Amicus Curiae Brief — Kottschade v. City of Rochester

Co

WW) Supreme eT U.S.

JUL 2 3 2003

OFFICE OF THE CLERK

No. 02-1848

In The

Supreme Court of the United States

FRANKLIN P. KOTTSCHADE

Petitioner,

Vv.

CITY OF ROCHESTER

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF OF DEFENDERS OF PROPERTY RIGHTS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Nancie G. Marzulla*

Christopher Byrnes

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

(202) 822-6770

July 23, 2003 *Counsel of Record for Amicus Curiae

QUESTIONS PRESENTED

Amicus curiae will address the following issues

presented for review: !

1. Is the rule of Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985) (requiring that a just compensation case be litigated in

state court before the federal court has jurisdiction to hear it),

still valid in light of the subsequently developed law of

regulatory takings, see, e.g., First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 303

(1987)?

2. Does Williamson County irreconcilably conflict with

the existing law of issue preclusion?

TABLE OF CONTENTS

FEES LIU FUR EI cir usecisnvecrentnnnnvssvinstsnnss cess 1

EAS, Oe Care isa cnavancisasnevinsincmentinssiiarsacend il

TABLE Als Te os edvecentibsevinnicinwasisaeasess ill

IDENTITY AND INTEREST OF AMICUS CURIAE.........1

STATEMENT OF THE CASE............... Fern eae 2

REASONS FOR GRANTING THE PETITION................ 4

I. The Rule of Williamson County Appears to Conflict

With Subsequently Decided Regulatory Taking

Cases, e.g., First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 303

(1987), Holding That the Right to Just Compensation

Arises Immediately Upon the Owner's Deprivation of

Property By the Government................0ceseeesseees 4

Il. Williamson County’s Requirement of Two

Consecutive Suits for Just Compensation Appears

Inconsistent with Doctrines of Claim and Issue

Preclusion and the Rooker-Feldman Doctrine......... 9

Il. The Rule of Williamson County Appears to

Relegate the Just Compensation Clause to the Status

of a “Poor Relation” of Other Constitutional

TABLE OF AUTHORITIES

Cases Page

Adams Outdoor Advertising v. City of East Lansing, 2001

US. Dist. LEXIS 5549 (W.D. Mich. 2001)................068 12

Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225 (11"

Cir. 1999), cert. denied, 531 U.S. 815 (2000)..........0..---013

Brown v. Legal Found. of Washington, 123 S. Ct. 1406

aiid Aueri cn iNiekiLidktcghniabaaauviessbisniabbshussewssusers 7

Centres, Inc. v. Town of Brookfield, 148 F.3d 699 (7" Cir.

i ebaissbdipvitiabeiay Lal iudy sabi danihitd uetenvassndiresitupiises 13

City of Chicago v. International College of Surgeons, 522

I icant bDhL s des dy cavahdwinennsedsdaveansadverivis ch 8

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

ied ctubandscccubingieisinaswicece inxsnnsoviee sikanunene 5, 6, 7

Community Treatment Centers, Inc. v. City of Westland, 970

re Us BROT COM BONN, 1997) iss cree sisesensaevesscesceces 13

District of Columbia Court of Appeals v. Feldman, 460 U.S.

NS seiirclase badd biy sins dosdesnsbxurindnntnnevdsnxedionssns 12

Dolan v. City of Tigard, 512 U.S. 374 (1994)......... 5, 15, 18

Dodd v. Hood River County, 136 F.3d 1219 (9" Cir.

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

ck i pawlcrsindadaiesebeddebcndbvdsssdexeedes 11

iil

a

First English Evangelical Lutheran Church v. County of Los

Mag, TEE FD. FOO CATON pos ves icivenesccietevesestons 4,5, 6,7

Front Royal and Warren County Indust. Park Corp. v. Town

of Front Royal, 135 F.3d 275 (4" Cir. 1998)...........000008 10

Gash Assoc. v. Village of Rosemount, 995 F.2d 726 (7th Cir.

Pe iixssschicidecaeceemidehccuiabe erence abana 12

Gooden v. Faulkner County Sheriff's Dep’t, No. 97-1449,

1997 U.S. App. LEXIS 30497 (8™ Cir. 1997)..............08 13 2

Gulla v North Straba Township, 146 F.3d 168 (3™ Cir.

