Posted on 04/17/2024 10:11:07 AM PDT by Miami Rebel
Texas Attorney General Ken Paxton got a chilly reception at the nation’s highest court this month, when his office argued against Texas ranchers who were seeking compensation from the state over a Fifth Amendment takings clause issue.
The Institute for Justice (IJ), a nonprofit public interest law firm, represented rancher Richie DeVillier in the litigation, who sued after his ranch was repeatedly flooded by a new median wall built by Texas officials along a highway just to the south of his property, which ended up functioning like a dam during hurricanes and other periods of heavy rain.
The Fifth Amendment to the U.S. Constitution requires that when private property is “taken for public use,” then the government must pay “just compensation” to the property owner. That’s a relatively simple legal question when, for example, a county takes ownership of land via eminent domain to build a highway; it’s more complex when the property owner alleges that the government didn’t seize the legal title to the property but instead did something to damage the value of that property, as DeVillier argued was happening when the new highway median kept causing his property to flood, destroying his crops and drowning his horses and cattle. DeVillier originally sued in state court, and Texas filed to remove the case to federal court, where it defended against the lawsuit by claiming that the Fifth Amendment didn’t apply to the state because Congress hadn’t passed a law expressly saying it did. Texas initially prevailed at the federal trial court and appellate level. From the IJ’s article about the case:
It was true, Texas admitted, that the Takings Clause requires the government to pay for land it takes (which includes land it makes unusable by, say, recurrent flooding). But Congress has never passed a statute commanding Texas to obey the Fifth Amendment—and, at least according to Texas, that means the state doesn’t have to.
The 5th U.S. Circuit Court of Appeals agreed. In the wake of the Civil War, Congress adopted a law that allows people to sue cities and individuals who violate their rights, but that law doesn’t say anything about lawsuits against states. And that means that, for Texas, paying just compensation is optional. That rule is both dangerous and wrong. True, Congress never passed a law commanding Texas to follow the Constitution, but the Constitution itself commands Texas to follow the Constitution. That is why Richie has teamed up with IJ to ask the United States Supreme Court to clarify that the Constitution isn’t just a good idea—it’s the law. And states have to follow it, even when they don’t want to.
“There is not an asterisk next to the Fifth Amendment that says the government doesn’t have to pay just compensation if it doesn’t want to,” said Institute for Justice Senior Attorney Robert McNamara. “The Supreme Court has repeatedly affirmed Americans’ right to just compensation is an inherent part of the Constitution. It cannot be ignored or circumvented by the government or the courts.”
The IJ appealed the case to the Supreme Court, and that’s where things got even weirder. Paxton’s office spun around and tried to argue that DeVillier was actually able to sue under state law and pursue compensation under the takings clause of the Texas Constitution. During oral arguments, Justice Sonia Sotomayor blasted this tactic as a “bait and switch” and the court unanimously ruled to vacate the judgment of the Fifth Circuit and allow DeVillier’s lawsuit to go forward.
Paxton inexplicably reacted the Supreme Court ruling by declaring a “WIN” along with a Drudge Report-evoking red siren emoji, in a tweet posted Tuesday evening, claiming Texas had “secured a unanimous 9-0 win at the U.S. Supreme Court” and touting how “as long as Texas has been Texas, it has recognized that property rights are crucial to a free society.”
🚨WIN: Today we secured a unanimous 9-0 win at the U.S. Supreme Court in a case protecting the ability of Texas to handle compensation disputes under State law for any allegedly taken property.
For as long as Texas has been Texas, it has recognized that property rights are… https://t.co/9XQiDzHw40
— Attorney General Ken Paxton (@KenPaxtonTX) April 16, 2024
Paxton’s tweet was swiftly swarmed by people pointing out that the Supreme Court had ruled against what Texas had wanted, allowing DeVillier’s lawsuit to go forward in federal court and pursue compensation under the Fifth Amendment takings clause, and that his office had been fighting against a landowner’s property rights here.
A Community Note dunked on Paxton, pointing out that the ruling was the “complete opposite” of a win.
