Justice Scalia’s Hackles and Second-Class Citizenship for American Property Owners

Don’t read this post unless you are into the bizarre intellectual (and moral) swamp often referred to as the “ripeness mess” in inverse condemnation cases. If you are new to the subject you may well not believe this, and if so who can blame you? It goes something like this.

Suppose that your local government has imposed a regulation on your land that for all practical purposes renders it useless and worthless, leaving you only with the dubious “privilege” of having to pay taxes and suffering all the burdens and liabilities of property ownership (think insurance premiums). So you go see a lawyer who explains that starting with the 1920s, it has been the holding of the U.S. Supreme Court, that a land regulation that goes “too far” will be judicially recognized as a taking, violating the Taking Clause of the Fifth Amendment. Your lawyer points out that much more recently (in 1992 to be exact), in Lucas v. South Carolina Coastal Council, 565 U.S. 1003, the court reiterated that rule and applied it to modern land-use regulations.

So it would appear that your substantive legal prospects are looking up. Since local interests are at issue, and since — as the California Supreme Court once conceded — there can be a close relationship between local government officials and local judges, this seems to be an ideal case for decision by the federal courts since violation of federal constitutional rights is implicated . Federal courts, if the Founding Fathers are to be believed, were set up precisely to provide an impartial forum for resolution of disputes in which local interests, local rivalries, and other parochial tensions are implicated.

So you file a lawsuit in federal court, alleging that the local regulations have de facto effected a taking of your property (leaving it useless and worthless) without paying just compensation, an act forbidden by the Fifth Amendment. But what happens is that even though the facts are clear and undisputed, the federal trial judge dismisses your complaint, or grants summary judgment against you. How is that possible, you ask. Good question.

Back in 1985, in the Williamson County case, the U.S. Supreme Court announced out of the blue (that means without the matter having been briefed and argued) that in takings cases (and no others) you plumb can’t sue in federal court for violation of your federal constitutional rights under the Taking Clause. Your taking claim, according to Williamson County, is not ripe — not ready for decision by the federal courts — unless you first sue in state courts and try to get compensation from them, even though you argue with considerable merit that state courts are hostile to such claims and won’t enforce them. Only then, after the state courts deny you relief for the violation of your rights, says Williamson County, is your federal claim “ripe” for decision by the federal courts.
OK, you say. Lesson learned, and since it so happens that the statute of limitations hasn’t run yet, you refile your action in state court, demanding compensation for the taking of your property. You decide to hurry because you’ve heard advice that says don’t wait too long with construction defects and property litigation since you may be entitled to more compensation. — just as the Federal Lordships require you to do. But guess what, your opponent, the city attorney, now removes the case to federal court on the grounds that a federal issue is involved so he has the right to have it tried in federal court. “Wait a minute,” you say. “I was here two weeks ago, making the exact same argument, and you, Your Honor, threw me out of court on the grounds that this case can only be tried in state courts. So what happened? Why am I barred from federal courts under the Williamson Caounty rule, but my opponent has free access to them? What am I? Chopped liver?”

Believe it or not, no one has yet come up with a satisfactory answer to that question. Williamson County said that the reason for limiting original jurisdiction in these cases to state court is that takings of private property withut due process are legal and only when they occur without just compensation they give rise to a ripe federal claim. Wait a minute, you say. If that is so, what about other constitutional rights? After all, deprivations of life and liberty, the same as deprivations of property, are perfectly legal unless they are unaccompanied by due process of law. So how come plaintiffs in all those cases aren’t sent back to state courts to obtain the missing due process, just as inverse condemnees are sent back to obtain the missing just compensation? Good question. But the courts have not even tried to suggest an answer.

The bottom line thus is, that there is one rule for property owners complaining of unlawful takings of their property, and there is another rule for everybody else complaining of violation of their constitutional righs.

We were reminded of all that while reading today’s New York Times, Adam Liptak, Telemarketer Abuse Statute Confounds Supreme Court, November 29, 2011, in which Mr. Liptak tells us about the kerfuffle that took place on the bench during oral arguments of a case dealing with the availability vel non of federal jurisdiction in cases under a congressional law regulating practices of telemarketers. It seems that their Lordships hasve confessed to being confused and can’t figure out whether these cases can be filed in federal courts, because Congress was unclear whether plaintiffs are limited to state court relief, or whether they can make a federal case out a piddly $500 per-violation civil penalty.

Justice Kagan is quoted as saying that “the default position” is that “federal courts have jurisdiction over federal questions.” Sounds OK to us. But if so, why shouldn’t the court take the same “default” position with regard to violations of Fifth Amendment taking clause?

And get this gem by Justice Scalia: “We are jealous of our jurisdiction. That’s what gets our hackles up, when you are telling us we have been ousted of jurisdiction.” Sounds grand to us, but where were Justice Scalia’s hackles when the Court decided the San Remo Hotel case, and he concurred in an opinion asserting that federal takings claims in particular should be singled out to be confined to state court, in the absence of any congressional directive witholding jurisdiction from federal courts? At least Justices Rehnquit, O’Connor, Thomas and Kennedy mused in a concurring opinion that mayhaps Williamson County had been wrongly decided and should be reconsidered. But in spite of several recent opportunities to do so, none of them ever voted to grant certiorari to do so, thus proving once again that talk is cheap.

Bottom line: It’s scary how the courts have — in spite of occasional rhetorical flourishes to the contrary — declared private property rights to be a “poor relation” of the law. Property rights, and that means property rights protected by a rule of law, are what in the final analysis holds civilized societies together. Take that protection away, and substitute for it the whim of regulators pandering to what they perceive to be the preference of their influential special-interest constituencies (think NIMBY), and you knock over one of the pillars on which this free society rests. For as Professor James Ely, put it in the title to his highly regarded book, property rights are the “guardian of every other right.”