Take that, precedent!

The big decisions from the Supreme Court are coming fast, and in the takings jurisprudence world, the one issued on Friday was a biggie, overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)Knick v. Township of Scott, PA, No. 17-647 (U.S. S.C., June 21, 2019). We’ve blogged on this pending case before, Takings law – exhausted or just exhausting?, Sept. 28, 2018 and The Knicks again, and the jury is out in Massachusetts and in in Maine – or is it?, Mar. 12, 2019 . While the pundits after the argument – and re-argument – of this case were thinking the Court wouldn’t go so far as to strike down Williamson in toto, they did, 5:4, with CJ Roberts writing for the majority.

In the past, as we have commented upon many times, since 1985, when Williamson was decided, and with final nail in the coffin in 2005 with the Supreme Court’s decision in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, it’s essentially been impossible to have a regulatory takings claim heard, let alone to win one. While a takings claim can be asserted under 42 U.S.C. § 1983, which would normally giving a plaintiff the ability to go to federal court to pursue its cause of action, Williamson imposed a “ripeness” requirement, making the plaintiff ask for compensation first from the state before it could pursue its federal taking case. Because the avenue for asking for compensation from the state is an inverse condemnation suit, and because the Court in San Remo said the findings and conclusions of the state proceedings constituted res judicata for the civil rights claim, the result was a state agency/court making findings that killed any takings claim, without that claim ever being heard at all. CJ Roberts discussed this problem in his decision.

With Williamson overruled, a plaintiff can go directly to federal court. The opinion from CJ Roberts is also encouraging for those espousing takings rights as a general matter, because CJ Roberts said: “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.”

Knick doesn’t change the substance of takings law – it will still very hard to prove a regulatory taking. Also, this decision doesn’t address the other ripeness requirement discussed in Williamson – trying to identify what uses the state will allow on the property. Say you want to build 100 houses on a lot. The regulator denies that application. What if you could theoretically go back and propose building 50 houses? 49? 48? Do you have to keep going back to the agency to pinpoint what will or will not be allowed? While the answer to this question isn’t clear, because it wasn’t addressed, to me, and I could be wrong, the blanket nature of this decision suggests no, you don’t. Diminution in value – the primary touchstone in a regulatory takings case – is fact-specific, it looks like it is now to be decided as a part of the action itself, eliminating the procedural duty to go try to pinpoint before going to court.

CJ Roberts spends a lot of time talking about how injunctive relief isn’t available for a taking, which also leads to some questions that will need addressing in the future. If a rule or statute imposes a taking on its face, typically, injunctive relief has been available. While the law in this area is somewhat confused, courts – at least some – haven’t imposed the Williamson ripeness-exhaustion rule in that context in the first place. And logically, as a practical matter, I would think you’d always want to give the government the option to pull back from the rule causing the taking, whether facial or as-applied, to give it the choice whether to pony up the compensation or back off application of the regulation (and pay, where necessary, compensation for a temporary taking). So I don’t read this decision as the final word in clearly saying you shouldn’t ever request declaratory and injunctive relief in a complaint (along with the request for compensation). Justice Thomas’ concurrence would support this view, in that he states that he does not read the majority opinion (in which he joined) as saying ordinary remedial principles don’t apply in the takings context.

Justice Kagan wrote a vigorous and somewhat testy dissent. Part of the emotion may not be tied up in the specifics of this case, but reflects alarm at the numerosity of decisions from the current Court overturning precedent and perhaps fear of what may come in that regard in the future (as expressed by the last paragraph of her dissent). Focusing on this specific decision and the law of regulatory takings, I have read all those hoary old cases, written law review articles on regulatory takings, and could wallow in this jurisprudence until the cows come home. The dissent’s description of this ruling as unraveling longstanding jurisprudence well before Williamson I do not think is the better view – no one was even really pursuing regulatory takings cases until 1922, and the killer decision working in conjunction with Williamson wasn’t issued until 2005. From the get-go with Williamson, CJ Rehnquist portended the sticky mess the decision would create, and there have been signals from the Court for a long time that a re-visitation of this rule could be in the offing. Moreover, this issue, while with practical import on the viability of a claim, really involves procedure, not a holding as to the substantive scope of a constitutional right. There’s no longstanding reliance to worry about, and the decision only makes pursuit of constitutional rights easier, as opposed to constraining them. So, while it is true, and perhaps alarming to some or even many, that members of this Supreme Court seem itching to reverse existing law, I don’t view this decision as the property right equivalent of reversal of Roe v. Wade.

The immediate take away, at least for folks in Maine, is if you have a regulatory taking claim, FILE YOUR CLAIM IN FEDERAL COURT as a civil rights claim. Law Court precedent suggests it will never find a regulatory taking. If you can put a pup tent on a piece of land, or picnic, there is no taking. Perhaps the district court judges in Maine will take a similarly narrow view. But I would think that they will now need to look at federal precedent, and if you go to federal claims court decisions under the Tucker Act, there might be some broader wiggle room there for the plaintiff to cite. It will still be fiendishly difficult to navigate the procedural niceties and general complexities in this area, and substantively, such a claim is always uphill – you’d better have a massive diminution in value of property caused by state regulation. But if you do have such an impact on your property, this decision removes one large impediment to pursuing your constitutional claim.