Amicus Curiae Brief — Agripost, LLC v. Miami-Dade County (No. 08-567)

Supreme Court, U.S.

FILED

\ ie NOV 28 2008

No. 08-567 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

EEN 8s aie att

AGRIPOST, LLC, and AGRI-DADE, LTD.,

Petitioners,

v.

MIAMI-DADE COUNTY, FLORIDA,

Respondent.

ON PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE ELEVENTH CIRCUIT

AMICUS CURIAE, MICHIGAN STATE BAR - REAL

PROPERTY LAW SECTION’S, BRIEF IN SUPPORT

OF THE POSITION OF PETITIONER

“John D. Pirich

Susan K. FRIEDLAENDER

Counsel of Record

HoNIGMAN MILLER SCHWARTZ

AND Coun LLP

38500 Woodward Avenue, Ste. 100

Bloomfield Hills, MI 48304

(248) 566-8448/(248) 566-8449 (Fax)

Counsel for Amicus Curiae

219721 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES .........

STATEMENT OF AMICUS CURIAE

bit EINER ca sve venw'p oes sahn ian eee

INTRODUCTION AND SUMMARY OF

Fg EP te a

ADGUMING 5 5... -+0s0s5 seg

I. THE JUSTIFICATION FOR THE STATE

LITIGATION RIPENESS REQUIRE-

MENT HAS OUTLIVED ITS

PURPOSE AND SERVES ONLY TO

EXTINGUISH RATHER THAN

RIPEN A TAKINGS CLAIM ..........

A. The Requirement To Pursue State

Compensation Remedies Before

Filing A Federal Takings Claim

Under § 1983 Conflicts With The

Court’s Holding In Monroe That

Congress Intended § 1983 To

Supplement State Remedies .......

B. The Court’s Decision in First English

Renders It Impossible To Ripen A

Federal Takings Claim Under

Williamson Because The Interplay

of The Decisions Extinguish Any

Basis For Federal Jurisdiction ....

bo

Or

Or

11

i

Contents

Page

Il. WILLIAMSON'S STATE LITIGATION

REQUIREMENT WHICH IS NO

LONGER JUSTIFIED BY ANY

RIPENESS CONCERN IS CONTRARY

TO LEGISLATIVE ENACTMENTS

MEANT TO AUTHORIZE FEDERAL

DISTRICT COURT JURISDICTION IN

ry 898 he 14

A. The Lower Federal Courts Had

Exercised Jurisdiction Over State

Action Takings Claims For

Approximately 90 Years Before

Williamson Curtailed That

I go uit ou kena pee cats 16

B. The Court Had Never Before

Williamson Applied Any Blanket

Rules Against Exercising Juris-

diction Over Takings Claims ....... 19

lil. WILLIAMSON HAS PREVENTED

THE EFFICIENT DEVELOPMENT OF

FEDERAL TAKINGS LAW ........... 21

I oie vad awawens Rave wemen aie 23

ill

TABLE OF CITED AUTHORITIES

Page

Cases

Agins v. Tiburon, 447 U.S. 255 (1980) ......... 5, 6

Barron v. Baltimore, 32 U.S. 243 (1833) ....... 19

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

RR. 88) re ae rr ee 16

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

Ne I are ec asab neem hee eae eo 12

County of Alleghany v. Frank Mashuda Co.,

AEE SE EE . n. hwcocvigmcieencas ake 19

Cuyahoga River Power Co. v. City of Akron,

ee Bs Ge CR os ois eeecteneeeeas 16-17, 18

Daniels v. Williams, 474 U.S. 327 (1986) ...... S

Dews v. Sunnydale, 109 F. Supp 2d 526 (ND Tx.

BD ik. Kewenhiqade der vente ck eeeee eases 15

Fair Assessment In Real Estate Assoc., Inc. v.

McNary, 454 U.S. 100 (1981) ............. 15, 16

First English Evangelical Lutheran Church v.

Los Angeles, 482 U.S. 304 (1987) ......... passim

Gordon v. City of Warren, 579 F. 2d 386 (6"" Cir.

