ROSE MARY KNICK, Petitioner, v. TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL., Respondents
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Noel J. Francisco, J. David Breemer, Teresa Ficken Sachs

John G. Roberts, Jr.: We'll hear argument first this morning in Case 17-647, Knick versus the Township of Scott, Pennsylvania. Mr. Breemer.

J. David Breemer: Mr. Chief Justice, and may it please the Court: The critical issue in this case is this: When is an invasion of property without just compensation in violation of the Just Compensation Clause so that a property owner can claim an unconstitutional taking requiring damages? The understanding adopted well before Williamson County and Dow and other cases is that the invasion itself gives rise to a constitutionally rooted claim for compensation, unless, as in Cherokee Nation, the government recognizes the owner's entitlement to compensation and provides a process for collecting it at the time of the invasion. This is the understanding that controls in takings cases against the United States under the Tucker Act, and there's no reason why we should have a different constitutional interpretation of the Just Compensation Clause simply because the defendant is a local government entity. But, in fact, Williamson County does adopt a conflicting and anomalous and mistaken interpretation of the Just Compensation Clause in holding that an invasion of property is not without compensation and not actionable under the Takings Clause until state remedies are exhausted. A basis for this understanding is this Court's decision -- the initial basis is the Great Falls Manufacturing case.

This is 1884. And in that case, this Court said that when a property owner has their property invaded, they are entitled from that moment to go seek compensation on a constitutional basis.

So --

John G. Roberts, Jr.: Well, I mean, the -- the question is whether or not to overrule Williamson County.

And your assumption thus far has been that it turns solely on when you have a complete violation of the Constitution and should be able to proceed at that point. But do we -- is it necessarily the case that the -- the same rule has to apply with respect to federal proceedings and a state court proceeding? I mean, maybe what we're looking at is not something as grand as when the constitutional violation is -- has come to fruition, but, instead, simply a rule about how those cases should be handled in state court as opposed to federal court. Williamson County has what I think of as a special rule for state court proceedings that requires, obviously, you to go to the state court, and I'm just wondering if you can address that on its own without issuing some ruling about when a Takings Clause is complete and -- and actionable.

J. David Breemer: I don't think so because the only basis for that Williamson County scheme, state readiness scheme, is an interpretation of the Just Compensation Clause when you have a complete claim.

There's no other basis for that. And so, if you have a complete claim, as you do in the -- in claims against the United States under Dow, if you have a complete federal claim, well, then you have a federal question and you have the option to go to federal court under Section 1983.

That's the purpose of Section 1983, as you know. So I don't see how you -- I don't think the Fifth Amendment varies depending on what court you're in or what you're defending, and I think the Just Compensation Clause has to be interpreted in the same way in both of those circumstances, and there's no other basis for saying, well, state courts should have it first.

That's -- that's the no exhaustion doctrine in Monroe and other cases that this Court has rejected.

Elena Kagan: So could --

Stephen G. Breyer: How does it work? I mean, I -- I'm having trouble understanding. We have a -- an environmental agency, a state environmental agency which has some kind of a rule, only so much lead can be put into the sea or air or something every mile.

Now there are dozens of pieces of property within that area. And depending upon the reasonable expectations of individual property owners, it might violate some, and it might not violate others.

The state also has a system of courts that, where there's a violation, they pay.

Okay? So EPA, state, what are they supposed to do? I mean, how do we decide which ones are right and which ones are wrong? How do we decide which property owners do have the reasonable expectation and not? In your opinion, how do we do it?

J. David Breemer: Well, that, as I understand your question --

Stephen G. Breyer: I mean, if you're EPA, you are the state EPA, you go into your office --

J. David Breemer: I --

Stephen G. Breyer: -- and there's a queue of people and all of them are saying our property is being taken and we all have different times of purchase, different conditions, dah-dah, dah-dah. All right.

How do you decide who's entitled to it?

J. David Breemer: That's a merits question as I -- as I understand it.

Stephen G. Breyer: I know.

I don't care what kind of question it is.

I would like an answer --

J. David Breemer: And they don't --

Stephen G. Breyer: -- to that question. (Laughter.)

J. David Breemer: Okay.

How do you --

Stephen G. Breyer: How do you decide the merits?

J. David Breemer: How do you decide? The government -- the EPA doesn't have to decide that.

The -- a -- those property owners won't have an actionable claim until they have a ripe claim, there has been a finding --

Stephen G. Breyer: No, I'm not asking you that.

J. David Breemer: Okay.

Stephen G. Breyer: You are in the state EPA.

Mr. Smith comes in, and Mr. Jones.

They each say you have taken my property.

The conditions are different. What do you tell them?

J. David Breemer: They shouldn't be going to the state agency in the first place.

Stephen G. Breyer: They don't even go to the EPA?

J. David Breemer: They should --

Stephen G. Breyer: They don't even ask?

J. David Breemer: If -- if -- if their property has been injured by an EPA rule, then they -- and it's a final decision that injures their property, then they have the right to assert if that injury gets compensation --

Stephen G. Breyer: No, it's not a final. What they -- what they have in our state --

J. David Breemer: Then they don't have a claim.

Stephen G. Breyer: Our state, if you think the state EPA took a piece of your property, go ask them for some money, and there's a good chance they'll give it to you if they think you're right.

J. David Breemer: Well, there -- you --

Stephen G. Breyer: So what happens?

J. David Breemer: You -- you can't ask for money, Your Honor, until you have an entitlement.

And if the -- the government, the EPA here, has a --

Stephen G. Breyer: Sure, I can.

I can say, Mr. Smith, give me some money.

J. David Breemer: Well -- well -- well --

Stephen G. Breyer: I just did. (Laughter.)

J. David Breemer: Well, in -- then -- then we're going to have a debate about whether I owe you money or not.

And --

Stephen G. Breyer: No, no, I don't care. All I want is the money.

And I want to know how you, the official, decide whether I'm right.

J. David Breemer: You don't.

It's not your job as the official.