Ps kaiccaducdckscncensnsuabinthdliipriaieensnies uaaebabebemtelnes 13

Howlett v. Rose, 496 U.S. 356 (1990)...........ccscsseeeeenees 18

Jacobs v. United States, 290 U.S. 13 (1933).............0.. eee 7

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

EPID -ccnsnciavchatnbanevidebcuetieneiescvinssdes aaentiadanta 5

Maine v. Thiboutot, 448 U.S. 1 (1980)............sceeceeeeeees 18

Nollan v. California Coastal Comm’n, 483 U.S. 825

SUPE Di taxesensnssasnisedoeransatehasonscebbbandebaiteibanbiasubns 5

|

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)............ 5,7

Palomar Mobilehome Park Ass'n v. City of San Marcos, 989

Re r iikkcis ceeded 11

Peduto v. City of North Wildwood, 878 F.2d 725 (3d Cir.

Rainey Bros. Constr. Co. v. Memphis & Shelby County Bd. of

Adjustment, 1999 U.S. App. LEXIS 6396 (6" Cir. 1999)...10

iv

Reahard v. Lee County, No. 89-227-CIV-FTM-10C (M.D.

Reahard v. Lee County, No. 89-227-CIV-FTM-10C (M.D.

POR Bees s2nksssnconavnnenenendseniaseesienhhineeeualeee 16

Reahard v. Lee County, 978 F.2d 1212 (1 1" Cir. 1992).....16

Reahard v. Lee County, 30 F.3d 1412 (11" Cir. 1994), cert.

denied, 514 U.S. 1064 (1995)... 5......ccecceeseeceeseeees 15, 17

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)............ 12

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302 (2002)..............c.ceeeeee -

Wilkinson v. Pitkin County Bd. Of County Comm’rs, 142

FO BSED CE Gs TIP iaihivieetinccsidicinebes 11,12

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172

(EFI Pio nsiicvacnsnsscdounewisewahs ohiwahenesuudsuiessneuannnulneanean

Constitutional Provisions

rules GAN, CINE, WF vicnutciecsunsesaneoneeninecawcumcedinian 3

Proposed Legislation

Citizens Access to Justice Act of 1999, S. 1028, 106" Cong.

Rs winiiccsisnteniascuctapcaneticaiasc aaa eae 14

Private Property Rights Implementation Act of 1997, H.R.

i gt __, , Saint paeannlntebuoneanan nalirtiioneseht 14

a

Property Rights Implementation Act of 1998, S. 2271, 105"

COE: Cex cus esssescoeinveronsbesjentinsianeenseneee

Secondary Sources

PRAT

143 CONG. REC. $12,482 (daily ed. Nov. 10, 1997)......... 15

John J. Delaney and Duane Desiderio, Who Will Clean Up

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

Plaintiffs Can Enter the Federal Courthouse, 31 URB. LAW.

EDS (SFU inc sscuncsyccdacsansnidbonsctsuarsinnirieieel hanelewmien 11

JAMES WM. MOORE ET AL ., MOORE’S FEDERAL PRACTICE

(Her TONE FING ois sikskisenevsisddcctaierncvinnienecntneins 10

Michael E. Solimine, Supreme Court Monitoring of State

Courts in the Twenty-first Century, 35 IND. L. REV. 335

Gregory Overstreet, The Ripeness Doctrine of The Takings

Clause: A Survey Showing Just How Far Federal Courts Will

Go To Avoid Adjudicating Land Use Decisions, 10 J. LAND

CG Ee EVIE. Li, FE CR ics oh cvncensnntancscosesdcsaasnscocel 14

S. REP. NO. 105-242 (1998)......c..e00000- iiligudaseaueae ’ oe

Pursuant to Rule 37.3 of the Rules of this Court,

amicus curiae submits this brief in support of petitioner.

Both parties have consented to the filing of this brief.

IDENTITY AND INTEREST OF AMICUS CURIAE

Defenders of Property Rights is a non-profit, pub) ic

interest legal foundation dedicated to the preservation of

constitutionally protected property rights. Defenders’

mission is to protect those rights considered essential by the

framers of the Constitution and to promote the exercise of

governmental power consistent with the constitutional

limitations upon the exercise of that power. Defenders’ 92al

of the vigorous protection of property rights recognizes the

special role of federal courts in protecting those rights. Since

its founding in 1991, Defenders has participated in every

significant property rights case in this Court including

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode

"No counsel for either party authored this brief amicus curiae, either in

whole or in part. Furthermore, no persons other than amicus curiae

Island, 533 U.S. 606 (2001); Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers, 531

U.S. 159 (2001); City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999); Phillips v. Washington

Legal Found., 524 U.S. 156 (1998); Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997); Bennett v.

