ROSE MARY KNICK AND THE STORY OF CHICKEN LITTLE.

• Author: Merriam, Dwight

Introduction I. Learning from a Fable II. We Have Been Here Before III. First Reactions to Knick IV. The Likely Impacts of Knick on Local Governments Conclusion INTRODUCTION

The case of Knick v. Township of Scott (1) risks becoming a fairy tale of the frightening kind if we fail to put it into perspective. With Knick, the U.S. Supreme Court cast aside the second prong of the ripeness test, overruling a 34-year-old precedent that a takings claimant had to first seek compensation in the state courts under state law before going to federal court. One perspective on the decision was that "Knick may result in the crowding of federal courts, through which myriad takings claims stemming from local regulations of zoning and land use may now pass unencumbered." (2) Whether that will hold true is yet to be seen. In establishing a foundation on which to analyze Knicks likely impacts on local governments (including inundation of the federal * courts)--my self-assigned task--it is necessary to establish a certain gravitas. I start with the story of Chicken Little.

1. LEARNING FROM A FABLE

   If you want to get technical about it, believe it or not, there is a formal typology of fables (3) in which the story of Chicken Little is categorized: the Aarne-Thompson-Uther type 20C (including former type 2033). (4) It is one of a class of folktales where the lesson is that we should not overreact or be led into hysteria over the littlest thing. It is the hapless Chicken Little, as you will fondly recall, who is hit on the head with an acorn and, believing the sky is falling, becomes hysterical and decides that he must tell the King. (5) Along the way, Chicken Little runs into a string of characters, all with delightfully rhyming names, such as Henny Penny. Ducky Lucky, Drakey Lakey, Turkey Lurkey, Goosey Loosey a.k.a. Loosey Goosey, (6) and Foxey Loxey, among others. Chicken Little recruits them all, one after another, and they join him in the quest to tell the King, allowing the storyteller an opportunity to repeat all of the names each time a character joins them, as they troop along. The cumulative or chain tale (7) dates back to long before it was first written down, probably by the Brothers Grimm in 1812. (8)

   You see, the law can be fun; you are smiling already, and we have not yet arrived at the serious business at hand. Most interesting is how the tale ends. In one version, the fox eats them all. In another, one character survives long enough to warn and save Chicken Little. And in yet a third version, they are all saved.

   With Knick, the end of the story is likely to be happy enough: the sky will not fall, and all can be saved. Why? Because, as we shall see, in all of the other landmark direct and indirect condemnation cases, the consequences have proved mostly unremarkable. Even so, it is essential to know the path forward in light of the new precedent in Knick.

2. WE HAVE BEEN HERE BEFORE

   After each successive Supreme Court decision on property rights, we have imagined a parade of horribles that ultimately never appeared. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, the Court held that property owners must be compensated with money damages for their lost property from the time of the taking, even when the taking is temporary. (9)

   The report of the decision, the day after it was handed down, was mostly doom and gloom: "The decision will chill the zeal of local, state, and Federal regulators of land use around the nation and encourage property owners to seek damages when they feel they have been unduly burdened by regulations...." (10) A New York Times article less than two weeks after the decision reported on the concern of local and state planners and suggested trouble ahead:

   Under the Court's ruling, governmental agencies could be made to pay potentially huge amounts rather than simply amending a regulation after it is struck down by a court. The action not only raises sharply the financial stakes involved in zoning and other land-use decisions, but has also caused many experts to agree that it could lead to a new era of caution in the imposition of controls on private property. (11) Looking back at First English over 30 years later, it is impossible to see any measurable, adverse impact on governmental decision-making, planning, and land-use regulation arising from the decision. Most certainly, there have been more cases brought for compensation for temporary takings, (12) more money damages paid in California that otherwise would not have been paid, (13) and more favorable settlements for property owners, (14) but nowhere is there any report or evidence of any dramatic change. Indeed, decisions applying First English impose serious limitations on its application in those instances where permits are not quickly forthcoming, requiring that claimants allege and prove that their temporary takings are "extraordinary" and not merely the result of normal delays. (15)

   The Supreme Court's decision in Lucas v. South Carolina Coastal Council (26) five years after First English, was subject to the same initial overreaction. Norman Williams, Jr., one of the great land-use law scholars in my lifetime, authored a two-part analysis of the decision, calling it the "culmination of a trend" that would end the presumption of validity established in the state courts. (17) That did not happen. A recent study of the 1700 post-Lucas decisions citing Lucas revealed that in only a minuscule 1.6% of the cases (just 27 of them) was the plaintiff property owner victorious. (18) The Lucas decision never even made a tremendous makeweight argument.

