The case and its holding / The misrepresentations by Texas Attorney General Ken Paxton about the case / The pictures / Why it all matters
If you are a regular reader of this blog, you know that its origins are from the stormwater runoff from my neighbor, Irion County ISD. The District passed a $19 million bond in 2019, of which $9+ million was used for a new gym that was designed to pour water into city streets and eventually onto my 110 year old home immediately next door to its campus. As of this month, this has been an 8 year advocacy effort on my part to stay dry. So, I have been closely following a recent US Supreme case, Devillier v Texas, involving inverse condemnation. Several Texas landowners are suing the State of Texas for its Texas Department of Transportation taking their property by flooding them and not paying for the privilege.
I have taken some pride throughout these eight years that it was my IC ISD high school football, basketball and track coach, Syd McCown, who first taught me in high school Civics class that it was unconstitutional for the government to take property without just compensation. Throughout this ordeal, I have pointed out that one did not need to be a lawyer, as I am, to know that our government can’t flood our property. Indeed, I didn't learn about the "Takings" clause for the first time when I took constitutional law from Rodric Schoen at Texas Tech University School of Law. I learned it about it in grade school, as hopefully children do today. Why learn about - and support - the Takings clause today? Well, it really is a fundamental cornerstone of our democratic system. The King can't take our private property. Our Founders fled a nation, England, to be free from that. And, as Justice Egan so accurately stated last week during the oral argument of Trump v. United States, "The framers...were reacting against a monarch who claimed to be above the law". No one is above the law, whether it be your local school district or the municipality where you live. So, the case at hand about the Takings clause, Devillier v. Texas (also see here), appears on its face to be a quite dull US Supreme Court case involving civil procedure. But, there’s a lot of meat on this bone. First, the US Supreme Court affirms a federal Takings claim under state law for inverse condemnation by flooding in Texas. Second, the Texas Attorney General put out some troubling (fake?) news about the case by saying he won the case 9-0 when he in fact lost it 0-9. And, third, it is a rare Supreme Court case with pictures that drive home the point of the plight of the landowners.
A. The Case and its holding I recommend reading Tiffany Lashmet's analysis of the case on her Texas Agricultural Law Blog. (That’s a great blog, btw.) She writes the Court held, "the Texas state law inverse-condemnation cause of action provides the vehicle for a takings claim based on both the Texas Constitution and the Fifth Amendment of the US Constitution." For my purposes of explaining it to my readers, what you need to understand is that technically there are 2 Takings clauses that prohibit the government from taking your land without just compensation - the Texas Constitution (Art. 1 Section 17) and the U.S. Constitution (5th Amendment). The landowners here used both in their complaint against Texas, and Texas tried to limit its exposure by arguing, all the way to the U.S. Supreme Court, that the U.S. Constitution did not apply because the landowners failed to plead their case to include a certain federal statute (Section 1983) My experience in doing state appellate cases in administrative law for the Texas Attorney General's office was to not get all hot and bothered about errors in pleading on appeal, especially where the errors could be fixed. Courts do not like to rule on technicalities, and they generally don't like novel theories. And, such is the case here. For reasons I might get to discuss in another blog post, the U.S. Supreme Court punted on the issue of whether the statute (Section 1983) had to be plead and said, look, Texas, your state case law already recognizes that the U.S. Constitution Takings clause applies, so go away and stop wasting our time. So, the Supreme Court "vacated" (made legally void) the appeals court ruling and sent the case back down to the lower court with a ruling that the landowners had both the state and federal causes of action for a Takings violation. To put a finer point on this, the Supreme Court ruled for the landowners on this procedural issue. And, remember, Texas Attorney General Ken Paxton was defending the Texas Department of Transportation (the State of Texas), whose position was to avoid paying damages to the landowner. Importantly, the Supreme Court did not say damages had to be paid because that part of the case hadn't been tried yet. This appeal was merely Texas' effort to boot the landowners out on a technicality. Texas lost, hands down.
B. The Misrepresentations by Texas Attorney General Ken Paxton about the case
Call it a lie, call it fake news, call it gaslighting, call it what you will, but I am going to generously say the Attorney General's media release on the case involved, at best, some wordsmithing to the point of misrepresentation. Prevaricating. Now, in my earlier years when I was a baby lawyer at the AG's office I worked in the Consumer Protection Division. I had the privilege of doing some cases that warranted press releases. I know firsthand about the kind of wordsmithing that goes on between the lawyers and the press office to either limit the damage to the Attorney General after a negative event or to promote his image when there is a court victory. (A lot of effort is put into press at the Texas Attorney General's office.) But, I was never involved in a situation like Devallier v Texas where we converted an outright loss to a victory and then attached to it some clearly misleading quotes by the Attorney General. Indeed, Devillier v. Texas represents a loss by General Paxton, not a win. You would not know that if you read General Paxton’s take of the case, however.
