.S. App. LEXIS 6396].)

Thus, according to these cases, "the very act of

‘ripening’ a case also ends it." (Robert H. Freilich, The

Public Interest Is Vindicated: City of Monterey v. Del

Monte Dunes, 31 Urb. Law. 371, 387 [1999].) In Prof.

Roberts’ colorful words:

"Ironically, an unripe suit is barred at the moment it

comes into existence. L ike a tomato that suffers vine

rot, it goes from being green to mushy red overnight. It

is never able to be eaten." (Thomas E. Roberts, supra,

11 J. Land Use & Envtl. L. at 72.)

As seems evident from the language of Williamson

County and its underlying theory of "ripening" matters for

federal court litigation, this Court intended no such thing.

Rather, it granted property owners an opportunity to litigate

their Sth Amendment cases in federal court. It is therefore

apparent that the lower courts are undermining this Court's

intent.29 Plainly, the preclusion doctrines being used to bar

federal court litigation were known to this Court when it

decided Williamson County. Just as plainly, Williamson

County established a system that permitted dual court

litigation: first in state court, to exhaust the state

compensation remedy and thereby "ripen" the case,

followed by an action in federal court, to litigate the merits

of the underlying Sth Amendment claims. If the lower

courts are correct, then the Williamson County ripening"

procedure was stillborn, and this Court wasted its time in

formulating it. As the 10th Circuit put it, "It is difficult to

reconcile the ripeness requirements of Williamson with the

laws of res judicata and collateral estoppel." (Wilkinson,

146 F.3d at 1325, fn. 4.) It is time for this Court to review

the way in which its Williamson County decision has been

treated by the lower courts. Either the requirement of state

court litigation should be eliminated, or it should have no

preclusive impact on subsequent federal court litigation.

20 This Court made it crystal clear in England, 375 U.S. at 416-

417 that limiting a litigant to certiorari review from a State

supreme court was not an acceptable substitute for full federal

court litigation. (Compare App., p. 7, where the court below

disagreed.) Besides, state courts often dispose of these cases on

the basis of state law, so that seeking certiorari may not even be

possible.

Lo —

C. With Respect, There Is A Flaw At The Core Of

Williamson County That Explains The Lower

Court Confusion: Its Assumption That A 5th

Amendment Taking Without Just Compensation

Is Not Complete Until A State Court Certifies

That The Local Agency Really Won't Pay.

The 5th Amendment's Just Compensation Clause

(the first element of the Bill of Rights to be incorporated

into the 14th Amendment's Due Process Clause)?! prohibits

government from taking private property for public use

unless it pays just compensation. Logically, a violation of

that provision occurs as soon as government actions take

private property and the municipality refuses to pay. There

is nothing in either logic or the Sth Amendment to require

that refusal to be certified by a state court before it is

complete.

Therein lies Williamson County's flaw. The opinion

quite properly begins its analysis with the words of the 5th

Amendment, noting that the constitutional provision "does

not proscribe the taking of property; it proscribes taking

without just compensation." (473 U.S. at 194.) The

problem arises because the Court then blends or blurs the

distinction between acts of the agency that has actually

committed the taking and the State that may or may not

have provided a litigational process for seeking

compensation. (473 U.S. at 195-196.)

But the State is not involved ir 42 U.S.C. § 1983

cases like this one. States and their officials cannot be sued

under section 1983 (Will v. Michigan Dept. of Police, 491

U.S. 58 [1989]), nor (with very narrow exceptions [Nevada

Dept. of Human Resources v. Hibbs, 123 S.Ct. 1972

21 Chicago B.&Q.R. Co. v. Chicago, 166 U.S. 226, 241 (1897).

[2003]) can they be brought into federal court at all against

their will (U.S. Const., 11th Amendment). The real issue is

whether the local entity — like the City of Rochester at

bench — is alleged to have taken private property for

public use and failed to pay for it. If so, the question

whether the city can be compelled to pay lies at the heart of

both state and federal court litigation. Thus, the aggrieved

property owners’ adversaries ask: how can the plaintiff get a

"second bite of the apple" by simply re-filing for the same

relief on the same facts in the other court system?

The answer lies in the fact that, under Williamson

County, the aggrieved property owners have no choice

whatever — they must sue first in state court, even though

they desire only one "bite" — and they want that one in the

federal courts, the historical guardians of the federal

Constitution — the same as other plaintiffs complaining of

federal law violations.

The crux of the problem is blurring the State legal

system with the local agency defendant and disregarding the

plain words of the Constitution. Nothing in the Sth

Amendment requires that. It does notsay". . . nor shail

private property be taken for public use without just

compensation as finally determined by suing the municipal

defendant in state court."

The issue is not whether a state has countenanced

the constitutional violation; the suit is not against the state.

Rather, the issue is whether the particular defendant has

committed it. 42 U.S.C. § 1983 forbids any person acting

under color of state law from violating rights secured by

federal law. When a city council — like Rochester's —

prohibits viable economic use of property without any

pretext of compensation, it has violated Section 1983. The

presence or absence of a state remedy has no bearing on

whether the malefactor has done the deed.

Nor are other constitutional rights treated that

way.22 Just as the Constitution forbids taking property, but

only without just compensation, so the Constitution forbids

the deprivation of life and liberty — but only if done

without due process of law. The constitutional provision is

the same 14th Amendment stricture: ". . . nor shall any

State deprive any person of life, liberty, or property,

without due process of law... ." And yet, plaintiffs

complaining about deprivations of life or liberty without

due process of law are not told they must first sue in state

courts to determine whether relief can be had there, as a

precondition to seeking redress in federal court. Quite the

contrary. Their suits take place in federal court; the validity

of the defendant's actions under state law, and the

availability of state remedies is irrelevant. (See Monroe v.

