Opposition Brief — Advance Leasing & Development, Inc. v. Hart

Supreme Gourt, U.S.

FILED

(2) SEP 28 2000

No. 00-348

CLERK

IN THE

Supreme Court of the United States

ADVANCE LEASING AND DEVELOPMENT, INC., et al.,

Petitioners,

V.

CHRIS HART, efc., et al.,

Respondents.

On PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR

RESPONDENT SEIBERT

ALFRED O. Brace, III

Counsel of Record

Davip L. JORDAN

Cari L. RoTH

Attorneys for Respondent

Seibert

Sadowski Building

2555 Shumard Oak Boulevard

Tallahassee, FL 32399-2100

(850) 488-0410

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162487 @ Counsel Press LLC

(800) 274-3321 « (800) 359-6859

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QUESTIONS PRESENTED

I. Whether This Court Has Jurisdiction Of This Case.

- II. Whether The Judgment Of The Court Of Appeals Is

Inconsistent With Any Decision Of This Court.

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TABLE OF CONTENTS

Page

Questions Presemaed .. . ics cs 65a s e4Ac ak eee deo es 1

Tabie of Conteh: - 6. kikediwiieer eee eee il

Table of Cited Amteeties kn a Sk can bec ili

Statement OF TO C008 wc oo 5 0550005 ok l

Reasons for Denying the Writ ................. 2

I. This Court Has No Jurisdiction Of This Case.

» oe «46 bcs 9 me wo cae ee ee eae 3

A. The Effect Of The Final Order Was

Determined By The District Court Of

Appeal of PIMME.: ...<6n065 eas ebias 4

B. The Effect Of The Final Order Is An

Issue Of State Law Of Which This Court

Fins Mo JarimhGhs: ois ks 4 dae kann 5

C. The District Court Should Have

Abstained From Consideration Of This

Case With Respect To This Respondent.

avd ee kee eee he es Sees 6

II. The Judgment Of The Court Of Appeals Is

Not Inconsistent With Any Decision Of This

Come ic ea wee a ee ee 8

COC 6. 46s ee a ee 10

Appendix — Final Order Finding Plan Amendment -

In Compliance With Chapter 163, Part II, Florida

Statutes Dated January 12,1999 ............. la

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Allen v. McCurry, 449 U.S. 90 (1980) ........... 4,5

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ..... 6,7

City of Monterey v. Del Monte Dunes at Monterey,

Se yis A yea.) ea armer 8,9, 10

England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 (1964) ............. 7

Florida Farm Bureau Mututal Insurance Co. v.

Florida Fruit and Vegetable Association, 436

So. 2d 1052 (Fla. Dist. Ct. App. 1983) ........ 4,5

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ... 5

Geraci v. Department of Community Affairs, 754

So. 2d 35 (Fla. Dist. Ct. App. 1999) .......... 2

Graham v. Estuary Properties, Inc., 399 So. 2d 1374

(Fla.), cert. denied sub nom. Taylor v. Graham,

Rt rr ee rere 6,7

Herb vy. Pitcairn, 324 U.S. 117 (1945) .......... 5

Hicks v. Miranda, 422 U.S. 332 (1975) .......... 7

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) .... 6

iv

Cited Authorities

Page

Key Haven Associated Enterprises, Inc. v. Board of

Trustees, 427 So. 2d 153 (Fla. 1982) ......... 6

Long v. Department of Administration, 428 So. 2d

Ri Bi ee eee eee 7

McDaniel v. Musgrove, 427 So. 2d 1091 (Fla. Dist.

Ch: He. Soe .. < vos seawasn ince cies 5

Marrese v. American Academy of Orthopaedic

Surgeons, 470 U.S. 373 (1985) .............. 4,5

Matsushita Electrical Industrial Co., Ltd. v. Epstein,

SEG Ue Der Cree chk cd veh sinc engneeness 4

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982) ......... 7

New Orleans Public Service, Inc. v. Council of City

of New Orleans, 491 U.S. 350 (1989) ......... 7

Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619 (1986) ........... 6, 7

Railroad Commission v. Pullman Co., 312 U.S. 496

CRORE i iis 4s ek ck was oe eh OE RR RA 6,7

Republican National Committee v. Burton, 455 U.S.

