Sublimating Home Rule and Municipal Separation of Powers in Knick v. Township of Scott

Abstract

It may be bordering on apostacy in certain circles to suggest that Knick v. Township of Scott–in which a sharply-divided Supreme Court held that municipal and local governments may be sued to recover just compensation for Fifth Amendment regulatory takings in federal court — is a ruling that municipalities could celebrate. After all, how could a decision that overruled a case that for more than three decades had effectively shut federal takings claimants out of federal court by relegating them to (presumably) more local government-friendly state courts be a good thing for local governments?

The Knick majority concluded that a federal regulatory takings claim is ripe for federal court from the moment a municipality adopts an allegedly confiscatory regulation without providing compensation, even if a state court would also entertain a state law takings or inverse condemnation claim. The reason why local governments should look for a silver lining in the majority ruling is the unstated premise which all the Justices confronted: are local governments merely conveniences of the state, or are they separate from the state and its judiciary?

In this article, I suggest the answer to that question is no: state courts resolving state law inverse condemnation and state takings claims are not part of a local government’s taking and compensation mechanism.

Keywords: property, law, eminent, domain, takings, constitutional, supreme, court