In a new petition for certiorari,
Hillcrest Property, LLP v. Pasco County, No. 14-864, to the U.S. Supreme Court asks whether local governments can immunize their unconstitutional ordinances from facial challenges by waiting to apply them to landowners. The introduction follows. Because
yours truly was on the brief, look to
Law 360 or
Robert Thomas for the commentary.
In Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2596 (2013), this Court held that governments cannot make extortionate demands for land because they “impermissibly burden the right not to have property taken without just compensation.” This Court explained the “reality” that “landuse permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take.” Id. at 2595.
Pasco County enacted and enforced an Ordinance that, in every application, violates Koontz, while depriving affected property owners of the substantive and procedural protections of eminent domain. Hillcrest attacked the Ordinance as violating Due Process both on its face and as-applied under 42 U.S.C. § 1983. On summary judgment, the district court held the Ordinance facially unconstitutional, finding that it leveraged the police power to exact land that the County would otherwise have to pay for in violation of the Due Process Clause. Characterizing the Ordinance is as “an unmistakable, abusive and coercive misapplication of government power, perpetrated to cynically evade the Constitution,” App. 69, the district court then enjoined the County from prospectively enforcing the Ordinance.
On appeal, the Court of Appeals for the Eleventh Circuit held that Hillcrest’s facial claim was barred by Florida’s four-year personal injury statute of limitations. Without analyzing the propriety under 42 U.S.C. § 1988 of applying a statute of limitations to a law that is facially void ab initio, and therefore not law at all, the Eleventh Circuit assumed that Florida’s four-year statute of limitations applied. By so doing, the Eleventh Circuit decided an important federal question that has not been settled by this Court: namely, whether a state statute of limitations can bar a federal court from prospectively enjoining enforcement of an unconstitutional law.
Even assuming that a statute of limitations can be applied to a claim that a law is facially unconstitutional (and therefore void ab initio), the Eleventh Circuit ignored the federal rules of accrual and the Continuing Violation Doctrine. First, the Eleventh Circuit conflated the remedial distinction between facial and as-applied challenges with the unrelated jurisdictional question of statutes of limitations, creating different and unworkable accrual rules for facial and as-applied Due Process claims. Second, the Eleventh Circuit barred Hillcrest’s facial Due Process claim, despite the fact that the injury upon which Hillcrest’s facial claim was based was not fully effectuated and complete until, as the district court found, the County first applied the Ordinance to Hillcrest, well within the statutory period after the Ordinance was enacted. Third, even if Hillcrest’s facial Due Process claim accrued upon enactment of the Ordinance, the Eleventh Circuit ignored the Continuing Violation Doctrine, which prevented the enforcement of the County’s facially unconstitutional ordinance from being insulated by a statute of limitations. The Ordinance subjected Hillcrest to the continuing and ongoing threat of extortionate leveraging of the police power. While this Court has clearly held that the doctrine is applicable to suits under § 1983, the courts of appeals are now intolerably split on whether the doctrine must be applied to facial Due Process challenges under § 1983.
In sum, the Eleventh Circuit has forever immunized from facial challenge a regulatory scheme that cannot ever be applied constitutionally. This enables the County to continue to extortionately leverage its police power every time it applies the Ordinance, enabling it to continue to coerce landowners into dedicating land for free the County would otherwise have to pay for. This should not be the law. The Due Process Clause prohibits government from extortionately leveraging its police power to evade the substantive and procedural protections of eminent domain. A law purposefully designed to evade this prohibition cannot stand.
Which brings us to the Questions Presented:
1. Whether a state statute of limitations should apply to a claim brought pursuant to 42 U.S.C. § 1983 seeking to enjoin enforcement of a county ordinance that, on its face, and in violation of the Fifth Amendment’s Due Process Clause, extortionately leverages the police power every time it is applied to coerce landowners into dedicating road right-of-way the county would otherwise have to pay for.
2. If there is a statute of limitations, whether the federal Continuing Violation Doctrine applies, such that a landowner whose property is subject to the ordinance may elect to bring a facial Due Process claim either upon enactment of the ordinance or later, within the limitations period following application of the ordinance to that landowner.
