Just Compensation: A Suggestion or a Requirement?

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum Conference Call. This afternoon's topic is titled "Just Compensation: A Suggestion or a Requirement?" My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Robert McNamara, who is a senior attorney at the Institute for Justice. We also have Daniel Woislaw, who is an attorney for the Pacific Legal Foundation. After our speakers give their opening remarks, we will then move to an audience Q&A.

 

      Thank you for sharing with us today. Bob, the floor is yours.

 

Robert J. McNamara:  Thanks very much for the introduction and for the kind invitation.

 

      So the question presented today, I guess, is does the government have to pay you when it takes your stuff? And I would forgive you if you thought that was a boring question, a question that has long been settled. Now, the Fifth Amendment says, "...nor shall private property be taken for public use without just compensation." The Supreme Court has held that the Just Compensation Clause is self-executing, that it doesn't require a statute to put it into effect, that it prescribes a remedy, and so that should be the end of it, right? And unfortunately, it is not.

 

      We continue to litigate this question largely because there is a set of dicta in some older Supreme Court cases saying that it's not a Fifth Amendment injury for the government to take your property without immediate compensation, that as long as compensation is certain to happen in the future, the federal courts aren't going to get involved and deal with the fact that you haven't been compensated yet.

 

      And this is the principle that animated the Supreme Court's much-maligned decision in Williamson County, which held that property owners couldn't file a taking suit in federal court until they had first attempted to obtain compensation in state court. That's a doctrine the Supreme Court abandoned just this past term in Knick v. Township of Scott. And the Knick case said, "Wait a minute. If the government takes your property and you don't have just compensation today, that seems like a constitutional injury today. The government could cure it tomorrow by paying you your just compensation, but you certainly have an injury right now."

 

      So again, you would think that's the end of it, right? Like, we've all come to this basic understanding that taking property without compensation is a Fifth Amendment injury, and not for nothing, but correctly so.

 

      The principle that when the government takes your stuff it has to give you compensation right away is not newfangled. It dates back not just to the Fifth Amendment; it dates back to Magna Carta. A lot of people think that the big property rights dispute about Magna Carta was about whether the government has to pay you for your stuff. And people frequently trace the Just Compensation Clause to Magna Carta for that reason.

 

      But the dispute that animated Magna Carta was actually a little different. No one disputed that when the government took your stuff it had to pay you. At the time, the government's power to take your stuff was called purveyance, and it came up because the king's court would travel a lot. And it had the power of purveyance. It had the power to forcibly purchase corn or whatever it needed to maintain itself as it traveled. And it was really rough on the barons because, suddenly, the king and his whole court would show up, and they would demand your corn so the court could eat and continue the business of government—which I think was largely hunting at the time, but still.

 

      And the problem was not that the king said he didn't have to pay you. The king admitted he had to pay you, but the crown would pay you in what was called Exchequer tallies. An Exchequer tally was kind of a brilliant way of recording debt. They would mark the debt on a stick. They would put notches in a stick, and then they would divide the stick in half. You would get half the stick, and the Exchequer would keep half the stick. So no one could forge a debt with the king. They'd have the other half of the stick. And the problem with an Exchequer tally is you couldn't sell it. You couldn't go to a third party and say, "I promise you, the Exchequer is holding the other half of this stick. So just give me gold for the stick." No one's going to buy that for you.

 

      So if you were a baron and King John came to town, King John ate all your corn, went back, went to somebody else's court, and you were left with a pile of sticks that you couldn't turn into gold or corn or anything else. So what Magna Carta says is if the crown is going to take property, the crown has to pay for the property in specie, immediately. If the king is going to take your corn, the king has to give you gold for the corn, not sticks. And that is the principle of the Just Compensation Clause. That was the problem with Williamson County, that's what Knick got correct, and that is, weirdly, what federal courts are continuing to get wrong today.

 

      Which brings me to the case of the Violet Dock Port. Violet Dock Port is a Louisiana business that is what it sounds like. It ran a thriving port business in Louisiana, a port business so thriving that the local port authority decided to condemn it. They decided to condemn it to run the port business for themselves as a for-profit port business. That sounds like a challengeable taking, and Violet Dock Port litigated about whether that was an appropriate use of eminent domain. The government prevailed, and they went to trial and were awarded millions of dollars in compensation. It was an incredibly valuable business that the government was taking.

 

      The problem is the Louisiana courts have consistently held that they lack any compulsory power to force the other branches of government to give you money. In their view, this is a separation of powers concern. The court can't order the executive to disgorge money that has not been appropriated by the legislature. The court cannot order the legislature to make an appropriation. So if you have a judgment against the State of Louisiana, that's marvelous. And you have to go to the legislature and beg the legislature to pass a law appropriating money for the state to give to you. Which, I will note in passing, is a thing you can do anyway. If you feel like it, you can just hire a lobbyist and ask the State of Louisiana to pass a bill appropriating millions of dollars to you. You don't need the judgment; the judgment doesn't do anything for you there.

