Full Transcript - Devillier v. Texas Wrap Up

Today on Legalese, we will be wrapping up the Supreme Court case of Devillier v Texas and discussing the Court’s holding that Devillier was entitled to seek just compensation under the Takings clause when the State of Texas flooded his property.

Greetings and welcome back to Legalese….

Today we will be discussing a case that was part of my Supreme Court Roundup, Devillier v Texas, which means we have been closely following it and have several videos already devoted to this case. Today’s video will be the last one as the Supreme Court has given its opinion in the case and it is, as I had predicted a big win for the fifth amendment and for property rights generally. Though I must say that I am a little disappointed about a part of the case that the Court didn’t even address in its opinion. But we will get to that grievance a little later on in this video. First lets quickly review the case that came before the Court and discuss what the Court DID hold.

This decision was a fantastic one in that we once again saw the Court unanimously uphold a private parties’ right to just compensation under the fifth amendment’s takings clause.

“Nor shall private property be taken for public use without just compensation”

~Amendment V Takings Clause

Richard Devillier and more than 120 other petitioners own property north of U. S. Interstate Highway 10 between Houston and Beaumont, Texas. The dispute here arose after the State of Texas took action to use portions of I–10 as a flood evacuation route, installing a roughly 3­ foot-tall barrier along the highway median to act as a dam. When sub­sequent hurricanes and storms brought heavy rainfall, the median barrier performed as intended, keeping the south side of the highway open. But it also flooded petitioners’ land to the north, causing signif­icant damage to their property. Devillier filed suit in Texas state court. He alleged that by building the median barrier and using his property to store storm water, Texas had effected a taking of his prop­erty for which the State must pay just compensation. Other property owners filed similar suits. Texas removed the cases to federal court, where they were consolidated into a single proceeding with one operative complaint.

The operative complaint includes inverse- condemnation claims under both the Texas Constitution and the Tak­ings Clause of the Fifth Amendment.

Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant

~Devillier v. Texas, No. 22-913, 5 (U.S. Apr. 16, 2024)

As relevant, Texas moved to dis­miss the federal inverse-condemnation claim, arguing that a plaintiff has no cause of action arising directly under the Takings Clause. The District Court denied Texas’ motion, concluding that a property owner may sue a State directly under the Takings Clause. The Fifth Circuit reversed, holding “that the Fifth Amendment Takings Clause as ap­plied to the states through the Fourteenth Amendment does not pro­vide a right of action for takings claims against a state.”

~Devillier v. Texas, No. 22-913, (U.S. Apr. 16, 2024)

Held: Devillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law. The Takings Clause of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” The Court has explained that “a property owner acquires an irrevocable right to just compensation immediately upon a taking” “[b]ecause of ‘the self-executing character’ of the Tak­ings Clause ‘with respect to compensation.’ ” Knick v. Township of Scott, 588 U. S. 180, 192 (quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315).

Texas does not dispute the nature of the substantive right to just compensation. This case presents only a question regarding the procedural vehicle by which a property owner may seek to vindicate that right.

~Devillier v. Texas, No. 22-913, (U.S. Apr. 16, 2024)

The question here concerns the procedural vehicle by which a property owner may seek to vindicate that right. Constitutional rights do not typically come with a built-in cause of action to allow for private en­forcement in courts, see Egbert v. Boule, 596 U. S. 482, 490–491, and so they are asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. Devillier relies on First English and other cases to argue that the Takings Clause creates by its own force a cause of action authorizing suits for just compensation. But those cases do not directly confront whether the Takings Clause provides a cause of action. It would be imprudent to decide that question without first establishing the premise in the question presented that no other cause of action exists to vindicate the property owner’s rights under the Takings Clause. Texas state law does provide an inverse-condemnation cause of action by which prop­erty owners may seek just compensation against the State based on both the Texas Constitution and the Takings Clause. This case there­fore does not present the circumstance in which a property owner has no cause of action to seek just compensation. The Court therefore re­mands so that Devillier and the other property owners may proceed through the cause of action available under Texas law. Pp. 4–7.  53 F. 4th 904, vacated and remanded.

Justice Thomas Delivered the Opinion of the Court

Richard Devillier alleges that the State of Texas took his property for storm water storage. He sought just compensa­tion under the Takings Clause of the Fifth Amendment, ar­guing that the Constitution itself authorized him to bring suit. We granted certiorari to decide whether “a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.” That question assumes the property owner has no separate cause of action under which to bring a claim based on the Takings Clause. But, that is not the case here. Texas law provides a cause of ac­tion that allows property owners to vindicate their rights under the Takings Clause. We therefore vacate and re­mand so that Devillier’s claims may proceed under Texas’ state-law cause of action.

