31 ELR 10353 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Procedural Implications of Williamson County/First English in Regulatory Takings Litigation: Reservations, Removal, Diversity, Supplemental Jurisdiction, Rooker-Feldman, and Res Judicata

Thomas E. Roberts is a Professor of Law at Wake Forest University School of Law in Winston-Salem, North Carolina. He would like to thank Vicki Been, Michael Green, and George Walker for their helpful comments. Thomas E. Roberts (c).

[31 ELR 10353]

Introduction

Whether Fifth Amendment regulatory takings claims by landowners against local land use authorities can or should be heard in federal court is a topic of sharp debate.¹ The law generally tilts in favor of state court resolution, and various rules keep federal district courts from interfering with or reviewing state court judgments. These rules rankle property rights advocates, who assert that it is wrong to close the federal courthouse doors to property owners who wish to assert their Fifth Amendment property rights. Others, however, insist that land use disputes are traditionally and quintessentially matters of local control that should be tried in state courts with review of federal issues limited to direct appeal to the U.S. Supreme Court.

I pursue two questions in this Article. First is whether the prevailing view that takings claims must be filed in state court is correct. This calls for an examination of the nature of the takings cause of action. Whether it is, in its inception, a federal or state claim, or both, matters. The nature of the action affects a federal district court's original, diversity, supplemental, and removal jurisdiction. My conclusion is that the bar to federal court is not as sweeping as I and others have thought it to be.

The second question I examine is whether a losing party can get a federal district court to relitigate a takings claim after a state court adjudicates it. My answer to the second, in line with what I have always thought, is that relitigation is not available.

A number of the matters covered here need clarification. In the 15 years or so that have elapsed since the 1985 and 1987 Supreme Court cases that set this debate in motion, one still finds federal judges saying rather extraordinary things, demonstrating a surprising lack of appreciation of the issues involved. While clarification is needed, the recent effort in the U.S. Congress to totally eliminate the requirement that landowners seek relief in state court goes too far.² This proposal of the National Association of Home Builders,³ which is likely to be reintroduced, is, in my view, unsound and unconstitutional.⁴ Judicial clarification and perhaps modest legislative action is preferable to [31 ELR 10354] wholesale elimination of state court primacy over land use takings issues.

The Problem

Setting the Debate in Motion: Williamson County/First English

Succinctly, what follows are the basics with respect to takings actions against state and local governments.⁵ Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City⁶ established two procedural rules for regulatory takings claims. Prong one requires that before bringing an as applied regulatory takings claim, a property owner must obtain a final decision from the authorities as to how the property can be used. Prong two, which is the focus of this Article, requires that all takings claims⁷ be filed in state court if the state provides an adequate remedy.⁸ The Supreme Court reasoned that the Fifth Amendment takings clause, which does not proscribe takings but only takings without compensation, commanded the action in state court.

Two years after Williamson County, the Court held that states must provide compensation to those whose property is taken. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,⁹ the Court resolved a long running debate over the mandatory nature of the Fifth Amendment compensation remedy. First English was headline news, at least in land use and environmental law circles, since the Court, after dodging the issue several times earlier in the 1980s, overturned the California rule that provided only declaratory or injunctive relief for a Fifth Amendment regulatory taking. Concluding that the mandatory compensation remedy was due to the self-executing nature of the Fifth Amendment,¹⁰ First English, in effect, deleted the qualifying "if" in Williamson County's holding that "if a state has an adequate process, compensation must be sought from the state." It was no longer a choice. States had to grant such relief.¹¹

The combined rule of Williamson County/First English is that a landowner with a takings claim has an action for compensation conferred directly by the U.S. Constitution that can and must be brought in state court. When one adds to this the law of preclusion and other judicial federalism doctrines such as the Rooker v. Fidelity Trust Co. and District of Columbia Court of Appeals v. Feldman (Rooker-Feldman doctrine),¹² the claim and issues that must be litigated in state court cannot be attacked collaterally in a subsequent action in federal district court. If federal review is to occur, it must come by way of direct review by the Supreme Court.

The Williamson County/First English message is not well understood. Too often the two cases are viewed separately. And often, though usually in dicta, the preclusive effects of Williamson County/First English are overlooked. The Seventh Circuit, for example, has vigorously enforced the Williamson County/First English compensation requirement, yet, it still tells property owners in gratuitous dicta as it sends them to state court to come back if they are unhappy with the result.¹³ A moment's reflection on preclusion should tell the court that it ought not be so gracious. Such an invitation, perhaps understandable in the immediate aftermath of Williamson County, is no longer responsible with a substantial body of post-Williamson County/First English case law holding that claim and issue preclusion bar relitigation.¹⁴

The confusion is largely attributable to the Williamson County Court's phrasing of its decision in ripeness language: "Until the [landowner] has utilized [the state] procedure, its takings claim is premature."¹⁵ Thus, the Williamson County opinion suggested that once the landowner sought compensation in the state court and lost on the merits or was awarded an amount of compensation deemed inadequate, it would then be timely to bring suit in federal court. But how would the federal court be able to rehear a claim or an issue already litigated in state court? The answer is that it cannot, and the suggestion that it can has misled some litigants.

As basic as the law of preclusion is in our judicial system, it is difficult to imagine that the Williamson County Court did not realize the effect of the law of preclusion on the state [31 ELR 10355] court litigation it was calling for. It may be that the Court, knowing that some states did not provide a remedy (recall, this was pre-First English), thought that in states with a remedy, like Tennessee, state courts would hear takings claims, and in states without a remedy, like California, federal courts would hear takings claims. But that still does not explain the Court's allusion to prematurity. And, it is the Court's allusions to the landowner suing first in state court and then having a ripe claim for federal court that make the case highly resistant to rational after-the-fact analysis.

The Court's emphasis on unavailable or inadequate procedures is, I think, the key.¹⁶ Putting aside the ripeness language of the Williamson County opinion as ill-considered, the combination of Williamson County and First English means that no new and independent cause of action arises from a state court's finding that the government conduct in question did not rise to the level of a taking. If the property owner wants to dispute the result of the case on the merits,¹⁷ she should appeal to the Supreme Court through the state court system. If she fails to do that she has no other recourse.¹⁸ What Williamson County/First English offer a property owner in terms of federal district court relief deals solely with unavailable or inadequate state procedures. If the state does not provide a remedy or uses unfair procedures, an action lies in federal court. These occasions will be rare.¹⁹

Nature of the Cause of Action: "Claims for Just Compensation Are Grounded in the Fifth Amendment"²⁰

In exploring the procedural consequences of Williamson County/First English, an initial inquiry must be made into the nature of the cause of action that is to be pursued in state court. Is it a right to compensation arising under the Fifth Amendment? Or, is it one arising under state law? It matters for at least two reasons. If the cause of action asserts a federal right, then claim preclusion applies to an attempt to relitigate in federal court.²¹ If the claim arises under state law, then the federal claim will not be litigated in state court, and claim preclusion may not apply in federal court. Issue preclusion will apply, but issue preclusion only bars matters actually litigated, not matters that could have been litigated.²² A second consequence that flows from the federal versus state characterization is a potential effect on a federal court's exercise of diversity, supplemental, and removal jurisdiction.²³

A number of courts have assumed, and in some cases affirmatively decided,²⁴ that the cause of action to be pursued in state court is state law-based. I think this is wrong. This assumption often is reflected by unexamined comparisons between "takings claims" and "inverse condemnation" claims as if the former represents the Fifth Amendment claim and the latter represents a state-law claim. There is, however, no inherent difference between them.²⁵ Inverse condemnation simply refers to the manner in which a property owner seeks compensation for a taking.²⁶ Thus, loose references to landowners bringing "inverse condemnation actions" in state court do not, standing alone, tell whether the source of the action is federal or state law.

When a landowner approaches the state court to demand "just compensation" on the basis that the state has "taken" property, it is the Fifth Amendment right that is being asserted.²⁷ The state controls the process, and may additionally provide its own substantive protection, but the "just compensation" claim, as First English says, is "grounded in the Fifth Amendment."²⁸ Since the Fifth Amendment is self-executing,²⁹ reliance on state law is unnecessary. Likewise, federal statutory support is not necessary to support a Fifth Amendment takings claim. Other constitutional claims must be filed pursuant to 42 U.S.C. § 1983 or rely on [31 ELR 10356] the Supreme Court finding an implied direct cause of action under the Constitution.³⁰ A takings claim, however, is given an express cause of action. That is what "self-executing" means.³¹ Advantages to using § 1983 exist, such as the availability of attorneys fees, but resorting to § 1983 is not necessary.

The assumption, erroneous in my view, that a state right is being pursued is supported by a literal reading of part of the Williamson County opinion. Drawing on cases that held that the Fifth Amendment does not require pretaking compensation, the Court reasoned that "if a State provides an adequate procedure for 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."³² And, the Court noted, Tennessee had a statutory inverse condemnation procedure.

It is a stretch to conclude that Williamson County's reference to a Tennessee statute means that the right asserted is a state substantive right. The Williamson County Court did not bother to explore in detail the Tennessee statute, which on its face neither covers regulatory takings nor expresses a state or federal constitutional basis for the remedy it authorizes. Furthermore, one of the two Tennessee cases cited by Williamson County traced the right to sue to an earlier Tennessee case that used Pennsylvania Coal v. Mahon³³ as the authority for regulatory takings claims.³⁴

Additionally, since Williamson County came before First English, there was, at the time, no definitive decision providing for a federal right to a compensation remedy. Once First English found a right to compensation "grounded in the Fifth Amendment," the combination of the two Supreme Court decisions directs the property owner to state court to assert the federal right. To the extent Williamson County looked to state law, First English impliedly overruled it. It is no longer a question of state substantive law, but one of a state process to hear the federal substantive claim.

While the Court was shortsighted to speak in ripeness terms, it is wrong to compound the Court's carelessness by concluding that the state suit is based on state substantive law. The problem with the Court developing a ripeness rule out of the "no pretaking compensation" cases is that these cases neither dealt with state action nor with ripeness. Rather, they involved actions to enjoin federal laws that property owners alleged had taken, orwould when implemented take, their property, and the Court said that if that were to occur, the property owners could bring suit under the Tucker Act. Pretaking compensation was not required.³⁵ The cases do not speak to the question of state action or the nature of the right asserted in state court.

The "no pretaking compensation" cases do underscore the unique nature of the Fifth Amendment right: one asserts it by suing the government actor. The fact that the landowner is using a state forum and a state procedure to assert a right does not make the right she is asserting a state right. All states recognize a state constitutional right similar to the Fifth Amendment takings claim but the mere existence of this right does not mean that federal claims can be barred from state courts. State courts can, indeed must, hear federal claims.³⁶

The takings claim is unique in two respects, and this uniqueness produces a good news/bad news irony for the property owner. The good news: it is the only constitutional right that is awarded an express self-executing compensation remedy. The bad news: the final step to creating the cause of action is a step litigating the cause of action. What makes some uncomfortable about this is that the benefit of [31 ELR 10357] the mandatory compensation remedy means that an unsuccessful assertion of the Fifth Amendment right to compensation in state court precludes a federal district court from ever hearing the claim. As a matter of policy, commentators disagree over both points: those who favor the First English interpretation of the Fifth Amendment that treats "regulatory takings" as Fifth Amendment takings disfavor the Williamson County requirement of a state court suit, and those who disfavor First English favor Williamson County. But whether the combined Williamson County/First English bar to federal district court is good or bad, there is nothing unconstitutional about it. A property owner has no constitutional right to sue in federal district court. A state court's refusal to find a taking might be wrong on the merits, but the only test of that is by direct appeal.

This irony that the final step to creating the cause of action is a step litigating the cause of action was too much for the Ninth Circuit to swallow. Doris and Thomas Dodd bought property in 1983, intending to build a home on it, but state law allowed only structures that were necessary and accessory to forest uses. In 1990, the Dodds sought a zone change and a permit to build a house. The requests were denied. A takings claim based solely on the Oregon Constitution followed. The plaintiffs reserved the right to assert a federal takings claim in federal court in the event they were dissatisfied with the results of the state proceedings. Rather than wait, the Dodds filed a takings claim in federal court while the state case was pending. The federal takings claim was dismissed as unripe.³⁷

Eventually, the Oregon Land Use Board of Appeals found no taking, and the state intermediate appellate and supreme courts affirmed. The federal court's dismissal was then appealed to the Ninth Circuit. In Dodd v. Hood River County,³⁸ the court found the federal takings claim ripe since the Dodds had pursued compensation in the state courts.

The question then became whether claim preclusion barred the takings claim. The court said no. Offended by the consequences of characterizing the action in state court as invoking the federal right, the court found the cause of action the Dodds asserted in state court was a state claim. Allowing the plaintiffs to reserve the right to go to federal court, the Dodds were able to split their claim. Focusing on Williamson County's reference to the availability of a Tennessee statute to pursue compensation, the Ninth Circuit concluded that a property owner had to submit a claim for compensation to the state courts based on state law, not on the Fifth Amendment. To hold otherwise, the court said, implicitly acknowledging the law of res judicata, would mean that the process of ripening a claim would extinguish it.

