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Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:

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):

  1. Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:
  2. An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:
J. Aldridge:
Shame the Reconstruction Committee did not approve of Bingham's last minute attempt to add the Takings Clause to his final version of Fourteenth Amendment in late April of 1866.
4.24.2009 6:14pm
JoshB:
Justice Story wrote Martin v. Hunter's Lessee. Chief Justice Marshall recused himself in this case.
4.24.2009 6:29pm
paul lukasiak (mail):
there is a very good reason why the "taking clause" has a different status -- it would be inappropriate for the federal courts to deal with valuation questions on a local level each time a "taking clause" dispute occurred. The federal courts don't want to be involved in deciding how much each disputed piece of real estate is worth, their concerns are merely that a reasonable process to determine "just compensation" was followed because their job is to interpret law, not do real estate appraisals.
_
4.24.2009 6:32pm
FWB (mail):
Too bad Marshall couldn't read and gave us Barron in the first place. A proper government of the form required by the Constitution, i.e. republican form of government, requires adherence to and protection of the rights made in the BoR.

Tiochfaidh ar la!
4.24.2009 6:41pm
wuzzagrunt (mail):
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.


If that's true, doesn't that change the property right issue? Assuming it is something the property owner should have known (or could have known), then it could be considered a calculated risk she undertook voluntarily.
4.24.2009 7:22pm
Constantin:
there is a very good reason why the "taking clause" has a different status -- it would be inappropriate for the federal courts to deal with valuation questions on a local level each time a "taking clause" dispute occurred.This is perverse. It amounts to fed courts refusing to address the violation of a constitutional right because it happens too often.
4.24.2009 7:52pm
Mike& (mail):
there is a very good reason why the "taking clause" has a different status -- it would be inappropriate for the federal courts to deal with valuation questions on a local level each time a "taking clause" dispute occurred

This is moronic. Under Section 1983, federal courts hear claims that are basically personal injury cases every day. In diversity cases, federal courts decide the value of property and land in contract and real estate disputes.

So even if you want to frame the issue of litigating the Takings Clause as one involving "valuation questions," your point is moronic. Since, again, "valuation questions" are handled in federal court every day.
4.24.2009 7:57pm
Wilpert Archibald Gobsmacked (mail):

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.

And possibly continuing wuzzagrunt's thought, wouldn't a prudent owner make sure property insurance on such a parcel covers losses from "rolling easement" takings? OK, I said "prudent".

I do love the "catch 22"-ish jurisdictional and/or procedural problems IS has raised. How better to tell a plaintiff "we don't care" than to set-up roadblocks like those mentioned?
4.24.2009 8:01pm
Gilbert (mail):
I would be interested to know which case Ila Somin thinks is more wrong -- San Remo or Williamson.
4.24.2009 8:04pm
teqjack (mail):
Shifting water siting, as in shifting river beds and such, have caused disputes for centuries.

But how about stuff that does not shift? Seems that in some places, not only your sidewalk but your whole front yard - and a chunk of your driveway - is open to public access and use:
D.C. tickets owners for parking in their own driveways
4.24.2009 8:15pm
Duffy Pratt (mail):
Access to federal courts over a federal question is not a constitutional right. It looks like there is some pretty shaky judge made law about when people who get their property taken can sue in Federal Court. The solution is not to whine about the second class status of property rights, but to seek some sort of statutory expansion of federal jurisdiction in takings cases.

There are other areas where there are huge exceptions to federal jurisdiction even when the claim is based on some constitutional right family law and wills both come to mind.
4.24.2009 9:10pm
Siskiyou (mail):
This "first prong" thing: It has been quite a while since I was really up to speed on this topic, but the rule requiring exhaustion of administrative remedies, the concomitant financial hardship on private litigants, the expense of producing the administrative record, the limited grounds for judicial review (See, California Administrative Mandate), are all really old hat. Not nice, but not nearly novel, either. (Nevertheless, state officials do not have an entirely free hand in delaying matters as the post suggests.)

The questions of which is the proper court for initial judicial review and whether there is direct or eventual access to federal courts are different from the problem of how to review administrative law determinations.

Further, it is inappropriate to sneer at the suggestion that courts might want to defer to lower, or local determinations. While as it happens that I do not agree, many state appellate decisions hold just that, and speak of special expertise and knowledge of local conditions to justify the limitations on review of administrative hearing decisions. Those who are unaware of that probably are not well versed in land use law. Someone who figured that out for himself is pretty sharp.
4.24.2009 9:27pm
Jim Rhoads (mail):
Having litigated a major case through trial, state court appeals and a (denied) cert. petition during the late 80s and early 90s, I can attest that this area of the law is one of the most elusive that I ever encountered in 40 years of big-firm litigation.