Samuel A. Alito, Jr.: Well, let me ask then --

Stephen G. Breyer: So, in other words, your proposal is of the, let's say -- let me not exaggerate -- 50 million rules in state agencies in the country, and let's say affecting only 200 million people, that each of those people is not even to ask the state agency for money? It is to go to a federal court somewhere? Is that your position?

J. David Breemer: No, not at all.

Stephen G. Breyer: What is it?

J. David Breemer: Because they -- those -- the situations you're describing, you still have exhaustion and variance and waiver requirements --

Stephen G. Breyer: I'll tell you what the exhaustion in our state -- when the EPA takes something of yours, in your opinion, you know what you do? Go ask them for some money. And if they think you're right, they'll give it to you.

Now what other exhaustion is there?

J. David Breemer: The exhaustion I'm talking about is you have to have -- we're not trying to -- to abrogate all of Williamson County.

You still have to have a ripe claim. You can't come --

Stephen G. Breyer: I'm not talking about Williamson County --

J. David Breemer: Okay.

Stephen G. Breyer: -- or anything else. I just would like the answer to my question.

J. David Breemer: The -- the answer --

Stephen G. Breyer: You are correct that --

J. David Breemer: As I understand it, the answer is that the administrative agency is not the right, proper place to go to --

Stephen G. Breyer: Where is the proper place?

J. David Breemer: -- to adjudicate a Takings Clause claim.

Stephen G. Breyer: No, there's no adjudication.

You would just like them to give you some money.

So, look, the reason I'm asking this, if you -- if you really -- it should be obvious -- but there is no practical way that I can think of to implement your rule because you have to go ask somebody for money. And they're going to say yes or no, and they're going to say yes or no in a tough case depending upon what papers you show them. That's called evidence.

J. David Breemer: It's -- it's --

Stephen G. Breyer: And then what the federal court will be doing will be just what they're doing now.

They will be reviewing that evidence in the state.

And somebody's going to say: You know, we have in our state a judicial review system, and you're barred by res judicata.

In other words, we're not helping you by deciding in your favor.

All we're doing is producing extra complication. That's at the root of my question. And I haven't even got to the tough part, where you agree they have some money but only $3. And they think they're entitled to $40.

And so we have to have adjudications on that too. Okay.

Do you see, that's the whole point.

Sorry to take so long --

J. David Breemer: There --

Stephen G. Breyer: -- but you seem not to see the connection.

J. David Breemer: There's -- there's no -- well, I -- maybe I don't.

I'm sorry if I misunderstand you.

But there's no right to ask for compensation, and there's no duty on the part of the government to pay compensation until there's been an invasion of private property. At the time of that invasion, that's what creates the liability, is there's a -- the government has invaded your property and hasn't given you anything or any guarantee of compensation.

Samuel A. Alito, Jr.: But let me ask --

John G. Roberts, Jr.: So I suppose --

Samuel A. Alito, Jr.: -- essentially the same --

John G. Roberts, Jr.: I was going to say, I suppose the way this most frequently comes up is through a municipal ordinance or something else like the, you know, enforcement of the alleged property right in this case, and there's no reason to suppose that the state is going to give you any money at all. They pass a law that says, well, for example, you -- you know, you can't build a garage on this property anymore or we no longer have -- allow this particular type of development. And I suppose if they were going to give you money, they would bring an eminent domain proceeding or something of that sort. But I think, in most cases that would arise, there's no prospect of -- of payment.

J. David Breemer: That's right.

That's exactly right.

And that's why the understanding under Dow, Dickinson, and Kirby is that, if there's a final injury, an invasion of property, and there's no condemnation of it, that itself gives rise to your claim for compensation. Now the government can have --

Elena Kagan: But why is that, Dr. Breemer? I mean, suppose that there were a statute of the kind that the Chief Justice was talking about, an invasion of a property interest, and the statute actually said, or maybe the statute didn't say, but the people who were in charge of administering the statute made an announcement that, if the regulatory invasion of property came to a certain level, invaded your property interests sufficiently, they would entertain a request for money. Can you just go into federal court even though that's a possibility?

J. David Breemer: Yes, you could.

Under Dow, the understanding is the invasion itself gives rise to the claim for compensation.

And so that wouldn't be sufficient because you still have no entitlement.

Your property's been invaded.

It's been harmed.

It's been injured.

But you have no compensation, no guarantee of compensation.

Elena Kagan: Right.

I mean, I think it's a -- so there are two things going on here.

One is a more theoretical concern. One is a more practical concern. The theoretical concern is, why is that true? We've always understood the Takings Clause to give rise to a claim when there's been both an invasion of property and a refusal to pay just compensation. And so the theoretical problem that your position has or at least the theoretical question it raises is, well, you don't know whether there has been a refusal of just compensation because now we're in a situation where it may be that the State will refuse, but it may be that the State will actually give you some money for the invasion. So --

J. David Breemer: Right.

Elena Kagan: So that's the theoretical problem.

J. David Breemer: Right.

Elena Kagan: And then the practical problem is, in this period where you don't know whether the state is going to give you money or not going to give you money -- it could, it couldn't -- why should you be -- this is Justice Breyer's concern -- you know, everybody will just flock to federal courts and the federal courts won't -- won't know what to do with the case.

J. David Breemer: Right.

I understand those -- the two different concerns.

The problem I have is with the first premise. You do know, when your property's invaded by the government, it's taking the benefit of invading your land and using it for its purpose, and it hasn't given you compensation or secured your compensation, you are without just compensation at that time. That's the original understanding under Dow, Dickinson, Kirby, Clarke, all the cases prior to Williamson County.

You do know. So it's not --

Elena Kagan: At that time just exactly when the invasion occurs?

J. David Breemer: Yes.

Elena Kagan: So, if the -- if the State says we'll give you a check in a week, you've been --

J. David Breemer: No.

Elena Kagan: -- you've had a -- or the State -- you know, the State says -- the State says, we will decide in a week.

J. David Breemer: The first one is adequate under Cherokee Nation.

Elena Kagan: That's why I changed it. (Laughter.)

