Here’s a question. Domestic partnership hit the skids, ended up in Family Court. That court did what family courts do and divided up the couple’s assets. The partners were not married, so one of the issues was whether they were in a “committed intimate relationship.” Family court held no. Decision appealed, and eventually sent back to the family court to consider whether the parties were in a committed intimate relationship more deeply, and if so, to redistribute the parties’ assets accordingly.
On remand, the family court reached the same conclusion (and the same distribution of assets) as its prior ruling: no committed intimate relationship. But for different reasons than it articulated the first round. This time, the court concluded that it could not constitutionally apply the committed intimate relationship test to this case, because “doing so would violate the parties’ constitutional rights.” One of those rights was the takings clause.
Takings alert: is this a judicial taking?
Even though it was not published, the Washington Court of Appeals’ opinion in Walsh v. Reynolds, No. 51125-8-II (June 25, 2019) is worth reading, especially starting on page 23. The court of appeals rejected the conclusion that this was a judicial taking:
Walsh first argues that transferring her property to Reynolds via the committed intimate relationship doctrine constitutes a judicial taking under both federal and state constitutions. The takings clauses of both the United States and Washington constitutions prevent government from taking property from one private party for the sole purpose of giving it to another. Kelo v. City of New London, 545 U.S. 469, 477, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005); Wash. Const., art. I, § 16 (“Private property shall not be taken for private use.”). However, we have not recognized that this prohibition extends to the judiciary’s power to redistribute property through equitable relief or other means. To extend the takings doctrine in such a manner would seemingly call many common law equitable doctrines into question.
Slip op. at 24.
The court rejected the argument that the judicial takings doctrine was recognized by the U.S. Supreme Court in the Stop the Beach case. But “that portion of the opinion was only a plurality; the other four justices who heard the case were not prepared to embrace the doctrine that the judicial branch is subject to the takings clause.” Slip op. at 24.
With no controlling federal law, the court of appeals didn’t want to push what looked to the court like a classic function of a court (especially a family court), the distribution of property, into takings territory. Same for Washington state law, which in a 1941 case had recognized the doctrine in a case where a court ordered encroachers to pay compensation, rather than ejecting them from the land. Tyree v. Gosa, 119 P.2d 926 (Wn. 1941). But in 2010, the Washington Supreme Court “retreated from Tyree, clarifying that a trial court’s authority to craft the type of relief invalidated in Tyree is not outright prohibited by property rules such as the takings clause. Slip op. at 25 (citing Proctor v. Huntington, 238 P.3d 1117 (Wn. 2010)).
In sum, the takings clause is not a limitation on a trial or family court’s “authority to order equitable distribution of assets following dissolution of a domestic partnership or committed intimate relationship.” Slip op. at 25.
But is that the same thing as a trial court allowing one of the parties to physically invade property, even where a statute does not grant the court or the parties that power?
Walsh v. Reynolds, No. 51125-8-II (Wn. App. June 25, 2019) (unpub.)