Yesterday, the Supreme Court took the unusual step of having a second round of oral arguments in the case of Knick v. Scott Township. As we wrote in October 2018, the property owner in the Knick case has asked the Court to overrule its 1985 decision in Williamson County v. Hamilton Bank. The rule adopted in Williamson County requires property owners to exhaust all state remedies before they can ask a federal court to decide whether the government has violated their Fifth Amendment rights by taking their property without just compensation. Even though the Williamson County rule was adopted in the unique context of takings claims, some lower federal courts have wrongly applied it to land use cases involving First Amendment rights and even the Religious Land Use and Institutionalized Persons Act (RLUIPA).
At the first oral argument in Knick, only eight justices were on the Court as Justice Kavanaugh had not yet taken the bench, so many assumed that the Court scheduled another argument because it was split 4-4. With Justice Kavanaugh as the possible tie-breaker, every one was waiting yesterday to see what questions or points he would make. As you can read in the transcript of the oral argument provided here https://tinyurl.com/ydfoe49z , Justice Kavanagh’s comments and questions did not give away much about what he thinks about this complicated case. One legal scholar, George Mason Professor Ilya Somin, writing for the Volokh Conspiracy law blog (https://reason.com/volokh/2019/01/16/thoughts-on-the-second-oral-argument-in ) commented that “the few things he did say were not particularly comforting for the property owner’s side.” Particularly, Justice Kavanagh asked about “statutory stare decisis,” which may indicate that he thinks the Court should be very reluctant to overturn Williamson County. And he also chimed in when the discussion turned to whether constitutionally protected property rights are better protected in federal or state courts, asking whether “municipalities get a home court advantage in state court as compared to federal court.”
Ultimately, this second round of oral arguments left everyone still guessing as to how the Supreme Court is going to resolve the complicated problems Williamson County has created. It is our hope that at the very least the Supreme Court will issue an opinion clarifying that Williamson County carries no weight beyond the unique context of takings cases.