J. David Breemer: The second one, no, see, it -- it -- it's been confusing, this area, but when you -- when you look at it, you have the Dow is the original rule, the original rule of Great Falls Manufacturing, the invasion itself, when they don't condemn it, you have a claim then. And then Cherokee Nation created an exception for the government.

Well, if you secure compensation, then you --

Elena Kagan: Right.

But I'm -- I'm suggesting -- I'm suggesting the government doesn't know yet.

You have -- you know, governments are slow.

They have to have time to review the situation, to review the evidence that you're going to give them. It doesn't know yet.

It's trying to figure out whether you should get compensation or not.

What happens?

J. David Breemer: Well --

Elena Kagan: Do you have a claim, a constitutional claim at that moment?

J. David Breemer: If the -- yes, if the government is fast enough to go into your property and declare it to be public access, at that time, and take the benefit of it, without condemning it or providing compensation, yes, you have -- even if it thinks it might decide later, yes, you have a compensation --

Stephen G. Breyer: That's not the easy case I'm thinking of.

Imagine I'm your client. Forget I'm a judge.

That's not too difficult. (Laughter.)

Stephen G. Breyer: I'm your client.

I am the local agency.

You are my lawyer.

I say: Lawyer, friend, I have a regulation here. It's going to affect a lot of people.

It might take some land or right and with others it won't.

Okay? Tell me what to do.

I would like to pay the right ones and not the wrong ones.

Tell me what to do.

You are my lawyer. Advise me.

J. David Breemer: What I would say to you is this, is that if the -- if you enact an ordinance that concretely harms and injures private property, those --

Stephen G. Breyer: It does some and not others, and so I want to know what I'm supposed to do.

And not only some but not others, but I don't know the land values of any of them.

J. David Breemer: If you do not know what to do, then you go ahead and you enact the ordinance.

And a property owner may bear the burden of bringing an expensive lawsuit under Section 1983 or otherwise to prove that it is a taking, if it's ripe.

Stephen G. Breyer: What -- where is the --

J. David Breemer: They may do that, just like in any other context, they may do that. Just like in the free speech, the seizure, the due process, if you make a final enactment that harms somebody, there's a risk that they may file a Section 1983 lawsuit, but that's the price that was paid by the Congress when they enacted Section 1983.

Sonia Sotomayor: Can I -- can I stop because I'm confused, because there seems to be a very different theory that goes on with the federal government.

May I continue, Chief?

John G. Roberts, Jr.: Sure.

Sonia Sotomayor: All right.

The federal government is permitted to pass a regulation to take property and to rely on the Tucker Act to have the claimant go into federal court and ask for compensation. There's no entitlement for you to stop the litigation or to say there's been a taking until the process of the Tucker Act is completed.

And then, if you win, you get money.

And, if you lose, you don't. You're saying for the State it's different.

It can't act to pass a regulation that may potentially -- we don't know yet -- take money.

It can't take property in an emergency, let's say, without ending up immediately, according to you, in federal court, unlike the federal government, where you can't stop that from happening because you get potential compensation in the Tucker Act. It seems to me that both the State and the federal government should be entitled to say to a landowner: I will pay you if I've taken something from you, and I will pay you in this way, whether it's an administrative rule that says this is going to happen and you have a right of review in the agency, and you seem to say that you have to exhaust that right of review in the agency to get the final no, is that correct? Just an answer, yes or no, to that. An agency does something.

There's an administrative process before it's a final decision.

J. David Breemer: That is a ripeness rule and, yes, that ripeness rule will continue to apply, but, for compensation purposes, it doesn't.

Sonia Sotomayor: All right.

So what's the difference between that and a state saying, instead of going through the agency, we're going to pick a decisionmaker, a judge, who's more independent, more impartial, more fair than an agency can be.

And if you think you've been harmed and are entitled to compensation, go there. What's -- what -- where is the difference? That's what the federal government does.

Why are, A, we treating states differently?

J. David Breemer: Right.

And that's the question I --

Sonia Sotomayor: And, B, why is administrative exhaustion, ripeness okay, but not the same thing if someone goes into state court to get a final decision?

J. David Breemer: And I'm going to answer --

Sonia Sotomayor: And, by the way, that state court final decision will end up in federal court.

If we did our job, which I hope we would do, we have review of final state court decisions.

So it's going to get into federal court if it's a serious error on the state court's part.

J. David Breemer: I think I'm going to answer really quickly because I'm losing time. I think there's a misconception about how the Tucker Act process works. The Tucker Act and Section 1983 aren't substantially different.

They both give jurisdiction in a federal court.

The difference is in how the Just Compensation Clause is interpreted. Under the Tucker Act, you have an immediate claim for compensation, as soon as the United States invades your private property, in the designated federal court. Under Williamson County, you do not have a federal, Fifth Amendment claim.

It's interpreted differently.

You have no complete compensation entitlement until after state remedies. So the issue is not this court or that court or this agency.

It's how are we going to interpret the Fifth Amendment? If it's complete at the time of the invasion, you have a federal question. And you may go to state court.

It may go to federal court.

But it doesn't matter. And you -- yes, you have state remedies, but you have state remedies everywhere, and it's never been a requirement that you have a state remedies exhaustion requirement if you already have a complete federal question under Section 1983, which you do here. Thank you.

John G. Roberts, Jr.: Thank you, counsel. General Francisco.

Noel J. Francisco: Mr. Chief Justice, and may it please the Court: I'd like to make two basic points that I think are responsive to much of the colloquy that we've been having. First, we think that Williamson County's premise was correct, that the government doesn't violate the Takings Clause if it provides a mechanism for awarding compensation after the fact. But that doesn't justify Williamson County's conclusion that a Section 1983 action is not available to redress the deprivation of the right to just compensation. We think it's available to redress all constitutional rights, including that one.

And the right to just compensation is one that vests the moment the property is taken.

That's why a property owner is entitled to interest dating back to the moment of a taking. So a property owner, under Section 1983, is quite literally deprived of that right to compensation from the moment of the taking until they get paid.

