Courts

This Takings Case Has Nothing To Do With The Wall, But Still

Let's just watch how conservatives thread this eminent domain needle while the Takings elephant is in the room.

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Hi conservatives, how’s the Takings ideology going?

Yesterday, the Supreme Court heard re-argument in the case of Knick v. Township of Scott, Penn. It’s the second time they’ve heard the case, but the first time since Justice Brett has been on the court.

Knick is a knotty eminent domain issue under normal circumstances. At issue is whether a plaintiff must exhaust all state court remedies when a local government has taken their property, or whether they can immediately run to federal court to protect their Fifth Amendment rights. The controlling Supreme Court precedent is Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, and that suggests plaintiffs absolutely must exhaust state remedies before running to federal court.

But Williams Country precedent is kind of bad if you are a plaintiff. Some state official condemns your land, and makes some pathetic offer of “just compensation,” but you have to litigate it all out in the state courts before you can argue your federally guaranteed rights in federal court? Why? Other Constitutionally protected rights don’t work that way.

The Knick case is even more extreme than most, because the state of Pennsylvania is denying that the plaintiff is entitle to compensation at all. A Pennsylvania ordinance requires a certain level of public access to cemeteries housed on private property. Rose Mary Knick argues that such access constitutes a taking that entitles her to just compensation. (See, this is why liberals like me hate defending takings plaintiffs, they’re almost always assholes.) Pennsylvania argues that she’s not entitled to any compensation, and they have a state court process for dealing with these compensation disputes. (Luckily, the state is usually being an asshole too.) Knick wants to skip the state process and go right to federal court.

Normally, this kind of taking would be catnip for conservatives. It’s complicated because ruling in favor of Knick kind of requires overturning the 35-year-old precedent established in Williams County, but conservatives have been promoting exactly the kind of activist judges to the Court required to get this kind of thing done. But when the case was argued in October, the Supreme Court was only operating with eight-members as Brett Kavanaugh had not been seated. Now that he’s there, he could be the deciding vote in the case.

However, at re-argument yesterday, Kavanaugh expressed concern with overturning precedent. From Bloomberg Law:

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The U.S. Supreme Court needs more than just the fact that a decision is wrong to set it aside, Kavanaugh said during oral argument Jan. 16 in a dispute over a municipality’s right to take private property for the greater public good.

There also needs to be some “special justification” for doing so, he added.

Voicing a concern for precedent is very different from voting to uphold precedent, so we’ll see if Kavanaugh’s thoughts relate to his actual votes. But there is an orange elephant in the room as the justices deliberate. As I’ve said before, conservative justices have been bred to make it extremely hard, and expensive, for the government to take property. Rose Mary Knick is exactly the kind of plaintiff these guys are supposed to care about. But are they prepared, with eminent domain fights potentially looming over the Wall, to side with a plaintiff in an eminent domain case? This decision will likely be irrelevant to the just compensation cases that pop up over the Wall, but still. It’s still a very charged time for conservative jurists to make a sweeping decision, overturning settled precedent, to make it easier for a plaintiff to sue the government over compensation for her land.

Meanwhile, when reached for comment, liberals were all:

There’s no ideological problem for liberals to tell Knick she has to wait for the state compensation process play out before coming to federal court. There’s no ideological problem for liberals to tell Knick that she has to let people see their DEAD LOVED ONES who are buried on her property. There’s no ideological problem for liberals to turn around and say ALL court proceedings, state or otherwise, have to play out before one steel slat can be erected on somebody’s land. Even if Kavanaugh eventually joins the other conservatives, you can expect the liberal dissent to tie conservatives to their pro-plaintiff logic for any upcoming Wall fight.

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I want Knick to win, because I think she’s right. But I also desperately want to read somebody like Neil Gorsuch twist himself in a majority opinion to explain why he’s just ignoring settled law, making it easier for a plaintiff to oppose a taking, and yet somehow not making it impossible for Trump’s Wall to be built. It’ll be fun to read him pull an intellectual hamstring trying to cram all of that into one opinion.

Kavanaugh Again Shows Concern for Overturning Precedent [Bloomberg Law]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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