 

      So Violet Dock Port sued in federal court. And they said, "Hey, the state took our property. They undeniably took our property. Here's the condemnation judgment. But the condemnation judgment is unenforceable. We have not been paid. We have not succeeded in getting the Louisiana legislature to appropriate money for this, notwithstanding the fact that what the state took is a for-profit business that continues to generate revenues for the state that they could just give to us. And so what's happened is our property has been taken without just compensation." And the federal district court dismissed their claim, and said "No, no, no. You don't have an injury yet. The Fifth Amendment doesn't require immediate compensation; it just requires eventual compensation."

 

      So Violet Dock Port is up on appeal right now in the Fifth Circuit. We at I.J. have filed an amicus brief, largely written by my brilliant colleague Jeff Redfern, pointing out that essentially what the district court is signing off on is exactly the system that got King John's barons so angry in the runup to Magna Carta. The State of Louisiana can condemn your property, and in compensation, it gives you a judgment against the state—a judgment against the state that has no cash value, that can't be enforced, that can't be turned into gold or corn or specie, that, at the most, could maybe be used to offset your tax debt to the State of Louisiana should you stop paying your taxes. It's exactly the problem of having a stick that can't be redeemed with anyone but the government itself. It's not real money. It's not what Magna Carta or the Just Compensation Clause require.

 

      So federal courts have to be there as a backstop to enforce the purportedly self-executing Fifth Amendment guarantee of just compensation. And one problem you frequently see -- this is an issue that sort of alarmingly comes up again and again. I talk to practitioners in a lot of states who are flabbergasted to learn this. You know, in a lot of states, if you get a judgment against the government and the government doesn't pay, you just have all the ordinary compulsory processes of the court. Like, you go and you put a lien on city hall. And if there's a lien on city hall, you get paid. And it's flabbergasting to them that there are jurisdictions where courts say they can't do that, but there are.

 

And it's an issue that's largely been dodged by the federal courts because whenever this comes up—and it's come up in at least the Sixth Circuit and the Ninth Circuit before—courts, understandably, are very hesitant about cases where states are being sued in federal court, where state sovereign immunities are at issue. And what they say—both the Sixth and the Ninth Circuit have said this—is, "Look, federal courts aren't going to sit and hear this claim against the state of wherever. But we don't need to worry about the fact that this is intentioned with the fact that the Just Compensation Clause is self-executing because we're quite sure state courts are going to do their job. State courts would hear these claims; state courts would enforce your rights. And so because you can enforce your just compensation rights in state courts, it's not a fatal constitutional problem that the federal courts aren't going to hear your claims." And I think what we're seeing is that's just not true.

 

      I mean, one, I'm not sure it's true just as a matter of basic, federal constitutional law. The federal Constitution may actually not require states to have courts in the first place. If the State of Louisiana wants to abolish its judicial system, it can probably do that as a matter of the U.S. Constitution. But if it's not going to have a functioning court system, any time it exercises any sort of compulsory power against someone, whether it takes their land for eminent domain or puts them in jail without access to a court, that person's going to have federal claims of right, federal claims of right that are going to have to be heard by federal courts.

 

      But it's also just not true as a practical matter. I understand, sitting in your chambers as a federal judge, thinking, "Obviously, my state court colleagues are going to do the right thing. They're going to enforce federal constitutional rights. They're not going to read the Takings Clause out of the Constitution." But what we're seeing, at least in Louisiana, is that state courts actually feel like they are compelled to do that, that they are compelled to ignore basic takings rights. And it's an issue that's playing out not just in the Fifth Circuit and in the federal courts. There's parallel litigation in the states themselves as state courts try to grapple with state legislatures and state executives that get really excited about the prospect that they can take property without having to pay for it—as, in fairness, who would not? All of which is kind of playing out in a striking parallel to what we're seeing in the federal courts.

 

      And I think Daniel is involved in a case in Florida that's raising exactly this issue, if you want to tell us a little bit about that, Daniel.

 

Daniel Woislaw:  Yeah, absolutely. Thanks for throwing it over. And thanks to The Federalist Society for inviting me to speak and share Pacific Legal Foundation's perspective on this really interesting topic.

 

      I offered, in an amicus brief, along with my colleague Mark Miller, who works in the Florida office—I'm up in the D.C. area working out of our Arlington office—in the case of Florida Department of Agriculture and Consumer Services v. Dolliver, which I'm going to just call Dolliver because it's a heck of a lot easier. And that's up at the Florida Supreme Court on the question of whether a state executive agency can evade paying an inverse condemnation judgment under a statute that prevents those payments from these state agencies without a specific legislative appropriation, essentially handing the discretion into the political system about whether just compensation will be paid for takings. And while this controversy arose in the context of the enforcement of a takings judgment, the critical issues involved are, really, at its base, the scope of sovereignty and the extent to which the Just Compensation Clause defines or abrogates sovereign immunity by guaranteeing a self-executing right.

 

      Now, as Robert mentioned during his opening remarks, the recent case of Knick at the United States Supreme Court essentially reinforced and repeated that the Fifth Amendment right to just compensation is self-executing, but there is a right that enters the moment the government takes your property. So I'm going to first talk about the facts of this Dolliver case because I think it presents a good lens for looking at the issues in this topic generally. I'm going to discuss some of the government's positions about the remedy that would or would not be available—the writ of mandamus—and their positions about sovereign immunity that sort of conflate the English theory of what I call insular sovereignty versus the American theory of popular sovereignty.