In this --

Elena Kagan: But this, General, is -- is -- this is what you argued the first time, that a property owner is deprived of a constitutional right even before the constitutional violation has taken place, is that correct?

Noel J. Francisco: That's correct, Your Honor, and, frankly --

Elena Kagan: It -- it seems like a sentence that you don't even -- you can't even say without stumbling over it.

Noel J. Francisco: I -- I -- I very much disagree because, frankly, everybody here agrees that these property owners can enforce their constitutional right to just compensation under the Fifth Amendment right now in a state inverse condemnation action. The only question is whether they have to enforce that constitutional right in state court first.

And there's simply nothing in the Fifth Amendment that says you have to go to state court before you go to federal court. I think it's helpful to think --

Elena Kagan: Is there any other area in our law generally where somebody can go to court under 1983, under anything else, and say I've been deprived of a constitutional right before a constitutional violation has occurred?

Noel J. Francisco: Yes, Your Honor, the Tucker Act, and that was going to be my next point. I think it's useful to think of Section 1983 in this context as similar to a Tucker Act -- a Tucker Act claim.

It doesn't redress the violation of a Fifth Amendment right, but it does provide you with a mechanism to enforce your Fifth Amendment right to just compensation. After all, the entire reason why a property owner is entitled to interest dating back to the moment of the taking is because they're entitled to be compensated for the entire period of their deprivation, the period in which they have neither the property nor the money.

Neil Gorsuch: Well, but -- well, but that right there seems to give the lie to your argument.

You just talked about the deprivation of their property from the moment it was taken.

Noel J. Francisco: Yes.

Neil Gorsuch: That would suggest that that's when the injury arises for constitutional purposes and all purposes. Again, I'm -- I'm with Justice Kagan, I can't think of another area in the law where we have this kind of artificial distinction that you're proposing.

Noel J. Francisco: Well, I think you're right that there's not another area of the law where you have this distinction.

I think where I push back is that it's an artificial distinction and, if I could explain, because for most constitutional rights, there is simply no difference between a deprivation and a violation.

The government violates -- deprives you of your First Amendment rights, for example, only when it violates the First Amendment. But the Takings Clause is uniquely different because the right to just compensation vests only when the government acts lawfully.

It's the government's lawful taking of your property that triggers that right, constitutional right, to just compensation.

And it's a right that vests the moment the government lawfully takes your property.

Brett M. Kavanaugh: An implicit premise of your argument and Petitioner's argument for overruling Williamson County, I think, is that the state courts aren't as good as the federal courts. Why is that, in your view?

Noel J. Francisco: Sure, Your Honor. And I -- and to -- to -- respectfully, it's not my judgment that state courts aren't as good.

Brett M. Kavanaugh: But the argument --

Noel J. Francisco: It's the Reconstruction era Congress's judgment that state courts could not be fully entrusted --

Brett M. Kavanaugh: That's --

Noel J. Francisco: -- to enforce federal constitutional rights.

Brett M. Kavanaugh: That's why I said a premise of the argument for overruling because we need --

Noel J. Francisco: Yes.

Brett M. Kavanaugh: -- more than just that it's wrong, right? There must be something more, and --

Noel J. Francisco: Sure.

Brett M. Kavanaugh: -- I think the implicit premise is that the state courts aren't good enough in protecting rights.

Is that because they're not quick enough? Because they're not awarding enough money? Because they're not competent enough? What is the implicit premise of their --

Noel J. Francisco: Well, Your -- Your Honor, I don't have any particular criticism -- criticism of state courts today, but Section 1983 was predicated on the Reconstruction era Congress's judgment that state courts could not be fully entrusted to enforce federal constitutional rights. And that's why they created a dual system where every individual would have a right to access --

Brett M. Kavanaugh: Didn't Williamson -- I'm sorry to interrupt.

Didn't Williamson County -- County necessarily reject that interpretation of 1983?

Noel J. Francisco: I think so, but I want to go straight --

Brett M. Kavanaugh: And -- and isn't --

Noel J. Francisco: -- to your stare decisis --

Brett M. Kavanaugh: And isn't that statutory stare decisis, which is a higher --

Noel J. Francisco: It -- it is statutory stare decisis, Your Honor, but I still think that there are special justifications for overturning it, principally this Court has never actually explained Williamson County's rationale, and as a result, I think it has had the unintended consequence of closing the federal courthouse doors to an entire category of takings claimants, and that's something I don't think Williamson County envisioned when it issued its decision.

Brett M. Kavanaugh: Can I just get more on what are the problems in state courts? State courts are not doing a good job because?

Noel J. Francisco: Again, Your Honor, I am not here to take the position that today state courts are not capable of resolving takings claims.

We do not have that criticism today of state courts. But Section 1983 fundamentally reflects the Reconstruction era Congress's judgment.

And there's no basis for thinking that the Reconstruction era Congress believed that the right to just compensation is the one area where we could trust state courts above all others. If, frankly, you think that that judgment was wrong and it's -- and it's available to this Court to go counter to it, I think that you should probably overrule Patsy as well, which rejected a state law exhaustion requirement precisely because Section 1983 was meant to provide a mechanism for accessing federal court. And, here, we think that property owners, just like all other litigants who are raising federal constitutional rights, should have a federal avenue to redress those constitutional rights.

Brett M. Kavanaugh: If we -- if we agreed with your 1331 argument, is there any practical difference in how things would transpire?

Noel J. Francisco: I think for the most part -- and that --

Brett M. Kavanaugh: Between that and your 1983 argument?

Noel J. Francisco: Yeah.

And that was the point I was going to pivot to next.

I think that you can effectively reach the same result under our International College of Surgeons Section 1331 argument, because, under International College of Surgeons, this Court made clear that if a state cause of action pleads a federal takings claim as such, then that federal takings claim presents a substantial federal question that arises under the Constitution for purposes of 1331. And, yes, Justice Kavanaugh, I do believe you can effectively reach the same result through our International College of Surgeons argument, and that does not require you to overturn Williamson County. So we think there are essentially two ways that you could go at this problem here. One is to take on Williamson County directly and overturn it.