Pape, 365 U.S. 167 [1961] [police brutality case not

required to be preceded by state tort suit for assault and

battery]; Felder v. Casey, 487 U.S. 131, 148 [1988] [section

1983 suits are enforceable in federal court "in the first

instance" [emphasis added]; cf. Screws v. Uniied States,

325 U.S. 91, 108 [1945].)

If, as Williamson County said, the federal violation

is not ripe until a state court verifies that state law provides

no remedy, then all Section 1983 litigation would have to

begin in state courts. In the words of the leading treatise,

"If there is a reason why free speech cases are heard by

22 Williamson County's analogy to the Tucker Act's provisions

for suing the United States for a taking (473 U.S. at 194), while

superficially plausible, seems inapt. All that the Tucker Act

cases say is that, before a property owner can sue to invalidate a

federal law as a taking, the owner must first sue in a federal

court for compensation under the federal Constitution. That is

all Mr. Kottschade and others want: the ability to sue the

offending municipality immediately in a federal court for

compensation for violating the federal Constitution.

federal judges with alacrity and property rights cases

receive the treatment indicated above [i.e., diversion to state

courts], it is not readily discernible from the Constitution."

(Eagle, supra at 1070.)?3

There is no need to sue in state court merely to

confirm the non-payment. The non-payment is obvious; it

is the reason for the suit. This can be seen in any regulatory

taking case. In City of Monterey, 526 U.S. 687, for

example, the taking occurred in 1986, the case was

furiously litigated, through two appeals to the 9th Circuit

and one trip to this Court. That process did not end for

another 13 years. At no time — even afier a compensatory

judgment had been entered after trial — did the city offer to

pay anything. Suit was not necessary to determine the lack

of compensation.

Nor is a state court suit needed to inform the

defendant of the problem. Given the complexity of today's

land use procedures — usually requiring years of effort and

endless hearings before action is taken — any agency that

is not comatose is well aware by the end of the process that

the property owner claims the city action violates the Sth

Amendment. Here, for example, Mr. Kottschade directly

told the city that its actions had taken his property and

demanded that the city begin proceedings to condemn the

land and compensate him. The city denied it. Must he now

impose on the time of a state court seeking to have it say

the obvious? To what end?

23 See also Peter A. Buchsbaum, Should Land Use Be

Different? Reflections on Williamson County Regional Planning

Board v. Hamilton Bank, in Taking Sides on Takings

Issues: Public and Private Perspectives, (A.B.A. 2002;

Thomas E. Roberts ed.) (contrasting the treatment of land use

cases with police brutality and parade permit cases).

There is no need to require the victim to approach a

third party (the state courts) in order to establish that she

has a federal claim at all. That is a job for the federal

courts. Worse, deferring to state courts is tantamount to

granting state courts a veto over citizens' access to federal

court, making them de facto federal court gatekeepers. On

the contrary, this Court has repeatedly concluded that

"Congress surely did not intend to assign to state courts and

legislatures a conclusive role in the formative function of

defining and characterizing the essential elements of a

federal cause of action." (Felder v. Casey, 487 U.S. 131,

144 [1988], quoting Wilson v. Garcia, 471 U.S. 261, 269

[1985].)

D. Commentators Have Vied With Each Other

Devising Ways To Disparage The Quagmire The

Lower Courts Have Created In Their

Applications Of Williamson County.

Even before City of Chicago, lower court

applications of Williamson County were described by

courts and commentators as "odd,"24 “unpleasant,"?°

"unfortunate,"26 "ironic,"27 “unclear and inexact,"28

24 Fields v. Sarasota-Manatee Airport Auth., 953 F.2d 1299,

1307, fn. 8 (11th Cir. 1992).

25 Roberts, supra, 24 Urb. Law. at 480.

26 Fields v. Sarasota-Manatee Airport Auth., 953 F.2d 1299,

1306, fn. 5 (11th Cir. 1992); Jan Laitos, Law of Property Rights

Protection § 10.05[A][5], p. 10-25 (Aspen Pullishers 1999).

27 Kathryn E. Kovacs, supra, 26 Ecology L.Q. at 20.

28 Robert Meltz, Dwight H. Merriam & Richard M. Frank, The

Takings Issue 67 (Island Press 1999).

“surprising,"22 "worse than mere chaos,"39 "dramatic,"3!

"misleading,"32 an "“anomaly,"33 "“paradoxical,"34 "most

confusing,">5 a "source of intense confusion,"2° "inherently

nonsensical," "shocking,"38 "absurd,"39 "self-

stultifying,"4° "revolutionary,"4! "nonsense,"42

"draconian,"43 "riddled with obfuscation and

inconsistency,"44 and thereby creating "a procedural

29 Roberts, supra, 11 J. Land Use & Envtl. L. at 67.

30 Freilich, supra, 31 Urb. Law. at 387.

31 Gregory Overstreet, Update on the Continuing and Dramatic

Effect of the Ripeness Doctrine on Federal Land Use Litigation,

20 Zoning & Plan. L. Rep. 17 (1997).

32 Roberts, supra, 11 J. Land Use & Envtl. L. at 71.

33 Buchsbaum, supra, in ABA, Taking Sides on Takings Issues

at 479; Roberts, supra, 11 J. Land Use & Envtl. L. at 68.

34 Roberts, supra, 11 J. Land Use & Envtl. L. at 71; Stein,

supra, 48 Vand. L. Rev. at 93.

35 Laitos, supra, p. 10-20.

36 Freilich, supra, 31 Urb. Law. at 387.

37 Freilich, supra, 31 Urb. Law. at 387.

38 Overstreet, supra, 20 Zoning & Plan. L. Rep. at 27.

39 Overstreet, supra, 20 Zoning & Plan. L. Rep. at 27.

40 Freilich, supra, 31 Urb. Law. at 387.

41 Dodd v. Hood River County, 59 F.3d 852, 861 (9th Cir.

1995); see Kovacs, supra, 26 Ecology L.Q. at 20.

42 Buchsbaum, supra, in ABA, Taking Sides on Takings Issues

at 480.

43 Dodd v. Hood River County, 59 F.3d 852, 861 (9th Cir.

1995); see Kovacs, supra, 26 Ecology L.Q. at 20.

