Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.
Supreme Court briefJun 1, 2018
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No. 17-647
IN THE
Supreme Court of the United States
ROSE MARY KNICK,
v.
Petitioner,
TOWNSHIP OF SCOTT and CARL S. FERRARO,
Individually and in his Official Capacity as
Scott Township Code Enforcement Officer,
Respondents.
On Writ of Certiorari to the
U.S. Court of Appeals
for the Third Circuit
BRIEF OF WASHINGTON LEGAL FOUNDATION
AND ALLIED EDUCATIONAL FOUNDATION
AS AMICI CURIAE IN SUPPORT OF PETITIONER
Richard A. Samp
(Counsel of Record)
Marc B. Robertson
Washington Legal Foundation
2009 Massachusetts Ave., NW
Washington, DC 20036
202-588-0302
rsamp@wlf.org
Date: June 1, 2018
QUESTIONS PRESENTED
Amici curiae address the first question only:
Whether the Court should reconsider the portion
of Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 194-96
(1985), requiring property owners to exhaust statecourt remedies to ripen federal takings claims.
iii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v
INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I.
T H E C OUR T S HOULD O V E R R UL E
WILLIAMSON COUNTY’S STATE-COURT
EXHAUSTION REQUIREMENT . . . . . . . . . . . . . . 9
A.
Williamson County Was Premised
on a Misreading of the Fifth
Amendment’s “Just Compensation”
Requirement . . . . . . . . . . . . . . . . . . . . 11
B.
Prior Decisions on which
Williamson County Purported to
Rely Do not Support the Court’s
Holding . . . . . . . . . . . . . . . . . . . . . . . . 15
C.
Williamson County Creates Undue
Hardship for Property Owners
Asserting Takings Clause Claims . . . 18
D.
Subsequent Court Decisions Have
Largely Abandoned the Rationale
Underlying Williamson County . . . . . 21
iv
Page
II.
ALTERNATIVELY, THE COURT SHOULD
OVERRULE WILLIAMSON COUNTY WITH
RESPECT TO CLAIMS FILED AGAINST LOCAL
GOVERNMENTS . . . . . . . . . . . . . . . . . . . . . . . 27
A.
Unlike States, Local Governments
Do not Provide Their Own Forums
within which Property Owners Can
Assert Inverse Condemnation
Claims . . . . . . . . . . . . . . . . . . . . . . . . 27
B.
Unlike Proceedings Against States,
Proceedings Against Local
Governments Raise No Eleventh
Amendment Concerns . . . . . . . . . . . . 29
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
v
TABLE OF AUTHORITIES
Cases:
Page(s)
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) . . . . . . . . . . . . . . . . . . . . 25, 26
Acceptance Ins. Cos. v. United States,
503 F.3d 1328 (Fed. Cir. 2007) . . . . . . . . . . . . . . 16
Arkansas Game & Fish Comm’n v. United States,
568 U.S. 23 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 1
Arrigoni Enterprises, LLC v. Town of Durham,
136 S. Ct. 1409 (2016) . . . . . . . . . . . . . . . . . . . . . 12
Auer v. Robbins,
519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . . . . . . 28
Blumenthal Inv. Trusts v. City of West Des Moines,
636 N.W.2d 255 (Iowa 2001) . . . . . . . . . . . . . . . . 24
Breneric Associates v. City of Del Mar,
9 Cal. App. 4th 166 (1998) . . . . . . . . . . . . . . . 19, 24
Brown v. Legal Found. of Washington,
538 U.S. 216 (2003) . . . . . . . . . . . . . . . . . . . . . . . 30
Chicago, Burlington & Quincy R.R. Co. v. City
of Chicago, 166 U.S. 226 (1897) . . . . . . . . . . . . . . 30
City of Columbus v. Ours Garage and Wrecker
Services, Inc., 536 U.S. 424 (2002) . . . . . . . . . . . . 28
City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 528 U.S. 687 (1999) . . . . . . . . . . . . . . . . 12, 19
Cohens v. Virginia,
19 U.S. 264 (1821) . . . . . . . . . . . . . . . . . . . . . . . . 31
DLX, Inc. v. Kentucky,
381 F.3d 511 (6th Cir. 2004) . . . . . . . . . . . . . . . . . 31
Droste v. Bd. of County Comm’rs,
85 P.3d 585 (Colo. App. 2003) . . . . . . . . . . . . . . . 24
Eberle v. Dane County Bd. of Adjustment,
227 Wis.2d 609 (1999) . . . . . . . . . . . . . . . . . . . . . 24
vi
Page(s)
First English Evangelical Lutheran Church of
Glendale v. City of Los Angeles,
482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . 22
Fitzgerald v. Barnstable School Comm.,
555 U.S. 246 (2009) . . . . . . . . . . . . . . . . . . . . . . . 14
Gardner v. Village of Newburgh,
2 Johns.Ch. 162 (N.Y. 1816) . . . . . . . . . . . . . . . . 12
Horne v. U.S. Dep’t of Agriculture [“Horne I”],
569 U.S. 513 (2013) . . . . . . . . . . . . . . . . . . . . . . . 25
Horne v. U.S. Dep’t of Agriculture [“Horne II”],
135 S. Ct. 2419 (2015) . . . . . . . . . . . . . . . . . . . 1, 13
Hurley v. Kincaid,
285 U.S. 95 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 16
Hutto v. South Carolina Retirement System,
773 F.3d 536 (4th Cir. 2014) . . . . . . . . . . . . . . . . 31
Levatte v. City of Wichita Falls,
144 S.W.3d 218 (Tex. App. 2004) . . . . . . . . . . . . . 24
Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377 (2014) . . . . . . . . . . . . . . . . . 25
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) . . . . . . . . . . . . . . . . . . . . . . 31
Mayhew v. Town of Sunnyvale,
964 S.W.2d 922 (Tex. 1998),
cert. denied, 526 U.S. 1144 (1999) . . . . . . . . . . . . 24
McKesson Corp. v. Div. of Alcoholic Beverages
& Tobacco, 496 U.S. 18 (1990) . . . . . . . . . . . . . . . 31
Milillo v. City of New Haven,
249 Conn. 138 (1999) . . . . . . . . . . . . . . . . . . . . . . . 24
Monroe v. Pape,
365 U.S. 167 (1961), overruled in part on other
grounds, Monell v. New York City Dep’t of Social
Servs., 436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . 20
vii
Page(s)
Mt. Healthy City School Dist. Bd. of Education v.
Doyle, 429 U.S. 274 (1977) . . . . . . . . . . . . . . . . . . 29
Nollan v. California Coastal Comm’n,
483 U.S. 825 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 31
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) . . . . . . . . . . . . . . . . . . . . . . . 31
Parratt v. Taylor,
451 U.S. 527 (1981) . . . . . . . . . . . . . . . . . . . . 17, 18
Phillips v. Washington Legal Found.,
524 U.S. 156 (1998) . . . . . . . . . . . . . . . . . . . . . 1, 30
Regional Rail Reorganization Act Cases,
419 U.S. 102 (1974) . . . . . . . . . . . . . . . . . . . . 16, 17
Ruckelshaus v. Monsanto Co.,
467 U.S. 986 (1984) . . . . . . . . . . . . . . . . . . . . 15, 16
San Remo Hotel, L.P. v. City and County of San
Francisco, 545 U.S. 323 (2005) . . . . . 1, 6, 7, 18, 19
20, 21, 24, 25
Seven Up Pete Venture v. Schweitzer,
523 F.3d 948 (9th Cir. 2008) . . . . . . . . . . . . . . . . 31
Sintra v. City of Seattle,
119 Wn.2d 1 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 24
Stop the Beach Renourishment, Inc. v. Florida
Dep’t of Environmental Protection,
560 U.S. 702 (2010) . . . . . . . . . . . . . . . . . . . . . . . 23
Suitam v. Tahoe Regional Planning Agency,
520 U.S. 725 (1997) . . . . . . . . . . . . . . . . . . . . . . . 23
Williamson County Regional Planning Comm’n
v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985) . . . . . . . . . . . . . . . . . . . passim
viii
Page(s)
Statutes and Constitutional Provisions:
U.S. Const., art. iii . . . . . . . . . . . . . . . . . . . . . . 25, 26
U.S. Const., amend. v, Takings Clause . . . . . passim
U.S. Const., amend. xi . . . . . . . . . . 8, 9, 29, 30, 31, 32
U.S. Const., amend. xiv . . . . . . . . . . . . . . . . . . . . . . 30
U.S. Const., amend. xiv, Equal Protection Clause
14
Regional Rail Reorganization Act of 1973 . . . . . . . 17
Tucker Act, 42 U.S.C. § 1491, et seq. . . . . . . 6, 15, 16
42 U.S.C. § 1491(a)(1) . . . . . . . . . . . . . . . . . . 16
42 U.S.C. § 1346(a)(2) . . . . . . . . . . . . . . . . . . 16
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20
Miscellaneous:
Eric Berger, The Collision of the Takings and
State Sovereign Immunity Doctrines,
63 WASH. & LEE L. REV. 493 (2006) . . . . . . . . . . . 30
Note, Reconciling State Sovereign Immunity
with the Fourteenth Amendment,
129 HARV. L. REV. 1068 (2016) . . . . . . . . . . . . . . 30
Webster’s New Collegiate Dictionary (G. & C.
Merriam Co. 1981) . . . . . . . . . . . . . . . . . . . . . . . 12
INTERESTS OF AMICI CURIAE
The Washington Legal Foundation (WLF) is a
nonprofit, public-interest law firm and policy center
with supporters in all 50 states.1 WLF devotes a
substantial portion of its resources to defending free
enterprise, individual rights, a limited and accountable
government, and the rule of law.
WLF has regularly appeared before this and
other federal courts in cases involving claims arising
under the Fifth Amendment’s Takings Clause. See, e.g.,
Horne v. U.S. Dep’t of Agriculture [“Horne II”], 135 S.
Ct. 2419 (2015); Arkansas Game & Fish Comm’n v.
United States, 568 U.S. 23 (2012); San Remo Hotel,
L.P. v. City and County of San Francisco, 545 U.S. 323
(2005); Phillips v. Washington Legal Found., 524 U.S.
156 (1998).
The Allied Educational Foundation (AEF) is a
nonprofit charitable and educational foundation based
in Tenafly, New Jersey. Founded in 1964, AEF is
dedicated to promoting education in diverse areas of
study, such as law and public policy, and has appeared
as amicus curiae in this Court on a number of
occasions.
Amici are concerned that Williamson County
Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985), by requiring
Takings Clause claimants to exhaust state-court
1
Pursuant to Supreme Court Rule 37.6, amici curiae state
that no counsel for a party authored this brief in whole or in part;
and that no person or entity, other than amici and their counsel,
made a monetary contribution intended to fund the preparation or
submission of this brief. All parties have consented to the filing.
2
remedies before filing their claims in federal court, has
had the practical effect of denying them a federal
forum. That result is anomalous; a federal forum is
available to virtually all other claimants asserting
rights under the U.S. Constitution. Amici believe that
Williamson County is based on a misinterpretation of
the Fifth Amendment, is inconsistent with both
previous and subsequent Court decisions, and has
created undue hardship for litigants seeking
compensation under the Takings Clause. It ought to be
overruled.
STATEMENT OF THE CASE
Respondent Scott Township is a local
government unit located in Lackawanna County,
Pennsylvania. In 2012, it adopted an ordinance
governing the operation of cemeteries and burial places
within the township. Among the ordinance’s provisions
is a public-access provision: owners of cemeteries must
keep their property “open and accessible to the general
public during daylight hours.” Pet. App. A-3.
Petitioner Rose Mary Knick owns 90 acres of
land in Scott Township, where she and other members
of her family have lived since 1970. There are no public
cemeteries on the land, nor has Knick seen any signs of
a burial ground. Nonetheless, in April 2013, Scott
Township served her with a Notice of Violation stating
that an inspection of the land revealed “[m]ultiple
grave markers/tombstones” and directing Knick to
come into compliance with the public-access provision
by providing the general public with access to those
markers during daylight hours. A second Notice of
Violation, issued in October 2014, again directed Knick
3
to “make access to the cemetery available to the
public.” Id. at 5-A.
Knick responded by filing suit in federal district
court seeking relief under 42 U.S.C. § 1983, alleging
inter alia that Scott Township had “executed an
uncompensated physical invasion” of her property, in
violation of the Fifth and Fourteenth Amendments.
Pet. App. B-9. The district court granted Scott
Township’s motion to dismiss, ruling (based on
Williamson County) that the Second Amended
Complaint was not ripe for review because Knick
“failed to exhaust available state law remedies” before
filing suit in federal court. Ibid. In light of its failureto-exhaust ruling, the court declined to address
whether the complaint stated “plausible grounds for a
physical invasion taking of her property without just
compensation.” Id. at B-13.
The Third Circuit affirmed, citing Williamson
County. Pet. App. A-1 - A-33. The appeals court
explained that Williamson County established two
prerequisites for property owners seeking to assert
Takings Clause claims in federal court against a state
or local government:
First, the “finality rule” requires that the
government “has reached a final decision
regarding the application of the
regulation to the property at issue.”
[Williamson County, 473 U.S.] at 186.
Second, the plaintiff must seek and be
denied just compensation using the
state’s procedures, provided those
procedures are adequate. Id. at 194.
4
Pet. App. A-20 - A-21.
The Third Circuit agreed with Scott Township
that “Knick failed to comply with the second
Williamson County prong, exhaustion of state-law
compensation remedies, because Knick did not pursue
inverse-condemnation proceedings under
Pennsylvania’s Eminent Domain Code.” Id. at A-21, A28. The court stated that “Knick has no surviving
claim that the taking itself was invalid, apart from the
fact that she has not received compensation. The
remedy for an uncompensated (but otherwise valid)
taking is compensation.” Id. at 28a (emphasis in
original). It held that Pennsylvania law provides Knick
with an “adequate” procedure for seeking compensation
(a state-court lawsuit under the Eminent Domain
Code) and thus that Williamson County requires
dismissal of her federal-court claim. Ibid.
SUMMARY OF ARGUMENT
Williamson County grounded its state-court
exhaustion requirement on the language of the Fifth
Amendment’s Takings Clause: “[N]or shall private
property be taken for public use, without just
compensation.”
As the Court interpreted that
language, no constitutional violation exists until after
the relevant government body not only has taken
private property but also has rebuffed all efforts by the
property owner to obtain compensation for the taking.
Williamson County, 473 U.S. at 194-197. Among the
steps the property owner must take before her Fifth
Amendment claims against a local government ripens:
she must pursue compensation claims in state court, so
long as the state courts “provide an adequate process
5
for obtaining compensation.” Id. at 194. If the state
court awards just compensation, then no Fifth
Amendment violation will ever have occurred. Id. at
194-95.
Williamson County was based on a clear
misreading of the Fifth Amendment and ought to be
overruled. The Court held, “Nor does the Fifth
Amendment require that just compensation be paid in
advance of, or contemporaneously with, the taking; all
that is required is that a reasonable, certain, and
adequate provision for obtaining compensation exist at
the time of the taking.” Id. at 194 (emphasis added
and citations omitted). That holding is contradicted by
strong evidence that drafters of the Fifth and
Fourteenth Amendments expected that governments
would, in fact, pay “just compensation” at the time they
took private property. Yet Williamson County declares
that no constitutional violation has occurred even when
a local government delays paying compensation for
many years while contesting state-court inversecondemnation proceedings.
That holding makes little sense.
The
Constitution no doubt contemplates that justcompensation may be delayed while parties litigate
over whether a taking actually occurred. But if the
property owner is correct that a taking occurred, the
constitutional violation dates back to the month in
which the government refused to provide the requested
compensation. Williamson County’s contrary holding
misreads the Fifth Amendment. And because a
constitutional violation occurs on the date when the
government wrongfully withholds just compensation,
Williamson County’s rationale for precluding federal-
6
court litigation evaporates.
None of the decisions cited by Williamson
County support its interpretation of the Fifth
Amendment. Most of the cited decisions involved
Takings Clause claims against the federal government.
Each held that such claims must be filed in the Court
of Federal Claims pursuant to the Tucker Act. But
contrary to Williamson County’s contention, 473 U.S.
at 195, none of those decisions stated that the Takings
Clause claims were “premature” until after the
property owner files a Tucker Act claim. Lawsuits filed
in the Court of Federal Claims seeking just
compensation are, in fact, suits asserting violations of
the Takings Clause.
Williamson County’s state-court exhaustion
requirement has caused undue hardship for Takings
Clause claimants. The premise underlying that
requirement was that such claims would “ripen” after
a state-court judgment positively established that the
property owner would not be receiving his requested
“just compensation.” But San Remo Hotel made clear
that pursuing inverse-condemnation claims in state
court has no such ripening effect. Rather, once a state
court has issued a ruling denying a just-compensation
claim, preclusion principles prevent the property owner
from asserting Takings Clause claims in federal court.
546 U.S. at 336-38. The combined effect of Williamson
County and San Remo Hotel is that virtually all
Takings Clause claimants are denied any opportunity
to present their federal constitutional claims in federal
court.
That result is unlikely to have been
contemplated by the Court when it issued its
Williamson County decision.
7
Moreover, in the 33 years since Williamson
County was decided, the Court has repeatedly
repudiated that decision’s rationale even as it has
given lip service to the decision itself. For example, the
Court on several occasions has referred to the statecourt exhaustion requirement as “prudential.” But
that description makes little sense if, as Williamson
County reasoned, the requirement is based on an
interpretation of the Fifth Amendment’s language. If
no Takings Clause violation exists until compensation
has been denied in an “adequate” state-court
proceeding, then all federal-court Takings Clause
claims should be dismissed on the pleadings until after
a state-court judgment has been rendered, and there
are no “prudential” grounds for waiving the state-court
exhaustion requirement. Indeed, Williamson County’s
rationale should similarly bar all state-court Takings
Clause claims, and dozens of state courts so held in
response to Williamson County. But San Remo Hotel
overruled all of those state-court decisions; it held that
property owners could raise Takings Clause claims as
part of their state-court inverse-condemnation
proceedings, but it included no explanation why its
holding was not wholly inconsistent with Williamson
County’s interpretation of the Fifth Amendment. San
Remo Hotel, 545 U.S. at 346.
The Court’s failure to adhere to Williamson
County’s rationale in later decisions is a strong
indication—along with the absence of any pre-1985
precedent supporting the decision—that Williamson
County was wrongly decided. The Court should
overrule Williamson County’s state-court exhaustion
requirement and reverse the dismissal of Knick’s
federal-court Takings Clause claims.
8
If the Court is reluctant to abandon that
requirement altogether, alternative grounds exist for
ruling in Knick’s favor. Amici urge the Court, as an
alternative basis for reversing the Third Circuit, to rule
that the state-court exhaustion requirement is
inapplicable when the defendant is a local government
and to defer to another day the issue of whether to
overrule Williamson County when the defendant is a
State.
Several rationales support that alternative
holding. First, state courts and a state executivebranch agency are both components of a State’s
government. So when the latter denies a justcompensation claim, the denial is at least arguably
non-final so long as the decision is subject to revision
by another component of the same government. But
local governments, while they may be established by
and subservient to the State, are distinct entities. A
local government’s denial of a just-compensation claim
cannot plausibly be classified as anything other than a
final decision when it provides no forum of its own
within which to appeal the denial. Nothing in the text
of the Takings Clause suggests that the courts of a
State, and not those of the federal government, are the
appropriate forums for resolving Fifth Amendment
claims filed against a local government.
Second, Eleventh Amendment considerations
merit careful review when deciding whether to
sanction federal-court Takings Clause claims against
state governments. The Court has never addressed
whether the Eleventh Amendment grants States
immunity from federal-court suits raising claims under
the Takings Clause. Lower-court decisions and legal
9
scholarship suggest that the issue is a close one. But
there is no doubt that local governments such as Scott
Township are not entitled to any Eleventh Amendment
immunity. So there can be no federalism-based
objections to a ruling that overturns Williamson
County’s state-court exhaustion requirement with
respect to claims filed against local governments.
ARGUMENT
I.
THE COURT SHOULD OVERRULE WILLIAMSON
C OUNT Y ’ S S T A T E -C O U RT E X H AUS T I O N
REQUIREMENT
Williamson County’s adoption of a state-court
exhaustion requirement was based on a
misinterpretation of the Fifth Amendment, is
inconsistent with both previous and subsequent Court
decisions, and has created undue hardship for litigants
seeking compensation under the Takings Clause. It
ought to be overruled.
Amici note that Williamson County’s recognition
of a state-court exhaustion requirement was at most an
alternative basis for its decision to overturn a Takings
Clause judgment entered against a Tennessee county.
The Court initially determined that a property owner’s
constitutional challenge to the county’s land-use
regulations was not yet ripe for review because the
county had not made “a final decision regarding the
application of [the] regulations to the property at
issue.” 473 U.S. at 187. The Court noted that the
owner had not yet sought any variances from the landuse regulations; while the county had disapproved one
preliminary development plan based on those
10
regulations, the Court concluded that the disapproval
should not be deemed final given the very real
possibility that variance requests would be
granted—thereby permitting development to proceed.
Id. at 193-94. Only after determining that the county’s
land-use decision was insufficiently final to permit a
Takings Clause challenge did the Court turn to the
issue of a state-court exhaustion requirement.
The Court’s analysis of that issue focused on the
Takings Clause’s “just compensation” language. It
initially observed, “The Fifth Amendment does not
proscribe the taking of property; it proscribes taking
without just compensation.” Id. at 194. The Court
held that a local government, even if its interference
with property-development plans constitutes a taking
of the property, cannot be deemed to have denied the
requisite just compensation unless the property owner
is unable to obtain that compensation in inversecondemnation proceedings initiated in state court. Id.
at 194-95. Although resort to state-court proceedings
would likely delay compensation payments for a
number of years, the Court concluded that such delays
did not amount to a constitutional violation because
the Fifth Amendment does not
require that just compensation be paid in
advance of, or contemporaneously with,
the taking; all that is required is that a
reasonable, certain and adequate
provision for obtaining compensation
exist at the time of the taking. If the
government has provided an adequate
process for obtaining compensation, and
if resort to that process yields just
11
compensation, then the property owner
has no claim against the Government for
a taking.
Ibid (emphasis added and citations omitted). The
Court concluded that the takings claim was premature
because the property owner had “not shown that the
[Tennessee state-court] inverse condemnation
procedure is unavailable or inadequate” and had not
utilized that procedure. Id. at 197.
A.
Williamson County Was Premised on
a Misreading of the Fifth
Amendment’s “Just Compensation”
Requirement
The linchpin of Williamson County’s adoption of
a state-court exhaustion requirement was its
conclusion that the Fifth Amendment does not require
“contemporaneous” payment of just compensation for
a taking and thus that no violation occurs even if
compensation is delayed until after a property owner
has initiated and completed a state-court inverse
condemnation proceeding. That conclusion is at odds
with the plain language of the Takings Clause.
The Fifth Amendment states, “Nor shall private
property be taken for public use, without just
compensation.” The most natural reading of that
language is that a taking is prohibited unless the
government contemporaneously pays just
compensation; one would not normally refer to a taking
being undertaken “with” just compensation unless the
payment is made at the time of the taking. See, e.g.,
Webster’s New Collegiate Dictionary (G. & C. Merriam
12
Co. 1981) (“with” is “used as a function word to indicate
combination, accompaniment, or addition”); Arrigoni
Enterprises, LLC v. Town of Durham, 136 S. Ct. 1409,
1410 (2016) (Thomas, J., joined by Kennedy, J.,
dissenting from denial of certiorari) (stating that the
Takings Clause “is most naturally read to mean that
compensation must accompany the taking, and not that
the claimant shall have the opportunity to ask for the
compensation remedy in a post-taking court action”)
(citation omitted).
The Court never held otherwise prior to
Williamson County. The Court later examined the
history of just-compensation proceedings (both under
the Takings Clause and the common law) in City of
Monterey v. Del Monte Dunes at Monterey, Ltd., 528
U.S. 687 (1999). It concluded that common-law
inverse-condemnation claims were classified by 18th
and 19th-century American courts as tort actions, in
which a property owner sought damages for trespass.
528 U.S. at 715. The implication is clear: requiring a
landowner whose property has been taken to resort to
an inverse-condemnation proceeding to obtain just
compensation was viewed as a legal wrong—not simply
an orderly procedure for determining the requisite
compensation.
Indeed, the 19th-century decision principally
relied on by Del Monte Dunes for its characterization of
inverse-condemnation claims, Gardner v. Village of
Newburgh, 2 Johns.Ch. 162 (N.Y. 1816) (Kent, Ch.),
held explicitly that the common law requires the
government to pay contemporaneously whenever it
takes private property for a public use. The defendant
in Gardner (a local government), in an effort to create
13
a source of public drinking water, diverted water that
normally passed through property owned by the
plaintiff, who used the water for irrigation and to
operate a mill. Because the government failed to
compensate the landowner for this interference with
his riparian rights, Chancellor James Kent issued an
injunction against the water diversion. Kent held that
governments are entitled to take property for a public
purpose, but only if contemporaneous payment is
made: “But to render the exercise of the power valid, a
fair compensation must, in all cases, be previously
made to the individuals affected, under some equitable
assessment to be provided by law.” Id. at 166
(emphasis added). See also Horne II, 135 S. Ct. at 2426
(quoting Magna Carta’s provision prohibiting any
government official from “taking ‘corn or other
provisions from any one without immediately tendering
money therefor, unless he can have postponement
thereof by permission of the seller’”) (emphasis added).
Of course, a property owner who has suffered a
taking has no need to file an inverse-condemnation
action in state court unless she has been told by
government officials that she will not receive the
compensation to which she believes herself entitled.
Once she files the inverse-condemnation action in state
court and demands compensation, the government
answers by reiterating its denial that compensation is
due. Yet despite that express denial, Williamson
County holds that no Fifth Amendment violation occurs
unless and until the state court—years later—rules
14
against the property owner.2 According to Williamson
County, “no” does not mean “no” unless a state court
agrees years later with the government’s answer. That
holding cannot be squared with the plain language of
the Fifth Amendment.
Moreover, the state-court exhaustion
requirement is unique to claims filed under the
Takings Clause. Civil litigants asserting violation of
their rights under other constitutional provisions are
permitted to file suit in federal court without first
bringing their claims before a state court—even though
the Williamson County rationale could logically be
applied to their claims. For example, an applicant for
financial benefits from a local government may have
been denied the benefits on the basis of her race or
gender. Applying Williamson County’s rationale, the
local government could argue that the unsuccessful
applicant should be relegated to state court because
there would be no equal-protection violation if the state
court awards her all requested benefits. But of course,
courts have never so held; they routinely recognize the
right to file a federal-court claim for damages under 42
U.S.C. § 1983 for violations of the Fourteenth Amendment’s Equal Protection Clause. See. e.g., Fitzgerald v.
Barnstable School Comm., 555 U.S. 246 (2009).
Nothing in the Fifth Amendment’s language supports
denying the same right to Takings Clause claimants.
2
If the property owner ultimately prevails in state court
and is awarded her requested compensation, Williamson County
holds that the government has satisfied its Fifth Amendment
obligations and no constitutional violation has occurred. 473 U.S.
at 194-95.
15
B.
Prior Decisions on which Williamson
County Purported to Rely Do not
Support the Court’s Holding
Williamson County cited several of the Court’s
prior decisions in support of its interpretation of the
Takings Clause. None of the cited cases support
Williamson County’s no-need-for-contemporaneouscompensation holding.
The Court relied principally on Ruckelshaus v.
Monsanto Co., 467 U.S. 986 (1984), a case in which a
pesticide manufacturer sued for injunctive and
declaratory relief, alleging that the federal government
had taken its intellectual property without providing
just compensation. According to Williamson County,
the Court held in Ruckelshaus that “takings claims
against the Federal Government are premature until
the property owner has availed itself of the process
provided by the Tucker Act, 28 U.S.C. § 1491.” 473
U.S. at 195.
That statement mischaracterizes
Ruckelshaus, which quite clearly did not hold that the
manufacturer’s takings claims were “premature.”
Rather, it simply held that the manufacturer had filed
suit in the wrong federal court: instead of filing suit in
federal district court for injunctive and declaratory
relief, the manufacturer should have filed suit in the
Court of Federal Claims for damages, as specified by
the Tucker Act. Ruckelshaus, 467 U.S. at 1016-19.
Williamson County’s reference to “the process
provided by the Tucker Act” suggests that the
referenced Tucker Act “process” is something other
than a Takings Clause claim. That suggestion is
incorrect. Indeed, the Tucker Act creates no causes of
16
action; it is a jurisdictional statute that grants the
Court of Federal Claims exclusive jurisdiction for “any
claims against the United States founded ... upon the
Constitution” in excess of $10,000.
28 U.S.C.
§ 1491(a)(1); 28 U.S.C. § 1346(a)(2). It is well accepted
that “[a] Fifth Amendment takings claim falls within
the Tucker Act’s grant of jurisdiction because it is a
claim against the United States founded upon the
Constitution.” Acceptance Ins. Cos. v. United States,
503 F.3d 1328 (Fed. Cir. 2007). So by holding that the
plaintiff was required to file his damages claim in the
Court of Federal Claims under the Tucker Act,
Ruckelshaus was not suggesting that the plaintiff’s
Takings Clause claim was “premature” until after it
had availed itself of “the process provided by the
Tucker Act.”3
All but one of the other decisions relied on by
Williamson County also involved claims filed against
the federal government. Each simply affirmed that
Takings Clause claims should be filed in the Court of
Federal Claims and never suggested that such claims
were premature until “the process provided by the
Tucker Act” had been completed.
Williamson County cited one of those cases,
Regional Rail Reorganization Act Cases, 419 U.S. 102,
124-25 (1974), for the proposition that the Takings
Clause does not “require that just compensation be
3
Ruckelshaus also stated, “The Fifth Amendment does not
require that compensation precede the taking.” 467 U.S. at 1016
(citing Hurley v. Kincaid, 285 U.S. 95, 104 (1932)). But it never
stated that the Fifth Amendment does not require the
contemporaneous payment of just compensation.
17
paid ... contemporaneously with the taking; all that is
required is that a ‘reasonable, certain and adequate
provision for obtaining compensation’ exist at the time
of the taking.” 473 U.S. at 194. Regional Rail held no
such thing. At issue in the case was whether a 1973
federal statute adopted to assist in the reorganization
of bankrupt Northeast railroads (the “Rail Act”) had
withdrawn Tucker Act jurisdiction over Takings Clause
claims. The Court held that the Rail Act had not
withdrawn Tucker Act jurisdiction, and thus that the
Court of Claims possessed jurisdiction to hear any justcompensation claims that railroad creditors might
raise if they later concluded that the Rail Act effected
a taking of their property. 419 U.S. at 125-136, 148.
Regional Rail did not state that the federal
government would remain in compliance with the
Takings Clause even if it delayed paying just
compensation after taking private property. To the
contrary, the Court held that the Court of Claims
would have jurisdiction under the Tucker Act to hear
a Takings Clause claim as soon as an uncompensated
taking of private property was alleged.
While
acknowledging that a final adjudication of whether an
uncompensated taking had occurred would be delayed
while Court of Claims proceedings continued, the Court
noted that “[i]nterest on a just-compensation award
runs from the date of the taking”—thereby recognizing
that the constitutional violation is complete as soon as
the government takes private property yet fails to
provide just compensation. Id. at 148 n.35.
The only other case relied on by Williamson
County for its state-court exhaustion requirement did
not even involve the Takings Clause. Parratt v. Taylor,
18
451 U.S. 527 (1981), involved a due-process claim
raised by a prisoner whose hobby kit was lost due to
the alleged negligence of state prison officials. 473 U.S.
at 195 & n.14. The Court concluded in Parratt that
prison officials did not violate the plaintiff’s
constitutional rights by failing to provide him with predeprivation “process”—noting the obvious difficulty in
providing a hearing prior to depriving the prisoner of
his property when the defendants never intended to
lose the hobby kit. The Court held that prison officials
satisfied the prisoner’s due process rights by providing
him with an opportunity for a post-deprivation hearing.
451 U.S. at 543-44. That holding is far afield from
Williamson County; the issue in Parratt had nothing to
do with a prisoner’s right to compensation for property
taken by prison officials—a right that prison officials
never denied.
C.
Williamson County Creates Undue
Hardship for Property Owners
Asserting Takings Clause Claims
Overruling Williamson County’s state-court
exhaustion requirement is warranted for the additional
reason that it creates undue hardship for property
owners asserting Takings Clause claims. Those
hardships are well-illustrated by the Court’s decision
in San Remo Hotel; instead of ripening Takings Clause
claims for later assertion in federal court (the Court’s
stated intention in creating a state-court exhaustion
requirement), the effect of the requirement is to ensure
that Takings Clause claims can virtually never be
19
heard in federal court.4
San Remo Hotel involved a California property
owner who sought to assert as-applied Takings Clause
claims in federal court against a California city whose
regulations significantly restricted permissible uses of
the property. The Ninth Circuit dismissed the claim as
unripe, holding that Williamson County required the
property owner first to seek relief in California state
court. The property owner complied, filing an inverse
condemnation lawsuit alleging violation of California
law—but not any constitutional claims, because
California courts deemed Takings Clause claims unripe
until after a property owner had exhausted state-law
remedies.5 After fully complying with Williamson
County by exhausting his state-court remedies (the
California courts denied compensation), the property
owner returned to federal court to pursue his Takings
4
The hardship for property owners is reduced
considerably if the government concedes that a taking has occurred
and files a condemnation action in state court. Under those
circumstances, the property owner is relieved of the burden of
initiating litigation, and the only contested issue left for decision
is the amount of compensation to be paid. See Del Monte Dunes,
526 U.S. at 711-12 (cataloging the “important legal and practical
differences between an inverse condemnation suit and a
condemnation proceeding”). If the Court is reluctant to overrule
Williamson County’s state-court exhaustion requirement in its
entirety, it may wish to consider ruling, in the alternative, that the
requirement should remain in place only when the government has
filed a condemnation proceeding in state court. Scott Township
has not, of course, initiated any such proceeding with respect to its
taking of Knick’s property.
5
Breneric Associates v. City of Del Mar, 9 Cal. App. 4th
166, 188 (1998) (citing Williamson County).
20
Clause claims. But this Court ruled unanimously that
preclusion rules now barred the property owner from
asserting those claims. San Remo Hotel, 545 U.S. at
336-48.
The combined effect of Williamson County and
San Remo Hotel was to deny the property owner any
opportunity to raise his substantial Takings Clause
claims, whether in federal court or in state court.
Thus, a rule initially created in Williamson County for
the purpose of requiring Takings Clause claims to be
ripened before being asserted in federal court has
transmogrified into a rule that precludes federal-court
consideration of such claims—and in some instances,
as in San Remo Hotel, precludes all consideration.
The effective ban on federal-court review of
Takings Clause claims undercuts one of Congress’s
central purposes in adopting 42 U.S.C. § 1983, which
creates a cause of action against state actors for
violating federal constitutional rights:
It is abundantly clear that one reason [42
U.S.C. § 1983] was passed was to afford a
federal right in federal courts because, by
reason of prejudice, passion, neglect,
intolerance, or otherwise, state laws
might not be enforced and the claims of
citizens to the enjoyment of rights,
privileges, and immunities guaranteed by
the Fourteenth Amendment might be
denied by the state agencies.
Monroe v. Pape, 365 U.S. 167, 180 (1961), overruled in
part on other grounds, Monell v. New York City Dep’t of
21
Social Servs., 436 U.S. 658 (1978).
Indeed, four justices who concurred in San Remo
Hotel nonetheless recognized the unfairness of a rule
that “all but guarantees that claimants will be unable
to utilize the federal courts to enforce the Fifth
Amendment’s just compensation guarantee.” San
Remo Hotel, 545 U.S. at 351 (Rehnquist, C.J.,
concurring, joined by O’Connor, Kennedy, & Thomas,
JJ.). The justices stated that Williamson County’s
impact on takings plaintiffs was “dramatic” and that
its justifications were “suspect”; they urged that the
state-court exhaustion requirement be reconsidered.
Id. at 352. The undue burdens imposed on litigants by
Williamson County provide ample justification for
overturning a precedent that has not withstood the test
of time.
D.
Subsequent Court Decisions Have
Largely Abandoned the Rationale
Underlying Williamson County
Williamson County adopted its state-court
exhaustion requirement based on its understanding of
the meaning of the Fifth Amendment. The Court
interpreted the Takings Clause as imposing no
requirement that just compensation be paid
contemporaneously with the taking of private property;
no constitutional violation occurs even if the
government delays for years following the taking before
making its final decision to pay compensation. Later
Court decisions have largely abandoned that
understanding of the Fifth Amendment. In light of
that abandonment, stare decisis considerations should
carry little or no weight in the decision whether to
22
overrule Williamson County.
Less than two years following its decision in
Williamson County, the Court addressed whether
litigants were entitled to recover monetary damages for
temporary “regulatory” takings—those regulatory
takings that are ultimately invalidated by the courts.
The Court determined that such damages are
recoverable, even when the government decides to
discontinue its regulations to avoid being forced to pay
for a permanent taking of the regulated property. First
English Evangelical Lutheran Church of Glendale v.
City of Los Angeles, 482 U.S. 304, 322 (1987). Although
the Court sought to distinguish Williamson County,
482 U.S. at 321,the two decisions are in considerable
tension.
First English was premised on a conclusion that
awarding damages for a temporary taking is
constitutionally required because it is unfair to
property owners to deny them both compensation and
the use of their property during the years (following a
taking) often required to litigate contested takings
claims. Id. at 318-19. But if, as Williamson County
held, no Fifth Amendment violation can come into
existence until a state court denies a just-compensation
claim, First English’s unfairness rationale is
substantially undercut. Williamson County suggests
that the time necessary to resolve inversecondemnation proceedings in a state court is part of the
delay inherent in the “normal” process undertaken by
governments in determining whether to approve
property-development plans. First English, 482 U.S. at
334-35 & n.12 (Stevens, J., dissenting) (citing
Williamson County).
23
Williamson County’s rationale is also called into
question by the numerous decisions that have referred
to the state-court exhaustion requirement as
“prudential” in nature. See, e.g.. Suitam v. Tahoe
Regional Planning Agency, 520 U.S. 725, 734 (1997).
In Stop the Beach Renourishment, Inc. v. Florida Dep’t
of Environmental Protection, 560 U.S. 702, 729 (2010),
the Court said that the requirement is not
“jurisdictional” and thus was waived by Florida
officials when they failed to raise it explicitly in their
opposition to the certiorari petition. But describing the
requirement to exhaust remedies by seeking just
compensation in “adequate” state-court proceedings as
“prudential” and not “jurisdictional” suggests that the
Court now views it as a mere procedural requirement
rather than, as Williamson County held, a required
element of a Takings Clause claim.
Florida asserted at all stages of the Stop the
Beach Renourishment litigation (including in its
opposition to the certiorari petition) that its activities
did not constitute an uncompensated taking of the
plaintiffs’ property. The Court addressed the merits of
that issue and agreed with Florida that no Takings
Clause violation had occurred. 560 U.S. at 729-33.
Had the Court concluded that Florida’s failure-toexhaust-state-court-remedies argument was part and
parcel of its no-Takings-Clause-violation argument (a
conclusion it would have reached had it adhered to
Williamson County’s interpretation of the Fifth
Amendment), it would have had no basis for concluding
that Florida waived its Williamson County failure-toexhaust argument.
That the Court now views Williamson County as
24
imposing merely a procedural requirement is also
supported by its San Remo Hotel decision. In the years
following the Williamson County decision, most of the
state courts that addressed the issue concluded that
property owners could not raise Takings Clause claims
as part of a state-court inverse-condemnation
proceeding. They very reasonably concluded that if, as
Williamson County held, no Fifth Amendment violation
can exist until after “adequate” state-court justcompensation proceedings are completed, then preexhaustion Takings Clause claims are no more
actionable in state court then they are in federal court.
See, e.g., Breneric Associates v. City of Del Mar, 69 Cal.
App. 4th 166, 188 (1998); Droste v. Bd. of County
Comm’rs, 85 P.3d 585, 591 (Colo. App. 2003); Milillo v.
City of New Haven, 249 Conn. 138, 154 n.28 (1999);
Blumenthal Inv. Trusts v. City of West Des Moines, 636
N.W.2d 255, 262-64 (Iowa 2001); Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 929 n.2 (Tex. 1998), cert.
denied, 526 U.S. 1144 (1999); Levatte v. City of Wichita
Falls, 144 S.W.3d 218, 224 (Tex. App. 2004); Sintra v.
City of Seattle, 119 Wn.2d 1, 20 (1992); Eberle v. Dane
County Bd. of Adjustment, 227 Wis.2d 609, 638-39
(1999).
San Remo Hotel overturned that case law,
perhaps concerned that those decisions—when
combined with Williamson County and issue-preclusion
principles—effectively barred most property owners
from ever raising Takings Clause claims. 545 U.S. at
346 (“Reading Williamson County to preclude plaintiffs
[in state-court inverse-condemnation proceedings] from
raising [Takings Clause] claims in the alternative
would erroneously interpret our cases as requiring
property owners to resort to piecemeal litigation or
25
otherwise unfair procedures.”) (citation omitted). Of
course, the very same criticism could be leveled at
Williamson County’s state-court exhaustion
requirement. More importantly, San Remo Hotel’s
holding that Williamson County does not command
state courts themselves to impose the state-court
exhaustion requirement suggests that the Court no
longer adheres to Williamson County’s interpretation
of the Fifth Amendment. As the concurring justices
pointed out, Williamson County can be understood not
to impose such a command “only if Williamson
County’s state-litigation requirement is merely a
prudential rule, and not a constitutional mandate.”
San Remo Hotel, 545 U.S. at 351 n.2 (Rehnquist, C.J.,
concurring).
If Williamson County is a prudential rule, it is in
considerable tension with the principle, long recognized
by this Court, that “a federal court’s obligation to hear
and decide cases within its jurisdiction is virtually
unflagging.” Lexmark Int’l, Inc. v. Static Control
Components, Inc.,134 S. Ct. 1377, 1386 (2014). The
Takings Clause claims of Petitioner Knick and
similarly situated property owners fall within the
Article III jurisdiction of the federal courts. Horne v.
Dep’t of Agriculture [“Horne I”], 569 U.S. 513, 526 & n.6
(2013). Yet Williamson County provided no prudential
rationale for imposing a state-court exhaustion
requirement on Takings Clause claimants while
imposing no similar obstacles in the path of those
asserting other constitutional rights.
In Abbott Labs. v. Gardner, 387 U.S. 136 (1967),
the Court articulated a prudential ripeness rationale
for deferring federal-court review of some federal-law
26
challenges to the actions of government agencies.6 But
Abbott Labs stressed that its prudential ripeness
doctrine was limited to lawsuits seeking injunctive or
declaratory relief; that doctrine can justify deferred
adjudication of federal claims only because “[t]he
injunctive and declaratory remedies are discretionary.”
387 U.S. at 148. The Court has never invoked
prudential ripeness to deny federal-court access to
litigants who possess Article III standing and assert
claims for monetary damages.
In sum, the Court’s post-Williamson County case
law has largely abandoned that decision’s rationale for
adopting a state-court exhaustion requirement and has
re-characterized the requirement as a “prudential”
ripeness doctrine. Moreover, the Court has never
attempted to explain the rationale for a prudential rule
that is inconsistent with the longstanding doctrine
requiring federal courts to hear and decide cases
coming within their jurisdiction. The absence of any
coherent rationale for adhering to Williamson County
is yet another reason to overturn that decision and
permit Petitioner to assert her Fifth Amendment
claims in federal court.
6
In determining prudential ripeness, federal courts are
directed to evaluate both “the fitness of the issues for judicial
decision” and “the hardship to the parties of withholding court
consideration.” Abbott Labs, 387 U.S. at 149.
27
II.
A LTERNATIVELY , THE C OURT S HOULD
O VERRULE W ILLIAMSON C OUNTY WITH
RESPECT TO CLAIMS FILED AGAINST LOCAL
GOVERNMENTS
If the Court is reluctant to abandon the statecourt exhaustion requirement altogether, alternative
grounds exist for ruling in Knick’s favor. Amici urge
the Court, as an alternative basis for reversing the
Third Circuit, to rule that the state-court exhaustion
requirement is inapplicable when the defendant is not
a State.
Whatever justifications may exist for
upholding the requirement with respect to a State
defendant, those justifications are inapplicable to Scott
Township and the many other Takings Clause
defendants that are not States.
A.
Unlike States, Local Governments Do
not Provide Their Own Forums
within which Property Owners Can
Assert Inverse Condemnation Claims
Williamson County premised its state-court
exhaustion requirement on an understanding that a
government should not be deemed to have issued a
“final” denial of a just-compensation request until all
branches of that government have signed off on the
denial. 473 U.S. at 194-95. If the executive branch of
a State denies a property owner’s request for just
compensation for an alleged taking, it is arguable that
the State has not yet denied the request if it provides
a judicial forum within which the owner can re-assert
that claim.
But that argument is inapplicable to Knick’s
28
claims against Scott Township. Despite Knick’s
protests that the township is violating her Fifth
Amendment rights, it has served her with two Notices
of Violation directing her to make access to her
property “available to the public.” Pet. App. 5-A. Scott
Township has not established any forum within which
Knick could assert either that its actions constituted a
taking or that she is entitled to just compensation.
Scott Township asserts that Knick should be required
to raise her federal constitutional claims in a forum
created by the Commonwealth of Pennsylvania rather
than a forum created by the federal government, but it
has provided no coherent rationale regarding why the
Fifth Amendment requires that its choice of forums
should take precedence over Knick’s. And the fact that
Pennsylvania has made available a forum in which
Knick may assert a reverse condemnation claim does
not make the actions of Scott Township any less final.
