If you are not one of those unfortunates whose professional activities require them to litigate the issue of whether an inverse condemnation controversy is “ripe” for court adjudication, maybe you should skip this post and go have a nice cup of coffee at Starbucks. But maybe not; it’s your call.
The issue of ripeness — or the “ripeness mess” as it is usually called — has been vexing litigants and courts ever since Justice Powell concocted it out of thin air in Agins v. Tiburon back in 1980. There, the court held out of the blue (neither party raised it), without any briefing, and without citation of any pertinent authority, that a regulatory inverse condemnation case is not ripe for federal court litigation unless the constitutionally aggrieved plaintiff-property owner inter alia first seeks a building permit and then sues in state court for just compensation, disregarding the fact that Euclid v. Ambler held expressly to the contrary; i.e., that no application for a permit was required before suing in federal court on a federal constitutional issue. Euclid went without mention in Agins, even though it was called to the court’s attention explicitly.
But you ain’t seen nothin’ yet. In the Williamson County case SCOTUS added some more procedural obstacles to a property owner’s taking claims, notably seeking a variance and the need to litigate such claims first in state courts. But the problem is that federal courts (including SCOTUS) also hold that a state court’s denial of compensation is res judicata in federal court, even if its decision is contrary to controlling federal constitutional law. Thus, there is no court, state or federal, that will hear a property owner’s federal constitutional or Sec. 1983-based claim of uncompensated taking on the merits. The owner is either too early (his case is unripe), or too late (it’s barred by res judicata). There are even federal cases — believe it or not — holding that the owner’s claim was both too early and too late. Honest. We couldn’t make that up if we tried.
Now, along comes Michael M. Berger, as knowledgeable a lawyer in this field as you can find, with a concise law review article, The Ripeness Game: Why Are We Still Forced to Play?, 30 Touro L. Rev.297 (2014) that reviews this sorry intellectual mess and notes that SCOTUS pulled up its socks partially when it held that the Williamson County lack-of-ripeness rule is not jurisdictional, but only prudential, so presumably federal courts, on grounds of judicial economy, or whatever may pop into their Lordships’ heads, may hear the federal cause of action on the merits if they so choose. Which only a very, very few of them do.
So the bottom line of it all is that Berger’s article provides a concise summary of “the ripeness mess” and its development, and describes that “prudential” loophole that allows a federal judges, should they be so inclined, to deal with the complaining owner’s taking claim on the merits. But they don’t have to, so it’s only a matter of judicial whim.
Excuse us for asking, but you call it law?
Mr. Berger, however, is an optimist (30 Touro L. Rev. at 318) and he expresses the hope that SCOTUS “can finally cut through the mare’s nest that ripeness has become.” It sure can, but will it? We, on the other hand, are a congenital pessimist so we are not holding our breath on that one. We will be lucky if the court continues to nibble around the edges of this problem as it has in the last two terms. What we think SCOTUS has done is that, lacking the votes and the courage to settle the law by upholding the “just compensation” provision of the Fifth Amendment, it pays lip service to the Taking Clause, but enforces it only rarely if at all. Which encourages regulatory government entities to ignore the Just Compensation Clause of the Constitution and to abuse the rights of property owners. Still, we hope that Mr. Berger is right and that there is pony in there someplace. Stay tuned.