When the Second Circuit issued its opinion in Kurtz v. Verizon New York, Inc., 758 F.3d 506 (2d Cir. 2014), our comments were rather harsh ("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 ... and a procedural due process claim[.]"). We wondered aloud whether the Second Circuit widening the split in the federal circuits over whether Williamson County ripeness applies outside of the Takings context is "enough of a circuit split to get the Supremes interested?"
Well, it was enough to get our colleagues over at the Insitute for Justice interested, for sure. Yesterday, they filed a cert petition asking the Supreme Court to review the following Questions Presented:
This Court, in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), said that property owners bringing certain Takings Clause claims in federal court must both (1) demonstrate that the government’s decision regarding their property is “final” and (2) exhaust available state-court remedies for compensation. Although Members of this Court have criticized this second requirement, it has actually been expanded by courts of appeals. In the case below, the Second Circuit announced a rule requiring all procedural due-process claims that share facts with a possible Takings claim to meet this exhaustion requirement. In so doing, it joined the Seventh and Tenth Circuits but departed from the approaches of the Third, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and D.C. Circuits.
The questions presented are:
1) Whether Williamson County’s exhaustion requirements apply to any constitutional claim – including the procedural due-process claims in this case – when that claim shares facts in common with a possible Takings Clause claim.
2) Whether federal courts must impose special exhaustion requirements on Takings Clause claims even where, as here, the taking is “final.”
Disclosure: we will be helping to author an amicus brief in the case. Stay tuned.