While there was much more attention devoted to today’s argument in the school free speech case, another appeal argued today — Wilkie v. Robbins — deserves some light since it addresses a core constitutional issue: can the government retailiate against a property owner for refusing to surrender a Fifth Amendment right?
Whether “BONG HITS 4 JESUS” is protected by the First Amendment may be important (and certainly more headline-grabbing), but landowners and regulators should pay special attention to Wilkie, as it may be as critical is 2005’s infamous Kelo decision. The transcript of the oral arguments is posted here. The Solicitor General’s office argued for the BLM officials; Professor Laurence Tribe argued for the landowners.
In Kelo v. City of New London, a bare majority of the Court held that a property owner is nearly powerless to object to a government demand that she give up her property, as long as the government is willing to pay “just compensation” under the Fifth Amendment’s Takings Clause. The government’s position in Wilkie is far more extreme: in that case, the government wasn’t even offering compensation, and when the landowner exercised his Fifth Amendment rights and refused to give up his land, government officials retaliated.
After he sued them for, among other things, “extortion” under the RICO laws, the government officials claimed immunity because an official cannot be held liable unless the right she is alleged to violate is “clearly established,” which the BLM officials claimed the right to be free from retaliation for exercising a Fifth Amendment right is not.
The justices’ colloquy with the Solicitor General focused on the availability and nature of the relief the landowner would have if the Court does not recognize the RICO or Bivens claims. When the officials argued the landowner had other remedies such as objecting to each of the BLM’s incursions on his land through the administrative process, Justice Kennedy retorted,
your argument — and I understand your argument that there’s no essential free-standing cause of action for damages — basically means he has a right to go broke with attorneys’ fees challenging each individual incursion, each individual wrong. (Tr. 6).
Justice Ginsburg appeared to agree, eliciting from the government its position that the only remedy a landowner may have to halt a pattern of bad acts is piecemeal administrative actions (Tr. 9-10). The Solititor General argued that administrative appeals, writing a letter to the Department of the Interior Inspector General, petitioning elected officials, and going to the newspapers were sufficient and available remedies, and that just compensation is the only remedy under the Takings Clause:
I think that what is distinct about the Bivens claim here is first Bivens and Just Compensation Clause claims are fundamentally incompatible. And that in Bivens, its damages are nothing. Here the constitutional right actually explicitly provides a remedy, just compensation. (Tr. 21).
I think this misses the point of the landowner’s claims. He is not seeking relief for a violation of the Takings Clause, at least directly. He did not ask for the two most common remedies under the Takings Clause: an inverse condemnation claim for damages (see, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)), or the invalidation of the government action (see, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)). Instead, his claims are based on the allegations that the officials broke federal RICO statutes and committed a “constitutional tort” (Bivens) when they retaliated against him for asserting his constitutional property rights.
Were this done in any other context but property, it would be unremarkable to suggest that theofficials would not have immunity. The government is prohibited fromfiring you, for example, when you exercise your free speech or religiousrights. Nor may a prosecutor point out the negative inferences when acriminal defendant asserts the other Fifth Amendment right, the rightagainst self-incrimination, and refuses to testify. There would be outrage and calls for action if federal officials behaved the way they are alleged to have done here, were the target anyone but a property owner: breaking and entering, instituting criminal prosecutions, and “inciting a neighbor to ram his truck into the [landowner] while he was on horseback.” (Tr. 32).
More on the arguments to follow.