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

See all articles by Robert H. Thomas

Robert H. Thomas

William and Mary Law School; Damon Key Leong Kupchak Hastert, LLP

Date Written: October 19, 2019

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

Suggested Citation

Thomas, Robert H., Sublimating Home Rule and Municipal Separation of Powers in Knick v. Township of Scott (October 19, 2019). Fordham Urban Law Journal, Vol. 48, No. 3, 2020. Available at SSRN: https://ssrn.com/abstract=3490905

Robert H. Thomas (Contact Author)

William and Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Damon Key Leong Kupchak Hastert, LLP ( email )

1003 Bishop Street
Honolulu, 96813
United States

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