Posted by: Patricia Salkin | June 23, 2019

UNITED STATES SUPREME COURT OVERRULES WILLIAMSON COUNTY RIPENESS RULE

This post was authored by Edward J. Sullivan, Esq.

Knick v. Township of Scott, Pennsylvania, No. 17-647 (June 21, 2019) involved a local ordinance that required “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” Defendant Township claimed that the ordinance was a codification of common law; however, Plaintiff claimed in federal court that the ordinance constituted a taking of her property. The Third Circuit affirmed a trial court dismissal, finding the federal claim was not “ripe” under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985) because no state court had denied compensation under state inverse condemnation law. The majority claimed that under San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005) a “preclusion trap” occurred because the denial of a taking claim in state court would, under the federal “full faith and credit” statute, require federal courts to give preclusive effect to the state court judgment so that takings claims could not, as a practical matter, be brought in federal courts.

Chief Justice Roberts’ majority opinion overruled Williamson County, stating “a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it” so that the claim may be litigated at once in federal court under the Civil Rights Act, 42 U. S. C. §1983 regardless of state post-taking remedies that may be available to the plaintiff because the right to just compensation rests on the Constitution and not any statute. The Court characterized Williamson County as holding that the presence of a state remedy qualifies the right, preventing it from vesting until exhaustion of the state procedure, but suggested that cases before and after Williamson County were inconsistent with its holding, focusing on the “self-executing” nature of the Fifth Amendment’s Taking Clause and the right to an immediate remedy for a constitutional violation.

The majority opinion criticized Williamson County for its reliance on Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1018, n. 21 (1984), which found no taking claim under the Tucker Act (which deals, inter alia, with takings claims against the federal government) by saying that Congress may establish an arbitration requirement as a prerequisite to such a claim and denying an injunction. But Congress has that power, and the states (and their local government subdivisions) do not. Moreover, because the takings claim may still be brought and compensation achieved, there is no basis for an injunction under the Fifth Amendment. The majority opinion distinguished or criticized other elements of the Williamson County decision, stating it rested on “shaky grounds” and it resulted in “unintended consequences.”

Williamson County relied on previous Supreme Court precedent that held that the Takings Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation” after a taking, but the majority opinion said that precedent should not be read “too broadly” because the conclusion was based on cases in which equitable relief was sought or the Tucker Act provided an adequate remedy and said:
We conclude that a government violates the Takings Clause when it takes property without compensation, and that a property owner may bring a Fifth Amendment claim under §1983 at that time. * * * [B]ecause the violation is complete at the time of the taking, pursuit of a remedy in federal court need not await any subsequent state action. Takings claims against local governments should be handled the same as other claims under the Bill of Rights. Williamson County erred in holding otherwise.

Finally, the majority turned to the issue of stare decisis, i.e., that an erroneous decision should not lightly be overturned because in most matters it is more important that the applicable rule of law be settled than that it be settled right. The majority found this rule weakest in matters of constitutional interpretation and identifying several factors to consider in deciding whether to overrule a past decision, including “the quality of [its] reasoning, the workability of the rule it established, its consistency with other related decisions, . . . and reliance on the decision” and found all of them militated in favor of overruling Williamson County.

First, the majority found Williamson County not just wrong but found its reasoning was “exceptionally ill founded and conflicted with much of our takings jurisprudence.” It relied on Monsanto and was, according to the Court, at variance with previous and subsequent takings decisions and was criticized by some commentators. Second, Williamson County ripeness proved to be unworkable in practice as it envisioned that takings plaintiffs would ripen their federal claims in state court and then, if necessary, bring a federal suit under §1983; however, that result was made impossible by the claim preclusion and full-faith-and-credit holdings in San Remo. Third, for that reason, Williamson County was inconsistent with other Supreme Court takings decisions because takings plaintiffs, unlike plaintiffs bringing any other constitutional claim, would still have been forced to pursue relief under state law before they could bring suit in federal court. Congress could not have lifted that unjustified exhaustion requirement because, under Williamson County, a property owner had no federal claim until a state court denied him compensation. Finally, there is no reliance interest on the part of state and local governments because this holding that uncompensated takings violate the Fifth Amendment will not expose governments to any new liability but merely allows those claims to be brought in federal court, claims that otherwise would have been brought as inverse condemnation suits in state court. Supporters of Roe v. Wade might want to parse the stare decisis aspects of this decision. In any event, the Court had no trouble overruling thirty-four years of precedent. The Third Circuit decision was remanded.

Justice Thomas wrote a short concurrence, characterizing public agency concerns over the uncertainties of regulatory programs as a “sue me” approach and responding that if the just compensation requirement makes some regulatory programs “unworkable in practice, * * * so be it—our role is to enforce the Takings Clause as written.”
Justice Kagan dissented along with three other justices and defended the rationale of Williamson County that there is no violation of the Takings Clause unless and until just compensation is denied, which cannot be determined until a state court denies compensation. Under Williamson County, the state court must also determine whether a taking has occurred – a function that federal courts must now undertake, in addition to determining just compensation. The dissent also used its version of precedent, logic and pragmatism to justify Williamson County and noted that §1983 liability (with damages, attorney fees and costs) did not attach – until now, concluding:
Today’s decision thus overthrows the Court’s long-settled view of the Takings Clause. The majority declares, as against a mountain of precedent, that a government taking private property for public purposes must pay compensation at that moment or in advance. * * * If the government fails to do so, a constitutional violation has occurred, regardless of whether “reasonable, certain and adequate” compensatory mechanisms exist. * * *

The dissent suggested the majority opinion rested on four ideas: a comparison between takings claims and other constitutional claims, a resort to the Takings Clause’s text, and theories about two lines Supreme Court precedent. Justice Kagan responded to each idea. The comparison and textual ideas fail because of the distinct wording of the Takings Clause that require denial of just compensation, which allows for state post-deprivation remedies (until now). And while giving “points for creativity” in suggesting previous cases should not be read “too broadly,” especially those denying monetary relief to takings claimants because other remedies were available and noting the Tucker Act specifically waived sovereign immunity and granted the Court of Federal Claims jurisdiction over suits seeking compensation for takings by the federal government, analogizing that Act to Williamson County’s forestalling of any constitutional violation by ensuring that an owner gets full and fair payment for a taking after its provisions have been met. Moreover, according to the dissent, all Congress need do to deal with the “preclusion trap” would be to add language to the “full faith and credit” statute, a rather unlikely occurrence.

The dissent also predicts that this decision will turn public servants and agencies into lawbreakers because they cannot know in advance whether regulations will be deemed a “taking” and that takings claims will flood the federal courts, lacking the check of adjudication by state courts more familiar with state and local planning and regulatory systems. The dissent also raises the flexibility of the standards for overruling stare decisis without listing possible other cases a subsequent court may determine to be resting on “shaky foundations” or otherwise “ill-founded.”

Perhaps the outcome of this case was predictable, especially after the Court ordered re-argument after Justice Kavanaugh was seated. The property rights bar has long wished to proceed directly to federal court in takings claims (unless accompanied in advance with just compensation), using uncertainty of takings claims and the prospect of damages, attorney fees and costs as a bargaining tool. There is no doubt there is a sea-change in the number of future takings claims and the means by which they will be dealt with by claimants, public agencies and the courts. The attention given this case may pale in comparison to that given cases involving the federal census, immigration, or reapportionment; however, it is likely to be seen as one of the most significant decisions of the new Roberts Court.

Knick v. Township of Scott, Pennsylvania, No. 17-647 (June 21, 2019).


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