New Takings Case — Once More Into the Breach

Here we go again, folks. The Magnificent Nine have granted certiorari in another taking case. What’s more, the question presented is whether or not the court should reconsider the wretched procedural mess it dumped on an unsuspecting legal world in Williamson County etc. v. Hamilton Bank back in the 1980s. There, for no evident reason and without any doctrinal support — without benefit of briefing by the parties — it held out of the blue that plaintiffs in uncompensated taking cases, unlike any other class of litigants, are not allowed to sue to vindicate their federal constitutional rights in federal courts, but must instead file their action first in state court. Until they thus exhaust their available state remedies, their federal cause of action (under 42 USC Sec. 1983) is not ripe.

If that were all, Williamson County would have been a bad, decision pointlessly creating a duplicative waste of time and resources for courts and parties alike. But there was more. Acting supposedly on the basis of Williamson County, lower federal courts began ruling that if a plaintiff complies with this crazy rule (as he has to), the decision of the state court denying compensation becomes res judicata (or an act of issue preclusion) so that the result is that according to these courts, a taking case becomes barred by res judicata or issue preclusion at the very moment it became ripe for federal litigation. Crazy? We’d say so.

Even worse, if that is possible, are cases where the aggrieved property owner sues in state court like he is supposed to under Williamson County but the defendant city removes the case to federal court, claims the right to be there because the issue is one of federal law, and then moves to dismiss the lawsuit on the ground that the owner was supposed to be in state, not the federal court. No, we are not making this up; we wrote at length about that anomaly. 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 (2004).

The case in which certiorari was granted is Knick v. Township of Scott. Cert was just granted so with a little bit of luck — whether good or bad luck remains to be seen — we’ll get an opinion by the end of the court’s term, or in plain English by the end of June.

So stand by. For now, round and round she goes, and where she stops nobody knows.

Follow up. A sharp-eyed reader takes issue with us and tells us that there is no way the opinion in this case can be filed by the end of this term, so we will have to wait until at least sometime next fall. He is probably right, and if he is, this is good. Opinions issued at the end of the Supreme Court’s term are notorious for having been produced during the “end-of-the-term crush” when clerks regularly pull all-nighters in an effort to finish all the opinions in cases that were argued during the term. The result is that many of those opinions are actually produced by harried, inexperienced youngsters desperately trying to finish their task by the end of June. This is not an atmosphere that is conducive to clear thinking and careful editing. So maybe if the opinion is written next term it will be produced under better circumstances, by people who are not pumped up on coffee and God-knows-what-else, pounding their word processors in a midnight effort to get their job done by midnight of June 31st.