Here is a screen shot of the tweet on X by the Attorney General:
And, some X context by its readers:
And here is the verbatim press release, also posted on the AG's website:
Attorney General Ken Paxton Secures Unanimous SCOTUS Win on Texas Property Rights Case
Texas Attorney General Ken Paxton has 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.
A number of citizens sued seeking compensation under the Takings Clause of the U.S. Constitution after severe rain caused flooding in the Houston area in 2017 and 2019. According to these plaintiffs, the barrier between two sides of the highway served as a type of dam, preserving a flood-evacuation route but resulting in flooding of their property. Although Texas has long allowed citizens to bring such claims under state law, these plaintiffs insisted on bringing their claim directly under the U.S. Constitution. Because Congress has never authorized such litigation, the U.S. Court of Appeals for the Fifth Circuit rejected their claims.
Long committed to the importance of property rights, Texas argued to the U.S. Supreme Court that the landowners should be permitted to seek relief so long as they do so under Texas law. The U.S. Supreme Court unanimously agreed with Texas. The Court also specifically rejected the plaintiffs’ mistaken interpretation of existing caselaw that they claimed would allow them to sue directly under federal law.
The U.S. Supreme Court said: “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.… And, 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.”
“For as long as Texas has been Texas, it has recognized that property rights are crucial to a free society. Under the U.S. Constitution, such claims should be pursued under state law unless Congress has said otherwise. I’m pleased the Supreme Court agreed with us unanimously that citizens should sue under Texas law,” said Attorney General Paxton.
What?! None of that makes any sense. The landowners could have always sued under Texas law, and the Supreme Court said as much. They also ruled Texas (General Paxton) couldn't stop them from going forward with their litigation for just compensation from Texas.
Full credit goes here to the law podcast, Strict Scrutiny, where I first learned about General Paxton's misrepresentation about the case when they offered their criticism of General Paxton's interpretation during their April 22 podcast at 54:46 minutes in.
C. The Pictures It is quite rare for a Supreme Court case to include photographs in the body of the opinion. Usually, cases are text only, as words are our best tools to formulate arguments and resolve legal disagreements. Devillier v Texas is also noteworthy because the Supreme Court included not just one photo, but two photos of the landowners' flooded land and the highway that is the alleged culprit of the problem. Here are those two photos, with the first including a few sentences from the opinion:
As I mentioned above, this case at this point relates to a procedural issue - must section 1983 be plead. The ultimate issue of whether an actual Taking has occurred has not yet been proven by the landowners. So, in legal parlance, these photos act as "dicta", or an observation by the Court that is not necessary to resolve the case.
The photos are so severe, and yet completely unproven at this point, it is almost as if the Supreme Court is photo shaming Texas for taking this case so far in opposition to the landowners. For sure, one could certainly make a point with the publication of these photos by the Supreme Court might also be of the opinion that Texas is working way too hard to avoid its responsibility to pay just compensation to the landowners in this case. These are damning photos, and undoubtedly some of the most persuasive dicta I have ever seen in a case. Indeed, they counter the distortion of General Paxton's press on the case, if not explain why he would go so far to act as if he was a pro landowner attorney general. These photos are an embarrassment.
D. Why it all matters
These are essential times to be challenging government. Government officials seem more and more willing to use alternate facts to twist the truth...or to simply avoid the facts and the and the truth - and the law - altogether. Our community leaders and elected officials no longer even attempt to feign a request for forgiveness for their transgressions. They either expel gibberish on social media to create distortion or simply remain silent (as Irion County ISD has done until recently) and expect citizens to follow as submissive sheep. One can witness this as easily on a local level as on the national and world stages.
All of this matters because of a worthwhile warning left us by journalist Edwin R. Murrow, who famously stood up to Joseph McCarthy: A nation of sheep will beget a government of wolves.
You act the part of a sheep in this day and age and your government will take away your rights quicker than General Paxton can prevaricate with, "For as long as Texas has been Texas, it has recognized that property rights are crucial to a free society." The same can be said about women's reproductive rights, free speech rights, the right to vote and a host of other liberties being challenged today. Silence equals eventual loss of rights.
"More light!" said German playwright, lawyer and statesman Johann Wolfgang von Goethe in his final breaths.
I recommend both Tiffany Lashmet's Texas Agricultural Law Blog and the Strict Scrutiny podcast as sources to stay current on the law. You do not need to be a lawyer to access and question the law. Don't be wooly-eyed.
Copyright 2024 G. Noelke