As Professor Gideon Kanner likes to remind us, eminent domain has been characterized as "the dark corner of the law." We thought back to that phrase when we joined the queue outside of the Supreme Court this very dark (and very cold) morning, for the rehearing in the Knick v. Township of Scott case, this time with a full Court (Justice RBG was not present in the courtroom today, but will take part in the case).
We soon got in the building, got warm, and got seated along with fellow takings geeks and the general public.
We'll have a detailed write-up once the written transcript is released, but for now, here are our initial thoughts.
- It was pretty clear right from the outset that the months intervening between October's argument and now -- and the various supplemental briefs and replies that have been filed -- have not cleared things up for an obvious majority of the justices. Those briefs seem to have solidified the Justices' existing approach (Alito, Gorsuch, and presumably Thomas on one side, with Breyer, Ginsburg, and Sotomayor on the other), with one exception. While Justice Kagan was not obviously on the side of "let (Williamson County's) sleeping dog lie" in October, this time around she seemed to be solidly in the Breyer, Ginsburg, and Sotomayor camp. Not much doubt to us that she is not on the fence, if she ever was. Thus, we count four votes for not tinkering with Williamson County's core rationale or holding.
- Nothing we heard today makes us rethink what we thought in October about San Remo preclusion and maybe Chicago Surgeons removal. We believe there's a solid majority to either reject outright the San Remo preclusion trap, or to limit it by allowing a property owner to institute a federal claim after a state inverse condemnation lawsuit runs its course. A sort of quasi-Pullman abstention doctrine, where a federal postpones its exercise to allow state proceedings to run their course. Same goes for allowing municipalities to remove takings claims from state courts to federal courts. Maybe the Court will nix that, or maybe the Court will take up the SG's suggestion of using 28 U.S.C. § 1331 as a basis for federal jurisdiction over the state law compensation question. But either way, we think that at the very least, a majority will do something about San Remo and Chicago Surgeons.
- The Court does not seem terribly interested in clearing up federal takings law at all. We say that because of one of the Chief Justice's first questions to Ms. Knick's counsel Dave Breemer, in which CJ stated (and we're paraphrasing here), "we're not that interested in clearing up takings law"). Or maybe that is just what we heard. In any event, pay attention to this portion of the transcript when it is released. If our recollection is accurate, that alone was an eye-opener. Not interested in clearing up takings law means to us that this case could get decided on very narrow grounds, even though the Question Presented on which the Court granted cert was whether to overrule Williamson County. This tells us two things: (1) the ruling in this case, whatever it might be, will paint with narrow strokes, and not a broad brush, and (2) the Chief Justice is the fulcrum. He's an incremental type guy, and probably sensitive these days about appearing partisan (even in a case like this, totally wonky and very definitely in a dark corner of the law -- the SCOTUS press corps was in attendance today sitting right next to us, but frankly didn't seem all that excited about the issues). Maybe the Chief would rather play it low-key?
- And what of Justice Kavanaugh? It was the empty chair back in October, now filled by him, that necessitated the rehearing, after all. Would he lead the charge and shore up his conservative bona fides with a strong press on property rights? Well, if he was feeling the property rights love, it wasn't terribly obvious. He asked a couple of questions to both parties, mostly focused on statutory jurisdiction. But nothing to give away his thinking or telegraph where he stands on the main issues. In short, he, like the Chief Justice, remains mostly a cypher.
- The parties mostly stuck to their guns. Ms. Knick argued that the invasion of a property right is the trigger to coming to federal court. The Township argued that this was merely a statutory case (section 1983), and that until a property owner has been denied compensation by the state courts in which the municipality sits, there has been nothing of constitutional concern. The Solicitor General once again argued that even though there's been no Fifth Amendment violation until the state has denied compensation via an inverse lawsuit, a property owner can still come to federal court before that in order to vindicate her right to compensation.
- If there are five votes for Ms. Knick and to curtail or overrule Williamson County, we think those five votes will solidify around the SG's position. Yes, it's kind of goofy, and a semantic argument hinged on a very small distinction since the difference between "violation" and "vindicate" is really arcane (remember what we said about the "dark corner of the law?"), and is one that is hard to grasp. But it does represent a compromise that could retcon the existing case law, would preserve the federal government's bottom line (relegating takings claims to the Court of Federal Claims under the Tucker Act and the "take now, pay later" rule), and would be something even the more strident property rights Justices could buy into.
So, for whatever it is worth, here is our bottom line prediction: Five-to-four, with the Chief Justice writing the opinion or handing it to Judge Kavanaugh. The opinion need not outright overrule Williamson County expressly, but will curtail it to such an extent that Ms. Knick will be able to count it as a solid victory.
The majority will mostly adopt the SG's suggested rationale, concluding that a property owner may come to federal court to ask that court to rule that a local regulation is a taking, and to establish the amount of compensation owed. Yes, there's been no Fifth Amendment "violation" until the municipality refuses to provide compensation, but that doesn't mean that a property owner cannot come to federal court in order to vindicate that right. That's a position recently staked out by Sixth Circuit Judge Kethledge. And i'It's what we've always said: the very process to determine if there's a taking also establishes whether compensation is owed.
Justice Alito (joined by Justices Thomas and Gorsuch) will write a concurring opinion staking out their stronger position.
Justice Breyer will lead the others, who will concur in part (getting rid of the San Remo preclusion trap, and maybe the unequal Chicago Surgeons removal procedure) and dissent in part, joined by Justices Kagan, Ginsburg, and Sotomayor, The dissent's theme being that the majority is tossing aside a century of precedent on what is the constitutional violation, carving out special rules for takings claims, and also disrespecting state courts (which have not been shown to be inadequate forums for resolving takings and local land use issues).
Would the above be entirely satisfying? No, we'd much prefer a direct hit on Williamson County and its underlying rationale, and not word games.
But as we noted earlier, we'll take what we can get.
That's it, for now. Stay tuned, as always.
