This is the fourth in our series of five posts with thoughts on the landmark decision in Knick. In this installment, the dissent. Related posts:
- Part I: After More Than 30 Years, Supreme Court Reopens The Federal Courthouse Door To Property Owners
- Part II: The Court Finds A Vehicle In A Zombie-Zoning Case
- Part III: What It Means To "Take" Property Without Compensation
- Part V: What's Next?
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We cannot mask our disappointment with the dissenting opinion. We usually appreciate Justice Kagan's opinions and measured approach, even while dissenting. And after the first oral arguments in October, we thought there was a chance, albeit slim, that she might see things Ms. Knick's way.
But even though we were pretty sure she would rule for the government, we didn't anticipate as vehement a defense of Williamson County's "no violation until you sue the government for compensation and lose" rationale as the dissent made, along with a rejection of any change in the thirty-year status quo, with no recognition of the path of destruction that case wrought upon property owners and their rights.
We viewed the dissent as revealing several fundamental disconnects with the majority about takings law.
Who is "the government?"
As we noted in our earlier summary of the majority opinion, the first fundamental disconnect between the two camps is that the dissenters view the state judiciary as part and parcel of a municipal government's compensation mechanism, while the majority considers state courts as a separate branch, changed with resolving disputes, not being part of the compensation process.
Here's what we think reveals the Achilles' heel of the dissent's rationale:
The majority today holds, in conflict with precedent after precedent, that a government violates the Constitution whenever it takes property without advance compensation--no matter how good its commitment to pay.
Dissent at 1 (emphasis added).
So we have to ask: what "commitment to pay" has a local government made, if all it says to property owners who say that their property has been taken by regulation is "sue me?" (hat tip Justice Thomas). None in our view. The availability of a state court action for inverse condemnation under state law isn't any kind of recognition by the local government that it may be liable for a taking, is it?
Compare state judiciaries (separate co-equal branches of state government) with the Court of Federal Claims, an Article I legislative forum which has been tasked by the federal legislature (Congress) with considering federal inverse condemnation and takings claims in lieu of the former "private bill" method of obtaining compensation. To us they are not the same, even though they may kind of look the same. Pursuing a claim for compensation from the feds in the CFC is, to us, somewhat similar to obtaining a final decision (the first Williamson County ripeness prong, not challenged in Knick): merely the legislature's delegation to a hearing officer to determine whether the legislature should pay up.
Thus, when the dissent writes that "[t]he Takings Clause is different because it does not prohibit takings; to the contrary, it permits them provided the government gives just compensation. So when the government 'takes and pays,' it is not violating the Constitution at all," you can see how the dissenters are mashing together both the municipal government defendant and the state judiciary into "the government." Dissent at 2. But "the government" hasn't "taken and paid." Instead, the local government has taken, and the state judiciary may order it to pay. Indeed, "the government" has refused to pay. You see the dissent's conflation of municipal governments with state courts throughout the opinion:
Put another way, a Takings Clause violation has two necessary elements. First, the government must take the property. Second, it must deny the property owner compensation.
Dissent at 2-3 (emphasis added).
In our view, the more sensible understanding is that once "the [municipal] government" (allegedly) takes property, all the owner need do to ripen a claim is ask "the government" (the same government) to pay up, and it doesn't need to ask a separate branch of the state to force the municipality to do so. Isn't the separate roles which state courts have the vibe which resulted in the fractured opinions in the "judicial takings" case, Stop the Beach Renourishment?
Take first, pay later
The second fundamental disconnect was that the dissenters see a state court lawsuit as the functional equivalent of a local government's promise to pay. The dissenters saw this as nothing more that what follows ("as night the day") from long-standing rules which do not require payment of compensation before or at the time of an affimirmative taking by eminent domain. Slip op. at 3-4.
Cherokee Nation, for example, rejected the notion that advance payment is required by the Fifth Amendment, as long as "reasonable, certain, and adequate" post-taking compensation is available. To the dissenters, a state law inverse condemnation action in state court qualifies. Williamson County merely reflected how the Takings Clause works in regulatory takings cases: the same way it works in eminent domain (according to the dissent). Thus, the logic goes, a state court inverse claim to recover compensation for the legal taking is a prerequisite to a ripe federal cause of action. This, they asserted, is based on "a hundred years" worth of "precedent after precedent," "stretching back to the late 1800s." See Dissent at 6-11.