There are so many ways to get to a result in this area of the law that judges essentially have carte blanche to reach a politically expedient decision.

As a result, on balance, in most states, an individual's property is owned subject to society's welfare. Generally, society will undercompensate the Owner to keep "taxpayers'" (i.e. constituents) objections to a minimum.

This doctrine is not contained anywhere in the words of the Constitution. Like a number of Constitutional doctrines, it is purely judge-made. I am glad that my retirement has allowed me to refrain from further litigation in this area. It is much more fun to kibitz.
4.24.2009 9:30pm
David Welker (www):
Mike&,

Without considering the merits of the difference between you whoever you happen to be criticizing, I think your argument would be infinitely better without using the term "moronic."
4.24.2009 10:09pm
Ben S. (mail):
The first prong of Williamson is not as problematic, in my mind. Here in California, you can sue in inverse for damages that arise from the government's unreasonable delay in actually effectuating a taking. Those are so-called Klopping damages. I think a similar issue arose before the SCOTUS in Sierra, but the damages were denied because the delay was deemed excusable as a normal part of the zoning and planning process.

The second prong is a little odd, however. It seems like a fairly overt attempt to essentially keep takings cases out of the federal circuits.

I also wonder how the first prong of Williamson applies in the context of inverse condemnation. Strictly construed, it would seem to preclude any inverse condemnation case from ever being brought in federal court (other than the SCOTUS, of course).
4.24.2009 11:23pm
Displaced Midwesterner:
Right or wrong, there is a "justification for this double standard." Williamson's decision was based upon the rather unique language of the Takings Clause: it does not prevent takings of private property, but only uncompensated takings. Until such details are worked out at the local level, there is no taking. In Williamson's view, it's an oddity that stems from the text of the Takings Clause. If the Framers wanted property rights to be on the same level as, say, freedom of speech, why does one amendment say "no law" while another just says, in effect, "do what you want, but pay for it?"
4.25.2009 12:08am
Ilya Somin:
Further, it is inappropriate to sneer at the suggestion that courts might want to defer to lower, or local determinations. While as it happens that I do not agree, many state appellate decisions hold just that, and speak of special expertise and knowledge of local conditions to justify the limitations on review of administrative hearing decisions.

Any such arguments for deference based on "special expertise" apply well beyond takings. They would be applicable to all other constitutional rights too. Yet only takings rights are singled out for such "deference." Obviously, there is a big difference between a higher state court deferring to its own trial court, and a federal court deferring (on a federal con law issue) to a state court.
4.25.2009 1:00am
Ilya Somin:
Right or wrong, there is a "justification for this double standard." Williamson's decision was based upon the rather unique language of the Takings Clause: it does not prevent takings of private property, but only uncompensated takings. Until such details are worked out at the local level, there is no taking. In Williamson's view, it's an oddity that stems from the text of the Takings Clause. If the Framers wanted property rights to be on the same level as, say, freedom of speech, why does one amendment say "no law" while another just says, in effect, "do what you want, but pay for it?"

Actually, there is surely a taking if the local government is seeking to use or acquire the owner's property. In free speech or religion law, one can challenge a statute even if one's own speech has not yet actually been restricted.

Also, the Takings Clause does not say "do what you want, but pay for it?" Even if you pay for it, your taking is still illegal if it's not for a "public use." More relevant here, you can't do "what you want" if you do a taking and don't pay for it, and that is precisely what is alleged in such cases.
4.25.2009 1:03am
Ilya Somin:
wouldn't a prudent owner make sure property insurance on such a parcel covers losses from "rolling easement" takings? OK, I said "prudent".