 

      So at the base of this case is this statute in Florida that has these two objectionable portions that say, first, that if you have a judgment against the state, you have to go to the legislature and ask them to appropriate the funds to send to the agency so that you can be paid. And the second part of it is that the agency can't pay any of these judgments unless there's a specific appropriation from the legislature.

 

      So in the early 2000s, there was a problem with an outbreak of citrus canker, which is a disease that affects citrus trees. Of course, that's a big industry in Florida, so it was a big objective of the government to tackle this. The way they implemented the program, however, was problematic and resulted in the indiscriminate destruction of healthy, uninfected citrus trees that didn't really pose a threat to public safety or to the industry itself. So a group of homeowners in Lee County filed suit against the Department of Agriculture for inverse condemnation because the government came on their property, destroyed their trees, and didn't pay them any compensation for it.

 

      It took over a decade later for them to get a judgment that was affirmed by the Second District Court of Appeals in Florida. The state chose not to appeal it all the way up to the Florida Supreme Court. So once the homeowners had that judgment, they then went to the legislature. They asked the legislature to include a line item in the appropriations bill that would pay for the destruction of their trees so that they could get compensation for it. The legislature did include that appropriation, and it went up to Governor Scott.

 

      But in the interim, the Department of Agriculture mentioned that they are still litigating and challenging this issue. Even though the judgment had become final and they had exhausted their right to appeal, there was some other litigation going on at the time. And Governor Scott actually vetoed, in a line-item veto, the appropriation. So later that year, of course, the homeowners in Lee County, having no other recourse, went back to the courts and sought a writ of mandamus to enforce their judgment against the Department of Agriculture.

 

      And I'll just explain briefly that a writ of mandamus is a very specific remedy and typically referred to as an extraordinary writ or an extraordinary remedy, and that's because it's available as a remedy of last recourse. It's actually mentioned in Marbury v. Madison, which is more famous, of course, for outlining the role of the judiciary in judicial review. But in Marbury v. Madison, the remedy that was sought was the remedy of a writ of mandamus essentially enforcing specifically the delivery of the commissions to judges.

 

      And the Court in Marbury v. Madison explained that the writ is available when the action to be undertaken is ministerial. There's no political discretion involved. It's an absolute, compulsory process that has to be completed, and second, that there's no other adequate legal, specific remedy available.

 

      And the government in this case is arguing that a writ of mandamus should not issue because there's another adequate remedy. And that remedy they point to is going back to the legislature and asking the legislature, essentially, "Pretty please, will you pay us for the property that you took from us?" But, first of all, this isn't necessarily a legal remedy; that's a political remedy. And second, it doesn't appear to be adequate given that, if this is a proper remedy and mandamus isn't appropriate or available, then the legislature could essentially just go on forever never paying your takings judgment.

 

      The Supreme Court, in West Virginia State Board of Education v. Barnette in 1943, penned a passage I think is particularly relevant here. They said, "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections."

 

      And I think that one of the main lynchpins of this issue here is whether the Bill of Rights essentially can be cast into the well of political decision making rather than enforcing the rights of the minority against tyranny of the majority that they were drafted to defend. And so part of what this issue gets down to is, next, the government argues that it's immune, based on a theory of sovereign immunity, from having the judgment enforced against them. Even if we take the writ of mandamus, as would be a proper exercise, they say the statutes are constitutional and that the government has not agreed that it can be sued.

 

      But the theory of sovereign immunity that the government leans on here is a medieval English theory of sovereign immunity that was expressly rejected by our Founders and by the text of our Constitution and the founding in our philosophies that undergird it. So the theory they rely on is this theory under which the English state has this inherent power to act based on the implied consent of the people and their virtual representation. Of course, the American colonists were fairly upset at this theory of virtual representation given that they had no actual representation in parliament, and the theories that undergird our constitutional system split from this.

 

      In America, we subscribe to a popular American sovereignty. And this is the idea that the people themselves are sovereign, and a principal-agent relationship is created between the people and the government. And the document that defines that relationship is the federal or relevant state constitutions. And I'll just point out here that, when I'm talking about the Fifth Amendment and the right against just compensation in the Dolliver case that I'm talking about, it's the state constitution that's at issue, but it's interpreted the same way to mirror the federal Constitution, so I'm using federal language.

 

      But I think that James Otis really summed up this theory well when he said, "Supreme, absolute power is originally and ultimately in the people. The people never did in fact freely, nor can they rightfully make an absolute, unlimited renunciation of this divine right. It is ever in the nature of the thing given in trust." And that really outlines the sovereignty concept in the United States.

 

      And one way to think about this is to think about a metaphorical crown. And when the government, when the state acts in compliance with one of its enumerated powers in the Constitution, it wears that crown because we have delegated that authority to the state. But when the state steps outside of that authority, such as when it takes property without paying just compensation, then the crown reverts back to the people.

 

      So this theory that there is a sovereign immunity concept that survives the Constitution is contrary to the notion that the Constitution itself is the defining document for the sovereignty that is exercised on our behalf. If you look at some of the terms we use for our government officials, we use words like agent, delegate, and representative, which is really a departure from this medieval English theory of insular sovereignty.