SE ce eda cae we een eke a ee ee 18

iv

Cited Authorities

Page

Lynch v. Household Finance Corp., 405 U.S. 538

iain ob a Suh beh eect eee ee tees 9

Monell v. Department of Social Services of City

of New York, 436 U.S. 658 (1978) ........ 2, 18, 23

Monroe v. Pape. 365 U.S. 167 (1961), overruled,

in part, Monell v. Department of Social

Services of City of New York, 436 U.S. 658

SN 85 hkdtas Oo Sra 50 eae eee passim

Mosher v. Phoenix, 287 U.S. 29 (1982) ........ 17

Parratt v. Taylor, 451 U.S. 527 (1981), overruled,

in part, Daniels v. Williams, 474 U.S. 327

Sa caiclis ka'ws cute een uae oauedaawees 8, 10, 20

Patsy v. Florida Board of Regents, 457 U.S. 496

PN sb as wae ek Gh wien be Rhine ns as oe wee 10

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 |

I alah itin tina: i boss 6 Go ANE a Ae a 12, 20

San Diego Gas & Electric Co. v. San Diego,

ee ED ned oki ee oe eseeeeueee 5

San Remo Hotel L.P. v. San Francisco, 545 U.S.

NO i a ea a as 14, 15, 21, 22

Seiler v. Northville Township, 53 F. Supp. 2d 957

Ce Cs EE 56 Sa x 05 cae awe eee 20, 21

Vv

Cited Authorities

Page

Suitum v. Tahoe Regional Planning Agency,

erates enwensees 9

United States v. Clarke, 445 U.S. 253 (1980) .. 12, 13

Wilkinson v. Pitkin County, 142 F. 3d 1319

ee aes enedee'es 20

Williamson County Regional Planning

Comm’n v. Hamilton Bank, 473 U.S. 172

EES EE passim

Zwickler v. Koota, 389 U.S. 241 (1967) ........ 14

United States Constitution

Te ee we wens 7, 11, 16, 19

nel aw acon cu seeesceveucn passim

Statutes

EE ee 4

Tax Injunction Act, 28 U.S.C. § 1341 ......... 15, 16

ES 4

Civil Rights Act, 42 U.S.C. § 1988 .......... passim

]

STATEMENT OF AMICUS CURIAE INTEREST!

The Real Property Law Section of the State Bar of

Michigan provides education and information about

current real property issues through meetings,

seminars, its website, pro bono service programs, and

quarterly publication of a journal. Membership in the

Section is open to all members of the State Bar of

Michigan. Statements made on behalf of the Section do

not necessarily reflect the views of the State Bar of

Michigan.

The Michigan Supreme Court has often invited the

Section to submit amicus briefs in cases concerning real

property issues. The Section has submitted amicus

briefs in several important Michigan land use cases

including Schwartz v. City of Flint, 426 Mich 295 (1986)

(remedies available in zoning cases) Paragon v. City of

Novi, 452 Mich 568 (1996) (ripeness of constitutional

claims in zoning cases) and most recently in Houdini v.

City of Romulus, 480 Mich 1022 (2008) (preclusive effect

of a prior Zoning Board of Appeals decision in a

subsequently filed action containing constitutional

taking claims).

1 No counsel] for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than the amicus curiae, or its counsel, made a

monetary contribution intended to fund its preparation or

submission. The Petitioners have filed a blanket consent and

the Respondent’s consent to the filing of this brief is being

lodged herewith. The parties have been given at least 10 days

notice of amici’s intention to file.

2

The Section is submitting this brief based on its

strong commitment to education of real property issues

and interest in the development of an extremely

important area of the law to Michigan property owners.

The Section believes that its expertise in state and

federal land use law can assist the Court in its review of

the Petition for Certiorari.

INTRODUCTION AND SUMMARY

OF ARGUMENT

In 1978 this Court held in Monell v. Department of

Social Services of City of New York, 436 U.S. 658 (1978)

that the drafters of the 14° Amendment and its

implementing legislation intended, in relevant part, that

property owners would use 42 U.S.C. § 1983 to assert

takings claims against state actors in federal court.

Id. at 687. Between 1980 and 1987, the Court reviewed

four cases that posed the question whether the

5 Amendment as applied to the states through the

14° Amendment requires that a state recognize a

compensation remedy for the temporary regulatory

taking of property. The Court eventually reached the

issue in First English Evangelical Lutheran Church v.

Los Angeles, 482 U.S. 304 (1987) holding that the

Federal Constitution requires such a remedy. /d. at 318-

319. During the seven year interval that the Court

considered the compensation question, the Court also

established requirements to ripen compensation claims.

In Williamson County Regional Planning Comm’n v.

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

a federal takings claim could not ripen unless the

property owner first attempted to recover compensation

for the taking using state judicial proceedings.

3

Williamson further held that the takings claim would

be ripe once the owner established that the state did

not provide any, or an adequate, compensation remedy.

Id. at 196. The Court did not distinguish nor even

mention its holding in Monroe v. Pape, 365 U.S. 167

(1961), rev'd, in part, on other grounds, Monell, 436 U.S.

at 690 that Congress intended for § 1983 to provide a

remedy supplemental to otherwise adequate state

remedies that the citizen did not have to seek and the

state refuse before the citizen could bring a § 1983 action

in federal court. 356 U.S at 183. Williamson holds

directly adverse to Monroe that a takings claimant must

first seek the state remedy and not file a § 1983 action

unless the state refuses to provide it. 478 U.S. at 195.

