In Rhone v. City of Texas City, No. 22-40551 (Feb. 14, 2024), the U.S. Court of Appeals for the Fifth Circuit held that a municipality's conclusion that Rhone's apartment building had not been properly maintained, and a subsequent municipal court demolition order, might be a taking ... or it might not be.
We won't get too far into the facts, except to say that Rhone argued that the city had it out for him, and that the municipal court judge who issued the demolition order was in a contractual relationship with the city by which the judge had to submit for approval all of the court's decisions to the city attorney (the very party pressing the nuisance claims against Rhone). Weird, but apparently a product of Texas law. Short story, according tot the court: "[a]ll of this, facially at least, is a declaration of a lack of independence of judge and city." Slip op. at 12. Yowza!
The district court deemed any pecuniary interest the judge may have had as "de minimis," but the Fifth Circuit noted that "[t]here is evidence that the City Attorney has final authority on what the order on his own petition for abatement would say." Slip op. at 13. Thus, the court ordered a "limited remand" to the district court for a determination of whether the municipal court's demolition order was or was not the product of independent decision-making. If it was, Rhone's constitutional claims would not survive. But "[i]f that premise changes, this opinion will as well." Slip op. at 13. In other words, if the judge's decisions were too tightly controlled by the city -- one of the parties to the very litigation the judge was deciding -- then there might be something there.
The court also rejected the city's argument that the demolition of the building rendered the takings claim moot. "Importantly, demolition of the apartment buildings does not eliminate a takings claims; indeed, it may create one. See Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162, 2167 (2019). This right allows for the property owner to have “some way to obtain compensation after” the government’s unconstitutional actions. Id. at 2168." Slip op. at 7.
So what did the court say about Rhone's takings claim? Jump forward to page 13 for this:
Our limited remand will keep open the issue of whether the Municipal Court’s determination that the property was a nuisance and allowed demolition was not the result of sufficiently independent decision-making. The remainder of the opinion is premised on the Municipal Court’s decision’s being a valid one. If that premise changes, this opinion will as well.Rhone challenges the district court’s dismissal of his Fifth Amendment takings claim, saying there are fact issues requiring a trial. A property owner may bring a Fifth Amendment takings claim under Section 1983 as soon as the government takes his property without just compensation. Knick, 139 S. Ct. at 2170. Rhone maintains he was subjected to a taking without compensation by the City’s imposing of unnecessary and expensive repair obligations before Rhone would be allowed to use his property; by requiring he keep the property vacant; and by interfering with his efforts to repair, sell, or otherwise address the identified deficiencies in the property. This claim relies on the City’s actions prior to the Municipal Court’s order of abatement that allowed the property’s demolition. Rhone’s legal argument includes that these compliance costs were invalid under the doctrine of unconstitutional conditions. See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013).
Slip op. at 13-14.
The court concluded that what Rhone was pressing was not really an unconstitutional conditions takings claim (because, after all, the city wasn't really forcing him to choose between two rights, but was merely telling him to stop using his property as a nuisance). But the court noted, that "[t]o be fair, Rhone is not disputing that." In short, the essence of his claim is that the city's safety officials who concluded his property was a nuisance should not have been given unreviewable authority to make that determination. See slip op. at 15.
In the end, this doesn't really look all that much like a takings claim after all does it? On that, the opinion sort of wanders away into other civil rights territory, without a clear statement of what happens to the takings claim after remand. Check out pages 15 and 16 if you doubt us. We think the takings claim survives, based on the court's earlier statement that "[i]f that premise [the judge/city relationship] changes, this opinion will as well." Slip op. at 13. But maybe not.
The common law litigation process was all about narrowing, winnowing, and processing claims by forcing them into predefined forms with their own remedies. Did that occur here? Hard to say.
Rhone v. City of Texas City, No. 22-40551 (5th Cir. Feb. 14, 2024)