And we do believe it was wrongly decided.

But the other way is to effectively reach the same result under our International College of Surgeons argument. In -- in either event, we do think that the property owners here, like all other constitutional litigants, should be given a -- a means to access federal courts.

Stephen G. Breyer: There's a big difference.

The -- the difference is that if a state provides a speedy and fair remedy where they're going to pay the money, there is no constitutional violation. And I can't think of a difference with that.

And the trouble with that is that once you say that, of course, they have to have some procedure for deciding whether there's a -- such a payment has been made or will in three days be made. And once you say that, you're back where you started because it's going to be a state administrative procedure, possibly reviewable in state court, and then res judicata may apply to that and, God knows, we've accomplished nothing. Now that is what's bothering me, but you'll have an answer, which is why I ask you.

Noel J. Francisco: Yes, Your Honor, because I think that your criticism is not unique to takings litigation.

I think states can always provide an administrative remedy to redress constitutional claims. But, in Patsy, this Court made clear that you do not require litigants to exhaust state remedies precisely because Section 1983 was predicated on the notion that litigants should have a choice between federal and state court because the Reconstruction era Congress did not believe that state courts could be fully entrusted to --

Stephen G. Breyer: I see that.

There is this difference.

But the Constitution itself says that this violation isn't complete unless they -- as long as they pay you.

And that isn't true of other state court -- I mean of other -- of other constitutional, you know, and there are loads of cases that say that.

Noel J. Francisco: And I --

Stephen G. Breyer: That's -- that's --

Noel J. Francisco: Right.

Yeah.

Stephen G. Breyer: All right.

So what do you -- what do you --

Noel J. Francisco: A couple of responses --

Stephen G. Breyer: Yeah.

Noel J. Francisco: -- Your Honor. My first response is that the right to just compensation, regardless of whether there's a violation, is one that vests immediately.

That's why, when you're suing the federal government for a takings claim, you can march into the claims court and -- and demand just compensation in a ripe cause of action. And it's also why these litigants can march into state court tomorrow with a ripe cause of action under the Fifth Amendment and demand just compensation. So I do think that there's a meaningful difference between the Takings Clause and other constitutional provisions in that regard and that, here, the right to just compensation vests before there's a violation. So I think it's -- it's helpful to think of 1983 and, frankly, to think of state inverse condemnation actions as similar to a Tucker Act claim.

They're all --

Elena Kagan: General?

Noel J. Francisco: Yeah.

Elena Kagan: You've expressed some concerns about this Court's adopting Mr. Breemer's argument.

What -- what exactly are those concerns?

Noel J. Francisco: So, at least as we understand that argument, Mr. Breemer's argument is that there's a constitutional violation if the state takes property but doesn't admit that it's a taking at the front end. Well, we -- we think that that's contrary to the Tucker Act, and it would effectively require federal government officials to determine on the front end whether their action constitutes a taking before they proceed, since, after all -- may I finish, Your Honor?

John G. Roberts, Jr.: Uh-huh.

Noel J. Francisco: Since, after all, federal government officials are duty bound not to violate the Constitution. We don't think that's required because the Tucker Act constitutes an implicit promise to pay in the event that there is a taking. But it doesn't change the fact that we think a Section 1983 action is available.

John G. Roberts, Jr.: Thank you, General.

Noel J. Francisco: Thank you, Your Honor.

John G. Roberts, Jr.: Ms. Sachs?

Teresa Ficken Sachs: Mr. Chief Justice, and may it please the Court: The Williamson County decision, which is at issue here, needs some context that I think will answer some of the questions we've been hearing, because the presentation of Williamson County as something that completely changed an existing landscape is simply not true. And I think it all -- this -- this point will also answer the question about the justification for the rule.

The big change in this area, the sea change was the Monell decision when this Court decided that municipalities could be sued under Section 1983. Before that, none of this was an issue because a takings claim against a municipality would be that claim in state court for compensation. In Williamson County, this Court first time had to address sort of the marrying of two long-standing doctrines for the first time. One was a claim under Section 1983 relying upon a deprivation of constitutional rights, a required element of Section 1983.

The other long-standing doctrine is that the Fifth Amendment is not violated, a property owner is not deprived of any rights under the Fifth Amendment where the government has provided a reasonable, certain, and adequate means to recover just compensation. And that is not dependent -- this Court has never made it dependent upon whether or not the government admitted to the taking. So, in that respect, we agree with the Solicitor General's position. There were -- there are at least 10 cases over --

Samuel A. Alito, Jr.: You are merging -- you -- you are merging the executive branch of the state government with the judicial branch of the state government.

So -- and maybe that's right, but this is the situation that is troubling to me. The -- a municipality enacts a regulation, and the property owner says: Wow, this regulation goes so far it completely deprives my property of any value.

This is a taking of my property. And goes to the municipality and says: You have effectively taken my property.

Will you pay me just compensation? And the municipality, speaking for the executive branch of the Commonwealth of Pennsylvania or whatever state is involved, says: Absolutely not.

We're not going to pay you one penny. Now, of course, if you want to take us to court, we're going to fight you tooth and nail all the way through the state court system, and if in the end you get a judgment that says that there was a taking and you're entitled to a certain amount of just compensation, we're going to pay that. Now you're saying that there has been no violation of the Takings Clause until the end of that state court litigation, right?

Teresa Ficken Sachs: We are saying there has been no constitutional violation until there is a -- a failure to provide the process for recovering just compensation. So where the state provides that process, and in the -- I think following up on Your Honor's example, it's what Pennsylvania does, and there's no constitutional reason a state can't do what Pennsylvania does, the responsibility for adjudicating whether or not a taking has occurred at all and what compensation is due can be delegated to the state courts.

That's perfectly appropriate. And it certainly makes perfect sense in the regulatory situation like we're facing here, I think for the very reason that Justice Breyer posited that this Court has recognized many times. Regulatory enactments pose the most difficult issues for this Court as to when they are and are not a taking.

Even for this Court, there are so many different ways property rights could be affected, there are so many different properties that could be affected, they're very individual.

