It wasn't going to be too hard to figure out what the U.S. Court of Appeals for the Sixth Circuit was going to do in Lumbard v. City of Ann Arbor, No. 18-1258 (Jan. 10, 2018). After all, the case involved a federal takings claim in federal court, which the district court dismissed because the plaintiff had already litigated her state takings claims in state court.
Yes, the plaintiff tried to make an England reservation in the earlier state court litigation to inform everyone that she was expressly not also litigating her federal takings claim. But ever since San Remo, you know what that means: diddly squat. Later, when the plaintiff came to federal court and asserted her federal takings claim, that court concluded full faith and credit, blah blah blah.
The Sixth Circuit in just a few more words, affirmed. A short opinion (7 pages) with nothing terribly surprising, other than some between-the-lines signalling by the judges that they weren't completely on board with the result. See slip op. at 6 ("However, the Supreme Court in San Remo ... clearly overruled this circuit, along with others, with respect to [England reservations].").
If that were all the opinion contained, we're not even sure we'd bother posting it. Nothing to see here, folks, move along.
But check out the concurring opinion by Judge Raymond Kethledge, starting on page 8. It, too, is short (just about 2 and 1/3 pages long). Although he agreed with the panel result, his concurring opinion reveals he has a definite opinion about Williamson County (and, by extension, the Knick v. Township of Scott case, to be reargued next week at the Supreme Court, in which one of the questions the Court is considering is whether to revisit and overrule or modify Williamson County).
His opinion on this topic is important to us because he's one of those federal judges that consistently shows up on SCOTUS short-lists to fill a future vacancy.
What does Judge Kethledge think of Williamson County? In short, he doesn't think it is worth much:
Yet Williamson County has its defenders, notably state and local governments, who say that, if a state’s procedure for providing “just compensation” happens to be a lawsuit in state court, an aggrieved property owner should be obligated to seek compensation there. The problem with that argument (apart from the catch-22 described above) is its premise: that, taking or not, the property owner cannot show a denial of “just compensation” until the state courts deny relief. But the Takings Clause does not say that private property shall not “be taken for public use, without just compensation, and without remedy in state court.” Instead the Clause says that private property shall not “be taken for public use, without just compensation” period. U.S. Const. Amend. V. And that plainly means that, if the taking has happened and the compensation has not, the property owner already has a constitutional entitlement to relief. Whether a local planning commission or the state courts have recognized that entitlement is beside the point for purposes of whether the constitutional entitlement exists. That is why pre-judgment interest on a federal takings claim runs from the date the property was taken, not from some later date on which a state court denied relief.Concurring op. at 8-9 (citations omitted).
And he's not done yet:
Williamson County thus turns away from federal court constitutional claimants who have every right to seek relief there. And in doing so Williamson County leaves those claimants without any federal forum at all. Williamson County itself did not foresee that result, and thus offered no justification for it. Nor has any later case explained why takings claims should be singled out for such disfavored treatment. And meanwhile, as this case and others illustrate, Williamson County has left the lower federal courts with plenty to do in cases where plaintiffs seek to assert federal takings claims against state or local defendants. Rather than actually adjudicate those claims, however, we adjudicate federal-court esoterica: things like Pullman abstention, the scope of state jurisdictional and venue provisions, the efficacy of so-called “England reservations,” and whether state law disfavors the adjudication of federal takings claims in violation of Haywood v. Drown, 556 U.S. 729 (2009).. . . .
Federal courts have a “virtually unflagging” obligation to exercise the jurisdiction that Congress has given them. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013). Congress has given us jurisdiction to hear these takings claims. Our constitutional order would be better served, I respectfully suggest, if we simply adjudicated them.
Id. at 9-10.
Have I got your attention now?
Yes, Judge Kethlege, you have.
Lumbard v. City of Ann Arbor, No. 18-1258 (6th Cir. Jan.10, 2018)