44 T estimony of Prof. Daniel R. Mandelker before the H ouse

Judiciary Committee, reproduced at 31 Urb. Law. 234, 236

(1999).

morass,"45 "conflict of decision,"4® a "result [that] makes

no sense,"47 "doctrinal confusion,"48 a "mess,"49 a "trap,"59

a "quagmire,"5! a "Kafkaesque maze,">2 and "a fraud or

hoax on landowners."53

It is worth noting that many of these commentators

are avowedly government-oriented in their views, yet they

agree with landowners’ criticisms and they clearly are

troubled by the chaotic and unjust nature of the rule in

question.

Enough time hus passed and enough experience has

been had in lower courts for this Court to examine the

operation of the Williamson County rule and re-evaluate its

conclusion that de facto denies land owners any opportunity

whatever to try their federal constitutional claims in federal

45 Buchsbaum, supra, in ABA, Taking Sides on Takings Issues

at 482.

46 F reilich, supra, 31 Urb. Law. at 388; Meacham, supra, 32

Urb. Law. at 240 ("The circuits have been divided on whether

there is a way to avoid the Williamson trap, and the Supreme

Court has sent conflicting messages.")

47 Buchsbaum, supra, in ABA, Taking Sides on Takings Issues

at 478.

48 Freilich, supra, 31 Urb. Law. at 388.

49 Delaney & Desiderio, supra, 31 Urb. Law. 195.

50 David A. Dana & Thomas W. Merrill, Property Takings 264

(2002); Freilich, Wyker & Harris, supra, 31 Urb. Law. at 716;

Daniel R. Mandelker, Jules B. Gerard & E. Thomas Sullivan,

Federal Land Use Law § 4A.02[6] at p. 4A-21 (Clark,

Boardman, Callaghan 1998); Meacham, supra, 32 Urb. Law.

239; Meltz, Merriam, & Frank, supra at 67.

5! Kassouni, supra, 29 Cal. West. L. Rev. at 44.

52 Kassouni, supra, 29 Cal. West. L. Rev. at 51.

53 Roberts, supra, 11 J. Land Use & Envtl. L. at 71.

ae att. ee OY ree

reer Eee

courts. As Professor Mandelker put it:

"In my opinion, federal judges have distorted the

Supreme Court's ripeness precedents to achieve an

undeserved and unwarranted result: they avoid the vast

majority of takings cases on their merits." (Mandelker,

supra, 31 Urb. Law. at 236.)

Only this Court can end that distortion and bring

some rationality to the jurisdictional aspects of regulatory

takings law.

IV. AS A DIRECT RESULT OF LOWER COURT

MISUSE OF WILLIAMSON COUNTY, AND

NOW THEIR DISREGARD OF CITY OF

CHICAGO, PROPERTY OWNERS IN 5TH

AMENDMENT TAKING CASES HAVE NOT

ONLY BEEN DENIED ACCESS TO FEDERAL

COURTS TO PURSUE FEDERAL REMEDIES

UNDER 42 U.S.C. § 1983, BUT ALSO DENIED

THE 7TH AMENDMENT RIGHT TO A JURY

GUARANTEED BY THIS COURT'S CITY OF

MONTEREY DECISION.

Lower court actions barring property owners from

federal court (except, when defendants invoke City of

Chicago and remove state court litigation) have serious

consequences: they deny aggrieved parties the ability to

- invoke civil rights jurisdiction under 42 U.S.C. § 1983 to

have federal courts guard against local government

incursions into constitutionally protected realms, and they

deny property owners the 7th Amendment right to a jury

trial that is provided in federal court, but generally denied

in state courts in land use cases, in deciding governmental

liability under section 1983. (City of Monterey v. Del

Monte Dunes, 526 U.S. 687, 719 [1999].)

A. The Williamson County Rule, As Applied By The

Lower Courts, Denies Property Owners The

Protection Intended By 42 U.S.C. § 1983.

A Section 1983 case is a "species of tort liability,"54

a statutorily created "constitutional tort"55 that sweeps

within its ambit all governmental actions that impair Bill of

Rights protections. Section 1983 was intended to provide

"a uniquely federal remedy">© with "broad and sweeping

protection">’ "to secure private rights a gainst g overnment

encroachment">8 "read against the background of tort

liability that makes a man responsible for the natural

consequences of his actions"°? so that individuals in a wide

variety of factual situations are able to obtain a federal

remedy when their federally protected rights are abridged.

While read against the general common law _ tort

background, "[t]he coverage of the statute [§ 1983] is...

broader" than tort law,6! and must be broadly and liberaily

54 City of Monterey v. Del Monte Dunes, 526 U.S. 687, 709

(1999); Heck v. Humphrey, 512 U.S. 477, 483 (1994).

>> Jefferson v. City of Tarrant, 522 U.S. 75, 78-79 (1997):

Monell v. Department of Social Servs., 436 U.S. 658, 691

(1978).

°6 Mitchum v. Foster, 407 U.S. 225, 239 (1972); emphasis

added.

°7 Lynch v. Household F in. C orp., 405 U.S. 538,543 (1972)

[quoting with approval].

58 Inyo County v. Paiute-Shoshone Indians, 123 S.Ct. 1887,

1894 (2003).

59 Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part,

to expand government liability, in Monell, 436 U.S. 658.

60 Burnett v. Grattan, 468 U.S. 42, 50, 55 (1984).

61 Kalina vy. Fletcher, 522 U.S. 118, 124-125 (1997).

construed to achieve its goals.62 Its "goals" are

straightforward: "to provide compensatory relief to

those deprived of their federal rights by state actors'"®3

by "interpos[ing] the federal courts between the States

and the people, as guardians of the people's federal

rights."4 To effectuate those goals, Congress intended to

"throw open the doors of the United States courts" to those

who had been deprived of constitutional rights "and to

provide these individuals immediate access to the federal

courts... ."65

But in cases like the one at bench, property owners

find this Court's holdings obverted. Instead of interposing

the federal courts as the citizen's protector against local

government, the system interposes state law as a barrier

between the citizen and the federal courts.

