Courthouse Steps Decision: Knick v. Township of Scott, Pennsylvania

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Friday, June 21, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Decision discussion on Knick v. Township of Scott, Pennsylvania. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Mr. James S. Burling, who is Vice President for Legal Affairs at the Pacific Legal Foundation. Also with us is Professor Ilya Somin, who is Professor of Law at the Antonin Scalia Law School at George Mason University. Professor Somin has written an amicus brief for Cato, himself, and several others, and is the author of The Grasping Hand: Kelo v. City of New London & The Limits of Eminent Domain and several other books on constitutional property rights.

 

      After our speakers give their remarks, we will move to an audience Q&A, so please keep in mind what questions you have for the case, its decision, this topic, or for one of our speakers. Thank you so much for sharing with us today. Jim, I believe the floor is yours to begin.

 

James Burling:  So I'm going to begin by setting the stage of what this case is about, and the factual background of the case, and what our client, Ms. Knick, is all about. She's a woman, a bit on in years, who owns about 90 acres of property in Scott Township, which is a rural part of Pennsylvania. It's farmland. It's this nice, bucolic countryside. It has stone walls across it. It has a two-lane road that goes around the property. And it also has some big, old stones on the property.

 

      Now, there are some neighbors that claim that those stones are gravestones, and they asked Ms. Knick permission to go across her property and visit those stones, thinking they might be gravestones. And she refused, said, "This is my property, and I'm not comfortable with people going onto my property at all hours to traipse around. I'm a woman getting along in years, and I like my privacy, and I like my security." And indeed, this property has been owned by Ms. Knick's family now since 1970. They've had it for a long time and had not had a history of people going onto their property.

 

      But these neighbors became interested in Colonial history, and they thought there were some Colonial era graves there. And you have to remember, back in the day in the Colonial era, people would bury relatives in their backyards of the property, little family plots. Now, it's not been clearly established, and Ms. Knick doesn't really think that this is a family plot. But be that as it may, she believes she has the right under Pennsylvania law to keep the trespassers off of her property. And so she told the neighbors no.

 

      The neighbors, however, thought, "Well, we'll go to the town." And they did, and they got an ordinance passed. And the ordinance says that the town can visit anybody's property without a   warrant to look for graves, and if it finds that there are potential graves there, members of the public, any member of the public can cross the property at any time during the day to look at and visit these graves.

 

      Well, Ms. Knick did not like that. She thought, "This is my property, and now any member of the public can cross my property any time to look at these putative graves?" She was quite upset, so she sued. She sued first in state court to try to stop the operation of the ordinance to keep people from trespassing onto the property. And the state court said, "No, it's too early because you have not yet been prosecuted by the town for keeping people off, so you're out of state court." At which point, she said, "You know, this sounds like a taking. It sounds like the town has taken an easement that crossed my property. And if they're going to take an easement across my property, at least they should pay me for it."

 

      So she sued for a regulatory taking in federal court. And when she got to federal court, the federal court said, "No, there is no right to bring your federally protected takings claim in federal court." And the federal court, Third Circuit, they sat on the Williamson County doctrine. Now, the Third Circuit said that it seems like the ordinance itself is extraordinary and constitutionally suspect, but because of Williamson County, it could not hear her federal takings claim in federal court.

 

      Now, Professor Somin is going to tell you a little bit about what Williamson County is all about.

 

Prof. Ilya Somin:  First, I'd like to start by congratulating Jim and the Pacific Legal Foundation in what I think is a very important victory for constitutional property rights. I'm going to talk next about what Williamson County was about and why it's a good thing that it's now been overruled.

 

      Williamson County is a 1985 Supreme Court decision which, among other things, basically says that if you want to bring a federal takings clause case in state court -- sorry, if you want to bring a federal takings clause case against a state or local government, before you can do that, you first have to get a final decision from a state court. But there is a catch-22 here, and that is that if you do take the case first to state court and you get a final decision, then various procedural doctrines then prevent you from then appealing that decision to a federal court because the decision of the state court has a preclusive effect on further litigation. So the very thing that you're supposed to do under Williamson County before you bring your case in federal court is also the same thing that prevents you from then bringing it afterwards.

