Here's the latest takings cert petition. This one seeks review of the Seventh Circuit's affirming the district court's sua sponte abstaining from considering a property owner's challenge to a Wisconsin municipality's exercise of eminent domain.
The court concluded that federal courts could -- but shouldn't -- consider the owner's public use challenge because there were ongoing parallel state proceedings (this this case, an eminent domain case in a Wisconsin court). That alone doesn't seem terribly controversial.
But as the petition points out, there was not actually a "parallel" state court proceeding here, because Wisconsin law apparently doesn't permit an owner to challenge public use in the proceeding the Village filed. As the Petition puts it:
The Seventh Circuit Court of Appeals’ particularly broad approach to the Colorado River doctrine stands out among the circuits. In the case at hand, the court of appeals expanded the doctrine even further by effectively overruling the requirement of parallel proceedings. It was clear legally that the state and federal proceedings were not parallel, yet the district court still dismissed the case. In reviewing the district court’s decision, the Seventh Circuit admitted that the two cases presented different issues and that regardless of how the state case was decided, the public use claim would go unanswered, however, the Seventh Circuit still concluded that the two cases were “parallel.”
Pet. at 7.
Ah, we get it: parallel doesn't mean, you know, exactly parallel.
What happened was that the Village took one position on whether the taking was supported by a public use or purpose, and the time for challenging that position lapsed under Wisconsin procedures. You understand that often, property owners are required by condemnation procedures to immediately challenge public use or necessity, and are subject to very short statutes of repose after which you lose the claim. Well here, that apparently occurred...but later and just before the valuation trial was set to commence, the Village said or did something that revealed its hand: the real reason for the taking was not a public use or benefit.
Too late to raise the new issue in state court, the owners filed a section 1983 claim in federal court. The district court on its own abstained, and as we noted above, the Seventh Circuit affirmed, even though it expressly acknowledged that the case didn't squarely fit into the Colorado River abstention doctrine (or any other). This was just a case the federal court shouldn't decide:
That said, the federal and state litigation present different issues. In state court, Antosh and Lashley spent two years contesting the amount of compensation owed for the taking. In federal court, they urge that the taking has been illegitimate all along, because the Village seized their property for a private use under the guise of a public one. So the two suits are not perfectly symmetrical: regardless of how the dust settles in state court, their public use takings claim in federal court will go unanswered.
This lopsidedness, however, is not fatal to a finding that the actions are parallel.
Here is the Question Presented:
Whether the court of appeals erred in affirming the district court, when the Village of Mount Pleasant admitted that it had used eminent domain to take private property for a private purpose (the Foxconn Project), and the district court applied the Colorado River doctrine sua sponte even though the state proceedings were not parallel because the state proceedings were statutorily barred from addressing the Petitioners’ Fifth Amendment public-use claim as well as other constitutional issues.
Two comments.
First, after the Supreme Court decided Knick and re-opened the federal courthouse doors that Williamson County had wrongfully slammed closed for three decades, we wrote that we didn't think that was the end of the story, because government wasn't going to go quietly into that good night and, you know, just sit there and allow property owners to press their claims in federal court.
We also thought that federal courts were not going to warmly embrace their role as civil rights forums, but would maintain the hoary trope that this land usey stuff was beneath their dignity (after all, we're not super zoning boards of appeals, are we?).
This petition is the latest chapter. We filed one in a roughly similar case not too long ago. Maybe this latest one will get more traction.
Second, we take a bit of issue with the way the lower courts characterized the property owners' approach, effectively blaming the owners for not acting sooner (how, exactly could they have challenged public use when the Village said its purpose was "A," and only after the deadline to challenge lapsed said it was "B"?), and subtly and not-so-subtly chastising the owners for doing this at the last minute.
To us, this goes back to Justice Thomas and his thought that if a federal court has jurisdiction, it darn well has the obligation to exercise it. The hands-off approach the federal court took here does not easily fit into any of the existing (and limited, as we understand them) doctrines of abstention, when concerns about comity, respect, and "Our Federalism" counsel a federal court to hold off on its Article III duties for now. Also, are not property owners who are scrapping to hold on to their property against the sovereign's nearly unassailable power entitled to do anything and everything they can to make it happen? We'd think so, even thought courts and condemnors call this bad faith and being greedy. Why should an owner have to "respect" the state court, when she is fighting for her property, and is there an obligation to favor judicial efficiency over her fundamental rights? We find the federal courts' framing of the narrative here to be quite offensive.
Stay tuned here, or follow along on the Court's docket.
Petition for a Writ of Certiorari, Antosh v. Vill. of Mount Pleasant, No. 24-186 (U.S. Aug. 21, 2024)
