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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1512%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 979

## Text

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.

il

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

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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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1512%3A2. Public record. Not legal advice.