Who benefits from delay?

I once had a friend who pronounced that, for his clients (and I will refrain from mentioning the field of law in which he practiced), “justice delayed … is justice.” We are seeing a growing number of land use cases that seem to fall under this rubric. And I wonder why that should be so.

Fifty years ago, the California Supreme Court pronounced that “excessive delay” following the announcement of a condemnation project, or “other unreasonable conduct” would result in the need for constitutional compensation as inverse condemnation. Klopping v. City of Whittier, 8 Cal.3d 39 (1972). The delay in Klopping resulted from a condemning agency dismissing a complaint for land acquisition but promising to refile it once it had eliminated some other issues. You can imagine the impact that had on the property owner.

That should have settled things (at least in California): unreasonable governmental conduct, particularly when it preceded an acquisition project, was constitutionally infirm.

More recently, the U. S. Supreme Court set its sights on eliminating another form of delay in takings litigation. In Williamson County Regional Planning Agency v. Hamilton Bank (1985) 473 U.S. 172, the high court had established what many considered a foolish rule holding that a federal constitutional claim for Fifth Amendment takings compensation could not be filed in federal court until the property owner had first filed the same case in state court under the parallel state constitutional provision and lost. Honest. Those of you who recall studying res judicata (or claim preclusion) will be excused for thinking that a loss on the same issue in state court would preclude filing a federal claim later. I confess to being an early critic of Williamson County. See Michael M. Berger, Anarchy Reigns Supreme, 29 Wash. U. J. Urb. & Contemp. L. 39 (1985). It took a while for the Supreme Court justices to clap themselves on their collective heads and come to that realization. In Knick v. Township of Scott, 139 S.Ct. 2162, 2178 (2019), the Court overruled Williamson County, concluding that it was “not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”

And Knick should have clearly ended needless delay that either precluded the filing of some suits (because of the needless expense of litigating in two court systems) or resulted in the predictable dismissal of the second (federal) suit in light of the unfavorable ruling in the first (state) suit on the same issue.

Although delay of the Klopping variety could be laid directly at the doorstep of responsible government agencies, delay of the Williamson County variety can be laid on the steps of various federal courthouses.

Gearing v. City of Half Moon Bay, 54 F.4th 1144 (9th Cir. 2022) amalgamates both forms of delay. The case involves several individually owned lots in a 32-acre tract on a coastal bluff. For 40 years, the city has coveted that land for use as a public park, but it has not purchased it. Nor does it want to. Nor has it properly planned for its use or non-use, as required by state law. Instead, when owners seek to make some use of a lot, they are told that they must go through the tedious planning process to produce the plan that the city should have had all along. When the Gearings tired of the game and told the city they would sue in federal court, the city filed a condemnation action in state court for their lots and deposited a pittance as “probable compensation.”

So far, we have discussed only the city’s responsibility for a 40-year delay. But there is more. The Ninth Circuit Court of Appeals does not like land use cases. It has announced that it was not created to be “the Grand Mufti of local zoning boards,” Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989). Emphasizing its lack of taste for analyzing local planning and zoning law for consistency with the constitution, the Ninth Circuit has repeatedly concluded that land use cases involve “a sensitive area of social policy” – e.g., Rancho Palos Verdes Corp. v. City of Laguna Beach (9th Cir. 1976) 547 F.2d 1092, 1094 – using that conclusion as an excuse to excise itself from these cases.

Bringing these two lines of delay together, the City of Half Moon Bay asked the federal courts to abstain from hearing the federal half of the case, even though the Supreme Court had held in Knick that the federal courts had to provide a venue for federal takings cases. And that is exactly what the Ninth Circuit did, thinking that it had a way to evade Knick while not actually saying so and yet retaining its own peculiar view that federal courts should not mess with land use cases.

How does an abstention order differ from the discarded Williamson County rule? In brief, it doesn’t. Williamson County held that regulatory takings cases could not be filed in federal court until they had first been litigated and lost in state court. That, according to Williamson County, would “ripen” the case for federal litigation. As the Court eventually recognized, however, that would in fact end the litigation. Abstention would accomplish the same thing: litigation in state court, followed by a losing battle over res judicata if the plaintiff sought to return to federal court thereafter.

Surely, both government counsel who seek abstention orders and the courts that grant them are aware that they are simply substituting one way of precluding federal litigation for another. The name may have been changed, but the outcome is the same: no federal litigation – contrary to the Court’s intention to provide a federal forum for this type of litigation. Substituting abstention for Williamson County is a shell game and no more.

The Ninth Circuit’s position does violence to settled concepts of federal jurisdiction that require courts to decide cases when their jurisdiction is properly invoked, e.g., Bell v. Hood (1946) 327 U.S. 678, 681-682, and to use the abstention concept sparingly, and not as a simple means to “escape from [the] duty” of adjudication, Zwickler v. Koota (1967) 389 U.S. 241, 248.

It is time to call a halt to this sort of gamesmanship, which is why I filed an amicus brief in support of Gearing. The Petition for Certiorari is now pending.