Fg | Over reer eT eee pe eee re 5

Cited Authorities

Page

Rice v. Department of Health & Rehabilitative

Services, 386 So. 2d 844 (Fla. Dist. Ct. App.

SOP ibe ctr wncet eileen 7

Younger v. Harris, 401 U.S. 37 (1971) .......... 7

Constitution:

Seay SO. PONS Wo des cook ek occa 1

Ch: RN SUES PE Cac; cau uals techies 8

Sas GA PL, ENE nos his wees pes eeer ues 1

Statutes :

Be Ni cts TE ETO fees sc 05 ea oe 4

BUAC CO. SS 4

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STATEMENT OF THE CASE

The events material to this proceeding date from

December 16, 1993 when the Governor and Cabinet, sitting

as the Administration Commission, approved the designation

of petitioners’ land as Urban Mixed Use. The issue here is

the effect of the later redesignation of petitioners’ land as

Community Mixed Use which the Department of Community

Affairs approved.' Although either designation would have

allowed a shopping mall, under the Community Mixed Use

designation the development would not be allowed if it

exceeded 650,000 square feet. The petitioners alleged below

that the redesignation worked a taking compensable under

the Just Compensation Clause of the Fifth Amendment and

an arbitrary deprivation of property in violation of the Due

Process Clause of the Fourteenth Amendment. The United

States District Court ruled that it did not, and the United

States Court of Appeals affirmed.

While this case was pending in the District Court,

petitioners initiated a quasi-judicial administrative

proceeding with the Department to contest the redesignation

of the petitioners’ land to Community Mixed Use. The

resolution of that question turned upon the effect of the earlier

Final Order of the Administration Commission calling for

the Urban Mixed Use designation. In the administrative

proceeding the petitioners contended inter alia that the Final

Order controlled the designation of the mall site

notwithstanding the lapse of time and the consequent need

1. In this Brief, the Florida Department of Community Affairs

is called “the Department” and the Secretary of the Department,

who is sued in his official capacity, is referred to as “the Secretary.”

As in the Petition, the Final Order rendered by the Administration

Commission on December 16, 1993 is called the “Final Order.”

2

to reconsider existing land planning designations in light of

new demographic information. In its own Final Order

upholding the redesignation of petitioners’ land as

Community Mixed Use, the Department addressed the effect

of the earlier Final Order. Appendix at 20-24. The

Department rejected petitioners’ argument with the

observation that “the Administration Commission

determined that the subject plan amendments [from Urban

Mixed Use to Community Mixed Use] are consistent with

its December 16, 1993 Final Order. The Administration

Commission is in the best position to interpret its own order.”

Appendix at 23-24. Based on this and other determinations,

the Department entered a Final Order on January 12, 1999

upholding the redesignation of the petitioners’ land to

Community Mixed Use.

Petitioners appealed the Final Order of the Department

to the District Court of Appeal of Florida, and the District

Court of Appeal affirmed the Final Order without opinion. -

Geraci v. Department of Community Affairs, 754 So. 2d 35

(Fla. Dist. Ct. App. 1999) (per curiam). No petition to review

this judgment was taken to the Supreme Court of Florida.

REASONS FOR DENYING THE WRIT

The issues petitioners raised before the Department in

the administrative proceeding were addressed in the Final

Order of the Department. When the District Court of Appeal

of Florida affirmed the Final Order, the resolution of those

issues by the Department merged into the judgment of

affirmance, and the petitioners did not take any proceeding

to review that judgment in the Supreme Court of Florida.

That judgment is now final, and is binding on the parties

and those in privity with them. In any event, the effect of the

3

earlier Final Order from the Administration Commission was

an issue of state law, not federal law. Last, nothing in the

judgment of the United States Court of Appeals conflicts

with the recent decision of this Court relied on by petitioners.

I. THIS COURT HAS NO JURISDICTION OF THIS

CASE.

