Courthouse Steps Oral Argument: Knick v. Township of Scott, Pennsylvania

Listen & Download

The Supreme Court will hear reargument in Knick v. Township of Scott, Pennsylvania on January 16, 2019, to decide whether a property owner can bring a regulatory takings claim in federal court. Since the 1985 Williamson County v. Hamilton Bank decision, property owners have been able to file claims against local government for takings only in state court. And once there, any decision is res judicata to any subsequent federal action. This makes property rights claims the only constitutional right that cannot be vindicated in federal court.

Mrs. Rose Mary Knick owns roughly 40 acres in rural Scott Township in Pennsylvania. At the behest of some local activists the township passed an ordinance that allows members of the public to trespass across her property to visit some large stones that the activists claim are colonial-era gravestones. Mrs. Knick has no legal way to stop this invasion of her property – short of suing for a taking. When she tried to sue in state court she was rebuffed because she hadn’t yet been fined for not allowing the trespass. When she next tried to sue in federal court for a taking, she was again rebuffed, this time because of Williamson County.

The Supreme Court first heard oral argument on October 3, 2018, before an eight-Justice Court. The primary question is whether Williamson County should be overturned. The October argument focused mainly on the nature of a claim for a taking without just compensation. Now, with a full complement of nine Justices, the Court has asked for rehearing. This time the Court requested that the argument be directed to whether a local government becomes liable for a taking when the government actually invades or otherwise destroys the use and value of the property or whether there is no constitutional violation until after a state court denies compensation.


James S. Burling, Vice President for Litigation, Pacific Legal Foundation


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

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 Thursday, January 17, 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 discussion on the oral argument for 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 expert on today's call.


Today we are very fortunate to have with us Mr. James S. Burling, who is Vice President for Litigation at the Pacific Legal Foundation. After our speaker gives his remarks today, we will have a Q&A for the audience, so please keep in mind what questions you have for this case, for its oral argument, or for our speaker today. Thank you very much for sharing with us today, Jim. The floor is yours.


James Burling:  Thank you, Wesley. So this is the case of Knick v. Township of Scott, and let me give you background, first of all, about Mrs. Knick. Mrs. Knick is your proverbial older woman who lives alone on 40 acres of property in rural Pennsylvania. Quite obviously, Mrs. Knick would prefer that she does not have trespassers go crossing her property at will. It's her private property, and she feels for her safety, and security, and privacy that she should be able to keep people off of her property.


Now, on her property there are some old stones. They sit in the middle of the property out in the fields, and some locals think that maybe those stones are old gravestones, some Colonial Era gravestones. They have no proof of that, but they think they might be. And they can't get onto Mrs. Knick's property -- they couldn't get onto Mrs. Knick's property because she said, "It's my private property. You can't trespass. That's just the way it is." So these locals who are interested in gravestones went to the town and got the Scott Township to pass an ordinance. And the ordinance essentially says that town officials can come onto the property at any time, any time at all, to look for old grave sites. And this is the part that Mrs. Knick really doesn't like. The first part's bad enough, but any member of the public during daylight hours can go across her property to look for these reputed gravestones. And she didn't like that at all.


And when the town informed her that she was going to have to let people onto her property pursuant to the ordinance, and wrote her a letter to that effect, she sued in state court. She sued saying that the ordinance is wrong, and it shouldn't be enforced. And the state court dismissed her action, saying that until the township actually brings an enforcement action against you, and by the way, there are penalties that can be imposed upon Mrs. Knick for not allowing the trespassers onto her property, because the State actually -- or the town hasn't actually imposed those penalties yet, you have no cause of action in state court. At that time, Mrs. Knick decided to go to federal court. Now, she argued that there was a taking of her property.


So let me give you a little background on the Fifth Amendment and takings actions in state court and federal court. The Fifth Amendment says government shall not take property for public use without the payment of just compensation. And this is applied to the 14th Amendment to the states with the Civil War amendments and the first application of the case called Burlington Northern, 1890 something or other, you don't have to remember that, but it applies to the states. Now, after the Civil War, in addition to the Civil War amendments which eventually we understood to incorporate the Fifth Amendment against the states, we also had the passage of Section 1983 of the Civil Rights Act. And that gives a cause of action to individuals to sue local governments in Section 1983 when they allege that the government is violating their constitutional rights. And that can be seen in the context of the First Amendment, in the context of the Fourth Amendment, so on and so forth. You are allowed to go into federal court to vindicate your state -- your federal constitutional rights.


