Williamson County’s Cohens Problem

September 28, 2018 by psb40

By Joel Nolette, Editor-in-Chief, Least Dangerous Blog; Former Editor-in-Chief, Georgetown Journal of Law and Public Policy, vol. 15

On Wednesday, October 3, the Supreme Court will hear oral argument in Knick v. Township of Scott, to decide “[w]hether the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), requiring property owners to exhaust state court remedies to ripen federal takings claims . . . [.]”[1] Much ink has been spilled on this issue, as the nearly two dozen amici in this case demonstrate.[2] One point, however, stands out among the others, which is that Williamson County is in significant tension with the longstanding principle “that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”[3] The Court will hopefully take the opportunity in Knick to alleviate this tension.

To review briefly, the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.”[4] If private property is taken without just compensation being provided, the property owner would then have a claim “arising under th[e] Constitution,” to which “[t]he judicial power shall extend . . . .”[5] Such a claim arises “once the government has taken private property without paying for it.”[6]

If that property owner chooses to seek redress in federal court for this constitutional violation, that court would generally be duty-bound to hear such a case barring some unrelated jurisdictional or justiciability defect.[7] After all, a federal court cannot “abandon[] its jurisdiction over a case of which it had cognizance, and turn[] the matter over for adjudication to the state court.”[8] As Chief Justice Marshall said nearly 200 years ago in Cohens v. Virginia, federal courts “have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given,” and “one or the other would be treason to the Constitution.”[9]

The Court, however, has “sometimes lost sight of his admonition.”[10] Williamson County is one such case in point. In Williamson County, the Supreme Court held that a “taking claim is not yet ripe,” even if a state has already taken a party’s property without paying for it, if that party “did not seek compensation through the procedures the State has provided for doing so.”[11] In other words, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.”[12]

The mere fact, however, that “an alternative remedy exists does not affect the jurisdiction of the federal court.”[13] A property owner may have “a genuine ‘case or controversy’ sufficient to satisfy Article III” once property is taken without just compensation but nevertheless “fail[] to satisfy [Williamson County’s] prudential ripeness requirements” by not exhausting potentially available state remedies.[14] In other words, Williamson County’s requirement is “not, strictly speaking, jurisdictional.”[15] It is “merely a prudential requirement”[16]—one that requires federal courts “to decline the exercise of jurisdiction,” contra Cohens.

This is the problem. Per Cohens and its progeny, the Court cannot delimit the bounds of its jurisdiction more narrowly than what Article III provides, or otherwise abstain from adjudicating a justiciable cause of action arising under the Constitution, “merely because ‘prudence’ dictates.”[17] Rather, “the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends.”[18] Williamson County, in essentially declaring that a property owner “may not litigate a federal claim in federal court having jurisdiction thereof,” is “particularly anomalous,”[19] to say the least (never mind Chief Justice Marshall’s invocation of “treason”![20]).

Ms. Knick presents reason enough for overturning Williamson County in explaining how it “fails to serve a ripeness purpose, causes tremendous harm to takings litigation in application, and is inconsistent with the remedial role of the Just Compensation Clause.”[21] Additionally, and even more fundamentally, the case is in significant tension with the basic upshot of Article III as explained in Cohens and “steadily adhered to” ever since.[22] By granting certiorari in Knick, the Court appears poised to remedy the “anomalies” created by Williamson County. If the Court takes Chief Justice Marshall’s admonition seriously, Williamson County’s rule might not be long for this world.[23]


[1] Petition for Writ of Certiorari, Knick v. Township of Scott, No. 17-647, at i (Oct. 31, 2017); see Knick v. Township of Scott, 138 S. Ct. 1262 (Mar. 5, 2018) (granting petition for writ of certiorari limited to question one presented by petition).

[2] See Knick v. Township of Scott, Pennsylvania, http://www.scotusblog.com/case-files/cases/knick-v-township-scott-pennsylvania/ (last visited Sept. 12, 2018).

[3] Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (cleaned up).

[4] U.S. Const. amend. V.

[5] Id. at Art. III, § 2.

[6] Horne v. Dep’t of Agric., 569 U.S. 513, 526 n.6 (2013).

[7] Wilcox v. Consol. Gas Co. of New York, 212 U.S. 19, 40 (1909).

[8] McClellan v. Carland, 217 U.S. 268, 281 (1910).

[9] 19 U.S. (6 Wheat.) 264, 404 (1821).

[10] Marshall v. Marshall, 547 U.S. 293, 299 (2006).

[11] 473 U.S. 172, 194 (1985).

[12] Id. at 195.

[13] Horne, 569 U.S. at 513.

[14] Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 n.7 (1997).

[15] Horne, 569 U.S. at 526.

[16] San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323, 349 (2005) (Rehnquist, C.J., concurring in the judgment).

[17] Lexmark, 572 U.S. at 128.

[18] Hyde v. Stone, 61 U.S. (20 How.) 170, 175 (1857).

[19] Colo. River Water Conservation District v. United States, 424 U.S. 800, 826 (1976) (Stevens, J., dissenting); see San Remo Hotel, L.P., 545 U.S. at 351 (Rehnquist, C.J., concurring in the judgment) (noting how Williamson County “has created some real anomalies”).

[20] Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).

[21] Petitioner’s Brief on the Merits, Knick v. Township of Scott, No. 17-647, at 13-14 (May 29, 2018).

[22] Chicot County v. Sherwood, 148 U.S. 529, 534 (1893).

[23] See also Joel S. Nolette, Last Stand for Prudential Standing? Lexmark and Its Implications, 16 Geo. J.L. & Pub. Pol’y 227, 239-41 (2018).