Well, no sooner had we hit “publish” on our last post (which ended with, “let’s wait for the transcript”), that the court reporter posted the transcript. Whoa, fast.
Read and analyze away, friends!
Transcript, Knick v. Township of Scott, No. 17-647 (U.S. Jan. 16, 2019)
As Professor Gideon Kanner likes to remind us, eminent domain has been characterized as “the dark corner of the law.” We thought back to that phrase when we joined the queue outside of the Supreme Court this very dark (and very cold) morning, for the rehearing in the Knick v. Township of Scott case, this time with a full Court (Justice RBG was not present in the courtroom today, but will take part in the case).
We soon got in the building, got warm, and got seated along with fellow takings geeks and the general public.
We’ll have a detailed write-up once the written transcript is released, but for now, here are our initial thoughts.
We have mostly avoided the most recent kerfuffle about the southern border wall (or fence, take your pick) for a few reasons.
First, the signal-to-noise ratio is pretty bad at the moment, and that usually isn’t a good predictor for rational conversation. Second, others are covering the subject much better than we ever could. See Professors Gerald Dickinson, and Ilya Somin, for example. Third, yet other experts are going to be covering this topic at the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs (Jan 24-26, 2019), and we can get the critical information downloaded to our brain from those right on the front lines. And finally, we’ve been tied up getting ready for a very important appellate oral argument which the Hawaii Supreme Court is hearing today. Actual work calls!
But we just couldn’t resist when this item crashed our Twitter feed
It wasn’t going to be too hard to figure out what the U.S. Court of Appeals for the Sixth Circuit was going to do in Lumbard v. City of Ann Arbor, No. 18-1258 (Jan. 10, 2018). After all, the case involved a federal takings claim in federal court, which the district court dismissed because the plaintiff had already litigated her state takings claims in state court.
Yes, the plaintiff tried to make an England reservation in the earlier state court litigation to inform everyone that she was expressly not also litigating her federal takings claim. But ever since San Remo, you know what that means: diddly squat. Later, when the plaintiff came to federal court and asserted her federal takings claim, that court concluded full faith and credit, blah blah blah.
The Sixth Circuit in just a few more words, affirmed. A short opinion (7 pages) with nothing
Here’s the decision in a case we’ve been following from afar in which our colleagues Anthony Della Pelle and Robert McNamara are on the side of property owners, Borough of Glassboro v. Grossman, No. A-4556-17T2 (Jan. 7, 2019).
This is redevelopment, New Jersey style. We ask that you read the opinion (it isn’t terribly long, and it is worthy of your perusal in its entirety), but here’s the bottom line:
[W]e hold that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere “stockpiling” of real estate that might, hypothetically, be useful for a redevelopment project in the future. In addition, the condemning authority in such a contested case must present
Our final 2018 post focused on what we thought was the biggest case of that year, and which, we’re predicting, will be the biggest case of 2019: Knick v. Township of Scott, No. 17-647, that’s the one in which the Supreme Court is considering whether federal takings claims can be brought in federal court, and whether to revisit the 30-year old Williamson County “state procedures” requirement.
So we’re kicking off 2019 with our thoughts on that case, coming up for reargument next week.
Before we get to our prognostication (yes, we’re going to go there, however futile doing so might be), we wanted to lay out our thinking on the issues so you can see how we got there. The wildly divergent positions taken by the three main players — Ms. Knick, the Township, and the United States — illustrate well how mucked up and opaque regulatory takings