Well, why would you rather go into federal court as opposed to state court? Well, the reason why Congress passed Section 1983 after the Civil War is they did not trust -- Congress did not trust the state governments to fully enforce the civil rights of individual Americans, especially in those days, the newly freed slaves in the South. But Congress made this applicable to all states and all civil rights. It didn't just talk about any particular class as only applied to. And that's the way things have pretty much stood.


In the intervening years since Section 1983 was passed, there have been some important developments. One very important development, a case called Patsy, is the Supreme Court held that if you're trying to vindicate a federally guaranteed constitutional right, and you're trying to vindicate that with Section 1983 in a federal court, you do not have to exhaust state remedies first. So for example, if you're going to argue that the prison officials were confiscating my property in violation of my constitutional rights, and they had some kind of administrative procedure for bringing an action against the prison guards, you don't have to go to state court to do that. You can go directly into federal court. So that's an important background of understanding how Section 1983 works.


There is also a takings case -- and remember that I said that a taking is when government takes your property for public use without paying you just compensation. It's perfectly okay for government to take your property for a public use. They just have to pay you for it. And if the government sets up a special procedure when it says, "Hey, we're doing something. We're taking your property. You have a process to follow to get compensation, but we admit that we're taking your property," that's okay, too. There's a case called Cherokee Nation where claims for compensation were filed against the United States for the alleged taking of property, and the Court said that you can follow the procedure. The government has essentially said, "We've taken your property. We owe you money for it. Now, here's the procedure you follow for getting compensation." And Cherokee Nation said it's okay to set up this kind of procedure when government admits that it's taken property, and it just wants to figure out how do you pay for it.


So fast forward to regulatory takings, the idea that government through regulation or some other action takes your property but doesn't admit that it takes it. It just takes it through regulation, it takes it through physical invasion of your property, letting people, trespassers onto your property, or regulating your property to the extent that there's no use and value left to it. That's the kind of taking that people can file an inverse condemnation claim against the state or local government, or federal government, depending on who's doing the taking. And by inverse condemnation claim, I mean not the kind of condemnation claim the government brings against the property owner to take the property, say for a highway, a school, or something of that nature. This is an inverse, a reverse condemnation action where the landowner sues the government, saying, "Government, you took my property. You're not admitting that you took my property, but I want the court to say you took my property, and then, of course, pay me for it." So that's the inverse condemnation action.


But in a case called Williamson County—this was a 1985 decision which has given us lots of heartburn, and that's what this Knick case is all about—in the Williamson County case, a bank that had taken over some foreclosed property sued Williamson County, arguing that the regulation or the denial of the use of the property was a taking of the property, and the county should pay the landowner, now the bank, for the property. The owners had gone bankrupt because they couldn't get the permits they needed. And what the Supreme Court said in Williamson County was the claim has to be ripe in two ways. The first way is not controversial. The first way is that if there are variances or zoning administrative procedures you can get -- until you go through the processes that are available for you, you really don't have a final, ripe claim under traditional ripeness doctrine. That's noncontroversial.


But the second thing that the Court said in Williamson County is that unless you utilize state procedures to try to get money back for the taking, then you can't bring your claim into federal court. Now, you remember a little bit ago I talked about Patsy that said that for any constitutional claim, you don't have to first utilize state administrative or judicial procedures. You can go straight into federal court. Well, the Williamson County case said no, there's an exception for regulatory takings claims, and it said the exception is because, under the Fifth Amendment, the claim itself does not come into being until you first seek compensation from the state and get that compensation denied. Then, and only then, do you have a federal claim that you can go into federal court. Well, that's created a great deal of consternation, a great deal of problems because it has effectively kept people out of federal court.


And it's had two very perverse results, particular results. The first one is in a subsequent case out of San Francisco, the so-called San Remo case, somebody filed their claim in state court arguing that San Francisco's regulation of hotels effected a regulatory taking of the property. And they sued in state court and said, "We're only suing under state constitutional remedies under the California State Constitution. We are not suing under the federal Constitution." And the Supreme Court eventually said, "No, Williamson County still applies because you could have brought a federal claim in state court. And because you could have, you should have, and you didn't, you are precluded, then, from bringing a subsequent federal claim in state court."


The Court further said that was under the Full Faith and Credit Act that if you have the availability of a federal cause of action in state court, you should bring it there with your state plan. And moreover, you should also make sure that you bring your federal claim -- it also is res judicata, so if you try to get in federal court, it's too late. It's already been decided. Whether or not you brought your federal claim in state court, if you should have, you could have, and it's res judicata, and you cannot bring it into federal court. And what this means is it's virtually impossible to get a federal takings claim into federal court.