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offen­sively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. Devillier ar­gues that the Takings Clause is an exception. He relies on First English Evangelical Lutheran Church of Glendale v. County of Los Angeles to assert that the just-compensation requirement of the Takings Clause is “self-executing” and that “[s]tatutory recognition [is] not necessary” for takings claims because they “are grounded in the Constitution it­self.” 482 U. S., at 315. In other words, the Takings Clause creates by its own force a cause of action authorizing suits for just compensation.

~Devillier v. Texas, No. 22-913, 2 (U.S. Apr. 16, 2024)

Devillier relies on First English and other cases to argue that the Takings Clause creates by its own force a cause of action authorizing suits for just compensation. But those cases do not directly confront whether the Takings Clause provides a cause of action. 

~Devillier v. Texas, No. 22-913, 2 (U.S. Apr. 16, 2024)

The cases that Devillier cites do not directly confront whether the Takings Clause provides a cause of action for just compensation. First English itself proceeded under a state-law cause of action.

Devillier also points to several takings cases where property owners sought injunctions to prevent the Government from inter­fering with their property rights, such as by obtaining ease­ments or imposing zoning regulations.

Because none of those cases relied on §1983 for a cause of action, he reasons that those cases must have proceeded directly under the Constitution.

But, the mere fact that the Takings Clause provided the substantive rule of decision for the equitable claims in those cases does not establish that it creates a cause of action for damages, a remedy that is legal, not eq­uitable, in nature.

~Devillier v. Texas, No. 22-913, 7-8 (U.S. Apr. 16, 2024)

That said, the absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action. It demonstrates only that constitutional concerns do not arise when property owners have other ways to seek just compensation. Our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause.

~Devillier v. Texas, No. 22-913, 8 (U.S. Apr. 16, 2024)

But, this case does not require us to resolve that question. The question presented asks what would happen if a prop­erty owner had no cause of action to vindicate his rights un­der the Takings Clause. It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action. Our constitutional system assigns to state officers “a coordinate responsibility to en­force [the Constitution] according to their regular modes of procedure.” Howlett v. Rose, 496 U. S. 356, 367 (1990).

~Devillier v. Texas, No. 22-913, 8 (U.S. Apr. 16, 2024)

It therefore looks to “[t]he good faith of the States [to] provid[e] an important assurance that ‘this Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land.’” Alden v. Maine, 527 U. S. 706, 755 (1999)

“States and their officers are [also] bound by obligations imposed by the Constitution.” 527 U. S., at 755.

The premise that Texas left Devillier with no cause of ac­tion to obtain the just compensation guaranteed by the Tak­ings Clause does not hold. Texas state law provides a cause of action by which property owners may seek just compen­sation against the State. As Texas explained at oral argu­ment, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause.

Although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured the Court that it would not oppose any attempt by Devillier and the other petitioners to seek one.

~Devillier v. Texas, No. 22-913, 9 (U.S. Apr. 16, 2024)

This is where I really take issue with the Court’s holding in this case, because it simply neglects the underhanded means by which Texas went about screwing Devillier of his just compensation and the fact that Clarence Thomas says “We assume the States will act in good faith to honor obligations they are bound to by the Constitution” because the reason this case exists at all is because we know, for a fact, that Texas acted in bad faith to squirm its way out of its constitutional obligations.

When Devillier filed a takings claim in state court, Texas removed the case to federal court under 28 U.S. Code Section 1441, which allows defendants to remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." They then persuaded the US Court of Appeals for the Fifth Circuit to dismiss the case on the ground that it could not be brought in federal court because Congress hadn't enacted a statute allowing property owners to do so. If allowed to stand, this maneuver creates a Catch-22 under which states can evade takings liability by removing cases to federal court and then having them dismissed.

So in plain terms, Devillier brought this case in a Texas state court under the state cause of action. Texas refused to let the case be heard in State Court by immediately removing the case to federal court, then when they came before the Supreme Court Texas’ argument was “If Devillier had a takings claim he should have sought remedy in a Texas State Court. Which is precisely what he did. Texas is totally victim blaming here.

The fact that the Court just completely overlooks the fact that Texas demonstrably acted in bad faith is a very frustrating fact, and that they didn’t address the conflict of 28 USC §1441 in allowing Texas to create this Catch-22  that leaves the door wide open for States to do this same bullshit again is also frustrating. Why the Court believe Texas will honor its claim to bring this case in State Court ignores the fact that their refusal to hear this case in a State Court is the reason any of this came before the Court in the first place.