Petitioners concede that their case as applied to the

Secretary rests solely on the enforceability of the Final Order

by the Administration Commission. Petition at 8 n.4.

Petitioners’ argument is fatal to the jurisdiction of this Court

as applied to the Secretary for at least three reasons. First,

the legal effect of the Final Order was determined when the

District Court of Appeal of Florida affirmed the Final Order

of the Department, and the petitioners failed to petition the

Supreme Court of Florida to review that judgment. Second,

even if petitioners had undertaken further proceedings to

contest the judgment of the District Court of Appeal, the

effect of the Final Order is an issue of state law which this

Court has no jurisdiction to consider. Third and last,

petitioners raised the federal issues applicable to the

Secretary in federal and state proceedings at the same time,

and in both cases were seeking the same remedies: a binding

adjudication that the Final Order was enforceable and forever

fixed. Yet the petitioners failed to follow the procedures

specified by this Court for preserving federal claims for

presentation to a federal forum. Insofar as the present case

applies to this respondent, the United States District Court

should have abstained from passing upon these issues

altogether.

4

A. The Effect Of The Final Order Was Determined

By The District Court Of Appeal of Florida.

Petitioners’ statement that they sued the Secretary

“solely” to ensure the enforceability of the Final Order of

the Administration Commission betrays a remarkable

indifference to the rules of preclusion that limit judicial

power. Since the enforcement of the Final Order is

petitioners’ sole rationale for keeping the Secretary a party

to this case, this Court should reject it. The judgment of the

District Court of Appeal of Florida was allowed to become

final, so this Court is barred both by Act of Congress and its

own precedent from revisiting the judgment.

Under the Full Faith and Credit Act, judgments such as

the one rendered by the District Court of Appeal have

“the same full faith and credit in every court within the United

States . . . as they have by law or usage in the courts of such

State ... from which they were taken.” 28 U.S.C. § 1738.

This Court has applied the Act to preclude the relitigation of

matters determined earlier in state judicial proceedings

between the same parties. See Matsushita Electrical

Industrial Co., Ltd. v. Epstein, 516 U.S. 367, 373 (1996);

Marrese v. American Academy of Orthopaedic Surgeons,

470 U.S. 373, 379-80 (1985); Allen v. McCurry, 449 U.S.

90, 95-96 (1980). Like the present case, Allen arose under

the Civil Rights Act of 1871. See 42 U.S.C. § 1983. Likewise

in Allen, this Court ruled that after a state judicial proceeding

had become final, the respondent in that proceeding was not

allowed to use the Civil Rights Act as a contrivance to

relitigate the same issues. 449 U.S. at 95-96. Petitioners are

foreclosed from doing so here also, for a per curiam

affirmance by the District Court of Appeal of Florida has

res judicata-effect. Florida Farm Bureau Mutual Insurance

5

Co. v. Florida Fruit and Vegetable Association, 436 So. 2d

1052 (Fla. Dist. Ct. App. 1983); McDaniel v. Musgrove, 427

So. 2d 1091 (Fla. Dist. Ct. App. 1983). As it did in Allen,

the Court in this case should reject petitioners’ misuse of

the Civil Rights Act to circumvent the doctrine of res judicata

and other rules of preclusion based on state law.

B. The Effect Of The Final Order Is An Issue Of State

Law Of Which This Court Has No Jurisdiction.

In such cases as Allen and Marrese the issues the parties

were barred from revisiting arose under federal law, even

though the federal issues had been disposed of in antecedent

state judicial proceedings. Petitioners here cannot even say

that much. Here the effect of the Final Order by the

Administration Commission is an issue of state law. Needless

to say, this Court has no jurisdiction to determine issues of

state law. See Republican National Committee v. Burton, 455

U.S. 1301, 1302 (1982) (Rehnquist, J.); Herb v. Pitcairn,

324 U.S. 117, 125-26 (1945); Fox Film Corp. v. Muller, 296

U.S. 207, 210-11 (1935). Once more, the enforceability of

the Final Order is petitioners’ sole rationale for holding the

Secretary hostage to this proceeding. Petition at 8 n.4. Even

if it did not violate the Full Faith and Credit Act to revisit

that issue, this Court still would have no jurisdiction to

consider it.

