Recent high-class law blogs have been taking Justice Antonin Scalia to task for his assertedly “cringeworthy” attribution of a legal argument to the EPA, whereas it had been made by a party in an earlier case. Oh, dear. See Jacob Gershman, Supreme Court Corrects Scalia’s “Cringeworthy” Error in Pollution Case, Wall Street Journal Law Blog, April 4, 2014, This error had no effect on the substantive law in issue, and was promptly corrected, but not before inspiring snarky commentary aimed at Scalia charging him with not knowing what was in his earlier opinion.
Also, Justice Kagan got it from the bloggers for misstating the original location of the Jewish-American community. Oy. Adam Liptak, Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing, N.Y. Times, May 25, 2014. To say nothing of Justice Alito also getting it for his asserted statistical methodology shortcomings.
But what has not received any attention among the legal mavens scrutinizing Supreme Court opinions, is that in an earlier important opinion in which the Court (speaking through Justice Harry Blackmun), committed a far worse, doctrinal blunder that misinterpreted Tennessee takings law, and thereby distorted federal law of ripeness, thus de facto barring American property owners from receiving consideration of their federal constitutional claims in taking cases.
It isn’t every day that a state supreme court lays it on the line and makes clear that the U. S. Supreme Court has misunderstood a state law rule, but it happens and it has happened again in the takings field. You may recall that in Williamson County etc. Commission v. Hamilton Bank, 473 U.S. 172, 194-195 (1985),the Supreme Court refused to provide relief to the aggrieved property owner seeking compensation for a regulatory taking of its land by confiscatory land-use regulations because it found the case unripe. Why? Because, among other things, the owner who claimed compensation for a regulatory taking of its property had not first sought just compensation in the state courts. Why would such a detour through state courts be necessary? No other species of plaintiffs suing under 42 U.S.C. § 1943 is required to do so. Indeed, in Patsy v. Board of Regents, the Justices made it clear that no exhaustion of state remedies is required before suing in federal court under 42 U.S.C. § 1983 for a violation of constitutional rights. True enough, Justice Blackmun characterized this procedural wrinkle as a search for ripeness, not as exhaustion of state remedies. But in practice this thin distinction has been largely ignored by lower federal courts which demand that plaintiffs claiming uncompensated regulatory takings, first exhaust all their available state remedies.
Thus, in Williamson County, the court asserted that a taking of private property is unconstitutional only when accomplished without just compensation, so the property owners’ claim of taking is unripe until after they seek but are denied the lacking compensation by state courts. But the same is true of all rights – including life and liberty – that are protected by the Due Process Clause of the 14th Amendment. They may not be impaired without due process, but are substantively fair game if due process is provided. But only the plaintiffs in taking cases are required to “ripen” their federal causes of action by first suing for relief in state court.
What makes this procedure really bad is that when the taking plaintiffs duly comply with Williamson County, and take their detour through state courts, they discover that the state court decision is deemed by the federal courts to be res judicata, and they thus can never obtain an adjudication of their federal constitutional claims.
The Court’s ripeness holding in Williamson County was explicit and unmistakable: “If the [state] government has provided an adequate process for obtaining compensation, and if resort to that process ‘[yields] just compensation,’ then the property owner ‘has no claim against the government for a taking,’” and therefore it follows that “the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” “The Tennessee state courts have interpreted § 29-16-123 to allow recovery through inverse condemnation where the ‘taking’ is effected by restrictive zoning laws or development regulations.” Emphasis added. Thus, said the court, since the Williamson County plaintiffs failed to sue first in state court, their taking claim was unripe and its filing in federal court was premature. That would have been bad enough, but we have learned since then Tennessee law said no such thing. Rather, Tennessee law in question is limited to providing relief in cases of physical takings, not regulatory takings. Don’t take my word for it; you can easily check it out for yourself. Just keep on reading.
Since what was in issue was the interpretation of Tennessee state law of remedies, it would seem only prudent to see what the Tennessee courts have had to say about all this. After all, the U.S. Supreme Court is a federal court that deals with federal issues and does not provide authoritative interpretation of state law. It is the state courts that have the last word on that. So did the Tennessee law in 1985 (when Williamson County came down) provide a compensation remedy for regulatory takings? No, it did not. And it still doesn’t.
We know this because the Tennessee Supreme Court told us. Explicitly. Check out B & B Enterprises of Wilson County v. City of Lebanon, 318 S.W.3d 839 (Tenn. 2010), and there it is in black-on-white: “[T]his court has not yet held that a regulatory takings claim can be asserted under Article I, Section 21 of the Tennessee Constitution. Currently, we have recognized only two types of takings claims – physical occupation taking claims and nuisance-type takings claims. Regulatory takings do not fall into either of these categories.” 318 S.W.3d at 845, (citations omitted, emphasis added).
The Tennessee Supreme Court went on to note that the B & B case before it was “not a proper vehicle for deciding the existence or scope of a regulatory taking under Article I, Section 21,” of the state constitution, because it dealt with limitations – i.e., “when is such an action timely, assuming for the sake of argument that it exists, rather than when it becomes ripe for litigation.” Which brings us to the point of this article.
The bottom line is that the U.S. Supreme Court was simply wrong in the Williamson County case when it asserted that Tennessee law provided a compensatory remedy for regulatory (as opposed to physical) takings. Williamson County thus misread Tennessee law. We can’t expect the Justices to be mavens of Tennessee law. But it is now clear that the Williamson County ripeness holding is based on nonexistent Tennessee law and is thus unsound. Would the Williamson County case been differently decided had the Supreme Court Justices understood that the plaintiff had no Tennessee state law remedy? One would hope so.
So in addition to Williamson County’s many other faults that unleashed a torrent of scholarly invective directed at its merits, and inspired four concurring Supreme Court Justices to suggest in the San Remo Hotel case that Williamson County should be reconsidered, we now have a definitive interpretation of Tennessee law by the Tennessee Supreme Court which tells us authoritatively that Williamson County was erroneously decided as supposedly allowing regulatory taking actions in Tennessee state courts, when in fact it did no such thing. From which follows the ineluctable conclusion that the doctrinally deficient, and intellectually rickety “ripeness doctrine” foisted on this long suffering field of law by the Williamson County case and its progeny, stands on feet of clay.
And as for the would-be mavens who have been so eager to rag on the Supreme Court Justices for trifling and easily correctable, non-dispositive misstatements in their opinions, their efforts would be better employed in spotlighting Justice Blackmun’s Williamson County blunder that has now been exposed by the Tennessee Supreme Court as incapable of supporting the wretched Williamson County ripeness rule.
Which brings us back to the beginning and all those classy bloggers who profess to be upset by minor judicial gaffes in recent opinions. They would be better advised to call on the court to acknowledge its mistaken perception of state law that led it to create what has become known as the Williamson County “ripeness mess” and to rectify it at the earliest opportunity.