 

      If you look at some of our Founding Era documents, if you look at the Declaration of Independence, it speaks of inalienable rights. The Seventh Amendment preserves the right to trial by jury. The Fourth Amendment protects the right of the people to be secure, rather than creating these rights. And the Fifth Amendment, of course, is an express statement about when the government acts within the delegation of its sovereignty to take property and when it does not, and it does not when it takes without paying just compensation.

 

      And more specifically to Florida, we can see this in state constitutions as well. The Florida Constitution says, "All political power is inherent in the people." The preamble itself says, "The people of the State of Florida ordain and establish Florida's Constitution." And so we can see that the questioned sovereign immunity is based on the language of the Constitution, the Fifth Amendment guaranteeing a self-executing right which has been recognized in the federal and the state courts.

 

      But the next question is one that also cuts to the quick of whether the Constitution does contain self-executing rights and whether the Bill of Rights itself is compulsory for the states to follow. And that's this ministerial question. I mentioned earlier that first component of whether a writ of mandamus is proper, which is the legal question underpinning the Dolliver case in these issues, is whether it is a compulsory action or whether it is a discretionary action.

 

      And so if you pick that apart and you look at it, essentially what the government is arguing is that a writ of mandamus is improper because whether the government pays compensation is discretionary. And that can't be the case if the Constitution defines sovereignty and if the government must pay just compensation for the property that it takes.

 

      So the key takeaway at the bottom of this is whether the Constitution is just a list of demands that we have to petition the government to fulfil, whether they can throw up roadblocks in the way of the vindication of those rights, or does the Constitution act as a defining framework for the exercise of power on behalf of the people by their agents in government? And if we're to stand by a robust constitutional system that respects liberty, property, consent of the governed, and the rule of law, then I think the answer has to be the second one.

 

And with that, I'm going to go ahead and say that we're ready to open it up for questions.

 

Micah Wallen:  All right. Absolutely. Thank you both. Let's go ahead and open up the floor for audience questions. And while we wait for a few questions to roll in, Bob, I'll throw it back over to you for any reactions to what Daniel spoke about.

 

Robert J. McNamara:  Thank you. So I think the saga of the Florida litigation that Daniel has regaled us with really illustrates the practical importance of this question and the importance of having a judiciary that's engaged with it because, as I understand the Florida citrus canker litigation, people sued saying the destruction of their trees was a taking. The Florida courts started to agree. In large part in response to those holdings, the Florida legislature stripped the courts of their ability to enforce takings judgments.

 

      And people whose property has been taken had to engage in years of lobbying and litigation in an attempt to get the money that courts have said they're already entitled to. And I think that in itself -- you can talk about this as about theories of sovereignty, or I can talk about Magna Carta, but it just demonstrates the actual practical problems of not being able to get an enforceable judgment.

 

      If the government takes $10,000 worth of property from you and then says, "Great. We owe you $10,000. We have buried your $10,000 underground on a deserted island in the middle of the Pacific Ocean. And if you would care to go dig up that $10,000, you will be made whole." Well, we would all recognize that that's not the same as getting $10,000. You took my $10,000 away, and now I have to go to the South Pacific and dig up a different $10,000, which will probably cost me more than $10,000 to get. At that point, you've just taken my stuff without compensation. And that's really what we see in these cases.

 

      The point of constitutional rights is that they be enforced. The Constitution is not meant to be a paper promise; it's meant to be a real limitation on what government is allowed to do to its citizens. And in the absence of enforceable judicial order standing up for those rights, those rights end up being just empty promises. And I don't think Americans fought and died and bled and voted to have a Constitution that's an empty piece of paper. I think the point is to have one that's enforceable.

 

      And that matters as a question of state constitutional separation of powers and state constitutional rights, and it matters at the backstop as a matter of federal constitutional rights. There are things that states simply may not do to you. And one of the things on that list—number one with a bullet on that list—is take your property without compensation. And courts need to be actively enforcing these rights. They need to be protecting individuals from the depredations of self-interested government officials. And right now, all too often, they aren't.

 

      So my hope both for the Florida case and the Violet Dock Port case in the Fifth Circuit and for other cases that are coming down the pipeline is that courts start to recognize this and start to realize that the only way to ensure that constitutional rights are meaningful is to make sure we are pairing them with enforceable judgments from courts.

 

Micah Wallen:  All right. And with that, we'll go ahead and proceed to our first question in the queue.

 

Joe Sherman:  Joe Sherman from Norfolk. A question about the relationship between statutes and constitutions, and if the speakers could just speak to that and whether they're taking these statutory challenges as applied or with facial challenges.

 

Robert J. McNamara:  Sure. So I think the question in a lot of these is the extent to which you need a statute in the first place. Now, the Supreme Court has said that the Takings Clause is self-executing, that, really, it's the only part of the Bill of Rights that prescribes a remedy. The rest of the Bill of Rights lists things the government may not do. The Just Compensation Clause is the only thing that's a conditional. You can do this; you can take for public use if you provide just compensation. So the remedy is built in. And so I think the argument becomes, at least in federal court, that you don't need a statute.

