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Washington Law Review

Roger D. Wynne

Abstract

A quagmire awaits anyone attempting to understand the analysis Washington courts employ to determine whether government action constitutes a “taking” of property for which compensation is due under the U.S. Constitution. The Washington takings analysis is complex and confounding, especially when compared to the relatively straightforward takings analysis established by the U.S. Supreme Court. This Article argues that the Washington State Supreme Court should reject the Washington takings analysis and adopt the federal analysis. Comparing the federal and Washington analyses underscores how, as a matter of form, the Washington analysis easily stymies those who must work with it. Substantively, the Washington analysis is unfounded on three key levels: (1) the existence of differences between the two analyses fatally undermines the Washington analysis; (2) the nature of those differences renders the Washington analysis constitutionally insufficient by lowering the floor of protection that property owners enjoy under the federal analysis; and (3) the differences do not enhance the federal analysis. Rejecting the Washington takings analysis in favor of the federal analysis would be consistent with the doctrine of stare decisis because the Washington State Supreme Court originally intended to harmonize Washington and federal takings law, even though the Court failed to implement that intent. When embracing the federal takings analysis, the Court should avoid mischaracterizations of the federal takings analysis and the temptation to justify the Washington analysis on independent state constitutional grounds for the first time

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