It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.
–Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.)
The Framers vested “[t]he judicial power of the United States . . . in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1. The Framers also provided that this power “shall extend to all cases . . . arising under this Constitution . . . .” Id. § 2. The exercise of this power is not optional: as Chief Justice Marshall pronounced in Cohens, the federal judiciary has “no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.” Cohens, 19 U.S. (6 Wheat.) at 404.
Lest the Chief Justice be accused of rhetorical excess, this statement in Cohens was not some stray dictum but the expression of a central proposition that has been reaffirmed time and again. “[T]he courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends.” Hyde v. Stone, 61 U.S. (20 How.) 170, 175 (1857). “They cannot abdicate their authority or duty in any case in favor of another jurisdiction.” Id.
“This principle has been steadily adhered to by th[e] Court,” and it would continue to be. Chicot County v. Sherwood, 148 U.S. 529, 534 (1893). “When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.” Wilcox v. Consol. Gas Co. of New York, 212 U.S. 19, 40 (1909). After all, “[t]he right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.” Id. And again, “it has been steadily held” that “a federal court may not” “abandon its jurisdiction over a case of which it had cognizance, and turn the matter over for adjudication to the state court.” McClellan v. Carland, 217 U.S. 268, 281 (1910).
This remains true. Just a few terms ago, the Court unanimously reaffirmed “the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (cleaned up). In case anyone missed it there, the Court repeated itself later that term, again unanimously recognizing “the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (cleaned up).
The Court hardly could have made it clearer. When a case properly “arises under the Constitution,” then federal jurisdiction extends to such a case, and a court cannot opt out from adjudicating the matter, even if “doubts” or “difficulties” accompany doing so. Cohens, 19 U.S. (6 Wheat.) at 404.
Except, not exactly. “In the years following Marshall’s 1821 pronouncement, courts have sometimes lost sight of his admonition . . . .” Marshall v. Marshall, 547 U.S. 293, 299 (2006). See, while acknowledging “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” the Court has nevertheless concluded that “exceptional circumstances” exist where federal courts may opt to decline jurisdiction. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-18 (1976). This, of course, does not sit well with the view that doing so is “treason to the Constitution.” Cohens, 19 U.S. (6 Wheat.) at 404.
Artfully understating the point, Justice Stevens once remarked that it is “particularly anomalous” to conclude that a party “may not litigate a federal claim in a federal court having jurisdiction thereof.” Colorado River Water Conservation District, 424 U.S. at 826 (Stevens, J., dissenting). Indeed, as one commentator recently observed, “If one takes seriously the Court’s avowal that . . . federal courts have a virtually unflagging obligation to exercise jurisdiction when it is given, these prudential limits occupy a precarious place.” Fred O. Smith, Jr., Undemocratic Restraint, 70 Vand. L. Rev. 845, 849 (2017).
Perhaps we were supposed to take Cohens and its progeny, er, “seriously but not literally,” as it were, because “self-imposed limits on federal judicial power are rather common.” Smith, supra, at 853. Particularly anomalous indeed.
Take, for instance, what happens when a property owner alleges that her private property was taken without just compensation, in violation of the Fifth (and/or Fourteenth) Amendment(s). This would undoubtedly be a “case . . . arising under th[e] Constitution,” per Article III. If the property owner then seeks redress in federal court, that court has a “duty to take such jurisdiction,” because “[t]he right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.” Wilcox, 212 U.S. at 40. Right?
Wrong. According to the Court, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson County Planning v. Hamilton Bank, 473 U.S. 172, 195 (1985). “Stated differently, a Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation,” and it only becomes “clear,” a la the Williamson County rule, after a plaintiff has sought relief in state court from an uncompensated taking and been denied recompense. Horne v. Dep’t of Agric., 133 S. Ct. 2053, 2062 (2013). In conjunction with 28 U.S.C. § 1738, which requires state-court judgments to be given preclusive effect in federal court, this state-litigation requirement means, in essence, that property owners are “forced to litigate their [Fifth Amendment] claims in state court without any realistic possibility of ever obtaining review in a federal forum.” San Remo Hotel, LP v. City and Cty. of San Francisco, 545 U.S. 323, 327 (2005).