 

      Congress has, of course, passed Section 1983, which lets citizens file lawsuits about violations of their constitutional rights. But if the right is self-executing, you should just be able to march into federal court, and the fact that your property has been taken without just compensation should be enough. And to the extent states say the same thing about their own Takings Clause, as Florida does, you should be able to do the same thing there, that a statute that purports to strip the courts of its power to enforce the Just Compensation Clause has to be void at least as applied to just compensation claims, whereas the Florida statute that Daniel is talking about is actually, weirdly, the opposite of that.

 

      The statute itself has kind of broad language about courts' ability to enforce judgments against the other parts of the government. But when the Florida Supreme Court first interpreted it, it interpreted it, I think, in the context of a contracts claim. And it said, "Whoa, whoa, whoa, whoa, whoa, whoa, whoa. If this statute meant that Florida couldn't enter into enforceable contracts, then Florida wouldn't be able to enter into contracts at all."

 

      So that's obviously not what it means. We're still going to be able to enforce contract judgments. And the question that remains open is whether state courts are going to be enforcing contract judgments and not enforcing these just compensation judgments that, at least in theory, flow directly from the Constitution and therefore can't be modified by statute, even though state legislatures seem very eager to try to modify them by statute.

 

Daniel Woislaw:  Yes. I'd point out that the Constitution is the ultimate contract between the people and their representatives, and so it's sort of a logical extension of that precedent. But I'd also point out that, with respect to the applied versus facial challenges, Robert made a very good point about the rest of the Constitution not having an express remedy listed in the Constitution. And I wonder why, in so many different areas, the courts deal with constitutional rights that require the payment of money differently from injunctions.

 

      If we look at the scenario, basically, these statutes are being erected as obstacles to payment essentially until infinity because the government's position is, "Oh, well, you can be paid when the legislature pays you," which they could theoretically just never pay you.

 

      But if we looked at that in the context of another right, for example, if there was a prison that was torturing their inmates and you won a due process or Eighth Amendment argument against them, there would be an injunction that would stop that immediately. The government couldn't throw up a statutory obstacle and say, "Oh, well, the officers in that prison will stop performing this torture when the legislature amends the code that governs how these officers comport themselves." But, for some reason, this one case in a category of cases in different areas in constitutional jurisprudence that, for some reason, because there's a monetary payment involved, the courts, in some cases, are treating it a little bit differently.

 

Micah Wallen:  All right. We'll now move to our next question in the queue.

 

Paul Hurd:  Yes, this is Paul Hurd in Louisiana, and I was involved in a civil rights matter a long time ago. And there was a case when they were doing -- it was a 1983 Act, and they were desegregating New Orleans. And they succeeded, and they got a judgment for attorney fees. And the City of New Orleans statutorily had a provision—or constitutionally, even—that, well, you can have a money judgment against the city, but you can't seize any property of the city. It sounds like very similar to what you had here.

 

      And in the '60s, the local federal judge solved the problem in a case called The Bank of New Orleans, or BNO is what it was known as, and I don't remember the other half of it. But what he did is he sent a marshal down and seized $400,000 of the city's money in the Bank of New Orleans and told the marshal to go bring the president and the money back to the court.

 

      And what the judge held was, "We do not have immediate authority to seize your money, but we do have the Supremacy Clause. And because it was a federal interest," just like taking would be, "we can -- out of constitutional federalism, we will give a state a reasonable time to act accordingly and in good faith in recognition of the Supremacy Clause because if that state law is used to unreasonably prevent the enforceability of federal law, then it's unconstitutional." And basically telling the city, "You get your protection. You get to pick how you're going to pay. But you don't get to pick whether or not you're going to pay."

 

      I just -- I didn't know if that case -- if that's how they made -- and the court held specifically the failure to pay the attorney fees at the end of a civil rights claim is going to defeat the federal interest, and the Supremacy Clause would not allow the state to indirectly inhibit a 1983 Act.

 

      So anyway, that's to me -- maybe you just need -- and I know the issue is already in state court or federal court, but there was a federal -- it was a federal claim to start with, but there -- I thought that case would be good jurisprudence for the logical constitutional remedy of you get your deference, but you don't get to deny the debt.

 

Robert J. McNamara:  Yes. That's exactly right, and I'm glad you brought that up.

 

      Going back to 1980, there's a Fifth Circuit case called Gary W. v. Louisiana, which may have been the one you were involved with, where the Fifth Circuit and the federal courts have said in response to exactly this provision of Louisiana law, "Look, we're the federal courts. And you can have all of the state laws you want about how courts aren't allowed to seize your property or about how your money is protected, and those laws are great. But at the end of the day, we are the federal courts, and federal law is going to trump. And we are going to be allowed to compel the responsible state official to satisfy the judgment against the state out of state funds regardless of what state law says because federal law is supreme over state law in this context."

