Property Owners One Step Closer To Getting Equal Access To Justice

July 13, 2006

Private property owners yesterday moved one step closer to being able to have their claims heard in federal court in a timely manner as H.R. 4772, the "Private Property Rights Implementation Act of 2005," cleared the House Judiciary Committee by voice vote.

"Moving this legislation forward represents an important victory for property owners, who will, under this bill, be able to hold government accountable when their actions violate our constitutionally-guaranteed property rights," said David Pressly, president of the National Association of Home Builders (NAHB) and a home builder from Statesville, N.C.

Under current law, property owners are required to litigate their case in state court before a federal court will rule on a Fifth Amendment takings claim. However, bringing the case to state court and having a takings claim heard (even under state law) precludes the property owner from review by the federal courts. As a result, property owners can never have their Fifth Amendment takings cases heard in federal court.

By contrast, all other civil rights cases can be brought directly to federal court. For example, an adult book store owner who challenges a municipal land-use regulation based on the First Amendment's free speech protection has direct access to federal court, while a property owner challenging the same regulation but raising a Fifth Amendment takings claim does not. 

Introduced by Reps. Steve Chabot (R-Ohio) and Bart Gordon (D-Tenn.), the bipartisan legislation would restore the protections offered under the Fifth Amendment to property owners.

Pressly noted that the legislation is sorely needed because there has been a spate of cases where municipalities have taken advantage of the current legal system and sought to dissuade property owners from filing takings claims, even in state court.

Municipalities that are sued in state court are moving takings cases to federal court, which they can do under a 1997 Supreme Court ruling in the case of City of Chicago v. International College of Surgeons. However, once in federal court, the municipality has the case dismissed because the property owner did not first litigate the case in state court – even though it was the municipality that transferred the case to federal court in the first place.

"The Fifth Amendment of the U.S. Constitution clearly guarantees the citizens of America the right to own property and the right to receive just compensation when that property is taken by their government," said Pressly. "Americans should not be put through the judicial wringer only to learn that the federal courts have abdicated their traditional role as guardians of the Constitution."

Following last summer's Supreme Court decision in Kelo v. City of New London, in which the court ruled that government entities can condemn any property in the name of "economic development," the House Judiciary Committee took decisive action by approving H.R. 4128, the "Private Property Rights Protection Act of 2005." The bill would allow the victims of eminent domain abuse to bring a private right of action in federal or state court.

"Unfortunately, in the property rights arena, misuse of eminent domain powers is not the only abuse of our Fifth Amendment protections. Property owners who are victims of an unconstitutional regulatory taking also deserve access to federal court," said Pressly.

"H.R. 4772 does not provide special access to the courts for those with Fifth Amendment claims; it simply puts them on a level playing field with others who are asserting their constitutional rights," Pressly added. "We urge the full House to act promptly to pass this judicial reform bill and call on the Senate to introduce companion legislation."

Source: National Association of Home Builders

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