Contrary to this Court's section 1983 holdings,

property owners — and they alone — find the doors of the

United S tates c ourts n ot merely hard to open, but barred.

(See Buchsbaum, supra, in ABA, Taking Sides on Takings

Issues at 477; Brian Blaesser, Closing The Federal

Courthouse Door On Property Owners: The Ripeness and

Abstention Doctrines in Section 1983 Land Use Cases, 2

Hofstra Property L.J. 73 [1988].)

62 Golden State Transit Corp. v. City of Los Angeles, 493 U.S.

103, 105 (1989); Lake Country Estates v. Tahoe Reg. Plan.

Agency, 440 U.S. 391, 399-400 (1979).

63 Felder v. Casey, 487 U.S. 131, 141 (1988); emphasis added.

64 Mitchum, 407 U.S. at 243; emphasis added.

65 Patsy v. Florida Board of Regents, 457 U.S. 496, 504 (1982);

emphasis added.

os -

B. The Lower Courts' Application Of Williamson

County Denies Property Owners Their 7th

Amendment Right To A Jury Trial Under City

Of Monterey.

City of Monterey v. Del Monte Dunes, 526 U.S. 687

(1999) made another major post-Williamson County change

in regulatory taking law.

In City of Monterey, this Court held as a matter of

first impression that plaintiffs in section 1983 litigation —

specifically, property owners like the ones involved there

and here — have a 7th Amendment right to a jury trial on

the issue of liability. That, as this Court recognized in City

of Monterey, 526 U.S. at 719, is in stark contrast to the

practice in state courts generally, which don't submit

regulatory t aking liability issues to j uries.6© B ut the trial

court in City of Monterey did, and this Court affirmed.

Others have recognized the potentially significant

change this means for regulatory taking litigation. (E-.g.,

Meacham, supra, 32 Urb. Law. at 240, 242-243.)

By denying Mr. Kottschade federal court access, the

courts below denied his 7th Amendment right to obtain a

jury determination of the city's liability. This Court could

not have considered that issue when it decided Williamson

County 17 years earlier. It merits consideration now.

CONCLUSION

American property owners have become the

proverbial pea in a jurisdictional shell game. Unlike all

other victims of federal constitutional violations, their

66 For a recent example of such refusal, see Cumberland Farms

v. Town of Groton, 808 A.2d 1107 (Conn. 2002).

attempts to seek justice in federal court are rebuffed. They

are told to sue in state court. When they do so, their

adversaries can unilaterally remove the cases to federal

court. Once removed, the plaintiffs find their removed

cases dismissed (on motion of the removing defendants!) ~

and are told to litigate in state court — where they filed in

the first place. With the utmost respect, that isn't law; it is a

-parody usually found only in the legal humor sections of

libraries. (See, e.g., Arthur Train, Mr. Tutt Plays It Both

Ways, in Mr. Tutt's Case Book 413 [Charles Scribner's Sons

1948].) In the process, lower federal courts have

abandoned their traditional roles as guardians of the

constitutional rights of American citizens, leaving them to

wander through a procedural maze that has no federai exit.

Petitioner prays that certiorari be granted so that this

"anomalous. . . gapin Supreme C ourt j urisprudence," as

the court below gently called it, can be rectified.

Respectfully submitted,

George O. Ludcke Duane J. Desiderio

KELLY & BERENS NATIONAL ASSOCIATION

3720 IDS Center OF HOME BUILDERS

80 South Eighth Street 1201 15" Street, NW

Minneapolis, MN 55402 Washington, D.C. 20005

(612) 349-6171 (202) 266-8146

Michael M. Berger*

Gideon Kanner

BERGER & NORTON

*Counsel of Record

12121 Wilshire Blvd.

Suite 1300

Los Angeles, CA 90025

(310) 979-2500

App. l

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 02-1504MN

Franklin P. Kottschade,

Appellant

City of Rochester

Am. Forest & Paper Ass’n;

Bldg. Indus. Legal Defense

Fund of Southern Cal.; Cal.

Bldg. Indus. Ass’n; Int’l

Council of Shopping

Centers; Nat’! Ass’n of

Indus. & Office Properties;

Nat’! Ass’n of Real Estate

Investment Trusts; National

Ass’n of Real Estate

Investment Trusts; Nat’!

Ass’n of Realtors; Real

Estate Roundtable; and

Rochester (Minnesota) Area

Builders,

Amici on Behalf of

Appellant League of

Minnesota Cities; Nat’! .

League of Cities; and Int’!

Municipal

On Appeal from the

United States District

Court for the District of

Minnesota.

ee *& ee eee KE Ee HEH HE HH HH HE HH HR OF

Lawyers Association,

Amici on Behalf of

Appellee.

App. 2

Submitted: October 10, 2002

Filed: February 13, 2003

Before RILEY, RICHARD S. ARNOLD, and SMITH, Circuit

Judges.

RICHARD S. ARNOLD, Circuit Judge.

Franklin P. Kottschade, a developer, brought this

claim under 42 U.S.C. § 1983 against the City of Rochester,

charging that the City had taken his property for public use

without just compensation, in violation of the Fifth

Amendment. He now appeals from a District Court’ dismissal

for failure to state a claim upon which relief can be granted.

Because Mr. Kottschade has not exhausted his state court

remedies, as required by current takings jurisprudence, we

affirm the District Court’s dismissal of his complaint.

In the mid-1990's Mr. Kottschade sought a conditional

use permit from the City of Rochester to build a townhouse

project on a 16.4 acre parcel of property which he had

acquired in 1992. In June of 2000, the City granted him a

permit for a townhouse project on part of his property, subject

however to nine specific conditions. These conditions

included requirements that provisions be made for increased

vehicular and pedestrian traffic, storm water management, and

dedicated parkland. Mr. Kottschade alleges that the nine

conditions, taken together, which were placed on his proposal

to build townhouses on the land, were out of proportion to the

impact this development of the property would have had on

the City of Rochester, and that they rendered the project an

' The Hon. Ann D. Montgomery, United States District Judge for the

District of Minnesota.

