Let me make sure I am understanding this properly: a property owner does the right thing under the rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and brings her federal regulatory takings/inverse condemnation claim in state court because its not yet ripe in federal court, but the city removes the case to federal court on the basis of “arising under” jurisdiction (in other words, the case could have been brought in federal court in the first instance), and then moves to dismiss the federal claim on the basis that it’s not ripe in federal court, and both the district court and the court of appeals don’t bat an eye?
That’s my read of one of the issues in Snaza v. City of St. Paul, No. 08-1604 (8th Cir. Dec. 12, 2008), where the court held:
Snaza brought this action in state court, alleging violation of her substantive due process and equal protection rights, illegal taking, and inverse condemnation. The city removed the action to federal court and filed for summary judgment. The district court concluded that Snaza had not identified a protected property interest or improper government action related to the denial of her permit application and that she was not similarly situated to her father Bernard because of his severe illness. It granted summary judgment on her substantive due process and equal protection claims. The district court concluded that Snaza’s takings claim was not ripe because she had not sought and been denied just compensation in a state court inverse condemnation action.
Slip op. at 4-5. The opinion even has a slightly critical tone: “Although Snaza filed an inverse condemnation claim in state court, she had not completed the required state process before the action was removed to federal court.” Slip op. at 5. The court didn’t question the city’s action, or whether it was simply wasting the federal court’s time by removing the case to federal court when — according to the city — it should not have been there in the first place:
Snaza argues that because the city removed her complaint, including her inverse condemnation claim, from state court to federal court, it has waived any ripeness challenge. The same argument was made by the plaintiff in Koscielski and was rejected as untenable because it “would require the Court to refuse to consider whether it has subject matter jurisdiction over the case.” 435 F.3d at 903. Although Snaza brought an inverse condemnation claim in state court, her federal takings claim will not be ripe unless and until she is denied just compensation on that state claim. The district court did not err by concluding that Snaza’s federal takings claim was not ripe or by dismissing that claim without prejudice.
Slip op. at 6.
This case illustrates once again the strange asymmetry of how Williamson County is applied (city can take a claim to federal court but the landowner can’t), the procedural games visited on property owners by local governments in these type of cases, and the willingness of courts to enable this dysfunctional behavior. The city’s actions in Snaza — removing a case while the property owner was in the process of ripening it, and then claiming it wasn’t ripe — reminds of that old definition of chutzpah where the person accused of killing his parents asks for the court’s mercy because he’s an orphan.
Courts of appeals, of course, cannot overrule Willliamson County, a Supreme Court decision, which, for better or worse is still binding precedent. But if Williamson County says these cases initially belong in state court, then federal courts are not required by precedent to allow wasteful gamesmanship, or arguments that say one thing today, and another tomorrow. At least a couple of district judges seem to understand that: see Del-Prairie Stock Farm, Inc. v. County of Walworth, 572 F. Supp. 2d 1031 (E.D. Wis. 2008), and Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (N.D. Cal. Nov. 28, 2007), where the court held that such procedural posturing “smacks of bad faith.”
This is one of the reasons why Williamson County has been the subject of at least three cert petitions this term asking the Court to ovverrule it, and why four Justices in San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) stated “Williamson County‘sstate-litigation rule has created some real anomalies…” I’ll say.