Perhaps. If the prudent owner could foresee 1) that a hurricane would move the waterline inland, and 2) that the state would make a claim despite the fact that (as the majority opinion in Severance points out), such a claim is not within the scope of the statutory text of the relevant state law. But even if the owner here acted imprudently, that in no way diminishes her constitutional rights. A "prudent" newspaper owner, for example, should take out insurance against liability for claims the government might file against her for publishing articles it wants to suppress (and many media outlets do in fact have liability insurance). That doesn't mean that a paper that fails to buy insurance shouldn't have its rights protected.
4.25.2009 1:06am
Piper:
I don't think the Full Faith and Credit clause has anything to do with it; that binds only State courts (and other instrumentalities). The Williamson rule draws its force from the USSC's supervisory power over the Federal courts. Congress has never legislated any special scheme for Federal judicial review of State "takings" so, since most Constitutional provisions are regarded as self-executing, such cases are litigated under general rules of standing, procedure, and so-forth (and in certain arcane cases under civil rights laws like Section 1983). In the absence of legislative guidance the US Supreme Court has ordered lower Federal courts to defer abjectly to State court findings in property-rights cases (even though Federal courts are instructed to show State courts much less deference in cases involving other civil rights). So long as Congress remains silent, the Supreme Court has full discretion to rediscover property rights and direct the lower Federal courts to enforce them like other Constitutional rights, protecting them against State abuse or neglect.
4.25.2009 1:39am
Siskiyou (mail):
Well, Prof Somin, avulsion and accretion, as teqjack pointed out, are not new problems. In California, a beachfront owner only owns to the mean high tide mark, which can move around quite a lot. A riparian owner's rights on his remaining land after avulsion, let us say where he can drill a well or install (or even keep in place) a septic system, can be lost because of setbacks required by a statute, ordinance or administrative regulation. This is not a new idea. Foreseeable or not, I doubt whether such events have much to do with the concept of title insurance. I believe the usual California forms have a dislaimer of coverage for loss predicated on public agency regulation, but I confess that I haven't dealt with such matters lately. The Texas rule doesn't astonish me.

I used to contend that local government agencies have only four classes of powers: taxation (although not so much locally in California since Prop. 13), eminent domain, contract, and the police power. Inverse condemnation falls in the category of eminent domain. Land use regulation is an exercise of the police power unless a court says the agency has to pay money. If the agency is allowed by a court to do what it wants to do in regulating land use, but is required to pay money, the act is lawful but should be considered to be a matter of eminent domain.

If the court does not allow the act at all, it is simply ultra vires. Sometimes then the agency must pay money damages. Rarely, agencies are limited in their acts because of their improper conduct or on some kind of implied contract theory. Those cases do occur, but are outliers. Perhaps that should not be the case, but it is.

Sure, I define these categories by outcomes, but isn't that what we do?
4.25.2009 2:24am
Siskiyou (mail):
Sounds to me as if Piper has a clear view of the matter. And yes, some of the 1983 cases are good examples of outliers.
4.25.2009 2:32am
Michael J.Z. Mannheimer (mail):

"[I]f 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 . . . ."


Not entirely true. One federal court -- the U.S. Supreme Court -- is always potentially available in a federal question case. Obviously, that is not a realistic alternative in the run of cases, given how rarely the Court grants cert. But you overstate the case by saying that all federal courts are closed to such a litigant.


"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."


Again, not entirely true. What about the criminal procedure protections of the Bill of Rights? Take the Confrontation Clause. Suppose someone is hauled into state court, charged with a crime, and convicted, in part upon the basis of hearsay that would be considered testimonial evidence in many federal courts. Thus, his conviction would violate the Confrontation Clause had he been tried in one of those courts. But this state's courts have a particularly stingy interpretation of what constitutes "testimonial" evidence, and the hearsay evidence against him is considered nontestimonial. Thus, the state courts determine, the Confrontation Clause was not violated.

Well, what is his recourse? He cannot simply go into federal court -- save perhaps, again, the U.S. Supreme Court -- to vindicate his federal constitutional right "to be confronted with the witnesses against him." He cannot bring a section 1983 action, for even if such a cause of action lies for a violation of the Confrontation Clause, he would be barred because his section 1983 action is really a habeas proceeding in disguise.

But wait, you say, he can seek habeas relief, and that would have been a decent argument pre-AEDPA. But now he must show not only that the state courts' interpretation of "testimonial" is wrong, but also that it is unreasonable. So, no matter how one views AEDPA's requirement of unreasonableness, there are always going to be some number of state criminal defendants convicted under a wrong-but-not-unreasonable view of federal constitutional law, and whose only recourse in the federal courts lies with the U.S. Supreme Court.

So how is that any different from your Takings Clause claimant?
4.25.2009 2:47am
Eric Muller (www):
Ilya, I think you are vastly over-reading San Remo Hotel when you say that "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."

That is not the holding of San Remo Hotel.