6

C. The District Court Should Have Abstained From

Consideration Of This Case With Respect To

This Respondent.

Federal judicial power is not allowed to interfere with

pending state judicial or quasi-judicial proceedings if

abstaining from the exercise of federal jurisdiction would

obviate “the necessity of a decision on a constitutional

question.” Burford v. Sun Oil Co., 319 U.S. 315, 333 n.29

(1943); Railroad Commission v. Pullman Co., 312 U.S. 496,

501 (1941). Given the outcome of the state proceedings here,

this case underscores the importance of the abstention

doctrine. Insofar as this case applied to the Secretary, the

District Court should have abstained here to prevent

“needless friction with state policies” administered by the

Department. Railroad Commission v. Pullman Co., supra,

312 U.S. at 500. Abstention would have been proper in this

case because “interference with a state judicial proceeding

prevents the State not only from effectuating its substantive

policies, but also from . . . providing a forum competent to

vindicate any constitutional objections interposed against

those policies.” Huffman v. Pursue, Ltd., 420 U.S. 592, 604

(1975). The doctrine encompasses any judicial or quasi-

judicial state proceedings in which federal constitutional

questions may be reviewed.’? See Ohio Civil Rights

2. In the proceeding before the Department the petitioners

raised constitutional issues as well. Appendix at 20. Although the

Department has no authority to determine constitutional issues, the

District Court of Appeal and Supreme Court of Florida have

jurisdiction to consider them at any later stage of the proceeding.

Key Haven Associated Enterprises, Inc. v. Board of Trustees, 427

So. 2d 153, 156-58 (Fla. 1982); Graham v. Estuary Properties, Inc.,

399 So. 2d 1374, 1379-80 (Fla.), cert. denied sub nom. Taylor v.

(Cont'd)

7 =

Commission v. Dayton Christian Schools, Inc., 477 U.S. 619,

628 (1986); Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 437 (1982); Younger

v. Harris, 401 U.S. 37, 44 (1971). As this Court expressed it

in Younger, government “will fare best if the States and their

institutions are left free to perform their separate functions

in their separate ways.” 401 U.S. at 44. Land use planning is

no exception. The doctrine applies to state agencies acting

in a quasi-judicial capacity as the Department was here.

Indeed, the seminal Burford and Pullman Co. cases

themselves arose from quasi-judicial administrative

proceedings.

This is not a case in which the quasi-legislative functions

of the Department are called into question. See New Orleans

Public Service, Inc. v. Council of City of New Orleans, 491

U.S. 350, 365 (1989). Nor did the petitioners invoke the

procedures approved by this Court to limit state judicial

proceedings to state law issues by splitting off the federal

constitutional questions for separate determination in the

District Court. See Hicks v. Miranda, 422 U.S. 332, 336

(1975); England v. Louisiana State Board of Medical

Examiners, 375 W.S. 411, 421-22 (1964). Petitioners’

multiplication of the proceedings was improper, and this

Court should not condone it. -

(Cont'd)

Graham, 454 U.S. 1083 (1981); Long v. Department of

Administration, 428 So. 2d 688, 692-93 (Fla. Dist. Ct. App. 1983);

Rice v. Department of Health & Rehabilitative Services, 386 So. 2d

844, 848 (Fla. Dist. Ct. App. 1980). The state proceedings here were

more than adequate to redress any alleged constitutional violations.

8

Il. THE JUDGMENT OF THE COURT OF APPEALS

IS NOT INCONSISTENT WITH ANY DECISION

OF THIS COURT.

Even if the Court had jurisdiction, the petitioners’

arguments that the Court should give this case plenary

consideration are untenable. Petitioners’ argument rests on

supposed inconsistencies between the judgment of the Court

of Appeals and a recent decision by this Court. See City of

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

687 (1999). Yet nothing in Del Monte Dunes altered the

elements of a compensable taking.