Spear, 520 U.S. 154 (1997); Babbitt v. Sweet Home Chapter

of Communities for a Great Oregon, 515 U.S. 687 (1995);

Dolan v. City of Tigard, 512 U.S. 374 (1994); Keene Corp. v.

United States, 508 U.S. 200 (1993); and Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992).

STATEMENT OF THE CASE

Franklin P. Kottschade, a developer in the city of

Rochester, Minnesota, ‘aiitiat a 16.4-acre parcel of land

there in 1992 on which he planned to develop a townhouse

project. The City finally issued him a permit in 2000, after

it rejected four of his development proposals. The City

attached conditions to the permit that made the townhouse

contributed financially to the preparation of this brief.

2

project economically unfeasible. These conditions included

a drastic reduction in the number of homes (from 104 to 26)

and an added per-unit development cost of $70,000.

Mr. Kottschade sued the City in federal district court

under 42 U.S.C. § 1983, alleging a regulatory taking of

private property requiring just compensation under the Fifth

Amendment~ The district court and the Eighth Circuit both

dismissed the claim as unripe per Williamson County

Regional Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985), which requires Mr.

Kottschade to first seek redress for the alleged federal

constitutional violation in state court before seeking relief in

federal court.

Mr. Kottschade brought this petition to request that

this Court square this requirement with its decision in City

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

156 (1997), in which the Court held that a municipal

? “(NJor shall private property be taken for public use, without just

compensation.” U.S. CONST. amend. V.

~ government sued for a regulatory taking in state court could

remove the case to federal court on the grounds that the

action was a federal question over which federal district

courts had original jurisdiction.

REASONS FOR GRANTING THE PETITION

I. The Rule of Williamson County Appears to Conflict

With Subsequently Decided Regulatory Taking Cases,

e.g., First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 303 (1987), Holding That the

Right to Just Compensation Arises Immediately Upon the

Owner's Deprivation of Property By the Government

Williamson County Regional Planning Commission v.

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

decided two terms before this Court set forth the rule that a

state must provide a just compensation remedy for regulatory

takings, see First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 303, 321 (1987), at a time

when the existence of that constitutional right was in doubt.

See Williamson County, 473 U.S. at 203 n.4 (Stevens, J.

concurring) (“The fact that a jurist as eminent as Oliver

Wendell Holmes characterized a regulation that ‘goes too far’

as a ‘taking’ does not mean that such a regulation may never

be canceled and must always give rise to a right to

compensation”). The dimensions and qualities of this right

have sitmenat been expounded in a long line of cases.

See, e.g., Tahoe-Sierra Preservation Council, Inc. v. T. ahoe

Regional Planning Agency, 535 U.S. 302 (2002); Palazzolo

v. Rhode Island; 533 U.S. 606 (2001); City of Monterey v.

Del Monte Dunes, 526 U.S. 687 (1999); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992); Nollan v. California

- Coastal Comm’n, 483 U.S. 825 (1987). The time has come

for this Court to re-examine Williamson County in light of

this developed regulatory takings jurisprudence.

In First English, this Court held that a state's refusal

to afford a just compensation remedy for private property

taken for public use violated the Fifth Amendment's self-

executing guarantee. See First English, 482 U.S. at 315

(“We have recognized that a landowner is entitled to bring an

action in inverse condemnation as a result of ‘the self-

executing character of the constitutional provision with

respect to compensation . . .””) (citing United States v.

Clarke, 445 U.S. 253, 257 (1980); Jacobs v. United States,

290 U.S. 13, 16 (1933)). In so doing, this Court specifically

rejected the enue that this damages remedy was

dependent on statute: “The cases cited in the text, we think,

refute the argument of the United States that ‘the

Constitution does not, of its own force, furnish a basis for a

court to award money damages against the government.”

See First English, 482 U.S. at 316 n.9.

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

687 (1999), this Court further described the nature of the just

compensation remedy: “When the government repudiates

this duty, either by denying just compensation in fact or by

refusing to provide procedures through which compensation

may be sought, it violates the Constitution.” Del Monte

Dunes, 526 U.S. at 717 (citations omitted). This rule has

been recently reaffirmed by this Court. See, e.g., Brown v.

