Recollections and Tribute—The Seven Faces of Dan Mandelker

Hatred of Snobbery

I cannot recall the exact time or place, maybe it was in a restaurant in New Orleans in the 1990s, when someone said, “Well I’m so and so from (name of Ivy-type law school), and I think the answer to this question is Yes.” Responded Dan, “I’m Dan Mandelker from Washington University in St. Louis, and you are wrong.” Pure Dan. It was the ideas that counted, not the resume of the person expressing them, cutting through the persiflage to get to the substance of the matter at hand. Even if I cannot recall the precise origin of this somewhat apocryphal tale, it happened and made an impression on me that has endured for over thirty years.

Intensity

Signs and billboards were a key academic interest of Dan’s. I never did any scholarly writing on this subject; however, I did have to deal with it as a trial judge. In 2013, I wrote an opinion declaring that a municipal ordinance in New Jersey, which banned electronic but not other billboards, violated the free speech guarantees of the New Jersey and U.S. Constitutions. I distributed this opinion on the Internet (citation long since lost), and Dan found it. The New Jersey Appellate Division, in its infinite wisdom, reversed in a published opinion, holding that I should have deferred more to the municipal interests in aesthetics.¹ (My friends in New Jersey’s intermediate appellate court seemed to enjoy reversing me.) Later, the New Jersey Supreme Court granted certification of the case, which meant our state’s highest court would be tackling the issue of electronic billboards. But our supreme court’s timetable was not Dan’s. Every month or so, I would get a call from him, “Was the opinion handed down?” After a few of these calls, I finally said, “I’m just a lowly trial judge; I have no impact, influence, or insight as to what the august justices will do.” Finally, I was able to tell Dan that the case had come down. Not only that, but I had enjoyed the ultimate triumph for a trial judge—getting an intermediate appellate reversal overturned by the state supreme court and having his or her original judgment reinstated.² The court found that the town had not sufficiently justified its restrictions on electronic billboards. When I reported this this holding to Dan, he thanked me, and I was grateful for his interest and happy to provide grist for his scholarship. But there was Dan, making sure, with his intensity of interest, that he got the latest news on one of his many areas of academic interest. And I was, quite frankly, flattered that he cared so much about this case and pleased that I could assist. It was not mere curiosity either. The case showed up in his comprehensive review of First Amendment sign law in 2020.³

Generosity

This is a somewhat longer tale. I had developed over the years an interest in the interaction of land use permitting and coordination, or lack thereof, among different levels of government.⁴ This interest led me to work on a draft Cooperative Federalism Act, which was the only proposed part of the American Planning Association (APA) Growing Smart papers that was rejected for publication in the official version of those papers.⁵ So, of course, I went to Dan and asked if he would help me obtain funding from the Lincoln Institute to study the subject and prepare a paper with case studies, showing how land use permits at different levels of government could work together to allow for more predictable outcomes, in which different levels of government did not cross cut each other. Dan said to me, “You’re taking on a lot here. This will be more difficult than you can imagine, with your private law practice responsibilities.” Nonetheless, with my optimism, I forged on ahead with Dan’s assistance. It turned out, of course, that Dan was right; I could not do all the case studies I had hoped to accomplish. Yet he provided some real assistance and guidance, including finding a research assistant who helped greatly with the review of scholarly articles on the subject.

At some point it came time to writing up the findings. Dan told me that he did not feel he should get co-author credit, even though he had done real work on the piece, and he insisted that my name should be the only one on the final written product. And so it was when The Urban Lawyer published our findings.⁶ How many legal scholars would have been so generous? This third face of Dan’s is unforgettable.

