Retroactive continuity -- or "retconning" -- is, according to that authoritative source Wikipedia, a "literary device in which established facts in a fictional work are adjusted, ignored, or contradicted by a subsequently published work which breaks continuity."
For example, compare the real-world explanation for why the 1960's Star Trek show's Klingons didn't have butt heads, but the later-produced shows and movies did. The real-world reason was that the TV show had a bare-bones budget, so couldn't afford the required intricate make-up. The later-produced stuff, having larger budgets, could. But to those concerned with an in-universe explanation that had to line up with the production realities, it turned out to be a big source of contention. Fandom as well as the later shows' writers struggled to come up with a narrative that accounted for both Klingons with butt heads, and those without.
Sorry for the impossibly nerdy detour, but that's what the Solicitor General's argument in Knick v. Township of Scott reminded us of.
The SG's brief and argument has emerged as things to pay even more attention to than usual, because the Court's order resetting the case for argument -- and requesting additional briefing -- focused in large part on the federal government's position:
The parties and the Solicitor General are directed to file letter briefs, not to exceed 10 pages, addressing petitioner's alternative argument for vacatur, discussed at pages 12-15 and 40-42 of the transcript of oral argument and in footnote 14 of petitioner's brief on the merits.
But in our read, the petitioner (Ms. Knick) doesn't really argue for vacatur, and none of the three cites the order refers to are about vacatur. The SG's brief is the one that made the big vacatur push. It's even in the title ("Brief for the United States as Amicus Curiae in Support of Vacatur and Remand").
And now having gone back and reviewed the SG's difficult-to-comprehend argument, we are reminded of retconning. Because it seems to reach back and question the "continuity" of what were, we thought, "established facts."
Recall that in Williamson County, it was the SG's amicus brief that raised the whole ripeness argument. Neither party did. Read the Brief Amicus Curiae of Western Manufactured Housing Communities Association in Knick for the details on how the argument was first raised in Williamson County by the SG's brief, as a substantive requirement under the Fifth Amendment. There's been no constitutional wrong, the brief argued, until the state or local government has denied compensation. We disagree with the rationale, but we get the logic.
Flash forward three decades, and you have the SG now coming in on the side of the property owner to argue that federal court is an option in Fifth Amendment takings cases. Other than saying "whoops, we were wrong," how was the SG going to frame the government's argument? Retconning, that's how.
First, we think the goal of the SG's brief was to both come in on the side of property owners, while at the same time preserving the rule that compensation need not be provided contemporaneous with a taking, provided there are reasonable, certain, and adequate means to secure compensation after the taking. That rule, after all, allows quick takings and statutory takings, and forces property owners alleging an inverse condemnation or regulatory taking against the federal government to pursue compensation in the Court of Federal Claims in most instances. Above all else, the SG wants to preserve that line of decisions.
Second, the only way to do that was in a way that didn't undermine the Williamson County rationale first advanced by the SG's amicus was to retcon a new theory. And while it took no less that four reads of the SG's brief, here's our best summary of that retroactive continuity theory:
- Williamson County was only a ruling that under 42 U.S.C. §1983 a "takings" claim isn't ready for federal court and there's no federal constitutional violation until the state has both taken property, and refused to pay compensation.
- Consequently, a takings claim does not trigger a § 1983 claim until the state has denied compensation, because any constitutional violation isn't complete until the state has denied compensation. Thus, the Court need not overrule Williamson County. You still must pursue compensation in state court via a state law inverse condemnation claim and lose it, before you can even state a ripe claim under §1983.
- But (and there's always a "but," isn't there?) an inverse condemnation claim in state court to get compensation under state law is not a § 1983 claim, but independently implicates a substantial federal question. (That's how the municipal defendant removed Chicago Surgeons to federal court, for example.) And thus, federal jurisdiction may be invoked independently of whether there's been a federal constitutional violation, or a ripe cause of action under § 1983. (Knick's Reply Brief (page 4, n.5) rightly refers to this as a "puzzling" argument.)
- The embedded takings question is a “federal interest in a state claim" (our characterization, not the SG's) and that is enough to trigger federal question jurisdiction under 28 U.S.C. § 1331 (arising under jurisdiction).
So the bottom line of the SG's brief is this: Knick's situation presents no federal claim sufficient to trigger federal jurisdiction under the Fifth Amendment or § 1983, but there’s enough of a federal issue lurking about in a state inverse condemnation claim to trigger federal jurisdiction. Klingon foreheads, man.
Will the Supreme Court take up the thread as a way out of the self-created Williamson County mess? It looks like it really wants to.
Is the SG's argument too clever by half? A nice try?
Wrap your head around the argument's logic, then let us know what you think.