In Del Monte Dunes this Court affirmed a judgment for

takings damages entered on a jury verdict. 526 U.S. at 723.

There the Court narrowed the effect of its holding by its

refusal to draw “a precise demarcation of the respective

provinces of judge and jury in determining whether a zoning

decision substantially advances legitimate governmental

interests.” Jd. at 722. Furthermore, this Court based its

holding upon the application of the Seventh Amendment to

damage actions for inverse condemnation under the Civil

Rights Act of 1871. Jd. at 721-22. Petitioners now cite

Del Monte Dunes as authority for the notion that the District

Court should have allowed the present case to get to the jury.

The pivotal difference is that the developer in Del Monte

Dunes had sufficient evidence to give the jury.’

3. This is not the only difference. Nineteen different site plans

were submitted in Del Monte Dunes, and five denials occurred.

526 U.S. at 698. A conditional permit was granted in Del Monte

Dunes, but was not extended. Jd. at 696-97. Continued development

in Del Monte Dunes was hampered at the time of final denial by a

sewer moratorium. /d. at 697. In the present case petitioners

(Cont'd)

9

The cases have no factual similarities. The proposed

development in Del Monte Dunes was below the allotted

intensity of use for the planning designation of the land.

526 U.S. at 694-96. Petitioners’ primary contention here is

that a taking inhered in the redesignation of the land from

Urban Mixed Use to Community Mixed Use, which allowed

up to 650,000 square feet of commercial development.

Petition at 5-6; id., Appendix B at 4a. It is this redesignation

that petitioners are seeking to portray as a taking in the

present case.

The jury in Del Monte Dunes was instructed to find for }

the developer if the developer was denied all economically

viable use of land, or if the rejection of the development

application by the local government bore no logical

relationship to its proffered justification or was unsupported

by a legitimate public purpose. 526 U.S. at 719-21.

The owner is not denied all beneficial use of his land until

the local government prohibits him from doing anything with

it. Jd. at 700. In any event, a takings case under the Civil

Rights Act may only be sent to the jury if the owner offers

(Cont'd)

submitted only two applications. Petition at 4-7. Here even after the

final denial of petitioners’ application the land use designation

allowed for development up to 650,000 square feet. Petition at 6;

id. at 8. Another difference lies in the unconditional character of

the denial of the development application in Del Monte Dunes. The

developer there was not allowed to pursue the development of its

property after the final denial of its development application because

the local government did not state the conditions on which it would

be reconsidered. 526 U.S. at 697-98. The only conditions confronting

petitioners in the present case stemmed from the ceiling on square

footage due to the Community Mixed Use designation. A mere

planning designation is not a taking, and nothing in Del Monte Dunes

suggests otherwise.

10

evidence to show that damage remedies were unavailable

elsewhere. /d. at 721. Petitioners had no such evidence to

present in this case. Likewise, petitioners had no evidence

tending to show that the denial of its application was arbitrary

or unrelated to a legitimate public purpose. Petition,

Appendix B at 9a. The County based its action inter alia on

the need to protect the compatibility of adjacent uses.

Compatibility is well within the universe of variables a local

government may consider when it acts upon a development

application. Petition, Appendix B at 4a; id. at 9a-10a. Here

the petitioners had no evidence tending to discredit this

rationale as either arbitrary or unrelated to a legitimate public

purpose.

CONCLUSION

With respect to this Respondent, the Petition for Writ of

Certiorari should be dismissed for lack of jurisdiction. In

the alternative, the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

ALFRED O. Braa6, III

Counsel of Record

Davip L. JORDAN

Cari L. ROTH

Attorneys for Respondent

Seibert

Sadowski Building

2555 Shumard Oak Boulevard

Tallahassee, FL 32399-2100

(850) 488-0410

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APPENDIX

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APPENDIX — FINAL ORDER FINDING PLAN

AMENDMENT IN COMPLIANCE WITH CHAPTER 163,

PART II, FLORIDA STATUTES

DATED JANUARY 12, 1999

[Omitted here but submitted separately

in Lodging Appendix]