 

      And while there are some technical aspects to this case, the bottom line is that what today's decision does by overruling Williamson County is that it allows you to bring takings cases against state and local governments in federal court on the same basis as virtually all other constitutional rights claims. If you're arguing that a state or local government has violated your freedom of speech, or freedom of religion, or discriminated against you on the basis of race, you don't have to first get a final judgement on that issue from a state court. You can just take your claim to federal court.

 

      And there's a good reason for that that there should be federal court remedies for violations of federal constitutional rights. One reason why is that we need a uniform floor for such cases, and allowing federal courts to hear them accomplishes that and ensures that the same standards will, in fact, be applied in courts all over the country. But secondly, both the Founding Fathers and the Framers of the Fourteenth Amendment who first made the Bill of Rights, including the takings clause applicable against the states, they worried that state courts will sometimes be biased in favor of their own state and local governments and against federal constitutional rights claims against those entities. And allowing people to go to federal court enables you to get around that kind of bias.

 

      Now, of course, in many cases, it will make no difference, ultimately, whether a takings case is brought in state court or in federal court. But in some instances, this sort of state court bias can be a real problem, especially when state court judges are elected and, therefore, often part of the same political coalition as the state and local governments whose actions are being challenged.

 

      So I think the bottom line is that Williamson County was an anomaly. It was a much-criticized precedent that had no basis in the text or the original meaning of the Constitution and also was at odds with the way other constitutional rights are treated. And I think it's a good thing that it's been overruled. The standard rationale for Williamson County that's been offered is that there isn't really a violation of the takings clause until the state has not only taken your property but also refused to pay compensation. And we don't know for sure whether they will refuse to pay compensation until a state court has issued a final ruling on that subject.

 

      But of course, this reasoning could justify requiring a wide range of other constitutional rights to also be litigated in state court. For example, we don't really know whether a state government is going to discriminate against you on the basis of race or not until the discriminatory action has been upheld by a state court. By that reasoning, after all, if the state court reverses it, then the discrimination would be nullified and prevented. Similarly, if the state government enacts a censorship regime, maybe a state court would overturn the regime, and therefore, no actual censorship would take place.

 

      And I could go on with similar examples, but the bottom line here, I think, is that what this case does is it brings takings cases in line with the way that other constitutional claims are treated. Those claims all deserve their day in federal court. If the claims are valid, the federal court can uphold it. If the state or local government has done nothing wrong, the court can rule that too. But federal court is an appropriate form for federal constitutional rights claims.

 

James Burling:  And this is case is to property owners, I think, extremely important. Ilya -- Professor Somin mentioned that about 20 years ago, there was a case called San Remo where the Court said that if you start your taking claim in state court and you lose there, it's too late. You can never bring the claim again in federal court. And several members of the Supreme Court in the San Remo case said, "You know, this precedent, Williamson County, just might be wrong. We should look at it sometime, but San Remo is not the case to do that."

 

      And so we have represented landowners about a dozen times up until now, trying to get this issue into federal court because it's turned out to be extremely important. And let me give you a couple of examples. One is the so-called remove and dismiss gambit that a number of jurisdictions have applied, and that is a landowner looking at Williamson County has brought a taking claim forward in state court with the idea that once I complete this taking claim in state court, I can then go to federal court. But when the landowner has brought the case in state court, the local government has removed it to federal court, arguing it's a federal constitutional claim; therefore, it belongs in federal court.

 

      But once the state or the local government has successfully removed the taking claim from state court into federal court, then immediately it moves to dismiss the case in federal court because it's not ripe under Williamson County. And there have been courts that have dismissed taking claims. So the landowner is caught through this whipsaw of bringing it in state court like they're supposed to under Williamson County, getting it removed into federal court, then having it dismissed in federal court, and so they never get an opportunity to litigate the takings claim. So that's been the first rather huge abuse in a number of instances of Williamson County.

 

      And the second problem is, as Ilya -- as Professor Somin alluded to, you can get hometowned in state court. We've had a number of cases where people have just had no luck getting relief for some obvious abuses in state court. In the State of California, we have instances where the court has said, "Yeah, there's a taking, but we're not going to provide you remedy. It's injunctive relief only, and it's only a temporary denial, or it's only a temporary permitting process problem." And all kinds of excuses have come up with for denying compensation, so being able to get these cases on behalf of landowners into federal court is extremely important.

