A quick check of the Supreme Court’s docket in the Knick v. Township of Scott case shows that no less than 18 amici briefs have been filed top side. Not all of them in support of the Petitioner mind you (two, the briefs of the United States and of the American Planning Association, are in support of neither party, or ask the Court to impose a specific remedy), but whoa, that’s still a lot.
Shows us how much a case about a very technical aspect of takings law can generate huge participation, reflecting how important the issue of whether a property owner can file a federal takings claim in federal court truly is.
So you don’t have to read each one (although we encourage you to do so), here’s our quick summary of each:
- Western Manufactured Housing Communities Association: Details how the ripeness issue was never briefed or argued in Williamson County, but came about after the federal government raised it in its amicus brief.
- American Planning Association (in support of neither party): The Court should “follow, not overrule” Williamson County in as-applied challenges, but not apply it in facial takings claims. “Williamson County was not an aberration.” Br. at 5.
- Washington Legal Foundation, Allied Education Foundation: the framers of the Fifth Amendment expected governments “would, in fact, pay ‘just compensation;’ at the time they took private property,” Br. at 5, taking on one of the biggest bricks in the Court’s takings jurisprudence, the notion that the Takings Clause does not require payment of compensation contemporaneous with the taking, but the availability of post-taking process to get compensation is enough.
- American Farm Bureau Federation, National Cattlemen’s Beef Association, and CATL Fund: Williamson County not protected by stare decisis, as evidenced by the Court itself switching the case’s rationale from a substantive requirement, to a prudential one.
- Ohio Farm Bureau Federation: Some states, Ohio for example, do not recognize an inverse condemnation remedy, subjecting Ohio property owners to a “clear and convincing” standard under Ohio writ practice, not the “preponderance of the evidence” standard they would be subject to in a federal court 1983 case.
- Institute for Justice, Owners’ Counsel of America, Professor Dan Mandelker: the whole point of section 1983 was to provide a federal forum for the vindication of federal rights.
- Center for Constitutional Jurisprudence: Williamson County violates the original meaning and text of the Fifth Amendment. Br. at 7 (“In a sense, the
Williamson County state-litigation requirement is akin to the old tally sticks from the Middle Ages in England.”).
- Justice and Freedom Fund: “In navigating the complex interplay among procedural rules—including removal, res judicata, and collateral estoppel—the befuddled claimant is like a dog chasing its own tail but never catching it. Meanwhile the ripened claim, like a rotten tomato, falls to the ground.” Br. at 2.
- The Becket Fund for Religious Liberty: Williamson County has turned into an “all-purpose land-use doctrine” applied to RLUIPA, due process, and equal protection claims.
- Texas and Oklahoma: Overrule Williamson County‘s state-litigation requirement because it is both erroneous, and “imposes a substantial impediment to Fifth Amendment plaintiffs’ access to lower federal courts.” Br. at 2.
- United States (“In Support of Vacatur and Remand”): as Gideon Kanner notes, one of the more interesting briefs filed in the case. The brief isn’t an easy read, (and we might do a separate post on it), but get this (from a government brief!): “Like other plaintiffs asserting constitutional claims against local governments, those owners should be able to vindicate their federal rights by bringing actions in federal court. This Court should clarify or overrule Williamson County to make clear that they may do so.” Br. at 5.
- Citizens’ Alliance for Property Rights, inversecondemnation.com: our brief. The average landowner doesn’t understand why they can’t protect their federal rights in federal courts. And memes.
- Cato Institute, NFIB Small Business Legal Center, Southeastern Legal Foundation, Beacon Center of Tennessee, Reason Foundation and Professor Ilya Somin: Williamson County consigns Taking Clause claims to second-class status, and “is anathematic to the reforms Congress sought to effect with the Reconstruction Amendments and enactment of [section 1983].” Br. at 3.
- New England Legal Foundation: the Monsanto case, on which Williamson County‘s rationale is built, wasn’t a very good foundation for the state-litigation requirement. (Justice Blackmun wrote both opinions, by the way.)
- AARP and AARP Foundation: Williamson County‘s application to state tax foreclosure cases “illustrates the extremes to which courts have taken this doctrine.” Br. at 5. (Barista’s note: when you have motivated AARP to jump in a takings case, you know you are doing something right.)
- Congressman Steve King, Chairman, Subcommittee on the Constitution & Civil Justice, Committee on the Judiciary, U.S. House of Representatives; and Congressman Kevin Cramer: Congress would appreciate guidance from the Court on the “current scope of property rights protection.” Br. at 3.
- National Association of Home Builders: Williamson County has not been applied “in a fair and uniform manner” by the lower courts. Br. at 4. Landowners often seek other remedies besides just compensation.
- San Remo Hotel, L.P., Thomas Field, Robert Field, Franklin Kottschade, Peyman Pakdel, and Sima Chegini: Yes, that San Remo Hotel! Some firsthand experiences from the Williamson County trenches by property owners who got caught up (or are being caught up) in the Williamson web.
Now we wait for the Township’s merits brief, and any amici in support.