The “Ripeness Mess” Revisited – A Law Review Article of Note

We recommend that our readers with an interest in inverse condemnation read a new article by J. David Breemer, Ripeness Madness: The Expansion of Williamson County’s Baseless “State Procedures” Takings Ripeness Requirement to Non-Takins Claims, 41 The Urban Lawyer 615 (2009).

The anomalous Williamson County rule requires that property owners — unlike any other species of constitutionally aggrieved plaintiffs — must first pursue their takings claims in state courts before those claims become ripe for litigation in federal courts. But when such plaintiffs do exactly what Williamson County requires, they are met in federal court with the defense that the state court adjudication triggers the doctrine of res judicata which now bars their federal action. In other words, their federal constitutional claim is said to become ripe at the precise moment it becomes barred.

This outlandish result has been noted not only by numerous commentators (see commentaries collected at 41 The Urban Lawyer at 615, fn. 3), but also by four U.S. Supreme Court Justices in the wretched San Remo Hotel case. Mr Breemer now demonstrates that this unprincipled maverick legal doctrine has been seeping from takings cases into others, like due process and equal protection claims involving property, where apart from its inherently anomalous nature it lacks any doctrinal bases whatever, even under Wiliamson County.

Why do we characterize this doctrine as unprincipled? Read Mr. Breemers persuasive article and find out. To those of our readers who may not be into this stuff, we suggest they take a look at our own efforts in Michael M. Berger and Gideon Kanner, Shell Game! You Can’t Get There from Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 The Urban Lawyer 671, particulary at pages 702-703 where we collect the vitriolic criticisms of other commentators (on both sides of the issue) that range from “absurd” to “a fraud or hoax on landowners.”

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