 

      And the crazy thing is, despite the fact that you have 40 years of precedent now, in other contexts saying, "No, no, no. Federal law trumps state law. It doesn't matter." When Violet Dock Port sued in federal court and said, "Hey, somebody needs to make the government actually pay this judgment," the district court threw them out and said, "You have no claim here. You don't have a Takings Clause claim." And it's exactly what Daniel was referring to is that there seems to be, in this broad swath of federal law, a recognition that federal law trumps, and states can't insulate themselves from the remedies when they violate the Constitution.

 

      And the one area where courts seem to be weirdly sanguine about letting you not get the remedy is the one area where the Constitution promises you the remedy. If this were a different kind of federal constitutional claim, they would actually have an easier time getting an enforceable remedy. The reason Violet Dock Port can't get an enforceable remedy is that it's a takings claim, which is insane. That's the opposite of what the Constitution commands.

 

      You're supposed to have a cash remedy. The Constitution guarantees it. And you're exactly right that you would have a cash remedy. You'd have an enforceable remedy against a state entity for attorneys' fees in a different kind of civil rights action. But what the district court said here is you don't have an enforceable remedy for a takings claim. It's actually literally written into the Constitution.

 

Daniel Woislaw:  Yeah, I agree. So much of this area sort of turned logic on its head. But I think it's interesting that you mention Louisiana because Louisiana is the one state in which I was able to find that this exact issue that was—the statute in a Florida case—a similar statute existed in Louisiana. And a Louisiana appellate court in 2010 actually ruled in favor of the plaintiffs, saying that this was a ministerial function. The issuance of a writ of mandamus was proper to compel the payment of just compensation. So I thought that was interesting.

 

      But I'd also just like to mention to your point about when can they pay. I think the federal case law from the Supreme Court that Robert had pointed out in his opening remarks are pretty clear that the right to receive compensation accrues the moment the property is taken. So at that moment, the compensation is due.

 

      But if the government doesn't pay it within the first minute, is that reasonable? Do they owe you interest on that? And I think that there's room for a jurisprudence of when and how the government can make that payment, and there's a line past which the government has refused to do it and they have failed to do it, and that's when the writ of mandamus becomes an appropriate remedy. So I think there's room for developing a jurisprudence in that area.

 

      But the point here in these cases is the answer can't be that the government can never pay. And that seems to be the logical conclusion at the center of the government's argument in these cases and particularly in Dolliver, where they said, "Oh, well, your remedy is going to the legislature." But that's a political one, of course.

 

Robert J. McNamara:  So I would just kind of disagree slightly with Daniel because these things are always more fun when we disagree with each other. I actually do think it is abundantly clear that the government owes you compensation at the minute it takes your property, and that it owes you interest for every additional minute. If the government takes my property from me at 12:40 Eastern time, the government has to pay me as of 12:40 Eastern time, and interest should start accruing. And courts have said interest starts accruing immediately. 

 

      I think where there's room for wiggle room in jurisprudence—and this is what I think the older Supreme Court cases are really talking about—is the indication of equitable remedies. If the government takes my property at 12:40 and has not paid me at 12:41, am I entitled to an injunction? An injunction is an equitable remedy. And I think the court's entitled to say, "No, we're not going to enjoin the government to give your stuff back because they're clearly acting in good faith and they're getting the money together."

 

      But that's different from saying that they don't have an active and enforceable debt against me that's accruing interest as of the moment of taking. I think, financially, I'm entitled to be made whole, and that includes interest on the money they owe me as of the instant they take my property. The question is how long can they get away with sitting on it before injunctive relief and actual ejectment from the thing they took from me becomes the appropriate remedy?

 

Daniel Woislaw:  And that's -- I agree with you, Robert, on that actually. That's the point at which I was talking about a jurisprudence needing to be evolved. I agree that I think the interest is due starting from the moment that the property is taken, and actually, that's pretty clear under the constitutional framework. But the questions about how they pay and the mechanisms behind that as well as when that equitable remedy becomes ripe is more the question of teasing out the details of that that I was talking about.

 

Micah Wallen:  We'll now move to our next caller in the queue.

 

Wiley Boston:  Hi. This is Wiley Boston in Orlando. I have a very narrow question about the Dolliver case. Has the Department of Agriculture conceded that post-judgment interest due pursuant to Florida's statute is due and owing and will be payable when and if that is ever paid?

 

Daniel Woislaw:  I'm not familiar with the particulars of the interest on it, but they definitely have conceded that there is a final takings judgment, and they have said, "We're going to pay. We promise we'll pay eventually." I believe that judgment does include interest, however.

 

Robert J. McNamara:  "We'll pay eventually, as soon as you persuade the legislature to order us to pay you."

 

Daniel Woislaw:  Yeah.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

John Vorperian:  Good afternoon. This is John Vorperian from New York. I have a question that falls somewhat in the political science area. I was just curious as to, when states balk at these judgments, does it tend to fall in the issue of real property taking or personal property taking?

 

Robert J. McNamara:  That is a great question. So a lot of what I have seen is in the context of real property takings, though that may just be because real property takings are more common. The Florida case is about the taking of fruit trees, which I guess are still technically a real property interest as a matter of Florida law.

