Judicial Jurisdiction Stripping Masquerading as Ripeness: Eliminating the Williamson County State Litigation Requirement for Regulatory Takings Claims*
Keller, Scott A., Texas Law Review
The most high profile case in the 2004-2005 United States Supreme Court term was Kelo v. City of New London,1 a case that interpreted the substantive reach of the Fifth Amendment's Takings Clause.2 While the national media focused on the expansion of these substantive rules,3 the 2004-2005 term also produced an overlooked case addressing the controversial procedural rules for claims arising under the Takings Clause: San Remo Hotel, L.P. v. City of San Francisco.4 San Remo Hotel addressed whether to make an exception5 to Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.6
Twenty years ago, in Williamson County, the Court created a two-prong test to determine whether a federal takings claim is ripe.7 First, for a federal takings claim to be ripe, there must be a final decision by the government entity enacting regulations (the Final Decision prong).8 Additionally, the second prong-which is the focus of this Note-requires plaintiffs bringing as-applied regulatory takings claims9 to litigate their claims in state court for their claims to be ripe (the State Litigation prong).10 When combined with preclusion doctrines, the Williamson County State Litigation prong prevents a substantial majority of takings plaintiffs from litigating their claims in federal court.11 While the Takings Clause has been relegated to this inferior position through procedural rules,12 almost any other constitutional claim can bypass the state courts and be heard immediately in federal court.13 Ultimately, the San Remo Hotel Court refused to create an exception to Williamson County.14 However, Chief Justice Rehnquist wrote an opinion concurring in the judgment arguing that the Williamson County State Litigation prong should be reexamined in a future case, even though San Remo Hotel did not squarely present the opportunity for such a reexamination.15
This Note argues that Chief Justice Rehnquist was correct-the Williamson County State Litigation prong should be reexamined and eliminated. Part II examines the background of the Williamson County takings ripeness test, preclusion doctrines preventing takings plaintiffs from suing in federal court, and Chief Justice Rehnquist's concurrence in San Remo Hotel. Then, this Note makes two separate arguments. First, Part III argues that the Williamson County State Litigation prong should not be viewed as a ripeness rule, but rather as judicial jurisdiction stripping.16 Second, Part IV argues that this judicially developed rule should be eliminated because the Williamson County State Litigation prong is not adequately justified on federalism grounds-particularly in light of countervailing separation of powers concerns.
The arguments in Parts III and IV are conceptually distinct: one could argue that the Williamson County State Litigation prong is not a ripeness rule (agreeing with Part III) while also arguing that the State Litigation prong should be retained (disagreeing with Part IV). This distinction is important because virtually none of the commentary on Williamson County has questioned its status as a ripeness test17 or suggested that Williamson County be analyzed under the framework of judicial federalism.18 Thus, even if there is disagreement about the ultimate conclusion that the Court should eliminate the State Litigation prong (as I argue in Part IV), the debate over Williamson County would be greatly clarified by accepting that the State Litigation prong is a judicially developed jurisdiction stripping rule and not a ripeness rule (as I argue in Part III).
A. The Williamson County Ripeness Test for Regulatory Takings Claims
In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court established a two-prong test to determine whether a federal regulatory takings claim is ripe.19 First, Williamson County created a Final Decision prong: a federal regulatory takings claim is not ripe "until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue. …