The “state litigation” requirement has outlived its

original purpose to avoid the premature adjudication of

constitutional questions because the Court reached the

constitutional question in First English that the

Williamson Court had found premature because the

Bank had not utilized state procedures to obtain just

compensation. Consequently, the state litigation

requirement no longer serves any purpose as a ripening

agent because the 14'* Amendment requires state courts

to provide a compensation remedy for temporary

regulatory takings. For that same reason Williamson

precludes a citizen from pleading a ripe federal takings

claim as a matter of law, unless in the remote chance,

the state court defies First English or the remedy is

somehow inadequate.

The Willtamson Court may not have anticipated the

evolution of the state litigation requirement into a

judicially created exception to federal court adjudication

4

of claims asserted under § 1983. The Court, therefore,

did not examine whether it had the judicial power to

bar federal court jurisdiction over cases, which in Monell

the Court had held that Congress intended would be

litigated in a §19838 action in federal court.

Twenty years have passed since Williamson and

during that time the lower federal courts’ role in § 1983

takings actions has been reduced to routinely dismissing

such claims, as either unripe if the owner has not

pursued state litigation, or barred under preclusion

doctrines if the owner has pursued state litigation. The

lower federal courts essentially have been excluded from

making substantive decisions in regulatory takings

cases, which has impeded a cohesive development of

federal takings law.

The Court should examine for the sake of the many

citizens denied a federal forum contrary to congressional

intent whether the Court’s original reasons for imposing

the state litigation requirement remain a doctrinally

sound justification for the elimination of federal court

adjudication of those claims. Upon such examination,

the Court should find that neither the text nor history

of the 14 Amendment; the legislation implementing

compensation remedies under the 14° Amendment; the

Court’s precedents regarding the purpose of the

amendment and legislation; the legislation creating

federal question jurisdiction under 28 U.S.C. § 13381 or

jurisdiction over civil rights claims under 28 U.S.C.

§ 1343(3); and the history of litigating takings claims

against state actors in federal court, provide any

doctrinal basis or judicial authority for the practical

5

elimination of federal district court jurisdiction to hear

takings claims either under § 1983 or in cases otherwise

arising under federal law.

The Court, therefore, should either limit or overrule

Williamson, because the state litigation ripeness

requirement that originated in the case has outlived its

purpose of avoiding premature adjudication of federal

taking claims and instead has deprived citizens of rights

that Congress intended to confer to enforce the

provisions of the 14° Amendment to.the United States

Constitution.

ARGUMENT

I.

THE JUSTIFICATION FOR THE STATE

LITIGATION RIPENESS REQUIREMENT HAS

OUTLIVED ITS PURPOSE AND SERVES ONLY TO

EXTINGUISH RATHER THAN RIPEN A TAKINGS

CLAIM

The question presented in Williamson County

Regional Planning Comm’n v. Hamilton Bank, 473

U.S. 172 (1985), which the Court had been unable to

answer previously in Agins v. Tiburon, 447 U.S. 255

(1980) and San Diego Gas & Electric Co. v. San Diego,

450 U.S. 621 (1981) was “whether Federal, State, and

Local governments must pay money damages to a

landowner whose property allegedly has been ‘taken’

temporarily by the application of government

regulations.” Jd. at 185. In Agins, supra, the California

Supreme Court had held that landowners could not sue

6

the government in inverse condemnation as a remedy

for the application of a confiscatory zoning ordinance,

but could only seek relief through mandamus or a

declaratory judgment action invalidating the ordinance.

Agins, 447 U.S. at 259. In Williamson, the Respondent

Bank had tried a taking claim under § 1983 in federal

district court and the jury awarded it compensation for

a taking. The 6" Circuit upheld the jury’s verdict and

rejected the argument that no damage remedy should

exist for regulatory takings. The Petitioner County

asked this Court to rule, as had the California Supreme

Court, that even if a regulation has the same effect as

an eminent domain taking, the Court should analyze the

taking as arising under the Due Process rather than

the Just Compensation Clause, and hold that

deprivations under the Due Process Clause do not

require compensation. 473 U.S. at 185.

The Court never reached the question presented

by the Petitioner, but reversed on other grounds

because the Bank’s takings claim had not been ripe for

adjudication, not only because the Bank had failed to

get a final determination from the planning agency

regarding the number of residential units that it could

build, but also because the Bank filed its taking claim

without first seeking and being denied compensation

through the State of Tennessee’s condemnation statute,

which included an option to sue in inverse condemnation

if the government occupied private property without

invoking the statutory procedure. /d. at 194, n.13.

