New Port Largo, Inc. v. Monroe County

EDMONDSON, Circuit Judge,

specially concurring:

I concur in the judgment.

*1499As the author of the opinion in Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir.1990) {“Corn III”), I think some of Chief Judge Tjoflat’s criticisms of the words used in that opinion are valid.1 I write separately to stress that the Corn III decision still seems right to me and that the holding — as opposed to the opinion — in Corn III conflicts in no way with the holding in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). I also think that the Chief Judge generally gives Corn III more credit as a sweeping and powerful precedent than it deserves. As binding authority, Corn III, like all judicial decisions, is inherently limited to the facts of the case then before the court and the questions presented to the court in the light of those facts. What was decided in Corn III does need to be stripped of some obscuring and confusing dicta. And, I am contrite about there being a need to do that.

The Supreme Court decided Williamson under the ripeness doctrine. The Court held that a developer’s failure to use available procedures to seek variances or to avail itself of state procedures for awarding just compensation meant that the developer’s taking claim was premature. 473 U.S. at 193, 105 S.Ct. at 3120; see also, MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986) (discussing Williamson ). Williamson said nothing, much less made law, about the accrual of takings claims for limitations purposes or, put differently, about when limitations run against a landowner whose land is taken.

Corn III, in contrast, did decide whether the statute of limitations barred a developer’s temporary taking claim. The Corn III facts are important. Very important, the federal court case for compensation for a temporary taking of property followed state court litigation in which the landowner had attacked as invalid and the local government had defended as valid certain ordinances. Almost six years passed between the time the local government finalized the offending zoning ordinances in July 1977 and the time a state appellate court finally invalidated the ordinances in February 1983. See City of Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983). Seeking compensation for the temporary taking, Corn filed his federal suit less than a year after the state appellate court’s decision.2 The City argued that a four-year limitations period applied and barred Corn’s federal action. 904 F.2d at 588. We held that no statute of limitations barred the federal temporary taking claim. Id. I believed this conclusion to be correct when I wrote the Corn III opinion. I believe it to be correct now.

Most important, Corn III did not decide (because it was unnecessary to decide) when Corn’s taking claim first became ripe or mature for federal adjudication.3 Anything the language of the Corn III opinion may imply about maturity or ripeness (the Williamson kind of issue) for Corn’s claim is dicta.

The writing of a judicial opinion is mostly an experiment. Later events test the soundness of what was written; and new *1500cases with new circumstances often show that an earlier opinion needs clarification or explanation. This need exists because, as Cardozo said, judge-made law is a chain forged link by link, that is, case by case.4 The nature of future cases is unknowable; and, as a result, for judges to think much about circumstances except those immediately before the court is counterproductive. Attempts to create broad propositions of law based upon one case are, I think, almost always wrong. And there should be a presumption that judges mean to do no more than to decide the case before them.5

Looking back at the Corn III opinion, I see that it drew too much from Norco Constr., Inc. v. King County, 801 F.2d 1143 (9th Cir.1986). E.g., Corn III, 904 F.2d at 588 (“'... the same considerations that render a claim premature prevent the accrual of a claim for limitations purposes ...”’ (quoting Norco, 801 F.2d at 1146)). Words in the Corn III opinion that encourage the inference that the moment for starting the running of a limitations period and the first moment of ripeness for federal adjudication must occur at the same time were unnecessary to the Corn III decision.

The holding of Corn III and, therefore, its binding power as precedent, comes not from what the opinion says or its words imply, but from what Corn III decided considering the facts then before the court: the statute of limitations had not run. In essence, Corn Ill's holding would have been the same if I had written something more like Gordon v. City of Warren, 579 F.2d 386, 391-92 (6th Cir.1978).6 In Gordon, on facts materially similar to those in Corn, the court held that the statute of limitations on the federal taking claim did not start to run until the state appellate court had ruled that the pertinent zoning ordinance was invalid. Briefly stated, the Gordon court said that the local government’s acts in defending its ordinance in court were, themselves, continuous acts of taking that extended the limitations period: in effect, a continuing wrong. I now think the Gordon opinion better explains what the court in Corn III decided and did, and I wish I had written the Corn III opinion accordingly. But, for law-of-the-circuit purposes, a study of Corn III — and every other precedent — ought to focus far more on the judicial decision than on the judicial opinion.7

*1501There is no conflict between the law established by the Corn III decision on whether limitations bar federal temporary taking claims when the landowner has first undertaken to attack the offending land use ordinance in state court, and the law established in Williamson — on which I agree with the Chief Judge as near as I can tell — about the prematurity or unripeness of claims.

