Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right? Sarah Adams-Schoen, Moderator Presenters Dwight Merriam Robert Thomas Friday 2:00-2:30 PM Eastern July 26, 2019 1
Our Panelists
Your Moderator
Dwight Merriam Attorney at Law Weatogue, Connecticut
Robert Thomas
Sarah Adams-Schoen
Damon Key Leong Kupchak Hastert Honolulu
Assistant Professor of Law Environmental and Natural Resources Law Center University of Oregon School of Law
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Two Upcoming Events of Interest
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Knick Overrules Williamson County: What Does it Mean for Eminent Domain? ABA Annual Meeting, San Francisco Thursday, August 8, 2:30 – 4 pm https://www.americanbar.org/groups/state_local_government/events_cle/2019-annual/ Steven J. Eagle, Professor Emeritus Antonin Scalia Law School at George Mason University
Brian T. Hodges Pacific Legal Foundation, Sacramento
Nicole Rinke California Department of Justice, Sacramento
Teresa Ficken Sachs Marshall Dennehey Warner Coleman & Goggin, Philadelphia
Paul Utrecht, Utrecht & Lenvin, LLP, San Francisco
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16th Annual Brigham-Kanner Property Rights Conference William and Mary Law School Williamsburg, Virginia October 3-4, 2019 https://law.wm.edu/academics/intellectuallife/confe rencesandlectures/propertyrights/index.php
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Rose Mary Knick Lived on a Farm…
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That Had Some Old Graves
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The Township of Scott Enacted an Ordinance “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.�
The township issued a notice of violation
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Knick Sued • In state court seeking declaratory and injunctive relief • The Township withdrew the violation and stayed the ordinance • Knick then sued in federal court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment. 11
Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .� 12
The Federal District Court Dismissed on Ripeness Grounds • What is “ripeness”? – Two prongs • Final decision • State compensation
• What is the “ripeness shuffle”?
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When Did the Taking Occur? • When the ordinance was enacted? or… • When Knick had exhausted her attempts to be compensated in the state courts?
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https://www.inversecondemnation.com/inversecondemnation/2019/07/knick-in-memes.html 15
Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)
A property owner has not suffered a violation of the Fifth Amendment until a state court has denied a claim for just compensation under state law in state court. 16
Knick Court Holds: “We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it.� 17
“Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.�
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“Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: “[N]or shall private property be taken for public use, without just compensation.” It does not say: “Nor shall private property be taken for public use, without an available procedure that will result in compensation.” 19
“A bank robber might give the loot back, but he still robbed the bank.” “A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place. The violation is the only reason compensation was owed in the first place. … 20
‌The availability of a subsequent compensation remedy for a taking without compensation no more means there never was a constitutional violation in the first place than the availability of a damages action renders negligent conduct compliant with the duty of care.�
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Questions Raised • Can the 5-4 decision be explained as a conservative-liberal issue? • Is Knick in derogation of stare decisis? • Will federal courts be flooded with new takings cases? • Will federal courts become immersed in small-time, local issues?
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What Can We Expect? • • • • • • •
More federal court property lawsuits Wider range of issues challenged NY rent control lawsuit Twombly/Iqbal Public use and injunctions? State law inverse claims? Attorneys’ fees! 23
fini…
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Sarah J. Adams-Schoen Assistant Professor University of Oregon School of Law 1515 Agate St. Eugene, Oregon 97403-1221 saschoen@uoregon.edu Twitter: @UOLawLandUse
Dwight Merriam dwightmerriam@gmail.com Attorney at Law 80 Latimer Lane Weatogue, Connecticut 06089 860-651-7077 www.dwightmerriam.com
Robert H. Thomas rht@hawaiilawyer.com Damon Key Leong Kupchak Hastert 1003 Bishop Street, 16th Floor Honolulu, Hawaii 96813 www.inversecondemnation.com Twitter: @invcondemnation
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