Legal Foundation of Washington, 123 S. Ct. 1406 (2003);

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regior al

Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001). |

The rule of Williamson County--that the taking has

not occurred until after the property owner has sued for just

compensation in state court and lost would appear to be

irreconcilable with the holding that the night to just

compensation arises at the time the property owner is

deprived of his property. See Del Monte Dunes, 526 U.S. at

717 (“Although the government acts lawfully when, pursuant

to proper authorization, it takes property and provides just

compensation, the government's action is lawful solely

because it assumes a duty, imposed by the Constitution, to

provide just compensation” (citing First English, 482 U.S. at

315; Jacobs, 290 U.S. at 16)). Paradoxically, the state suit

that Williamson County requires the owner to file must allege

an uncompensated taking of private property without

payment of just compensation--precisely the Fifth

Amendment violation that Williamson County holds not to ‘\

have yet occurred.

The paradox deepens with this Court's decision in

City of Chicago v. International College of Surgeons, 522

U.S. 156 (1997), holding that the defendant in the very type

of state suit required by Williamson County has the right to

remove the case to federal court because a federal question is

present. See International College of Surgeons, 522 U.S. at

164 (“ICS's federal constitutional claims [which included a

Just Compensation claim], which turn exclusively on federal

law, unquestionably fit within this rule” conferring original

jurisdiction on federal courts permitting the removal at

issue).

Accordingly, this Court should grant certiorari to

review whether Williamson County remains viable in the face

ee oe

of the developing law of regulatory takings.

Il. Williamson County’s Requirement of Two

Consecutive Suits for Just Compensation Appears

Inconsistent with Doctrines of Claim and Issue Preclusion ~

and the Rooker-Feldman Doctrine

Williamson County establishes a unique procedure,

applicable only to Just Compensation claims against state

actors, which requires two virtually identical but consecutive

lawsuits--the first in state court to seek just compensation,

the second (if necessary) in federal court to seek the same

| relief. Doctrines of issue preclusion, as well as the

jurisdictional limitations of the Rooker-Feldman doctrine,

however, prohibit re-litigation of the state sonia decision in

federal court. Williamson County thus creates a Catch 22:

| the federal court has no jurisdiction until the state court suit

is comp.eted, but completion of the state court suit precludes

re-litigation in federal court. In practical effect, then, under

Williamson County there is no federal court remedy for

regulatory takings.

Long-established rules of claim and issue preclusion

bar the relitigation of claims or issues in federal court once a

Nama

state court decides them. These doctrines are a

“fundamental rule of law that serve an important public

interest by ensuring a decisive end to litigation.” See 18 |

JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE J | |

131.12[1] (Matthew Bender 2003) (citing Federated Dept. |

Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1979) (“The

doctrine of res judicata serves vital public interests . . . This

Court has long recognized that ‘[public} policy dictates that

there be an end of litigation; that those who have contested

an issue shall be bound by the result of the contest, and that

matters once tried shall be considered forever settled as

between the parties ... ””)).

The application of these principles means that a Just

Compensation case, once litigated in state court, cannot be

re-litigated in federal court. See, e.g., Rainey Bros. Constr.

Co. v. Memphis & Shelby County Bd. of Adjustment, 1999

U.S. App. LEXIS 6396 (6" Cir. 1999) (affirming district

court’s dismissal of Just Compensation claim adjudicated in

state court based on res judicata); Front Royal and Warren

10

Ee eT

County Indus. Park Corp. v. Town of Front Royal, 135 F.3d

275 (4th Cir. 1998); Dodd v. Hood River County, 136 F.3d

1219 (9" Cir. 1998) (affirming district court’s dismissal of a

Just Compensation claim adjudicated in state court based on

issue preclusion); Wilkinson v. Pitkin County Bd. of County

Comm'rs, 142 F.3d 1319 (10th Cir. 1998); Palomar

Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362

(9" Cir. 1993); Fields v. Sarasota Manatee Airport Auth.,

953 F.2d 1299 (11th Cir. 1992); Peduto v. City of North

Wildwood, 878 F.2d 725 (3d Cir. 1989). See also John J.

