Severance v. Patterson, a recent 5th Circuit Takings Clause case, underscores the second-class status of constitutional property rights, that I have often written about in my work.
The case involved a claim by property owner Carol Severance that the state of Texas had taken her land without compensation by requiring her to allow an easement to the public after Hurricane Rita pushed back the waterline in the coastal area where the property is located, in 2005. The state even seeks to compel her to tear down her house in order to make way for the easement. Such an infringement of property rights would almost certainly be a "physical taking" requiring compensation under the Takings Clause of the Fifth Amendment. Texas, for its part, argues that the state had a preexisting right to a "rolling easement" that encompasses any "dry beach" area and moves inland any time a hurricane or other natural disaster causes a shift in the coastline.
The Fifth Circuit, however, did not address the merits of this dispute because they ruled that Severance had failed to first get a ruling on her claim in state court, as required by the Supreme Court's 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank. Williamson requires Takings Clause claims to 1) get a "final decision" from the state administrative body that they intend to displace the owner's rights, and 2) seek and be denied compensation for the loss of their property in state court. As I discuss in this article (pp. 23-24), the first prong of the Williamson test is problematic because it often allows the state to seize property rights without compensation by enabling state officials to delay making a “final” decision until the property owners run out of time and funds. The Severance case, however, illustrates a major flaw in the second prong: claimants who do go to state court might then lose the right to ever have their case reviewed by a federal court, even if the state court rules against them under standards that offer far less protection for property owners' rights than is available under federal case law.
As the Fifth Circuit opinion points out, the Supreme Court's 2005 decision in San Remo Hotel v. City and County of San Francisco holds that if a property rights claimant does take her case to state court, as Williamson requires, her case will be denied any subsequent consideration in federal court because of the Full Faith and Credit Clause. The San Remo Court took this step even though the majority recognized that "“the concern that it is unfair to give preclusive effect to state court proceedings that are not chosen, but are instead required in order to ripen federal takings claims [because of Williamson]." As I discuss in a forthcoming article (pg. 24), this creates a Catch 22 scenario for property owners seeking redress for uncompensated takings: They have to go to state court first in order to meet the Williamson "ripeness" requirement. But if they do and the state court denies their claim, they are then forbidden to go to federal court because the state court judgment has a preclusive effect under San Remo. The Fifth Circuit correctly points out that this Catch 22 applies even if the litigants have little chance of prevailing in state court because the state court in question offers far less protection for federal constitutional property rights than would be available under federal case law. As Judge Edith Jones' opinion explains, Williamson applies unless the state court "unquestionably would afford [the plaintiff] no remedy." There is no other individual constitutional right where the Supreme Court has made it virtually impossible for litigants to assert claims in federal court in this way.
Why does it matter whether a takings case is litigated in state or federal court? Often, it doesn't. Indeed, some state courts offer as much or more protection for property rights as federal courts do. However, as with other constitutional rights, the reverse is also sometimes true. For a variety of reasons, state courts might be more hostile to constitutional rights asserted against their own state governments than federal courts are. After all, many state judges owe their appointment or election to some of the same state political forces as those that seek to violate a constitutional right in a given case. For this reason, among others, the availability of federal court review of constitutional challenges to state government actions has long been considered essential. As Justice Joseph Story explained in the famous 1816 case of Martin v. Hunter's Lessee:
In respect to the powers granted to the United States, [state courts] are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty . . .
The constitution has presumed (whether rightly or wrongly we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might some times obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals.
This rule has generally been followed. Individuals who assert virtually any kind of constitutional rights violation are not forced to go to state court and then denied review in federal court should they lose - except in the case of violations of the compensation requirement of the Takings Clause. There is no justification for this double standard.
The Fifth Circuit correctly interpreted the relevant Supreme Court case law. But that doctrine itself reflects an indefensible refusal to treat constitutional property rights claims on par with other individual rights.
UPDATE: The original version of this post misidentified Chief Justice John Marshall as the author of Martin v. Hunter's Lessee. I had forgotten that this was one of the very rare constitutional cases in the Marshall Court era where the chief justice did not write the opinion. The mistake in the text has been corrected.
UPDATE #2: I probably should have noted in the original post that, under San Remo, a litigant who takes his state case all the way up to the state supreme court, can then petition for certiorari at the federal Supreme Court. However, given the overwhelming odds against the petition being granted (the Supremes only choose to hear about 70-80 cases per year, out of some 7000 petitions), that is not, for most, a meaningful opportunity for federal court review of their takings claim. Moreover, even to get that far, the property owner will have to first take the case to the state supreme court, which is time-consuming and expensive in and of itself.
Related Posts (on one page):
- Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:
- An Odd Sort of Ad Hominem Criticism in an Appellate Dissent: