Inverse condemnation

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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…

Continue Reading Stop Making Sense: Knick, Williamson County, And Lessons For Takings From The Dusky Gopher Frog Decision – Are “Takings” Federally Justiciable?

We’re going to end 2018 with the latest in what we think was the most important issue of the past year (and which, we predict, will be the most important case in takings law for at least a decade when it likely gets decided in 2019), Knick v. Township of Scott, No. 17-647.

That case, as you well know, asks whether a property owner who alleges that a local government action has taken property but hasn’t paid the required just compensation is entitled to bring a lawsuit seeking just compensation under the Fifth and Fourteenth Amendments in a federal court.

Thirty years ago, in Williamson County, the Supreme Court said no. Or at least not until the owner has first pursued compensation via a state’s available procedures to recover compensation, assuming such procedures exist. Add to the mix the rules of preclusion and full faith and credit —…

Continue Reading Wrapping Up 2018, And Previewing 2019’s Most Important Case: Final Briefs In Knick v. Township Of Scott

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We’re almost there, but we still have room remaining. At the 2018 Conference in Charleston, we both sold out the registrations and the conference hotel, so we planned ahead for the upcoming 2019 Conference in Palm Springs at the Renaissance Palm Springs Resort. 

Register here. You will also be able to download the print brochure (above), or find out more details about the agenda and faculty on line. As always, we have assembled a great faculty — many of them new speakers — on the hottest topics in eminent domain and takings law: pipelines, jury presentations, challenging the take, an update on the most important decisions of 2018, pre-condemnation planning (from both the condemnor and property owner perspective), the border wall, and relocation. 

And of course, ethics and the “101” track for those new to the field, or experienced lawyers who would like a refresher on the…

Continue Reading Space Remaining Is Limited – Register Now For ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Palm Springs, Jan. 24-26, 2019)

Today’s post is long, but, we think, worth the investment of your time.

Bankruptcy is the way to get rid of debt. Plaintiffs who have sued the debtor but who have not reduced the lawsuit to a judgment are unsecured creditors. Unsecured creditors for the most part, go to the end of the payment queue, and that usually means then get squat. 

In In re Stockton, No. 14-17269 (Dec. 10, 2018), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit addressed whether it makes a difference that the plaintiff is a property owner, and the lawsuit that has not been reduced to judgment is an inverse condemnation claim for a taking: can a city’s Chapter 9 bankruptcy reorganization plan shed the obligation to pay just compensation, or is an inverse condemnation claim protected by the Takings Clause from impairment? 

Over a strong (“adamant”) dissent, the…

Continue Reading Ninth Circuit: Inverse Condemnation Plaintiff Must “Share The Pain” – City Can Shed Obligation To Pay Just Compensation In Bankruptcy, Which Is “Purely A Monetary Claim”

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A very good and active crowd for today’s Eminent Domain Conference (CLE International) in Scottsdale, Arizona. It was good to visit with some old friends, and also to get to meet some new colleagues.

Our talk focused on national trends, and this year’s most interesting condemnation and takings cases. Here’s the links to the cases I mentioned that are not in the written materials:

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Continue Reading Link’s From Today’s Eminent Domain Conference (Scottsdale)

Here’s the final brief for Ms. Knick, replying to the Township’s and the Solicitor General’s supplemental letter briefs.

It’s very short, so you should read it yourself. But here’s what we think is the highlight:

Williamson County is irreconcilable with the traditional view that a Takings Clause claim accrues (and is actionable in federal court) the moment government injures property without securing compensation. The Solicitor General ultimately concurs. SG Suppl. Brief at 6. Williamson County is also irreconcilable with the original understanding of Section 1983 as a law opening federal courts to unconstitutional takings suits, Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 687, 687 n.47 (1978), and with exhaustion of remedies doctrine.

Br. at 4. 

Ms. Knick’s argument focuses — correctly, we think — on Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984), pointing out that “[s]ignificantly, a suit…

Continue Reading Knick’s Supplemental Reply Brief: Injury To Property Triggers Right To Come To Federal Court

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With the first snow of the season beginning to fall in Williamsburg, today was the final day of classes at the William and Mary Law School. Which means that my time serving as the inaugural Joseph T. Waldo Visiting Chair in Property Rights Law is beginning to wrap up. There’s still the reading period, exams, and grading, but today was the last day we met as a class.

What a great law school, and wonderful students. I learned way more than I conveyed. A welcoming administration, faculty and staff, too. This was the best experience of my professional life.

A huge thank you to law school dean Davison Douglas, and Professors Lynda Butler and James Stern, for guiding and supporting me, and making me feel like I belonged. And to my students, who challenged me. And, of course to Joe Waldo, who made it all possible.Continue Reading End Of The Term For Law 608: Eminent Domain And Property Rights

Here’s the third (and final) supplemental letter brief in Knick v. Township of Scott, No. 17-647 (which is set for reargument before the Supreme Court next month).

Of course, you should not be surprised that the Township disagrees with both Ms. Knick’s arguments, as well as the SG’s supplemental brief, and argues instead that all’s well in Williamson County, and that the Court should not disturb it one bit. 

Indeed, if there’s a fault here, it lies with Congress (according to the Township), which could have provided for federal jurisdiction to consider “questions” of federal law, not merely “violations.”

Finally, it is worth recalling that petitioner’s only quarrel with Williamson County is that it recognizes limits on the subject-matter jurisdiction of lower federal courts to hear claims for just compensation. But those limits are statutory, not constitutional, and Congress has discretion to lift them. See…

Continue Reading Township’s Supplemental Brief In Knick: This Is A Statutory, Not Constitutional, Issue

As we wrote in this post, the federal government”s position in Knick v. Township of Scott, No. 17-647, which is set for reargument next month, has us a bit perplexed.

On one hand, the SG’s bottom line is good: property owners can bring their takings claims against local governments in federal as well as state courts. On the other, however, the SG’s supplemental letter brief disagrees with Ms. Knick’s supplemental brief, and argues that no, a “municipality does not violate the Takings Clause when it adopts a regulatory measure that may constitute a taking of property for a public use, even if it denies that such a taking has occurred[.]” SG letter at 3. The fact that state law provides a means for the owner to “still establish the existence of a taking and obtain just compensation through a reasonable, certain, and adequate state inverse-condemnation lawsuit,” means …

Continue Reading SG’s Supplemental Knick Brief: No Fifth Amendment Violation If Govt Does Not Admit To A Taking, But Property Owners Should Still Be Able To Come To Federal Court Anyway To “Vindicate” The Right To Compensation

Here’s the supplemental letter brief, filed today on behalf of Rose Mary Knick, as requested by the Supreme Court. 

Two more — by the Township and by the SG — to be filed today as well. We shall post those as they become available. 

Letter Brief of Rose Mary Knick, Knick v. Township of Scott, No. 17-647 (Nov. 30, 2018) 

Continue Reading Supplemental Knick Brief: Time Of Invasion Is When Property Is “Taken”