Sublimating Home Rule and Municipal Separation of Powers in Knick v. Township of Scott
33 Pages Posted: 6 Dec 2019 Last revised: 31 Dec 2019
Date Written: October 19, 2019
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
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