Property Rights

Supreme Court Will Hear Important Property Rights Case

This could result in a ruling overturning a terrible 1985 decision that makes it very difficult to bring takings cases in federal court.

|The Volokh Conspiracy |

The Supreme Court.

Earlier today, the Supreme Court decided to review Knick v. Township of Scott, an important property rights case. The most important issue the Court will consider is whether to overrule Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it very difficult or impossible to bring takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefores owes "just compensation" under the Fifth Amendment, cannot file a case in federal court until he or she has first gotten a "final decision" from the appropriate state or local regulatory agency and has "exhausted" all possible remedies in state court. Even after all of that, it is often impossible to bring a federal claim, because a variety of procedural barriers preclude federal courts from reviewing state court decisions in cases where the case was initially brought in state court. In some cases, governments defending against takings claims even exercise their right to "remove" the case to federal court, and then manage to get the case dismissed because the property owner did not manage to first "exhaust" state court remedies (a failure caused by the defendants' own decision to get the case removed).

Williamson County creates an egregious Catch-22 trap for property owners: before they can bring a claim in federal court, they must first go through state courts and administrative agencies. But the very act of going to state court makes it virtually impossible to later appeal the case to a federal court! This is the kind of Kafkaesque idiocy that gives the legal profession a bad name.

One might ask why it matters whether takings cases are litigated in state court or federal court. After all, both state and federal judges have to apply the Takings Clause of the Fifth Amendment, and both have to follow relevant federal court precedents. In many cases, the result will be the same, regardless of venue. But in some situations, particularly ones where precedent is unclear and the issues may be ambiguous, state courts could well be biased against property owners, because they have close connections with the state and local governments that undermined the property rights in question. This may be particularly likely in the many states where judges are elected, and are therefore part of the same political coalition as local and state government officials.

In addition, allowing review in federal court helps ensure enforcement of at least a minimal uniform floor of constitutional rights through the nation. That, after all, is one of the main purposes of having federal constitutional rights in the first place. As prominent nineteenth century Supreme Court Justice Joseph Story explained in Martin v. Hunter's Lessee, a famous 1816 decision, one of the main reasons why federal courts have ultimate jurisdiction over federal constitutional issues is "the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution." Story also warned that the availability of federal judicial review is essential to prevent enforcement of constitutional rights from being being impeded by state court bias in favor of their own state governments:

The Constitution has presumed… that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between States, between citizens of different States, between citizens claiming grants under different States, between a State and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined before the national tribunals.

The Catch-22 problem Williamson County creates for takings claimants has no parallel with respect to other constitutional rights. Citizens who believe state or local governments have violated their rights to free speech, freedom of religion, or freedom from race and sex discrimination, are not required to first "exhaust" state court remedies before bringing a case in federal court.

The supposed justification for Williamson County is that the state or local government has not really "taken" property until the action in question has been validated by state administrative agencies and state courts. But, by the same reasoning, one can argue that a state has not really censored speech or suppressed religion until state agencies and state courts uphold the policy in question. If a state or local government has taken property without paying compensation, that is a violation of the Takings Clause, regardless of whether other state officials might later decide to reverse that action.

In the 2005 case of San Remo Hotel v. City and County of San Francisco, then-Chief Justice William Rehnquist wrote a concurring opinion, joined by three other justices (including Clarence Thomas, Sandra Day O'Connor, and current Supreme Court swing-voter Anthony Kennedy), in which he admitted he had been wrong to vote with the majority in Williamson County, and urged the Court to reconsider it in a future case:

As the Court recognizes,… Williamson County all but guarantees that claimants will be unable to utilize the federal courts to enforce the Fifth Amendment's just compensation guarantee. The basic principle that state courts are competent to enforce federal rights and to adjudicate federal takings claims is sound,… and would apply to any number of federal claims…. But that principle does not explain why federal takings claims in particular should be singled out to be confined to state court, in the absence of any asserted justification or congressional directive.

I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic.

The San Remo majority suggested that takings cases can be left to state courts because "state courts . . . have more experience than federal courts do in resolving complex, factual, technical, and legal questions relating to zoning and land-use regulations." But, of course, the same thing can be said of many other types of constitutional claims against state and local governments, where state judges are likely to know more about the relevant "factual" and "technical" issues than federal courts do.

As Rehnquist belatedly recognized, Williamson County creates a double standard under which Takings Clause claims are denied access to federal court in situations where other constitutional rights claims would be allowed. This doctrine is a manifestation of the longstanding second class status of constitutional property rights, which the Supreme Court has gradually begun to reverse in recent years. Hopefully, the justices will take another step in the right direction by eliminating an indefensible anomaly in its constitutional jurisprudence.

For the factual background to the Knick case, see this site created by the Pacific Legal Foundation, the public interest law firm representing the property owners in the case.

UPDATE: I have made minor changes to the wording of this post.

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  1. You left out the craziest part: if you sue in state court, the state often removes it to federal court, per federal issue jurisdiction. Then, the state can move to have the case dismissed or at least remanded to state court because it is not ripe. (Or the court can do it sua sponte, I guess.) This maneuver uses up time and cost for the plaintiffs.

    1. Can the plaintiffs even refile in state courts after such a maneuver?

      If they can, what stops the state government from pulling the same maneuver the second time around?

      It seems to mee that this maneuver doesn’t just cost the plaintiff time and money, it effectively kills their claim.

    2. Can the plaintiffs even refile in state courts after such a maneuver?

      If they can, what stops the state government from pulling the same maneuver the second time around?

      It seems to mee that this maneuver doesn’t just cost the plaintiff time and money, it effectively kills their claim.

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  2. Isn’t there a difference in principle when comparing property rights to other enumerated rights? At least in theory, however long a case may take, and however expensive it may be to vindicate a property right, the court which makes a final decision can remedy all of it, by awarding appropriately large amounts of cash to the plaintiff. That’s not something you can do with any of the 1A enumerated rights.

    I’m pretty sure that isn’t the practical reality, but I would be interested if a lawyer would agree that I’m in the ballpark about the principle.

    1. No. Monetary damages are the remedy for many of the other violations of rights where the lawsuit can be brought in federal court, frequently including the First Amendment.

      1. Sure. I’ll shut up for enough $. That’s how blackmail works.

  3. And by the way, is there something deliberately satirical going on, by again and again illustrating Supreme Court threads with a photograph showing the building with severely distorted perspective?

    1. I doubt it, that low to the ground, slightly up angle shot is mostly necessary just to capture the full height of the building at that distance. The angle could be reduced a bit or the camera raised, removing some of the sky, by not by all that much.

  4. ,i.One might ask why it matters whether takings cases are litigated in state court or federal court.

    1. One might ask why it matters whether takings cases are litigated in state court or federal court.

      Apparently, federalism ahas its limits.

      1. only if you presume that states rights and federalism are coterminus. some view williamson county as frustrating federalism, although it surely takes a bite out of states rights absolutism.

        1. [to overturn it that is], welcome to the new comment editing function.

    2. “One might ask why it matters whether takings cases are litigated in state court or federal court.”

      One might ask that about any federal question jurisdiction case.

  5. I wonder who provided the votes to take the case? Surely not those Justices who, in general, are pretty persnickety about such procedural niceties as standing, finality, ripeness, and the like when someone brings a claim to which they are substantively unsympathetic. That wouldn’t be very principled of them.

  6. Is there an explanation anywhere of what’s really going on there? Why does the township really want the public to have access to her property? Who’ll benefit? Are the inspectors really just looking for a bribe? If so, pay it; much cheaper for all involved than going to court.

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