Here’s the first in a series of amicus briefs we’re going to post which urge the Supreme Court to grant the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015).
This amicus brief was filed by the Cato Institute, and like the petition, asks the Court to take the case in order to reconsider Williamson County‘s “state procedures” rule:
This case presents an opportunity for this Court to rectify a significant anomaly in its jurisprudence: the blanket exclusion from federal court of numerous constitutional rights cases arising under the Takings Clause of the Fifth Amendment. Under this Court’s decision in Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), a property owner’s claim that a state government has taken his property without paying “just compensation,” as required by the Takings Clause, cannot be brought in federal court unless he has first obtained a “final decision” from the relevant state agency and sought “compensation through the procedures the State has provided for doing so.” Id. at 186, 194. Once these state proceedings have concluded, however, res judicata bars pursuit of that same claim in federal court. See San Remo Hotel, L.P. v. City & Cty. of S.F., 545 U.S. 323, 346–47 (2005) (recognizing this point).
This lack of access to federal courts emboldens local governments to take aggressive, often unconstitutional regulatory action. They know that they can delay a legal challenge by drawing out their arrival at a “final decision.” Even after a “final decision” is made, in practice the sole challenges to state agency decisions must be brought in state courts, which will likely prove sympathetic to their fellow state officials. This regime effectively consigns Takings Clause claims to second-class status. No other individual constitutional rights claim is systematically excluded from federal court in the same way.
This double standard cannot be justified on the ground that takings claims are “premature” before state court proceedings have run their extensive course, as was claimed in Williamson County, 473 U.S. at 195–97. To the contrary, the Williamson County rule incentivizes state agencies to prolong the administrative process in order to prevent the land-owner from making a federal challenge. Any other constitutional-rights case initiated in federal court is “premature” in exactly the same way—because there is always the chance that the plaintiff could have ob-tained redress in state court instead. Similarly, it is dangerously misguided to justify this systematic exclusion from federal court by looking to the supposedly superior expertise of state judges on land-use issues. See San Remo Hotel, 545 U.S. at 347. State judges could be said to have similar superior expertise on a variety of other issues that arise in constitutional litigation, including ones relevant to other rights protected by the Bill of Rights.
Recognizing the indefensible nature of these anomalies, four justices have already called for the overruling of Williamson County “in an appropriate case.” San Remo Hotel, 545 U.S. at 352 (Rehnquist, C.J., concurring). Today, that case has arrived.
Even if this Court chooses not to overrule Williamson County, it should at least clarify for the lower federal courts that the state-litigation requirement is at best a prudential ripeness rule rather than a bar to subject-matter jurisdiction. That is what this Court said in Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733–34 (1997), and yet there exists to-day a circuit split as to whether the rule is prudential or jurisdictional and further disagreement as to the circumstances under which the rule can be disregarded. This judicial confusion can only be resolved by this Court, by overruling Williamson County or explaining precisely how its rule fits into the ripeness doctrine.
More on the Cato amicus brief here: (“You Should Be Able to Go to Federal Court With Your Federal Constitutional Claims“). More briefs coming.