San Remo Hotel holds that where a state court, during a period of federal court abstention, rebuffs a litigant's effort to reserve the federal question in the case and addresses it anyhow, and the litigant declines to seek review of the state court's adjudication of the federal question in the United States Supreme Court by writ of certiorari, the federal district court that initially abstained in deference to the state court cannot then create an exception to the full-faith-and-credit statute in order to reach the federal question that the state court actually resolved and that the litigant chose not to submit to the Supreme Court.

It's just not correct to say that the property rights claimant in San Remo Hotel "was denied any subsequent consideration in federal court." She was denied the opportunity to relitigate the issue in a federal district court. She chose not to seek review in the Supreme Court, which, last time I checked, is a federal court.
4.25.2009 7:54am
Eric Muller (www):
Further note: it's ironic that you cite Story in Martin v. Hunter's Lessee. Martin concerned the capacity of the Supreme Court to review the judgment of the highest court of a state on a federal question. That is precisely what the litigant in San Remo Hotel did not seek.

Your claim, it seems to me, reduces to the idea that property rights are second-class citizens because the abstention doctrine sometimes forbids a claimant under federal law from having absolute discretion over whether the federal court before which she can bring her federal claim is a federal district court or the U.S. Supreme Court.

But this is a possibility in any abstention case where the state court actually adjudicates a federal claim against the wishes of the claimant.

So San Remo Hotel actually tells us nothing about the supposed second-class-citizen status of property rights. It only tells us something about the abstention doctrine and the inability of courts to create exceptions to the full-faith-and-credit statute.
4.25.2009 8:07am
Ilya Somin:
So San Remo Hotel actually tells us nothing about the supposed second-class-citizen status of property rights. It only tells us something about the abstention doctrine and the inability of courts to create exceptions to the full-faith-and-credit statute.

You are missing the way in which San Remo interacts with Williamson. In other abstention cases dealing with constitutional rights, the plaintiff can chose to start the case in a federal court. Not so with takings compensation claims.
4.25.2009 5:12pm
Gonzer Maven (mail):
The premise for the Williamson County rule is simply wrong (no wonder four justices in San Remo thought it should be reexamined/overruled). Blackmun's justification for the detour to state court was that the constitition does nor forbid takings, only takings without compensation, so the aggrieved parties should seek compensation in state court before they can show denial of cpmpensation, thus making their claim ripe. This is a false premise because the "without" business applies to other constitutional rights as well. The government may deprive you of your life or liberty; it is only forbidden to do so without due process. But I have never heard of anyone suggesting that Section 1983 notwithstanding, a constitutionally aggrieved plaintiff in non-taking cases has to go to state court first in search of the missing due process. Why then require it in taking cases and cases of deprivation of property without due process, but not in cases of deprivation of liberty?

The uniform judgment of specialized lawyers and specialized professors is that the "ripeness mess" is an unprincipled morass. For a collection of invective by commentators on both sides of the issue see pp. 702-703 of the Fall 2004 issue of the Urban Lawyer (Vol. 36, No. 4). E.g., "absurd," "self-stultifying," "nonsense," "a Kafkaesque maqze," and "a fraud or hoax on landowners." That's for openers.

Moreover, under Chicago v. International College of Surgeons, federal courts do have jurisdiction over these cases when a municipal defendant removes them to federal court. No once can explain why in the same case federal courts lack jurisdiction when a plaintiff files a complaint, but do have jurisdiction when a defendant removes the same case to federal court.
4.25.2009 5:13pm
Ilya Somin:
It's just not correct to say that the property rights claimant in San Remo Hotel "was denied any subsequent consideration in federal court." She was denied the opportunity to relitigate the issue in a federal district court. She chose not to seek review in the Supreme Court, which, last time I checked, is a federal court.

Given the overwhelming odds against getting a cert grant, this is not much of a distinction. Moreover, the San Remo Court did not state that you could bring the case in a federal district court if only you first file for cert with the Supremes.
4.25.2009 5:16pm
Ilya Somin:
San Remo Hotel holds that where a state court, during a period of federal court abstention, rebuffs a litigant's effort to reserve the federal question in the case and addresses it anyhow, and the litigant declines to seek review of the state court's adjudication of the federal question in the United States Supreme Court by writ of certiorari, the federal district court that initially abstained in deference to the state court cannot then create an exception to the full-faith-and-credit statute in order to reach the federal question that the state court actually resolved and that the litigant chose not to submit to the Supreme Court.