 

      And I think that the Court recognized that is going on here. It's not that the state courts are bad, necessarily, but this is a federal constitutional claim. And it is that right that you get your claim in there. The justification just wasn't doing much good for the landowners, and that's our concern is our clients. And the justification is, "Well, if there's a taking, you first -- you don't really have a taking claim until the state court denies you compensation."

 

      And I think Justice Roberts had a nice response to that. He said, "A bank robber might give the loot back, but he still has robbed the bank." The point being that if a state agency takes your property, just because you can get some kind of relief in state court, maybe, maybe not, doesn't mean that there had not been a taking. There was a taking. And because it's a constitutional claim, you have a right to bring that constitutional claim now into federal court.

 

Prof. Ilya Somin:  I don't know if we should take questions now, or if there are more points that we should get into.

 

James Burling:  Let's talk about a couple of things I think are worthwhile talking about, Ilya.

 

Prof. Ilya Somin:  Oh, please go ahead.

 

James Burling:  One is the dissent. This was a 5-4 decision, and the case was first argued in October. And the Court didn't seem to understand takings law very well. And then they asked for more argument. And that was first argued beginning of October. Justice Kavanaugh was not on the Court. So a lot of us thought that maybe this is a close decision. Maybe it's 4-4. And as it turns out, it was. Kavanaugh was the fifth vote here.

 

      We had the four dissenters, and the dissent was quite strong and quite vigorous. And if I may say so, I think Justice Kagan was somewhat annoyed. A good deal of sarcasm comes through in her dissent, kind of reminds me of some of Justice Scalia's dissents and their sarcasm in there. So she was quite unhappy, thinking that Williamson County followed 100 years of precedent. It didn't, according to me and according to the majority. And that this is just -- it was just completely unnecessary to do this, and it's going to create all kinds of problems because now, state actors who are going to be afraid to engage in regulatory actions because they might be hailed into court without first having an opportunity to get things worked out in state court.

 

      I honestly can't quite see what the problem is. If state actors do something that takes somebody's property, they ought to be concerned if they weren't concerned before because they knew they could get a "get out of jail free" card in state court, then this is a step in the right direction.

 

Prof. Ilya Somin:  Just a couple of thoughts both on the dissent and on the reargument. Yes, it turns out that they likely did do the reargument because they were split 4-4 and needed Kavanaugh to break the tie, though I should also emphasize that this is a case that would likely have turned out the same way had Justice Kennedy still been on the Court because Kennedy [inaudible 15:35] that opinion from 2005 which Jim mentioned which urged the Court to reconsider Williamson County. Kennedy was not a fan of Williamson County. It's very unlikely that he would have voted to keep it in place.

 

      On the dissent, I have great respect for Justice Kagan. She's a great writer and a very smart Justice, but I think this dissent was not her finest hour. There are just a lot of badly flawed arguments in it. For example, she even argues that the catch-22 we mentioned before is actually a feature rather than a bug because it allows state courts to get the first crack at resolving various issues that they may have greater expertise at than federal courts, such as whether there was a property right under state law in the first place, or whether the state law actually did a thing that would end up working a taking.

 

      This same sort of reasoning could be used to justify requiring all sorts of constitutional rights claims to go through state court first. For example, there's often an issue -- when you challenge a state law under the federal constitution, there's often a question of exactly what the does that state law actually mean, which the state court might be more expert than the federal court. Often, constitutional rights claims turn on factual issues that might vary by locality which state courts have specialized expertise in.

 

      Nonetheless, we allow federal constitutional rights claims to go into federal court, and the possible downsides in terms of expertise are more than outweighed by the considerations that we talked about earlier. And I think, also, her argument that dozens of years of precedent support Williamson County is also off base. We can talk about that in more detail.

 

      And finally, this argument that state officials, when they -- just by regulating will now be treated as law breakers, I think it also doesn't make sense. All that today's decision means is that if people think that a state or local regulation has taken their property, they can go to federal court to try to make that argument, and they don't have to go to state court first. But the local government officials will not be treated as law breakers unless they actually lose the case, unless it's proven that there was a taking and they didn't pay compensation.

