Daily Development for Tuesday, October 24, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

CONSTITUTIONAL LAW; DUE PROCESS; RETALIATION:  The Fifth Amendment protects a landowner from both the federal government taking land without compensation, and from retaliation for asserting the right to be free of uncompensated takings. 

Robbins v. Wilkie, 433 F.3d 755 (10th Cir. 2006).

Robbins owned a ranch in Wyoming which he purchased from Nelson.  Before that sale, Nelson had granted a non-exclusive access easement to the BLM on a ranch road over the land sold to Robbins.  The BLM failed to record its easement, and when Nelson sold the property, Wyoming law allowed Robbins to take the property free of the easement.  The BLM tried to obtain a right of way, but Robbins refused.  After his refusal, Robbins claimed that employees of the BLM then refused to maintain a road providing access to his property, threatened to cancel, then canceled his right of way across federal land, cancelled his special recreation use permits and grazing privileges, brought unfounded criminal charges against him, trespassed on his property, and interfered with guest cattle drives.

Robbins sued the BLM employees for claims under the Racketeer Influenced and Corrupt Organizations Act and for violation of his Fifth Amendment rights.  The employee defendants moved for summary judgment on the Fifth Amendment claim, arguing there is not a constitutional right to exclude others from one’s property and that the Fifth Amendment does not protect a landowner from retaliation.  The United States District Court concluded there was a constitutional right to be free from retaliation for exercising his right to exclude others based on the Fifth Amendment. 

The employee defendants then appealed that decision, arguing that Robbins had no constitutional right to exclude the government, but instead only the right to compensation if the government took his property.  According to the defendants, because there was no taking in the case, Robbins had no Fifth Amendment claim. 

The Tenth Circuit found defendants’ argument unpersuasive and upheld the district court decision, on the grounds that allowing retaliation by government officials in response to a party exercising his Fifth Amendment rights would tend to chill citizens’ exercise of their rights.  This would then lead to the government “taking property” without paying just compensation.

Compare:  Cherry Hill Towers, L.L.C. v. Township of Cherry Hill, 407 F.Supp.2d 648 (D. N.J., 2006), where a developer made out a reasonably credible claim that a public official withheld construction permits in order to coerce the developer to award contracts to higher priced union shop contractors rather than non-union contractors, although there was no legal requirement that the developer use the union contractors.    . 

The developer filed a Section 1983 complaint alleging that the delay in issuing the construction permits was: (1) arbitrary, irrational, and tainted by improper motive in violation of 14th Amendment substantive due process rights; (2) in violation of 14th Amendment procedural due process rights; (3) contrary to the equal protection rights of the 14th Amendment; and (4) a tort of interference with contract and prospective economic advantage.  The municipality moved for summary judgment.

The court held that to prevail on a substantive due process claim that a government official has improperly denied construction permits, a developer must show that the official's actions shocked the conscience, not merely that the official had an improper motive. .  In response to the developer's claim that the subcode official withheld issuing the permits to pressure the developer to use unionized labor, the Court refused to decide whether the developer's applications were improperly denied.  The Court reasoned it is not a "super zoning tribunal." 

For the developer to succeed on its equal protection claim, the Court required a showing that the subcode official acted irrationally or wholly arbitrary.  It found no supporting evidence.

Comment: The editor, frankly, is “shocked” that the court in the principle case found a remedy.  Perhaps the nature of the conduct, as opposed to the motive, was so overbearing and oppressive that the court concluded that some remedy was necessary.  But the editor has seen courts review many examples of clear abuse of power by public officials  that have not resulted in any compensation or other relief for the victims. 

Readers are encouraged to respond to or criticize this posting.

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