Here’s the Petitioner’s Brief on the Merits in Knick v. Township of Scott, No. 17-647, the case in which the Supreme Court is being asked to revisit our old nemesis, Williamson County‘s “state exhaustion” requirement, a doctrine which tells takings plaintiffs that they cannot press a takings claim against state or local governments until the owner has pursued and lost an inverse condemnation claim in state court.
More on the background of the case (we dubbed it “The Night of the Living Zombie Zoning Inspector” case) here.
Here’s a summary of the brief’s argument:
The jurisdictional pitfalls created by the state litigation requirement are sufficient to condemn the rule as an unworkable and unacceptable ripeness concept. But the doctrine is also deeply flawed at a theoretical level because it rests on an incorrect view of the role of the Just Compensation Clause in takings litigation. Contrary to Williamson County’s assumptions, a takings lawsuit does not rest on a violation of the “without just compensation” language in the Just Compensation Clause. 473 U.S at 195. It asserts that a government act must be recognized as a de facto taking, and that the Just Compensation Clause provides a federal damages remedy in that event. First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S 304, 315-16 (1987). The Clause operates as a takings remedy, not as an element of a claim and, as a result, it does not bear on the question of whether a takings claim is fit for review. Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 5 (1984) (The “owner has a right to bring an ‘inverse condemnation’ suit . . . on the date of the intrusion[.]”).
Br. at 13.
One amicus brief is already filed. There will be more, including ours, which we’re working on now.
Follow along on the Court’s docket here.
Petitioners’ Brief on Merits, Knick v. Township of Scott, No. 17-647 (May 29, 2018)