Here's the latest in a case (and issue) we've been following closely.
In Watson Memorial Spiritual Temple of Christ v. Korban, No. 24-0055 (June 28, 2024), the Louisiana Supreme Court unanimously affirmed the Court of Appeal, concluding the duty to actually pay just compensation for a taking is ministerial.
That may not seem like an earth-shattering conclusion. After all, since at least 1987, the U.S. Supreme Court has labeled the Just Compensation Clause as "self-executing" which means that if there's been a taking, there must be compensation. Must means must. At least that's what it means to us.
But as readers of this blog know, you can get a final judgment for inverse condemnation from a Louisiana court, but the defendant/taker retains the discretion whether to actually pay it, and the usual judgment-enforcement procedures are not available. That comes from this provision in the Louisiana Constitution:
Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.
La. Const. art. XII, § 10(c).
A judgment for just compensation is a civil money judgment, and you cannot get paid (or use the usual tools to compel payment) unless the taker appropriates the money. In short, at least in Louisiana the "requirement" to pay just compensation is interpreted by governments as more of a suggestion than an actual requirement.
That's what happened here. Property owners obtained just compensation judgments as the result of a successful inverse condemnation case against the Sewerage and Water Board of New Orleans. The judgment withstood the SWB's appeals. You'd think that would be the end of it, and the SWB would do its duty and provide the ordered compensation for the taking. But no. SWB didn't appropriate the funds to satisfy the owners' just compensation judgment.
After waiting, the owners filed a federal action asserting the SWB had taken private property without just compensation. When the federal courts were presented with the issue, they held that the property owners were merely trying to enforce the state court inverse condemnation judgment, and not their self-executing right to just compensation. And even though the state court judgment is an inverse condemnation judgment for just compensation and failure to pay makes it a (federally) unconstitutional taking, that makes no difference because federal courts are not in the business of enforcing state court judgments. Thus, the courts held, there's nothing that can be done to force a taker to, you know, actually pay compensation. You just have to rely on the good graces of the takers.
That didn't comport with the notion that payment of just compensation is a "must" and not a "if you feel like it" requirement. So even after the U.S. Supreme Court declined to take up the federal case, the property owners/condemnees went back to Louisiana's courts and sought a writ of mandamus and a writ of fieri facias, arguing that the duty to provide compensation for a taking is a ministerial, nondiscretionary duty, and thus a court can order a recalcitrant condemnor to pay up.
As we posted earlier, the Louisiana Court of Appeal agreed with the property owners: After a taking, providing just compensation is a ministerial duty. Pay up, or face the usual collection methods, SWB.
The Louisiana Supreme Court is right in the heart of the Vieux Carré.
Remember that next time you schedule a case in that court.
Not content with that outcome, the SWB sought discretionary review with the Louisiana Supreme Court, which agreed to hear the case. The unanimous opinion first noted the state constitutional provision above. But then also noted that the Louisiana Constitution (like its federal counterpart) makes the payment of compensation mandatory. See La. Const. art. I, § 4(b)(1) ("Property shall not be taken or damaged ...except for public purposes and with just compensation..."). Thus, the owners "are entitled to payment of just compensation[.]" Slip op. at 11.
The court next addressed "the narrow issue ... whether said payment may be judicially compelled." Slip op. at 11-12. If the duty to pay compensation after a taking is ministerial, a court may issue a writ of mandamus to compel performance of that mandatory duty. The opinion reviewed existing Louisiana decisional law, and distinguished those cases which held that payment of a civil judgment by the state or a local government is not a ministerial act, on the grounds that the just compensation requirement is different. A "specific constitutional or statutorily provided exception will overcome the mandates of La. Const. art. XII, § 10(C) and La. R.S. 13:5109 B (2)." Slip op. at 17. The just compensation requirement is one of those exceptions:
In the case sub judice, there exists an express constitutional provision that provides, in part: “Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.” La. Const. art. 1, §4(B)(1). This constitutional provision provides the authority, as was encompassed in our reasoning in Mellor, 370 So.3d 388, and Crooks, 359 So.3d 448, for a mandamus action against a political subdivision based on a judgment for inverse condemnation. For these reasons, we find the holdings of Lowther, 320 So.3d 369, and Jazz Casino, 223 So.3d 488, applicable to the case at bar; we further find that Mellor, 370 So.3d 388, and Crooks, 359 So.3d 448, although decided correctly under the facts and law, to be distinguishable from the case herein. A judgment for inverse condemnation, left unsatisfied, does not constitute the payment of just compensation. Therefore, we conclude, based on the mandates of La. Const. art. 1, §4(B)(1), that the payment of just compensation for a judgment arising from inverse condemnation is a ministerial, non-discretionary duty; therefore, mandamus may issue to enforce a final judgment for just compensation. Accordingly, via a mandamus action, the Neighbors may seek a court to compel the SWB’s compliance with this constitutional mandate.
Slip op. at 18.
Inverse condemnation is similar and indistinguishable from straight-up expropriation, and "both are afforded protections provided under La. Const. art. 1, §4(B)(1)." Slip op. at 19.
Two Justices separately concurred. Chief Justice Weimer wrote to argue that in addition to a mandatory legal duty to pay, the judgment creditor should also have to prove a "conscious indifference" on the part of the government to pay the judgment. Justice Griffin also wrote separately to note that "most provisions in the Declaration of Rights are self-executing, and use mandatory language (e.g., 'shall' and 'shall not'), [and] their enforcement is distinguishable from contact and tort." He concluded: "Plaintiffs herein seek mandamus of a self-executing, mandatory provision of the Declaration of Rights."
Our colleagues Kady Valois, Deb La Fetra (Pacific Legal Foundation), and Sarah Harbison (Pelican Policy Institute) filed this amci brief supporting the property owners on behalf our PLF and the NFIB Small Business Legal Center ("To require the very political subdivision that violated the property owners’ constitutional rights to first consent to this essential limitation on its power would eviscerate the constitutional mandate of any effectual meaning.").
A hearty congratulations to our friend and colleague Randy Smith and his team for this important victory.
Watson Memorial Spiritual Temple of Christ v. Korban, No. 24-0055 (La. June 28, 2024)