 

      But I think a lot of what we're seeing comes from the real property context because real property is the thing the government comes in and occupies, as opposed to personal property which may be seized but is in the course of usually other litigation or a separate lawsuit for damages or a challenge to the overarching regulatory scheme. With real property, I think it's just, as a practical matter, easier for the government to just file a condemnation action, and the condemnation action tells you the moment of taking, even though it doesn't lead to an enforceable money judgment, or just to come in and cut down the trees, and the cutting down the trees gives you the moment of taking.

 

      In personal property takings, usually those arise in the context of a broader regulatory scheme, like in Horne v. Department of Agriculture where the federal government was seizing part of people's raisin crops. That emerged in a challenge to the overarching regulation rather than in a pure action for damages to get the raisins back because they said, "We don't want to give you the raisins," and litigated about that. And it would be relatively difficult, as a practical matter, for the government to just show up with a truck and guys with shovels and take the raisins by force.

 

Micah Wallen:  We'll now move to our next caller in the queue.

 

Brian Fitzpatrick:  Hello. This is Brian Fitzpatrick at Vanderbilt Law School in Nashville. You both are so articulate and compelling. I want to thank you for doing this. It's a very interesting issue.

 

      And my question is also a political science question. And that is it surprises me that this issue is coming up in states like Louisiana and Florida, which are conservative states with red politicians in charge. I was really struck that you said that Governor Scott vetoed the appropriation. I would have thought that Republicans would have been very supportive of property rights and very sensitive to paying these judgments. What explains the intransigence on the Republican side to do so?

 

Robert J. McNamara:  I mean, that is a great question, and it's something I get a lot in my work at I.J. I will say, as to Governor Scott, is I understand the veto. He was told by the Department of Agriculture that the case was still in litigation, and so he vetoed the judgment because he was told the judgment wasn't final. That seems to simply not have been true. But I'm not sure how much moral culpability can be laid at his feet for that.

 

      But I do think the thing with a lot of constitutional rights, especially as they apply to local and state governments, is that they tend not to track what you would think of as ideology because the bottom line is that state and government officials don't want to have to give you money. They want to protect their budget. So really, what I find is my work doesn't take me to places where I'm fighting against liberal government officials or conservative government officials; I'm just fighting against government officials. And the ideology of the government officials I'm fighting against depends more on where I am than what I'm fighting about.

 

      Whether you're governed by Republicans or Democrats frequently is determined by where you are in the country. You're in, as you say, a red area or a blue area. But as to a lot of these issues about property rights and whether citizens can exercise their rights and obtain compensation, you see the same behavior from local and state officials in New York as you do from state officials in Louisiana.

 

      And that's because they face the same incentives. So their ideology is determined by where they are in the country, but their behavior is determined by their incentives. And all too often, a given government official's incentive is to take away your rights and give you as little as possible in exchange as they can imagine they can get away with.

 

Daniel Woislaw:  Yeah, I mostly agree with Robert's point on essentially public choice theory. But I think there's also a little bit more philosophically going on as well here, especially within the more red state, conservative delegations. And part of that is that, for so long, before Scalia really brought originalism into the mainstream, we had liberal judges going out and essentially rewriting statutes to enforce policies that they preferred versus what the statutes actually said.

 

      And that triggered sort of a pushback from the more conservative side of the aisle on sort of curtailing the power of judges not to step into the sphere of policymaking by taking loose interpretations, whether it was of the Constitution or of statutes. And that pushback has kind of survived until today, and in some senses, is pushing back against what would be a proper judicial role of engaging with the Constitution and enforcing it against the other branches of the government when they overstep their bounds.

 

      So there's been sort of a focus of conservatives for a while on making sure that judges are not overstepping their own role into the legislative sphere and deferring to that authority. And that has carried over a little bit into what the judges' proper sphere is, which is giving life to and enforcing what the Constitution guarantees. And sometimes that requires an equitable remedy.

 

Micah Wallen:  We'll now go to our next question in the queue. We've arrived at our last question in the queue.

 

Lynn Kipp (sp):  Hi. My name is Lynn Kipp. I'm calling from State College, Pennsylvania. My question may have been answered by a previous question. But when you were talking about property rights and the example of King John and the corn, when you talk about taking property, then when you look at job property rights, job interests, is this something that would have been answered with the question on real property versus personal property?

 

      You talked about interests, Attorney McNamara. You talked about entitled to compensation plus interest. If somebody would lose their property rights to their job for over a year, let's say, then to get back pay plus interest, is that a matter of real property versus personal property? And then does that come down to enforcing the Constitution? If it's in a state court, would judges generally want to overstep their role if it means getting an equitable remedy and getting compensation? Is it something that a state would generally not want to enforce? Does that make sense?

 

Robert J. McNamara:  I think so. And that's going to be a hard question that is going to depend on the state you're in, the state law, and exactly what job we're talking about. I wouldn't call a job real property. It's not really personal property. It's what theorists maybe used to call the new property.

 

Lynn Kipp:  Public employment, say, like a teaching position, so public employment property.

 

Robert J. McNamara:  Yeah, I think there's a way to conceive of public employment as a kind of property right. But I think it's maybe more natural to think of it as a contract right, that your employment with the government as a teacher or as a whatever is subject to a contract—in many states to a union contract—and that that, more than anything, is going to govern how the government has to interact with the employee and what the government owes the employee when it takes the job away.