Delaney and Duane Desiderio, Who Will Clean Up The

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

Can Enter the Federal Courthouse, 31 URB. LAW. 195, 203

(1999) (“property owners received no resolution of their

taking claims in 83 percent of [federal] District Cases [from

1990-1998]”).

Moreover the Rooker-Feldman doctrine, which ho'ds

that a federal court has no jurisdiction to act as an appellate

11

court over state court Just Compensation judgments,” also

deprives the Williamson County state court litigant of a just

compensation remedy. See, e.g., Wilkinson, 142 F.3d at

1324-25 (Williamson County ripeness requirement in a

federal Just Compensation claim is insufficient to preclude

application of res judicata and collateral estoppel principles,

and Rooker-Feldman doctrine precludes federal courts from

reviewing state court judgments); Gash Assoc. v. Village of

Rosemount, 995 F.2d 726, 728-29 (7th Cir. 1993) (under

Rooker-Feldman, federal Just Compensation plaintiffs

cannot file collateral attacks on state court’s civil judgments

in federal district court, but instead must seek review in the

Supreme Court); Adams Outdoor Advertising v. City of East

Lansing, 2001 U.S. Dist. LEXIS 5549, *12-15 (W.D. Mich.

> See Rooker v. Fidelity Trust Co., 263 U.S. 413, 414 (1923) (“This is a

bill in equity to have a judgment of a circuit court in Indiana, which was

affirmed by the Supreme Court of the state, declared null and void.”);

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482

(1983) (“[A] United States District Court has no authority to review final

judgments of a state court in judicial proceedings. Review of such

judgments may be had only in this Court. Therefore, to the extent that

Hickey and Feldman sought review in District Court of the District of

12

2001) (granting summary judgment to municipal Just

Compensation defendant based on Rooker-Feldman

doctrine); Community Treatment Centers, Inc. v. City of

Westland, 970 F. Supp. 1197, 1212-1220 (E.D. Mich.

1997).

Some federal courts have come to the opposite

conclusion, creating further consternation among property

owner litigants. See, e.g., Agripost, Inc. v. Miami-Dade

County, 195 F.3d 1225 (1 1" Cir. 1999), cert. denied, 531

U.S. 815 (2000); Gulla v North Straba Township, 146 F.3d

168 (3™ Cir. 1998); Centres, Inc. v. Town of Brookfield, 148

F.3d 699, 703 (7" Cir. 1998) (rejecting Rooker-Feldman

doctrine in a case alleging inverse condemnation); Gooden v.

Faulkner County Sheriff's Dep’t, No. 97-1449, 1997 U.S.

App. LEXIS 30497, at *1, 3 (8" Cir. 1997) (Just

Compensation claims not barred by Rooker-Feldman

doctrine).

Columbia Court of Appeals’ denial of their petitions for waiver, the

District Court lacked subject matter jurisdiction over their complaints.”).

13

Accordingly, this Court should grant review to

examine whether the promise of the Fifth Amendment, which

Williamson County purported to preserve, can in fact survive

the salutary requirements of issue preclusion and Rooker-

Feldman which have, in the vast majority of cases, kept Just

Compensation cases out of federal court entirely.

Ill. The Rule of Williamson County Appears to Relegate

the Just Compensation Clause to the Status of a “Poor

Relation” of Other Constitutional Guarantees

One member of Congress‘ observed that:

* Members of Congress have deemed the burden imposed by Williamson

County sufficiently unique and significant to warrant proposing

legislation on several occasions. See, e.g., Citizens Access to Justice Act

of 1999, S. 1028, 106" Cong. (1999); Property Rights Implementation

Act of 1998, S. 2271, 105" Cong. (1998); Private Property Rights

Implementation Act of 1997, H.R. 1534, 105" Cong. (1997). These bills

would all have provided that “a final decision shall not require the party

seeking redress to exhaust judicial remedies provided by any State or

territory of the United States” in the takings context. See, e.g., S. 1028 §

6(c); S. 2271 § 6(c) H.R. 1534 § 6(c).

Empirical and anecdotal evidence bears out the weight of the

procedural burdens that Just Compensation litigants face in gaining

access to federal courts. A study of all Just Compensation claims litigated

in federal courts between 1983 and 1988 showed that federal judges

avoided reaching a decision on the merits on ripeness grounds ninety-four

percent of the time. See Gregory Overstreet, The Ripeness Doctrine of

The Takings Clause: A Survey Showing Just How Far Federal Courts

Will Go To Avoid Adjudicating Land Use Decisions, 10 J. LAND USE &

14

Federal environmental laws are readily enforced in

federal courts. First Amendment claims against local

governments also have no trouble getting heard in

federal court. Only private property rights are

routinely dismissed or delayed.

