Weekly litigation report — November 2, 2018

November 02, 2018 | By JAMES BURLING

Knick to be reargued

Ms. Knick’s case heads back to the Supreme Court for more argument

The court has ordered Knick v. Scott Township for reargument. In this order the Court has asked Ms. Knick to file a supplemental briefs by the end of the month with the town’s reply due just before Christmas. The issue the court is asking for more briefing on was raised in oral argument and in this footnote in our opening brief:

“Even if one accepts the Williamson County premise rejected here that an inverse condemnation claim rests on a “violation” of the Just Compensation Clause the state litigation ripeness requirement is not a correct deduction from this premise. Accepting the premise for the sake of argument, the issue of whether an alleged taking is “without just compensation” and “complete” would depend on the actions of the responsible government entity at the time of the taking, not on the actions of a state court. If an agency charged with taking property fails to provide or guarantee compensation at the time of the property injury challenged as a taking, the alleged taking would be “without just compensation.” A claim would be complete and ripe for review at that point under Williamson County’s own logic, regardless of what a state court might do.”

You will recall that this cases asks whether the 1985 cae of Williamson County should be overturned. That case held that property owners who allege that a local government action has taken their property must first go to state court and be denied compensation before the owner can go into federal court. The problem is that once a takings claim is argued in state court, it is impossible to reargue it in federal court, thus shutting the federal courthouse door to takings claims against local governments.

We argued several grounds on which Ms. Knick should win before the Court. Our main argument was that a takings claim against a local government is ripe the minute the take occurs and that the federal courts are an appropriate forum for that determination. The question of just compensation is a remedies issue, we argued, which must follow the determination that there has been a taking. Because the first question in these inverse condemnation cases is whether there has been a taking in the first place, the resolution of that question in no way depends on the availability and pursuit of a state compensation claim. For that reason, inverse condemnation claims should be justiciable in the first instance in federal courts should the landowner choose to utilize that forum. For that reason, Williamson County was wrong when it told property owners to go first to state court to seek compensation.

The alternative argument that we raised in the footnote set out above essentially says that it is the government agency’s actions constitute the take, not the state court in denying compensation. Once the government has acted in a way that destroys the use or value of property, the taking is complete. Therefore, there is no need to force takings claimants to go to state court rather than a federal court. Nothing that a state court can do will make the taking any more complete than it already is. Therefore, there is no valid reason why a landowner must begin a proceeding in state court in order to ripen a takings claim. This is the argument that the Court has called for further briefing and argument on. To a lay person, the distinction between these two arguments may seem subtle, but the second argument might be crucial to the ultimate outcome here. Also potentially significant to the outcome is that we will now have our argument before a full nine-member Court now that Justice Kennedy’s empty seat has been filled.

The date of the new oral argument has not been set; it is likely to occur sometime after January. For a primer on the reargument procedure, this post on ScotusBlog is helpful.

Falconry regulations run afoul of the Bill of Rights

On Tuesday we filed this complaint in Peter Stavrianoudakis, et al., v. United States Department of Fish & Wildlife and California Department of Fish & Wildlife. This case concerns federal and California rules applicable to falconry license holders that not only require the waiver of falconer’s rights to be free from unreasonable warrantless searches of their homes and property, but prohibit the use of their birds for all commercial purposes. PLF is representing Peter Stavrianoudakis and two other long time falconers, along with falconer advocacy group American Falconry Conservancy, in the U.S. District Court for the Eastern District of California. “My wife lives every day in fear that armed government agents will demand entry to our home whenever they wish, just because we own a bird,” says Peter, a deputy public defender for Stanislaus County, California. “I defend people’s constitutional rights every day. Now I’m asking a court to defend ours.” For more information on the case see our blog post here, and case mini-documentary on PLF’s Facebook page.

PLF calls for a free market in Texas liquor sales

PLF filed this friend of the court brief on behalf of PLF and the Retail Litigation Center in Wal-Mart v. Texas Alcoholic Beverage Commission. The Constitution forbids states from passing laws in order to entrench local businesses and exclude free and fair competition.  But Texas has worked for decades to protect its local liquor empires by excluding competitors from entering into the state. PLF’s brief urges the Fifth Circuit to call out Texas’s discriminatory laws for what they truly are – barely disguised protectionism and to reject Texas’s argument that the constitutional protections do not apply to state liquor laws. Our blog post is here.

Supreme Court passes on opportunity to rein in the administrative state

This week, the Supreme Court declined review in California Sea Urchin Commission v. Combs, which challenged the Ninth Circuit’s dramatic expansion on the Chevron deference doctrine. According to that controversial doctrine, courts must defer to agencies interpretation of the law, putting a heavy thumb on the scales of justice favoring bureaucrats over people. The Ninth Circuit has made things worse by holding that agencies can claim any power they wish from statutory silence. In other words, unless Congress includes a litany of “thou shalt nots” in every law it passes, which it never does, agencies can do whatever they want. That holding is so dangerous that 17 states urged the Court to take the case.