Intolerance of Claptrap

It was not necessarily safe to be sitting next to Dan in the back of a lecture room when some other land-use legal light was speaking. Thus occurred one of my all-time memories of Dan. We were in Denver, around the year 2000, for the Rocky Mountain Land Use Institute’s Annual Land Use Conference, I believe, and a well-known professor, usually an admirer of Dan’s, was speaking. He was citing the law in ways that Dan found wrong. Egregious, in fact. So did I, but I kept that to myself. Steam started issuing from the last bench in the hall. I got nervous. Eventually, our esteemed honoree could take it no more. Like Popeye, “He’d taken all he’d can stands and he can’t stands no more.” He burst out loudly from the back bench, “You don’t know what you are talking about.” That certainly brought the proceedings to a halt. But it was not mere invective. It really was a stringent assertion of the proper legal principles. It was also an honest corrective that showed once more that Dan was about substance, and, if you did not get that right, you had to desist and do so immediately. He simply could not tolerate intellectual laziness or sloppiness.

Openness to Ideas

At the same time, Dan was always open to new ideas, even if they did not fit in with his expected framework. His recent masterly and amazingly comprehensive article on standing in land-use cases concluded as follows:

Third party standing in land use litigation is arbitrarily governed by statutory and judicial rules that block judicial access to those seeking to protect public values. Reform is necessary, but not likely, as courts and legislatures resist change. Reform should give applicants for zoning change and their opponents comparable access to court when they participate in land use hearings. Standing based on hearing participation will equalize judicial access and provide the “stake” in litigation that courts require.⁷

Dan had asked me to review the New Jersey cases on standing, looking mainly at a provision in our Municipal Land Use Law, which defined “interested party” rather broadly.⁸ I gave him my view that, in contrast to other states, it was less the statute that controlled standing than a peculiar provision of the New Jersey Constitution of 1947 that empowers our state’s supreme court to make rules governing challenges to local government decisions. ⁹ In other words, New Jersey was different, and the courts had more latitude than in other states to establish the ground rules by which local decisions could be challenged. I had had some vivid experience with this myself when an owner of property in another town, whose land was about a mile away from my client’s land, had been accorded standing to challenge a local decision favoring my client.¹⁰ After some justifiable skepticism, Dan eventually determined that the judicial standing framework in New Jersey was sufficiently unusual that the state’s standing doctrines could not be readily lumped in with the statutory law in other states. As a scholar from Missouri, the “Show Me State,” Dan was properly skeptical but not dogmatic.

Work Ethic

I need say very little on this subject. Authoring a detailed 75-page, 253 footnote article on an annoying, grainy subject like standing in your 90s? Right after completing a 63-page, 287 footnote, detailed analysis of the laws of signs?¹¹ Who ever heard of such a thing? Both of these articles required an enormous amount of concentrated work. Unmatched. Amazing!

Courage

The Academy is not a cloister. Nor is it non-partisan. Many, if not most, law professors stake out a position and pretty much stay on that side of an issue. In land use, that means if you are pro property rights and against regulation, your work trends in that direction, and vice versa. Most scholars who support municipal action write in support of local autonomy and discretion. To break from your pattern and disappoint your friends and usual doctrinal allies requires intellectual courage of a high order. Dan possesses that courage. Although he is a police-power hawk, he is a man for all seasons. I have been fortunate to work with him first-hand on two outstanding examples.

Last year, Dan and I, along with Professors Frank Schnidman and Michael Wolf, published a manifesto laying down the gauntlet on the need for more federal assistance for new affordable housing construction.¹² The paper chastised the federal government’s inaction, since the 1980s, on new housing construction. This paper asserted that attempts to curtail local exclusion must be supplemented by affirmative federal programs that actually get housing built.¹³ For someone usually associated with municipal powers, this argument for acceptance of federally supported housing throughout our country demonstrated a care for the public welfare that transcended academic partisanship. He showed true fidelity to the public good through his willingness to take on this controversial issue.

