Here's the second amicus curiae brief supporting the the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015). (Here's the first.)
This brief was filed by the Institute for Justice, and authored by Supreme Court takings maven Michael Berger:
1. It is time for the Court to reconsider Williamson County’s state court litigation prong, which requires state court confirmation that there is no state remedy for a governmental taking of property. Only then will a 5th Amendment claim be “ripe” for federal court litigation. The premise of that rule goes beyond the plain language and meaning of the 5th Amendment. A municipality’s taking of private property without just compensation is complete when property is taken and compensation is not paid by the government. It does not require a judicial determination to complete, or ripen, the taking. And, if it did, there is no reason why such a determination must take place in state court.2. This Court’s cases since Williamson County have shown the need to disapprove the state court litigation requirement. First, in City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997) this Court authorized a municipal defendant sued for a taking in state court to remove the case to federal court, even though removal is proper only if the plaintiff could have brought suit in federal court in the first place (28 U.S.C. § 1441[a]) – something Williamson County forbids. Second, in San Remo Hotel v. City & County of San Francisco, 545 U.S. 323 (2005), the Court held that, once a case is brought and tried in state court – as commanded by Williamson County – issue preclusion would prevent prosecuting such a case in federal court. Four concurring Justices urged reconsideration of Williamson County. Third, in Horne v. United States Dept. of Agriculture, 133 S. Ct. 2053, 2062, n. 6 (2013), the Court concluded that, once there has been a taking without payment, a proper constitutional claim has been presented, without the need for further “ripening.”
3. No other constitutionally protected right is subjected to state court “ripening” as a condition precedent to suit in federal court. If the 5th Amendment’s protection of property is truly no “poor relation” to the rest, as this Court proclaimed in Dolan v. City of Tigard, 512 U.S. 374, 392 (1994), then it is entitled to equal access to federal courts.
4. Both Williamson County and this case were brought under the Federal Civil Rights Act, 42 U.S.C. § 1983. Such cases are probably the worst cases in which to inject a state court litigation requirement. As this Court has held, the point of this legislation was to “interpose the federal courts between the States and the people, as guardians of the people’s federal rights.” (Mitchum v. Foster, 407 U.S. 225, 243 [1972].)
Yes, there are more briefs, so stay tuned.