The other perverse thing that happened as a result of Williamson County is what we like to call the remove and dismiss gambit. And this is the situation -- and I'm not making this up, this has happened dozens of times across the country where somebody will file a federal takings claim, a state and federal takings claim combined, in state court. Then, once it's in state court, the local jurisdiction, the town, the county or the state agency, will then remove that case into federal court, saying, "This is a federal cause of action, and we can bring a federal cause of action under the federal takings claim into federal court." And federal courts say, "Okay, we'll take the case." They agree to remove it from state court into federal court, and then, five minutes after they say that and it's in federal court, the local government will then say, "But look, under Williamson County, the claim is not ripe in federal court, and you have to dismiss the claim."


And believe it or not, that gambit has succeeded in a number of cases. Now, a few courts have begun to say, "No, wait a minute. That's not right. You can't do that." But there are a significant number of cases where people doing what Williamson County says, filing their federal taking claim first in state court, get it removed involuntarily into federal court, and then to get it dismissed from federal court. And that's the so-called San Remo problem, which I'll be talking about.


Now, Mrs. Knick, she filed her taking claim, her federal taking claim in federal court. For various reasons, she didn't think that Williamson County applied, or didn't really fully aware of the significance of it, but she filed this claim in federal court. And the federal court said, "No, you can't do it here because of Williamson County. You have to bring your claim first in state court." Now, when the San Remo decision was decided over a dozen years ago, several of the justices, including the Chief Justice William Rehnquist at the time, and O'Connor and others, said, "You know, this Williamson County thing seems to be wrong." It wasn't raised in this San Remo case as being unconstitutional, was not part of the appeal, and there are various procedural reasons why that had to happen, but the Court in San Remo said, "You know, maybe we should look again at the Williamson County decision because we don't think it's valid. It looks like it's wrong." So as a result, property rights advocates, attorneys from Pacific Legal Foundation in particular, have asked the Supreme Court many times since San Remo to take up a case to look at and then potentially overrule Williamson County.


Now, they took Mrs. Knick's case up. Finally we've got one up there, and oral argument was first held on October 3rd before an eight-justice panel. Justice Kavanaugh, of course, was not in the Court by that time. And the argument at the first hearing really talked about parsing the Fifth Amendment. What does it mean? Do you have a -- what's the relationship between the required -- the part that says government can take private property and the part that says without just compensation? Are they separate causes of action? Are they together? And there's a lot of very technical kinds of arguments that will not pursue right now on that question.


About a month later, the Court issued an order asking for rehearing. Of course, two things had changed. Of course, we had Justice Kavanaugh at that time, and the Court asked for further briefing on a narrower question of when does a federal taking claim ripen up and what is the actual claim itself that we're arguing. Now, at the first hearing, I would say, and other observers agree that the Justices, some of them just demonstrated a surprising lack of understanding of how inverse condemnation works and how it's distinguished from direct condemnation actions. We've seen confusion on some members of the Court on direct condemnation actions. We saw some of that in the Burr case a couple years ago. But in the first oral argument, if you look at the transcript, you'll see the Court just wasn't understanding how things worked. But I think they understand a lot better now because their questions were more sophisticated and more understanding on the argument that was held a couple of days ago in October -- excuse me, yesterday on January 16. So this is again before eight justices. Justice Ginsburg will review the transcripts and recording, and she'll participate in the decision-making process, but she was not there.


So the Knick's counsel, who is David Breemer who works at Pacific Legal Foundation, long time Senior Attorney with the Foundation, began the argument by focusing on the symmetry between state and federal takings claims, noting that in both cases, the takings claim accrues when the physical invasion occurs; in this case, when the ordinance was adopted that allowed members of the public to go onto Mrs. Knick's property, preventing her from keeping people off of that property. So when this case was brought, she had a right to go and immediately vindicate her claim. And we're arguing the same thing happens in federal court. If the federal government takes an individual's property, that individual has a right at the moment the invasion occurs, the moment the taking occurs, to go into the Court of Federal Claims to seek compensation.


And we're arguing Section 1983 should work the same way. The minute a state government takes property, the taking has occurred, and you should be able to go into federal court. And it doesn't make sense for a taking to occur at one point in time in federal courts or federal causes of action, federal government taking property, that is the minute the invasion occurs, but the taking, the constitutional violation occurs at a different time. If the state is doing it, it doesn't happen until you try to seek compensation and you get compensation denied. So that was the beginning of our argument saying it really did not make any sense for that to happen.