Wait, what? Hasn’t it “been steadily held” that “a federal court may not” “abandon its jurisdiction over a case of which it had cognizance, and turn the matter over for adjudication to the state court”? McClellan, 217 U.S. at 281.
Perhaps one could harmonize this apparent contradiction. Maybe the issue is that until a property owner seeks compensation in state court for a taking, there is no “case” over which a federal court has “cognizance”? Id. After all, before a federal court may exercise jurisdiction under Article III, the plaintiff must have a demonstrable injury-in-fact that is “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted). Perhaps what the Court meant was that, until a property owner seeks compensation (and is denied it) in state court, there is no “actual or imminent” injury under the Fifth Amendment, because it is not clear that the state won’t pay for the property.+++
Setting aside the fact that this is like saying a thief hasn’t actually robbed you until you demand your stolen stuff back and he refuses to give it, on this reading, at least there would be no tension between the state-litigation rule in Williamson County and the “virtually unflagging obligation” recognized in Cohens and its progeny. On the contrary, Williamson County would be a straightforward application of Cohens, because, after all, the Court may not “usurp [jurisdiction] which is not given.” Cohens, 19 U.S. (6 Wheat.) at 404. The Williamson County Court’s conception of injury/standing could be faulted, see Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890) (emphasis added) (noting that a property owner is “entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed”), but at least there wouldn’t be such glaring discord between its rule and the rule of Cohens et al.
The Court, however, does not read Williamson County this way: “A ‘Case’ or ‘Controversy’ exists once the government has taken private property without paying for it. . . . whether an alternative remedy exists does not affect the jurisdiction of the federal court.” Horne, 133 S. Ct. at 2062 n.6. See also Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Environmental Protection, 560 U.S. 702, 729 n.10 (2010) (“[T]he claim here is ripe insofar as Article III standing is concerned since . . . petitioner has been deprived of property.”). The Williamson County rule is not jurisdictional but rather amounts to “independent prudential hurdles” that, in many cases, effectively prevent a party from seeking redress in federal court under the Takings Clause. Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733-34 & n.7 (1997). These “hurdles” are, to say the least, “in some tension” with the principle that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Lexmark Int’l, Inc., 134 S. Ct. at 1386 (cleaned up).
The Court recently granted cert to decide whether it “should reconsider the portion of Williamson County . . . that requires property owners to exhaust state court remedies to ripen federal takings claims.” (H/T to the fine folks over at Pacific Legal Foundation for yet another cert grant!). It will finally answer “whether there are any justifications for the ahistorical, atextual and anomalous state-litigation rule.” Arrigoni Enters., LLC v. Town of Durham, 136 S. Ct. 1409, 1412 (2016) (Thomas, J., dissenting from denial of certiorari).
Ms. Rose Mary Knick lives on a 90-acre plot of land in Scott Township, Lackawanna County, Pennsylvania (not to be confused with one of the other four Scott Townships in Pennsylvania!). Cert. Pet. at 5. Due to the longstanding practice of literal backyard burials in Pennsylvania, there are old, unmarked or dilapidated graves on private lands in the county. To allow access to these graves, the township passed an ordinance that required property owners to allow the public to enter private property if a cemetery is located therein, defined as “[a] place or area of ground, whether contained on private or public property, which has been set apart for or otherwise utilized as a burial place for deceased human beings.” Id. at 6. This imposed a public right of way on Ms. Knick’s property, which (allegedly) contained a burial site. However, because Ms. Knick did not allow public access to her property, she was charged with violating the ordinance.
She then sued in state court, seeking a declaration that the ordinance amounted to a taking, among other things. Id. at 8. The township withdrew its earlier notice of violation, however, and the state court essentially held that the claim was moot and dismissed it. Id.