Samuel A. Alito, Jr.: All right.

If you're a lawyer advising a municipality about a proposed regulation that might cause property owners to litigate the question of whether there was a regulatory taking and demand just compensation, would you not try to determine whether those might be valid and, therefore, how much money your municipality might be out of if they went ahead with that regulation? You would just plow ahead with the regulation and say: Well, you know, we don't really know, and we don't really care, and if at the end of this litigation process it ends up costing us $20 million, so be it. Is that what you would do?

Teresa Ficken Sachs: Your Honor, what I would -- what I would advise the municipality is that they can rely upon this Court's decisions going back to the Hayes case and all the way back to Cherokee Nation, that if a regulatory taking turns out in some unanticipated way, a reg -- I'm sorry, a regulation turns out in some unanticipated way to effect a taking, the enactment is, nevertheless, constitutional because the state already has a process in place that is complete and thorough and will provide the compensation. And if the property owner does go to state court on something that the state or the municipality did not think was a taking and the court says it is, the court will assign compensation and the municipality will pay.

Samuel A. Alito, Jr.: You're really telling me that you would -- you're telling me you would not tell the municipality: You ought to think about the budgetary consequences of what you're doing?

Teresa Ficken Sachs: Well, Your Honor, I think that -- I -- I assume that every municipality certainly in these days has to think about the budgetary consequences of what they're doing, but I think your question is, in enacting a regulation, do they have to assume that it's going to be unconstitutional if they don't pay upfront, because that's the argument.

Stephen G. Breyer: Is there -- is -- is there some kind of middle position here? I mean, it's an unusual provision.

It provides for compensation.

And so, if the state's going to give the compensation, no problem.

And there has to be some method of finding out whether there is or is not compensation owed. But hasn't the court said something like the state system has to be fair to do that thing it promises to do, and what about adding speedy? I mean, I think what people are worried about is that, that they're tied up forever in the state courts and then they can't even get to federal court. But could you say where the state doesn't have a speedy, fair system for determining whether there's compensation or not, then you can go into federal court? That would be totally practical but not -- but not beyond the words of the Constitution in this area.

Teresa Ficken Sachs: And I think that is already inherent, Your Honor.

And -- and we agree in the Section 1983 test because there has to be that reasonable, certain, adequate process. And this Court has --

John G. Roberts, Jr.: Well, what counts as --

Teresa Ficken Sachs: I'm sorry.

John G. Roberts, Jr.: What counts as speedy in the Pennsylvania court system?

Stephen G. Breyer: Yeah.

Teresa Ficken Sachs: What is speedy?

John G. Roberts, Jr.: Yeah.

Teresa Ficken Sachs: Oh.

John G. Roberts, Jr.: If you file -- if I file one of these cases, I -- well, in this case, Ms. Knick says you're violating her property rights because your rule is people get to walk all over land to go see the old gravestones, and she brings a suit. How long would it take her to get a decision through the Pennsylvania Supreme Court?

Teresa Ficken Sachs: Well, it would have been over before now, Your Honor.

But I think the important part is where it starts because I don't think we can assume that the state court wouldn't properly apply the law at the outset. The Inverse Condemnation Act of Pennsylvania --

John G. Roberts, Jr.: Well, the state court might --

Teresa Ficken Sachs: I'm sorry.

John G. Roberts, Jr.: I'm sorry, go ahead.

Teresa Ficken Sachs: But I think, to -- to answer Your Honor's question, this process, Petitioner has never even questioned as a reasonable, certain, and adequate.

It's far -- in some ways offers far more remedies and is more generous than the Tucker Act.

John G. Roberts, Jr.: Well, I don't think that does -- I don't think that does answer my question.

I mean, you -- you -- you've litigated in these courts.

How long do you think it would take, on average?

Teresa Ficken Sachs: For an inverse condemnation action to go through the -- the determination? Two years perhaps, because they're entitled to immediate appeals, and every aspect of the statute, unlike our standard procedures, emphasizes promptness. Every stage along the way, assigning a board of reviewers, holding a hearing, assessing the compensation, all has to happen promptly.

This is a very, very favorable process for the property owner.

Samuel A. Alito, Jr.: Why would the --

Teresa Ficken Sachs: And if it weren't -- I'm sorry.

Samuel A. Alito, Jr.: Would the property owner be entitled to attorneys' fees if the property owner prevailed?

Teresa Ficken Sachs: Yes.

Samuel A. Alito, Jr.: Under Pennsylvania law --

Teresa Ficken Sachs: Yes.

Samuel A. Alito, Jr.: -- would be entitled to attorneys' fees?

Teresa Ficken Sachs: Yes.

Samuel A. Alito, Jr.: Why do you want to be in state court?

Teresa Ficken Sachs: Because the state court --

Samuel A. Alito, Jr.: I mean, Mr. -- Mr. Breemer wants to be in federal court.

You want to be in state court. Does -- does he want to be in federal court because he thinks the state courts are bad? Do you want to be in state court because you think the federal courts are bad?

Teresa Ficken Sachs: Your Honor, I think -- (Laughter.)

Teresa Ficken Sachs: Of course not, Your Honor.

Samuel A. Alito, Jr.: So why do you want to be in state court?

Teresa Ficken Sachs: I --

Samuel A. Alito, Jr.: You want the home court advantage, right? That's what all -- that's what all litigants and lawyers want. They want the home court advantage.

Teresa Ficken Sachs: No, because this --

Samuel A. Alito, Jr.: No?

Teresa Ficken Sachs: The question of how to get into federal court relies on -- on a -- a preliminary determination that we've somehow violated the Constitution.

And that's what we don't want. We -- the -- the Section 1983 interpretation that has been posited by Petitioner and by the Solicitor General that Section 1983 now doesn't require a violation, it can just be used as an alternate enforcement mechanism, that is --

Samuel A. Alito, Jr.: You're telling me that you have no practical reason for wanting to be in state court as opposed to federal court?