So David Breemer actually got a fair bit through his argument before he was asked the first question. Normally, you get two or three sentences out, and Mr. Breemer got his entire opening out before he was asked a question. And that first question came by Roberts. And Roberts was saying, "Well, why not have two rules, one for taking by state government and one for the federal government?" And the answer is, the answer that was given is that the Constitution doesn't vary according -- depending on what court you're in, or even depending on who the actors are. The Constitution is the Constitution. And shortly after that, Justice Breyer began with a very long—it's eight pages in the transcript—convoluted hypothetical about a state EPA and how an attorney should advise a state EPA agency on what to do when people come saying, "The state EPA has taken our property," and they want money for it. The question was -- and I've, look, seen many questions by Justice Breyer. This was the most convoluted, and confusing, and long-winded question that I've seen him give in quite some while.


And so his question just went on, and on, and on. And he was trying to get at the procedural difficulties that would occur if you can take a case directly into federal court before the state agency has a chance to even act on the question of whether or not there's been a taking. But the response to that is that, look, if the state government has done something that takes your property, the property owner does not have to go before the administrative agency and ask for money. If a taking has occurred, you have a right to go into court, and in this case, federal court. So that was a -- that ate up quite a bit of time in the argument because Dave Breemer only had 20 minutes because he's sharing 10 minutes with the Solicitor General, and I'll get to that in just a little bit.


Now, Breyer kept on going, and eventually Roberts put a stop to Breyer's line of questioning by suggesting that the problem here is that local government agencies usually do not offer compensation, at which point Justice Kagan began to talk about, "Well, we have a theoretical reason here, and we've always understood the need for both invasion and a lack of compensation for a taking." And so she really was focused on what I'd call a theoretical difficulty that would lead to a practical difficulty. In her words, "You know, everybody will just flock to the federal courts, and the federal courts won't know to do with the case," because apparently there are going to be so many cases filed.


But there is really an answer to that, and that is if you know the government's invaded your property, you shouldn't have the necessity of going through some long, protracted state administrative process that's just going to tie you up. And the government hasn't given you compensation, if it hasn't offered you compensation right away, you should be able to go into federal court. It's like Cherokee Nation. They said, "Look, if the government, if the state government set up a compensation procedure, said 'Hey, we're passing a regulation. We admit that it takes your property. We have a fund of money. Come to us and we'll give you some money.'" But that's not, of course, what state governments do. State governments generally just say that "We've passed the regulation. It's good for everybody. And if you don't like it, sue us."


So Justice Sotomayor, toward the very end of Mrs. Knick's argument—and I should say this is somewhat interesting because Justice Sotomayor, when the time begins to run out, always sees the need to ask a question—toward the end of Dave's time, she said that there's really no entitlement for you to stop the litigation or to say that there's been a taking until the process of the Tucker Act is completed. That's in federal court for a federal claim. And she didn't really understand the Tucker Act, but she decided to make a long question out of it, at which point Mrs. Knick's attorney said that the Tucker Act and Section 1983 really aren't that much different if you understand how they work because under the Tucker Act, you have an immediate claim for compensation as soon as the United States invades your property. And the same should apply if the state court is doing it differently -- is doing it the same.


Now, at this point, after 20 minutes, or about 18 minutes, General Noel Francisco from the Solicitor's Office came in because the Solicitor's Office is actually supporting the property owner here in support of overruling Williamson County. And he has a slightly different take on it. He's saying that really, the violation and the lack of compensation occur at two different places, but still that Williamson County should be overturned.


There was also, just to kind of wrap up the discussion here, there was also a great deal of discussion of a couple of things. One is when the attorney for the State was arguing, or the town was arguing, the question came up of, well, do you really like state court so much better? I mean, why is it that you prefer to be in state court? Do you not like the federal court -- federal government? And that was somewhat in response to questions of the Solicitor saying, "Well, why do people want to go into federal court? Are state courts no good?" And the Solicitor, of course being very diplomatic, saying, "No, the state courts are just fine now, but Congress passed Section 1983 after the Civil War because at that time, Congress didn't think that the states were up to vindicating people's constitutional rights."


So when it turned around to the attorney for the town arguing, the question was turned around to her saying, "Well, what is it that you don't like about federal courts?" And she hemmed and hawed, and said, "Well, no, federal courts are just fine. I don't have a problem with them," but -- and then at one point said, "Well, really, it's just being home-towned, right? You're being home -- you want to have the local courts." She was asked, "Well, what if the state had a speedy procedure," and this is several of the justices who were asking, "to get compensation?" Well, how speedy is speedy enough to say that you should go into state court first?


