Argument analysis: Weighing federal court access for local takings plaintiffs
on Oct 4, 2018 at 9:31 am
Property owners sometimes allege that a local government has violated the Fifth Amendment’s takings clause, which prohibits the taking of private property “for public use, without just compensation.” But where can plaintiffs bring those claims? In Wednesday’s argument in Knick v. Township of Scott, the Supreme Court revisited a 1985 case that has made it difficult to bring certain takings claims in federal court. In that case, Williamson County Regional Planning Commission v. Hamilton Bank, the court ruled that “if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.”
As my argument preview described, that ruling has generated controversy. Its phrasing suggests that takings plaintiffs simply must start in state court. But because of the rules of preclusion, which prevent relitigation in federal court of issues that have been litigated in state court, Williamson County’s holding means that many takings plaintiffs have no federal forum at all (other than possible review by the Supreme Court itself). At argument on Wednesday, the court’s eight justices considered whether this restriction is an unfair catch-22 warranting reversal of Williamson County or an even-handed application of the rules of federal court jurisdiction.
The case arises out of a dispute between petitioner Rose Mary Knick and the Township of Scott, Pennsylvania. Knick argues that the township’s cemetery ordinance, mandating certain forms of public access to properties containing burial grounds, is a Fifth Amendment taking of her property that requires Pennsylvania to pay compensation. Knick would like to pursue her constitutional claim in federal court without going through the state’s inverse condemnation process – a state-court mechanism to determine whether a taking has occurred, and if so, how much compensation is due. The lower federal courts dismissed Knick’s case under Williamson County.
Attorney David Breemer of the Pacific Legal Foundation argued the case on Knick’s behalf. Breemer’s dialogue with the justices featured an extended discussion of when a takings clause violation occurs. Chief Justice John Roberts asked whether there can be any violation before the state has formally denied compensation through its inverse condemnation procedures. Breemer suggested that the state’s denial of compensation is clear—and thus a constitutional takings claim accrues—once the government “invades property without … condemning it.” In other words, by choosing to proceed without invoking the formal mechanisms of eminent domain, the state has made clear enough its decision not to compensate the property owner. Justice Samuel Alito echoed this view. Justice Elena Kagan and Chief Justice John Roberts pushed back, however, noting that the purpose of state inverse condemnation proceedings is to allow the state to determine whether it must pay. Those proceedings, in Roberts’ words, are a state’s way of saying, “[L]ook, we don’t think we owe you anything, but we have a process for determining whether we do or not.”
Solicitor General Noel Francisco, appearing on behalf of the federal government as an amicus in the case, argued the case himself—the fifth time he has argued a case since becoming solicitor general. He agreed with the township, and with Williamson County, that there is no constitutional takings violation until a state has denied compensation (assuming the state’s procedure for doing so is adequate); governments need not pay up in advance of, or at the same time as, a taking. That could spell trouble for would-be federal plaintiffs: As the briefing explored in detail, Section 1983, the federal statute plaintiffs typically rely upon to bring takings claims in federal court, requires a “deprivation” of a federal right.
But Francisco offered two ways to avoid “closing the … federal courthouse doors to a class of takings litigants.” First, the court could recognize that state inverse condemnation proceedings present a federal question for purposes of another federal statute, 28 U.S.C. § 1331, allowing federal courts to hear the claims. Kagan expressed interest in this theory, noting that “it seems a way out of this difficulty,” and asked if it “ha[d] ever been considered before.” Francisco answered that no court had addressed the Section 1331 theory in the Williamson County context, and Justice Ruth Bader Ginsburg observed that the issue was not raised in the courts below. Roberts noted the burden this theory might create for federal district courts, quipping, “[Y]ou can answer the letters that we’re going to get from district court judges around the country who are not going to be very happy learning that they now have to adjudicate state inverse condemnation actions, which can be fairly elaborate.” Roberts added that an inverse condemnation proceeding is “a very intensive procedure that seems more suited for state court than federal court.”
