"Hard cases make bad law" goes the cliché.* But in the case of the Williamson County ripeness requirement in federal takings cases, the bad law is an entirely self-inflicted wound and cannot be blamed on lousy facts or hard cases. Others have done a much better job of deconstructing Williamson County's faulty history and rationale and the "bad law" the opinion has wrought (see here and here for examples), but we've taken our share of shots too.
But for an example of Williamson County unfairness, look no further than the case behind this order entered by the U.S. District Court for the Eastern District of Michgan in Oakland 40, LLC v. City of South Lyon, No. 10-14456 (May 18, 2011).
The case started out as a rather typical land use dispute, with a property owner who wanted to use its industrial zoned land for homes, and who consequently repeatedly sought a change in zoning or a variance that would allow the use. When the local municipality for whatever reasons repeatedly refused, the landowner sued for "federal and state taking/inverse condemnation claims, federal and state due process claims, and a state statutory claim based upon the Michigan Zoning Enabling Act." Order at 1-2.
Where did the property owner bring these claims? Why in state court, naturally. Under Williamson County's state litigation requirement, even though a plaintiff is asserting a federal takings claim, she must first seek and be denied compensation via state procedures (which include a lawsuit for inverse condemnation under state law). A federal lawsuit is not ripe until she does, and if a property owner were to bring a federal takings claim in federal court, the complaint will be tossed for lack of federal subject matter jurisdiction under Williamson County. Wrongheaded, but until the Supreme Court does something about it, it's the law.
So what did the city do in Oakland 40 after the property owner did what Williamson County instructed? It removed the case to federal court. On the basis that it could have been filed there originally.
We've seen this before, most notably in City of Chicago v. Int'l College of Surgeons, 522 U.S. 156 (1997), where the Justices allowed a case that included federal takings claims to be removed from state to federal court without blinking (and with nary a mention of Williamson County). Since the Court provides the tools for wasting the plaintiff's money and time, it apparently was awfully difficult for South Lyon to resist deploying them.
The city then moved to dismiss the federal claims. But instead of considering the motion, the district court ordered remand after the plaintiff argued that Williamson County precluded an exercise of original federal jurisdiction and the case was therefore not removable. The city sought reconsideration even though it agreed that "[p]laintiff’s federal takings and due process claims are not ripe under the test set forth in Williamson County," and that "[p]laintiff has not met the second prong of the Williamson County test, as Plaintiff has not pursued its state claims to completion." Order at 3. [Plaintiff: "I was trying to pursue a state claim for compensation, Your Honor, when the city removed the case!"]
You might reasonably ask how the city could argue that the federal claims should be dismissed while at the same time arguing those federal claims provided the basis for removal. Other than a reference to "[a] foolish consistency is the hobgoblin of little minds," here's the city's logic: it could remove the case to federal court because it contained federal claims, the federal claims could then be dismissed for lack of federal jurisdiction, then the case could be remanded to state court for consideration of the state law claims.
The district court rejected the city's argument, holding that it was a matter for the state court to decide how to treat the federal claims. The district court agreed with the property owner that the court must remand the entire case to state court, federal claims and all.
And who shouldered the cost for this seven month pointless adventure in forum shopping? Each side bore their own. The court rejected the property owner's claim for fees:
The court finds that Defendant’s removal of this action was not objectively unreasonable. Plaintiff pleaded federal constitutional claims in its complaint and did not affirmatively state that the claims were not ripe. Under similar circumstances, the Eleventh Circuit found that the defendant’s removal of the action was not objectively unreasonable.
Order at 5 n.1 (citing Bauknight v. Monroe County, 446 F.3d 1327, 1331 (11th Cir. 2006)).
The title of this post is a riff on Winston Churchill's famous observation about Russia since the city's Williamson County logic reminded us of those nesting dolls: the more you peel off layers, the more inscrutable the package becomes.
Thanks to Patty Salkin's Law of the Land for bringing this case to our attention.
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* For more recent invocations of the phrase, see See Kennedy v. Lockyer, 379 F.3d 1041,1065 (9th Cir. 2004), and Manfredi v. Mount Vernon Bd. of Educ., 94 F. Supp. 2d 447, 453 (S.D. N.Y. 2000). (And please cite us in your next brief.)
Oakland 40 LLC v City of South Lyon, No 10-14456 (E.D. Mich. 5/18/2011)
