Authored Articles & Publications Oct 23, 2019

Takings Decision by SCOTUS Expected to Create More Litigation for Public Agencies

Partner Gene Tanaka Analyzes Knick v. Scott in Law360

Takings Decision by SCOTUS Expected to Create More Litigation for Public Agencies

By Gene Tanaka

In Justice Elena Kagan’s dissenting opinion in the U.S. Supreme Court takings case Knick v. Scott, she stated: “Today’s decision sends a flood of complex state-law issues to federal courts. It makes federal courts a principal player in local and state land-use disputes.”

Her words are prophetic not just because the decision allows plaintiffs to file regulatory takings or inverse condemnation lawsuits in federal court instead of state court, but because it may remove the judicial safeguard in California that requires plaintiffs to first obtain a state court decision that the government’s action is a taking without just compensation.

Further consideration of Knick illustrates just what that decision could mean to public agencies in California. Until now, a government agency could rescind its action immediately after a judicial declaration that the action was an uncompensated taking to avoid damages. After Knick, the important question is whether this safety valve for government agencies will survive.

To read the entire article, originally published by Law360 on Oct. 9, 2019, please click here. Reprinted with permission.

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