And then she was asked specifically by Justice Roberts, "Well, how long is a typical regulatory takings claim take in state court?" She hemmed and hawed for a while and said, "Well, about two years." And that's fairly ridiculous from my experience in how long these things take. I'd say double or triple that. Being that as it may, she said two years and everything's hunky dory. You can go into federal court -- I mean, state court and it should be fine. But Alito pressed her. "Why do you want to be in state court? Why does a property owner want to be in federal court? Is that because the property owner thinks the state courts are bad? Do you want to be in state courts because you think that federal courts are bad?" So Justice Alito said, "Well, you want the home court advantage." And she said -- excuse me, Ms. Sachs from the town said, "No, of course not." But clearly, Justice Alito thought she did. "You're telling me," he said, "that you have no practical reason for wanting to be in state court as opposed to federal court? It's just some airy, theoretical idea that you have that state court is where you should be?" And so he was quite skeptical of that. She said, "Well, the State has an interest in developing the law."


And so Kavanaugh at that point talked about "Well, the municipalities have a home court advantage." And I would say, from my personal experience, of course they do because state courts are much more closely aligned with state and local governments, and federal courts are much better, oftentimes, of giving you relief. We like to say the Ninth Circuit's a bad circuit to be in, but if you've ever litigated in California on a property case, you say, "Throw me into the Ninth Circuit, please. It's a briar patch I want to be in as opposed to state court."


So then there were some questions that Justice Kagan asked. "You know, I understand your position, and I would get it if it weren't for the problem of preclusion rules," the San Remo case that I mentioned at the beginning. He said, "You know, if you go to the state court, then San Remo says you can never get into federal court. So maybe we should just overrule San Remo." And so Ms. Sachs from the local government attorney said, "Well, I think that San Remo is a great place to start, but if anybody wants to change that, it should be Congress. That's something for Congress to address," at which point Justice Roberts said, "You know, you love San Remo, right?"


And the courtroom thought that was rather amusing, but it points out that Justice Roberts gets why this is an important issue for landowners and why San Remo is a problem. So we have some concern that we have a pretty clear idea where Justice Alito, and Justice Kavanaugh, and where Justice Thomas -- but Justice Gorsuch may be coming from. Roberts is a little enigmatic because at the first oral argument, he seemed concerned about the caseload or the workload of the federal courts, but I think statements like, "You just love San Remo," indicates that understands what's going on.


So that's pretty much how the argument went. And Justice Gorsuch also began to ask questions toward the very end about, "Well, what about the fact that in 1983 actions, there is no state exhaustion requirement? That's Patsy. And why shouldn't there be exhaustion for property rights if we don't require exhaustion for other constitutional rights?" And so that was a tough question to ask, but all in all, just to wrap this up, I think that the Court is favorably disposed to understanding the property rights here. I think that we have a good shot at winning a majority opinion from five of the justices.


Some of them might try to split the baby and do something with San Remo instead of overturning Williamson County. That discussion came up. I think that's going to be a difficult thing to achieve because San Remo is based on the Full Faith and Credit Act, doctrine of res judicata, and as was pointed out at oral argument, that's something that Congress can really do now. But I think it's going to be hard for the Court to overturn San Remo without also overturning Williamson County. Besides that, San Remo was not an issue raised by the parties in this case, other than it being talked about in the briefing. But the property owner did not ask for San Remo to be overturned. The property owner asked for Williamson County to be overturned.


So that's the sum of my remarks. I'd be happy to take any questions at this point.


Wesley Hodges:  Wonderful. Thank you so much, Jim, for your remarks. While we wait for any first questions from the audience, Jim, I do want to turn back to you. I know you touched on this in your remarks, but I'd love to hear more about what the argument and decision could do to affect the scheme for regulatory takings.


James Burling:  This could be a very important case for regulatory takings beyond just whether you're going to overturn Williamson County. It has a significant practical impact because in a lot of jurisdictions where you are essentially relegated to utilizing state court procedures only for your regulatory taking claim against the state or local government, the problem is you lose. If you bring such a claim in California, you lose. In addition, states like California have very long, convoluted processes. Before you can bring a taking claim, and this was brought up in the argument as well, before you can bring a taking claim in California, you have to seek a writ of mandate to overturn the decision that took your property. And then once you succeed on a writ of mandate, then the California court has said that you have no taking claim. It was only a temporary delay in the process.


So it's going to enable people to have taking claims in the first place that don't have them now. It's also going to allow litigants to bring claims in areas that state courts have basically shut down. We have, for example, regulatory issues in California dealing with rent control and certain land use issues that there is really no practical way of getting any kind of relief in state courts. You have to do this in federal court. Because of Williamson County, we haven't been able to bring these claims into federal court, but now we can. So there are a number of facets of regulations, exactions, conditions that are imposed on development of property and the use of property that we have not been able to challenge, and the same thing happens in a number of other states. But we can -- if Williamson County is overturned, we'll be able to do that.


