- Thomas W. Merrill, Anticipatory Remedies for Takings, 128 Harv. L. Rev. 1630 (2015).
- John D. Echeverria, Eschewing Anticipatory Remedies For Takings: A Reply to Professor Merrill, 128 Harv. L. Rev. F. 202 (2015).
For academics, takings jurisprudence is a continuing source of scholarly fodder and intellectual challenge. However, for the lawyers and judges involved in takings litigation, the procedural barriers created by the 1985 decision in Williamson County Reg. Plan. Agency v. Hamilton Bank and subsequent cases have resulted in a “ripeness” mess, frustrating the access of property owners to federal courts. Michael Berger, a top takings litigator from Manett and Phelps, has called this a “Catch 22” rule1 because property owners are required to first ripen their claims by filing suit in state court, but are then precluded from filing suit in federal court because the state decision is res judicata.
In response to a long-standing call for reform of this formidable hurdle for litigants, Professor Thomas Merrill has suggested a possible solution encompassed in the title of his new work, Anticipatory Remedies for Takings. The new remedial system proposed by Merrill works alongside the eventual just compensation remedy.
Professor Merrill identifies two lines of Supreme Court decisions that address the appropriate remedies for a Takings Clause violation. He calls these lines of authority the A line and the B line. The A line requires the takings claimant to pursue a just compensation claim in the court that is designated to provide compensation. This line of cases requires that claims against the federal government be brought to the Federal Court of Claims based on the “Tucker Act doctrine” and that claims against state and local governments be brought in state court as required by the “Williamson County doctrine.”
In the B line cases, the Court adjudicates takings claims even when the claims have not been brought first to a court having the authority to award just compensation. Merrill asserts that the trend in the Supreme Court is to follow the B line. He uses the Court’s decisions in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Horne v. Department of Agriculture, and Koontz v. St. Johns River Water Management District, to illustrate his theory.
The anticipatory remedies proposal is addressed primarily to regulatory takings claims and it encourages courts to principally use the declaratory judgment remedy to “resolve the antecedent question of whether the government action constitutes a taking” while leaving the actual award of just compensation to the appropriate compensatory court. (p. 1650.) Merrill argues that the A line of authority (most distinctly identified in Williamson County) is flawed in finding that the Takings Clause is not violated until just compensation is denied.
Instead, the anticipatory remedies proposal would allow a Takings Clause violation to be litigated “when the property is taken and the government does not offer to pay compensation.” (p. 1647.) This would be similar to the “rule implicitly followed in eminent domain proceedings . . . that a violation of the Takings Clause is complete when the government condemns property without offering to pay just compensation.” (p. 1648.)
Professor John Echeverria responded to Professor Merrill’s solution to the procedural takings litigation mess in Eschewing Anticipatory Remedies for Takings: A Reply to Professor Merrill. Echeverria finds significant disadvantages in adopting Merrill’s anticipatory remedies proposal as adoption would: 1) “risk demeaning the Court of Federal Claims and the state courts;” 2) “alter the established balance between property owners and local governments in takings litigation;” 3) “inject significant new kinds of uncertainty into takings litigation;” and 4) “create new uncertainty about the nature and scope of the substantive protections provided by the Takings Clause.” However, most of Professor Echeverria’s concerns seem to focus on the shift in power from local governments to property owners in regulatory takings litigation.
Without wading into the pros and cons of Professor Merrill’s proposal, it is certainly clear that his essay (together with Professor Echeverria’s response) illuminates how all of the procedural pieces of the current takings litigation morass may fit into one overall structure. The anticipatory remedies proposal provides a framework for understanding the overlapping puzzles of ripeness, jurisdiction, justiciability, mootness, sovereign immunity, and standing as they relate to takings claims.
As an academic, I expect to reread Merrill’s essay every time I teach takings litigation in my Land Use class. I anticipate that it will allow me to speak more intelligibly about the confusion that exists and how that confusion might eventually be overcome when brilliant minds seek solutions. Merrill’s work should also provide guidance to litigators and judges confronting the procedural complexity in takings cases when framing their arguments to resolve constitutional rights under the Fifth Amendment Takings Clause and for finding ways to avoid claims being bounced between (and out of) state and federal courts.
- See, e.g., Michael M. Berger, Supreme Court Bait & Switch: The Ripeness Ruse in Regulatory Takings, 3 Wash. U. J.L. & Pol’y 99 (2000).