kniCk opEns THE fEdEral CourT doors To sTaTE Takings liTiganTs
Eminent Domain Section
Chairs: Ryan Reese - Moore Bowman & Reese, P.A. and Gregory S. Rix - Gunster
The Court’s decision puts to
rest any doubt that the Takings
Clause is on equal footing with
the other protections inherent
T
in the Bill of rights.
he U.S. Supreme
Court recently opened
the door to Fifth
Amendment takings
claims based on state action. The
Fifth Amendment Takings Clause
states “private property [shall not]
be taken for public use, without
just compensation.” It is a
protection our Drafters thought
worthy of inclusion in the Bill
of Rights, and which they made
applicable to the States through
the Fourteenth Amendment. 1
When state action deprives a
citizen of a Constitutional right,
he or she may vindicate the claim
under 42 U.S.C. § 1983. The Civil
Rights Act of 1871 guarantees the
federal forum. This is supposed
to be true for any claim grounded
in the Bill of Rights, including
takings claims.
Yet, for the past 34 years, this
hasn’t been the case. Since 1985,
federal courthouses have been closed
to takings litigants alleging Fifth
Amendment violations premised
upon state action. This result was
the unintended consequence of two
maligned United States Supreme
Court cases.
The first, Williamson County
Regional Planning Comm’n. v.
Hamilton Bank of Johnson City, 2
established a rule that a landowner
alleging a state (or local) taking
first had to seek, and be denied,
compensation through state
procedures, typically by bringing
an inverse condemnation claim
under state law. The opinion left
open the possibility that a claimant
could reserve his federal (Fifth
Amendment) claim, and after being
denied compensation in state court,
file a subsequent federal lawsuit.
That theory was proven
unworkable, however, after the
Court’s subsequent decision in
San Remo Hotel, L.P. v. City and
County of San Francisco. 3 There,
the plaintiffs complied with
Williamson County by filing an
inverse condemnation action under
state law, reserving in the complaint
their federal claim. When they were
denied compensation in state court,
they proceeded to federal court,
only to find their federal claim
barred by preclusion under the full
faith and credit statute, 28 U.S.C.
§ 1738.
Operation of these rules placed
takings claimants in a Catch-22:
One could not sue in federal
court without first being denied
compensation in state court — yet,
the state court’s decision denying
relief has preclusive effect on any
subsequent federal claim.
Constitutional scholars have
criticized this “preclusion trap”
Continued on page 33
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32
SEPT - OCT 2019
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HCBA LAWYER