Williamson County was ambiguous, the court said, and though the Williamson County opinion directed a property owner "to seek just compensation" from the state, the Ninth Circuit would "not allow this one sentence to wag the entire opinion dog."³⁹ It was "extremely significant that the Court [in Williamson County] characterized the compensation element as an issue of ripeness."⁴⁰ Continuing, in sweet music to the ears of the property rights bar, the court said that

to hold that a taking plaintiff must first present a Fifth Amendment claim to the state court system as a condition precedent to seeking relief in a federal court would be to deny a federal forum to every takings claimant. We are satisfied that Williamson County may not be interpreted to command such a revolutionary concept and draconian result.⁴¹

Oddly, the court turned to First English for support and, without explaining how First English helped its position, quoted the following passage:

We have recognized that a landowner is entitled to bring an action [in state court] in inverse condemnation as a result of "the self-executing character of the [federal] constitutional provision with respect to compensation…." It has been [long] established …, that claims for just compensation are grounded in the … Fifth Amendment. Statutory recognition [by the state is] not necessary…. In the event of a taking, the compensation remedy is required by the Constitution.⁴²

Instead of supporting the court's conclusion, the quote from First English buttresses the dog-wagging sentence of Williamson County that the claim pursued in state court is a Fifth Amendment claim for compensation. Indeed, Judge Tang, in his Dodd dissent, quotes parts of the same passage from First English to make the point that the action pursued in state court is a federal claim even if a plaintiff uses a state procedure to assert it.

One negative consequence of the failure to recognize the federal nature of the cause of action occurs in the removal cases where the landowner, who tries to do what Williamson County/First English require, gets an unjustified run around. Vigilante v. Village of Wilmette⁴³ illustrates. Having been denied a variance for a lot split to build two homes on her land, Vigilante sued in state court alleging a "violation of the takings, due process, and equal protection clauses of the Illinois and federal constitutions and of 42 U.S.C. § 1983."⁴⁴ The village removed the case to federal court and then sought dismissal for lack of subject matter jurisdiction arguing that the plaintiff had not exhausted her state remedies. That, of course, was what Vigilante was trying to do when the village interrupted her effort and brought her to federal court with its petition of removal. The district court, however, agreed with the village and dismissed Vigilante's case. That left Vigilante back where she started, obligated to file suit in state court seeking compensation for the alleged taking of her property.

The Vigilante court reasoned that no violation of the federal constitution would occur until the state determined that no compensation was due, and to gain that determination the landowner had to use the state's inverse condemnation procedure. The landowner in Vigilante had sued in state court, but her mistake, said the court, was to base her claim on § 1983. In finding this fatal, the district court relied on a statement by the Seventh Circuit in Biddison v. City of Chicago,⁴⁵ to the effect that a landowner must use state procedures to seek compensation from the state before pursuing a [31 ELR 10358] § 1983 action.⁴⁶ Biddison, however, addressed a different situation than Vigilante. In Biddison, there had been no state suit filed. The property owner had sued directly in federal court based on § 1983. The Biddison court was simply saying to the plaintiff, "sue in state court first!" Its reference to "a § 1983 action," which it picked up from Williamson County,⁴⁷ was a way, albeit a misleading one,⁴⁸ of saying "federal action."

Vigilante brought her suit based on three sources of law: § 1983, the state constitution, and the federal constitution. The Illinois court was, insofar as we can tell, ready, willing, and able (not to mention obligated) to hear the self-executing Fifth Amendment takings claim. Blaming the property owner for using § 1983 is wrong.⁴⁹ Though perhaps necessary to invoke due process and equal protection,⁵⁰ § 1983 is superfluous to the self-executing Fifth Amendment claim.

The Vigilante court should either have remanded the takings claim to state court on the basis that it was not a removable claim,⁵¹ or, in the alternative, found that the village's removal deprived the plaintiff of the state forum she sought, rendering her claim properly before the court under the Williamson County futility exception.⁵² If the plaintiff is content with the federal forum to which the defendant has removed the case, it should remain there.

Another example of the federal versus state characterization problem is Evans v. Washington County,⁵³ where the landowners sued in state court on both the federal and state takings clauses and the county removed. At the time, Oregon lacked an inverse condemnation statutory procedure. Thus, the only state-based claim was to sue directly on the Oregon state constitutional self-executing provision guaranteeing just compensation for the taking of property. To the Evans court this meant that a landowner had two parallel, albeit unequal, routes, one under the state constitution, the other under the federal constitution. Oregon did not compensate for investment-backed expectations while the federal constitution does. Thus, one claiming a loss of investment-backed expectations conceivably could lose under the state constitution and win under the federal constitution. While the court was dubious as to whether the state constitutional remedy sufficed, it nonetheless remanded the case to state court.

Presumably, the Evans court envisioned the landowner filing a state constitutional claim in state court. But in a case where investment-backed expectations are in issue and are not recoverable under Oregon law, the state suit is inadequate. The plaintiff should be able to sue in state court under the federal constitution where the state courts must award compensation based on federal law.

The gist of cases like Dodd, Vigilante, and Evans characterizing the claim to be filed in state court as a state-law claim is to impose a difficult task upon a landowner: she must assert her federal right to compensation under the Fifth Amendment in state court without mentioning the Fifth Amendment. This confusion that exists over the nature of the cause of action makes determining the appropriate forum in which to sue more difficult.

Where to Sue

Basic Rule

While not everyone likes it, the basic rule of Williamson County/First English is clear. A property owner must bring a Fifth Amendment takings claim seeking compensation from state action in state court.

There are, however, several possible exceptions to consider for the plaintiff who would prefer to be in federal court. One is to sue in federal court, claiming resort to the state courts would be futile. A second is to sue in state court and give notice to the state court of an intent to reserve the right to go to federal court at the end of the state litigation. A third option exists where there is diverse citizenship, when a federal district court may hear a state takings claim and perhaps a federal one as well. For the property owner who has another claim over which a federal district court has jurisdiction, a fourth option is to sue on that claim and append a state takings claim, asking the court to exercise supplemental jurisdiction over the latter. A variant of this approach is to append the otherwise incomplete⁵⁴ federal takings claim to the other federal claim. Finally, the plaintiff who begins as she should in state court may wind up in federal court by virtue of government removal.

Exception No. 1: Futility of Using State Court

The burden is on the property owner to establish the inadequacy of the state's process, and it is a difficult burden to carry.⁵⁵ Uncertainty, for example, does not equal inadequacy.⁵⁶ Also, if the property owner allows the state statute of limitations to run, she forfeits any right to seek compensation in federal court.⁵⁷ If the property owner's state action is [31 ELR 10359] dismissed with leave to amend, and the property owner fails to amend, no federal suit will lie.⁵⁸

There are cases where the state process is inadequate, but they are few. In Neumont v. Monroe County,⁵⁹ the federal court found the state's obstruction of plaintiff's pursuit of relief in state court to render the state effort futile. The county allegedly made changes to the ordinance and agreed not to enforce the ordinance to moot the state suit.

In rare instances, prong two futility can be established by proving that the state courts have rejected takings claims that are on all fours with the challenger's case. Since takings claims are usually highly ad hoc affairs, this will not often occur,⁶⁰ but it does happen. In Naegele Outdoor Advertising, Inc. v. City of Durham,⁶¹ a challenge to a five-and-one-half year billboard amortization ordinance was deemed ripe in federal court without pursuit of a suit in state court since the North Carolina state courts had, on several occasions, upheld the same type of amortization ordinance.⁶² The federal court concluded that a five-and-one-half year sign amortization provision would not be viewed as a taking by the North Carolina courts and that it would be pointless to ask the state court for relief. The Ninth Circuit has made a similar finding with respect to certain rent control statutes as they have been construed in California state courts.⁶³

Unavailability must be clear. It is not enough to point to an ambiguous intermediate state court opinion.⁶⁴ In SGB Financial Services, Inc. v. Consolidated City of Indianapolis-Marion County,⁶⁵ the court rejected the argument that the state courts would not grant relief in a condemnation blight case. The federal plaintiff could only point to a state intermediate appellate court opinion that was arguably distinguishable.

Another instance of unavailability may occur where the government defendant removes a takings case from state court. I explore this idea, which is supported by common sense if not by prevailing law, below.⁶⁶

Exception No. 2: Reservation a la England

Several courts have wondered⁶⁷ whether state court plaintiffs may reserve the right to litigate their Fifth Amendment takings claims in federal court under the doctrine of England v. Louisiana State Board of Medical Examiners.⁶⁸ In England, the Court held that a party who, having properly invoked federal court jurisdiction, is compelled by the federal court's exercise of Railroad Commission of Texas v. Pullman Co. (Pullman abstention)⁶⁹ to litigate in state court can reserve her right to return to federal court for consideration of federal issues after the termination of the state proceedings.⁷⁰

The suggestion of using an England reservation in a takings case raises two possible avenues for property owners to pursue. The first is to sue in federal court and, when the defendant, or the court sua sponte, moves to dismiss the case for lack of jurisdiction for failure to pursue state remedies, file a notice of intent to reserve the right to return to federal court. This will not work because the district court lacks jurisdiction over the claim; there is nothing to reserve.⁷¹

The other course is for the property owner to bring suit in state court, and, at the outset of the litigation, file a notice with the state court of an intent to reserve the right to have the federal takings issue heard in federal court. This will work only with an extension of England because England was premised upon an action commencing in federal court and the plaintiff being sent to state court involuntarily by federal court abstention.⁷²

[31 ELR 10360]

The England reservation principle could be expanded to cover the takings claimant, but whether it will or should is another question. There is, to be sure, a similarity of involuntariness in the England abstention situation and the takings case. Like an England plaintiff, a takings plaintiff is sent to state court involuntarily and will be denied a federal forum by the move. The takings issue is different, however, since, as I read Williamson County/First English, the matter submitted to state court is not an issue of state law the resolution of which might avoid a federal ruling.⁷³ It is a federal law issue, the Fifth Amendment, that the state court must decide. The England rule exists to protect the purpose of Pullman abstention to avoid federal constitutional rulings, but Williamson County/First English demand that a state court make a federal constitutional ruling.

In Fields v. Sarasota Manatee Airport Authority,⁷⁴ the Eleventh Circuit, with some reluctance, said that an England reservation can be used in a regulatory takings case.⁷⁵ The court conceded that England was not directly applicable since a takings case cannot be brought in federal court in the first instance, but the court found that precedent within the circuit compelled it to recognize a reservation made in a case initiated in state court.⁷⁶ This was a misreading of England, said the court, but one that it found too late to revisit.⁷⁷ Fields went on to find that despite the strict inapplicability of England, allowing a reservation was proper under post-England holdings in Allen v. McCurry⁷⁸ and Migra v. Warren City School District Board of Education.⁷⁹

The effort to expand the England reservation principle to takings claims may not be worth the trouble since issue preclusion will apply to prevent relitigation in federal court.⁸⁰ Dodd⁸¹ left open the propriety of an England reservation question, but found that the parties and the state court had agreed to allow the property owners to assert their takings claim in federal court after state court adjudication of a state takings claim.⁸² The state court expressly ruled that it was considering only Oregon law in finding no taking of the plaintiffs property. Since there was an agreement allowing the plaintiffs to split their claims, the court held the plaintiffs were not subject to claim preclusion when they sued in federal court. The court went on to hold, however, that issue preclusion prevented the Dodds from relitigating issues that had been decided adversely to them by the state court.⁸³

Exception No. 3: Diversity Jurisdiction

Diversity jurisdiction represents another avenue to federal court. If diverse citizenship exists between the property owner and the city or county agency,⁸⁴ then a federal district court has jurisdiction to hear any claim the state court could hear.⁸⁵

In County of Allegheny v. Frank Mashuda Co.,⁸⁶ the county appropriated land allegedly to use in expanding the Pittsburgh airport. Under state practice, a board of assessors was appointed to assess compensation for the taking. The (former) land owners discovered that the land taken from them had been leased to a private party. Claiming this transfer violated Pennsylvania law, which prohibited takings for private use, the landowners, who happened to be citizens of Wisconsin, sued in federal district court, seeking ouster of the private lessee. TheSupreme Court upheld the exercise of diversity jurisdiction over the state-law claim. Since the petitioners could have filed such an action in state court, they were entitled, by virtue of their noncitizenship, to ask a federal court to act as would a state court and apply Pennsylvania law with respect to private takings.⁸⁷

Following this Supreme Court lead,⁸⁸ several lower federal courts in recent years have ruled on property owners' state-law regulatory takings claims when their jurisdiction was founded on diversity.⁸⁹ In such a case, the federal district court must act as a state court would act, and this presents no problem insofar as the takings claim is based on state law. However, in light of the tendency to blur the question of whether the takings claim is state or federal,⁹⁰ a question [31 ELR 10361] arises as to whether a federal court, sitting as a state court by diversity jurisdiction, can hear a federal takings claim.

This occurred in William C. Haas & Co. v. City & County of San Francisco,⁹¹ where the Ninth Circuit heard a Kansas City developer's federal takings claim based on diversity jurisdiction. If you find this odd and suspect that the plaintiff really brought a claim based on California law, or that jurisdiction, in this pre-Williamson County/First English case, was based on the existence of a federal question, the opening statement of the court should satisfy you:

Haas [a Kansas City developer] brought this diversity action against the … City claiming that the City's rezoning of its property … so far diminished the value of its property as to constitute a taking for which it is entitled to just compensation protected by the Fourteenth Amendment.⁹²

The court proceeded to rule against the plaintiff developer on the merits. Though it may seem peculiar that a federal court could hear a federal claim in diversity when it could not hear the same claim under its federal question jurisdiction due to the Williamson County/First English rule, the exercise of such jurisdiction comports with the notion that, in diversity, federal courts should act like state courts would act, and in a regulatory takings case based on the Fifth Amendment, the state court would hear the case.