Neither the holding in Corn III, nor even the words in the opinion, require that “property owners [must] engage in ... litigation in state courts before the property owners can repair to federal court to vindicate their federal right to just compensation.” Tjoflat, C.J., concurring, at 1498. The reality is that Corn III dealt with a landowner who had, in fact, already engaged in state court litigation before the landowner came to federal court. Considering those facts, all that Corn III held was that the landowner’s federal court claim to just compensation was not barred by the statutes of limitation. Given the limits of Corn III’s holding, I see no cause to expend scarce judicial resources, for example, to convene the court en banc, to address an abstract, hypothetical “conflict” with Williamson inferred from words that were dicta in Corn III.8

As I end, I need to write on a different point. The Chief Judge says that taking claims can become ripe earlier than some words in the Corn III opinion suggest. I do not understand (but I fear someone might) the Chief Judge to say that he thinks the statute of limitations must begin to run as soon as a taking claim first becomes ripe for adjudication in federal court. No Supreme Court case so holds. And, I say that no good reason exists why that should be the law.

As a jurisprudential matter, the doctrine of ripeness rests on different considerations than do statutes of limitation. The ripeness doctrine concerns federal courts’ constitutional authority to hear only “cases or controversies” and the corollary duty not to interfere with other arms of government until there is a case or controversy fit for adjudication. In contrast, statutes of limitation concern litigants’ interests: the time at which the plaintiff’s duty to pursue *1502his claims promptly attaches, and, from the defendant’s perspective, the time at which the rights to speedy trial and to avoid stale claims become an enforceable bar. Therefore, statutes of limitation serve familiar purposes distinct from ripeness considerations. And it is not strange that a matter may become ripe and yet the statute does not start to run.

As a practical matter, we also want, in taking cases based on local land use regulation, no rule that makes landowners feel that it is risky to use the state courts to do a task for which the state courts are extremely well suited: to determine the validity or invalidity of the land use regulation. The landowners who go into state court are neither sleeping on their rights nor lulling local governments into thinking there is no problem. If landowners suspect that the statute of limitations may run on their federal compensation claims while they are in state courts they might either always ignore the state courts and come directly to federal court, or file in both state and federal court at the outset. Either way, we add to the workload of the federal courts needlessly and probably increase the likelihood that federal courts will be interfering in local land use determinations. It is one thing to be open to ripe taking claims; it is another to drive to federal courts in the first instance attacks on land use regulations. So, Corn Ill’s holding (that the statute of limitations will not run on a taking claim while state court litigation is underway to determine the validity of the underlying local regulation) seems like a good rule even if the taking claim became ripe for federal adjudication earlier.

. As Winston Churchill said:

I have derived continued benefit from criticism at all periods of my life, and I do not remember any time when I was ever short of it.

. In First English Evan. Luth. Ch. v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), the Court held that where a landowner’s property is taken by a land-use regulation, the Constitution requires payment of just compensation “for the time before it is finally determined that the regulation constitutes a ‘taking’ of his property.” 482 U.S. at 306-07, 107 S.Ct. at 2381. In deciding that "temporary" regulatory takings entitle landowners to just compensation, the Court expressly defined temporary takings as "those regulatory takings which are ultimately invalidated by the courts,” id. at 310, 107 S.Ct. at 2383, and explained that "[¡Invalidation of the ordinance ... converts] the taking into a ‘temporary’ one_” Id. at 319, 107 S.Ct. at 2388.