One of IJ’s attorneys, Patrick Jaicomo, took a smack at Paxton with his own tweet.
Ken, you lost this case. @IJ won it.
You can tell because you asked the Supreme Court to affirm the 5th Cir. ruling below, but the Supreme Court *vacated* the 5th Cir. ruling.
Compare your brief to the Supreme Court’s decision:https://t.co/2Xb69VvMwF pic.twitter.com/yaXBHTj6nW
— Patrick Jaicomo (@pjaicomo) April 16, 2024
“Ken, you lost this case,” was Jaicomo’s blunt comment. “IJ won it.” He included screenshots of Paxton’s brief calling for the Fifth Circuit opinion to be “affirmed” and the Supreme Court opinion ruling that it was to be “vacated.”
The IJ posted a statement on its website from Robert McNamara, the lead counsel on DeVillier’s case, responding to Paxton’s claims.
“The party that gets what he wants is the party that won,” wrote McNamara. “What Texas did is called losing. Only a politician would claim to have won a case he lost.”
Mediaite reached out to McNamara for comment, and he sent the following reply, ridiculing Paxton’s claim he won “weird and embarrassing”:
The simplest way to describe what happened is that in the lower courts Texas argued (successfully) that Richie wasn’t allowed to sue them under the Fifth Amendment. When the case hit the Supreme Court, Texas (realizing that was an unacceptable argument) changed their tune and said Richie is allowed to sue them under the Fifth Amendment after all. That went poorly for them at oral argument (Justice Sotomayor called their position a “bait and switch”), and yesterday’s opinion said that concession is enough to resolve the case: If Texas now concedes Richie can sue, then Richie can sue.
Since Richie wanted to sue Texas, that means he wins. Since Texas didn’t want Richie to sue them, that means they lose. The attorney general’s claim to the contrary is weird and embarrassing.
Aside from defending what amounts to theft by the state, Paxton had the gall to call a unanimous USC slapdown a victory.
He needs tar and feathering then run out on a rail.
Or municipality, or it’s employees.
The ruling was more than that. It held that no gov’mt body, including bureaucrats, can implement such a taking. Lots of states are letting admin bodies do eminent domain crappola and then turn around and sell seized property to real estate developers — just so the state can get more tax $$ from the developed property.
This ruling applies to all fines, fees, etc. Everything now has to be justifiable as directly related to the ......”goal” of the govm’t action. Even if a state passes a law making it legal to do this sort of thing, they can be sued.
This ruling means that when property is involved every gov’mt action is subject to being sued. Just imagine the class action suits on a water district implementing another $5 fee on whatever.
All the states need to do is say they thought illegal drugs were involved, and they can acquire and sell off, for free.
No court date is ever necessary.
And where do you come from? 99% of what Paxton does is great. In this case he was kind of stuck defending his state. Even if he was wrong. You do not sound like a conservative to me in order to say such a thing.
Bkmk
Do you feel a tribal loyalty to Paxton that places him above criticism?
If he didn’t like the case he could (a) drop it, or (b) not falsely brag about his success in pursuing it.
“Conservative”?? Who’s the conservative? I think it’s the man who defends his property rights. The man who attacks those rights might be a conservative in many other ways....but not in respect to advocating against those rights.
I’m a professional investor and I side with those fighting against unfair expropriation of property in any form.
Of course you do. But like he said, in this case Paxton is the attorney advocating for his client, the State of Texas, it doesn’t even matter what his personal thought on the merit of the case is, his job was to make the best possible argument for his client.
People are treating his advocacy in this case as part of his professional responsibility as though he was personally in favor of what the state did. We don’t know what his private thoughts are.
I agree. The State’s position here is so at odds with most of what Paxton says (and does), I wonder if there is something more here to how he was in the position of defending the State’s position.
“[I]n this case Paxton is the attorney advocating for his client, the State of Texas....”
That’s an absurd argument. Attorneys General aren’t public defenders. They can drop cases that they find indefensible.
No you are striking down a man based on one thing he is wrong about even though you know he has done a Ton of good things. You strike him down because this one thing is personal to you. I have no problem with you saying he is wrong on this. He is in my opinion. But don’t strike the man down in whole because that is not fair or right.
