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Real Estate Law
Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation
On June 25, 2007, the Supreme Court of the United States decided Wilkie v. Robbins (06-219.) The case was barely reported in the media but was anticipated by property rights activists since it was the first significant property rights case decided by the Supreme Court since Kelo v. City of New London. See blog post of April 1, 2007, on government retaliation and private property rights.
It is clear from the colloquy with counsel during oral argument and the concurring opinions of Justices Thomas and Scalia that the Court had no intention of expanding the Bivens doctrine to include alleged violations of a plaintiff’s Fifth Amendment rights. But what makes Wilkie particularly troubling is the clear pattern of harassment against Robbins by the BLM over the course of five years. While the alleged violations by BLM employees against Robbins have administrative and state court remedies, the problem remains that these could only be pursued piecemeal, at the great expense of time and money by the property owner. BLM, on the other hand, had the full weight and resources of the federal government on their side. The majority grounded their opinion in part on the imaginary horribles: i.e., a Bivens claim would give rise to a flood of similar cases in the district courts, and the Court felt there were ample options available to remedy the alleged wrongs. Moreover, the Court suggested that it was the role of the Legislature to fashion a remedy for Robbins rather than the role of this Court to expand the Bivens doctrine.
The question remains: Where does an aggrieved citizen like Robbins seek redress? Administrative and state judicial actions for individual incidents are a far from satisfactory remedy. However, this is precisely what the Court suggested, and it is consistent with the Court’s decision in San Remo Hotel L.B. v. City and County of San Francisco, 125 S.Ct. 2491 (2005). The message is clear: A property owner must seek relief for Fifth Amendment property rights violations in the state court first and the federal court will follow the state court decision.
The Supreme Court's decision in Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), requires property owners to exhaust available remedies for just compensation in state court before the property owner can file suit in federal court. Chief Justice Rehnquist noted in San Remo v. City and County of San Francisco, 125 S.Ct. 2491 (2005) that “[i]t is not clear to me that Williamson County was correct in demanding that . . . the claimant must seek compensation in State court before bringing a federal takings claim in federal court.” Even so, the Court decided in San Remo Hotel that once a property owner litigates in state court, the Court will not create an exception to the full faith and credit statute in order to provide a federal forum for litigants who seek to advance federal takings claims that depended on issues identical to those previously resolved in the state courts.
Wilkie v. Robbins further insures that individuals with federal property rights claims will find the doors to the federal courthouse shut, and wholly dependent on state courts for remedies. To set Fifth Amendment rights apart from the other rights guaranteed in the Bill of Rights is unfair to all Americans. If this case involved speech, search and seizure, or religion, there would be a federal remedy. Why is ownership of property treated differently? Federal legislation reform remains the only hope for an aggrieved property owner and it must be accomplished.
Note: This is an excerpt from an article which will appear in the New Jersey Law Journal on October 10, 2007.
From New Jersey Eminent Domain Law Blog posted 2007-09-04.