One of the most consequential decisions of the recently concluded term of the U.S. Supreme Court involves the reversal of a 30-year precedent and reinstatement of a landowner’s right to seek redress in federal court for an alleged taking of property without just compensation.  The 5-4 majority decision in Knick v. Township of Scott, PA, authored by Chief Justice John Roberts, reflects the decidedly conservative bent of the current court.  The decision in Knick affirms that an aggrieved landowner may initiate a 5th Amendment takings claim in federal court without first seeking redress in state court.  The ruling overturns Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, which was decided in 1985.


Private property advocates have long sought to overturn Williamson and are celebrating the reinstatement of a direct federal claim without first resorting to state court.  The thought is that federal courts are better qualified to address constitutional questions and arguably are staffed by judges more accustomed to reviewing constitutional challenges.  The question, though, is whether Knick will matter in any but the most extreme cases?  Here’s why it may not:  (1) any litigation (state or federal) is very expensive and few can afford to pursue it (even contingent fee arrangements may not reimburse or absolve the plaintiff landowner from traditional costs of litigation, such as deposition fees, expert witness fees, etc. which can be substantial by themselves); (2) litigation in federal court traditionally can be much more expensive than that conducted in state court due to more stringent judicial procedure requirements; (3) litigation in federal court traditionally takes much longer to resolve contributing to the high costs; (4) a private party challenging the government in court (state or federal) has to overcome several significant obstacles, starting with the cost of the litigation (government attorneys are already on the taxpayer payroll) along with the inherent presumption that the government has acted correctly; and (5) engaging in any sort of litigation is not for the faint of heart, but once you engage, the rules compel that the case follow certain procedures to a resolution which can wear down the parties.


One clear advantage of pursuing a claim in state court is the opportunity to get other pertinent non-federal issues addressed that may resolve the litigation on a faster, less expensive basis.   In fact, federal court review may well be limited to federal jurisdictional matters only leaving valid state claims unaddressed.  Admittedly this procedural dichotomy poses a difficult trade-off; landowners will need advice on the relative merits of alternate federal and state law claims to assess merit and potential for success.


I try very hard to give my clients clear-eyed advice when it comes to pursuing any sort of litigation, for all the reasons noted above.  But the most practical piece of advice may, in the right circumstance, be that of simply moving on without pursuing a claim regardless of the merits.  I want my clients to firmly own the decision to pursue litigation; I challenge them to consider all the variables and to set aside their emotions in making their decision.  More often than not, practicality prevails and the aggrieved party will decide to avoid the stress and financial burden of bringing an uncertain claim against the government.