Assuming existence of the power to hear the claim, a question of comity remains as to whether the federal district court in diversity must hear the takings claim, be it state or federal. Here, Mashuda⁹³ is instructive though not determinative. The Mashuda Court rejected the idea that the district court should abstain on grounds of comity from applying what, in that case, was settled state law. A different matter presents itself if state law is unsettled. But, if the claim is a federal one, as in Haas, then no deference to the state courts need be considered.

With respect to state-law eminent domain issues, the Mashuda Court found "no hazard of friction in federal-state relations."⁹⁴ Federal courts were accustomed to dealing with such issues, said the Court. However, where the issue is the reach of the police power in controlling land use, greater comity considerations may arise. In contrast to the relatively straightforward questions of compensation that typically arise in eminent domain proceedings, the issues in regulatory takings cases might justify abstention by a federal district court.⁹⁵

Exception No. 4: Supplemental Jurisdiction (Turning Williamson County on Its Head)

If a Fifth Amendment claim is filed in federal court where the landowner has not sought compensation in state court, the action is dismissed for lack of subject matter jurisdiction. An equal protection or substantive due process claim, however, can be filed in federal court more easily than a takings claim. Most courts apply Williamson County's final decision requirement to equal protection and due process claims, but, quite properly, do not require the plaintiff to pursue state judicial relief under Williamson County's second prong.⁹⁶ Thus, the property owner might file an equal protection claim in federal district court and append to it a takings claim. This might be a state takings claim, or possibly the federal takings claim. While there is a fair amount of support for the former, there is but slight support for the latter. Using supplemental jurisdiction as an end run around the inevitable Williamson County dismissal of a Fifth Amendment claim "turns Williamson County on its head," as one court charged,"⁹⁷ and, since courts have discretion in exercising supplemental jurisdiction, it may not be successful.

[] Appending a State Takings Claim. Title 28 U.S.C.A. § 1367(a) provides that "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Thus, a property owner who secures federal district court jurisdiction by asserting a due process or equal protection claim may append a state takings claim, which the court may hear through its exercise of supplemental jurisdiction.⁹⁸

Hearing the claim is not compulsory. Under § 1367(c), a federal court may decline to exercise such jurisdiction if one or more of the following circumstances exists:

(1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed the claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.⁹⁹

Normally, at least one, and perhaps several, of these will apply to Williamson County end run attempts.

Subsection (1) may arise where the takings issue presented has not been adjudicated by the state courts under the state constitution. It is not unusual for state courts to rule on takings claims without being clear whether they are applying the state or federal takings clauses, or both. Where the federal court finds the issue presented has not been decided by the state court under the state constitution, it may decline jurisdiction.

Subsection (2) may exist since the equal protection and due process claims that are asserted are often insubstantial, [31 ELR 10362] stretching notions of the Fourteenth Amendment with no realistic opportunity of success. To use this end run a plaintiff who has to scrounge for a claim to leverage the takings claim is out of luck. If the only serious issue is the state takings claim, the federal court should let the state court decide it.

The leveraging hook of equal protection or due process may be found so wanting that it is dismissed early on, either for failure to state a claim or on summary judgment. Even though the court has had the claim for some deliberations, dismissal of the state takings claim is nonetheless proper under subsection (3).

The potential expansion of property owner equal protection claims suggested by Village of Willowbrook v. Olech¹⁰⁰ may make it less likely that subsections (2) or (3) will apply. Olech sued the village of Willowbrook seeking damages for the village's alleged denial of her right to equal protection. The essence of her complaint was that when she asked the village to hook her house to the public water line, the village demanded from her a 33-foot easement. Others similarly situated had only been asked to grant a 15-foot easement. The reason for the disparate treatment, she alleged, was that she had successfully sued the village earlier over stormwater damage, and that the village, seeking revenge, was motivated by ill will.

The Court held that Olech stated an equal protection claim. It mattered not that she was a "class of one," or that she asserted no fundamental right or that she claimed no membership in a suspect class. It is sufficient that she "alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."¹⁰¹ Though Olech had alleged that the village was motivated by ill will, the Court said the village's subjective motivation did not matter. Her complaint was sufficient without such allegation.¹⁰² The possibility thus exists that equal protection claims can now more easily survive a motion to dismiss, and perhaps survive a summary judgment motion as well.¹⁰³ To the extent that this occurs, it is more likely that appended takings claims will not be thrown out under § 1367 (c)(2) and (3).

The fourth category of exceptional circumstances may apply to all takings claims under the rationale that local control over land use is a per se compelling reason. Even if not a per se rule, on an ad hoc basis, takings claims often present strong cases for deferral.¹⁰⁴

While most reported cases involve district courts that have refused to exercise supplemental jurisdiction,¹⁰⁵ there are cases to the contrary. In Picard v. Bay Area Regional Transit District,¹⁰⁶ alleging lack of ripeness, the plaintiff sought remandto the state court of its federal due process, equal protection, and takings claims and its state takings claim. The federal district court dismissed the federal takings claim based on Williamson County's prong two. The court then found the due process and equal protection claims ripe. The court, however, refused to remand a state inverse condemnation claim to state court. In an ironic twist, the plaintiffs who wanted to be back in state court resorted to the argument that their due process and equal protection claims were too "insubstantial" to justify retention of their state takings claim. Disagreeing, and finding it important to keep the related claims in one forum, the court declined to defer to the state's interest in applying its own law of takings to the case.¹⁰⁷

[] Appending an "Otherwise Incomplete" Federal Takings Claim. If the property owner sues in federal court on equal protection or substantive due process grounds and appends [31 ELR 10363] an otherwise incomplete¹⁰⁸ federal takings claim, there are legions of cases keeping the former and dismissing the latter for failure to pursue state remedies.¹⁰⁹ But is it necessary and proper to do this where the failure of the property owner to seek state judicial relief is the only reason the federal court lacks original jurisdiction over the takings claim?¹¹⁰ If the federal district court has jurisdiction over the equal protection or due process claim, why should it not hear a takings claim, which arises out the same facts, particularly when it can hear such a federal takings claim upon removal¹¹¹ and hear a state takings claim by supplemental jurisdiction?

Assuming the claimant has obtained a final decision from the local government, her takings claim is ripe (in any proper sense of the term) for adjudication, and the question is simply which court should decide it. "The state court," one might think, is the only response that Williamson County/First English allow. That is true if the takings claim is the claim on which federal jurisdiction depends. But, if the federal court has jurisdiction on another basis, it may be more efficient for the federal court to hear the takings claim as well. Most importantly, the supplemental jurisdiction statute, which provides that "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy,"¹¹² allows it on its face.

If the power exists, comity considerations may often suggest the federal court not exercise it. Addressing the efficiency versus comity question, though, is a better way to resolve the matter than to deny that the power exists. I know of no direct holding accepting supplemental jurisdiction over a federal takings claim,¹¹³ but the theory can explain the results of some of the removal cases discussed below where the federal courts reach the merits of federal takings claims.

Exception No. 5: Removal

It is not always the property owner who prefers a federal forum. Municipalities do at times, and when that is so, they try to achieve it by removal. Cases are removable from state court under 28 U.S.C. § 1441, where they are within the original jurisdiction of the federal court.¹¹⁴ Three situations may arise. First, if a property owner files a Fifth Amendment takings claim in state court, conventional wisdom says it is not removable since the case is not within the original jurisdiction of the court under prong two of Williamson County.¹¹⁵ A competing view is that the act of removal establishes the unavailability of a state process, conferring original jurisdiction on the court. Second, if the plaintiff brings a federal and/or state takings claim and couples with it other federal claims such as equal protection or due process. Here, removal may be proper, and supplemental jurisdiction may exist. Third, if the plaintiff files in state court solely alleging a state-law claim for compensation, the case is not removable.

[] Consequences of Government Removal. In a number of recent cases, the defendant government entity removes. It then seeks dismissal either on the merits or on jurisdictional grounds. The plaintiff may choose to seek remand or to stay and fight.

McDonald's Corp. v. City of Norton Shores,¹¹⁶ is typical. McDonald's sought approval of a site plan for a restaurant with a drive-thru window. While the city's site plan review procedures did not expressly include consideration of traffic flow, the plan was rejected due to traffic concerns. The denial of the site plan was only one of three denials by the city in the past five years, and other fast food restaurants with drive-thru windows had been permitted in the vicinity.

McDonald's sued in state court alleging a taking and denials of substantive due process and equal protection, in addition to state-law claims. The city removed and moved for summary judgment. The court found against McDonald's on the merits of its substantive due process and equal protection claims.¹¹⁷

As to the takings claim, the plaintiff had not met the state compensation requirement of Williamson County, so the court dismissed the case. That left McDonald's back where it started, to sue again in state court alleging a taking. That [31 ELR 10364] result accords with conventional wisdom.¹¹⁸ However, the federal court might have kept the federal takings claim, treating the defendant's removal as conclusive evidence that the state's procedure had proven futile in this case. The court alternatively might have considered exercising supplemental jurisdiction over the federal takings claim. This still might have led to dismissal, since the exercise of supplemental jurisdiction is discretionary, but, at least, the propriety of proceeding based on efficiency and equity would have been considered.

In Seiler v. Charter Township of Northville,¹¹⁹ the city conditioned subdivision approval on construction of a bicycle path and bridge for public use. The landowner sued in state court alleging an as applied Fifth Amendment takings claim, as applied due process and equal protection claims, a facial claim that the standards and procedures used by the township were unconstitutional without specifying the clause of the constitution that was allegedly violated, and a state inverse condemnation claim. The city removed, and the district court dismissed the as applied takings claim and equal protection and due process claims for failure to meet either prong of Williamson County.¹²⁰

As to the takings claim, the landowner argued that he had sued in state court only to have the township remove and that the court ought not dismiss the takings claim because he would suffer delay caused by the defendant's removal. The court sympathized, but said removal was a right separate from ripeness. The township had a right to remove and any delay suffered by the plaintiff was the plaintiff's fault: namely, the "plaintiff's decision to file unripe federal claims as part of his state court inverse condemnation action."¹²¹ The plaintiff, thus, is back where he started.

Rather than arguing delay as a reason to overcome the ripeness objection, Seiler might have suggested that the township's removal deprived him of a state process. He had tried to seek compensation in the state courts, but the defendant would not allow him to proceed. The unavailability of a state process is a specific basis for the exercise of jurisdiction by a federal district court under Williamson County.

The Seiler court may well be correct in saying, as a general proposition, that "the right to remove federal claims is separate and distinct from the question of whether those claims are ripe for adjudication," but it is wrong to apply that to Fifth Amendment takings claims that are indisputably ripe for judicial action and the only question is which court, state or federal, will decide them.¹²² If the plaintiff is content with having the removed case heard in federal court, it should remain there.

[] College of Surgeons and Support for the Exercise of Jurisdiction Upon Removal. International College of Surgeons v. City of Chicago¹²³ brought attention to the practice and propriety of government defendants removing takings claim to federal court. The holding of College of Surgeons did not address the propriety of government removal, but the district court's handling of the federal takings claim opens up the possibility of district court jurisdiction over takings claims in removal situations. Also, the power the Court confers on district courts to review state administrative findings speaks to the broader federalism issue of whether district courts should use the power they have to hear claims via supplemental jurisdiction.

The College of Surgeons filed suit in Illinois state court complaining on various federal constitutional and state-law grounds about the city's historic landmarking of their property. The city removed the case to federal court on the basis of supposed federal question jurisdiction. The federal claims included equal protection and due process claims and a takings claim. In 1992, the district court dismissed "some of the constitutional claims."¹²⁴ Then, in 1995, the district court ruled on the remaining federal and state claims, finding in the city's favor on all counts. The Seventh Circuit reversed in part, holding that it was error for the district court to exercise supplemental jurisdiction over the state-law claims that called for deferential, on-the-record review of state administrative findings. The Supreme Court reversed the circuit court.

The Supreme Court held that when a case is properly removed on the basis of a federal question presented by the plaintiff to the state court, a district court has the power to exercise supplemental jurisdiction over state claims including deferential, on-the-record review of state administrative findings. The Supreme Court did not discuss the federal claims that justified removal.

The district court had "dismissed with prejudice several of plaintiffs' equal protection and due process claims, including the claim that the Landmarks Ordinance effected an unconstitutional 'taking' of plaintiffs' property."¹²⁵ With respect to plaintiffs' federal takings challenge, the district court, relying on Penn Central Transportation Co. v. City of [31 ELR 10365] New York,¹²⁶ found that the Landmarks Ordinance did "not affect plaintiffs' ability to continue using the subject property as a corporate headquarters or museum,'" and hence was not a taking.¹²⁷

Conventional wisdom tells us that it was wrong for the district court to rule on the substance of the federal takings claim. The district court should have remanded the takings claim for lack of compliance with Williamson County/First English.¹²⁸ This apparent error was not noted by the Supreme Court, which is unsurprising since it was of no significance to the issue in the case. There were other federal claims that justified removal,¹²⁹ thus, the Supreme Court proceeded to the question of supplemental jurisdiction over the state issue.