 

      And I think a more natural place to look to in the Constitution to talk about job rights is not so much the Takings Clause, but actually the Contracts Clause. If the government enters into a contract with private citizens where it owes the private citizens X in exchange for Y, and then, through legislation or force majeure, deprives the private citizens of those contractual rights, that seems like a question under the Contracts Clause, where the courts have not been great guns in enforcing the Contracts Clause but have retained at least a role for themselves in looking at whether the state is sort of self-dealing and vitiating its own contracts for its own advantage. And I think that might be the more comfortable place for that analysis to sit instead of thinking it purely through a property rights and a Takings Clause lens.

 

Daniel Woislaw:  I agree. And I think, to a great extent, the Contracts Clause has been pared back quite a bit by the courts, and unfortunately, I think that's why we see a lot of those types of arguments. And especially now, in the context of the coronavirus closedowns, we see a lot of the arguments that are perhaps properly raised under a robust Contracts Clause theory that the courts don't seem to take very seriously these days. We see them imported into these Takings Clause arguments.

 

      And I think this is true of a number of different places on the Constitution, like the Privileges and Immunities Clause, that have sort of been neutered. And so we see a lot of arguments popping up in places that they're not really a natural fit. So I think the question that you raise, if we're talking about it in the takings context, is not so much a question about whether the government can dodge a payment that is due, but whether there is a taking that took place at all. And that would probably be governed by some of the courts' regulatory taking jurisprudence, which is not particularly favorable.

 

Micah Wallen:  We'll now move to our next caller in the queue.

 

Matt Festa:  Hi. This is Matt Festa from South Texas College of Law in Houston. Thank you for the panel.

 

      My question to the panelists is what do you think the future is going to be like in terms of the federal influence on the development of takings jurisprudence with the state courts? And what I mean is, under Williamson County, the federal court always punted. And the problem was that it created an artificial distinction with other Bill of Rights provisions that, where the state courts followed, the federal courts lead most of the time.

 

      Do you see a future in a post-Knick world? Is there going to be more federal takings legislation that might solve some of these problems or influence state jurisprudence? I'm curious as to how you think it's going to go.

 

Robert J. McNamara:  I absolutely do. I think one of the sort of unheralded benefits of Knick— which, I should note, was won by Daniel's colleagues at P.L.F. to their everlasting credit—one of the things that's going to flow from Knick is not just increased protection for property owners' rights but an increased just federal jurisprudence of takings, which is really something that's been missing for 30 years.

 

      The federal courts are so influential in how we think and talk about free speech. They're so influential in how we think and talk about search and seizure. And they just have no footprint when it comes to how we talk about takings. And that's because, for 30 years, it's been almost impossible to bring a takings claim in federal court.

 

      So you have some of the best judges, some of the strongest thinkers of the American judiciary completely on the sidelines, which is not to flag state courts. Many of the great thinkers of American jurisprudence are on state courts. But it's hard to say that you improve the pool by saying no federal judges can weigh in on these weighty federal constitutional issues.

 

      And I think we're going to start to see more takings claims. I know for a fact that Knick is the reason that the folks at Violet Dock Port felt comfortable marching into federal court. I don't know that they needed Knick, but they rely heavily on Knick as the reason they're allowed to come into federal court with these claims. And we're going to start to see a more sophisticated federal jurisprudence of takings law because you're going to see lower federal courts that are actually empowered to deal with these issues, as they should be because they're issues that arise under the federal Constitution.

 

Daniel Woislaw:  Yeah. I'll just briefly mention that I agree with Robert that Knick is going to be hugely influential on basically creating an area for federal jurisprudence to develop on the Takings Clause.

 

      But one of the interesting -- I can't say that I know what exactly it's going to look like in the future. One interesting thing to see will be how these equitable remedies work because different states approach eminent domain and inverse condemnation in different ways. And they have different mechanisms for enforcing those rights, some better than others. Some states like Florida and Louisiana have statutes that basically erect an obstacle to it.

 

      But one area that I found is that there are actually a couple of states—there might be more than that—that the remedy, the proper judicial remedy for an inverse condemnation, for a taking without the payment of compensation, is actually a writ of mandamus or its equivalent instructing the relevant state agency to initiate condemnation proceedings, the type of condemnation proceedings that you would see in an eminent domain action by the government. So I'll be interested to see how that shakes out and the extent to which federal jurisprudence reshapes the way that states think about and enforce the just compensation right.

 

Micah Wallen:  And we've now come to the end of our queue and just about to the end of our time. So I'll toss it back to Daniel and you, Bob, for any closing remarks either of you would like to have.

 

Robert J. McNamara:  Just that I'd like to thank you and thank The Federalist Society for putting this together. And I'd like to thank the entire audience. These were exceptionally good questions. I thought this was a very active teleforum. It was a lot of fun to participate in.

 

Daniel Woislaw:  Yes, I agree. Thanks a lot to The Federalist Society for having me here. This was a very engaging discussion, and I think it's an important issue that we should all be thinking about as we go forward.

 

Micah Wallen:  And on behalf of The Federalist Society, I’d like to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected].

 

      Thank you all for joining us. We are adjourned.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.