Reargument analysis: Justices seek a “middle position” in takings litigation case

During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversial because, as I explained previously, it often prevents local takings plaintiffs from getting into federal court. The court first heard argument in October, before Justice Brett Kavanaugh joined the bench, and ordered supplemental briefing in November, asking for more information on one of the plaintiff’s alternative theories. At yesterday’s argument, the justices seemed to search for a narrow way to limit Williamson County’s effect on local takings plaintiffs without overturning the decision or revisiting the meaning of an unconstitutional taking.

The case is rooted in petitioner Rose Mary Knick’s claim that the township of Scott, Pennsylvania, effected an unconstitutional taking of her property through an ordinance allowing some public access to property containing burial grounds. Arguing on Knick’s behalf, David Breemer stressed that a taking is complete and actionable at the time the property owner suffers injury unless the government contemporaneously promises to pay compensation. Chief Justice John Roberts asked if perhaps, rather than basing the decision on “something as grand as when the constitutional violation … has come to fruition,” the court might resolve the case with “simply a rule about how those cases should be handled in state court as opposed to federal court.” But Breemer disagreed, reiterating Knick’s view that Williamson County hinges on a flawed understanding of the takings clause.

Justice Stephen Breyer asked Breemer a long series of questions attempting to show that Knick’s position is impractical. He indicated that a state must always make a determination, sometimes a complicated one, about whether it will pay compensation for an alleged taking. Deeming a taking complete and litigable in federal court before a state has completed that determination, he suggested, would not make the plaintiff better off. Justice Elena Kagan echoed this practicality question. She also noted the conceptual case against Knick’s position: One cannot say there has been a denial of “just compensation” until the government has in fact denied a request to pay. Justice Sonia Sotomayor drew an analogy to the federal Tucker Act, which provides a judicial compensation mechanism for takings by the federal government, and asked why states, too, can’t choose a judicial compensation mechanism. Breemer answered that under the Tucker Act, the federal court adjudication is available as soon as the federal government’s property invasion occurs, and that takings claims against local governments should proceed the same way.

Solicitor General Noel Francisco argued the case on behalf of the United States. He disagreed with Knick’s view that a constitutional violation is complete when an invasion occurs. In the government’s view, “Williamson County’s premise” —  “that the government doesn’t violate the Takings Clause if it provides a mechanism for awarding compensation after the fact” – “was correct.” But Francisco argued that Williamson County’s rule is still wrong, for a subtle reason: Even though the Constitution has not been violated when a property invasion occurs, the owner still has been deprived of a constitutional right to just compensation. Kagan seemed skeptical about this novel theory, remarking that it “seems like a sentence that … you can’t even say without stumbling over it.” Justice Neil Gorsuch added, “I’m with Justice Kagan, I can’t think of another area in the law where we have this kind of artificial distinction that you’re proposing.” Francisco responded that the distinction may be novel, but is not artificial; it’s justified because “the Takings Clause is uniquely different” in its contemplation of lawful takings conditioned on a right to just compensation.

Kavanaugh, who some commentators have speculated may be the case’s deciding vote, asked his first question in the case during Francisco’s argument. He noted that both Knick and the United States seemed to share a “premise” that the state courts “aren’t as good as the federal courts,” and asked, “Why is that in your view?” Francisco responded that it is not his own opinion, but that Congress’ judgment, in enacting statutes like Section 1983, was that “state courts could not be fully entrusted to enforce federal constitutional rights.” But, Kavanaugh continued, “[d]idn’t Williamson County necessarily reject that interpretation of [Section] 1983?” And, he added, doesn’t stare decisis apply more strongly to interpretations of statutes? And wouldn’t Williamson County need to be “more than just wrong” for the court to overrule it? Francisco reiterated that Williamson County was thinly explained and has had unintended consequences for takings plaintiffs. Kavanaugh then seemed to throw Francisco a lifeline by asking about the government’s alternative theory, which is that federal courts can hear state takings claims under the statute conferring federal-question jurisdiction, 28 U.S.C. § 1331. Francisco agreed that the court could rule in Knick’s favor under Section 1331 without overruling Williamson County.

Francisco’s argument time closed with a question from Kagan, probing why the government disagrees with Knick that a taking is complete at the time of the property invasion. Francisco, setting forth a position common to both the United States and the township, emphasized the difficulty of requiring government officials (who are “duty bound not to violate the Constitution”) to determine, “on the front end,” whether a taking has occurred, before they have complete information about it.

Teresa Ficken Sachs argued for the township. Justice Samuel Alito posed many of the skeptical questions during her argument, suggesting that towns would need to make up-front determinations about the constitutionality of their actions no matter what (“You’re really telling me,” he asked, that as a lawyer advising a municipality, “you would not tell [them] … to think about the budgetary consequences of what [they’re] doing?”). He also pressed Sachs on why she preferred state court to federal court: “You want the home court advantage, right? That’s what all … litigants and lawyers want.” Sachs disagreed, stating that the town opposed federal court access because that access hinges on “a preliminary determination that we’ve somehow violated the Constitution. And that’s what we don’t want.” When Alito questioned that response (“[Y]ou’re telling me you have no practical reason for wanting to be in state court … it’s just some airy, theoretical idea …?”), Sachs added that state courts may better understand state interests and state property law, and that traveling to federal court might burden rural municipal lawyers.

Echoing the apparent theme of the day, Breyer asked: “Is there some kind of middle position here?” He, along with Roberts, wondered if the existing requirement that state compensation proceedings must be “reasonable, certain, and adequate” might allay some plaintiffs’ concerns. Sachs agreed with that principle, but defended Pennsylvania’s proceedings as speedy and “very, very favorable … for the property owner.”

Kagan asked about a problem emphasized in the briefing, and described in my earlier posts on this case: that plaintiffs who rely on state court compensation mechanisms often find themselves barred from federal court under preclusion rules, a consequence the court itself explained in a case called San Remo Hotel v. San Francisco. Sachs described that consequence as “a necessary result of the full faith and credit statute,” and stood by the town’s position that the court’s role is to clarify the implications of such statutes so that Congress can revise them if it sees fit. In response to questions from Kavanaugh, Sachs resisted the government’s theory “that section 1331 does allow a certain narrow category of state law claims to be directly brought in federal court.” Sachs noted that Knick actually did not bring a state-law claim in this case, but that in any event, such an exception would quickly swallow the rule: “Every state case would now be in federal court.”

In rebuttal, Breemer returned to Knick’s position that a taking is complete at the time of the property invasion. Sotomayor pushed back. “[W]hy can’t the state just come in and say we will pay just compensation to anyone who’s been injured by this so long as a state court says it’s a taking?” Breemer concluded where he had begun, emphasizing Knick’s position that the Constitution provides otherwise, and that overruling Williamson County’s contrary conclusion would solve the federal-court-access problem that has plagued local takings plaintiffs. Court-watchers will need to wait to see whether at least five justices agree, whether they choose to affirm Williamson County, or whether they are able to reach consensus on some middle ground.

Editor’s Note: Analysis based on transcript of oral argument.

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Past cases linked to in this post:

San Remo Hotel, L.P. v. City County of San Francisco, 545 U.S. 323 (2005)
Williamson Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985)