 

      And that, by the way, is exactly what happens if they were to be hailed into state court instead. The state court would have to decide if there was a taking, and also whether compensation has been paid, and if so, whether the compensation was adequate. The point of allowing this into federal court is just to have a neutral, unbiased forum, and one that could also ensure the enforcement of uniform standards for federal constitutional rights. So I think the dissent has a lot of Scalia-esque rhetoric, but as, frankly, in some of Justice Scalia's opinion, the rhetoric, I think, sheds more heat than light on the actual issue at hand.

 

James Burling:  Another interesting aspect of the case is what I call a little bench slap of the Solicitor General. For those not steeped in the history of Williamson County, you would think that the issue of taking your taking case first to federal court had been briefed extensively in the original Williamson County case back in the 1980s. In fact, it wasn't. The entire genesis of the Williamson County doctrine came from a short paragraph in an amicus brief written by the Solicitor General, an argument that had been brought by none of the parties and was not actually argued before the Court.

 

      But the Court in Williamson County apparently wanted to avoid the merits question, the merits of whether or not there had been a taking and what kind of damages should there be for that kind of taking. And it latched on to the Solicitor's short paragraph suggesting another reason that the Court could get rid of the case. In this case, in the Knick case, the Solicitor for the first time brought up another new argument in its amicus brief. And it was arguing that this case actually should be argued under Section -- U.S.C. 1331. It's a rather obscure doctrine we don't have to get into now. And the majority opinion said the Solicitor continues this tradition of raising new arguments for the first time in amicus briefs in these taking cases, here arguing for the first time his amicus curiae that the state inverse condemnation claims should be brought in this other obscure doctrine.

 

      So I think that Justice Roberts is telling the Solicitor, "Look, stop bringing these claims and these issues that nobody has briefed, nobody has argued, and nobody really cares about because that's what happened in Williamson County. We took this off-the-cuff remark that you said, and now for the last 35 years, courts and landowners and government agencies have been dealing with this. And it really should have been briefed. And perhaps, had it been properly briefed in the first place, we would not have had to spend all this time with it and then overturn it." And overturning precedents, of course, is always tough to do. And I think, Ilya, you might want to say something about what this case says about overturning precedents.

 

Prof. Ilya Somin:  So I'll speak on that in just a second. With regards to Solicitor General, yes, there was a little bit of a black eye for him here in that he did essentially introduce a whole new rationale for at least large parts of Williamson County in his amicus brief. When reargument was ordered, some people thought maybe the reason why was because the Justices wanted to hear more about the Solicitor General's position. And in fact, Justice Kavanaugh did ask about it in the oral argument. But in the end, none of the nine Justices even came close to endorsing the position, and the majority sort of slapped it down in a footnote.

 

      It has been compared, what the Solicitor General tried to do -- Robert Thomas, a well-known takings lawyer, has compared it to the Klingon forehead issue in Star Trek where the -- in more recent Star Trek series, the Klingon's foreheads look completely different than they do in the original series in the 1960s. And Star Trek's writers have created sort of a weird, convoluted explanation for why that is that has nothing to do with what the actual origin of it was, which was that they had less money for makeup back in the 60s than they do now. So similarly, the Solicitor General tried to retcon in the same way the Williamson County doctrine, and the Court was obviously unpersuaded.

 

      With regard to precedent, I think, obviously, there's a lot of interest right now on the issue of when it's appropriate to overturn precedent and when it isn't. In the majority opinion, I think Chief Justice Roberts does a pretty good job of explaining why overruling Williamson fits well within the criteria that previous Supreme Court decisions have announced for when a precedent should be overruled. Do I have to admit those criteria are far from a model of clarity? He explains that the decision was very badly reasoned. It was at odds with other precedents in the way that they treat other constitutional rights. It had been heavily criticized. Four members of the Court had previously called for the decision to be reconsidered back in 2005. I don't think this decision makes much of an advance in terms of creating new ground on how precedent should be overruled.

 

      In the dissent, Justice Kagan argues otherwise. She says that the precedent should have been maintained. But I think, really, her argument just comes down to her argument as to why she thinks Williamson County was rightly decided in the first place. If you believe that Williamson County is as wrong as the majority believes, and I also believe, then there's good grounds for overruling it. And I don't think this gives us much indication on what the Court would do with other, more politically salient precedents, particularly Roe v. Wade, where the considerations might be different.