Perhaps conventional wisdom is wrong, and perhaps the district court's decision on the federal takings claim can be viewed as an exercise of supplemental jurisdiction, as I suggest in the immediately preceding section. That is, the district court having jurisdiction over the equal protection and due process claims had the supplemental jurisdiction over the federal takings claim. Alternatively, removal may have been deemed conclusive evidence that no state process existed, giving the court jurisdiction on the authority of Williamson County's unavailable forum rule.

The College of Surgeons district court's exercise of jurisdiction over a federal takings claim via removal does not stand alone. In Garneau v. City of Seattle,¹³⁰ the Ninth Circuit ruled on the merits of a federal facial takings claim that had been removed from state court by the city.¹³¹ Similarly, in New Pulaski Co. Ltd. Partnership v. Baltimore,¹³² the Fourth Circuit heard a federal takings claim by removal.

In such cases, three possibilities exist. One, the court assumes that the city's removal constitutes conclusive evidence that resort to the state court is futile and, thus, jurisdiction is proper under Williamson County.¹³³ Two, the court finds it proper to exercise supplemental jurisdiction over the otherwise incomplete claim federal claim. This requires that there be another federal claim removed, which was the case in College of Surgeons, Garneau, and Pulaski. Or, if one rejects these two implicit findings of jurisdiction, a third possibility is that the court does not have jurisdiction. The proper thing would be to remand the case to state court under prong two of Williamson County, but a court might not realize that jurisdiction is lacking.¹³⁴

Once Is Enough

If, as is usually the case, none of the avoidance techniques enables the property owner to avoid litigating the takings claim in state court, that ends the matter. Where the plaintiff, unhappy with what the state court has done, seeks to obtain review by the federal district court, she will find one of two bars: the Rooker-Feldman doctrine, or, if that does not apply, claim or issue preclusion.

Rooker-Feldman

Federal district courts are barred by the Rooker-Feldman doctrine¹³⁵ from "entertaining a proceeding to reverse or modify"¹³⁶ a state court judgment or from hearing issues "inextricably intertwined"¹³⁷ with a state court decision. The sole avenue of relief available to a party who has lost in state court and wishes review of a federal question that was or could have been presented in state court is to appeal to the Supreme Court. If that route is not taken, the state court judgment stands.

The basis of Rooker-Feldman is 28 U.S.C. § 1257, which vests appellate jurisdiction solely in the Supreme Court.¹³⁸ The rationale is that if a "federal challenge succeeds only to the extent that the state court wrongly decided the issue, … [or] if the federal action would effectively reverse the state court decision,"¹³⁹ the district court would be exercising appellate review. As the Court said in Feldman, "this it may not do."¹⁴⁰

[] Compared to Preclusion and Abstention. Two reactions to Rooker-Feldman are common. First is "I've never [31 ELR 10366] heard of it." This is understandable since the doctrine lay dormant for years.¹⁴¹ However, it has emerged in recent years as a popular defense, being used over 500 times by lower federal courts in the 1990s to dismiss cases for lack of jurisdiction.¹⁴²

A second reaction is "so what, it's the same as preclusion." After all, the plea of the defendant in the federal court is "this has already been litigated." Rooker-Feldman, however, is different. While similar to the preclusion doctrines in that it prevents relitigation,¹⁴³ Rooker-Feldman exists for a reason different from the preclusion doctrines. As Professor Sherry says, "res judicata is about parties; Rooker-Feldman is about courts."¹⁴⁴ Preclusion rules exist primarily¹⁴⁵ to protect persons from being exposed to repetitious litigation by those they have defeated in prior lawsuits. Rooker-Feldman protects the integrity of the state courts by prohibiting federal district courts from intruding on state courts. While preclusion rules limit all courts (within a state, between states, and between state and federal systems) from second-guessing prior court decisions, Rooker-Feldman only acts to curtail federal district court jurisdiction. Preclusion, under the full faith and credit statute, requires federal courts to look to state law. Rooker-Feldman is federal law.

Rooker-Feldman goes to the subject matter jurisdiction of the district court and, thus, "may be raised at any time by either party or sua sponte by the court … [and] in that respect, it is quite unlike the affirmative defenses of collateral estoppel or res judicata."¹⁴⁶ The Rooker-Feldman determination of jurisdiction based on federal law comes first¹⁴⁷; and, if jurisdiction exists, res judicata or collateral estoppel may follow as an affirmative defense.¹⁴⁸ What Rooker-Feldman does not bar, preclusion doctrines may.¹⁴⁹

Rooker-Feldman fills some of the gaps in preclusion. Professor Sherry explores these gaps in detail in her article,¹⁵⁰ but a short list includes the fact that preclusion does not apply to pending suits whereas Rooker-Feldman does. With preclusion issues, federal courts apply state law, and preclusion rules vary among the states and are notoriously complex, with numerous exceptions. Rooker-Feldman is a rule of federal law, theoretically unvarying among the federal courts, though still dependent on state law to some degree.¹⁵¹

Rooker-Feldman differs from abstention as well. The most frequently invoked rule of abstention, Younger v. Harris,¹⁵² requires that the state proceeding be pending and that the matter involve important state interests. Neither requirement applies to Rooker-Feldman.¹⁵³

Applications of Rooker-Feldman in Land Use and Related Areas

Rooker-Feldman requires dismissal of a claim that is "inextricably intertwined" with a claim already adjudicated in state court. The test is whether the relief requested in the federal action, if granted, would effectively void the state judgment.¹⁵⁴ It applies to issues litigated and issues that could have been litigated in state court.¹⁵⁵

[] Takings. Hill v. Town of Conway¹⁵⁶ exemplifies Rooker-Feldman's use in takings litigation. There the Second Circuit upheld the dismissal of a takings claim on the basis of Rooker-Feldman. The landowners had filed a subdivision plat that depicted a road. After the project was built, the town maintained the road. Then, the town filed a declaration of taking of the road with the state Board of Tax and Land Appeals. The Board allowed the take but awarded no damages. The landowners filed two state lawsuits. One challenged the propriety of the taking. The other sought a reassessment of the damages. The landowners lost both cases. In the first case, the court held that the filing of the plat constituted a voluntary dedication of the road to the public and, alternatively, that the maintenance performed on the road resulted in dedication. The state supreme court summarily affirmed the trial court.

[31 ELR 10367]

In the second case as to damages, the trial court held that the plaintiffs were barred from relitigating the issue of the first case, whether a dedication had occurred. The court then found that damages were not due to one who dedicated a road. The state court rejected landowners' reliance on Dolan v. City of Tigard,¹⁵⁷ finding that dedication in Dolan was not voluntary.¹⁵⁸ The state supreme court refused review.

Rather than seeking Supreme Court review of the state court judgment,¹⁵⁹ landowners commenced suit in federal district court seeking compensation for the taking of the road on the basis of Dolan. Since the relief requested in the federal action, if granted, would effectively void the state judgment, the Second Circuit held that the district court was barred from hearing the claim for compensation under the doctrine of Rooker-Feldman.¹⁶⁰

Rooker-Feldman does not apply if the federal plaintiff lacked an opportunity to raise the federal issue in state court. Thus, in Agripost, Inc. v. Miami-Dade County,¹⁶¹ the county revoked a waste disposal facility's permit due to neighbor complaints about the "vile stench" and "black, thick gluelike mold" that the plant emitted. The permit revocation was appealed to a three-judge panel of the state circuit court, which affirmed based on findings that Agripost had breached its permit conditions. The state court of appeal refused review. Then Agripost filed a takings claim in federal court. The county sought dismissal on the basis of Rooker-Feldman, or in the alternative, on preclusion grounds. The district court rejected the applicability of either, and on its own initiative, dismissed the case as unripe since Agripost had not sought compensation from the state court.

The county appealed to the Eleventh Circuit,¹⁶² which affirmed the district court. Rooker-Feldman did not apply since the plaintiff could not have raised the takings issue in the state circuit court, which, due to the procedural posture in which the case came to it, lacked authority to decide that issue.¹⁶³ The state circuit court was only to decide the validity of the permit revocation. While the state court decided the revocation was proper under state law, it was still possible, noted the Eleventh Circuit, that the revocation had rendered the plaintiff's land worthless and might therefore be a taking. But that issue had not been before the state court. In Rooker-Feldman terms, the federal court is barred from hearing a matter where its judgment would contradict a prior state court ruling. Here, a finding of no economic value would not be at odds with what the state court had found.

As the Eleventh Circuit's opinion in Agripost indicates, if the takings issue was not, or could not have been, litigated in state court, the takings claim must still be dismissed by the federal court, but on Williamson County's state compensation rule rather than Rooker-Feldman grounds. That, however, does not mean that the landowner can return to federal court after the litigation takes place in state court. At that point, a return to federal court will be barred by either Rooker-Feldman or preclusion.

[] Due Process and Equal Protection. Disagreement exists with respect to the application of Rooker-Feldman to a federal challenge to local government conduct alleged to violate due process and equal protection in cases where the state court has already found the conduct appropriate. While several courts have applied Rooker-Feldman to such cases, the Seventh Circuit has rejected its use.

In Anderson v. Charter Township of Ypsilanti,¹⁶⁴ the plaintiff was unsuccessful in obtaining a rezoning of land from light industrial to multi-family use. Though plaintiff commenced a state court suit in 1988, it was not until 1994, in an amended complaint, that plaintiff alleged a taking and a due process violation under the federal and state constitutions.¹⁶⁵ The township then removed the case to federal court. That court remanded the state-law claims and stayed proceedings on the federal claims (a takings claim and apparently substantive and procedural due process claims).¹⁶⁶ In May, 1998, the state court ruled against the plaintiff on the merits of his takings claim. Then, a year later, in June 1999, the plaintiff filed a motion in federal court to lift the stay.

The district dismissed both the substantive due process and takings claims for lack of subject matter jurisdiction on the basis of Rooker-Feldman since it found the issues it would be called upon to decide were "inextricably intertwined" with the state court's ruling:

If this court were to find a violation of substantive due process, it would necessarily be required to find, contrary to [the state court], that defendant … acted arbitrarily, capriciously, and in derogation of its authority. In addition, a finding by this Court that plaintiff's property lacked any economic viability due to the rezoning denial would be directly contrary to [the state judge's] finding that the property had value as zoned.¹⁶⁷

Quoting the Supreme Court's Feldman opinion, the district court recognized that "this it may not do."¹⁶⁸

In Community Treatment Centers v. City of Westland,¹⁶⁹ the court dismissed, on the basis of Rooker-Feldman, [31 ELR 10368] takings, substantive due process, and equal protection claims that could have been raised in a state court proceeding. Denied a special use permit, plaintiff sought review of the denial in state court on several state grounds and on the grounds that the denial "was arbitrary and capricious and a denial of due process and … violated substantive due process under the Fifth Amendment¹⁷⁰ to the United States Constitution and under the Michigan Constitution."¹⁷¹ After losing in state court, plaintiff filed a federal suit, claiming a taking, due process, and equal protection violations. The district court dismissed the takings claim on ripeness grounds¹⁷² and alternatively on Rooker-Feldman and abstention grounds. Applying Rooker-Feldman, the court dismissed the takings claim (and the due process and equal protection claims as well) because the plaintiff could have raised the takings issue in the state court proceeding and the issue was "inextricably intertwined" with the issues decided by the state court.¹⁷³ Not only had the state judge decided that the action of the city was not arbitrary, but "to the extent that [the plaintiff's] takings argument is broader than this, … [plaintiff] could have made this argument before the [state] court."¹⁷⁴ Thus, the plaintiff's unripe claim could now never be ripened. Appeal of the issue of whether a taking had occurred had to be taken from the state court directly to the Supreme Court. It could not be collaterally attacked.

[] Seventh Circuit Divergence. The Seventh Circuit's rulings are consistent with other courts' applications of Rooker-Feldman to takings claims but at odds with the due process cases. The reason for the difference lies in the Seventh Circuit's effort to distinguish Rooker-Feldman from preclusion:

A plaintiff who loses and tries again encounters the law of preclusion. The second complaint shows that the plaintiff wants to ignore rather than upset the judgment of the state tribunal. A defendant who has lost in state court and sues in federal court does not assert injury at the hands of his adversary; he asserts injury at the hands of the court, and the second suit therefore is an effort to obtain collateral review. It must be dismissed not on the basis of preclusion but for lack of jurisdiction. This is the effect of the Rooker-Feldman doctrine, which is based on the principle that inferior federal courts cannot reexamine the decisions of state tribunals in civil litigation.¹⁷⁵

This produces two related tests or "rules of thumb," as the court has called them. First, "if the federal plaintiff was the plaintiff in state court, he must contend with res judicata; [but] if the federal plaintiff was the defendant in the state court, he must contend with the Rooker-Feldman doctrine."¹⁷⁶ Second, Rooker-Feldman applies when the injury alleged by the federal plaintiff results from the state court judgment itself rather than the actions of the defendant.¹⁷⁷

The "who was the federal plaintiff in the state suit" or status test, saying that Rooker-Feldman is not applicable where the federal plaintiff was the state plaintiff, is rather bizarre because in the cases that give the doctrine its name, Rooker and Feldman, the federal plaintiffs were also the state court plaintiffs. Furthermore, if one is to pick and choose between the state plaintiff and the state defendant, it is odd that the one who chose the state court should face one less hurdle in federal court.¹⁷⁸ The rule turns on its head, at least with respect to the plaintiff who voluntarily goes to state court, the idea that one should live with consequences of one's own choices.¹⁷⁹ The Seventh Circuit, recognizing its variance from the Supreme Court's cases, notes that it cannot adopt a rule in direct refutation of those cases, but maintains still that the status of the party, though not a "per se rule," is a "helpful shorthand."¹⁸⁰

The Seventh Circuit explains its "shorthand" as enabling it to distinguish between Rooker-Feldman and preclusion. But, though the two doctrines share similarities, there is no reason why the court should feel compelled to distinguish between the two in order to determine whether Rooker-Feldman applies in a given case. The fact that res judicata may bar a claim does not mean that Rooker-Feldman does not. Both may well be applicable to the same set of facts.