   And then there is the notorious Kelo v. City of New London (19) eminent domain decision from 2005, legally doing nothing more than restating settled law, but causing such enormous angst. The decision galvanized the masses into action when they saw how draconian eminent domain could be. The result was that 44 states changed their constitutions or statutes to address issues of what was a public use or purpose, what properties might be protected from being taken, and what compensation was fair. (20) Call it "losing the battle and winning the war." (21) If anything, Kelo is exemplary of how politics can be profoundly affected by a decision, even though the law has not changed. (22)

3. FIRST REACTIONS TO KNICK

   As to Knick v. Township of Scott, it appears we have more of the same: overreaction, hyperbole, prognostications without foundation, and idle speculation. For instance, shortly after the decision, U.S. Senator Sheldon Whitehouse saw Knick as part of a 73-case campaign by the "Roberts Five," as he labels them, supported by "dark money" intent on "seeking control of our courts." (23) As Rhode Island Attorney General in 2001, Senator Whitehouse had lost a seemingly-consequential Supreme Court takings case, Palazzolo v. Rhode Island. (24) Palazzolo was yet another case where the decision eliminating the notice defense in takings seemed momentous at the time, (25) yet proved to have no real effect. The doctrine of investment-backed expectations slid in, for the most part, to take its place. (26) It appears Senator Whitehouse cannot put the loss behind him: "Front groups funded by anonymous money manufacture legal controversies, like the Pacific Legal Foundation, which handpicked the plaintiff in Knick and shepherded the litigation to the high court. I happen to know a thing or two about them. They led the litigation in Palazzolo," (27) The involvement of the Pacific Legal Foundation in both Knick and Palazzolo is probably indicative of nothing more than it being a large nonprofit legal organization that defends private property rights, with 73 lawyers and staff and 170 active cases in 2018. (28) As I noted in my response to Senator Whitehouse's commentary, some pro-regulation, government planning, and land-use control advocates, such as Professor Daniel R. Mandelker of Washington University School of Law, had strongly advocated overruling the second prong of ripeness in Williamson County. (29)

   In his commentary, Senator Whitehouse also disparaged the Chief Justice and the rest of the "Roberts Five": "The chief justice likes to say his court isn't partisan; that's because people believing that helps him be partisan. But it's actually worse. The Roberts Five have become virtual delivery boys for big Republican donor interests, almost daring us to point out the obvious pattern." (30) As with his attack on the Pacific Legal Foundation and indirectly on Professor Mandelker, Senator Whitehouse's claim that Republican donors have turned the "Roberts Five" into "virtual delivery boys" is unsubstantiated and misses the mark.

   Cogent, yet probably exaggerated, speculation on the impacts of Knick was made the day of the decision by the dissenters, in an opinion written by Justice Kagan and joined by Justices Ginsburg, Breyer, and Sotomayor. They identify three adverse impacts of the decision. First, they believe that "it will inevitably turn even well-meaning government officials into lawbreakers" who "will almost inescapably become constitutional malefactors." (31) What they mean is that because takings are now deemed to occur at the moment the property is unconstitutionally encumbered and before a court may render a decision on whether it is a taking or not, the public official is put in an untenable position. However, is this not essentially the same situation a police officer is in when making a stop or a zoning enforcement officer when issuing a cease and desist order to remove a sign? The civil rights violation occurs at the moment of action.

   Second, the dissenters argue, correctly, that it is "more important" that the federal courts may be overwhelmed with run-of-the-mill local land-use controversies. They write that "the majority's ruling channels to federal courts a (potentially massive) set of cases that more properly belongs, at least in the first instance, in...