The Supreme Court has declined to review the Second Circuit’s summary order upholding the dismissal of a federal court regulatory takings claim on Williamson County ripeness grounds.
In this order, the Court denied cert, over the dissent of Justice Thomas (joined by Justice Kennedy). We’ve said here many times why Williamson County is a bad rule, and needs to be tossed aside. We filed an amicus brief in the case in support of the cert petition which covers most of the reasons why.
The two dissenting Justices argued that the state-litigation requirements “are suspect,” and appear to be “inconsistent with the text and original meaning of the Fifth Amendment’s Takings Clause.”
Read the entire dissent (it’s not long), but here are the highlights:
- “In short, both the text of the Takings Clause and historical evidence cast doubt on Williamson County’s treatment of just compensation as a mere remedy, rather than a condition on the Government’s eminent-domain power.”
- “As critics of Williamson County have opined, the Takings Clause is more than a mere remedy. The requirement to pay just compensation “places a condition on the [government’s] exercise of ” the power to take private property in the first instance.”
- “Williamson County has downgraded the protection afforded by the Takings Clause to second-class status.”
- “Plaintiffs alleging violations of other enumerated constitutional rights ordinarily may do so in federal court without first availing themselves of state court. But the same is not true for a Takings Clause plaintiff.”
- “The quagmire that the Court has created in the lower courts is yet another reason to grant the petition.”
We know it’s a dissent and the issue isn’t going to be solved in this case. But reading it will fuel you up for the next effort in the inevitable overruling of Williamson County.