For a takings claim, the status rule is a bit awkward to apply. The landowner in the state court proceeding is the plaintiff, but since it is an action in inverse condemnation and since the plaintiff is compelled to use state court, perhaps the landowner should be viewed as having been the state court defendant. After all, had things been done properly, the theory goes, the landowner would have been the defendant in a [31 ELR 10369] direct condemnation action.¹⁸¹ If this is the view one takes, the status rule would result in a Rooker-Feldman bar.

The Seventh Circuit's status rule cuts against application of Rooker-Feldman in most non-takings land use claims. In such cases, the federal plaintiffs usually are also the state plaintiffs. Take, for example, the developer who challenges in state court a permit denial or a refusal to rezone as arbitrary or discriminatory, loses, and then goes to federal court on due process or equal protection grounds. It is here that the status rule merges into and must be considered with the Seventh Circuit's second rule of thumb.

The second specific test of the Seventh Circuit is that Rooker-Feldman is applicable when the federal plaintiff "asserts injury at the hands of the [state] court. If, on the other hand, he asserts 'injury at the hands of his adversary' or an injury distinct from [the state court] judgment,"¹⁸² Rooker-Feldman does not apply but preclusion may apply.¹⁸³ It then matters whether the injury alleged in the federal court came prior to the state court suit or as a result of the state court suit. If the injury was prior to the state suit and the federal plaintiff went to state court and lost because the state court did not agree that a federal injury had occurred, then Rooker-Feldman, says the Seventh Circuit, does not bar the federal suit.

This "source of injury" test does not produce different results for the takings claims discussed above¹⁸⁴ because the clause does not prohibit takings, but rather takings without just compensation. Thus, in the regulatory context, it is not the excessive regulation that violates the Fifth Amendment, but the state's refusal to compensate. Since that determination comes from the state court, "the source of the injury" is the state court judgment.

With due process challenges, the "source of injury" rule rejects use of Rooker-Feldman. In Centres, Inc. v. Town of Brookfield,¹⁸⁵ the landowner claimed damages from the town's denial of its permit application. The landowner sued in state court, claiming the denial was arbitrary and capricious, but the state court found it was not. In the federal court, the landowner sued on substantive due process grounds, claiming the permit denial was arbitrary and capricious. The Seventh Circuit found Rooker-Feldman inapplicable, reasoning that the landowner "does not allege an injury from the state court judgment itself; rather, it challenges the actions of the defendant."¹⁸⁶

The Centres court's explanation as to why preclusion, rather than Rooker-Feldman, was inapplicable was that the plaintiff sought "to ignore the state court judgment rather than have the federal court … overrule the state court determination."¹⁸⁷ That reasoning suggests that ignoring a state court judgment is the opposite of, or different in a legally significantly way from, overruling a state court judgment. This is unpersuasive.¹⁸⁸ In Centres, for example, for the federal district court to find in favor of the plaintiff, it would had to have found that the town's actions were arbitrary and capricious, precisely the opposite of what the state court had found. In ignoring the state court, the federal court would have effectively overruled it.

The fact that the "source of injury" is not dictated by the Court's decisions in Rooker and Feldman does not necessarily mean it should be shelved or that it is wrong. At the same time, that it provides a distinction between preclusion and Rooker-Feldman does not mean it should be saved. The preferable resolution would be to determine its life or death on the desired breadth of the Rooker-Feldman policy. If the policy is a technical pleading rule aimed at overt requests to void or overturn state court decisions, the rule works. If the policy is to keep federal courts from insulting state courts by disagreeing with them and awarding relief to a party whom the state court found did not merit it, it is unsound. The Supreme Court needs to tell us which it is.

Res Judicata and Collateral Estoppel (Claim and Issue Preclusion)

The point has been repeatedly made: once a property owner has completed prong two, the law of res judicata will usually preclude a Fifth Amendment claim from being pursued in federal court.¹⁸⁹ Adjudication of the claim in state court bars a subsequent suit in federal court under the full faith and credit statute, 28 U.S.C. § 1738. Collateral attack of the state court judgment is not available in federal district court. A property owner who is dissatisfied with the results obtained from the state court is limited to appealing directly to the Supreme Court.¹⁹⁰

Most courts have addressed the issue as one of claim preclusion, finding the state court's adjudication of the federal takings claim to bar relitigation. If a court takes the position like the Ninth Circuit in Dodd, discussed above,¹⁹¹ that the state claim must be litigated first in state court, making the federal claim cognizable in district court, the property owner will be limited by issue preclusion. Typically, the [31 ELR 10370] same issues that the property owner asserts under the federal claim are the same as those asserted under the state claim, in which case the bar is complete.

Conclusion

An unfortunate consequence of seeing Williamson County/First English as a ripeness rule is the tendency of the lower federal courts to rather carelessly say to plaintiffs who are about to be sent packing that should they "pursue [their] case in state court only to be denied relief, [they] may then seek relief in federal court on [their] federal substantive due process and takings claims."¹⁹² At a minimum, courts should qualify the dismissal with a warning that, while couched in ripeness terms, preclusion principles will likely bar a return.

In my view, the courts appropriately close the doors when the plaintiff, having lost in state court, comes calling. The law of preclusion makes sense and rarely is there justification for allowing a second suit. The cavalier dismissal, however, is wrong. The integrity of the law will be enhanced if courts acknowledge the misleading language of Williamson County and the finality of the consequences of dismissal due to preclusion, and understand the unique, self-executing nature of the Fifth Amendment takings clause and the message of First English.

That said, occasions arise when the federal courts can exercise jurisdiction over takings claims, and the courts should explore these situations more closely. In particular, these are supplemental, removal, and diversity jurisdiction. If federal district courts can hear appended state takings claims, they should have the power to hear appended federal takings claims. If a government defendant removes a federal takings claim from state court where there is no other federal claim presented, the removal should be treated as conclusively demonstrating the lack of an adequate state forum, giving the federal court original jurisdiction. And where diversity jurisdiction exists, federal takings claims that can be heard by state courts should be able to be heard by federal courts.

The instances when jurisdiction will be present by finding futility of suing in state court due to governmental removal or by supplemental jurisdiction over either the federal or a state takings claim will be the exception, not the rule. Recognition of the power to hear the claim does not necessarily mean the power will always be exercised. State resolution will be the norm, as it should.

The resistance of the federal courts to hear land use claims of any stripe and to look for ways to dismiss them suggests that expansive views of jurisdiction are not likely to come easily. Legislation amending the federal jurisdictional statutes to make these changes might be wise. A limited response by Congress to problems of takings litigants is the kind of proportional response that might pass constitutional muster. In contrast, the extreme legislation pushed by the National Association of Home Builders during the past two Congresses is bad policy in that it deprives state courts of the primary role to hear these claims, and it is likely unconstitutional.¹⁹³

1. The debate primarily involves Fifth Amendment regulatory takings claims, but the cases often include related due process and equal protection claims. The inclusion of these claims, as I will discuss, complicates matters. The discussion here deals solely with takings actions against state and local governments to whom the Fifth Amendment applies by incorporation through the Fourteenth Amendment's due process clause. Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226 (1897).

Takings claims against the federal government are not discussed here. Such claims go to the Claims Court. Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 11-12, 20 ELR 20454, 20456 (1990).

2. "The Private Property Rights Implementation Act," H.R. 2372, passed the House but did not come to a vote in the Senate.

3. See John J. Delaney & Duane J. Desiderio, Who Will Clean Up the "Ripeness Mess?" A Call for Reform So Takings Plaintiffs Can Enter the Federal Courthouse, 31 URB. LAW. 195 (1999). Authors, counsel for the Home Builders, state that the proposals were the association's "main legislative initiatives" in recent years. Id.

4. See Max Kidalov & Richard H. Seamon, The Missing Pieces of the Debate Over Federal Property Rights Legislation, 27 HASTINGS L.Q. 1, 38, 58-61 (1999).

5. Readers for whom these basics are too succinct have many books and articles from which they may consult. With respect to the issues discussed in detail here, see Thomas E. Roberts, Ripeness and Forum Selection in Fifth Amendment Takings Litigation, 11 J. LAND USE & ENVTL. L. 37 (1995); Thomas E. Roberts, Fifth Amendment Taking Claims in Federal Court: The State Compensation Ripeness Requirement and Principles of Res Judicata, 24 URB. LAW. 479 (1992).

See generally on takings law, JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND CONTROL LAW, Ch. 10 (West 1998); ROBERT MELTZ, DWIGHT MERRIAM & RICHARD FRANK, THE TAKINGS ISSUE CONSTITUTIONAL LIMITS ON LAND USE CONTROL AND ENVIRONMENTAL REGULATION (Island Press 1999); DANIEL R. MANDELKER, LAND USE LAW (3d ed. Michie Co. 1993); and PETER W. SALSICH, LAND USE REGULATION: PLANNING, ZONING, SUBDIVISION REGULATION, AND ENVIRONMENTAL CONTROL (Shepard's/McGraw-Hill 1991).

6. 473 U.S. 172 (1985).

7. Physical or regulatory, facial or as applied. See Roberts, Ripeness and Forum Selection, supra note 5, at 42. See also infra note 131.

8. I refer to claims for compensation for takings where a public use or purpose is acknowledged. If the claim is not for compensation but to bar the act on the basis that there is no public purpose, then the second prong of Williamson County does not apply. Montgomery v. Carter County, Tenn., 226 F.3d 758, 31 ELR 20118 (6th Cir. 2000); Samaad v. City of Dallas, 940 F.2d 925, 933 (5th Cir. 1991).

9. 482 U.S. 304, 17 ELR 20787 (1987).

10. The Court reminded us of "the self-executing character of the constitutional provision with respect to compensation." Id. at 315, 17 ELR at 20790. "When the government condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution. See First English." City of Monterey v. Del Monte Dunes at Monterey, Ltd. 526 U.S. 687, 714, 29 ELR 21133, 21138 (1999).

11. Most courts acknowledge the mandatory nature of the Fifth Amendment. For an odd exception, see Kruse v. Village of Chagrin Falls, 74 F.3d 694, 697 n.2 (6th Cir. 1996), where the court, depriving the term of meaning, says "self-executing" does not mean that a state must provide an inverse condemnation procedure.

12. 263 U.S. 413 (1923) and 460 U.S. 462 (1983).

13. Forseth v. Village of Sussex, 199 F.3d 363, 372 (7th Cir. 2000) ("Should plaintiffs sufficiently pursue their case in state court only to be denied relief, they may then seek relief in federal court on their federal substantive due process and takings claims."). The Sixth Circuit too recently debated whether a property owner complaining of a private taking should be sent to sue in state court. The only purpose, said the court, would be to have the plaintiff "vet her claims in state proceedings (such as … a quiet title suit …) before the claims can be aired in federal courts." Montgomery, 226 F.3d at 758, 31 ELR 20118. Since it was a claim of a private taking and not one for compensation, the court appropriately did not dismiss the claim, but to even suggest that the plaintiff could air the matter in state court and then come back shows a surprising lack of anticipation of the preclusion rules that will apply when she returns.

14. See infra notes 189-191 and accompanying text.

15. 473 U.S. at 197.

16. In this I am aided by thoughts about the case from Vicki Been, who stresses the Court's analogy to Parratt v. Taylor, 451 U.S. 527 (1981), which held that a person deprived of property by a random and unauthorized act of a state agent could not state a procedural due process claim unless the state failed to provide a post-deprivation hearing. Professor Been, of course, is not accountable for what some may regard as my odd or perhaps disputable understanding of the case.

17. Was there a taking, or, if so, was the compensation awarded just?

18. As I explain in detail infra at notes 20-53 and accompanying text, the right she asserts is a federal right, and thus claim preclusion bars her from collaterally attacking the state court decision in federal district court. If the right litigated in state court was a state right, issue preclusion will apply to limit a federal district's action on the matter.

19. See discussion infra at notes 55-66 and accompanying text.

20. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315-16, 17 ELR 20787, 20790 (1987). In the context of the right to a jury trial, the Court phrased the action differently: "Because [the landowner Del Monte Dunes'] statutory action did not accrue until it was denied just compensation, in a strict sense Del Monte Dunes sought not just compensation per se but rather damages for the unconstitutional denial of such compensation." City of Monterey v. Del Monte Dunes at Monterey, Ltd. 526 U.S. 687, 715, 29 ELR 21133, 21137 (1999) (emphasis in original).

