Loony Tunes!

Readers of our prose know already that we take a dim view of what passes for rules of ripeness in inverse condemnation law. See 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 Urban Lawyer 671 (Fall 2004).

Now it turnes out that this stuff has gone beyond self-parody. Take a look at West Linn Corporate Park v. City of West Linn, ___ P.3d ___, Oregon Supreme Court Docket No. S056322, opinion filed September 23, 2010. It all started with the Coporate Park filing an action to challenge city exaction requirements (for off site improvements) as violative of the rule of the Nollan and Dolan cases, both limiting municipal exaction powers to exactions that have a nexus to the burdens imposed by the private development in question and are proportional to them.

Naturally, the action was filed in an Oregon state court, as required by the U.S. Supreme Court’s ruling in the Williamson County case. However, the town removed the case from state to to federal court. On what basis was this done, we have no idea. All we know is that the U.S. Supreme Court has held that plaintiffs in such cases may not pursue them in federal courts but the defendants can (by removing them from state to federal court) — see City of Chicago v. International College of Surgeons. The U.S. Supreme Court never explained why in the same case, the plaintiff, but not the defendant, is barred from proceeding with his action in federal court, so we won’t go there — we just have to accept it.

But here, once the case got to the U.S. Court of Appeals for the 9th Circuit thigs went loony tunes. It turned out that the federal court was unable to decide the case because to reach the federal issues in question it first had to resolve some state law issues. So you’d think that at this point the 9th Circuit would deem the case premature, abstain, and order the case remanded to state court where it was filed to begin with, so it could proceed there to resolve those state law issues. Right? Wrong.

Instead of doing such a sensible thing, the U.S. Court of Appeals asked the Oregon Supreme Court for an advisory opinion explaining what the pertinent state law is, so their federal Lordships could reach the federal issues they meant to decide.

However, if you read the Oregon Supreme Court’s advisory opinion, it turns out that in order to answer the questions put to it, it had to be guided by federal law because, as it happens, most controlling inverse condemnation law is federal.

So the bottom line is that the federal court that was supposed to decide federal law issues got all tangled up in state law issues, while the state court that was supposed to decide state court issues gave us a lengthy interpretation of federal law issues.

There has got to be a moral here some place, but we have no idea what it could be, except perhaps a reinforcement of the folk proverb that says “Don’t make a federal case out of it.”

Those of our readers who are seriously into inverse condemnation law, should read this case. And as for those who aren’t, we advise that they stay away from it, and have stiff drink instead.

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