Thirty years ago, in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), this Court pronounced a new and unfounded rule that a property owner must sue in state court in order to ripen a federal takings claim. This marked a radical departure from the historic practice. There was never, previously, any requirement that property owners had to resort to litigation in order to ripen their takings claims. For that matter, courts played no role in the ripening of takings claims prior to the ratification of the Fourteenth Amendment, and there is no basis for assuming that, through ratification, the Reconstruction Congress imposed any sort of litigation requirement on property owners seeking to ripen claims against state actors.
To be sure, Williamson County’s requirement to litigate in state court is anathematic to the very reforms that Congress sought to effect with the Reconstruction Amendments, and enactment of 42 U.S.C. § 1983. The Fourteenth Amendment was intended to secure federal rights—especially the guarantee against uncompensated takings—for citizens of the United States, against the various states. The Amendment was necessary to curb pervasive abuse by state governments at the time. And, to further that noble goal, the Reconstruction Congress enacted Section 1983 in order to ensure that citizens would have a federal forum to vindicate their federal rights—precisely because, there was great skepticism as to whether state courts could be trusted to adequately enforce the federal constitution against the coordinate branches of state government.
Not only does Williamson County’s requirement to litigate in state court defeat the Reconstruction Congress’ goal of opening the federal court house doors to citizens alleging violation of federal rights, but it denies the right to litigate in federal court without any truly principled basis. Property owners are simply shut out from federal court without any firm doctrinal justification. Worse—in a total miscarriage of justice—some courts apply Williamson County to deny access to both federal and state courts. For all of these reasons, the time has come to reconsider Williamson County.
Well, that looks like it for amicus briefs at this point (although if more come in that we were not aware of, we'll post them). Now, we wait for the response.
devoted to recent developments and commentary on regulatory takings, eminent domain, inverse condemnation, property rights, land use law, and (occasionally) election law.
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Robert H. Thomas is a land use, eminent domain, and appellate lawyer based in Honolulu, Hawaii
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At the 2016 Brigham-Kanner Property Rights Conference in the Hague, The Netherlands (October 19-20, 2016, I'm speaking on two panels: "Property's Role in the Fundamental Political Structure of Nations," and "Defining and Protecting Property Rights in Intangible Assets." More information here.
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