App. 3

economic impossibility, thus in effect taking his property

without just compensation.

Mr. Kottschade unsuccessfully appealed both to the

city’s zoning Board of Appeal and to the city’s Common

Council to eliminate all of the conditions. He then filed this

action challenging the constitutionality of the conditions

attached to the permit, and requesting just compensation under

the Fifth Amendment. The City of Rochester moved to

dismiss, arguing that, under Williamson County Regional

Planning Comm’n v. Hamilton Bank of Johnson City, 473

U.S. 172 (1985), Mr. Kottschade could not bring a

constitutional takings claim in federal court before obtaining a

final decision from the city, and that the suit was wrongly

brought in federal court in the first instance since it was not

yet ripe, given that state court procedures remained available

to the plaintiff.

The District Court dismissed the action, concluding

that until Mr. Kottschade sought relief in a state-court inverse-

condemnation action and had relief denied, the claim of taking

without just compensation was not ripe for decision in a

federal court. In this appeal Mr. Kottschade argues that the

Supreme Court decisions in Williamson and City of Chicago

v. International College of Surgeons, 522 U.S. 156 (1997),

when read together, permit him to bring a claim for relief

under the Fifth Amendment Just Compensation Clause in

federal court in these circumstances.

We review a District Court’s grant of dismissal under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim de novo. All facts alleged in the complaint are taken as

true and construed in the light most favorable to the plaintiff.

Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). A motion

to dismiss should not be granted unless the plaintiff can prove

no set of facts entitling him to relief. Such is the case here,

{

}

App. 4

and so we affirm the District Court’s dismissal of the claim.

Until Mr. Kottschade has exhausted his state court remedies,

his claim may not be brought in federal court.

Mr. Kottschade’s constitutional claim is brought under

the Just Compensation Clause of.the Fifth Amendment, which

provides, “[N]or shall private property be taken for public use,

without just compensation.” Mr. Kottschade argues that

dismissal of his claim by the District Court was improper

because, despite the Supreme Court’s holding in Williamson,

the 1997 City of Chicago decision modifies the earlier case in

such a way as to permit him to seek a remedy initially in

federal court. He asks us to reconcile these two Supreme

Court holdings. The plaintiff requests that this Court

acknowledge that City of Chicago has modified the

requirements laid out in Williamson with respect to

procedures plaintiffs must follow in seeking just

compensation for takings of property. Under Williamson, a

property owner “has not suffered a violation of the Just

Compensation Clause until the owner has unsuccessfully

attempted to obtain just compensation through the procedures

provided by the State for obtaining such compensation.” 473

U.S. at 195. City of Chicago is said to have modified this

holding by permitting plaintiffs in takings cases to file claims

in federal court first as a matter of course. We have held that

these procedures include the filing and prosecution of an

action for inverse condemnation in the state courts. McKenzie

v. City of White Hall, 112 F.3d 313, 317 (8th Cir. 1997);

Collier v. City of Springdale, 733 F.2d 1311, 1317 (8th Cir.

1984).

What the plaintiff actually asks is that this Court find

that the Supreme Court’s decision in City of Chicago

overrules Williamson in part, specifically its holding that “[I]f

a State provides an adequate procedure for seeking just

compensation, the property owner cannot claim a violation of

the Just Compensation Clause until it has used the procedure

App. 5

and been denied just compensation.” 473 U.S. at 195. But as

the District Court noted, City of Chicago’s holding addresses

only the question of federal-question jurisdiction over a ripe

takings claim. It does not explicitly answer the question of

what is necessary to render a takings claim ripe. The Supreme

Court has not explicitly overruled or modified the ripeness

requirements laid out in Williamson in the context of takings

cases. The requirement that all state remedies be exhausted,

and the barriers to federal jurisdiction presented by res

judicata and collateral estoppel that may follow from this

requirement, may be anomalous. Nonetheless Williamson

controls the instant case. Compare this perceived gap in

Supreme Court jurisprudence with this Court’s observations

in Commonwealth of Puerto Rico v. Branstad, 787 F.2d 423

(8th Cir. 1986). There this Court declined to declare that a

Civil War case, Com. of Kentucky v. Dennison, 24 How. 66

(1861), had been implicitly overruled, while registering its

view that the holding of the case had been substantially

eroded. Within a year the Supreme Court had overruled

Dennison. Puerto Rico v. Branstad, 483 U.S. 219 (1987).

Whether something similar should occur here is for the

Supreme Court to say, not us.

The Supreme Court in Williamson defined the

exhaustion requirement to inciude judicial as well as

administrative remedies: “the exhaustion requirement

generally refers to administrative and judicial procedures by

which an injured party may seek review of an adverse

decision and obtain a remedy if the decision is found to be

unlawful or otherwise inappropriate.” 473 U.S. at 193. Unlike

the appellee in Williamson, who had not sought variances

from a planning commission’s imposition of requirements for

development, Mr. Kottschade has already sought variances,

which have been denied. However, he has not yet pursued a

postdeprivation remedy in state court, as is required by

Williamson and subsequent jurisprudence.

App. 6

The plaintiff points out, and justly so, that if he is

required to seek a postdeprivation remedy in a state-court

inverse-condemnation action, he may end up being altogether

denied a federal forum for what is undoubtedly a federal right.