Wesley Hodges:  Thank you so much, Jim. Looks like we do have one question in the queue and plenty of time for more if you'd like to join. So let's go ahead and move to our first caller.


Jim Ely:  Thank you. Jim, this is Jim Ely.


James Burling:  Hi, Jim.


Jim Ely:  I want to thank you for an excellent exposition of what went on at the oral argument. I found it very informative. I guess I have two very quick questions, I think. Was there any sign that any of the so-called liberal block justices would be sympathetic to overturning Williamson County? And secondly, you mentioned the role of the Solicitor General. Has the Solicitor General's Office been supportive, generally, of property rights claims, or a little hands off?


James Burling:  So let me take your first question first. Justice Kagan seems to get that there's a problem. The problem that -- she is focusing on San Remo, but my hope is that she may, indeed, see that San Remo can't be fixed without fixing Williamson County. So there's a possibility there. Breyer, I think, was really working hopefully to write the dissent. He was pretty much all over the problem of administrative concerns that's going to happen at the administrative level. Justice Sotomayor has never seen a property right that she's liked, so I'm not anticipating getting her vote on this. On every taking claim, even ones that are 8-1, she's always the one dissenter. So we can bring along a Justice Ginsburg and a Justice Kagan, but you can't bring along a Justice Sotomayor.


As far as Justice Ginsburg, who knows? You'd have to go back to the prior arguments, and I would put her as an unknown after that one, leaning toward the State and the administrative agencies, but not completely in that camp. So she is something of an unknown. I think it's possible that she might see it, but of course, not being able to participate in oral argument, I have no idea how she feels about the current argument.


And your second question was about the Solicitor General. The Solicitor's Office has not supported a property rights case since Nollan v. California Coastal Commission in 1987. Since that time, if the Solicitor's Office, if DOJ has been involved in a taking case as an amicus capacity, it's always been on the side of the government. This is the first time since 1987 that the Solicitor's Office has actually come in and weighed in on the side of the landowner. Now, they had a concern that this case could go in such a direction it could undercut the Tucker Act and cause problems through the Court of Federal Claims. That may be why the are here, but they also may have seen that there's an inherent problem of individuals not being able to vindicate constitutional rights in a federal court.


So the argument of the Solicitor was largely helpful. Some aspects of it I would have preferred they would have said things in a different way and had a different nuance to it, but overall, I think the argument was helpful to our side. And I'm very glad and appreciative of the fact that the Solicitor saw that Williamson County is a big deal and it ought to be overturned, although in the way that they see it best to be overturned that would not threaten existing federal procedures and federal administrative agencies and how they work with regulatory takings.


Jim Ely:  Yeah. Thank you very much, Jim. I appreciate it.


Wesley Hodges:  Thank you so much, caller, for your question. Looks like we do have another question in the queue. Let's go ahead and turn to our second caller.


Dick Stephens:  Hi, Jim. This is Dick Stephens. I've got a question as to whether the oral argument focused at all on the Williamson County theory that the Fifth Amendment is different, that there's no violation until compensation is denied, or was it more discussion just about the practical problems with that theory?


James Burling:  There were certainly questions about the theory, and I did not -- and I'm not going to get too far into the depths of the weeds of that theory, but yes, the question is is there a constitutional violation when the government action is taken initially to physically invade the property, as in this case, or does the constitutional violation not occur until the landowner goes through a state process seeking compensation and is denied? And that's the big dichotomy here between what Williamson County says about property rights and what Section 1983 says about every other right. And that was something that we were trying to point out to the Court, that property rights and just compensation should be no different. The violation occurs when there is the invasion or the regulation that takes away use and value of the property. That's when there has been a taking of the property. The just compensation aspect of it is not the trigger for finding a violation. The violation does not occur until after you're denied compensation. You have the taking, and then you go and seek compensation. And our argument is the taking part creates a constitutional violation, and then you get to go into federal court.


Now, the Solicitor was saying that the violation and the cause of action are separate in time. And the attorney for the city or the township was essentially saying the same thing, that therefore you'd have to pursue your state claims in state court. The Solicitor was saying, "No, you don't have to pursue the state claims in state court. You can have a direct cause of action under 1983 or the jurisdictional Statute 1331. Either of those will get you there." So yeah, the Court did go into it, but they also were focusing a lot on the practical aspects of it. And so when you bring your next taking claim in the state of Washington, where Dick Stephens is from, then hopefully after this, you could go into federal court, recognizing that the cause of action accrues the minute Seattle takes your client's property.


