As we guessed immediately after arguments, today in this order the Supreme Court has set the Knick v. Township of Scott case for supplemental briefing, and reargument.
Here's the full text of the order:
This case is restored to the calendar for reargument. 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. The briefs are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 4 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.
This tells us that there was no clear consensus on the Court one way or the other, and with only eight justices hearing the case the first go-round, newly-minted Justice Kavanaugh is likely going to be the fulcrum in the case.
Here are the issues the order asked the parties to elaborate:
Transcript pages 12-15: Excerpt here. Is an inverse condemnation claim just like an eminent domain case? Not in our view. In eminent domain, the taker admits that there's a taking, and that it is willing to pay. Not so in an inverse case, where the alleged taker doesn't admit there's been a taking, and thus doesn't acknowledge that it has to pay anything. Is this a case, as Justice Kagan seems to think, where the "state hasn't said one way or the other. And we're going to find out in the inverse condemnation action whether the state is, in fact, denying all liability or whether the state is going to come in and say: You're right, there is liability here, and now let's talk about how much?" That isn't even close to what an inverse condemnation case is like. But Justice Alito seems to get it.Transcript page 40-42: Excerpt here. As we noted in our oral argument summary, Justices Alito and Gorsuch appear to understand the nature of inverse cases, and the critical differences between an eminent domain action, and an inverse action. The others, we're not so sure.Knick's brief, footnote 14: "Even if one accepts the Williamson County premise rejected here—that an inverse condemnation claim rests on a 'violation' of the Just Compensation Clause—the state litigation ripeness requirement is not a correct deduction from this premise. Accepting the premise for the sake of argument, the issue of whether an alleged taking is 'without just compensation' and 'complete' would depend on the actions of the responsible government entity at the time of the taking, not on the actions of a state court. If an agency charged with taking property fails to provide or guarantee compensation at the time of the property injury challenged as a taking, the alleged taking would be 'without just compensation.' A claim would be complete and ripe for review at that point under Williamson County’s own logic, regardless of what a state court might do."But we searched through the three cites in the Order, and found no mention of "vacatur."
Which leads us to believe that the Court might be headed towards the SG’s (incomprehensible, to us at least) argument:
Here, it appears to be undisputed that petitioner has an inverse-condemnation cause of action under Pennsylvania law that would allow her to assert her Fifth Amendment claim. Pet. App. A5, A21. Thus far, the case has been litigated on the assumption that she could not bring that cause of action in federal district court. If this Court rejects that assumption, it should vacate the judgment below and remand to allow petitioner to amend her complaint to invoke her Pennsylvania inverse-condemnation cause of action.8------------------
8 The fact that the Takings Clause provides a right to compensation does not resolve the question whether it also creates a cause of action to recover that compensation that can be pressed in federal court. Cf. Alexander v. Sandoval, 532 U.S. 275, 286-287 (2001). In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), this Court held that California had erroneously denied compensation for a particular type of taking under its inverse-condemnation cause of action. Id. at 314-318. Here, in contrast, Pennsylvania has provided a statutory cause of action that allows owners to recover the full measure of compensation required by the Fifth Amendment, and owners who wish to do so may bring that cause of action in federal court under Section 1331.
Brief for the United States as Amicus Curiae in Support of Vacatur and Remand at 27.
Is the Order suggesting the Court is leaning towards accepting the SG's argument, vacating the decision below and then remanding to the district court to allow Knick to amend, and re-plead what she presented as a federal takings claim as a state-law inverse condemnation claim, but one that can be in federal court pursuant to 42 USC 1983 and 1331?
If so, that to us is very strange. If Williamson County could get even more confused and nuanced, this seems like one way to do it.
The oral arguments revealed that a majority of the Court does not have a clear understanding of what a state court inverse condemnation case is about, or even what the issues are in those cases. And even after nearly a century, they're not even sure when a "violation" of the Takings Clause occurs. Or in what court it should be.
The whole Williamson County theory--that a state or local governmental agency has not denied just compensation until the state's highest court has denied an inverse condemnation claim--is based on a premise the majority of the Court has never fully accepted: that courts by their rulings can take property.We hope the briefing can clear some of that up. We'll see.