Such a federal forum, he urges, is guaranteed by 42 U.S.C. §

1983 and its jurisdictional counterpart, and a plaintiff has a

right to bring a § 1983 claim in a federal trial court, at his

option. If plaintiff must go to the state courts, he would

presumably need to show, in order to prevail in an inverse-

condemnation action, that a taking had occurred, and that just

compensation had not been paid. If the state courts hold for

the plaintiff, then all is well, from his point of view, and there

would be no need for recourse to a federal forum. But if they

hold against him, for example, on the ground that no taking

has occurred, doctrines of former adjudication may be a bar to

a new action under § 1983 in a federal trial court. The

difficulty is not unlike that which arises when a federal court

decides to abstain from the exercise of jurisdiction, remitting

the plaintiff, in the first instance, to his state remedies. See

Note, Consequences of Abstention by a Federal Court, 73

Harv. L. Rev. 1358, 1365-68 (1960). In the abstention context,

the Supreme Court has held that a plaintiff required to resort

first to the state courts may reserve his federal claims,

submitting to the state courts only claims arising under state

law. In this way, if the plaintiff loses in the state courts, his

way to the federal forum will not be barred by doctrines of

former adjudication. See England v. Louisiana State Bd. of

Medical Examiners, 375 U.S. 411 (1964). Plaintiff suggests

that a similar framework would be at least a partial solution to

his problem. If he must go to the state courts first, he says, we

should hold now that whatever those courts do adverse to the

plaintiff will not bar him from later filing a federal case on his

Takings Clause claim.

The suggestion has the virtue of logic and is tempting,

but we think the part of prudence is to decline it at this stage

of the case. We do not know what the result of any state-court

App. 7

action may be. Perhaps plaintiff will win in the state courts.

Perhaps he will lose there, but then obtain Supreme Court

review on the merits, a review that would at least afford him

an appellate federal forum and would be unquestionably

conclusive on the lower federal courts. Plaintiff may seek to

reserve his federal claims when he files his state-court

complaint, and the state courts, by analogy to England, might

honor this reservation. Other possibilities suggest themselves.

The point is this: it is simply too early to say now exactly

what res judicata or collateral-estoppel argument might be

appropriate in the future, and exactly what the answers to any

such argument might be. We understand that deferring a

decision on this point is frustrating to the plaintiff, but the

federal courts do not sit to decide questions in the abstract. If

the plaintiff goes to the state courts and loses, and then files a

42 U.S.C. § 1983 action in a federal court, that court, subject

to appropriate appellate review, will be in a much better

position to determine the effect of the prior state-court

adjudication.

The judgment of the District Court, dismissing the

complaint for failure te state a claim on the ground that the

case is not yet ripe under the Williamson line of authority, is

affirmed. This action is without prejudice to the right of the

plaintiff, if he files a state-court case and loses, to file a new

action in a federal court and make whatever arguments he

wishes with respect to the effect of the prior state-court

adjudication.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 8

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 02-1504

Franklin P. Kottschade, .

Appellant, :

Order Denying Petition

vs. * for Rehearing and for

Rehearing En Banc

City of Rochester,

Appellee -

American Forest and Paper

Association, et al. *

Amici on Behalf of

Appellant, ”

League of Minnesota Cities; *

National League of Cities; ‘

and International Municipal

Lawyers Association,

Amici on Behalf of °

Appellee. ”

The petition for rehearing en banc is denied. The petition

for rehearing by the panel is also denied.

(5128-010199)

March 21, 2003

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

App. 9

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Franklin P. Kottschade

Plaintiff,

v. MEMORANDUM

OPINION

AND ORDER

The City of Rochester, Civil No. 01-898

ADM/AJB

Defendant.

George O. Ludcke, Esq., Kelly & Berens, P.A.,

Minneapolis, MN, appeared on behalf of Plaintiff.

Clifford M. Greene, Esq., and Pamela VanderWiel, Esq.,

Greene Espel, P.L.L.P, Minneapolis, MN, appeared for and

on behalf of Defendant.

I. INTRODUCTION

On November 21, 2001, the Motion on Dismiss and

for Summary Judgment [Doc. No. 7] of Defendant City of

Rochester (“Defendant”) was argued before the undersigned

United States District Judge. The City moves for dismissal

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on

which relief can be granted. For the reasons set forth below,

the Motion to Dismiss [Doc. No. 7] is granted.

Il. BACKGROUND

A complete recitation of the facts in this case would be

long and complicated.' Boiled down to the occurrences

' The fact statement alone spans 16 pages of Plaintiff's Response Brief.

App. 10

bearing upon this motion, the relevant background is as

follows.

In February, 2000, Plaintiff Franklin P. Kottschade

(“Plaintiff”) sought a conditional use permit from Defendant

to build a townhouse project on his property. Defendant

panted Plaintiff's application to rezone his property to

accommodate the development, and approved Plaintiff's

General Development Plan. Amended Complaint at 979,19.

However, this approval was subject to nine specified

conditions, Id. Plaintiff alleges the conditions impose burdens

which render the project economically unfeasible. Pl. Resp. at

2. Plaintiff's compromise attempts to eliminate the conditions

have been rejected, and he was unsuccessful in pursuing

"various administrative procedures" to eliminate the

conditions. Id. Plaintiff applied for a variance, seeking a

waiver from compliance with all nine conditions. Complaint

at 20. Plaintiffs petition for a variance was denied by both

the Defendant at the zoning board and council levels. Id. at

4122-23. Defendant asserts that each of the nine conditions

reflect an application of preexisting ordinances and

regulations applicable to all development projects. Def. Mem.

in Supp. at 3; Adkins Aff., Ex. B. Plaintiff challenges the

constitutionality of the conditions attached to the permit

granted by Defendant. Plaintiff has styled his cause of action

as a federal takings claim under 42 U.S.C.§1983, rather than a

state court inverse condemnation claim.

Ill. DISCUSSION

The Federal Rules of Civil Procedure provide that a party

may move to dismiss claims for lack of jurisdiction over the

subject matter under Fed. R. Civ. P.12(b)(1), and for failure to

state a claim upon which relief can he granted under Fed. R. Civ.

P.12(b)(6). In considering a motion: to dismiss, the pleadings are

construed in the light most favorable to the nonmoving party, and

the facts alleged in the Complaint must be taken as true. Hamm v.

