Supporting a Property Owner’s Right to Seek Redress in Federal Court for an Alleged Unconstitutional Taking of Property
Each of these petitions for certiorari raised the same issue in a different factual context. Each challenged the so-called Williamson County state litigation requirement for takings claims under the Fifth Amendment. In Colony Cove Supreme Court review was sought of a decision by the Ninth Circuit; in Downing/Salt Pond Partners a decision by the First Circuit is at issue. In each case the Federal Court of Appeals affirmed the dismissal of the petitioner’s takings claims on the ground that Williamson County requires the matter to be litigated in state court. In Williamson County Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court ruled that, when asserted against a state authority, a takings claim under the Fifth Amendment is not ripe to be heard in federal court until there has been a final decision denying just compensation to the complaining property owner. (As the Supreme Court pointed out in Williamson County the Fifth Amendment does not forbid the government from taking private property for a public purpose; it only forbids the taking of private property without the payment of just compensation. Therefore, the Williamson County majority concluded, there can be no federal claim until there has been a final state decision on compensation.)
The ripeness requirement of Williamson County has led to the following anomalous result. Under Williamson County no state takings claim could be ripe for federal adjudication until it has been fully litigated in state court. (This is the so-called “state litigation requirement.”) But, as the Supreme Court expressly recognized in San Remo Hotel L.P. v. City and County of San Francisco, California,545 U.S. 323 (2005), once a state-based takings claim has been fully litigated in state court, it cannot be re-litigated in federal court. See, e.g., the federal full faith and credit statute, 28 U.S.C. § 1738.) The upshot has been that, unlike any other federal or constitutional right, a property owner’s rights under the Takings Clause of the Fifth Amendment can never be litigated in federal court against a state defendant. The only chance for federal review of a state taking of private property—either pursuant to eminent domain or a regulatory taking—is via a petition for certiorari to the United States Supreme Court.
In San Remo, former Chief Justice Rehnquist wrote a concurring opinion, in which three other justices joined. The four justices called for a reexamination of the Williamson County state litigation requirement. These two petitions for certiorari presented the issue in a relatively pure form, and NELF, joined by other amici, urged the Court, in each case, to heed Chief Justice Rehnquist’s suggestion and seize the opportunity these cases present to look once again at its holding in Williamson County and its, perhaps unintended, denial of access to federal courts for one of the most fundamental federal rights, that forbidding a governmental body to take property for a pubic purpose without just compensation.
Despite NELF’s arguments, and the fact that this issue has continued to present problems for property owners in New England and throughout the United States, the Supreme Court denied certiorari in both cases. This indicates that, despite the former Chief Justice’s suggestion in San Remo, the Court has no present intention of revisiting the Williamson County rule.
Each of these petitions for certiorari raised the same issue in a different factual context. Each challenged the so-called Williamson County state litigation requirement for takings claims under the Fifth Amendment. In Colony Cove Supreme Court review was sought of a decision by the Ninth Circuit; in Downing/Salt Pond Partners a decision by the First Circuit is at issue. In each case the Federal Court of Appeals affirmed the dismissal of the petitioner’s takings claims on the ground that Williamson County requires the matter to be litigated in state court. In Williamson County Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court ruled that, when asserted against a state authority, a takings claim under the Fifth Amendment is not ripe to be heard in federal court until there has been a final decision denying just compensation to the complaining property owner. (As the Supreme Court pointed out in Williamson County the Fifth Amendment does not forbid the government from taking private property for a public purpose; it only forbids the taking of private property without the payment of just compensation. Therefore, the Williamson County majority concluded, there can be no federal claim until there has been a final state decision on compensation.)
The ripeness requirement of Williamson County has led to the following anomalous result. Under Williamson County no state takings claim could be ripe for federal adjudication until it has been fully litigated in state court. (This is the so-called “state litigation requirement.”) But, as the Supreme Court expressly recognized in San Remo Hotel L.P. v. City and County of San Francisco, California,545 U.S. 323 (2005), once a state-based takings claim has been fully litigated in state court, it cannot be re-litigated in federal court. See, e.g., the federal full faith and credit statute, 28 U.S.C. § 1738.) The upshot has been that, unlike any other federal or constitutional right, a property owner’s rights under the Takings Clause of the Fifth Amendment can never be litigated in federal court against a state defendant. The only chance for federal review of a state taking of private property—either pursuant to eminent domain or a regulatory taking—is via a petition for certiorari to the United States Supreme Court.
In San Remo, former Chief Justice Rehnquist wrote a concurring opinion, in which three other justices joined. The four justices called for a reexamination of the Williamson County state litigation requirement. These two petitions for certiorari presented the issue in a relatively pure form, and NELF, joined by other amici, urged the Court, in each case, to heed Chief Justice Rehnquist’s suggestion and seize the opportunity these cases present to look once again at its holding in Williamson County and its, perhaps unintended, denial of access to federal courts for one of the most fundamental federal rights, that forbidding a governmental body to take property for a pubic purpose without just compensation.
Despite NELF’s arguments, and the fact that this issue has continued to present problems for property owners in New England and throughout the United States, the Supreme Court denied certiorari in both cases. This indicates that, despite the former Chief Justice’s suggestion in San Remo, the Court has no present intention of revisiting the Williamson County rule.
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