Teresa Ficken Sachs: Well --

Samuel A. Alito, Jr.: It's just some airy, theoretical idea you -- that -- that the state court --

Teresa Ficken Sachs: I --

Samuel A. Alito, Jr.: -- is where this belongs?

Teresa Ficken Sachs: -- I think there's a -- I think there's a -- a legal reason as far as doctrine, and there's also a practical reason, Your Honor.

I think -- doctrinally, I think the states have -- they're -- they're the best places to look at all these issues of state law that involve balancing a lot of local interests.

They have an interest in shaping state property law. But, as a practical matter --

Brett M. Kavanaugh: Do you agree with --

Teresa Ficken Sachs: -- you're also talking --

Brett M. Kavanaugh: I'm -- please finish.

Teresa Ficken Sachs: I'll be quick.

As a practical matter, you're also talking about requiring local municipalities to, instead of litigating cases that do come up close to home, they're -- you're now adding an additional benefit of litigating a constitutional violation in a more distant court. And when you're talking about a lot of municipalities and a lot of regulations, potentially, you're talking especially for -- for the Respondent here -- this is a small, rural county, and there are many, many, many like them across the country, where there's a state interest in developing the law and in enabling these resolutions in -- in a way that doesn't bankrupt the municipality and the taxpayers.

Brett M. Kavanaugh: Do the municipalities get a home court advantage in state court as compared to federal court, in your judgment?

Teresa Ficken Sachs: No, Your Honor.

I would say no, and I would also say that that is this Court's role.

This Court has said that most of its takings litigation comes from state courts of last resort. This Court can -- can correct any misapprehensions or misapplications of federal law, if this Court sees that, and -- and always has.

So that --

Elena Kagan: So the -- the -- the difficulty, Ms. Sachs, with your position, I -- I don't think that there would be any difficulty if it weren't for preclusion rules, because, if it weren't for preclusion rules, you would go through the state system, and if you were dissatisfied, then you would have a federal claim, you would file your federal claim. I think the difficulty with your position is not Williamson, which says go to the state courts first.

It's San Remo, which says that the federal courts are going to be applying preclusion rules, and the state court's judgment is going to be effectively final. So I guess, first, are we looking at the wrong case? But, second, you know, what should we do with that? Isn't that a difficulty?

Teresa Ficken Sachs: I think that -- that San Remo is -- is a great place to start, Your Honor, because, in this -- in San Remo, this Court teed that up for Congress.

This is an issue that Congress could address. Congress is aware of it.

They certainly were aware of it after San Remo.

But they have considered it at least three times, and they have rejected it. This is something that Congress could address.

This Court should not be reinterpreting the Constitution and tossing away over 100 years of its jurisprudence to address something Congress should address.

John G. Roberts, Jr.: But you -- you love San Remo, right? (Laughter.)

Teresa Ficken Sachs: Would I love --

John G. Roberts, Jr.: You would not -- that's the last thing you would want, to get rid of San Remo, because then we go through your system entirely, and they say, okay, let's start all over again.

You wouldn't like that?

Teresa Ficken Sachs: No.

No, Your Honor, but what I'm saying is, when -- when Justice Kagan was asking about how do we address this, I think that the way to address it is what this Court did in San Remo, which is clarify what the rule is.

And that is a necessary result of the full faith and credit statute.

Brett M. Kavanaugh: What about --

Teresa Ficken Sachs: Congress could address that statute if Congress thought it needed addressing, and they have considered it and --

Neil Gorsuch: Okay, so San Remo is going nowhere.

I think we've established that in your view.

Teresa Ficken Sachs: Uh-huh.

Neil Gorsuch: What do we do about the fact that a -- an individual who claims the federal government has engaged in a taking can bring a claim immediately for a takings violation in -- under the Tucker Act in federal court, but you would have those who happen to be the victim of state takings have to exhaust these administrative remedies?

Teresa Ficken Sachs: We're not talking about an exhaustion of administrative remedies, Your Honor.

We're talking about the state process that is the equivalent --

Neil Gorsuch: You're saying they can't bring -- you're saying they can't bring a takings claim.

Teresa Ficken Sachs: We're saying that the --

Neil Gorsuch: That is an exhaustion requirement.

How come that applies in state court but not in federal?

Teresa Ficken Sachs: Because it -- I -- I think that the -- that the difference that I'm trying to point out, Your Honor, is that it's an element of the Section 1983 cause of action that does not give such a claimant an automatic right to be in federal court because they don't have a constitutional --

Neil Gorsuch: But if it's -- so if it comes from -- so you're saying it comes from 1983, not the Takings Clause then, right?

Teresa Ficken Sachs: I -- the -- the Takings Clause, they have an immediate right, and I think in this respect --

Neil Gorsuch: Okay.

So --

Teresa Ficken Sachs: -- there's no disagreement to --

Neil Gorsuch: -- so it comes from 1983? That's your position now?

Teresa Ficken Sachs: It -- the -- the -- the fact that they do not have a federal cause of action, yes.

Neil Gorsuch: Okay.

Teresa Ficken Sachs: There -- there's -- there --

Neil Gorsuch: Okay.

Teresa Ficken Sachs: Congress has not given a --

Neil Gorsuch: What do we do about the fact that we've said repeatedly that there is no exhaustion requirement in 1983? Now maybe there should be.

And if there is, maybe there should be for Fourth Amendment claims and Fourteenth Amendment claims too because there are wonderful state courts capable of adjudicating the deprivation of Fourth Amendment rights, capable of adjudicating fully and fairly.

I think we'd all agree the deprivation of Fourteenth Amendment rights. But we don't generally require that. And if we're going to get into the business of saying exhaustion here, I guess I'm at a loss as to why we wouldn't say exhaustion everywhere.

Teresa Ficken Sachs: And -- and to try to answer that, Your Honor, I -- I just have to disagree with the -- the calculus of exhaustion because it's not an exhaustion of an existing remedy.

It's the fact that they don't yet have a cause of action.

I didn't --

Neil Gorsuch: Now you keep going back.

A cause of action under 1983?

