Here's the latest in a case we've been following (one in which we guessed from the beginning was headed where it is today).
The Zitos claim that their property was taken without compensation. They sued for compensation in federal court. Knick tells us that this is okay, right? Well, the problem for the Zitos is that they claim the State of North Carolina did the taking. And you know what that means: 11th Amendment "immunity." You can't sue a State for money in federal court without its consent. And North Carolina didn't consent.
The District Court dismissed. It concluded that it might have allowed the takings claim for compensation to proceed in federal court except that the Fourth Circuit already concluded that a federal court is barred from considering a takings claim against a state if state law recognizes a takings claim. See Hutto v. South Carolina Retirement System, 773 F.3d 536, 552 (4th Cir. 20914) ("'the Eleventh Amendment bars Fifth Amendment taking claims against States in federal court where the State's courts remain open to adjudicate such claims.").
Wait...you can't come to federal court with a takings claim if there are available state procedures for obtaining just compensation? Sounds familiar, no? Not to the Fourth Circuit, which affirmed. Read this detailed analysis of the Fourth Circuit's opinion here: "4th Circuit: State Sovereign Immunity Bars a Takings Claim in Federal Court when Remedies are Still Available in State Court."
The court held that Knick's throwing back open the federal court door to takings claims did not address or otherwise undermine the usual 11th Amendment rule. Nor does the "self-executing nature" of the 5th Amendment's Just Compensation requirement alter that. See Zito, slip op. at 11 ("So Knick did nothing new with respect to the self-executing nature of the Takings Clause in federal court.") (footnote omitted). Yes, Knick made Fifth Amendment private property rights equal with other rights (under Williamson County, these rights were definitely treated as second-class right), but it didn't elevate private property rights and merely subjected them to the same 11th Amendment limitations on other constitutional rights. There's an exception to the usual 11th Amendment immunity states enjoy in federal court if there isn't a "reasonable, certain, and adequate" means to obtain compensation in state court. But such remedies exist, the Fourth Circuit concluded.
So now we have the cert petition, which asserts this Question Presented:
Whether the Fourteenth Amendment’s incorporation of the “self-executing” Just Compensation Clause abrogates state sovereign immunity from federal takings claims?
Disclosure: the Zitos are represented by our law firm, Pacific Legal Foundation. So we're not going to say much more about this, except to note the Summary of Argument:
The Eleventh Amendment and the Fifth Amendment’s Just Compensation Clause express two of the most venerable constitutional principles in existence: sovereign immunity for states and just compensation for citizens whose property is taken for public use. These principles function independently and adequately in most cases. However, when a state takes property without compensation, sovereign immunity and the Just Compensation Clause—applicable to states through the Fourteenth Amendment—come into conflict. While the former bars a damages award, the latter positively requires it.The Fourth Circuit’s holding that sovereign immunity is superior to the right of compensation for a taking conflicts with this Court’s jurisprudence, diminishes the Just Compensation Clause, and conflicts with the decisions of other courts, all of which justifies review.
Pet. at 12-13.
Check it out, and stay tuned.