7

A. The Requirement To Pursue State

Compensation Remedies Before Filing A

Federal Takings Claim Under § 1983 Conflicts

With The Court’s Holding In Monroe That

Congress Intended § 1983 To Supplement

State Remedies

The Court gave several reasons for the state

litigation ripeness requirement. First, it reasoned that

because the 5° Amendment does not proscribe the

taking of property for a public use, but only proscribes

takings without the payment of just compensation, the

government does not violate any constitutional right

until it has denied the payment of just compensation.

“The nature of the constitutional right therefore

requires that a property owner utilize procedures for

obtaining compensation before bringing a $ 1983

action.” Id. at 194, n. 13. (Emphasis added). The Court

further reasoned that because the Constitution does not

require pre-deprivation compensation “[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 no claim against the Government for a taking.”

Id. at 194-195. (Emphasis added). The Court concluded,

therefore, that “if a State has an adequate procedure

of 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.” Jd. at 195. The Court held that because

the Bank had not demonstrated the inadequacy or

unavailability of the Tennessee eminent domain

procedures as a source of compensation, its taking claim

was premature until it used that procedure and the

state denied compensation. /d. at 196 -197.

8

The Court in significant part justified the

state litigation requirement by analogizing to

Parratt v. Taylor, 451 US 527 (1981), overruled,

in relevant part, Daniels v. Williams, 474 U.S. 327

(1986). The Williamson Court reasoned by

analogy to Parratt that because the 5° Amendment does

not require pre-deprivation compensation “and is

instead satisfied by a reasonable and adequate

provision for obtaining compensation after the taking,

the State’s action here is not ‘complete’ until the

State fails to provide adequate compensation for the

taking.” 473 U.S. at 195. In Daniels, supra, the

Court reversed Parratt to the extent that it suggested

that the mere lack of due care by state officials could

state a violation of the due process clause. 474 U.S.

330-331. The Daniels Court expressed the concern that

according due process protection for the random and

unauthorized acts of prison officials served only to

trivialize the intent of the due process clause.

474 U.S. at 330. Moreover, the Court held that it had

traditionally applied the due process clause to

“deliberate decisions of government officials to deprive

a person of life, liberty or property.” /d. at 331.

Parratt did not provide a sound analogy because

land use litigation concerns the deliberate decisions of

government officials who use regulation as a shortcut

around paying compensation for imposing burdens on

some landowners for the public’s benefit. No relevant

comparison exists between the deliberate regulatory

9

regime that for example prevented Mr. and Mrs. Suitum

from building their retirement home in the Tahoe

preservation area and Mrs. Suitum’s later struggle for

compensation, with a prisoner’s loss of a hobby kit due

to the negligent and random acts of prison personnel.

See generally, Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725 (1997). This is not to disparage

prisoner rights, but to highlight the unwarranted

trivialization of land use cases especially in light of this

Court’s long tradition of recognizing the historically

important values incident to the protection of the type

of property interests usually at stake in land use cases.

See e.g., Lynch v. Household Finance Corp., 405 U.S.

538 (1972) (“Property does not have rights. People have

rights. ... In fact, a fundamental interdependence exists

between the personal right to liberty and the personal

right in property. ... That rights in property are basic

civil rights has long been recognized.”) Jd. at 552.

Moreover, Williamson neglected to explicitly

distinguish its earlier holding in Monroe, supra, that

citizens did not need to seek and be denied state

remedies before filing a §1983 action. Monroe held, “[i]t

is no answer that the state has a law which if enforced

would give relief. The federal remedy is supplementary

to the state remedy, and the latter need not be first

sought and refused before the federal one is invoked.

Hence the fact that Illinois by its Constitution and laws

outlaws unreasonable searches and seizures is no

barrier to the present suit in the federal court.” 365 U.S.

at 183. (Emphasis added) The Court also made no effort

to harmonize the two internally inconsistent prongs of

its ripeness holding, which required no exhaustion of

state judicial remedies to satisfy the “final decision rule,”

10

but did require such exhaustion to satisfy the second

prong of the ripeness rule. The Court reasoned that the

“final decision” rule, which required no pursuit of state—

judicial remedies or administrative review before filing

a takings claim, was consistent with Patsy v. Florida

Board of Regents, 457 U.S. 496 (1982), which held

consistent with Monroe that a litigant did not need to

exhaust state administrative remedies before invoking

§ 1983. The Court, however, then required exhaustion

of state judicial remedies under the second prong of the

test without explaining how that holding was consistent

with Patsy and the final decision rule.

