Weekly litigation report — April 26, 2019

April 26, 2019 | By JAMES BURLING
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Washington’s Supreme Court asks whether the government should be paid for violating the constitution

Earlier this week, PLF filed an amicus brief in an important property rights case pending before Washington’s Supreme Court. At issue in Church of the Divine Earth v. City of Tacoma is whether the city must pay damages for having placed an unconstitutional condition on the Church’s building permit (demanding a 30-foot right of way). The answer should be: yes. A state statute provides landowners with a cause of action “to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority … PROVIDED, That the action is unlawful or in excess of lawful authority only if the final decision of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful authority, or it should reasonably have been known to have been unlawful or in excess of lawful authority.” There should be no reasonable debate whether the city knew or should have known the law (we’re all presumed to know the law, after all)—and this case involves straight forward violation of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). The court of appeals, however, let the city off the hook by concluding that the constitutional violation was not technically unlawful because the city has the authority to place conditions on permits. Based on that, the court denied the Church’s claim and awarded attorneys’ fees to the city. Yes, you read that correctly. The court ordered the Church to pay the city’s attorney’s fees despite having found that the city violated the Church’s constitutional rights. PLF’s brief argues that this result is outrageous and was only made possible by the court’s fundamental misunderstanding of the law. As the U.S. Supreme Court confirmed in Koontz v. St. Johns’ River Water Management District (2012), the doctrine of unconstitutional conditions enforces a limitation on government permitting authority. The “greater authority” to condition a permit “does not imply a lesser power to condition permit approval on petitioner’s forfeiture of his constitutional rights.” A proper understanding of this doctrine will fix the shocking outcome of this case. An unconstitutional condition is, of course, unlawful. And the church should be entitled to damages and attorneys’ fees, not the city.