Can State Governments Claim Sovereign Immunity in Takings Cases?

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J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

What happens when two provisions of the Constitution conflict? For example, the “Takings” clause of the Fifth Amendment prohibits “private property be[ing] taken for public use, without just compensation.”[1] But the Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”[2] On one hand, the Fifth Amendment guarantees that when a government takes a person’s private property, the government owes the person what the property is worth.[3] But courts have interpreted the Eleventh Amendment to bar citizens from suing state governments under the doctrine of “sovereign immunity.”[4] What if a state government takes a person’s property but refuses to pay, or pays too little? If the person sues the government to obtain just compensation, should the government be able to assert sovereign immunity as a defense?  This article analyzes this tension between the Fifth and Eleventh Amendments.

II. Background

The Eleventh Amendment prohibits citizens from suing the federal and state governments.[5] Known as sovereign immunity, this is the idea that citizens cannot drag their own governments into court.[6] Sovereign immunity applies to nearly every suit a citizen brings against a government, but does have certain exceptions.[7] First, this does not protect local governments like cities and towns.[8] Second, a government can waive sovereign immunity by consenting to a particular lawsuit.[9] Third, Congress can repeal sovereign immunity in certain contexts under the enforcement power of the Fourteenth Amendment.[10] The Tucker Act, for example, waived the federal government’s sovereign immunity for all constitutional claims and all suits for monetary relief.[11] Fourth, under Ex Parte Young, if a government is actively violating the Constitution, citizens can sue the government for equitable relief—a court order to stop the violation.[12]

Although the Tucker Act permits citizens to sue the federal government over a Takings violation, no such exception applies for state governments.[13] Governments rarely consent to being sued, and Congress has not repealed sovereign immunity for Takings cases against state governments.[14] Further, most Takings cases do not fall under the Ex Parte Young exception: they often are only about “just compensation”—money damages—because governments can take any private property as long as the Taking is for public use.[15]

The majority of federal courts of appeals have allowed state governments to mount sovereign immunity defenses to Takings claims.[16] Most of these courts have allowed the defense specifically because relief was still available in state court.[17] The Fourth Circuit Court of Appeals, for example, barred a Takings claim against South Carolina but declined to decide “whether the Eleventh Amendment would ban a takings claim in federal court if the State courts were to refuse to hear such a claim.”[18] However, some state courts also allow the sovereign immunity defense.[19] Thus, in Tennessee within the Sixth Circuit, and in Arkansas within the Eighth Circuit, property owners seeking just compensation for Takings find themselves completely shut out of the justice system.[20]

However, the Supreme Court has never applied sovereign immunity in a Takings case against a state government and has questioned whether “sovereign immunity retains its vitality” in that context.[21] In First English Evangelical Lutheran Church v. County of Los Angeles, the Court clarified that the Fifth Amendment requires damages for a Taking; that opinion expressly disregarded California’s argument that “principles of sovereign immunity” suggested otherwise.[22] In Palazzolo v. Rhode Island, the state of Rhode Island asserted sovereign immunity as a defense against a Taking claim[23] but the Court ignored that argument in its final decision against the state.[24] Although sovereign immunity can be raised at any time,[25] the Court has decided other Takings claims against state governments without addressing the issue.[26]

A 2019 Supreme Court case, Knick v. Township of Scott, Pennsylvania made clear that federal courts are always open to victims of Takings.[27] In Knick, the Court overruled a previous decision that required property owners to seek compensation under state law before suing in federal court.[28] The decision stated, “A property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it . . . And the property owner may sue the government at that time in federal court for the deprivation of a right secured by the Constitution.”[29] Although that case dealt with a Taking by a township, not a state, property owners have used Knick to argue that they should be able to sue their state governments in federal court over Takings claims.[30] Two circuits have rejected this argument so far,[31] with the Fifth Circuit stating, “[t]hat determination . . . is one for the Supreme Court—not this panel.”[32] Attorneys on the Fifth Circuit case, Bay Point Props. v. Miss Transp. Comm’n, have appealed to the Supreme Court.[33]

III. Analysis

Takings claims are unique. Most other constitutional violations can be solved through an injunction, and the Ex Parte Young exception allows citizens to seek this relief from the government. But when a government takes private property, the violation is usually not the Taking itself. Most often in Takings disputes, the issue is whether the government paid just compensation; the alleged violation is that the government owes the property owner money. The Fifth Amendment guarantees this payment; but this monetary relief is exactly the kind barred by the Eleventh Amendment. These provisions conflict, and one must yield. Sovereign immunity already has exceptions, and in the interest of protecting property rights, the Supreme Court should clarify one more exception: in claims against state governments for just compensation under the Fifth Amendment, the Eleventh Amendment should not apply.