21. See infra at notes 189-191 and accompanying text.

22. See discussion of Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995), after remand decision, 136 F.3d 1219, 28 ELR 20534 (9th Cir. 1998), cert. denied, 525 U.S. 923 (1998), infra at note 37 and accompanying text.

23. See discussion infra at notes 84-134 and accompanying text.

24. Dodd, 59 F.3d at 852, after remand decision, 136 F.3d at 1219, 28 ELR at 20534, cert. denied, 525 U.S. at 923.

25. Labels ought not control. Though subject to the variations of state law, whether one calls the action one in inverse condemnation or a takings claim, generally does not matter. The two terms are generally interchangeable. Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 407 n.4 (9th Cir. 1996). See also Hager v. City of West Peoria, 84 F.3d 865 (7th Cir. 1996).

26. Cruz v. Town of Cicero, No. 99 C 3286, 1999 WL 560989, at *17 (N.D. Ill. July 28, 1999).

27. The state may have its own similar constitutional guarantee and may have a statutory cause of action as well, but that is beside the point.

28. 482 U.S. at 304, 17 ELR at 20787.

29. Id. See also Greenway Development Co. v. Borough of Paramus, 163 N.J. 546, 750 A.2d 764 (N.J. 2000) (notice provisions of state tort claims act not applicable to inverse condemnation actions because "they allege in a state court proceeding, a violation of the Just Compensation Clause of the Fifth Amendment").

Interpreting state constitutions, state courts have reached the same conclusion as the U.S. Supreme Court holding that takings claims are rooted in their constitutions, are self-executing and not dependent on statutory authorization, and not affected by statutory immunities. Kelley v. Story County Sheriff, 611 N.W.2d 475, 478, (Iowa 2000); Rose v. City of Coalinga, 236 Cal. Rptr. 124 (Cal. App. 1987) ("The right to sue in inverse condemnation is 'fundamentally rooted' in [the California] Constitution, and the extent of a public entity's liability is fixed by the Constitution and not by rules of statutory or common law rights and responsibilities between private parties."); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); Wisconsin Retired Teachers Ass'n v. Employee Trust Funds Bd., 207 Wis. 2d 1, 558 N.W.2d 83, 95 (Wis. 1997) (sovereign immunity not a bar to recovery for a taking). See also RESTATEMENT (SECOND) OF TORTS § 895B emt. a (1979) (constitutional provisions prohibiting the taking of property for public use without just compensation have usually been held to be self-executing and to constitute a consent to suit).

30. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (implied direct action under the Fourth Amendment); Passman v. Davis, 442 U.S. 228 (1979) (implied direct action for equal protection claim under the due process clause of the Fifth Amendment). But direct damages actions have been denied in Schweiker v. Chilicky, 487 U.S. 412 (1988) (due process); United States v. Stanley, 483 U.S. 669 (1987) (due process); and Bush v. Lucas, 462 U.S. 367 (1983) (First Amendment free speech).

31. The Ninth Circuit has held that a takings claim can only be filed pursuant to § 1983. See Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992). Assuming the correctness of this holding, which requires me to employ my own conceivable basis test to the ultimate degree, it must be understood that remedies under § 1983 cannot constitutionally offer a property owner less than what she might obtain directly under the Fifth Amendment. See Karena C. Anderson, Strategic Litigating in Land Use Cases: Del Monte Dunes v. City of Monterey, 25 ECOLOGY L.Q. 465 n.83 (1998). Also, if the phrase self-executing means anything, a repeal of § 1983 would surely resuscitate the direct action that the Ninth Circuit canceled.

32. 473 U.S. at 195 (emphasis added).

33. 260 U.S. 393 (1922).

34. Williamson County cited both TENN. CODE ANN. § 29-16-123, which provides an action where the state "has actually taken possession" of land, and two Tennessee cases, Davis v. Metropolitan Gov't of Nashville & Davidson County, 620 S.W.2d 532 (Tenn. App. 1981) and Speight v. Lockhart, 524 S.W.2d 249 (Tenn. App. 1975), for the proposition that the "Tennessee state courts [interpret their statute] … to allow recovery through inverse condemnation where the 'taking' is effected by restrictive zoning laws…." 473 U.S. 172, 198. The Davis case dealt with an allegedly negligent interpretation of the zoning code by the city that resulted in a financial loss to a junkyard dealer when he sold his "junk vehicles … for junk." 620 S.W.2d at 535. The court found that the junkyard dealer had no cause of action under § 29-16-123, the statute cited in Williamson County, because the statute was applicable only to land and the statute of limitations had run. In passing, the Davis court noted, in the language paraphrased by the Supreme Court in Williamson County, that "it is possible to recover in inverse condemnation for unreasonable restriction of the use of property by enactment of a zoning law," 620 S.W.2d at 534. For that proposition Davis cited Bayside Warehouse Co. v. Memphis, 63 Tenn. App. 268, 470 S.W.2d 375 (1971). Bayside involved a downzoning of land that the court held confiscatory and, thus, arbitrary and invalidated it relying on Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), 470 S.W.2d at 378. Speight, the other case cited by Williamson County, involved a loss of highway access claim. After discussing Tennessee law relative to access issues, the court remanded the case to the trial court, observing that if the landowner were denied access in the future he then could sue for damages in inverse condemnation. Speight did not discuss the constitutional basis of the action.

35. 28 U.S.C. § 1491. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 14 ELR 20539 (1984) (suit to enjoin the U.S. Environmental Protection Agency (EPA) from implementing federal law); Hurley v. Kincaid, 285 U.S. 95 (1932) (suit to enjoin flood control measures); Cherokee Nation v. Southern Kan. Ry. Co., 135 U.S. 641 (1890) (suit to enjoin federal grant of right of way to railroad across Cherokee land); Regional Rail Reorganization Cases, 419 U.S. 102 (1974) (law reorganizing the nation's failing railroads did not by implication repeal the Tucker Act remedy takings remedy). Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940), was a bit different. There, in an action against a government contractor for injuries suffered from activities pursuant to flood control law, the Court held the contractor was not liable, and that if a taking by the government had occurred, the property owners could sue the government in the Court of Claims.

36. First English tells us that states must provide a Fifth Amendment remedy. It is true that no violation of the Fifth Amendment occurs until compensation is denied but that does not detract from the fact that the request before the state court is a federally based request. It is the state that must provide compensation, not state law. Federal courts, too, must normally hear federal question claims, 28 U.S.C. § 1331. The Fifth Amendment is the exception.

37. See infra note 38.

38. 59 F.3d 852 (9th Cir. 1995), after remand decision, 136 F.3d 1219, 28 ELR 20534 (9th Cir. 1998), cert. denied, 525 U.S. 923 (1998).

39. Id. at 860. The court conceded its phrase was rather inelegant.

40. Id.

41. Id. at 860-61.

42. Id. at 861 (quoting First English, 482 U.S. at 315-16, 17 ELR at 20787).

43. 88 F. Supp. 2d 888 (N.D. Ill. 2000).

44. Id. at 890.

45. 921 F.2d 724, 728 (7th Cir. 1991).

46. 88 F. Supp. 2d at 890. Biddison was quoting Williamson County. 473 U.S. 172, 194 n.13 (1985). Williamson County, like Biddison, was referring to a property owner using state procedures before suing in federal court.

47. 473 U.S. at 194 n.13.

48. Section 1983 is a cause of action that can be heard in state or federal court, but many courts and commentators are in the habit of referring to "1983 actions" to mean § 1983 actions brought in federal court.

49. But Vigilante is not alone in doing so. See also Rau v. City of Garden Plain, 76 F. Supp. 2d 1173 (D. Kan. 1999) (Fifth Amendment, due process, and state-law claims removed; federal court dismissed based on failure of plaintiff to sue in state court solely on state law, finding plaintiff's error was to sue on both state and § 1983 in state court).

50. See supra notes 29-30.

51. See discussion infra at notes 84-95 and accompanying text.

52. See discussion infra at notes 55-66 and accompanying text.

53. No. 3-99-01356-ST, 1999 WL 1271025 (D. Or. Sept. 24, 1999).

54. One lacking fulfillment of prong two of Williamson County, the state compensation requirement.

55. Belvedere Military Corp. v. County of Palm Beach, 845 F. Supp. 877, 879 (S.D. Fla. 1994) (if the state courts have "unequivocally indicated that an individual in Plaintiffs' situation had no cause of action under state law" then they need not bother asking).

56. Aiello v. Browning-Ferris, Inc., No. C-93-0466 MHP, 1993 WL 463701, 24 ELR 20771 (N.D. Cal. Nov. 2, 1993) (though state law not clear on whether private party acting under color of law was liable in an inverse condemnation action, plaintiff is required to resort to state court).

A most unusual case is Kruse v. Village of Chagrin Falls, 74 F.3d 694, 697 n.2 (6th Cir. 1996), where the court found Ohio lacked a procedure but the court said the state need not provide one. To the court, "self-executing" does not mean the state must provide an inverse condemnation procedure. Try telling that to California cities and counties after First English.

57. Gamble v. Eau Claire County, 5 F.3d 285 (7th Cir. 1993).

58. Belevedere Military Corp., 845 F. Supp. at 877.

59. 104 F. Supp. 2d 1368 (S.D. Fla. 2000).

60. See, e.g., Rockler v. Minneapolis Cmty, Dev. Agency, 866 F. Supp. 415, 417-18 (D. Minn. 1994).

61. 803 F. Supp. 1068 (M.D.N.C. 1992).

62. Initially, the state supreme court had found such schemes not per se unconstitutional as applied to a three-year provision for the removal of junk yards. State v. Joyner, 211 S.E.2d 320 (N.C. 1975), appeal dismissed, 422 U.S. 1002 (1975). Had that been all the law on the subject, a challenge as to sign amortization would not have been futile since one premise of the Joyner case was that the validity of amortization schemes would be examined on a case-by-case basis. Two later intermediate court of appeals' decisions, however, had ruled in favor of billboard amortization.

63. Schnuck v. City of Santa Monica, 935 F.2d 171 (9th Cir. 1991); Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951 (9th Cir. 1991).

64. SGB Fin. Servs., Inc. v. Consolidated City of Indianapolis-Marion County, No. IP98-C-0977-H/G, 2000 WL 680412 (S.D. Ind. Feb. 7, 2000). The Sixth Circuit found that a landowner seeking compensation for a physical taking did not need to file suit in the state court in Ohio, which, according to the court, lacked a procedure for inverse condemnation action. Kruse v. Village of Chagrin Falls, 74 F.3d 694 (6th Cir. 1996). The court took the position that the self-executing compensation requirement of the Fifth Amendment did not require states to hear a case seeking compensation. The court did not explain how that could be so. Indeed, it could not do so without overruling First English, a power it does not possess.

65. No. IP98-C-0977-H/G, 2000 WL 680412 (S.D. Ind. Feb. 7, 2000).

66. See infra notes 114-134 and accompanying text.

67. Wilkinson v. Pitkin County Bd. of County Comm'rs, 142 F.3d 1319, 1324, 28 ELR 21253, 21256 (10th Cir. 1998) ("We need not decide whether it is possible to reserve a federal claim, or, if so, what must be done to reserve such a claim because at no time did plaintiffs attempt to do so."); Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 (4th Cir. 1998); Rainey Bros. Constr. Co. v. Memphis & Shelby County Bd. of Adjustment, 967 F. Supp. 998, 1004 n.5 (W.D. Tenn. 1997), aff'd, 178 F.3d 1295 (6th Cir. 1999), cert. denied, 120 S. Ct. 569 (1999) (since no reservation made court declined to address whether to do so would be effective in similar cases); Peduto v. City of North Wildwood, 878 F.2d 725, 729 n.5 (3d Cir. 1989) (noting that the district court had said that an England reservation could have been made, the Third Circuit did not reach the issue, finding, in the absence of any reservation, that state court litigation compelled by Williamson County barred subsequent federal court consideration of the same issues). From a state court, see Guetersloh v. State, 930 S.W.2d 284 (Tex. App. 1996), cert. denied, 522 U.S. 1110 (1998).

68. 375 U.S. 411 (1964).

69. 312 U.S. 396 (1941). Pullman abstention is appropriate where there is an unsettled question of state law that, when resolved, would obviate the need for a federal constitutional decision.

70. The England Court had "fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims." 375 U.S. at 415 (emphasis added).

71. "The England process, strictly speaking, is not applicable to a takings cases because a litigant cannot file first in federal district court." Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1304 (11th Cir. 1992).

72. Most courts find resort to federal court to be a necessary predicate to an England reservation. See CHARLES A. WRIGHT ET AL., 18 FEDERAL PRACTICE AND PROCEDURE § 4471.1 (2000). But see cases cited in Wicker v. Board of Educ. of Knott County, 826 F.2d 442, 447 n.4 (6th Cir. 1987), noting the disagreement among courts as to whether one can sue first in state court, but holding that a party who files first in federal court and then, anticipating federal abstention, files in state court before the federal court abstains, can make an England reservation. For a discussion of how England operates in inverse condemnation claims, see Atkins v. School Bd. of Halifax County, 379 F. Supp. 1060, 1063 (W.D. Va. 1974). Atkins was able to dispose of the matter easily since no reservation had been made, but the court went on to state that it was of the opinion that England could not be used in this type case. Id.

73. See supra notes 20-53 and accompanying text.

74. 953 F.2d 1299 (11th Cir. 1992).

