The Volokh Conspiracy

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Our Amicus Brief in Major Property Rights Case Currently Before the Supreme Court

I coauthored an amicus brief in an important takings case, on behalf of the Cato Institute, The National Federation of Independent Business, and several other organizations.


The Supreme Court

Yesterday, we filed an amicus brief that I coauthored in Knick v. Township of Scott, an important property rights case currently before the Supreme Court. The brief was written on behalf of the Cato Institute, the National Federation of Independent Business, the Southeastern Legal Foundation, the Beacon Center of Tennessee, the Reason Foundation (which publishes Reason magazine and this website), and myself (serving as both an amicus and coauthor of the brief). The case is fairly technical in nature. But it nonetheless has great significance for property rights. I summarized the reasons why in this post:

The most important issue the Court will consider is whether to overrule Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it very difficult or impossible to bring takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefore owes "just compensation" under the Fifth Amendment, cannot file a case in federal court until he or she has first gotten a "final decision" from the appropriate state or local regulatory agency and has "exhausted" all possible remedies in state court. Even after all of that, it is often impossible to bring a federal claim, because a variety of procedural barriers preclude federal courts from reviewing state court decisions in cases where the case was initially brought in state court. In some cases, governments defending against takings claims even exercise their right to "remove" the case to federal court, and then manage to get the case dismissed because the property owner did not manage to first "exhaust" state court remedies (a failure caused by the defendants' own decision to get the case removed).

Williamson County creates an egregious Catch-22 trap for property owners: before they can bring a claim in federal court, they must first go through state courts and administrative agencies. But the very act of going to state court makes it virtually impossible to later appeal the case to a federal court! This is the kind of Kafkaesque idiocy that gives the legal profession a bad name.

One might ask why it matters whether takings cases are litigated in state court or federal court. After all, both state and federal judges have to apply the Takings Clause of the Fifth Amendment, and both have to follow relevant federal court precedents. In many cases, the result will be the same, regardless of venue. But in some situations, particularly ones where precedent is unclear and the issues may be ambiguous, state courts could well be biased against property owners, because they have close connections with the state and local governments that undermined the property rights in question.

As our brief explains, the Williamson County rule is grossly inconsistent with the way the Supreme Court treats other constitutional rights. It is also at odds with the original meaning of the Fourteenth Amendment, which "incorporated" the Bill of Rights against state governments in large part for the purpose of protecting citizens against abusive state governments by giving them access to federal courts. Property rights were among the most important constitutional rights the framers of the Amendment sought to protect in this way, particularly in the case of African-Americans and white Unionists whose rights were threatened by hostile state governments in ex-Confederate states. The brief also explains why Williamson County is ripe for reversal under the Supreme Court's established criteria for overruling flawed precedent.

In a post describing his own amicus brief in the case, prominent takings litigator Robert Thomas notes that "the average property owner simply cannot fathom why—if a state or local government has taken property in violation of the Fifth Amendment—he cannot bring a takings claim in federal court until he has first pursued and lost an inverse condemnation claim in state court." The average property owner is not the only one who is confused on that score. I am a professional property and constitutional law scholar, and I can't fathom it either.

In the 2005 case of San Remo Hotel v. City and County of San Francisco, four justices—including key swing-voter Anthony Kennedy—joined then-Chief Justice William Rehnquist's concurring opinion calling on the Court to reconsider Williamson County. We hope that the justices will take this opportunity to reverse a badly flawed precedent.

I am grateful to my coauthors Trevor Burrus (Cato), Ilya Shapiro (Cato), and Luke Wake (NFIB), for their excellent work on the brief, and to my former student Meggan DeWitt (Cato) for her invaluable efforts to keep this project on track.

Since this brief is coauthored by both Ilya Shapiro and myself, it risks exacerbating the #IlyaConfusion problem. Fortunately, you can learn how to tell the two Ilyas apart by consulting my definitive guide to the subject!

UPDATE: The Cato Institute has put up a post about the brief here.