 

      My general thought on this stuff is that neither the conservative nor the liberal Justices are actually likely to allow considerations of stare decisis to keep them from overruling constitutional precedents that they think are both badly wrong and causing a significant amount of harm in the real world outside the courtroom. And they will also both complain vehemently when the other side of the Court overturns precedents that they like.

 

      But I think in constitutional cases, the Court is only modestly constrained by stare decisis. They may be more constrained by political factors and also by concerns that overturning a long-established precedent would undermine reliance interest. That's a different matter, but they aren't that much constrained by precedent for its own sake. And I think in the constitutional area, that's the way it should be because that's the only way that a harmful constitutional precedent can be gotten rid of is through a new Supreme Court decision, other than a constitutional amendment, which is often almost impossible to enact.

 

James Burling:  Yeah. I think some of the press, though, is going to latch on to the end of Kagan's dissent here, just like it latched onto Breyer's concerns in the Hyatt case, which was decided a couple of weeks ago, dealing with suing the California Franchise Tax Board in Nevada courts. And in that case, as Kagan recites, Breyer said, "Today's decision can only cause one to wonder which cases the Court will overrule next." And then Kagan continues, "Well, that didn't take long. Now, one may wonder yet again." So I think they're pointing out the elephant in the room, the Roe elephant, but really, this doesn't really tell us anything that we didn't know before.

 

      And it certainly doesn't fit the hand of any of the members of the Court on what they would actually do should they at some time be confronted with that decision. We all know where Justice Thomas comes down on this, and in another very recent decision last week, in Gamble, he had a long opinion on stare decisis. But again, that doesn't tell us anything about Justice Thomas we didn't know. And this case doesn't tell us anything about Justice Roberts or the majority of where they would actually come down on the issue of stare decisis and some much more politically charged cases.

 

      I think that is it on my comments on Knick. Ilya, do you have others, or should we go to the phones?

 

Prof. Ilya Somin:  To just one small point that to my knowledge, this is the first major case, not only in the Supreme Court, but even in his entire judicial career where Kavanaugh has been involved in a major property rights case. It's too early to say whether his vote today is indicative of his overall property rights jurisprudence. Although I'm critical of Kavanaugh in a number of other aspects of his record, I think this vote today bodes well, particularly since after the reargument, there was some speculation as to which way Kavanaugh would go, given that he had made remarks in the oral argument that could be construed as potentially going either way.

 

James Burling:  That means there was even concern which way Roberts would go based on his questions at the first oral argument expressing concern about the floodgates being opened into federal courts if takings claims could be brought there. He seemed to take care of that very well in this case, saying, "Hey, it's a federal claim, and we're not worried about that. Kagan is more worried about that." We'll see. That's it for my remarks.

 

Wesley Hodges:  Wonderful. Well, thank you both so much for those remarks. Looks like we do have one question in the queue so far. Audience caller, you are up.

 

Eric Claeys:  Hi. It's Eric Claeys at George Mason University. I'm Ilya's colleague and interested in the case. I have a comment and a question for the two of you. I was interested in the remarks that both of you had about stare decisis. I thought they were sensible. I just want to point out that also last week, Justice Ginsburg was happy to see overruled the double jeopardy holding that was being challenged in Gamble, even though that understanding of double jeopardy law goes back, really, really, really far back. So I think that confirms a lot of what Ilya was saying that Justices are quick to accuse the other side of not adhering to stare decisis norms, but they don't always look so closely at how they're using those same norms themselves.

 

      The question I had had to do with the part of Kagan's dissent in Knick where she claimed that it's well settled, that for over 100 years, the Court held that advance or contemporaneous payment was not required as long as the government had established reliable procedures for an owner to obtain just compensation. I don't feel like I know the history on that and the law on that issue well enough to say whether the claim she was making about the Court's precedent seems accurate or not. And I was wondering what the two of you thought.

 

Prof. Ilya Somin:  It's a good question. I wonder if I could start first so Jim can jump in afterwards.

 

James Burling:  Yeah.

 

Prof. Ilya Somin:  I would say two things about this. One is I think Roberts does a pretty good job of addressing this in his majority opinion where he points out that many of these early cases are actually about injunctive relief. And what they say is you can't get injunctive relief against a government action that might be a taking, but that's because you can file a claim for compensation instead, whereas he points out earlier in history, compensation claims were not allowed, so injunctive relief might have been the only avenue.

