PLF files another brief supporting federal court access for takings plaintiffs

Last Friday, PLF and the Cato Institute filed an amicus brief in another attempt to get the Supreme Court to finally overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Frequent readers of the Liberty Blog will recall that Williamson County requires property owners to bring their Takings Clause claims in state court in order to “ripen” them for review in federal court. However, because of traditional doctrines like claim and issue preclusion, federal courts cannot hear claims that were already raised or could have been raised in state court. This leaves property owners without an avenue to ask the federal courts to protect their constitutional property rights.

In this case – Kurtz v. Verizon New York – the State delegated its eminent domain power to telecommunications companies in order to give them the power to install equipment on private property. Several property owners alleged that Verizon installed equipment on their property but failed to offer any compensation, as required by the Constitution and state law. They filed claims in state and federal court. While the state-court case is still ongoing, the lower federal courts held that they could not consider the property owners’ claims because they had not yet been denied compensation by the state court. The property owners have petitioned the Supreme Court for a writ of certiorari, which PLF is supporting.

Our brief makes two principal arguments. First, Williamson County ripeness is based on the incorrect premise that a taking “without just compensation” does not occur until a state court says so. Instead, we argue that a taking is complete once the entity which actually took the property – here, Verizon – fails to provide just compensation. The Supreme Court does not require state courts to certify the existence of other constitutional violations, and it should not treat property owners differently.

Second, the ripeness rule creates anomalies that have allowed government defendants to evade court review by removing a case from state court to federal court and then arguing that the property owner’s takings claim is unripe. The rule thus encourages manipulation of the judicial system and results in the draining of property owners’ resources or the outright loss of judicial review. It has also created havoc in non-Takings Clause property rights litigation, as some courts have required plaintiffs to bring equal protection and due process claims in state court if they are based on the same facts as a takings claim.

Williamson County ripeness is a flawed doctrine that should be rejected. The late Chief Justice Rehnquist said as much in his concurrence in the 2005 case of San Remo Hotel, L.P. v. City & County of San Francisco, which was joined by current Justices Anthony Kennedy and Clarence Thomas. We are hopeful that the Supreme Court will take this case and finally allow property owners their day in federal court.

For more on PLF’s efforts to have Williamson County overruled, see here and here.  For more extensive reading on the doctrine, see PLF Principal Attorney Dave Breemer’s recent law review article.