San Remo-You Can’t Get There From Here
The Supreme Court Places Yet Another Hurdle on the Road to Federal Jurisdiction Over Takings Claims
The recent Supreme Court decision in San Remo v. City and County of San Francisco(2005) 125 S. Ct. 2491 involves technical aspects of legal procedure, which are important because they will, in practice, impact property rights. This case raised the question of whether many property owners will have the right to litigate property rights cases in federal court. In basic terms, the Court decided a property owner who has litigated issues in a state court cannot raise those same issues in a subsequent federal lawsuit.
Notably, the decision does not address the broader question of whether federal litigation of the entire claim in dispute—as opposed to individual issues litigated in state court—is barred. San Remo is of practical importance because a prior Supreme Court decision, the Williamson County case, held that most takings claims had to be brought in state court first. Unfortunately, many state courts, notably California, are known for being antagonistic to property rights, so many property owners prefer to seek relief in the federal courts.
The “silver lining” in the split decision may be that there is some sentiment on the Court for revisiting the Williamson County decision, at least by the four concurring Justices. The dissent of Justice Rehnquist observed “[i]t is not clear to me that Williamson County was correct in demanding that, once a government entity has reached a final decision with respect to a claimant's property, the claimant must seek compensation in state court before bringing a federal takings claim in federal court.” Because the concurring Justices included O’Conner and Rehnquist, there may be little hope of a change in the near term. However, it is notable that Justice Scalia was among the majority in San Remo. It may be that he could be a deciding vote in the event Williamson County is revisited. With even a small additional change in the make up of the Supreme Court, the law in this area may change radically.