When the one side or the other in the public debate complains about "judicial activism," they're usually talking about judges legislating from the bench -- finding new rights, reading words into statutes that aren't there, and the like. But that species of judicial activism doesn't bother us all that much since we rarely see it, and even when we do, we understand that when accomplished incrementally, it is an integral and generally accepted feature of the common law process. Professor Steven Eagle has compared the common law's gradual evolution to a big ship making a slow turn, and we think that's an evocative and apt description. Judges in such a system sometimes do things like that, so that kind of judicial activism doesn't truly get under our skin.
No, the "judicial activsm" that bothers us is what the Second Circuit did in the the latest chapter in an issue we've been following, which has shades of our old friend Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). We were all set to write up something about the U.S. Court of Appeals for the Second Circuit's recent opinion in Kurtz v. Verizon New York, Inc., No. 13-3900-cv (July 16, 2014), when our New York City colleague Mike Rikon beat us to the punch (see "Second Circuit Applies Williamson County to Physical Takings"). We won't repeat Mike's summary or analysis, but will note a couple of things.
First, the court held that the "state compensation" requirement prong of the Williamson County ripeness rule applies to physical takings (this case involved a Loretto-like physical invasion of Kurtz's property by Verizon's terminal boxes). We all know that the "exhaustion" prong of the rule does not apply to physical invasions because a property owner need not get a final decision from the government about what it will or will not allow, since the extent of the taking is known from the moment when the property is invaded. The court concluded, however, that this does not relieve the property owner of the need to seek compensation from the state under the second part of the Williamson County test, since there has not been a taking "without compensation" until the state has denied compensation. We've been down this road before, and you all know what we think about that rule and its fallacious underpinnings. (We ask: would a court ever say in a case involving the First Amendment that the government has not "respected" religion, "prohibited" its free exercise, "abridged" the freedom of speech or of the press, or of the right to assemble or petition, because a person hasn't really been denied these rights because she could always sue the government? We think not. But that is exactly the rationale of Williamson County, which held that the government has not "taken property without compensation" for purposes of the Fifth Amendment because the property owner can sue the government to obtain the compensation which the government should have provided.) A weird rationale, but until the Court overrules Williamson County, we're stuck with it.
But in our view the second part of the Kurtz decision -- the part containing the "judicial activism" that we mentioned earlier -- was more interesting, and ultimately more troubling. The court held that Kurtz's procedural due process claims "arising from the same circumstances as a takings claim" were also subject to Williamson County.
In addition to his claim that Verizon's placement of the terminal boxes on his property was a Loretto invasion, Kurtz asserted "that Verizon violated their procedural due process rights by: 1) concealing their right to full compensation, or failing to notify them of it; 2) offering them no compensation; 3) giving the false impression that they must consent if they wanted telephone service in their own buildings; and 4) placing the onus on them to initiate an eminent domain proceeding if no agreement was reached." Slip op. at 5-6. The court candidly recognized that applying Wililamson County ripeness to such procedural due process claims "is less clear." Slip op. at 16. But in the court's view, when the due process and takings claims arise from the same "nucleus of facts," the property owner must satisfy Williamson County's exhaustion requirement.
How is a property owner supposed to do this? By "exhausting available state remedies," held the court. Slip op. at 22. What state remedies, we ask? Bringing an inverse condemnation lawsuit doesn't cure a due process problem, since obtaining just compensation doesn't remedy the lack of notice and the opportunity to be heard. Nor is just compensation the remedy under the Due Process Clause, is it? In other words, there are no state remedies to exhaust. And the other Williamson County test (finality) makes even less sense in the due process context: what other action by the government (here, Verizon) would make the extent of the violation more clear, when the cause of action is based on the government's bad acts or omissions (due process), and not on whether it has done something that resulted in a diminution of value to property (takings).
Which means that to reach the result, the court simply rewrote the plaintiff's complaint and in the process blurred the distinction between a takings claim (Verizon invaded my property and didn't condemn and pay compensation), and a procedural due process claim (here, Verizon treated me badly, and didn't give me notice and an opportunity to be heard before it took my property). Different claims, different remedies. But in the Second Circuit's view, the same claim ("coextensive"), even though that is not what the plaintiff alleged, nor what his claims sought. The court figured that applying the Williamson County rule to due process claims would prevent clever plaintiffs' lawyers from artfully pleading around the ripenness requirement, see slip op. at 20, and kept the court from having to untangle "messy distinctions based upon how a due process claim is pled." Slip op. at 21. Respectfully, Your Honors, if the facts support a both a takings claim and a due process claim, it's not your place to rewrite a complaint, and doing so is not law, it's naked judicial activism dressed up as law.
Compare the Second Circuit's approach with that of the Ninth Circuit, which has recognized that a property owner may assert both takings and due process claims, even if doing so may be "messy." See our article, "The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases," which summarized the Ninth Circuit's cases holding that the claims are distinct, even where, in the decisions noted, that court distinguished takings claims from substantive due process claims, which are conceptually more related and therefore more "messy" than takings and procedural due process claims.
Is this enough of a circuit split to get the Supremes interested? Stay tuned.