 

      I think there's a more fundamental distinction here which he alludes to also, though I think doesn't fully explicate, and that is that there's a big distinction between not paying contemporaneous compensation and simply denying that a taking occurred in the first place. And it seemed to me that if the government is denying that a taking occurred in the first place, that's very different than simply not paying immediately. The issue of whether a taking occurred in the first place is a standard federal constitutional law issue of the kind that should be allowed into federal court, just like any other constitutional rights claim.

 

      And I would also note that the majority opinion also does not say that the government is required to pay compensation instantaneously or in advance of the taking. All it says is that a rights violation happens as soon as they take the property but haven't paid compensation, and that a claim of such a rights violation can be litigated in federal court. That actually builds very much on existing doctrine which has always held that if a taking occurs, then compensation is owed for the loss of property from that moment, and if it's not paid immediately, then the government has to pay interest. And I think that's both well established in precedent and, frankly, just makes a lot of good sense that if they take your property, then they owe compensation for the entire period, beginning with the moment of the taking.

 

      On the question of Ginsburg and precedent, I completely agree with what Eric Said. I think Justice Ginsburg was actually right in that double jeopardy case, and some really -- it's justifiable to overturn Williamson County, particularly if Williamson County is, in fact, as bad as both the majority and I believed that it actually was. If Williamson County was correctly decided, or only very slightly wrong, or doesn't have much harmful real-world impact, then maybe it should be maintained, but most of that ultimately goes to how well reasoned Williamson County was in the first place.

 

James Burling:  Yeah. And I agree with Professor Somin's take on that. I think Justice Kagan was essentially setting up a straw man by arguing that the implications of the majority opinion here are that compensation must be paid immediately, and if it's not paid immediately upon the instant of the take, there is some sort of extra constitutional violation. No. Government takes an action, it takes property, landowner gets to sue, and the compensation does accrue from the date of the take. And if the judgement comes later than that, there may be interest paid during -- for the interim period of time. But it's not some kind of requirement that government has to sit on its hands and not act for fear that it's going to be instantly liable if it acts. If the government takes property, it's going to be liable. And if that's liability from the time of the take, well then, government should be more careful.

 

      And I would suggest that there is another real-world consequence of this decision, that as a practical matter, as the sort of person that's in the courts litigating these cases all the time, we have some courts like California that have created these rules saying that, look, if the government takes an action that could be a taking, there is really no taking until you go through a writ of mandate process and try to have the government action undone. And if you get the government action undone, then there's no temporary taking. It is only part of the normal permitting delays and normal permitting process.

 

       And that kind of loophole, I think, is going to be harder to drive the truck through after today's decision where it's more difficult to say that the taking never occurred in the first place. So I'm hoping we're going to have some real-world benefit from this decision when it comes to landowners trying to bring their taking claims.

 

Wesley Hodges:  Well, very good. Caller, thank you so much for you question. While we wait for any more questions from the audience, Ilya and Jim, I do have one question for you. And you may have already glanced this already, but could take a minute and talk about any future cases that we should be watching, either at the circuit level or anything you've heard at the district level?

 

Prof. Ilya Somin:  So there is the Love Terminal case, which the Supreme Court was supposed to have decided, or was expected to have decided on whether they were going to consider it or not. But at least as far as I can tell, and I may have just simply missed it, they did not, in fact, decide whether or not they're going to take it yesterday, and I don't think they decided it today either, though I could have overlooked it. But that is an extremely important takings case. For those interested, I wrote a blog post a couple weeks ago about why it's important. Just google my name and Love Terminal.

 

James Burling:  Yeah. So we also have a petition pending in another interesting case. And it's a follow-up of some other takings issues that we've been dealing with for a while, and that is if you seek a permit from the government to do something, what can the government ask you to do in exchange? And we've had cases like Nolan where the Court said you can't demand people to give up property in exchange for a permit unless the property serves to ameliorate some adverse impact caused by the development of the property in the first place. In the Nolan case, it was building a two-story home.

 

      In the case a number of years ago, we had another case out of Florida dealing with monetary exactions. And this was the Koontz case where the argument was made that, well, Nolan said you can't take monetary exactions -- you can't take exactions of land, but you can still take exactions of money. And the Supreme Court in Koontz said you can't do that.