75. The court continues to see the reservation as an available option, but still applies rules of preclusion. See Saboff v. St. John's River Water Mgmt. Dist., 200 F.3d 1356 (11th Cir. 2000), cert, denied, 121 S. Ct. 67 (2000).

76. Jennings v. Caldo Parish Sch. Bd., 531 F.2d 1331 (5th Cir. 1976) (the Eleventh Circuit's predecessor circuit).

77. 953 F.2d at 1305.

78. 449 U.S. 90 (1980).

79. 465 U.S. 75 (1984). Kathryn Kovacs, in an extended analysis, finds the Eleventh Circuit's extension of England inconsistent with these subsequent Supreme Court cases dealing with preclusion. Kathryn E. Kovacs, Accepting the Relegation of Takings Claims to State Courts: The Federal Courts' Misguided Attempts to Avoid Preclusion Under Williamson County, 26 ECOLOGY L.Q. 1 (1999).

80. Madeline J. Meacham, The Williamson Trap, 32 URB. LAW. 239, 251 (2000).

81. 59 F.3d at 852, after remand decision, 136 F.3d at 1219, 28 ELR at 20534, cert. denied, 525 U.S. at 923.

82. This strikes me as conferral of jurisdiction by agreement of the parties.

83. If a reservation is held to allow claim splitting, some takings issues not covered by the state's law of issue preclusion will be reached on the merits by the federal court. See Dodd, 59 F.3d at 852, after remand decision, 136 F.3d at 1219, 28 ELR at 20534, cert. denied, 525 U.S. at 923. Another case involving reservation and issue preclusion is Popp v. City of Aurora, No. 98C7415, 2000 WL 684804 (N.D. Ill. May 22, 2000). The court there recognized a reservation without citing, much less discussing, England. A takings claim was filed in federal court while a condemnation case was pending in state court. While the federal court was considering a motion to dismiss, the parties settled the state court action. No one, however, told the federal judge, who dismissed the case as premature. The plaintiffs then moved to reopen the federal case, claiming that the resolution of the state case had ripened their federal claim. These odd facts coupled with some odd rulings make the case of questionable value

84. Counties and cities, as municipal corporations, are citizens of their state for purposes of diversity. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 n.6 (1997) (counties); Illinois v. Kerr-McGee Corp., 677 F.2d 571, 12 ELR 20623 (7th Cir. 1982) (cities).

85. "In diversity cases the rights enjoyed under local law should not vary because enforcement of those rights was sought in the federal court rather than in the state court." Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949).

86. 360 U.S. 185 (1959).

87. Id. at 190.

88. In addition to Mashuda, see Searl v. School Dist. No. 2, 124 U.S. 197 (1888) (ordering district court to exercise diversity jurisdiction in condemnation case removed from state court).

89. SK Fin. SA v. LaPlata County, 126 F.3d 1271, 1276, 28 ELR 20131, 20133 (10th Cir. 1997); Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir. 1996); American Tel. & Tel. Co. v. Madison Parish Police Jury, 465 F. Supp. 168 (D. La. 1977).

90. See supra notes 20-53 and accompanying text.

91. 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980).

92. 605 F.2d at 1118.

93. See supra note 85 and accompanying text.

94. Mashuda, 360 U.S. at 192.

95. See infra note 104.

96. There is some disagreement here. The Seventh Circuit, for example, subjects substantive due process claims to both prongs of Williamson County. See Forseth v. Village of Sussex, 199 F.3d 363, 370 (7th Cir. 2000). In so doing, the court fails to consider the differences between substantive due process claims that are duplicative of takings claims with those that are based on alleged arbitrary and capricious conduct. See JUERGENSMEYER & ROBERTS, supra note 5, § 10.12.

97. "Because the federal claim is not yet ripe precisely because the state courts have not yet had an opportunity to consider the parallel state takings claim, this court would turn [Williamson County] upside down if it proceeded to decide SGB's state constitutional takings claim." SGB Fin. Servs., Inc. v. Consolidated City of Indianapolis-Marion County, No. IP98-C-0977-H/G, 2000 WL 680412 (S.D. Ind. Feb. 7, 2000).

98. Geddes v. County of Kane, 121 F. Supp. 2d 662 (N.D. Ill. 2000) (plaintiffs brought equal protection, federal takings claim, and state takings claim; the federal takings claim was dismissed because the plaintiffs had not used their remedies under state law. The court, however, retained the state takings claim).

99. 28 U.S.C.A. § 1367(c). See Executive Software N. Am., Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 24 F.3d 1545 (9th Cir. 1994).

100. 120 S. Ct. 1073, 30 ELR 20360 (2000). Justice Breyer, concurring, expressed the hope that the holding would not have the effect of "transforming run-of-the-mill zoning cases into cases of constitutional right." Id. at 1075, 30 ELR at 20361 (Breyer, J., concurring). It is difficult to imagine that the other members of the Court wish for such a transformation either.

101. Id. at 1074, 30 ELR at 20361.

102. Olech is a per curium decision. It is one page long, and the tone of the Court's language is that there is nothing new here. Others, however, see or hope for a potential relaxation of the law with a consequent invitation for more lawsuits. Justice Breyer in concurrence raised the specter that anytime a zoning official treats one landowner differently from another and in so doing violates local law, one might claim the action to lack a rational basis. Breyer thinks there must be an allegation of "ill will." The Seventh Circuit's application of Olech in Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), indicates that it likes Justice Breyer's concurrence more than the per curium opinion. Whether the absence of a fundamental right or suspect class requires an allegation of ill will remains cloudy.

103. See Cruz v. Town of Cicero, No. 99 C 3286, 2000 WL 967980 (N.D. Ill. July 12, 2000).

104. Norton v. Village of Corrales, 103 F.3d 928, 933 (10th Cir. 1996) (federal courts "should be reluctant to interfere in zoning disputes which are local concerns").

105. See Macri v. King County, 126 F.3d 1125 (9th Cir. 1997) (the court dismissed the Fifth Amendment claim for failure to meet prong two of Williamson County and it remanded the state-based inverse condemnation claim); Patel v. Penman, 103 F.3d 868 (9th Cir. 1996), cert, denied, 520 U.S. 1240 (1997); Hallco Envtl, Inc. v. Comanche County Bd. of County Comm'rs, 149 F.3d 1190 (10th Cir. 1998); Davis v. City of Baldwyn, No. 1:99cv352-D-D, 2000 WL 994469 (N.D. Miss. July 7, 2000); SGB Fin. Servs., Inc. v. Consolidated City of Indianapolis-Marion County, No. IP98-C-0977-H/G, 2000 WL 680412 (S.D. Ind. Feb. 7, 2000) (federal takings claim dismissed on ripeness grounds, and dismisses a state takings claim on the ground that exercise of supplemental jurisdiction was not proper.) In Burnham v. City of Salem, 101 F. Supp. 2d 26 (D. Mass. 2000), a motion to remand was denied with a conclusory statement that removal was proper. Then, the court proceeded to rule on the merits of the due process and takings claims, finding in the city's favor. The state-law claims were then remanded. See also Rau v. City of Garden Plain, 76 F. Supp. 2d 1173 (D. Kan. 1999) (Fifth Amendment, due process, and state-law claims removed; federal court dismissed takings claim and due process based on failure of plaintiff to sue in state court solely on state law; and remanded plaintiff to state court to seek compensation under state procedure). See also Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 611 (11th Cir. 1997), where the Eleventh Circuit, in considering plaintiff's substantive due process claim, notes that the district court had dismissed plaintiff's federal takings claim as unripe and refused to exercise supplemental jurisdiction over the state takings claim.

106. 823 F. Supp. 1529 (N.D. Cal. 1993).

107. See also Geddes v. County of Kane, 121 F. Supp. 2d 662 (N.D. Ill. 2000) (plaintiffs brought equal protection, federal takings claim, and state takings claim; the federal takings claim was dismissed because the plaintiffs had not used their remedies under state law. The court, however, retained the state takings claim).

In Moore v. City of Tallahassee, 928 F. Supp. 1140 (N.D. Fla. 1995), the property owner filed a substantive due process claim and a state takings claim in federal court. The court said the action was originally filed in state court. It may have been removed, but the court makes no reference to removal, or the plaintiff himself might have dismissed his state action and refiled in federal court. The court found both the substantive due process claim and the state takings claim sufficient to survive summary judgment. The court did not explain or comment in any way on its exercise of supplemental jurisdiction.

108. I use "otherwise incomplete" as opposed to "otherwise unripe" to draw attention to my view that Williamson County's second prong is not accurately described as a ripeness matter. See supra note 15 and accompanying text.

109. If not legions, there are many. To save space but still support the point, I cite only some recent circuit court opinions. See John Corp. v. City of Houston, 214 F.3d 573 (5th Cir. 2000) (substantive due process ripe; takings claim unripe); Montgomery v. Carter County, Tenn., 226 F.3d 758, 31 ELR 20118 (6th Cir. 2000); Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir. 2000) (dismissing substantive due process and takings claim for not seeking compensation in state court, but keeping equal protection claim); McKenzie v. City of White Hall, 112 F.3d 313 (8th Cir. 1997) (dismissing takings claim and keeping due process and equal protection claims); SK Fin. SA v. LaPlata County, 126 F.3d 1271, 28 ELR 20131 (10th Cir. 1997) (dismissing federal takings claims for failure to pursue state remedies while recognizing original diversity jurisdiction over state takings claim). Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208 (11th Cir. 1995).

110. I am assuming the plaintiff has met the final decision requirement of Williamson County.

111. See infra notes 114-134 and accompanying text.

112. 28 U.S.C.A. § 1367(a).

113. And certainly many takings claims have been dismissed in just such circumstances, with courts acting as if the dismissal is obligatory.

114. "Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant …." 28 U.S.C. § 1441.

115. Eggleston v. Pierce County, 99 F. Supp. 2d 1280 (W.D. Wa. 2000); Evans v. Washington County, No. 3-99-01356-ST. 1999 WL 1271025 (D. Or. Sept. 24, 1999) (Evans grudgingly remands on the basis of Ninth Circuit decisions, but finds that Williamson County has been misinterpreted); Continental Cablevision of Mich., Inc. v. Edward Rose Realty, Inc., 840 F.2d 16 (6th Cir. 1988) (Table; unpublished) (where there has been a removal from the state court, the proper course for the district court, if it should conclude that it was without subject matter jurisdiction, would be an order of remand).

116. 102 F. Supp. 2d 431 (W.D. Mich. 2000). See also Vigilante v. Village of Wilmette, 88 F. Supp. 2d 888 (N.D. Ill. 2000), discussed supra note 43 and accompanying text.

117. Applying deferential review, the court unsurprisingly found the city's traffic concerns constituted a rational basis to reject the plan. As to the equal protection claim, the court acknowledged, pursuant to Olech, that "a class of one" claim was cognizable, but the claim was nonetheless a loser. Other restaurants' applications had been granted but they were different from McDonald's application. K-Mart, next to the McDonald's lot, had a restaurant without a drive-thru window, raising fewer traffic concerns. Other fast food restaurants with drive-thrus either were not on the same street or had been permitted "substantially before" McDonald's and thus were not "similarly situated" for equal protection purposes. It appears that McDonald's came to the area late, after other drive-thrus had overloaded the area with traffic. That did not make it irrational or unfair for the city to say no to one more drive-thru.

118. See also Frustaci v. City of S. Portland, NO. 99 179 PH, 2000 WL 1310671 (D. Me. Sept. 11, 2000); Rau v. City of Garden Plain, 76 F. Supp. 2d 1173 (D. Kan. 1999) (Fifth Amendment, due process, and state-law claims removed; federal court dismissed based on failure of plaintiff to sue in state court solely on state law).

119. 53 F. Supp. 2d 957 (E.D. Mich. 1999).

120. As to prong one, the court requires, per Sixth Circuit opinions, that a landowner appeal a variance denial to state court. That appears wrong under Williamson County.

121. 53 F. Supp. 2d at 962.

122. A distinct matter arises where the city removes and then moves to dismiss or seeks summary judgment for the failure of the plaintiff to obtain a final decision, or other ripeness-related grounds other than Williamson County's prong two. Medina v. City of Charleston, No. 91-1554, 1992 U.S. App. LEXIS 6489 (4th Cir. Apr. 7, 1992); Hidden Creek Stock Farms v. Upper Frederick Township, No. Civ. A92 4199, 1994 WL 45166 (E.D. Pa. Feb. 14, 1993). See also Lindell v. City of Waconia, 71 F. Supp. 2d 95 (D. Minn. 1999), which involved a city ordinance that limited pull-tab gambling in bars unless sponsored by a qualifying charity. The city removed the action, which alleged "battery" of claims, including a takings claim. The court dismissed for lack of standing. In Davis v. City of Baldwyn, No. 1:99cv352-D-D, 2000 WL 994469 (N.D. Miss. July 7, 2000), the plaintiff apparently commenced the wrong kind of action in state court. Rather than point that out to the plaintiff or the state court judge, who likely could have easily corrected the matter, the city removed, and asked the federal court to dismiss the takings claim on the basis that the plaintiff had not followed the proper state procedure. The federal court agreed. In these cases, the takings claim is not remanded to state court, but rather, to the local land use authorities where the plaintiff must pursue a final decision. Assuming removal is an otherwise legitimate process, the local government is not abusing or delaying the plaintiff by its removal. Rather, the defendant prefers the local federal court's view of final decision ripeness to that of the state judges.