143 CONG. REC. $12,482 (daily ed. Nov. 10, 1997) (remarks

of Sen. Gorton). Requiring property owners to surmount the

obstacle of costly and time-consuming state court litigation

presents the risk that the Fifth Amendment, “as much a part

of the Bill of Rights as the First Amendment or the Fourth

Amendment,” will be treated like a “poor relation” among

constitutional guarantees in federal courts. See Dolan v. City

of Tigard, 512 U.S. at 392.

An instructive example (unforiznately all too typical),

of the unique procedural obstacles that Williamson County

erects for Just Compensation claimants is that of Richard and

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

ENVTL. L. 91, 92 n.3 (1994). A later study reveaied that more than eighty

percent of Just Compensation claims originating in federal district courts

between 1990 and 1997 were dismissed on ripeness grounds before the

merits were reached. See S. REP. NO. 105-242, at 8 (1998) (citing study

conducted by the law firm of Lochnes and Blocher LLP). These

dismissals functioned as complete termination of many cf these cases

15

(11 Cir. 1994), cert. denied, 514 U.S. 1064 (1995). The

county declared the Reahards’ property a “resource

protection area” in 1984, reducing the land’s value by 96

percent. The Reahards spent five years thereafter

unsuccessfully pursuing administrative remedies under the

first prong of Williamson County. In 1989, they brought a

compensation claim in state court, but county attorneys

removed the case to federal district court. The federal court

held the case ripe and awarded the Reahards $700,000 in just

compensation, and the county appealed. See Reahard v. Lee

County, No. 89-227-CIV-FTM-10C (M.D. Fla. 1991). The

Eleventh Circuit Court of Appeals reversed the award and

ordered the district court to review its ripeness holding. See

Reahard v. Lee County, 978 F.2d 1212 (11™ Cir. i992). The

district court again held the case ripe and reinstated the award

of $700,000 in just compensation. See Reahard v. Lee

County, No. 89-227-CIV-FTM-10C (M.D. Fla. 1994). On

Uieesanan sp preg SUES Steen enbarunr er amayian se one Wee

litigation. See id.

16

appeal from this second judgment, ten years after the county

had taken the Reahards’ property, the Eleventh Circuit Court

of Appeals, sua sponte, held that the case should, under

Williamson County, have been tried in state court after all.

See Reahard, 30 F.3d 1412, 1418 (11" Cir. 1994). Thus, five

years after they haa first filed in state court, and ten years

after their property had been taken without payment of just

compensation, the rule of Williamson County required the

Reahards to begin all over again with a fresh state court suit.

Other constitutional violations are (as they should be)

remediable by suit in federal court. Although one could

concoct a “Williamson County” rule for violations of other

provisions of the Bill of Rights, no one has seriously

suggested that freedom of speech or assembly have not been

denied under the federal Constitution until a litigant has

sought and been denied relief in state court. Certainly state

courts routinely provide remedies for violations of both state

and federal constitutional rights, see, e.g., Michael E.

Solimine, Supreme Court Monitoring of State Courts in the

17

Twenty-first Century, 35 IND. L. REV. 335, 337 (2002), and

suits under 42 U.S.C. § 1983 are cognizable in both state and

federal courts, see, e.g., Howlett v. Rose, 496 U.S. 356 (1990)

(holding that state courts of general jurisdiction must hear

section 1983 claims); Maine v. Thiboutot, 448 U.S. 1 (1980)

(affirming state court adjudication of section 1983 claim).

This Court should grant certiorari to examine whether

the Williamson County doctrine conflicts with the principle

that the Just Compensation Clause of the Fifth Amendment,

“as much a part of the Bill of Rights as the First Amendment

or Fourth Amendment, should be relegated to the status of a

poor relation” in terms of federal court access. See Dolan,

512 U.S. at 392.

18

CONCLUSION

For the foregoing reasons, amicus curiae urges this

Court to grant the Petition for Writ of Certiorari.

Respectfully submitted,

Nancie G. Marzulla*

Christopher Byrnes

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

202-822-6770

July 23,2003 *Counsel of Record for Amicus Curiae

19