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 that there’s no violation of the Fifth Amendment (Fourteenth, actually, but who is counting) until the defendant has denied compensation. Id. So how does the SG argue that although there’s been no violation of the Takings Clause, a property owner can still come to federal court?

She can come to federal court to “vindicate” her right to just compensation, that’s how. Id. at 5 (“the property owner is ‘depriv[ed] of her Fifth Amendment right, 42 U.S.C. § 1983, within the meaning of Section 1983, until the compensation is obtained“). Thus, a local government’s failure to admit there’s a taking (and the corresponding denial of compensation) is not a Takings Clause violation (because the violation isn’t complete until the owner has been denied compensation via the state’s inverse process), but the delay in compensation is a federal claim that you can go to federal court to vindicate.

If that leaves you a bit perplexed, give it time. Read it again. Then again. Then once more. Savor the wine. Eventually, the zen of the SG’s argument will reveal itself to you.

But, after all that, it is still confusing, think of it this way: follow the money, and also ask “if a taking occurred, when did it occur?” The answer, of course, is when the regulation is applied to the property alleged to have been taken, or when the owner’s property rights are invaded. In either event, interest on a just compensation judgment — if one is eventually entered — runs from the date of the taking, not just when an owner exhausts any available state inverse condemnation just compensation remedy. Id. at 6 (“Consequently, the property owner is also ‘deprive[d]’ of her right to just compensation from the moment of the taking until she has been paid.”). Here’s the key part of the SG’s letter:

Although the government does not violate the Takings Clause when it does not provide contemporaneous compensation for the taking of property but provides a reasonable, certain, and adequate mechanism to obtain compensation, the property owner is quite literally “depriv[ed] of a[] right[] * * * secured by the Constitution,” until the property owner actually receives the compensation guaranteed by the Takings Clause, and should therefore be able to bring an action under Section 1983 in federal court to vindicate that right. 42 U.S.C. 1983; see U.S. Amicus Br. 28-34.

Id. at 6 (emphasis added).

Ah, now we get it: even though the (alleged) taking isn’t a violation that triggers federal jurisdiction, nor is the failure to provide compensation contemporaneous with the taking a trigger, a property owner can go to federal court in order to get the court to say there’s a federal constitutional violation.

Which, we thought, is what we’ve been saying all along, although not at all in the same way. 

Here’s Ms. Knick’s (the property owner) letter brief.

Next up, the Township’s letter brief. 

SG’s Supplemental Letter Brief, Knick v. Township of Scott, No. 17-647 (Nov. 30, 2018)