Justice Stephen Breyer asked Francisco why Williamson County should be disturbed at all. “Williamson was decided 32 years ago,” Breyer noted. “This is a very complicated area of law. Why not sleeping dogs lie? It’s called stare decisis.” Breyer acknowledged one “harm” described in the briefing—cases that government defendants remove to federal court, only to get them dismissed under Williamson County— but opined that the justices could fix that gamesmanship problem if they were to “write a sentence saying that’s wrong, you’ve waived it.”
When Francisco emphasized the problem of “closing the … federal courthouse doors” to takings litigants, Breyer and Sotomayor questioned his premise. Breyer stated: “[T]here’s no reason in history that federal courts have to be open to every federal claim. I mean, sometimes they are. Sometimes they’re not.” Sotomayor added that the federal courthouse doors are closed to other classes of litigants, including those with tax-related claims and those objecting to unreasonable searches and seizures.
The justices spent less time discussing Francisco’s second theory: that a takings plaintiff can claim a violation of a constitutional right for purposes of Section 1983 even though there has been no constitutional violation. The right to compensation, Francisco argued, “vests the moment the property is taken,” even though there is no constitutional violation if the government pays after the fact. Kagan noted that she had “read those pages of your brief a couple of times,” but did not see “how it is that you can say there’s a deprivation of a right when you simultaneously say that there’s been no violation.”
Teresa Ficken Sachs argued on behalf of the township. She fielded a series of questions about whether the township had already effectively denied compensation to Knick, and why Knick—unlike plaintiffs with other constitutional claims—had to await the result of state court proceedings before filing in federal court. Alito pursued the first issue: “Does the township owe her any money? Yes or no. I don’t see how you cannot have an answer to that question.” Sachs answered that the inverse condemnation proceeding had not yet occurred, but that in such a proceeding, “the township would say there has been no taking.” Echoing Breemer’s argument, Alito then stated that this position was sufficient to establish that “you have denied her compensation.”
Justice Neil Gorsuch added: “[W]hy should we single out … the takings clause for such disfavored treatment,” given that plaintiffs with other constitutional claims need not proceed to state court first? Sachs answered that “what the Constitution protects is the right to get just compensation” for a taking of property, not a right to prevent the government from taking property, and that the court has, “since … 1895, … specifically said inverse condemnation is an appropriate form of” providing compensation.
Kagan seemed to agree with Sachs’ position regarding the timing of the Fifth Amendment violation, but she expressed concern about the combination of Williamson County and preclusion principles. “I don’t think Williamson understood that the result of going through the state process for determining just compensation was that you were never going to be able to bring a Fifth Amendment claim,” Kagan stated. She asked whether there was a way around that problem, but the argument moved on before Sachs could answer fully. Breyer repeated his concern about removal practices, and Sachs agreed that “no one advocates for not having property owners have their appropriate day in court.”
Roberts told Sachs he was skeptical about making plaintiffs endure a state process that is long, burdensome and expensive. Sachs responded that the Pennsylvania process does not fit that description. In any event, she pointed out, the standard is whether the state procedure is “reasonable, certain, adequate.” She noted that a litigant in another state could have a claim if the state’s proceedings were so byzantine that they failed that standard.
Alito addressed the issue of stare decisis – the doctrine providing that the court should generally adhere to precedent — head-on. He questioned whether the state or township has relied in any meaningful way on Williamson County. “What else counsels in favor of stare decisis?” Alito asked. Sachs responded that Williamson County was right when it was decided, that reversing it might disrupt other precedents and that litigants have come to rely on the case as part of property law.
In his brief rebuttal, Breemer had perhaps the most memorable line of the day. Echoing Breyer’s earlier proposal that the court should “let sleeping dogs lie” by not disturbing Williamson County, Breemer stressed that “Williamson County is not a sleeping dog. It has run wild through the state and federal courts for 30 years swallowing just compensation rights of ordinary people like Ms. Knick.”