Nowhere in the San Remo decision does the court say that the outcome depends in any way on the litigant's failure to file a petition for certiorari to the Supremes.
4.25.2009 5:21pm
Gonzer Maven (mail):
Ilya is right. There is Supreme Court law holding that petitioning for cert is no substitute for the federal courts' fact finding powers. A fortiori, in Del Monte Dunes the Supreme Court established the plaintiff's right under Sec. 1983 to a trial by jury on the issue of liability, at least in fact-bound cases (which regulatory taking cases usually are). In contrast, state courts do not permit jury trials on liability in taking cases. So when plaintiffs in taking cases are denied access to federal court, they are also denied their right to trial by jury.
4.25.2009 5:35pm
Michael J.Z. Mannheimer (mail):

"I have never heard of anyone suggesting that Section 1983 notwithstanding, a constitutionally aggrieved plaintiff in non-taking cases has to go to state court first in search of the missing due process."


Then I guess you didn't read the post I wrote more than twelve hours before yours. Any time a criminal defendant in state court is convicted in a proceeding that arguably does not comport with due process principles, he is constrained to fight his deprivation of liberty without due process in state court. His only recourse in federal court is (1) a petition for a writ of certiorari to the Supreme Court (the same as the Takings Clause claimant) and (2) a petition for a writ of habeas corpus, but only if the deprivation of liberty without due process is clear.

Perhaps you are thinking of cases invoking so-called "substantive due process," a term that John Hart Ely justifiably characterized as nonsensical. To that extent, you are correct, but only because the Court has long since given up on any pretense of giving the "without due process of law" language any significance: the state cannot imprison you for unpopular speech or for using a condom, no matter how much process the state provides.

In a case actually involving deprivations of life, liberty, or property without due process, section 1983 actions rarely, if ever, provide a means of redress. Have you ever heard of a section 1983 action brought by someone convicted after an arguable violation of his right to confrontation, compulsory prcoess, the assistance of counsel, trial by an impartial jury, public trial, speedy trial, etc.?
4.25.2009 8:40pm
Gonzer Maven (mail):
Wait just a cottonpickin' minute, Mike. You are describing a situation in which the state government initiates the litigation by proseuting a defendant under state criminal law in state court for violation of a state statute. I, on the other hand, speak of a civil lawsuit filed against the local government by a plantiff for a violation of federal constitutional law.. Until this Williamson County lunacy was unleashed, it was black letter law that the plaintiff with a federal cause of action could choose between state and federal courts which have concurrent jurisdiction. Bell v. Hood. Remember? Or, if you are a Californian, Williams v. Horwath. (federal law trumps state law in a 1983 action in state court)

But even on your premise, a criminal defendant who claims a violation of his federal rights has some access to federal courts for federal review of his federal constitutional rights, if only by habeas corpus. And BTW, the first round habeas in state courts is not res judicata in the second round in federal court.

Now compare that with the Williamson County/San Remo mess. The plaintiff with a good claim of federal constitutional violation must file in state court to "ripen" his case. But when he does so, and then presents the federal court with an ostensibly "ripe" case, the federal judge gets to say "Ha,ha. The joke is on you. By following Williamson County to the letter and ripening your case in state court, as you were required to do, you barred any federal litigation of your federal constitutional claim." So the plaintiff has a Hobson's choice between no federal jurisdiction (for lack of ripeness) or a bar of res judicata, and he never gets federal review on the merits even though he may have a perfectly good, indeed conceded, federal constitutional claim. See the Rainey Brothers case out of the 6th (?) circuit (Tennessee, I believe).

And if you follow Williamson County and file in state court like a good boy, your opponents can remove the case to federal court under the College of Surgeons case with the Supremes telling us that this is OK because the plaintiff could have filed in federal court to begin with, when under Williamson County he couldn't. See the 8th Circuit case. Kottschade v. Rochester (situation deemed anomalous but holding that since the Supreme Court created the problem, it, not a circuit court, should solve it).

Now it's my turn to ask: what other class of constitutionally aggrieved plaintiffs is treated that way?
4.25.2009 9:37pm
Michael J.Z. Mannheimer (mail):
If I read the first paragraph of your last post correctly, you are distinguishing between the two scenarios based on who initiates the litigation. But I am not sure why that is relevant. The larger point is that, habeas corpus aside, state criminal defendants are required to litigate their federal constitutional claims in state court. To the extent you are making a distinction between criminal defendants and civil plaintiffs, it is an exercise in question-begging, because the state criminal defendant is not permitted to become a plaintiff in a civil lawsuit alleging a violation of his rights.