Most profound and difficult, and contrary to the desires of other municipal advocates, has been Dan’s ultimately sustained challenge to the so-called state litigation exhaustion mandate in Williamson County Regional Planning Board v. Hamilton Bank.¹⁴ This mandate, beloved by municipal lawyers, essentially required that all takings claims be litigated, that is, ripened, in state courts to determine whether state law really had authorized the taking. This requirement was uniquely imposed on taking claims. All other claims alleging violations of constitutional rights could be heard initially in federal court under 42 U.S.C. § 1983 without running a state court gauntlet.¹⁵ Even worse, municipal defendants could remove the takings case to federal court even though the plaintiff could not file there.¹⁶ Many did so in § 1983 cases to take advantage of better federal summary judgment procedures.¹⁷ Third, collateral estoppel might have barred relitigating the takings claims in federal court after they had been fully tried in state court.¹⁸ So, as Professor Thomas Roberts noted, the claim was extinguished as it was being ripened.¹⁹

This unfair result may have satisfied local government partisans, who squawked about being hauled in big mean federal courts, even though they were removing cases there under the Chicago Surgeons case.²⁰ But Dan is not your typical partisan. He joined in a report issued following a takings retreat conducted by the American Bar Association (ABA) Section of State and Local Government Law. The report, never adopted by the section, severely questioned the wisdom and efficacy of the state decision requirement in Williamson.²¹

Further, Dan ventured into the teeth of opposition from local government advocates. With me trailing along, we attended the next conference of the International Municipal Lawyers Association (IMLA) in Washington, probably in the winter of 2000. We naively hoped that, by making a presentation there about the foibles of Williamson County, we could get the group at least to suggest some modifications to its harshness, such as barring a ripeness dismissal where a town removed a case to federal court under the Chicago Surgeons case or where a plaintiff entered a reservation of rights to relitigate in federal court after the state court decision, which was theoretically supposed only to ripen and not extinguish the federal claim. We were supposed to make our presentation, after which the IMLA governing body would decide what to do.

We were blindsided. We found out that that the IMLA powers that were had decided to reject any change in the Williamson imbroglio before we ever had the chance to speak. I got to visit with my son, but otherwise, the trip to Washington was a waste of time. ²² Self interest won out in the meeting.

But here is where Dan’s greatness shone. He never gave up, even though he lost prestige in the ranks of local government advocates as a result of his unpopular position on fair and open access to federal courts. For twenty more years he kept up his advocacy of openness to federal courts for all litigants claiming their constitutional rights had been violated. He aimed to succeed in re-establishing the priceless principle of federal court access that basically enabled the gains of the civil rights movement. Just imagine if the Brown v. Board of Education Court had told the plaintiffs there to litigate their claims in state court first. His conscience would not allow him to accept that municipal defendants would forever have a special star in the federal judicial firmament where constitutional rights were allegedly violated.

So, after twenty years, in an unusual concatenation of views with property rights advocates, whose regulatory views he most emphatically did not share, Dan’s sense of fairness prevailed. He filed an amicus brief in Knick v. Township of Scott, 588 U.S. ___, 139 S. Ct. 2162, 204 L.Ed.2d 558 (2019. His partners in the brief were the Institute for Justice and the Owners Council of America. In all likelihood, the only issue on which Dan and these entities agreed was access to the federal courts for all kinds of plaintiffs. The description of Dan in the amicus brief is worth reproducing here in full:

Professor Daniel R. Mandelker is the Howard A. Stamper Professor of Law at Washington University in St. Louis. One of the country’s leading scholars in land use law, he is the co-author of Planning and Control of Land Development, now in its ninth edition, Land Use Law, Federal Land Use Law, and NEPA Law and Litigation, to name only a few of his current works. An active scholar in the field, Prof. Mandelker has studied and lectured about all aspects of land law for nearly 70 years, teaching courses in constitutional law, land use law, state and local government law and environmental law. He has long been a critic of the Williamson County ripeness rule, having long ago co-authored an article entitled Daniel R. Mandelker & Michael M. Berger, A Plea to Allow the Federal Courts to Clarify the Law of Regulatory Takings, 42 Land Use Law & Zoning Digest, No. 1, p. 3 (Jan. 1990). Having written that article nearly 30 years ago, Prof. Mandelker has remained interested in eradicating what he sees as a serious error in constitutional interpretation that keeps federal constitutional cases from being litigated on their merits in federal courts.

He signed this brief as an individual scholar, not as a representative of any interest group. He trod a lone path, the only police-power hawk to advocate for fairness as he saw it. And his views prevailed.