Scott Township apparently premises its
Williamson County defense on its contention that it
should be considered the same entity as the
Commonwealth of Pennsylvania and thus that
Pennsylvania’s decision to permit Knick to seek redress
in its Court should be attributed to Scott Township
itself. That contention has never been accepted by this
Court. In a wide variety of cases, the Court has treated
state and local entities as distinct entities. See, e.g.,
City of Columbus v. Ours Garage and Wrecker Services,
Inc., 536 U.S. 424 (2002) (treating state governments
and local governments as separate entities for purposes
of determining whether federal law preempts
government regulation of towing services); Auer v.
Robbins, 519 U.S. 452, 456 n.1 (1997) (state
governments generally are not liable for the financial
29
obligations of local governments). While it is true that
local governments are established by and subservient
to state governments, those facts do not negate their
status as distinct entities. Because Scott Township is
not the entity that has provided a state-court forum for
the adjudication of Knick’s Fifth Amendment claims, it
cannot plausibly allege that it has not yet rejected
those claims. The Court should reverse the Third
Circuit’s dismissal of those claims regardless whether
state-court exhaustion is properly required for Taking
Clause claims filed against States that authorize the
filing of inverse-condemnation claims in their own
courts.
B.
Unlike Proceedings Against States,
Proceedings Against Local
Governments Raise No Eleventh
Amendment Concerns
The filing of damages claims against local
governments in federal court raises none of the
federalism concerns that arise from similar lawsuits
filed against States. The Court has repeatedly held
that the States’ Eleventh Amendment immunity from
federal-court litigation does not extend to local
governments. See. e.g., Mt. Healthy City School Dist.
Bd. of Education v. Doyle, 429 U.S. 274, 280 (1977).
Eleventh Amendment issues are thus irrelevant to
whether the Court should overturn Williamson County
as it applies to Takings Clause claims filed against
local governments.
The Court has never addressed the applicability
of Eleventh Amendment immunity to Takings Clause
claims filed against States. Substantial scholarship
30
supports the view that the Eleventh Amendment is
inapplicable to such claims. See, e.g., Eric Berger, The
Collision of the Takings and State Sovereign Immunity
Doctrines, 63 WASH. & LEE L. REV. 493 (2006); Note,
Reconciling State Sovereign Immunity with the
Fourteenth Amendment, 129 HARV. L. REV. 1068 (2016).
Proponents of the Eleventh-Amendment-is-inapplicable
viewpoint cite First English, in which the Court noted
the Takings Clause’s “self-executing character” and
stated that “in the event of a taking, the compensation
remedy is required by the Constitution.” 482 U.S. at
315-16. Because the Fourteenth Amendment made the
Fifth Amendment applicable to the States, Chicago,
Burlington & Quincy R.R. Co. v. City of Chicago, 166
U.S. 226, 239 (1897), there is considerable force to the
argument that the Fourteenth Amendment abrogated
States’ Eleventh Amendment immunity from Takings
Clause claims.
Moreover, this Court has frequently adjudicated
Takings Clause claims asserted against state
governments, without commenting on any Eleventh
Amendment implications of its assertion of jurisdiction.
Such instances include cases that were initially heard
in federal court—Williamson County did not bar
federal court review in those case because an adequate
state-court remedy did not exist. See, e.g., Brown v.
Legal Found. of Washington, 538 U.S. 216 (2003);
Phillips v. Washington Legal Found., 524 U.S. 156
(1998).7 Other instances include cases in which the
Court reviewed state supreme court decisions that
7
In Phillips, the lower federal courts rejected efforts by
the State of Texas to invoke Eleventh Amendment immunity.
31
rejected a landowner’s Takings Clause claims against
a State,8 even though the Court’s leading Eleventh
Amendment decision regarding appellate review
limited its approval of appellate review of state-court
decisions in which a State prevailed in the court below
to cases in which the State initiated the litigation.
Cohens v. Virginia, 19 U.S. 264, 405-12 (1821). Indeed,
in an area of the law closely analogous to Takings
Clause claims—due-process lawsuits against States for
a refund of taxes paid under protest—the Court has
explicitly held that the Eleventh Amendment does not
bar the Court from reviewing state-court decisions that
reject a tax refund claim. McKesson Corp. v. Div. of
Alcoholic Beverages & Tobacco, 496 U.S. 18, 26-31
(1990).
Nonetheless, the issue of whether States may
assert Eleventh Amendment immunity from federalcourt Takings Clause lawsuits is far from clear. At
least three federal appellate courts have held that the
Eleventh Amendment bars Takings Clause claims filed
against a State in federal court, at least where the
State’s courts are open and available to hear such
claims. Hutto v. South Carolina Retirement System,
773 F.3d 536 (4th Cir. 2014); Seven Up Pete Venture v.
Schweitzer, 523 F.3d 948, 954-56 (9th Cir. 2008); DLX,
Inc. v. Kentucky, 381 F.3d 511, 526-28 (6th Cir. 2004).
The Court need not, of course, reach the
Eleventh Amendment issue. For the reasons explained
8
See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606 (2001);
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992);
Nollan v. California Coastal Comm’n, 482 U.S. 825 (1987).
32
in Section I of this brief, it should overrule Williamson
County, reverse the lower courts’ dismissal of Knick’s
lawsuit, and remand the suit for further proceedings.
Because Scott Township is not a State, the Eleventh
Amendment will play no part in the remanded
proceedings. Even if the Court is concerned by the
Eleventh Amendment implications of overruling
Williamson County, it can appropriately defer any
consideration of those implications until it is faced with
a Takings Clause case in which the plaintiff asserts
monetary claims against a State.
Overruling
Williamson County will do nothing to undermine the
Eleventh Amendment immunity to which a State
might otherwise be entitled.
But if, due to Eleventh Amendment concerns,
the Court is nonetheless reluctant to overturn
Williamson County entirely, amici urge the Court, as
an alternative basis for reversing the Third Circuit, to
rule that the state-court exhaustion requirement is
inapplicable when the defendant is a local government
and to defer to another day the issue of whether to
overrule Williamson County when the defendant is a
State. Whatever relevance the Eleventh Amendment
may have to Takings Clause claims filed against a
State, it has no relevance to claims filed against local
governments such as Scott Township. Limiting the
overruling of Williamson County to claims filed against
local governments would allow the Court await the
arrival of a case involving Takings Clause claims
against a State before determining the proper
procedures for handling such claims.
33
CONCLUSION
The decision below should be reversed.
Respectfully submitted,
June 1, 2018
Richard A. Samp
(Counsel of Record)
Marc B. Robertson
Washington Legal Found.
2009 Massachusetts Ave., NW
Washington, DC 20036
202-588-0302
rsamp@wlf.org
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.