Today, on behalf of the National Federation of Independent Business Small Business Legal Center, we filed this amicus brief in Kurtz v. Verizon New York, Inc., No. 14-439 (cert. petition filed Oct. 14, 2014). The cert petition, filed on Kurtz's behalf by the Institute for Justice, is posted here.
That's the case in which the Second Circuit threw out a complaint on Williamson County ripeness grounds. Odd thing was that the court held that a procedural due process claim was not ripe under Williamson County's exhaustion of state remedies prong. But wait, you say, Williamson County is based on a takings-specific rationale: a federal takings claim is not ripe for federal court review until just compensation has been denied by the state (inclulding a state court). That's what our brief says, too:
For nearly 30 years, Williamson County’s state remedies requirement has required federal courts to wash their hands of their most sacred obligation: to serve as the forum for protecting federal constitutional rights. This Court cast the state remedies requirement as a necessary step in ripening a regulatory takings claim for eventual federal court review. But in practice, the state remedies requirement has become an insurmountable procedural hurdle for property owners asserting their federal constitutional rights, and is a categorical bar to federal review even where, as in this case, a property owner may assert more than just a takings claim. Not surprisingly, Williamson County has been subject to criticism from the academy, the practicing bar, and members of this Court.This brief makes two points. First, NFIB Legal Center argues that there is no basis to extend Williamson County’s state remedies requirement to non-takings claims simply because those claims may share the same underlying facts with a takings claim. As this Court has held, takings and due process are distinct theories, with distinct remedies. The Second Circuit, however, abandoned that distinction. In doing so, it rewrote the plaintiffs’ complaint and effectively eliminated their due process claims, requiring the plaintiffs to seek just compensation in state court. A procedural due process claim should not be subjected to a requirement to pursue “just compensation” in state courts, because in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 540-45 (2005), this Court made clear that due process and takings are different.
Second, this brief summarizes the tortured history of Williamson County, briefly reciting how the case has created inconsistent and irreconcilable decisions regarding claim preclusion, issue preclusion, and removal, the net result of which is that a property owner has almost no chance of having a federal court resolve her federal constitutional claim. NFIB Legal Center explicitly calls for this Court to overrule the Williamson County state remedies requirement.
Br. at 2-3. The brief also points out that to apply the Williamson County ripeness rule to a due process claim, the Second Circuit had to effectively rewrite the plaintiffs' complaint:
Complaints about so-called “judicial activism” usually object to courts “legislating from the bench” by reading words into statutes that aren’t there, and the like. See, e.g., Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism”, 92 Calif. L. Rev. 1441, 1471 (2004) (quoting Florida v. Wells, 495 U.S. 1, 13 (1990) (Stevens, J., dissenting) (“But to reach out so blatantly and unnecessarily to make new law in a case of this kind is unabashed judicial activism.”)). But perhaps the most pernicious—and ultimately more troubling—form of judicial activism is on full display in the Second Circuit’s opinion here, because in order to reach its conclusion that Kurtz’s procedural due process claims were subject to Williamson County’s requirements, the court first had to rewrite the plaintiffs’ complaint.Br. at 5.
Special kudos to Emily Adams, a Utah appellate practitioner, who did the lion's share of the brief, and our Damon Key colleague Chris Leong, who also pitched in.
There are other amicus briefs being filed, and we'll post those as they come in. In the meantime, stay tuned, or follow along on the Supreme Court's docket here.
