The ripeness hurdle in takings cases

TAKINGS TALK

The general concept of ripeness should be no stranger to lawyers. After all, one should bring no case before its time. We are all accustomed to dealing with various statutes of limitation and repose. But takings cases are different. The U.S. Supreme Court has invented a special hurdle to keep property owners from suing in federal court in order to vindicate federal rights protected by the 5th Amendment.

The ripeness test invented for takings plaintiffs requires them ? as a precondition to seeking federal court relief ? to sue first in state court, under the state constitutional counterpart of the 5th Amendment, and lose there before being allowed to open the federal courthouse door. Aside from the lack of sense in such a rule, consider trying to explain to a client that the only way to get into federal court to try a federal constitutional claim is to try the same case in state court ? and lose. And then, having lost, to approach a federal judge and ask for a different result.

No other plaintiff seeking to vindicate a right protected by federal law ? either constitution or statute ? is required to jump such a hurdle. No other citizen is forced against her will to sue in state court and then be treated as though the state court litigation was a voluntary act, some sort of choice made by the plaintiff, that should act as an election of remedies.

Picture yourself as a busy federal district judge. A case is presented to you in which counsel for the plaintiff explains that he has recently filed the same case on a parallel state-based legal theory in state court and lost ? and now he wants you to hear the same case again. Even though the Supreme Court has said that just such a scenario is the only way to see the inside of a federal courthouse (Williamson County Reg. Plan. Agency v. Hamilton Bank, 473 U.S. 172 (1985)), many trial judges (steeped in the lore of res judicata and collateral estoppel) routinely dismiss such cases.

To make it worse, the Supreme Court has refused to grant certiorari and deal with the issue directly so that it could explain what it meant in Williamson County. It had a chance a few years ago. A case came from California in a roundabout procedural fashion that could have raised the question of Williamson County's continued vitality. The case was called San Remo Hotel v. City & County of San Francisco, 545 U.S. 323 (2005). The reason that it did not resolve the problem is that the property owner did not challenge the validity of Williamson County. When counsel responded in the negative to Justice Sandra Day O'Connor's question about raising the question, she noted enigmatically, "Perhaps you should have."

When the opinions were filed, it became obvious that, indeed, the property owner should have challenged Williamson County directly. A five-justice majority opinion for the court held that, as the precepts of Williamson County had not been challenged, it remained good law and would be applied. The validity of its holding was not even analyzed, as it had not been called into question by the property owner. The kicker came in a concurring opinion by Chief Justice William Rehnquist. The old chief went on for pages about how reflection had shown him he had probably been wrong to have signed Williamson County, and that the court should take an early opportunity to revisit it. Even assuming that state courts are competent to decide issues of federal law, he could find no reason to demand that this one kind of plaintiff ? and this one only, among all plaintiffs seeking relief under federal laws ? be confined to state court to search for relief. However, as the precedent had not been challenged in this case, it would have to await another day.

Three others signed the Rehnquist concurrence. Had it actually been an issue in dispute, there was at least a chance they could have persuaded a fifth vote to join them. (Justice Antonin Scalia, for example, was not one of the four.)

Lawyers are not fools. They read not only what is written on the lines, but what is between them. Many lawyers thought they saw a clear invitation from a significant number of Supreme Court justices to bring the issue back and they would decide it. But they have not. Many times since San Remo, lawyers have filed certiorari petitions raising the validity of Williamson County's rule demanding suit in state court. No petition has been granted. And now two of the four who signed that concurring opinion are gone ? the chief passed away and O'Connor retired.

If the rule were not such a combination of foolishness and mischief, by cabining one group of plaintiffs ? and that group alone ? in state courts when they seek vindication of federal rights, it might not matter. However, as it deals with a fundamental right under the federal constitution, there ought to be room on the federal side of the street for litigation. Some will continue to ask. One day, perhaps, the Supreme Court will answer.