Opposition Brief — Hammer v. City of Eugene, Oregon (No. 05-1643)

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No. 05-1643

IN THE

Supreme Court of the United States

JOHN P. HAMMER,

on behalf of himself and others similarly situated,

Petitioner,

CITY OF EUGENE,

a political subdivision of the State of Oregon,

Respondent.

On Petition for a Writ of Certiorari to the

Oregon Court of Appeals

REPLY TO OPPOSITION TO *

PETITION FOR A WRIT OF CERTIORARI

‘

MICHAEL T. GARONE *

DONALD JOE WILLIS

SCHWABE, WILLIAMSON

& WYATT, P.C.

1211 SW Fifth Ave., Suites 1600-1900

Portland, OR 97204-3795

(503) 222-9981

* Counsel of Record Counsel for Petitioner

ORIEN RE ANAC AN AN a

WitSON-EPES PRINTING CO., INC. -— (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTION PRESENTED

Does Dolan v. City of Tigard, 512 U.S. 374 (1987), create

a prophylactic rule that requires governmental entities to

make findings of “rough proportionality” at the time that they

impose property exactions as a condition to development?

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

FEDERAL CASES Page

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Dolan v. City of Tigard, —

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IN THE

Supreme Court of the Anited States

No. 05-1643

JOHN P. HAMMER,

on behalf of himself and others similarly situated,

Petitioner,

CITY OF EUGENE,

a political subdivision of the State of Oregon,

Respondent.

On Petition for a Writ of Certiorari to the

Oregon Court of Appeals

REPLY TO OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Petitioner submits this Reply Brief to address new points

raised in Respondent’s Brief in Opposition. Sup. Ct. R. 15.6

(authorizing reply brief for that purpose). Respondent argues

that this Court should deny the Petition for a Writ of Certio-

rari on the grounds that (1) this Court lacks jurisdiction under

28 U.S.C. § 1257(a) to decide the issue presented, and (2) the

petition does not present an issue that is ripe for review.

Neither argument has merit.

REASONS FOR GRANTING THE WRIT

I. THIS COURT HAS JURISDICTION UNDER 28

U.S.C. § 1257(A)

Twenty-eight U.S.C. § 1257(a) limits this Court’s authority

to review decisions of state courts to only those cases in

which the state’s highest court has rendered “[f]inal judg-

ments or decrees.” In this case, no final judgment has issued

because the state court judgment at issue remanded the case

to the trial court for trial on the merits of petitioner’s inverse

condemnation claim.

The absence of a final judgment, however, does not mean

that this Court is deprived of jurisdiction to consider the

federal issue presented in this Petition for a Writ of Certiorari.

That is so because the requirement of finality in 28 U.S.C.

§ 1257(a) is not absolute. Instead, this Court has interpreted

28 U.S.C. § 1257(a) to permit review of non-final judgments

of a state’s highest court in limited circumstances supporting

a finding of finality on the federal question at issue. See Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-78 (1975)

(discussing same). In doing so, this Court has recognized

“the mischief of economic waste and of delayed justice”

which results from delayed review in cases where the antici-

pated additional state court proceedings involve no other

federal questions which also might later require review by

this Court. /d. at 478 (internal quotation marks and citations

omitted).

Among the categories of cases in which this Court has

allowed review of non-final state court decisions are those

cases in which an important federal question might be mooted

by the later state court proceedings. Specifically, this Court

has described the posture of such cases as those in which:

the party seeking review [with this Court] might prevail

on the merits on nonfederal grounds, thus rendering

unnecessary review of the federal issue by this Court,

and where reversal of the state court on the federal issue

would be preclusive of any further litigation on the

relevant cause of action rather than merely controlling

the nature and character of, or determining the admis-

sibility of evidence in, the state proceedings still to

come.

Id. at 482-83. Notwithstanding the lack of a final state court

judgment, this Court has recognized that those circumstances

warrant immediate review because a delay “might seriously

erode federal policy[.]” Jd. at 483.

This Petition for a Writ of Certiorari presents an important

federal issue that might be mooted by the anticipated addi-

tional state court proceedings. At issue in this petition is

whether the Takings Clause of the Fifth Amendment—as

interpreted by this Court in Dolan v. City of Tigard, 512 U.S.

374 (1987)—requires the government to make findings estab-

lishing the essential nexus and rough proportionality between

an exaction and the alleged impact of a proposed develop-

ment of private property at the time that the government

imposes an exaction. That question will be mooted if Peti-

tioner were to prevail on the merits of his underlying claim.

In addition, a reversal of the state court ruling on that ques-

tion will conclusively establish that the government’s action

in this case constituted a taking without just compensation in

violation of the Fifth Amendment. This is true because it is

uncontradicted that the City did not make any findings of

rough proportionality in any of the approximately 173 minor

partitions which were granted during the class period. Thus,

this case satisfies both prongs of the test that this Court

identified in Cox for this exception to apply.

If Petitioner were to prevail on his takings claim in the

anticipated state court trial, then the federal question pre-

sented in this petition would be moot because Petitioner no

longer would have grounds to challenge the timing of the

government's essential nexus and rough proportionality deter-

minations. As described at length in Petitioner’s Petition for

a Writ of Certiorari and in the brief of amicus curiae Pacific

Legal Foundation, the question whether governments may

delay making such findings until an exaction is challenged is

an important federal question that this Court has not yet

addressed and that will have a substantial impact on the way

that municipalities and other governmental entities process

land use applications. Moreover,-a determination that gov-

ernments must make those findings at the time of the exaction

will conclusively establish that an unlawful taking occurred in

this case because it is undisputed that no such findings were

ever made. No federal constitutional issues would remain

because it is undisputed in this case that, if the exactions at

issue constituted “takings,” the City did not pay just com-

pensation.

For those reasons, notwithstanding the lack of a final state

court judgment, this Court has jurisdiction under 28 U.S.C.

§ 1257(a) to consider the federal issue squarely presented by

this Petition for a Writ of Certiorari.

Il. THE FEDERAL ISSUE IN THIS PETITION IS

RIPE FOR THIS COURT’S REVIEW

In addition to challenging the basis of this Court’s juris-

diction, Respondent also argues that the federal takings issue

in this petition is not yet ripe for review. Specifically, not-

withstanding the fact that the Oregon state courts did not

perceive any ripeness obstacle, Respondents contend that

Petitioner has failed to exhaust all available state law reme-

dies. That contention is erroneous.

Respondent’s ripeness argument is premised on the exis-

tence of an Oregon state constitutional prohibition against

taking of private property without just compensation. Ac-

cording to Respondent, Petitioner has not exhausted all his

state remedies because the state courts made no ruling on

whether the governmental action violated the Oregon state

constitutional takings clause. Petitioner, however, presented

both state and federal constitutional claims to the Oregon

state courts. The fact that the Oregon state courts resolved

the question by relying on federal constitutional law, rather

than state constitutional law, does not mean that all state

remedies were not exhausted.

CONCLUSION

This Court has jurisdiction under 28 U.S.C. § 1257(a) to

consider the federal issue in this Petition for a Writ of

Certiorari because this petition presents an important federal

question that might be mooted by the anticipated additional

State court proceedings. The federal issue in this petition is

also ripe for review because Petitioner has sufficiently ex-

hausted all available state court remedies.

For the above reasons, and the reasons stated in Petitioner’s

petition, the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,