It is frustrating in the extreme that this one essential issue remains unclear— that is, whether, on remand, Devillier and the others will be able to pursue the Texas law "cause of action" in federal court, or whether they must do so in state court. If the latter, could Texas once again remove the case to federal court and then once again argue the case must be dismissed because there is no proper federal cause of action? To my mind, the requirement that "Devillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law" seems to preclude the possibility of their being removed and dismissed for procedural reasons. But perhaps I am missing something here. I wish the Court were more clear on that point.

Perhaps the Catch-22 problem will not recur in this case, either because the substantive takings issues will now be fully litigated in federal court, or because the plaintiffs will be able to pursue their claims in state court and Texas will not try to remove again, or such attempts at removal will be rejected. But it could easily arise in other cases.

It would have been better if the Supreme Court had simply ruled that the Takings Clause is self-executing. The Clause makes no distinction between "legal" and "equitable" remedies for violations, or between "offensive" and "defensive" uses of the constitutional right in question. Instead, the presumptive remedy—"just compensation"—is built right into the text. Such a clear textual command overrides any possible implicit law-equity distinction. And it would be perverse if state or federal governments could negate the Takings Clause simply by failing to enact a specific statute to enforce it. Even if previous Supreme Court precedents don't squarely decide this issue, several—including First English—strongly imply that self-execution is the rule. As Justice Thomas notes, the 2019 Knick decision specifically refers to  "'the self-executing character' of the Takings Clause 'with respect to compensation.'"

In addition, even if property owners are allowed to pursue claims in state court, it is important for victims of violations of federal constitutional rights to have access to federal courts, as well, a principle upheld by the Supreme Court's important Takings Clause ruling in Knick v. Township of Scott (2019).

While I think the Court’s upholding the Taking Clause unanimously is a great thing, considering this is a topic that usually splits the Court along ideological lines… and the fact that this is now the third Takings case in a row where the government has unanimously sided with individuals and their private property rights over State claims of sovereign immunity (the other two being cases we have covered here, Tyler v Hennepin County and Sheetz v. County of El Dorado) is notable and commendable.

Though the Court did explicitly say that the petitioners should be allowed to pursue their case in State Court, which is an ideal outcome in this limited instance. I just wish they would have done more to make the point that they should always be allowed to bring such a case in State Court, in a ruling that would apply to people other than those who were party to this particular lawsuit. As Thomas wrote:

This case therefore does not present the circum­stance in which a property owner has no cause of action to seek just compensation. On remand, Devillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of ac­tion available under Texas law.

~Devillier v. Texas, No. 22-913, 2 (U.S. Apr. 16, 2024)

The opinion ends with the following Court Order:

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

~Devillier v. Texas, No. 22-913, 9 (U.S. Apr. 16, 2024)

The most crucial aspect of this case was Justice Thomas’ brief summary of how constitutional rights can be litigated in federal court:

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983.

Though the case, as I already mentioned does not turn on this matter, Justice Thomas none-the-less describes the sword-shield dichotomy that was recently advanced during the Fourteenth Amendment litigation in Trump v Anderson.

When a constitutional right is "asserted offensively," it must be brought pursuant to an "independent cause of action designed for that purpose," such as Section 1983. By contrast, a constitutional right can be "invoked defensively" without a cause of action in a criminal prosecution or some other state enforcement action. This simple dichotomy reconciles Griffin's Case (C.C.D. Va. 1869) (Chase, C.J.) and the Case of Jefferson Davis (C.C.D. Va. 1868) (Chase, C.J. and Underwood, D.J.). It also makes sense of much of the Court's remedies doctrine.

For people who want to learn more about the sword/shield dichotomy, I will link to some great articles that go into that discussion on the show notes page for this episode. And if people would perhaps like a video discussing that topic let me know in the comment section of this video.

However, in the particular case, Justice Thomas cited Egbert v. Boule, but this case only concerned a limitation on the Bivens (1971) remedy. That case did not speak to the offense/defense or sword/shield dichotomy. Thomas only cited Section 1983 itself, which does not directly support the proposition at issue. Regardless, the Court has clarified the law here in an important fashion. I have to say, DeVillier may well be the cleanest statement of this principle in the Court's precedents. 

However, this ruling was, in my opinion, far too narrow. The Court should have, but did not resolve the issue of whether the Takings Clause is "self-executing"—allowing property owners whose land has been taken to bring cases in federal court even in the absence of a specific federal statute authorizing it.

The Supreme Court decision does, however, overturn the extremely dubious Fifth Circuit US Court of Appeals ruling dismissing the plaintiffs' case. At least for the moment, it also negates Texas' Catch-22 attempt to get rid of the case by removing it to federal court (DeVillier originally filed his claim in state court), and then getting it dismissed on the grounds that there is no federal cause of action available.

As Richie Devillier’s attorney, Robert McNamara, of the Institute for Justice succinctly put it:

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. 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.