The ordinance was still in effect, however, and Ms. Knick had been once again cited for violating it, so Ms. Knick turned to federal court to seek a declaration that the ordinance amounted to a taking for which she was entitled to compensation. Id. at 9. Both the district court and the Third Circuit concluded, however, that the claim was unripe under Williamson County and that Ms. Knick would have to go back to state court to seek relief. Id. She petitioned the Supreme Court to consider overruling Williamson County, and it has now granted cert to address this issue.
As Ms. Knick points out in her petition, the judge-made Williamson County state-litigation rule, coupled with San Remo preclusion, undermines the animating purpose for federal civil rights laws, which were created “to provide a federal judicial forum for the redress of wrongful deprivations of property by persons acting under color of state law.” Lynch v. Household Fin. Corp., 405 U.S. 538, 543 (1972). Williamson County has created an “unpredictable and draining . . . maze” for litigants seeking to vindicate their constitutional rights. Cert. Pet. at 19.
Furthermore, Williamson County can’t be right even on its own terms. “In almost all takings cases, the state court is not the government body taking property, nor does it bear compensatory liability for a taking.” Id. at 21. It makes no sense, then, to say that a taking is not complete until a state court decides that no just compensation is warranted. “It is the acts and omissions of the body taking the property that should determine if the taking is uncompensated.” Id. What the plaintiff would seek in state court is what the plaintiff would seek in federal court: a declaration that the state actor had violated the Fifth Amendment by taking private property without providing just compensation, and an award of said compensation. There’s nothing to “ripen” at the state level.
In addition to these points, however, there looms in the background a more fundamental issue: Williamson County‘s Article III (il)legitimacy.*** If “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging,” then Williamson County is quite the sore thumb. Lexmark Int’l, Inc., 134 S. Ct. at 1386 (cleaned up). “[T]he courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends,” and “[t]hey cannot abdicate their authority or duty in any case in favor of another jurisdiction.” Hyde, 61 U.S. (20 How.) at 175. To do so, after all, would be “treason to the Constitution.” Cohens, 19 U.S. (6 Wheat.) at 404.
If we are to take that last point seriously and literally, Ms. Rose Mary Knick should have no problem getting nine votes to overturn Williamson County.
For further discussion, see Joel S. Nolette, Last Stand for Prudential Standing? Lexmark and Its Implications, 16 Geo. J.L. Pub. Pol’y 227, 239-41 (forthcoming 2018) (calling for reconsideration of Williamson County in light of Lexmark‘s reaffirmation of the aforementioned “virtually unflagging obligation” recognized since at least Cohens), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3144469.
+++ Had the Williamson County Court simply concluded that the plaintiff did not have standing for want of an injury-in-fact because the government hadn’t reached a “final decision” concerning the applicability of the regulations at issue to the property in question, the decision would be unremarkable. Williamson County, 473 U.S. at 192-94. There obviously can be no “taking” if the government hasn’t yet decided whether it intends to take the property (either directly through eminent domain or indirectly through regulation). If there’s no taking, there’s no cognizable Fifth Amendment injury. Lujan, 504 U.S. at 560.
*** Now-Texas Solicitor General Scott Keller observed in his student note back in 2006 that “one could argue, in accordance with Chief Justice Marshall’s opinion in Cohens v. Virginia, that the Court should simply not engage in any judicial jurisdiction stripping,” which is what he considered Williamson County to be. Scott A. Keller, Note, Judicial Jurisdiction Stripping Masquerading as Ripeness: Eliminating the Williamson County State Litigation Requirement for Regulatory Takings Claims, 85 Tex. L. Rev. 199, 225-26 (2006). At the time, however, he felt “it is unnecessary to make this argument to prove that the Williamson County State Litigation prong should be eliminated.” Id. at 226. Perhaps, in light of Lexmark, now’s the time to make that argument.