But isn't there a big difference between an eminent domain quick take where the government occupies now, with the corresponding recognition of the absolute obligation to pay whatever the court later determines is just compensation, and a regulatory taking where the government is exercising some other power, and absolutely denies that it needs to pay anything?
Takings Clause: "unique"
The third fundamental disconnect was that the dissenters rejected the majority's view that property rights should be treated the same as other rights recognized by the Bill of Rights. Instead, they consider the Takings Clause as "unique among the Bill of Rights' guarantees." Dissent at 2. To the dissenters, this is a textual argument (harking back to Williamson County) because in their view, there is no constitutional issue unless and until "the government" denies compensation.
By contrast, the majority see property rights not as a "poor relation" to other fundamental rights, and conclude that the text of the Fifth Amendment does not compel any different result.
Let sleeping dogs lie?
In the last section of the dissent, Kagan vigorously defended "letting sleeping dogs lie" (in Justice Breyer's oral argument words), and argued the Court should not overturn Williamson County for all the reasons that the Supreme Court does not lightly overturn precedent.
We get that the stare decisis debate is part of a much larger context, mostly framed by other cases. Whether it is prudent to go back and revisit existing case decisions and rules of law generally is a question we shall leave to the commentators and legal scholars. But we will say this whatever counsels against overturning recent decisions, Williamson County was a uniquely bad choice for a stare decisis hill to die on.
Williamson County should be afforded little deference simply because its been around for a while, for two main reasons.
First, as we wrote in our earlier post, the state-litigation rule which Williamson County adopted sua sponte was the usual percolation process in reverse. The SG had raised the issue (not the parties), and the Court just adopted it without the benefit of party briefing, or prior deep consideration by the legal academy. Consequently, the rationale which the Court adopted in Williamson County was too clever by half, and in our view a self-inflicted wound, and an "unforced error."
Nor was the validity and application of the doctrine was never tested or argued directly in the Court in the intervening decades, with a small exception of 2005's San Remo. But even there, the arguments were more focused on preclusion and full faith and credit and why Williamson County didn't control, not why it was fundamentally wrong:
Justice O'Connor: And you haven't asked us to revisit that Williamson County case, have you?Mr. Utrecht: We have not asked that this Court reconsider the decision in Williamson County.
Justice O'Connor: Maybe you should have.
That lesson was not repeated, and by the time Ms. Knick filed her petition, several property owners had already asked the Court directly to overturn Williamson County. Fool me once, shame on you; fool me twice...we won't get fooled again! The Court had to have know that, like The Terminator, "we'd be back."
That leads to our second reason. The last thirty-plus years of experience has starkly revealed how the theory works in practice: it doesn't. What value is there in retaining a procedure that has led to such overwhelming problems? Even the rule's supporters, as the majority pointed out, do not strenuously defend it for the reasons it was adopted. And even in Knick, the Township didn't really defend it on those grounds. Instead, it couched its arguments in terms of federal jurisdiction and § 1983. Not exactly a resounding endorsement of Williamson County's rationale.
Thus, to us, the dissent's objections on stare decisis (pages 16-19) are really more of a howl of protest about the doctrine in other cases, not this one, which didn't really deserve deference simply by the passage of time.
Chicken Little or Chicken Nothing?
We end this post on this, the dissent's complaint that Knick has upset the apple cart. Will lead to cats and dogs living together ... mass hysteria as the Ghostbusters put it:
The majority's overruling of Williamson County will have two damaging consequences. It will inevitably turn even well-meaning government officials into lawbreakers. And it will subvert important principles in judicial federalism.To begin with, today's decision means that government regulators will often have no way to avoid violating the Constitution.
Dissent at 12.As Justice Gorsuch recently wrote in another case, "Really?" We don't understand this thought, and it looks to us like the dissent is severely overstating it. Government regulators are in no worse off position today on the merits of takings questions than they were last Thursday. They are no more "lawbreakers" after Knick than before. The only major difference is that they now have to answer to a federal judge and not a state judge, and can't use Williamson County's state-procedures requirement to whipsaw property owners through years of pointless processes. The bar that property owners must cross in order to prove that a regulation actually takes property and requires compensation remains high. All you need to do to confirm that is do a Westlaw or Lexis search for cases in which the property owner wins.
Next up (our last post): What's Next?
