Crime & Federalism

I just came across DLX, Inc. v. Commonwealth of Kentucky, 2004 WL1899871 (6th Cir. 2004), which seems to say that state courts must hear takings cases brought against the states, sovereign immunity notwithstanding. I am posting the relevant language now but will blog about it soon.

But closer examination of each of these authorities reveals that they are concerned not with abrogating the states' Eleventh Amendmentimmunity in federal court, but with noting that the Fifth Amendment'srequirement of just compensation forces the states to provide ajudicial remedy in their own courts. "[T]he Constitution mandates theavailability of effective remedies for 'takings' and for the coercivecollection of taxes, and accordingly requires courts to provide those remedies, 'the sovereign immunity States traditionally enjoy in theirown courts notwithstanding.'" Hart & Wechsler, supra, at 379 (quoting Reich v. Collins, 513 U.S. 106, 110 (1994)). Reich explicitly holds that the requirement of a remedy for unconstitutional taxes does not trump "the sovereign immunity States enjoy in federal court, under theEleventh Amendment." 523 U.S. at 110. First English makes clear thatthe Fifth Amendment Takings Clause is a self-executing remedy, notwithstanding sovereign immunity. See 482 U.S. at 316 n.9.Therefore, had DLX brought a federal claim with its state claim instate court, the Kentucky courts would have had to hear that federal claim, and likely could not have required exhaustion as a prerequisiteto hearing the federal claim, see Felder v. Casey, 487 U.S 131, 146-47(1988), but this court is powerless to hear it.

(Hat tip: ACS Blog)