The Court’s analogy to Parratt would be more

defensible if the Court had held that if the government

takes private property without instituting eminent

domain procedures, the availability of a post-taking

inverse condemnation procedure vitiates the due process

violation, but not the takings clause violation. The

Court’s holding that there is no tederal constitutional

violation as long as “he state recognizes a just

compensation remedy as discussed immediately below

has in effect eliminated federal regulatory takings

claims.

1]

B. The Court’s Decision in First English Renders

It Impossible To Ripen A Federal Takings

Claim Under Williamson Because The

Interplay of The Decisions Extinguish Any

Basis For Federal Jurisdiction

Oddly enough, it is this Court’s decision in First

English, supra, that makes it virtually impossible to

ripen a federal takings claim under Wiliiamson. In First

English, this Court answered the questions that were

not ripe for review in Williamson and held that

(1) regulatory taking claims arose under the Just

Compensation clause, which provides a self-executing

compensation remedy, and not the Due Process Clause;

and (2) the 5“ Amendment as applied to the states

though the 14" Amendment prohibits a state from

denying a landowner just compensation for the

temporary regulatory taking of land. 482 U.S. at 316-

320. The First English plaintiff presented a ripe claim

under Williamson because it had filed an inverse

condemnation claim in a state court, which had dismissed

the claim as failing to state a cause of action under

California law. See Jd. at 312 n. 6.

It is reasonable to assume that after First English

most if not all states began recognizing compensation

remedies for temporary regulatory takings.

Consequently, in cases filed post First English, there is

no longer any federal takings claim that can be ripened

because as long as the state recognizes a compensation

remedy, which it must, Williamson holds that the

landowner has no federal cause of action for a taking as

a matter of law. See 473 U.S. at 194-195. It is not clear

however that even if a state compensation remedy exists

12

that under Monroe a citizen should still be barred from

asserting the federal right to compensation in a

supplementary federal action.

It is also not clear that even if a state recognizes a

just compensation remedy that a landowner cannot

allege a constitutional violation when the government

deliberately uses its regulatory power to get public

benefits at the expense of a single landowner and then

refuses to remove the regulation or pay compensation

and denies any liability. City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 717 (1999). (“When the government

repudiates [the duty to pay just compensation] either

by denying just compensation in fact or refusing to

provide procedures through which compensation may

be sought, it violates the Constitution.”). In

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922),

the Court characterized a regulatory taking as an

attempt to “to improve the public condition... by a

shorter cut than the constitutional way of paying for

the change” Jd. at 416. The Court further held that the

straight and narrow constitutional path required

“an exercise of eminent domain and compensation.”

Id. at 413 (Emphasis added)

Moreover, there are “important legal and practical

differences between an inverse condemnation suit and

a condemnation proceeding.” United States v. Clarke,

445 U.S. 258, 258 (1980) (Plain meaning of “condemn”

in statute did not authorize city to take Indian land

without instituting eminent domain procedures).

Accord, 526 U.S. at 711-712. The existence of an inverse

condemnation remedy and the rationale for such actions

suggest that an uncompensated regulatory taking, for

13

which the government denies liability, can violate the

constitution, even if the owner can sue the government

to establish liability for a taking. The Clarke Court

observed that an owner’s right to file an inverse

condemnation action is based on the theory that if the

owner has the right to enjoin the government from

taking the property without first instituting a formal

condemnation action, the owner also has the right to

waive the proceeding and instead sue the government

to demand compensation. 445 U.S. at 255, n. 2. If it were

always true that the taking of private property for a

public use does not alone violate the constitution, then

the owner would have no right to enjoin a lawful act and

seek damages for a lawful act.

In the post First English era, therefore, the

ripeness issue that led the Court to impose the state

court litigation requirement no longer exists and neither

does any federal cause of action for a taking under the

14% Amendment as long as the Court continues to hold

that there is no federal constitutional violation that can

be redressed under federal law if a state recognizes a

compensation remedy for a temporary regulatory

taking.

14

Il. WILLIAMSON’S STATE LITIGATION

REQUIREMENT WHICH IS NO LONGER

JUSTIFIED BY ANY RIPENESS CONCERN IS

CONTRARY TO LEGISLATIVE ENACTMENTS

MEANT TO AUTHORIZE FEDERAL DISTRICT

COURT JURISDICTION IN TAKINGS CASES

The real issue now posed by Willzamson is whether

this Court can consistent with precedent and the

separation of powers doctrine eliminate federal court

jurisdiction over claims that federal courts had

entertained for nearly 90 years before Williamson.

In San Remo Hotel L.P v. San Francisco, 545 U.S.