As I described in my first post, habeas is hardly a complete answer, because it can help the state criminal defendant only in the clearest cases of a constitutional violation, though I admit that is more of a remedy than the Takings Clause claimant has.

But let's look at another example from the civil context: P sues D in state court for defamation. D raises the First Amdendment as a defense. P and D are non-diverse. D cannot remove the case to federal court under the "well-pleaded complaint" rule; he must litigate his First Amendment claim in state court and hope that the U.S. Supreme Court grants cert. if he loses in the highest state court. Suppose further that federal circuit precedent is much more protective of speech than state precedent. We can end up with a defendant whose First Amendment claim ought to provide a complete defense but who is subject to an onerous money judgment because the state court is stingy in interpreting First Amendment rights.

So, finally to your question: "[W]hat other class of constitutionally aggrieved plaintiffs is treated that way?" I cannot think of any. But let me ask you: Why is it worse to be a constitutionally aggrieved plaintiff than a constitutionally aggrieved defendant? Or to put it another way, which would you rather lose because state courts are stingy in interpreting the federal constitution: your land or your life?
4.25.2009 10:14pm
ReaderY:
But they can go to a federal court: the Supreme Court of the Unites, on direct appeal from the Supreme Court of a state.

The Constitution does not require the existence of any other federal court -- Congress has the option of creating inferior federal courts, but no obligation to do so. So the existence of matters that inferior federal courts have no jurisdiction over shouldn't be surprising.

Federal courts in recent years have been increasing their deference to state courts over "liberty" as well as "property" matters. Whereas in prior years federal courts would routinely construe state statutes against what state officials claim to be their meaning in a rush to find a reason to strike them down as unconstitutional, federal courts since the Arizona English case general have to ask state courts what state statutes mean before reaching constitutional judgement. There is no reason state courts aren't qualified to judge the constitutionality of their statutes as a matter of first impression as part of the case.
4.25.2009 11:47pm
ReaderY:
Perhaps Ms. Severance would have better luck suing the ocean? The evidence in the case seems to show that it is the ocean that has been encroaching on her property. The State of Texas hasn't gone on her property. It has rights to ocean land which, after all, is not hers.

When she bought the land, she knew that there was a risk that someday the ocean would inundate some or all of it. Doubtless this risk was reflected in the price.
4.26.2009 12:02am
Gonzer Maven (mail):
OK. Good question, Mike. In your example the defendant can litigate his federal defense in state court. But under the Wiliamson rule the aggrieved property owner/plaintiff can never litigate his federal claim. The state court tries the state law claim first, and if it rules against the plaintiff, it's curtains. Even the state courts that permit the pleading of both state and federal claims in one complaint, try the state claim first and if they rule against the plaintiff on that one, the federal claim is precluded and cannot be tried. And it can't be tried in federal court, as noted. Thus, as Rehnquist pointed out in his concurring opinion in San Remo, the plaintiff cannot try his federal claim in any court.

And yes, I do differentiate between takings plaintiffs and criminal defendants. The former are axiomatically innocent of wrongdoing and claim to have been wronged by the government. "The law" (section 1983) says they are entitled to relief from the federtal courts. The latter are charged with criminal misconduct by the state that has the right to try them under state law in state court where they are free to litigate their federal law points. Moreover, when they become constitutionally aggrieved by their treatment in state criminal courts, they do have recourse to federal courts by habeas. Now, you evidently don't like the state of habeas law. I wouldn't know about that. But you must concede that the criminal defendants can receive some form of meaningfuil federal relief. Plaintiffs with taking claims can't. And please, spare us the fantasy about getting review on the merits by certiorari. As we were taught in law school, SCOTUS is not a court of error -- it is a court of precedent.

Your post also brings up a supreme irony. All through the 1980s a huge battle was raging over proper relief, with the pro-regulation police power hawks insisting that there is no such thing as a regulatory taking, and that the aggrieved property owners are entitled only to non-monetary relief under a substantive due process theory. I was one of the lawyers resisting that proposition. SCOTUS rejected that theory and opted for just compensation in the First English case where I was one of the lawyers urging that result as amicus. And now you come along and charge me with trying to revive substantive due process. You got the wrong boy. Your proper target is Charles Breitel, the late Chief Judge of the New York Court of Appeals who advanced the substantive due process approach in the Fred F. French case, only to be charged by Brennan with trying to tamper with Holmes' language in Pennsylvania Coal.
4.26.2009 1:56am

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