Wesley Hodges:  Thank you so much, caller, for your question. While we wait on another question from the audience, Jim, I turn to you with another question. Could you speak a little bit on the involvement of the Solicitor General for this case and how unusual this circumstance was?


James Burling:  Well, sure. And as I mentioned in response to Jim Ely's question -- and I should mention, of course, Jim Ely has written The Guardian of Every Other Right, a great book on property rights and takings. If you haven't read it, you should. The Guardian of Every Other Right by Jim Ely. And he didn't pay me to give that advertisement, I just think it's a great book.


So the Solicitor's office here really, I think, really stepped up and did the right thing here because normally they do not support property owners in taking cases. And they don't do that, obviously, because they're representing the U.S. government. And the U.S. government has lots of claims filed against it, and it's in their best interest, of course, to make sure that it's as difficult as it possibly can to sue the federal government for a taking claim. But of course, this is different. This is talking about suing state courts. And the Solicitor, as I said, I think was very interested in making sure that Williamson County would not be overturned in a way that would adversely impact the ability of the Solicitor's Office to defend the federal government. So they're kind of walking a very fine line here, supporting the property owner, in this case against a local government, but doing it in a way that's one, going to be fair; two, is going to be constitutionally coherent, which Williamson County is not constitutionally coherent; and three, do it in a way that doesn't rock the boat too much for the way the federal government does things.


So I think it's a fascinating exercise by Noel Francisco of the Solicitor's Office. I think he did an admirable job walking the very tight line that he walked. And the Solicitor's Office is always very competent, and very good attorneys, and I was really glad to have them on our side in this case as opposed to being on the other side, which they have been for most regulatory taking claims that we have been involved in for the Supreme Court. They're usually 10 minutes against us. This is fine to have 10 minutes for us in this case.


Wesley Hodges:  Excellent. Well, thank you so much for sharing a little bit more on that, Jim. It does look like we do have another question in the queue, so let's go ahead and turn to that caller.


Hayden O'Byrne:  Hey, good morning. This is -- or afternoon. This is Hayden O'Byrne in Miami. I've got a question for you. Could you just sort of talk us through the relationship of, I guess, the municipal entities here? I mean the Township of Scott and the State because it sort of seems to me like, theoretically, one of the problems with this whole issue is that you have the adverse party, which is the township, which sort of morphs into the quasi-judicial body which is making the determination, and then they sort of become a party. And I just don't know sort of theoretically how you unpack that, because I think Township of Scott from the very beginning has always taken the position that it's not paying compensation, but that's not really what counts. What counts is whether or not the state decides you have to pay compensation, but they're not a party. That's a quasi-judicial role that the state has, and I think that at some point, that gets blurred between the Township's role as a party and the State's role as a, I guess, a quasi-judicial body to determine --


James Burling:   -- Or where the state courts are involved, it could be a purely judicial body. But you've got a point there. When you're talking about a municipal government, or even a state agency, if it is supposed to decide that its regulation or law has taken property and that it's going to have to pay for it, well, as a practical matter, that's not going to happen. But as a theoretical matter, that's not the body that should be deciding a constitutional issue. If you've been practicing before administrative agencies, you know full well that if you argue that, "Hey, your regulation violates the Constitution, administrative body," or the application of a regulation violates the Constitution, they'll always tell you, "Hey, it's not our job to deal with the Constitution; that's the court's. Sue us if you don't like it."


So to put the onus on the local municipality, or state EPA as Justice Breyer called it, to come up and make a determination that there's been a taking of property, is imposing, as you say, a quasi-judicial role on that body. And moreover, if you then have to go into the state court system, that's a judicial body, but they're not in the best position to be necessarily arguing that state agency has taken property. So it does get a little convoluted and confused, especially Justice Breyer's hypothetical of saying that the local government or a state EPA agency should be the one deciding that there's been a constitutional violation and we're going to pay for it.


Now, it's one thing if they want to set up a compensation mechanism. They can do that. They can say, "Hey, look, we're driving across your road, and we're going to pay you for it. Here's the damages." Fine, but you're always entitled to go to court if you don't like the amount of money that they're offering to pay you for that. So yeah, there is some doctrinal incoherence in suggesting that state agencies or local governments should be the ones to determine how much they're going to pay for a violation of the Constitution. That's not their role to say they violated the Constitution. That's the court's role.


Hayden O'Byrne:  Thank you.


Wesley Hodges:  Well, thank you so much, caller, for your question. We do have another question in the queue. Let's go ahead and turn to our next caller.


Caller 4:  Hi. Thank you for your presentation. It's useful. I find regulatory takings to be really confusing, to be candid about it. And from what I know about the case, this doesn't feel like a regulatory taking because the local legislature simply granted a right of access, an easement, over someone's property through a legislative process. So any idea why it's not handled as kind of a non-regulatory sort of taking?