123. 522 U.S. 156 (1997).

124. Id. at 160.

125. No. 91 C 1587, 1995 WL 9243 (N.D. Ill. Jan. 9, 1995) (unpublished opinion).

126. 50 App. Div. 2d 265, 6 ELR 20251 (N.Y. App. Div. 1975), aff'd, 366 N.E.2d 1271, 7 ELR 20579 (N.Y. 1977), aff'd, 438 U.S. 104, 8 ELR 20528 (1978).

127. Id., the court quoting its unreported memorandum order of 1992.

128. 28 U.S.C. § 1447(c) provides that "if at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs."

129. In 1995, in a reported opinion, the district court found against the College of Surgeons on the remaining federal claims of equal protection and substantive due process, which rested on the charge that the College of Surgeons were being treated unfairly by being singled out, and procedural due process claims that alleged the state's notice and hearing process was faulty. Id.

130. 147 F.3d 802 (9th Cir. 1998).

131. Some mistakenly suggest that a facial takings claim is not subject to the compensation requirement of Williamson County. Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 407 n.4 (9th Cir. 1996). This is based on an erroneous reading of Yee v. City of Escondido, 503 U.S. 519 (1992). In Yee, the Court held that a facial regulatory takings claim based on the argument that a regulation does not substantially advance a legitimate state interest does not need to meet prong one of Williamson County. Id. at 534. A facial claim by definition is that the mere enactment of the law takes property. Prong two, the final decision rule, measures the severity of the application of the law, and is irrelevant to a facial takings claim. In Yee, a challenge to a rent control, the petitioners did not need to seek rent increases in order to make their claim ripe. Since the claim was not based on economic impact they did not need not apply for permission to see how far the law went. Id. But this does not exempt the petitioner from suing in state court. In Yee itself, the landowners sued in state court and sued for compensation, the case came to the Supreme Court on direct appeal.

132. 217 F.3d 840 (4th Cir. 2000). The majority found the time had run. The dissent reasoned to the contrary Williamson County's final decision requirement figured prominently in the statute-of-limitations analysis. After all, the dissent said, the statute should not run until a final decision has been made. But, the majority disagreed with the dissent on when that had occurred.

133. The plaintiff had, after all, sued in state court, only to be thwarted by the city's removal. The court could not treat the removal as a waiver of jurisdiction, which is nonwaivable.

134. See also Burnham v. City of Salem, 101 F. Supp. 2d 26 (D. Mass. 2000), where a motion to remand was denied with a conclusory statement that removal was proper. Then, the court proceeded to rule on the merits of the due process and takings claims, finding in the city's favor. The state-law claims were then remanded.

135. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 425 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

136. Rooker, 263 U.S. at 414.

137. Feldman, 460 U.S. at 486.

138. Rooker, 263 U.S. at 425.

139. Snider v. City of Excelsior Springs, 154 F.3d 809, 811 (8th Cir. 1998).

140. Id. (quoting Feldman, 460 U.S. at 483 n.16).

141. See Barry Friedman & James E. Gaylord, Rooker-Feldman, From the Ground Up, 74 NOTRE DAME L. REV. 1129 (1999) (noting rule lay dormant for 60 years until 1990s revival).

142. Suzanna Sherry, Judicial Federalism in the Trenches: The Rooker-Feldman Doctrine in Action, 74 NOTRE DAME L. REV. 1085, 1088 (1999). See also the following articles in a Notre Dame Symposium on Rooker-Feldman: Friedman & Gaylord, supra note 141; Thomas D. Rowe Jr., Rooker-Feldman: Worth Only the Powder to Blow It Up?, 74 NOTRE DAME L. REV. 1081 (1999); Susan Bandes, The Rooker-Feldman Doctrine: Evaluating Its Jurisdictional Status, 74 NOTRE DAME L. REV. 1175 (1999); Jack M. Beermann, Comments on Rooker-Feldman or Let State Law Be Our Guide, 74 NOTRE DAME L. REV. 1209 (1999).

143. United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995) (Rooker-Feldman is sometimes thought of as "a combination of the abstention and res judicata doctrines.").

144. Sherry, supra note 142, at 1101.

145. There are federalism concerns that lie behind the full faith and credit statute, but the main thrust of preclusion is to eliminate disparate results among different jurisdictions. Sherry, supra note 97, at 1101.

146. Moccio v. New York, 95 F.3d 195, 198 (2d Cir. 1996).

147. While Rooker-Feldman is federal law, reference to state law may be necessary in an instance when the federal plaintiff claims that she did not raise an issue in state court because she lacked a reasonable opportunity to do so. See, e.g., Long v. Shorebank Dev. Corp., 182 F.3d 548, 559-60 (7th Cir. 1999) (Illinois forcible entry and detainer law precluded state defendant/federal plaintiff from asserting claim not germane to possession).

148. Long, 182 F.3d at 553; Fayyumi v. City of Hickory Hills, 18 F. Supp. 2d 909 (N.D. Ill. 1998).

149. Fayyumi, 18 F. Supp. 2d at 909.

150. Sherry, supra note 142.

151. E.g., the court may have to consider what issues the party could have presented to the state court.

152. 401 U.S. 37 (1971). Other abstention doctrines such as Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 396 (1941) and Burford v. Sun Oil Co., 319 U.S. 315 (1943), deal with matters of state law that have not been the subject of state litigation, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), like Younger, relates to ongoing proceedings. See JUERGENSMEYER & ROBERTS, supra note 5, § 1027.

153. See Sherry, supra note 142, at 109.

154. Snider v. City of Excelsior Springs, 154 F.3d 809, 811 (8th Cir. 1998).

155. Moreover, the fact that we may not have jurisdiction to review a final state court judgment because of a petitioner's failure to raise his constitutional claims in state court does not mean that a United States District Court should have jurisdiction over the claims. By failing to raise his claims in state court a plaintiff may forfeit his right to obtain review of the state court decision in any federal court. This result is eminently defensible on policy grounds. We have noted the competence of state courts to adjudicate federal constitutional claims.

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983).

156. 193 F.3d 33, 30 ELR 20124 (1st Cir. 1999).

157. 512 U.S. 374, 24 ELR 21083 (1994).

158. Even if one finds the distinction between the facts of Hill and Dolan unconvincing, it does not entitle the landowner to collateral review in federal district court. That a state court may be wrong on the law does not void its judgment. But, the court's ruling is consistent with other courts. Dolan involved an individualized determination whereas the subdivision plat law of New Hampshire was legislative.

159. The state supreme court's denial of review was not appealable, but the state trial decision was.

160. See also Snider v. City of Excelsior Springs, 154 F.3d 809 (8th Cir. 1998) (federal plaintiffs could not challenge in federal court the result of state condemnation action).

161. 195 F.3d 1225, 30 ELR 20176 (11th Cir. 1999), cert. denied, 121 S. Ct. 51 (2000).

162. Despite having prevailed by the district court's dismissal of the claim as unripe, the county had standing to challenge the district court's decision because it was harmed by the court's rejection of the res judicata and collateral estoppel defenses. When the (unripe) case was filed in state court, the county wanted to be able to argue that the prior state court proceeding had decided the matter. But, the federal district court's finding that the state court had not dealt with the takings issue, if it stood, would preclude the county from raising that argument in state court since the state court would be bound by the federal court determination that the takings issue had not been raised. Id. at 1230, 30 ELR at 20177-78.

163. Id. at 1231, 30 ELR at 20178.

164. 71 F. Supp. 2d 730 (S.D. Mich. 1999).

165. In 1988 he sued in state court, though the claim he presented is not made clear in the report of the case. In 1990, the trial court granted summary judgment to the township. The state court of appeal reversed that in December 1993.

166. Apparently, no one had noticed that the court had no jurisdiction over the takings claim.

167. Anderson, 71 F. Supp. 2d at 734.

168. Id. (quoting Feldman, 460 U.S. at 483 n.16).

169. 970 F. Supp. 1197 (E.D. Mich. 1997).

170. Id. at 1204. Something is amiss here. This cannot be a due process challenge under the Fifth Amendment since it involves state, not federal, action. Query whether this was intended as a takings claim.

171. Id.

172. Id. at 1210. As to the ripeness defect, the plaintiff had not obtained a final decision and had not pursued compensation in state court. Thus, its claim was premature. This holding was then preempted by the decision that the plaintiff could have raised the matter in the state court proceeding and thus it was too late to ripen.

173. Styling the federal claims as § 1983 actions had no effect on saving the plaintiffs, for, under Rooker-Feldman, it is not the cause of action, but the issues underlying it that matter.

174. Community Treatment Ctrs., 970 F. Supp. at 1217.

175. Homola v. McNamara, 59 F.3d 647, 650 (7th Cir. 1995) (emphasis in original). Then again,

on occasion, the Seventh Circuit also has relied simply on the more general question of whether the district court would be required to review and reverse the state court decision. See, e.g., Newman v. State of Indiana, 129 F.3d 937, 942 (7th Cir. 1997) (the Rooker-Feldman doctrine applies because the "premise" of the current federal suit is that the decisions by the state court were "incorrect" and the federal court could not give relief without "in effect reviewing and reversing" the state court). At any rate, even with these various tests, it is not always clear whether to apply the Rooker-Feldman doctrine or res judicata.

Zoch v. City of Chicago, No. 94 C 4788, 1998 WL 704224 (N.D. Ill. Sept. 28, 1998).

176. Homola, 59 F.3d at 703.

177. Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 701, 703 (7th Cir. 1998).

178. Both will still face preclusion rules even if Rooker-Feldman does not apply.

179. See discussion of this point in Friedman & Gaylord, supra note 141, at 1153.

180. Garry v. Geils, 82 F.3d 1362, 1367 (7th Cir. 1996):

It would not make sense to read our remarks in Homola and Nesses as establishing a bright-line rule, since in Rooker itself the federal plaintiffs had been plaintiffs in state court, and the federal plaintiffs in Feldman were also in the stance of losing plaintiffs…. We could hardly adopt a strict Rooker-Feldman "rule" that is countered by the very Supreme Court cases from whence the doctrine emerged.

181. This occurred in Garry, 82 F.3d at 1362, where Rooker-Feldman was used to bar the federal suit.

182. Id. at 1365.

183. The idea is related to the prior "shorthand" rule looking to the status of the federal plaintiff in the state suit. If the federal plaintiff was the state court plaintiff, it is likely that she may be (perhaps it is likely) complaining about conduct that predated state court involvement which the state court did not find troubling. If the federal plaintiff was the state court defendant, no injury occurred until the state court plaintiff got the state court to agree with it and fine, award damages, or enjoin the state court defendant.

184. Hill v. Town of Conway, 193 F.3d 33, 30 ELR 20124 (1st Cir. 1999), and Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 30 ELR 20176 (11th Cir. 1999), cert. denied, 121 S. Ct. 51 (2000).

185. 148 F.3d 699, 701 n.5 (7th Cir. 1998). For a contrary decision, see Anderson v. Charter Township of Ypsilanti, 71 F. Supp. 2d 730 (S.D. Mich. 1999).

186. Centres, 148 F.3d at 703.

187. Id.

188. The premise of the Seventh Circuit's "source of injury" rule is that a district court can "ignore" but not "overrule" a state court decision. Rooker-Feldman means, says that court, that "inferior federal courts cannot reexamine the decisions of state tribunals." If, in "ignoring" the state court, the federal court will examine the same facts and the same law that the state court examined, it will be reexamining the state court decision in all but the narrowest meaning of that term.

189. For a complete discussion of this issue, see Roberts, Fifth Amendment Taking Claims in Federal Court, supra note 5, at 479.

190. Griffin v. Rhode Island, 760 F.2d 359 (1st Cir. 1985), cert. denied, 474 U.S. 845 (1985); Peduto v. City of N. Wildwood, 878 F.2d 725 (3d Cir. 1989); Rainey Bros. Constr. Co. v. Memphis & Shelby County Bd. of Adjustment, 967 F. Supp. 998 (W.D. Tenn. 1997), aff'd, 178 F.3d 1295 (6th Cir. 1999), cert. denied, 120 S. Ct. 569 (1999); Palomar Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993); Wilkinson v. Pitkin County Bd. of County Comm'rs, 142 F.3d 1319, 28 ELR 21253 (10th Cir. 1998); Saboff v. St. John's River Water Mgmt. Dist., 200 F.3d 1356 (11th Cir. 2000), cert. denied, 121 S. Ct. 67 (2000).

191. See supra note 38 and accompanying text.

192. Forseth v. Village of Sussex, 199 F.3d 363, 372 (7th Cir. 2000). For another misunderstanding of what happens when a party pursues state relief, see Samaad v. City of Dallas, 940 F.2d 925, 933 (5th Cir. 1991), where the court said "the local entity from which a plaintiff seeks recovery should be the one to deny compensation," and compares seeking compensation to the requirement that a shareholder who wants to bring a derivative suit must first make a demand on directors. It is the state court, not the city council, that decides compensation. Directors are not judges. Their decisions are not entitled to full faith and credit.

193. See Max Kidalov & Richard H. Seamon, The Missing Pieces of the Debate Over Federal Property Rights Legislation, 27 HASTINGS L.Q. 1, 73-86 (1999).

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