Using that same standard then Trump would be a pile of crap because he has also been very wrong about some things. But his good far out weighs his bad.
Not a loss thar Freepers need to cry over.
The state attorney general represents the state in federal cases.
He can’t drop the case unless he resigns his position.
Exactly.
Sometimes you can win a war even while losing a battle, if the outcome of the battle brings you closer to your real objective.
You probably need to read that article again.
“The state attorney general represents the state in federal cases.”
Represents the State....without discretion? So an Attorney General, according to you, cannot say that “we have no case”??
All over these 50 states, every day of the week, lawyers tell their clients, “We don’t have a leg to stand on.”
And when you say an Attorney General represents his state, guess who decides what the state’s best interest is. The Attorney General. So more accurately it could be said that not only does the Attorney General represent the state as its advocate, but that the Attorney General represents the state as the client.
This is a lot more complex than “Paxton lost”. Paxton and Texas rightly won the argument they were making — landowners who have their property taken by the state should first proceed through the state to claim just compensation for a taking.Assuming the state did a taking of private property for public purpose, there was never a question of whether the landowners deserved compensation. Instead it’s just a question of whether they have to follow state statutes and procedures to claim that compensation. Moreover, if the state statute doesn’t provide for just compensation, then the landowners would still have a cause of action under federal law. But they don’t get to go to federal law first. This was the right decision, IMO.
The 5th Circuit held that “the Fifth Amendment Takings Clause as ap-
plied to the states through the Fourteenth Amendment does not pro-
vide a right of action for takings claims against a state.”
As a matter of Constitutional law, that’s just dumb. And wrong. And dumbly wrong. The right to sue a state for takings has been long settled, and people do have a right to sue the state for a taking.
What was at issue here was whether the landowners had a private right of action directly under the 5th Amendment versus whether they had to sue Texas for the taking under the provisions and procedures of Texas law.
Paxton was not arguing that the landowners did not have a right to sue for the taking. Paxton was not arguing that the landowners did not deserve compensation if they could prove a taking.
Instead, Paxton was arguing that Texas law specifically provides the mechanism for landowners to sue for a taking and therefore the landowners did not have a right to sue directly in federal court for a taking under the 5th Amendment. As described in the syllabus to the SCOTUS opinion, the SCOTUS held that “The question here concerns the procedural vehicle by which a property owner may seek to vindicate that right.”
Note the phrase “procedural vehicle.” This case was not about a denial of property rights claims, but rather whether the landowners should follow Texas statutes to claim compensation for an alleged taking of Texas property under Texas law by Texas administrative agencies.
As the SCOTUS opinion further states, this would be a different issue if Texas law did not provide any Texas procedure for compensation or if Texas law did not provide for “just compensation” as required by the 5th Amendment.
Paxton won this case. As Justice Thomas opined: “We therefore vacate and remand so that DeVillier’s claims may proceed under Texas’ state-law cause of action.”
Texas never tried to seize property without just compensation. Texas did insist (and won) on the argument that the landowners should have to use the Texas statute and procedures that already existed in order to prove and claim their just compensation from the state.
Articles like this one from Mediaite are irresponsible and stupid. Absolute garbage. Literally any competent attorney could have explained this to the waste of a journalism degree that wrote this article.
Correction - the 5th Circuit opinion holding that there is no direct private right of action against a state that has statutes and procedures to provide just compensation for takings is not what’s dumb. What’s dumb is the proposition that Texas was seeking to take property and then prevent landowners from suing for the taking. All Texas was doing is telling the landowners “hey, we’ve got a statute in place for dealing with this, go through Texas courts first.”
I suspect Institute for Justice may have felt that Texas statutes on just compensation do not adequately compensate. Or that this case was a litigation tactic to increase the payout to the landowners. In the former case, they can still make that claim after the case has been litigated. In the latter case, well...you have to represent your client and if you have a good faith argument go with it. But I think the SCOTUS got this one right as a matter of federalism and state sovereignty.
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