By All Means, Professor Tribe, Let’s Provide Access to Justice. But Justice for Whom?

It says right here in the New York Times (Charlie Savage, For an Obama Mentor, a Nebulous Legal Niche, April 8, 2010, at p. A1) that Professor Lawrence H. Tribe, of Harvard Law School, has been appointed “senior counselor for access to justice” at the U.S. Justice Department. Access to Justice. Sounds good to us.

In case you haven’t noticed, in this blog we favor justice for all, even for  American property owners. It’s not that these folks are underserved like the poor who lack the understanding and the resources to secure justice from the courts. It’s that the federal courts have proclaimed it to be “the law” that property owners, unlike any other species of Americans, are forbidden to seek justice in federal courts when they claim that their federal constitutional rights have been violated when their property has been taken by state or local officials, or that they have been deprived of their property by state action without due process of law in violation of the 14th Amendment.

How American property owners got to be such legal pariahs is a bit of a long story, and if you are new to it, you can start with the recent article by J. David Breemer, Ripeness Madness: The Expansion of Williamson County’s Baseless “State Procedures” Takings Ripeness Requirement to Non-Takings Claims, 41 Urban Lawyer 615 (2009). Breemer tells the tale, and provides his readers with a convenient collection of legal commentaries dealing — or more accurately, trying to deal with — this intellectual and moral mess; see p. 615, footnote 3. For our own take, see 36 Urban Lawyer 671 (2004). 

If you don’t feel like tackling any legal prose — and if you don’t, who can blame you? — here is a brief summary. In the 1985 case of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, the U.S. Supreme Court announced out of the blue a new ripeness rule: an inverse condemnation case, though constitutional in nature, is not ripe for federal court litigation until two things happen. First, unlike all other plaintiffs claiming a violation of their constitutional rights, the aggrieved owners must obtain a final administrative decision concerning the permitted use of their land, and beyond that, must seek a variance when reasonable use is denied. Second, the owners must then sue in state courts in an effort to obtain just compensation for the taking of their property. Only after both these steps have been taken unsuccessfully, is the owner’s cause of action for taking ripe for litigation in federal courts. So far, so bad — this is obviously a contrived legal regime that is designed not so much to exhaust potential remedies, as it is to exhaust the aggrieved plaintiff-owners economically and emotionally. But that isn’t the worst of it.

After property owners jump through these hoops and at long last present themselves in federal court with a ripe federal case, seeking long-delayed justice, they are informed that the judgment in the state court proceedings into which they were forced in order to ripen their federal case, is preclusive, which means that federal courts must give full faith and credit to the state court decision. Therefore, goes the reasoning, the owner may not litigate the federal constitutional taking claim, not even where the state court decision is made on purely state-law grounds.

What that means is that — as noted by four concurring U.S. Supreme Court justices in San Remo Hotel v. San Francisco, 545 U.S. 323, 351-352, n. 2 (2005) — the constitutionally aggrieved property owners cannot have their federal constitutional claim heard on the merits in any court. The effect of this rule is that when a state court disposes of their claim on state law grounds, it thereby emasculates the federal courts which are now said to be unable to provide a remedy for even conceded federal constitutional rights violation. You don’t believe it? Try Rainey Bros. Constr. Co. v. Memphis & Shelby County Board etc., 967 F.Supp. 998 (W.D.Tenn. 1997, aff’d. by unpublished opinion, 1999 U.S.App. LEXIS 6396.

So it seems to us that if anybody is in need of help to obtain “access to justice,” it’s those screwed property owners. So here is our modest suggestion to Professor Tribe. Perhaps he can devote his considerable talents to influencing the law to eliminate this absurdly discriminatory legal regime. Do you think he might give it a shot? No? We aren’t holding our breath either, but, hey man, “access to justice” is a good thing, and if a fellow — whoever he may be — can’t get his federal constitutional claim heard on the merits in federal courts, which, lest we forget, were set up precisely for the purpose of applying and enforcing the provisions of the federal constitution and federal laws, then something is very wrong with the court system that countenances it.

We don’t expect Professor Tribe to get upset over the plight of these folks, but we harbor a forlorn hope that he might get concerned over the denial of access to justice that this “law” represents.  After all, it says “Equal Justice Under Law” over the entrance to the U.S. Supreme Court, and it doesn’t seem to us to ask for too much to provide justice to American property owners the same as to convicted murderers, child rapists, dope dealers, porn producers and terrorists.

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