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US Supreme Court Allows Greater Access to Federal Courts for Taking Cases

June 28, 2019

In Knick v Scott, SCOTUS overruled precedent requiring property owners asserting takings by state or local government to exhaust state court remedies before seeking relief in the federal courts.

In a 5-4 opinion, the Supreme Court of the United States reversed many years of precedent to allow property owners to proceed directly to federal court to pursue takings claims against state and local governments.

According to the Fifth Amendment of the federal Constitution, “nor shall private property be taken for public use, without just compensation.” Williamson Planning Comm'n v Hamilton Bank, 473 US 172 (1985), held that the Fifth Amendment was not implicated until there was both a taking of private property and a denial of just compensation. Williamson County noted that “because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied.” Additionally, a line of cases beginning in 1890 held that governments need not pay compensation when property rights are taken if there is a “reasonable, certain, and adequate” procedure for relief.  For that reason, a property owner complaining about behavior by a state or local government could not access the federal courts until after the taking occurred and all state level remedies were unsuccessfully exercised.

Justices John Robert, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, were the majority that overruled Williamson County in Knick v Township of Scott, holding that, “[a] government violates the Takings Clause when it takes property without compensation, and … a property owner may bring a Fifth Amendment claim under § 1983 at that time.”  Therefore, the Fifth Amendment is immediately implicated by the taking itself, not a combination of the taking and a denial of just compensation.  For that reason, there is no longer a need to proceed in state court to establish a denial of just compensation.  In writing the decision, Chief Justice Roberts uses a colorful analogy, “[a] bank robber might give the loot back, but he still robbed the bank.”  

Justice Elena Kagan wrote a dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.  She also uses colorful language, accusing the majority of “smash[ing] a hundred-plus years of legal rulings to smithereens.”  According to the dissent, “the distinctive aspects of litigating a takings claim merely reflect the distinctive aspects of the constitutional right,” which is not violated until “(1) the government takes property, and (2) it fails to pay just compensation.”

Stephon Bagne regularly represents property owners in all varieties of takings, including the type of de facto takings addressed in this decision and formal eminent domain proceedings. 

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