323, 345 (2005) (Rehnquist, J., concurring) , this Court

remarked, “it is entirely unclear why [the plaintiffs’)

preference for a federal forum should matter for

constitutional or statutory purposes.” 545 U.S. at 344.

It matters first because Congress enlarged federal court

jurisdiction to protect individual rights against state

action by the adoption of the 14° Amendment, the

implementing legislation, which includes § 1983, and the

federal question jurisdictional statute. See Zwickler v.

Koota, 389 U.S. 241, 245-250 (1967). Second, the Court

observed in Monroe that one reason for the passage of

§ 1983 was

“to afford a federal right in federal courts

because, by reason of prejudice, passion,

neglect, intolerance or otherwise, state laws

might not be enforced and the claims of

citizens to the enjoyment of rights, privileges,

and immunities guaranteed by the

14 Amendment might be denied by the state

agencies.” 365 U.S. at 180.

15

As those in the trenches can attest, land use

controversies can sometimes ignite passion and

prejudice equal to the most contentious civil rights

battles in other arenas. See e.g., Dews v. Sunnydale,

109 F. Supp 2d 526 (ND Tx. 2000) (one acre lot minimum

had discriminatory impact based on race) In these highly

charged situations, if the owner chooses to seek a

judicial remedy, the owner may prefer a federal forum

as in Dews, supra, rather than appearing before an

elected judge who may be vulnerable to political

pressures, from which a federal judge is immune.

Second, Justice Rehnquist observed in his

San Remo concurrence that the Court had not claimed

that any “longstanding principle of comity toward state

courts in handling federal taking claims existed at the

time Williamson County was decided or that one has

since developed.” 545 U.S. at 350. Fair Assessment

In Real Estate Assoc., Inc. v. McNary, 454 U.S. 100

(1981) in fact, provides more support for finding that

Williamson erroneously required the exhaustion of

state judicial remedies before invoking a § 1983 remedy

in federal court than as support for eliminating federal

jurisdiction over takings claims. The Fair Assessment

Court acknowledged that the text of § 1983 contains no

requirement to exhaust state remedies before resort to

a federal forum. /d. at 104. Fair Assessment also

acknowledges that the Court held in Monroe, supra,

and a long line of cases that § 1983 “authorize[d]

immediate resort to a federal court whenever state

actions allegedly infringed constitutional rights.” See /d.

at 105. The Court contrasted the latter line of authority

with the competing line of cases predating and applying

the Tax Injunction Act, 28 U.S.C. § 1341 to limit federal

16

jurisdiction in challenges to state tax systems. /d. at

101-102. There is no legislation comparable to § 1341

competing with § 1983 in land use cases. The Court had

a valid doctrinal basis to find that Congress intended

limiting § 1983 in the special tax context. Moreover, there

is no line of authority finding that federal courts should

not exercise jurisdiction in land use or takings cases.

Contrarily, the Court has a long history of finding that

the federal district courts have, and normally should

exercise, their jurisdiction in taking cases against state

actors.

A. The Lower Federal Courts Had Exercised

Jurisdiction Over State Action Takings

Claims For Approximately 90 Years Before

Williamson Curtailed That Jurisdiction

The history of federal jurisdiction over state law

takings claims began in 1897 when this Court held in

Chicago B. & Q. R. Co v. City of Chicago, 166 U.S. 226

(1897), that the 14 Amendment incorporated the

5 Amendment’s guaranty of just compensation. The

Court determined that it had jurisdiction under the

14 Amendment to review the railroad company’s

challenge to state eminent domain proceedings and

legislation. The Court held that the due process clause

of the 14° Amendment requires that the state

compensate or secure compensation “to the owner of

private property taken for public use under [state

authority].” Jd. at 235.

Following Chicago B. & Q., the Court found in two

cases that inverse condemnation claims based on the

application of city ordinances arose under the district

court’s federal question jurisdiction. In Cuyahoga River

17

Power Co. v. City of Akron, 240 U.S. 462 (1916), the

federal district court dismissed the power company’s

takings claim for lack of jurisdiction. The company had

alleged that the city passed an ordinance that would

take the company’s water power without any intention

of instituting condemnation procedures or paying just

compensation although the ordinance directed the city’s

attorney to file a condemnation proceeding. The district

court found that it had no jurisdiction because it had

concluded that if the company had any rights in the

water that the city could only take them by paying for

them under state condemnation procedures. /d. at 463.

This Court unimpressed with the possible availability

of a state compensation remedy for the alleged taking,

reversed finding that the district court did not carefully

read the company’s complaint in which it had alleged

that the city planned to take its water rights without

instituting eminent proceedings and without the

payment of just compensation. /d. at 463-464. The Court

directed the district court to hear the case concluding,

“(whether the plaintiff has any rights that the

city is bound to respect can be decided only

by taking jurisdiction of the case; and the

same is true of other questions raised.