 

      Now the new argument has come up that if an exaction is imposed by a legislative body, it's not subject to the doctrine of Nolan, etc. And we have a case called Cherk v. Marin County that is challenging that. A landowner wanted to subdivide property into two parcels, and they were told they could only do so upon the payment of an exorbitant affordable housing fee. And it's not that subdividing the property into two is going to create a need for any more affordable housing, it's just that when you get a permit, you turn into an ATM. So we have a petition that's just been filed in that case, and we probably will know by October whether that case will be taken up.

 

      But it is an important question because a lot of jurisdictions are now legislatively imposing exactions. And we see this a lot with the so-called inclusionary zoning ordinances. You build ten units, you have to set aside 10 percent for low-income housing, which only increases the cost of market rate housing. So I mean, that's something we think is on the horizon that we're hoping that the Court's going to take at some time. Other than that, I don't think we have any taking cases that are immediately before the Court that I think are -- that we're really looking at in great detail.

 

Prof. Ilya Somin:  Just a few other things that are sort of working their way through the courts. One is there's a large number of cases in both state and federal court dealing with pipeline takings. To make a long story short, in many states and sometimes also for federally sponsored pipelines, the way these things work is that they -- the pipeline companies are able to ride roughshod over a variety of protections for property owners that would apply in other constitutional rights cases. And there are efforts to change this, both by litigation and legislative reform.

 

      Another area is the Seattle case which limits landlord discretion to decide what tenants they're going to rent to. That, I think, is in state court being litigated. And I think there are also, obviously, cases related to exclusionary zoning and issues relating to that, which I think is a big area in that is one of the biggest violations of property rights out there. And it cuts off hundreds of thousands or even millions of people from affordable housing.

 

James Burling:  Yeah, I think the Seattle cases that Ilya mentioned are rather interesting. Those are a couple of our cases, and they were just argued on June 11 before the Washington State Supreme Court. And one ordinance says that you cannot ask the criminal history of a potential renter, and the other says that if you have a set of criteria, the first person that comes in the door that meets your economic criteria is the one you have to rent to. You cannot pick and choose among potential renters. You have to rent to the first one that comes in the door that meets your minimum income requirements. So you combine that plus the inability to ask for criminal backgrounds of a tenant, and it makes life very difficult for landlords in Seattle.

 

      And a number of jurisdictions have looked at what Seattle's doing. San Francisco and places in Oregon are saying, "Hey, we should adopt the same thing." And that would be a huge disincentive for people to enter into the rental market, which is only going to make the affordable housing problem worse rather than better. So that's at the Washington Supreme Court, but once they issue a decision, I'm pretty sure the losing side, which hopefully will be the City of Seattle, will try to take that up to the Supreme Court.

 

Wesley Hodges:  Great. Well, Jim and Ilya, thank you so much for those remarks. We do have one more question in the queue. Audience caller, your question is up.

 

Roger Candelaria:  Hi. This is Roger Candelaria in Colorado. And first I want to just thank both of you and The Federalist Society for a great presentation. But what happens in the instant case, and is that going to be typical of what happens in [inaudible 39:10] of the country? That is to say specifically, will the ordinance be repealed, or will they try to calculate what damages Knick has suffered? Will people be allowed to continue to traipse through [inaudible 39:22] with the [inaudible 39:24] of a fee paid or what?

 

James Burling: So first of all, this case has just been remanded. The question is can you even argue this in the federal court in the first instance. So now the case is going to wind its way back down, and it's going to go into federal district court where the arguments for a taking will be made. I mean, Ms. Knick is going to argue that this is a physical invasion of her property, and if the government wants to do it, it has to pay her for this easement that has been created on her property, at which point the local government's going to have a choice to make. Choice number one is to pay her for a permanent easement across her property. And you may recall, First English said these are the choices. Either you pay for the property, or the second choice is you can rescind the ordinance, but you still have to pay for the damages, the takings damages for the temporary period of time in which the ordinance was in place.

 

      So the local town's going to have this choice. It's going to defend the taking, first of all, probably in federal district court, and it's probably going to lose it. It's going to argue that the member -- private property owners don't have the right to keep members of the public off from looking at gravestones under Pennsylvania common law. We don't think that one's going to fly. Justice Kagan mentioned that as a possible reason why this should be in state court. But quite frankly, that's not really what the Pennsylvania common law says.

