To Tell the Truth You Have to Tell the Whole Truth

When witnesses are sworn in before testifying they have to swear to tell (a) the truth, (b) the whole truth, and (c) nothing but the truth. Why the rigmarole; why not just have them swear to tell the truth? Answer: because by adding questionable extraneous assertions, or — as in the case at hand — omitting material parts of the story, the listener/reader can be misled. Case in point: Richard M. Frank’s column Property Rights vs Land Use Regulations at High Court, Los Angeles Daily Journal, March 15, 2018.

There, Mr. Frank, professor of “environmental practice” at the UC Davis School of Law, tells us about the Supreme Court’s recent grant of certiorari in Knick v. Township of Scott. It appears that the court is going to take another look at the “ripeness mess” it created in stages beginning some 30 years ago, when it engrafted a ripeness requirement onto takings litigation when it decided Agins v. City of Tiburon, and Williamson County etc. v. Hamilton Bank, and compounded it in San Remo Hotel v. San Francisco. The truly mind-boggling one in International College of Surgeons v. Chicago which held that you can’t sue for an unconstitutional, uncompensated taking of your property in federal court, but if you sue in state court (as you must under Williamson County) your opponent can remove your case to federal court and then — believe it or not — argue successfully that your case should be dismissed because you should have sued in state court. And never mind that you did just that, and that it wasn’t you but your opponent who removed the case to federal court. Now go back and re-read the last sentence slowly and attentively and reflect on the fact that this isn’t some grotesque joke. That’s “the law.” Yes, it is. For a more detailed discussion of this mess, see our article, 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 State, 36 Urban Lawyer 671 (2004).

Under this clutch of SCOTUS cases, if you are an owner of property and government regulation deprives you of utility of your land, denying you all economically viable use of it, thereby effecting its de facto uncompensated taking and violating your constitutional rights under the Fifth Amendment, you can’t sue in federal court like every other kind of plaintiff to show that your constitutional rights have been violated by local government.

So it seems to us that if SCOTUS is thinking of straightening out this intellectual and moral mess, that ought to be a cause for satisfaction by every intellectually honest lawyer, no matter which side of the controversy he or she is on. But that hasn’t been the case. Government lawyers have been pushing this absurd doctrine to the nth degree, and some courts — to their discredit — have been going along with it. You don’t think so? Then try to contemplate the federal courts’ ruling that a property owner caught in this predicament cannot sue because he is simultaneously too early (his case is unripe) and too late (his effort to comply with Williamson County has rendered his federal claim res judicata so he can never get any relief, either is state or federal court.

So what does all this have to do with Mr. Frank’s article? A lot. What he does is tell the Williamson County, story about how you first have to sue in state court, but never gets around to telling his readers that the “first” isn’t first; it is rather the end of the game, because as we noted, when you sue “first” in state court (as you must under Williamson County) your case is over and you cannot — not ever, not never — get an adjudication of your federal constitutional rights in federal court like every other kind of constitutionally aggrieved plaintiff.

Is that all? Not quite. Mr Frank evidently couldn’t resist it, so he inserted into his piece a dig at Justice Holmes’ landmark Pennsylvania Coal v. Mahon holding, noting snidely that it was made up of the whole cloth. Really? And here we thought that it was consistent with first-year property law course material. He fails to clue in his readers to the fact that the California Civil Code (Sec. 654) expressly defines the right of use of one’s property as a property right. And he also fails to note that for years the US Supreme Court defined property that is subject to constitutional protection as not a thing, but a group of rights, including the right of use. See Lucas v. So. Carolina Coastal Council.

So let’s be careful out there, folks. Government lawyers have been taking advantage of their favored position in the courts and abusing it when they could.

And speaking of the whole cloth, in the 1970s they floated a novel doctrine that if adopted would — abracadabra! — transform the traditional, private right to build on one’s land into a “public right.” See Gladwin Hill, Authority to Develop Land Is Termed a Public Right, N.Y. Times, May 20, 1973, at p.1, reporting how a bunch of fat cats dba Citizens Advisory Committee on Environmental Quality announced that “henceforth development rights must be regarded as resting with the community rather than with property owners.” Fortunately, the US Supreme Court rejected that suggestion in the case of Bituminous Coal Assn. v. De Beneditis and reaffirmed the right to just companation for takings of property, whether physical or regulatory, total or partial, temporary or permanent in Firs English etc. Church v. Count of Los Angeles.