Therefore it will be necessary for the District

Court to deal with the merits, and to that end

the decree must be reversed.”

Id. at 464.

Similarly, in Mosher v. Phoenix, 287 U.S. 29 (1932),

the district court dismissed and the court of appeals

affirmed the dismissal of a taking claim for lack of

18

jurisdiction. The question was whether the plaintiff’s

complaint seeking to restrain the city from taking her

land for a street improvement that an Arizona court had

previously held the city did not have the authority to

effect under a state statute contained a substantial

federal question. The plaintiff had also alleged that not

only was the action unauthorized under state law, but

also that the city was attempting to take the property

without compensation and without due process or

“any process of law” in violation of the 14° Amendment.

Id. at 31. The Court relying on Cuyahoga, supra, held

that the plaintiff’s allegations that “the city acting

under color of state authority was violating the asserted

private right secured by the Federal Constitution,

presented a substantial federal question, and that it was

error for the District Court to refuse jurisdiction.”

Id. at 32.

Before this Court partially overruled Monroe,

supra, to hold that municipalities were persons who could

be sued for damages under § 1983, there was a split of

authority, but some federal district courts held that a

landowner could sue a municipality to collect just

compensation for an alleged uncompensated taking in

federal court directly under the 14° Amendment.

See e.g., Gordon v. City of Warren, 579 F. 2d 386, 390-

391 (6 Cir. 1978) (Court held that 6" Circuit recognized

a direct action against municipalities for just

compensation under the 14° Amendment).

Following Monnell, supra, landowners began using

§ 1983 to claim damages for de facto or regulatory

takings in federal court. In Monell, this Court found

that the legislature likely intended that § 1983 serve as

19

“the vehicle by which Congress provided redress for

takings, since that section provided the only civil remedy

for Fourteenth Amendment violations and that

Amendment unequivocally prohibited uncompensated

takings.” 436 U.S. at 687. The Court based its finding

in relevant part on statements made by Representative

Bingham, who drafted Section 1 of the 14° Amendment,

with the specific intent to avoid decisions such as Barron

v. Baltimore, 32 U.S. 248, 247 (1833), in which this Court

held that a citizen had no recourse under the federal

constitution against a city that took the citizen’s

property without just compensation because the

5 Amendment did not apply to state actors.

The federal district courts, therefore, have

traditionally exercised jurisdiction in taking cases

against state actors and the legislature intended that

federal district courts would have jurisdiction over

takings claims against municipalities in § 1983 actions.

B. The Court Had Never Before Williamson

Applied Any Blanket Rules Against

Exercising Jurisdiction Over Takings Claims

Moreover, the Court has not devised any abstention

rules that apply solely to eminent domain actions

See e.g., County of Alleghany v. Frank Mashude Co.,

360 U.S. 185 (1959) (Court rejected a blanket rule to

abstain in diversity cases that implicated the state’s

power of eminent domain finding federal courts had been

“adjudicating cases involving issues of state eminent

domain law for many years,” without it becoming a

hazard to federal-state relations.) /d. at 192. A greater

potential of such hazards exist in a diversity case that

20

poses no questions of federal law than in cases raising

regulatory takings claims, which are a creature of federal

law. This Court of course traces the regulatory takings

doctrine to Pennsylvania Coal, supra.

Despite the long history of federal court jurisdiction

in federal taking cases asserted under the

14" Amendment, following Williamson, federal district

courts began summarily dismissing regulatory taking

claims as (1) unripe if the plaintiff had not yet litigated

a state inverse condemnation claim; See e.g., Seiler v.

Northville Township, 58 F. Supp. 2d 957 (E.D. Mich.

1999); or (2) barred from re-litigation under claim or

issue preclusion principles if the plaintiff had pursued

compensation in a state court inverse condemnation

action; See e.g., Wilkinson v. Pitkin County, 142 F. 3d

1319, 1324 (10 Cir. 1998). As discussed, post First

English, Williamson dictates that a landowner cannot

state a federal takings claim as a matter of law because

the 14 Amendment requires that ail the states

recognize compensation claims for temporary regulatory

takings. Under Williamson’s analogy to Parratt, The

recognition of the state remedy extinguishes the federal

claim.