App. 11

Groose, 15 F.3d 110,112 (8th Cir. 1994); Ossman v. Diana Corp. ,

825 F.Supp. 870, 879-80(D. Minn. 1993). Any ambiguities

concerning the sufficiency of the claims must be resolved in favor

of the non-moving party. Ossman, 825 F.Supp. at 880.

The parties agree that the threshold issue in this case is

whether Plaintiff can bring a constitutional takings claim in federal

court in federal court in the first instance, or whether Plaintiff must

first seek compensation through state procedures. Defendant

argues that Williamson county Reg’! Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172 (1985), prevents

Plaintiff from bringing his takings claim in federal court without

first exhausting the state law mechanisms available for seeking

just compensation. Defendant relies on the Supreme Court’s

holding that “the State’s action is not ‘complete’ in the sense of

causing a constitutional injury ‘unless or until the State fails to

provide an adequate postdeprivation remedy for the property

loss.”” Williamson, 473 U.S. at 195 (quoting Hudson v. Palmer,

468 U.S. 517, 532 n.12 (1984)).

Plaintiff responds that City of Chicago v. International

College of Surgeons, 522 U.S. 156 (1997), overrules Williamson

and allows a takings claim to be brought directly in a federal

venue. Plaintiff relies on the conclusion in College of Surgeons

that “the District Court properly exercises federal question

jurisdiction over the federal claims in [Respondent’s] complaints .

..” College of Surgeons, 522 U.S. at 166. Plaintiff reasons that

because (1) claims can only be removed to federal court under 28

U.S.C. § 1441(a) if the district court has original jurisdiction, and

(2) the claims removed in College of Surgeons were Due Process,

Equal Protection, and takings claims, therefore it necessarily

follows that (3) the district courts of the United States must have

original jurisdiction over takings claims. PI. Resp. at 22.

As both parties candidly concede, the dispositive

App. 12

determination in this case is whether or not College of Surgeons

overrules the Williamson precedent. It does not.

A. Williamson

In Williamson, the Court granted certiorari to address the

question whether federal, state, and local governments must pay

money damages to a landowner whose property allegedly has been

temporarily "taken" by the application of government regulations,

Williamson, 473 U.S. at 185. The Court did not reach that

question, however, finding instead that the takings claim, inter

alia’ was premature because respondent had not utilized state

procedures provided for obtaining just compensation. Id at 186.

Because the Fifth Amendment does not proscribe takings,

without just compensation, no constitutional violation occurs until

just compensation has been denied, Id. at 145 n.13. "The nature of

the constitutional right therefore requires that a property owner

utilize procedures for obtaining compensation before bringing a §

1983 action." Id. Therefore, a property owner simply has not

suffered a violation of the Just Compensation Clause until the

owner has unsuccessfully attempted to obtain just compensation

through the procedures provided by the State for obtaining such

compensation. Id. at 195.

In discussing the procedure for bringing a takings claim,

the Court stated that "[i]f the government has provided an

adequate process for obtaining compensation, and if resort to that

process 'yield[s] just compensation,' then the property owner ‘has

? The Williamson Court also held that Respondent had not obtaineda_

final decision regarding the application of the challenged zoning

ordinance and subdivision regulations. Id. at 187. Both the absence of a

final decision and the failure to exhaust state procedures were

independent reasons why Respondent's claim was not ripe. Id. at 187,

194, 200.

App. 13

no claim against the Government’ for a taking." Id. at 194-195

(quoting Ruckelshaus v. Monsanto Co., 467 U.S., 986, 1013, 1018

n.21 (1984)). Under this exhaustion requirement, takings claims

are premature until the property owner has availed itself of the

State process provided for seeking redress.’ See Id. at 195.

The State of Minnesota provides a process by which

plaintiffs may be compensated for any takings of property.

Pursuant to the Minnesota Constitution, Article I, section 13,

private property may not be taken, destroyed or damaged for a

public purpose without just compensation. To enforce this

provision, a plaintiff may bring an inverse condemnation action by

petition for writ of mandamus. Wilson v. Ramscher, 352 N.W. 2d

389, 394 (Minn. 1984). Plaintiff has not shown that the existing

state procedures are either unavailable or inadequate, and until he

has utilized those procedures, a federal takings claim is not ripe for

adjudication. See id. at 197.

B. College of Surgeons

Plaintiff contends that College of Surgeons overrules

the Williamson exhaustion requirement. In College of

Surgeons, the Supreme Court was asked to consider whether a

lawsuit filed in state court seeking judicial review of decisions

of a state agency, the Chicago Landmarks Commission, may

be removed to federal district court, where the case contains

both federal constitutional and state administrative challenges.

College of Surgeons, 522 U.S. at 169. While the claims in

College of Surgeons were raised through a cause of action

created by state law, the state court complaint raised a number

of issues of federal law in the form of various federal

* Similarly, if a State provides an adequate procedure for seeking just

compensation, the property owner cannot claim a violation of the Just

Compensation Clause until it has used the procedure and been denied

just compensation.” Id. at 195.

App. 14

constitutional challenges.’ Id. at 164. The case was removed

on the basis of federal question jurisdiction, and the District

Court exercised supplemental jurisdiction over the state law

claims to grant summary judgment in favor of the Defendant.

On review, the Seventh Circuit concluded that the District

Court was without jurisdiction, holding that deferential review

of state agency action was an appellate function not consistent

with the character of a court of original jurisdiction. Id. at

161-162. The Seventh Circuit elaborated that the “facial

constitutional challenges [were] independent of the record and

so would be removable to federal court if brought alone.” Id.

at 162. The crux of the court’s decision was that, because

some of the supplemental state law claims involved

deferential review, the removed case as a whole could not be

termed a “civil action” of which the district courts have

original jurisdiction under 28 U.S.C.§1441. Id.

