Amicus Brief: Williamson County's State Procedures Requirement Is Ahistorical

We always enjoy reading the briefs filed by the Center for Constitutional Jurisprudence because they reference "first principles" and are usually heavy on the history. We like history. 

This amicus brief, filed by CCJ today in support of the cert petition in Arrigoni Ent., LLC v. Town of Durham, No. 15-631 (cert. petition filed Nov. 10, 2015), is no different. It argues that the "state procedures" prong of Williamson County should be overruled, or at least confirmed as a prudential (and not jurisdictional) requirement:

Apart from the procedural trap that Williamson County creates, Amicus Curiae urges this Court to reexamine the state litigation rule because the requirement is not firmly established in the text of the Takings Clause and it represents a significant departure from the original understanding of the right at issue. Stated succinctly, the Fifth Amendment requires that compensation be paid when the government takes property for public use. Compensation is not simply a remedy for a taking, but a condition upon which the exercise of the takings power depends. Accordingly, the moment a governmental body issues a final ruling to effect a taking without providing for adequate compensation, the constitutional violation is suffered—and the matter is therefore ripe for federal adjudication.

The principle that compensation must be paid at the time of the taking is deeply rooted in our legal history and can be traced back to Magna Carta. Among the grievances of the barons who compelled King John to sign Magna Carta was a concern that his deputies would delay payment for property seized under royal decree. While at the time of Magna Carta there was no dispute that the king’s agents were obligated to pay for seized provisions, payment was often delayed, sometimes indefinitely. Because the promise of future payment could prove illusory, Magna Carta prohibited certain takings “unless [the agent] pays cash for them immediately.” Magna Carta cl. 28 (1215), http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_28.

This make a total of four amicus briefs filed in support of the petitioner in the case. Here is the the Cato Institute's brief, here's the Institute for Justice's, here is the NFIB Small Business Legal Center and Professor Ilya Somin's brief.  

Stay tuned. 

Amicus Curiae Brief of Center for Constitutional Jurisprudence in Support of Petitioner, Arrigoni Ent., LLC...

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