We couldn’t post much last week due to a pressing engagement on Friday before a three-judge federal district court (the case challenging Hawaii’s latest state reapportionment plan on Equal Protection grounds in which we represent the plaintiffs — more here). But the court took the matter under submission, so while we are awaiting a ruling we can clear off some of the backlog of items.
First, you will recall R&J Holding Co. v. Redevelopment Authority of Montgomery County, 670 F.3d 420 (3d Cir. Dec. 9, 2011), a case we detailed here, in which the Third Circuit held that a property owner did not actually or impliedly litigate its federal takings claims in an earlier state court case, and thus actually allowed a property owner to raise its federal constitutional claims in federal court.
Apparently, a property owner even having a chance of vindicating its federal constitutional rights in federal court is such an affront to the order of the universe that the Redevelopment Authority found it necessary ask the Supreme Court to review the case (cert petition here). Now comes the International Municipal Lawyers Association, which has filed this amicus brief supporting cert. Here is IMLA’s summary of its brief’s argument.
We found the most interesting aspect of the brief was not its claim that the Third Circuit got Pennsylvania preclusion law wrong, or that letting its decision stand might threaten to “chill” redevelopment (the Constitutional requirements of doing a taking right and paying just compensation can be, after all, such inconveniences), but its assumption that state takings claims are really just federal claims in substance, and that “takings” claims are the same whether brought in federal or state court. It seems to us that instead of promoting “the principles of preclusion, comity, and federalism,” (see Br. at 5), that an assumption that state law and state courts simply adhere to the incomprehensible Penn Central test has the opposite effect. And that even if state courts do apply a Penn Central analysis, they are doing so as a matter of state law, and not some baseline federal constitutional requirement, and that a federal court should not be bound by preclusion principles in such a case.