Any regular reader of these pages knows about the Williamson County/San Remo Hotel "ripeness" Catch-22: try vindicating a property owner's federal constitutional right in federal court in the first instance, and the federal court will tell you that you are too early -- a regulatory taking is of no constitutional moment until the state regulators have made a final decision, and the state courts have denied compensation (even if this means the state hasn't offered compensation and in state court denies it owes any). But bring a federal action after a state court inverse condemnation case, and the federal court will tell you that you are too late -- you already litigated your federal claim, even if you expressly didn't.
The Catch-22 nature of this prompted four Justices to note in San Remo Hotel that the Williamson County experiment may have run its course and is due for another look. Chief Justice Rehnquist wrote:Finally, Williamson County's state-litigation rule has created some real anomalies, justifying our revisiting the issue... I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic... In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts.
But the argument wasn't raised in that case, leaving the question for another day. From the transcript:
Justice O'Connor: And you haven't asked us to revisit that Williamson County case, have you?
Mr. Utrecht: We have not asked that this Court reconsider the decision in Williamson County.
Justice O'Connor: Maybe you should have.
Ouch. Legal scholars and practitioners have extensively criticized Williamson County's analysis (see here and here for examples, or see Michael M. Berger & Gideon Kanner, Shell Game! You Can’t Get There From Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 The Urban Lawyer 671 (2004) for an extensive reference guide).
There are theoretical exceptions to the ripeness requirements (when it would be futile to keep applying for regulatory permissions, or when state law does not provide an adeuqate compensation remedy), but since 1985, these exceptions have been mostly illusory, and the federal courts have aggressively applied Williamson County to wipe their their dockets of regulatory takings claims.
This latest case is no different. The property owner in Downing/Salt Pond Partners v. Rhode Island, No. 10-1484 (1st Cir. May 23, 2011) did not file an inverse condemnation suit in state court. The district court concluded a regulatory takings claim was not ripe because the property owner did not obtain a final decision from the state even though he repeatedly asked the regulators to reach a conclusion. The district court also concluded that Rhode Island's inverse condemnation remedy is "reasonable, certain and adequate" and thus compensation must be sought in state court first.
The First Circuit affirmed, addressing only the adequacy of Rhode Island's compensation remedy. Exploring RI case law, the court concluded that state law might allow it, and the burden is on the property owner to show it won't: "the burden is on the plaintiff to prove the absolute unavailability or inadequacy of potential state remedies in order to be excused from the state litigation requirement." Slip op. at 23. Since Williamson County is a conjunctive test and both prongs must be satisfied, the First Circuit did not address the district court's finality analysis.
So let's get this straight: the Williamson County ripeness requirement is based on the idea that there's been no "taking without compensation" even where there's a taking, because until the state has denied compensation, there's been no wrongful taking because the Takings Clause requires a taking be uncompensated to be unconstitutional. And, it's OK with the Fifth Amendment to make a property owner prove that the state compensation remedy is absolutely unavailable. Because, you know, the mere theoretical possibility of compensation is enough to comply with the Taking Clause requirement of "nor shall private property be taken without just compensation."
Now we understand.
Downing/Salt Pond Partners v Rhode Island, No. 10-1484 (1st Cir May 23 2011)