The decisions barring Takings claims in federal court through the Eleventh Amendment were premised on an understanding that Takings claims were fundamentally the province of state courts. Land use is thought of as a local problem that should be handled by state courts, not federal courts. As long as state courts remained available, federal courts were comfortable allowing the sovereign immunity defense. Knick undermined this principle by making clear that property owners can sue in either state or federal court for the just compensation of taken property.  Although Knick dealt with a local government, the decision’s language is sweeping in its guarantee that “A property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.” The decision contained no hint that state governments would be immune from such a claim.

Further, if sovereign immunity applies to Takings cases in federal courts, state courts are free to apply it as well. That could lead to Takings litigants being left without a judicial remedy entirely. As explained above, that is exactly what has happened in Tennessee and Arkansas, and nothing prevents other states from doing the same. Uniform application of sovereign immunity would make the constitutional guarantee of just compensation meaningless. Even if state courts do not allow the sovereign immunity defense, state procedures might still not deliver just compensation; if that happens, property owners deserve federal protection of their federal constitutional right. Keeping “local” issues in “local” courts is no excuse then for federal courts to allow sovereign immunity in Takings claims.

Clarifying this exception to sovereign immunity would be consistent with Supreme Court precedent. The Supreme Court has dealt repeatedly with Takings claims against state governments, siding with property owners despite states raising sovereign immunity defenses. The Court has never applied sovereign immunity in a Takings case, suggesting the Court does not view the defense as legitimate. This is for good reason: if sovereign immunity truly applies in Takings cases, then states could seize property without paying for it and face no legal consequences. Supreme Court precedent, respect for property rights, and common sense all weigh in favor of limiting sovereign immunity in Takings cases.

IV. Conclusion

The Supreme Court should take up Bay Point and use that opportunity to clarify its Takings jurisprudence. The Fifth Amendment guarantee of just compensation for taken property is meaningless if citizens cannot sue to enforce it. Eleventh Amendment sovereign immunity must yield in this context to protect property rights. Handling this dilemma appropriately will help ensure that property remains an inalienable American right.

[1] U.S. Const. amend. V.

[2] U.S. Const. amend. XI.

[3] First English Evangelical Lutheran, 482 U.S. 304, 314 (1987).

[4] Bay Point Props. v. Miss. Transp. Comm’n, 937 F.3d 454, 456-57 (5th Cir. 2019).

[5] Garrett v. Illinois, 612 F.2d 1038, 1040 n.1 (7th Cir. 1980).

[6] Hans v. Louisiana, 134 U.S. 1, 12-13 (1890).

[7] Bay Point, 937 F.3d at 456.

[8] Jinks v. Richland County, 538 U.S. 456, 466 (2003).

[9] Bay Point, 937 F.3d at 456.

[10] Id.

[11] Doe v. United States, 372 F.3d 1308, 1312 (Fed. Cl. 2004).

[12] Ex Parte Young, 209 U.S. 123, 159-60 (1908).

[13] Bay Point, 937 F.3d at 456-57.

[14] Hutto v. S.C. Ret. Sys., 773 F.3d 536, 551-52 (4th Cir. 2014).

[15] Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2176-77 (5th Cir. 2019).

[16] Hutto, 773 F.3d at 552; Bay Point, 937 F.3d at 457; DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir. 2004); Garrett, 612 F.2d at 1040; Jachetta v. United States, 653 F.3d 898, 912 (9th Cir. 2011); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019); Robinson v. Georgia Dep’t of Transp., 966 F.2d 637, 640 (11th Cir. 1992).

[17] Williams, 928 F.3d at 1213.

[18] Hutto, 773 F.3d at 552.

[19] Hise v. State, 968 S.W.2d 852, 853-855 (Tenn. Ct. App. 1997); Bryant v. Ark. State Highway Comm’n, 342 S.W.2d 415 (Ark. 1961).

[20] Id.

[21] City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714 (1999).

[22] 482 U.S. 304, 316 n.9 (1987).

[23] Amicus Brief for the Board of County Commissioners of the County of La Plata, et al., in Support of Respondents, No. 99-2047, 2001 WL 15620, at *20-21 (U.S. Jan. 3, 2001).

[24] 533 U.S. 606 (2001).

[25] Edelman v. Jordan, 415 U.S. 652, 677-78 (1974).

[26] See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning  Agency, 535 U.S. 302 (2002).

[27] 139 S. Ct. 2162, 2170 (2019).

[28] Knick, 139 S. Ct. at 2167-68.

[29] Id. at 2170, citing 42 U.S.C. §1983.

[30] Bay Point, 937 F.3d at 456; William v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019).

[31] Id.

[32] Bay Point, 937 F.3d at 456 n.1.

[33] Id. at 454 (5th Cir. 2019), petition for cert. filed, (U.S. Dec. 19, 2019) (No. 19-798).

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