Franz Kafka Weds Alice in Wonderland

For many years law has been the subject of parodies, but now it has become a self-parody. If you don’t think so, read Judge Posner’s opinion in Rockstead v. City of Crystal City (7th Cir. 2007) 486 F.3d 963. If you aren’t familiar with the wretched intellectual mess that passes for ripeness rules in  takings law, pay close attention — we are about to start moving the pea in this shell game.

In Williamson County Planning Commission v. Hamilton Bank (1985)  473 U.S. 172, the Supreme Court held that unlike other Americans whose constitutional rights have been violated, property owners are not entitled to sue in federal court when their land is taken without compensation in violation of the Fifth Amendment. How can that be? Well, explained the court, the Constitution does not forbid takings of private property, only takings without compensation. So until the aggrieved property owners sue is state court and are denied compensation there, their constitutional right has not been violated by the taking of their property. Their federal claim becomes ripe only then. What’s wrong with that, you ask? Answer: everything. The problem is that the same is true of life and liberty as well as property. The Constitution does not forbid deprivations of life and liberty either, only their deprivations without due process of law. So if one were to take the Williamson County rationale seriously (and we sure don’t) that would mean that one could not sue in federal court for violations of one’s right to life and liberty either. One would first have to repair to state court and sue there first to obtain the lacking due process. So if you think about it, it becomes clear that the Williamson County rule could not have been formulated in good faith. It was rather a convenient device ginned up ad hoc to spare the federal courts the need to deal with regulatory takings problems on the merits.

So what happens when aggrieved property owners do exactly what Williamson County says they must do, and file their inverse condemnation action in state court and lose? Now that their federal claim is ripe, do they then get a fair shot at the federal court? Nope. It now turns out that federal courts treat the state court decision as res judicata and tell the aggrieved plaintiffs that the joke is on them — that having spent years and fortunes litigating in state court in order to ripen their federal claim as required by Williamson County, their federal claim won’t be heard at all — neither in state nor in federal court. That was the holding of the wretched San Remo Hotel case (545 U.S. 323). 

So far, so bad. But it gets worse. In the states that as a matter of law refuse to provide an inverse condemnation remedy, the federal courts carve out an exception to this rule and allow the aggrieved property owners to sue directly in federal court. That was the case in the Del Monte Dunes case which was filed directly in federal court because at the time California did not allow inverse condemnation actions for regulatory takings.

So those unfortunate property owners in the Rockstead case argued that their case fit within that exception. The Illinois Supreme Court had ruled in 1948 that intermittent floodng of private land (the situation at hand) did not give rise to a valid inverse condemnation claim. So the owners were unable to assert a valid state law claim and should have been home free under Monterey Dunes. Right? Wrong! Enter Judge Posner who unleashes his considerable intellectual resources in an effort to come up with an ingenious way of dumping the owners. How? Well, says Posner, that Illinois case is old (decided in 1948) so maybe the Illinois Supreme Court will change its mind now if asked to reconsider. Also, he says, he has discerned a “glimmering” of recognition of the owners’ point in Illinois state decisional law. So maybe the state courts will change their mind. With all due respect, what a crock! Have you ever filed a lawsuit in which you have to start in the lower courts by admitting that the law is against you? Chances are your opponent will call it a frivolous case and ask for sanctions.

More important, in Williamson County the  Supreme Court was clear that the compensatory state law remedy must be “reasonable, certain and adequate.” (473 U.S. at 194, emphasis added). So is having to go to a state supreme court (which is at best an uncertain effort because that court doesn’t have to take your case) and asking it to overrule its own precedent on no bettter grounds that it is over 50 years old, what Judge Posner deems to be a remedy that is “reasonable [and] certain”? Give me a break, Your Honor. Better still, give common sense a break.

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