The Supreme Court granted certiorari to address

“whether a case containing claims that local administrative

action violates federal law, but also containing state law

claims for on-the-record review of the administrative findings,

is within the jurisdiction of the federal district courts.” Id. at

163. In analyzing this questions, Justice O’Connor, writing for

the Court, concluded that the federal constitutional challenges

raised in the state court complaint established federal question

jurisdiction under 28 U.S.C.§1331 because a “ ‘right or

immunity created by the Constitution or laws of the United

States [is] an element, and an essential one, of the plaintiff's

cause of action.”” Id. at 163-164 (quoting Gully v. First Nat.

‘ The multiple federal constitutional claims in College of Surgeons

included claims that the challenged ordinances, both on their face and as

applied, violated the Due Process and Equal Protection Clauses and

effected a taking of property without just compensation under the Fifth

and Fourteenth Amendments, and the manner in which the state agency

conducted its administrative proceedings violated Respondent’s rights to

due process and equal protection. Id. at 160.

App. 15

Bank in Meridian, 299 U.S. 109, 112 (1936)). The holding

emphasizes that a cause of action created under state law

might still “arise under” the laws of the United States if the

right to relief under state law requires resolution of a

substantial question of federal law. Id. at 164. The Court

concluded that “the District Court properly exercised federal

question jurisdiction over the federal claims in [Respondent’s

complaint] . . . “ Id. at 165. Important to the instant case, the

tenor of the College of Surgeons decision is that a ripe takings

claim, coupled with multiple other constitutional claims, is

properly the basis for removal on federal question jurisdiction.

The decision does not speak to the underlying qualifications

for ripeness of such a claim.

The Court then proceeded to address the precise issue

on which it had granted certiorari. To that end, the Court

clarified the propriety of exercising supplemental jurisdiction

in particular instances. Specifically, the Court held that

because the accompanying state law claims in College of

Surgeons formed part of the “same case or controversy” as the

federal claims under 28 U.S.C.§1367(a), the exercise of

supplemental jurisdiction over those claims was proper. Id. at

165-166. The Court explained that the District Court’s

original jurisdiction derived from the federal claims, not the

state law claims, and thus the action was properly a “civil

action” within the original jurisdiction of the district courts for

purposes of removal. Id. at 166.

College of Surgeons does not discuss, elucidate or

alter the established standards for determining federal

question jurisdiction. The Court simply “explained” that “the

facial and as-applied federal constitutional claims raised by

[Respondent] ‘arise under’ federal law for purposes of federal

question jurisdiction.” Id. at 167-168. The Court never

specified which of the various federal claims was sufficient

for jurisdiction, but merely noted that they were, in sum

sufficient to establish federal question jurisdiction for removal

App. 16

purposes. No language in the College of Surgeons case

operates to alter prior law regarding federal question

jurisdiction in federal courts, or the exhaustion requirement

for takings claims. The Court’s conclusion in College of

Surgeons is directly responsive to the question on which the

Court granted certiorari: “(t]he District Court properly

recognized that it could exercise supplemental jurisdiction

over [Respondent’s] state law claims, including the claims for

on-the-record administrative review of [state agency]

decisions.” Id. at 174.

College of Surgeons addresses the issue of

supplemental jurisdiction; it is not a case purporting to

overturn the Williams exhaustion requirement for the ripeness

of a constitutional takings claim. In discussing the

significance of College of Surgeons, the Fourth Circuit noted

that: “(College of Surgeons] merely holds that district courts

can exercise supplemental jurisdiction over state claims that

call for deferential on-the-record review of state

administrative findings when the district court already

possesses original jurisdiction over another claim.”

Kirkpatrick v. Lenoir County Bd. Of Educ., 216 F.3d 380, 387

n.6 (4" Cir. 2000) (emphasis added). As a matter of law,

College of Surgeons simply does not overrule Williams.

Therefore, the exhaustion requirement for ripeness of a

constitutional takings claims is unaffected and remains good

* In dissent, Justice Ginsburg reiterated the nature and scope of the

Court’s ruling by characterizing Justice O’Connor’s opinion as an

“authorization of cross-system appeals” for “on-the-record review of

state and local agency actions.” Id. at 175-176. That the function of the

College of Surgeons case was to clarify the law of supplemental

jurisdiction, not to alter the law of federal question jurisdiction, is further

supported by Justice Ginsberg’s description of the majority’s opinion:

“all this Court is willing to say is that ‘the District Court properly

exercised federal question jurisdiction over the federal claims... .”” Id.

at 188. “The Court’s opinion expresses ‘no [further] view.’” Id.

App. 17

law.

Therefore, until Plaintiff seeks relief in a state court

inverse condemnation action and relief is denied, the claim of

taking without just compensation is not ripe for decision by a

federal court. Accordingly, this Court does not have

jurisdiction, and no claim upon which relief can be granted

has been stated. Defendant’s Motion to Dismiss is granted.

IV. CONCLUSION

Based on the foregoing, and all the files, records and

proceedings herein, IT IS HEREBY ORDERED that the City

of Rochester’s Motion to Dismiss [Doc. No. 7] is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY,

BY THE COURT

ANN D. MONTGOMERY

UNITED STATES

DISTRICT JUDGE:

Date: January 22, 2002

° The Supreme Court reaffirmed the Williamson exhaustion requirement

in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 710, 714-715, 721 (1999) (no constitutional injury from a taking

alone, therefore “[a] federal court . . . cannot entertain a takings claims

under §1983 unless or until the complaining landowner has been denied

an adequate postdeprivation remedy”). The Williamson exhaustion

requirement has also been recently relied upon by the Eighth Circuit. In

Carpenter Outdoor Advertising Co. v. City of Fenton, et. al., No. 00-

1869 3" Cir. June 1, 2001), the court upheld the dismissal of a claim

based on the Just Compensation Clause of the Fifth Amendment where

the appellant had not followed state procedures because “ ‘[t]he general

rules is that a plaintiff must seek compensation through state procedures

before filing a federal takings claim.” Carpenter, slip op. at 6 (citing Von

Kerssenbrock-Praschma v. Saunders, 121 F.3d 373, 379 (3" Cir. 1997);

Williamson, 473 U.S. at 194-195.

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