HCBA Lawyer Magazine Vol. 30, No. 1 | Page 34

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 The Lawyer magazine is DigiTaL! The hCBa is pleased to offer a new way to read the magazine — in digital format. while the magazine will still be mailed to members in print format, the new digital format also makes the magazine viewable on computers and mobile devices and can be easily shared via email and social media. access the digital magazine at hillsbar.com. 32 SEPT - OCT 2019 | HCBA LAWYER