 

      So I think it's going to be held liable for a taking, and then it's going, probably, come to its senses and say, "Okay, we can pay temporary damages. We can enter into settlement negotiations, but maybe this ordinance was unfounded," because it's going to create liability, not only for Ms. Knick's property, but for every landowner in the town that might have some old stones on the property that members of the public might want to go across to look at. It's going to create a huge disruption in property rights in Scott Township. It's going to essentially cost the township a lot of money. So I think they'll come to their senses and get rid of it once it's clear to them that there is a takings liability here.

 

Prof. Ilya Somin:  Just a very brief thought that in most cases, this will just mean that the property owner has the option of whether to bring their case in state court or in federal court. But the underlying nature of the potential remedies if you win is going to be the same, regardless of -- this case does not change what the remedies will be.

 

Wesley Hodges:  Very good. Seeing no immediate questions, Ilya and Jim, are there any other points that you'd like to dive into or ask about the case to each other?

 

Prof. Ilya Somin:  One small point, although maybe it's significant, is that I think it's unfortunate there is a 5-4 split here along ideological lines. At the oral argument, it seemed like Justice Kagan might vote to at least partially overrule Williamson because she seemed to be genuinely concerned about the catch-22 aspect. Clearly, if she did think that, she didn't hold that view for very long. In a number of recent constitutional property rights cases, some or all of the liberal Justices have actually voted with the conservatives to strengthen protection for property rights like in the Horne case, in the Arkansas Game & Fish case, and so on.

 

      This case is sort of a step back from that where you get not only a 5-4 split, but Justice Kagan arguing very vehemently that the double standard created by Williamson should be maintained. I hope that doesn't set the trend for future takings cases such that they will again be split along ideological lines.

 

      It's possible that the anger here is in part about overruling precedent and the concern that precedents that the liberal Justices care about more might be overruled. Roe v. Wade is, of course, the most obvious example, but it's also possible that they may be more worried than they were previously about strengthening protection for constitutional property rights generally. I hope that it's the precedent consideration that motivated them rather than the other one, but perhaps it's a combination of both. And perhaps different liberal justices have different combinations of concerns.

 

James Burling:  Yeah, and I think Ilya has a point there because at oral argument, the Court, members of the Court recognized -- liberals and conservatives alike recognized that there was a problem with Williamson County. And maybe we can go part way to overrule just those cases where people bring a case in state court to get removed to federal court and then dismissed. Maybe we can just take care of that part of it. Apparently, and I think fortunately, the majority decided not to take the half step and just do that, and instead take the whole step.

 

      But the fact that there are four Justices on the Court who were reluctant to go along is a little disappointing. But that's not going to, I think, ultimately adversely impact the right of landowners to get relief in these kind of cases in federal court. I mean, one of the things that Pacific Legal Foundation deals with all the time are calls from property owners saying this, that, and the other thing has happened to me. And we've often had to tell them, "Well, you know, you're going to have to exhaust your administrative remedies. Then you're going to have to go to state court, and if you have a state that you don't like, you're not going to get much relief. But you can't get into federal court." But I think a lot of the horror stories that we hear from property owners pretty much all the time may have a better shot at getting resolved now.

 

      And so I'm going to be quite happy now, or happier, I should say, in a relative sense, when a property owner calls me with a particular tale of woe because now I may be able to give them a little more hope, a little more hope that there is a realistic remedy in a court other than your hometown state court. And so for that reason, even though it's only five votes, I'll take them. And I'm quite pleased that Williamson County is now in the dustbin of history, and may it never rise from the grave again.

 

Prof. Ilya Somin:  Yeah, I certainly agree with that. I think a 5-4 victory for the right side is better than any kind of defeat. I just think that it would have been better if it were a more cross-ideological decision. But you can't have everything you want from the Supreme Court. We've certainly learned that lesson over many years.

 

James Burling:  Yeah. You can't always get what you want, but sometimes, you just might find you get what you need.

 

Prof. Ilya Somin:  Yes.

 

Wesley Hodges:  Well, I think on that note, that probably should wrap up our call today. Any closing sentiments, Ilya or Jim?

 

Prof. Ilya Somin:  No. I think we covered the case pretty thoroughly.

 

Wesley Hodges:  I would agree. Okay, well, on behalf of The Federalist Society, I would like to thank you both for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call today. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.