. This court had determined earlier that Corn’s just compensation claim was ripe for federal review under the Williamson rule on the date the pertinent zoning decision was made. Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th Cir.1987).

. Chief Justice Marshall touched on a similar idea as he explained the inapplicability of his opinion in Marbury v. Madison to a later case, Cohens v. Virginia, by using these words:

It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.

Cohens v. Virginia, 19 U.S. 264, 399, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821).

. I understand that the precedential sweep of decisions and opinions of the United States Supreme Court may possibly be broader than those of lower courts; my comments are limited to the decisions of lower courts, such as our own.

. I think we could have decided Corn III without an opinion and Corn Ill's precedential value would have been the same, although for some other cases this unity might not be true. We could have said in Corn III only that "The judgment of the District Court is AFFIRMED.” If published, the decision would have precedential import. Considering that the Corn III appeal was only to decide whether the taking claim which was allowed by the district court ought to have been barred either by res judicata or by the statute of limitations, an affirmance of the district court judgment necessarily answered that the statute of limitations was no bar. This point is the holding of Corn III. And for me to write, accurately or inaccurately, about unnecessary legal propositions, such as ripeness and •maturity, in the opinion would not (and does not) change or expand the scope of the holding as binding precedent.

.For good or for bad, opinion-writing judges— unlike legislators — can make cases decide no more than the cases present. For example, no matter how often or how plainly a judicial panel may put in its opinion that "we hold X,” “X” is not law and is not binding on later panels unless “X" was squarely presented by the facts of the case and was a proposition that absolutely must have been decided to decide the concrete case then before the court. All readers of judicial opinions, but especially members of later judicial panels, have the right (for judges, the duty) to look beyond the words of an opinion in which a panel attempts to explain the reasons for its decision and to determine what was decided in reality. This process is, I think, largely what the study of law is about. And, despite my Chief's footnote one, the idea that a case is authority only for what it actually decides — that its authority does depend on “the fortuity of the actual facts” of the case — is not *1501"odd,” at least in the English-speaking world with its common law tradition. Nor do I believe it to be odd to recognize that some judicial decisions are correct even when the stated explanation for the decision is flawed. We are bound by the decisions of earlier panels of this court: like cases should have like results. We are not necessarily bound by the words of their opinions, although we may be persuaded by them even if not bound.

Thus, Corn III is part of the law of the circuit. But the principle that binds later panels is limited: the statute of limitations does not run in circumstances like those in Corn III. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), always speaks of the binding power of earlier “decisions” — a view I wholeheartedly embrace — not of opinions, of general rules, or of judge-made "tests,” "standards" or "guidelines." These latter things do advise future panels but do not, in themselves, command future panels. As I understand it, the Chief Judge’s view of stare decisis considerably enlarges the customary view of this important concept. His view would absolutely require later panels not simply to follow earlier decisions, but to extend those precedents to cover materially different cases as long as the words of the earlier opinion point to a particular result in the later and different cases. One result of this approach is to put a premium on judges writing as broadly as possible in particular cases so as to give their point of view the broadest possible binding effect on later panels.

. Rehearings en banc are costly, time-consuming affairs for litigants and for the court as an institution. Delay in final disposition is inevitable. The court ought not go en banc lightly. We have a high duty, I think, to reconcile decisions if possible before going en banc to resolve "conflicts,” that is, "to secure or maintain uniformity of [our] decisions.” See generally F.R.A.P. 35. This reconciliation is aided considerably by ignoring dicta and reducing each decided case to its exact holding as demonstrated by the actual disposition of the case given its facts. When we read cases as if every pronouncement in every opinion is law, the courts appear to produce many generalized "principles” that arise apart from the process of deciding an actual case; and there will be more errors, more conflicts, and more "law” about which various judges can disagree and think en banc rehearing may be needed.

Also, where one of our decisions plainly contradicts a Supreme Court decision, I believe no need exists for an en banc rehearing. The panel that sees the plain contradiction should follow the Supreme Court’s decision. If that course and the resulting panel decision create controversy, then perhaps that decision would be the subject of an en banc poll.