In Knick, the Supreme Court finally rid civil rights jurisprudence of this anomalous barrier to the federal courts, imposed on one and only one class of constitutional plaintiff. It noted:

But since the Civil Rights Act of 1871, part of “judicial federalism” has been the availability of a federal cause of action when a local government violates the Constitution. 42 U.S.C. § 1983. Invoking that federal protection in the face of state action violating the Fifth Amendment cannot properly be regarded as a betrayal of federalism.²³

Thus, the state litigation barrier to pursuit of § 1983 claims for takings is now gone. Litigants on takings claims will probably continue to lose, since takings claims remain difficult to prove substantively, but they will at least be heard on the merits and not be shuffled off to an uncertain future in another court system. Dan’s fight for substance over procedure succeeded.

As a result, access to federal courts for anyone claiming a violation of constitutional rights has become more secure. No longer will there exist a dangerous, potentially expandible procedural barrier to those seeking redress in federal court. Thank you, Dan, for that and for everything else you have done for all of us for over fifty years.

Endnotes

1. E & J Equities, LLC v. Bd. of Adjustment of Franklin Twp., 100 A.3d 539 (N.J. Super. Ct. App. Div. 2014)

2. Id.; E & J Equities, LLC v. Bd. of Adjustment of Franklin Township, 146 A.3d 623 (N.J. 2016).

3. Daniel R. Mandelker, Billboards, Signs, Free Speech, and the First Amendment, 55 Real Prop., Tr. & Est. L.J. 367, 409 n.202 (2020).

4. Peter A. Buchsbaum, Federal Regulation of Land Use: Uncle Sam the Permit Man, 25 Urb. Law. 589 (1993).

5. Peter A. Buchsbaum, Model Acts, Integrating Federal Permitting with Local Land Use Permitting and Regulation, Growing Smart Working Papers, Vol. 1 at 185 (Am. Plan. Ass’n 1998). See Peter A. Buchsbaum, Permit Coordination Study by the Lincoln Institute of Land Policy, 36 Urb. Law. 191, 191 197 n.25 (2004).

6. Buchsbaum, supra note 4.

7. Daniel R. Mandelker, Standing to Sue in Land Use Litigation, 57 Real Prop., Tr. & Est. L.J. 237, 302 (2021).

8. N.J. Stat. Ann. § 40:55D-4 (West 2021).

9. N.J. Const. art. VI, § V, ¶ 4; Winberry v. Salisbury, 74 A.2d 406 (N.J. 1950); see N.J. Stat. Ann. § 4:69 (West 2022) (governing Actions in Lieu of Prerogative Writs, which superseded the former writ of certiorari as the means of challenging local government actions).

10. Neu v. Union Twp. Plan. Bd., 800 A.2d 908, 913 (N.J. Super. Ct. App. Div. 2002).

11. See Mandelker, supra note 3; Mandelker, supra note 7.

12. Peter Buchsbaum et al., A Call for Action: Renewing the Federal Government’s Commitment to the Construction of New Affordable Housing, 30 J. Affordable Hous. & Cmty. Dev. L. 117 (2021).

13. Id. at 118.

14. 473 U.S. 172 (1985).

15. Monroe v. Pape, 365 U.S. 167 (1961).

16. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156 (1997).

17. Personal Observation of the writer, who was a municipal lawyer at the time.

18. Dodd v. Hood River Cnty., 136 F.3d 1219 (9th Cir. 1998); see also Thomas E. Roberts, Procedural Implications of Williamson County/First English in Regulatory Takings Litigation, 31 Env’t L. Rep. 10,353 (2001).

19. ^19. Id.

20. City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997).

21. See Taking Sides on Takings Issues 568–80 (Thomas L. Roberts ed., 2002), for the report of the retreat on takings jurisprudence. The retreat itself was held in 1999.

22. I was in the hotel elevator with my son, then a congressional aide, when one of the IMLA lawyers therein said “So you’re one of the people arguing we should be sued in federal court.” My son asked, “One of ours?” So, it went.

23. 139 S. Ct. 2162 (2019).