In his latest Daily Journal column, Manatt Appellate Senior Counsel Michael Berger explored DeVillier v. Texas, in which state lawyers strategically removed the case to federal court in an attempt to dismiss it by claiming there was no basis for federal power over the State.
In the article, Berger explained how the state of Texas was sued by property owners for a taking on the north side of a newly built barrier on Interstate Highway 10 that turned the land into a floodwater retention basin. The State’s actions propelled the case to the Supreme Court, exposing the State’s tactics and emphasizing how the Fifth Amendment provided the landowners grounds to sue Texas, perhaps in federal court. “The bottom line, i.e., that the State should not be able to get away with this, seems correct. The procedure by which the parties will conclude the litigation seems a bit less clear,” Berger concluded.
Daily Journal subscribers can read the full article here.