Yet, despite the wholesale dismissal of taking claims

in federal courts when filed by the landowner, the

Petitioner has fully briefed the jurisdictional anomaly

posed by City of Chicago v. International College of

Surgeons, 522 U.S. 156 (1997), a case in which this Court

upheld the removal of a land use case to federal court

with no mention of Williamson, which, as the Petitioner

observed, might be explained by the litigants’ failure to

mention it. This case has had a harsh impact on

21

Michigan landowners because Michigan municipal

attorneys often remove takings cases seeking just

compensation to federal court only to then file a motion

for summary judgment asking the court to dismiss the

plaintiff’s federal claims as unripe under Williamson

for failure to pursue state judicial remedies. See for

example, Seiler, 53 F. Supp. at 962. In Seiler, the plaintiff

had filed his complaint in state court in which he had

asserted an inverse condemnation claim and also sought

relief under § 1983 action. The district court reasoned

that the government had the right to remove the case

despite the fact that the court further found that any

delay arose from the plaintiff filing unripe federal claims

in state court rather than from the Township removing

claims that the Township believed to be unripe. /d.

Ill. WILLIAMSON HAS PREVENTED THE

EFFICIENT DEVELOPMENT OF FEDERAL

TAKINGS LAW.

Simply because a state recognizes a compensation

remedy should not foreclose either a plaintiff, or for that

matter, a defendant from getting a federal court

adjudication of the antecedent question of whether the

regulation even effects a taking under this Court’s

regulatory taking jurisprudence. Under Williamson,

the development of federal regulatory takings law has

been left to either this Court, the Federal Court of

Claims or state courts struggling to apply this Court’s

precedents. The Court asserted in Sax Remo that it

was “hardly a radical notion to recognize that a

significant number of plaintiffs will necessarily litigate

22

their federal takings claims in state court .” 545 U.S. at

346-347. The Court reasoned that there is little case

precedent from federal district courts in takings cases

because of the application of the “final decision” rule

before Williamson. Id. First, if the Court had not added

the state litigation requirement in Williamson, a

plaintiff could have ripened a case dismissed as unripe

for lack of a final decision without facing preclusion

issues. The state litigation requirement that began with

Williamson, is the “but for” cause of the lack of

precedents from federal district courts. Moreover, the

fact that most of the cases in the Court’s taking

jurisprudence came to the Court on writs of certiorari

from state courts has no statistical significance without

knowing the number of petitions the Court received

from federal and state petitioners in the relevant period.

It could be that the Court mostly chooses state cases

over federal cases. Moreover, for the last 20 years,

Williamson has relegated most land use plaintiffs to

state court so it is logical that most of the cases would

come from state court.

The “radical notion” is the doctrinally suspect

elimination of federal district court jurisdiction to hear

and try the substantive issues in takings cases and the

inefficiency that the lack of jurisdiction has caused in

the development of a cohesive body of federal takings

law.

23

CONCLUSION

This Court held in 1978 in Monell that Congress

intended that landowners use § 1983 to file takings claims

against state actors in federal court. Seven years later

in Willzamson, the Court created an exhaustion rule

for filing such claims in federal court without reference

to the long line of cases finding that Congress intended

that citizens should have direct access to federal court

under § 1983. Williamson held that if the state

recognizes a remedy for temporary regulatory takings,

then no federal cause of action exists that could be

asserted under federal law regardless of the forum. The

Court’s decision in First English two years after

Williamson ironically bars landowners from ever filing

the § 1983 actions that Monell found only 11 years earlier

Congress intended that citizens could file against state

actors in takings cases. First English held that state

courts must recognize a just compensation remedy for

such takings. First English and Williamson therefore

combine to eliminate federal causes of action for

regulatory takings. Contrary to Monroe, Williamson

has displaced § 1983 as a supplemental remedy to state

law.

Moreover, the separation of powers doctrine limits

this Court’s power to amend the jurisdictional statutes

and § 1983 through the application of judicial doctrines

that should only be applied to avoid premature

adjudication of, rather than adjudication of all state

action takings claims. Landowners have suffered resort

to piecemeal litigation for the last 20 years based on the

questionable reasoning of Williamson when no

principled basis grounded in this Court’s precedents or

24

any federal s_atute require the limitation on federal

court review of state action takings claims. Moreover,

Williamson as also prevented the efficient

development of a cohesive body of federal law in takings

cases by eliminating the lower federal courts’ jurisdiction

to decide substantive issues of federal takings law.

The Real Property Section of the State Bar of

Michigan therefore urges the Court to grant Agripost’s

petition and either limit the holding of Williamson to

its facts or overrule it to the extent that it has barred

citizens from filing taking cases based on federal law in

federal or even state courts.

Respectfully submitted,

SUSAN K. FRIEDLAENDER

HoONIGMAN MILLER SCHWARTZ

AND CoHN LLP

38500 Woodward Avenue, Ste. 100

Bloomfield Hills, MI 48304

(248) 566-8448/(248) 566-8449 (Fax)

Counsel for Amicus Curiae