A Proposal for Establishing
Specialized Federal and State "Takings Courts"
By John Martinez, Professor of Law
S.J. Quinney College of Law
at the University of Utah
Takings doctrine is a mess. This article proposes that we just accept that -- and establish specialized federal and state "takings courts" for adjudicating takings claims.
In 1978 the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. And in 2005, the Court abrogated a test for takings which it had followed for 25 years. Indeed, some scholars have even resigned themselves to embracing vagueness as a virtue in takings jurisprudence by conceding that "bounded uncertainty" is the best we can expect.
It therefore comes as no surprise that adjudication of takings claims in state and federal courts is also a sorry sight. Courts seem to lose track of even the most basic legal principles when adjudicating takings claims. One state court concluded that a statutory proceeding to condemn land for a highway brought by the state department of transportation prevented the landowner from asserting either state or federal constitutional takings claims in response, contrary to the elementary that a constitutional right cannot be abrogated by a statute.
As another example, some courts insist that if a governmental agency or official lacks eminent domain authority, then the agency or official cannot be held liable for a takings claim. On the contrary, it is the conduct of the government and its impact on the owner that matter, not whether the government had the authority to engage in the conduct. Otherwise, governmental defendants could simply harm property rights and claim lack of authority as a defense.
As a third example, courts often have difficulty distinguishing between the governmental conduct involved, on one hand, and the impact on the owner, on the other. Thus, courts often speak of takings settings as either "physical" takings or "regulatory" takings. In actuality, takings jurisprudence deals on one side, with government conduct that is either physical or non-physical ("regulatory," in that it restricts legal rights to use, exclude or transfer), and on the other side, with impact on the owner which is either physical or non-physical ("regulatory," in that it has an impact on the legal rights to use, exclude or transfer). Since greater protection to property owners is provided from government conduct which has "physical" impacts, it is crucial to properly identify and distinguish those situations.
Courts are also confused at the very basic level of whether the mens rea of the governmental agency or official involved matters. Some courts insist that only intentional conduct aimed at acquisition of property can amount to a taking. Many courts conclude that at least negligent governmental conduct is required before a taking can be found, and consequently, that non-negligent behavior by the government which causes harm to private property owners is not actionable. Quite the contrary, "fault," in the form of intentional, reckless or negligent conduct, need not be shown in order to impose liability for takings: takings are strict liability claims.
But this is not "yet another takings article" seeking to achieve greater certainty and coherence in takings doctrine. Instead, the article proposes that we just accept that takings law is incoherent, complex and intractable--and that we establish specialized federal and state takings courts for adjudicating such claims.
Specialized courts have long been a hallmark of American jurisprudence. We have specialized courts for many particular areas of law, including family law, small claims, and landlord-tenant disputes. Specialized federal and state "takings courts" would be consistent with that tradition of establishing special tribunals for specialized areas of law.
But we should not simply establish new federal and state takings courts without a metric for evaluating their success or failure. Thus, once the need for a new system for adjudicating takings claims is established, we should use a critical analytical framework to evaluate the ultimate success or failure of such new specialized federal and state "takings courts".
Part I of this article reviews existing federal and state systems for adjudicating takings claims. Adjudication of takings claims against the Federal Government in the United States Court of Federal Claims and in the federal district courts is first described and critically analyzed. Adjudication of takings claims against state and local governments, in federal courts and state courts of general jurisdiction, is then described and evaluated. Adjudication of takings claims against state and local governments in more particularized state courts of claims are then considered. Part I concludes with a brief mention of state commissions and boards which also deal with takings claims against state and local governments.
Part II of the article sets out a critical analytical framework for structuring and evaluating the ultimate success or failure of specialized federal and state "takings courts".
Part III sets out the critical features of a proposed system of specialized federal and state takings courts and examines each of these features in light of the suggested critical analytical framework. The article proposes that there should be separate specialized federal and state takings courts with exclusive subject matter jurisdiction over takings claims. The article also suggests that takings claimants should be required to submit a Notice of Takings Claim to the governmental agency or official involved in order to secure a final administrative decision and denial of compensation before such claims are ripe for judicial adjudication. Finally, the article proposes that no jury trial should be available in such specialized federal and state takings courts, but that special masters, commissioners or magistrates should be freely utilized for the compilation of a factual record necessary for a complete adjudication of takings claims by such courts.
- Takings; Specialized Courts
Available at: http://works.bepress.com/john_martinez/1/