James Burling:  Yeah, so I was probably too glib in the way I initially described the case because Williamson County itself involved a regulatory taking. But Williamson County, the larger aspect of it, it involved inverse condemnation claims against the government. And that includes both claims that the government has effected a regulatory taking and a claim that the government has effected a physical invasion. This case falls within the physical invasion subcategory of inverse condemnation claims because the ordinance that they passed essentially created an easement allowing trespassers to go across Mrs. Knick's property, and that is a physical invasion style taking.


If you seize somebody's -- taking cases from the Supreme Court or courts of appeals, they often break them down into different types. One, we have regulatory takings where the government regulates your property, destroys some of the use and value, then you have to go through something called a test based on Penn Central that looks at the economic impact of the regulation, looks at your investment expectations, looks at the character of the regulation, and then decides whether or not there's been a regulatory taking. But on the other hand, when you have a physical invasion, that's pretty much always a taking, and then the question is compensation. Now here, the town won't admit that passing an ordinance allowing trespassers onto the property effects a physical invasion, and that's the rub of this case. Is it or is it not a physical invasion? And of course, what's the issue at this case right now is what court do you get to file this in?


But if you recall, the granddaddy of the physical invasion cases was Loretto v. Teleprompter. That was a case where Mrs. Loretto owned an apartment building in New York City, and the city fathers decided to allow cable companies to lay cable and put cable boxes on privately owned apartment buildings and not pay the owner for that invasion. And the Supreme Court says, "Look, this is a physical invasion, maybe minor physical invasion, but it's a physical invasion nonetheless, and that is a per se taking." So we are arguing that the township has per se taken, through a physical invasion, Mrs. Knick's property. But first we have to get into federal court to do that, and that's what the current aspect of this case is all about.


Caller 4:  And is that based off of your kind of local knowledge on what your state courts do? I'm in the Great Plains, and there's no way I'd ever think of going into federal court. I love my state courts for inverse condemnation.


James Burling:  Well, that depends on where you're at. As I said earlier, I'm based in California, and I don't love the Ninth Circuit, but I love the California courts a whole lot less. I can guarantee you, if you bring a property claim in California courts, you will lose. So if you have a favorable court in the Midwest, that's your choice. It's just like under any other Section 1983 claim, whether it's First Amendment, whether it's Fourth Amendment violation, you, the affected individual, has the right to choose which court to go into, state court or federal court. Section 1983 gives you that choice, and you may decide to go to state court because you're comfortable with state court procedures, the courthouse is closer to you, you're very confident in the nature of those judges, but that's not the case in every state.


Wesley Hodges:  Thank you so much, caller. We appreciate your question. Seeing no immediate questions from the audience, Jim, I turn the mic back to you. Do you have any closing thoughts for us today before we wrap up the call?


James Burling:  One thing that I should mention that I forgot to say at the outset is that there were also a fair number of questions about stare decisis and overturning precedent. Those are the questions that you always love to get during oral argument because it shows that some members of the Court, in this case, Justice Gorsuch in particular, but also some of the others, are seriously thinking about overturning a case.


Now, they're rather skittish about overturning established precedent because that's a kind of a big deal thing. And there are some so-called super precedents out there that they really don't want to be accused of thinking about overturning, so any time they're going to overturn a precedent like Williamson County, they have to think long and hard about it. And the Court has established certain standards of reliance over the years, and whether the lower decision is doctrinally coherent or not, and the questions went through some of those things. And I think the Court is pretty clear that this is a case that isn't ready -- is ready to be overturned.


As Justice Gorsuch said toward the end, Williamson County isn't well reasoned. It was very -- it wasn't briefed. It's inconsistent with a lot of other law that's developed around it, including First English, which is another old taking case. And so the Justices seem to realize that there's a problem with Williamson County. So I think that this is a good example why all the listeners out there who engage in litigation dealing with property rights or the Constitution should realize that just because we have a bad precedent doesn't mean that you can't try to overturn. We went at the Supreme Court, as I said, many times to try to get this up before the Court. Now they've finally taken the case, and I think they get that there's a problem, and I think that most of the members of the Court -- I don't want to count any chickens before they've hatched, but I think most members of the Court recognize the problem here. So I think it's a good sign, and I hope that everybody goes and looks for your regulatory taking cases where you are and tries to sue in federal court. That's all I have, Wesley.


Wesley Hodges:  Wonderful. Well, Jim, on that note, I'd like to thank you on behalf of The Federalist Society for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at [email protected] Thank you all for joining. The 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