Teresa Ficken Sachs: Under 1983, but they do have a cause of action in state court, which is the equivalent of the Tucker Act. They're entitled to go to state court and get their just compensation.

And we agree that the injury occurs at the time of taking. The question is that Congress has not created a cause of action that would give every takings plaintiff the right to come to federal court with their claim.

And 1331 should not be that.

Brett M. Kavanaugh: What about 1331? Yes, 13 -- what about the 1331 argument?

Teresa Ficken Sachs: Because 1331 has -- has been always treated by this Court as for special cases under state law, the -- the unusual case that doesn't upset the constitutional balance of authority that Congress has created. Allowing every plaintiff in every takings case in every county or municipality to go straight to federal court would certainly upset that balance, but it'll also -- this would not be the case to even consider that question, Your Honor, because, in this case, there is no state takings claim.

Petitioner never made a state takings claim.

Brett M. Kavanaugh: But -- but, in terms of the law on 1331, if we were to so hold, as the Solicitor General argues, then Congress, of course, could trim that back.

But their argument is 1331, at least as interpreted by our precedent, does allow a certain narrow category of state law claims to be directly brought in federal court, and the question is what -- why is that wrong and what problems would that create, in your view?

Teresa Ficken Sachs: Because every claim that involves a federal element is not a case arising under federal law for Section 1331 purposes, at least as this Court has ever interpreted it. For the reason that it would not fall within that special category of cases, it would be every case.

Every state case would now be in federal court.

And Section 1331 jurisdiction has been interpreted by this Court much more narrowly. And, again, Congress could fix that. Congress could enact Section 1331(a) and give -- or whatever, and give state takings claimants, just looking for compensation, a route straight to federal court. But Congress has not done that.

And this Court should not do that by modifying or creating a whole different interpretation of federal court jurisdiction.

Stephen G. Breyer: Well, suppose -- suppose you tried this: Suppose you said, since it's San Remo, San Remo says your claim isn't ripe until they deny you the compensation.

And then, when they do deny you the compensation, you try to go to federal court, they say it's res judicata, and that does seem rather unfair. So suppose you said that once the state indicates either through a lengthy proceeding or in other ways, that there will not be a speedy and fair determination, under those circumstances, the claim is ripe and that's all you'd need, because, once the claim is ripe, you can go into federal court.

Teresa Ficken Sachs: And -- and to answer that question --

Stephen G. Breyer: And then suppose you had fairly strict rules.

I mean, suppose you had fairly strict --

Teresa Ficken Sachs: And to answer that question --

Stephen G. Breyer: Yeah.

Teresa Ficken Sachs: -- yes, I think that that -- that the court -- Congress could say that.

And I actually think that Section 1983 --

Stephen G. Breyer: Well, why couldn't we say that in interpreting -- in interpreting when this unusual hybrid taking plus no compensation becomes ripe for adjudication?

Teresa Ficken Sachs: You're the Supreme Court, Your Honor --

Stephen G. Breyer: Yeah, but not for one of those reasons, but I mean --

Teresa Ficken Sachs: -- but in Section 1983 --

Stephen G. Breyer: -- ripeness is -- ripeness is a fairly -- ripeness is the kind of issue that judges do decide.

Teresa Ficken Sachs: But -- but I -- I think, perhaps, although you could do that, it would not be necessary where Section 1983 would already provide that claim. A claimant could say my state process doesn't -- there's no existing state process that's reasonable, certain, and adequate, or they could even later, at the conclusion of a state case, perhaps, say, as applied to my case, this process was not reasonable, certain, and adequate means to just compensation. That's a Section 1983 claim because it's a constitutional violation.

So then we already have a cause of action over which Congress has given the federal courts jurisdiction, and no need to -- to jump in and reinterpret this Court's existing jurisprudence on Section 1331.

Sonia Sotomayor: Do you have any -- have you given any thought to the possibility that if you lose this case, that a 1983 plaintiff could go into federal court and enjoin the municipality from enforcing a regulation?

Teresa Ficken Sachs: Yes, Your Honor. And that is one of the problems, I think, that, when we were talking earlier about how the municipalities have -- have depended on -- on the current interpretation to -- that there's no takings -- no federal takings claim until there's a violation --

John G. Roberts, Jr.: Well, it's a normal --

Teresa Ficken Sachs: -- the Constitution isn't violated until --

John G. Roberts, Jr.: Go ahead, sure, no, go ahead.

Sonia Sotomayor: Well, an injunction is a high bar because money can -- if money can --

Teresa Ficken Sachs: Right.

Sonia Sotomayor: -- make you whole, you can't get an injunction.

But I can certainly see people arguing that money can't make them whole because whatever it is that they have is unique and not compensable by money, presumably.

Teresa Ficken Sachs: It certainly --

Sonia Sotomayor: Some people could argue that on some pieces of property.

Teresa Ficken Sachs: I agree, Your Honor, that is certainly a danger.

And it is one of the reasons why being able to rely upon the state process to ensure that no constitutional violation ever happens also prohibits or -- or shortcuts any possibility of a Section 1983 claim seeking to enjoin a violation.

Neil Gorsuch: Counsel, when we're talking about stare decisis, not only have we -- the courts often said, of course, that money damages, the availability precludes injunctive relief in just these sorts of cases, but an additional factor for me is Williamson purported to interpret the Constitution. You're now not arguing that.

You're saying 1983.

Williamson County was talking about the Constitution, though, at least as I read it.

So help me out with that, number one. Number two, when we're looking at stare decisis, this is an alternative holding. It isn't well reasoned.

It's very briefly provided.

And it's inconsistent with a lot of other law that's developed around it, including First English, which this Court has held that the deprivation of the right takes place immediately. So all of those factors seem to weigh against you.

What do we do about that?

Teresa Ficken Sachs: Justice Gorsuch, let me go back to the -- the first part of your question, which is the -- the violation under Williamson County, and was Williamson County talking about the Constitution or Section 1983. And I would respectfully disagree because the entire definition --

Neil Gorsuch: Okay.

Assume you're wrong on that.

Then what? (Laughter.)

Teresa Ficken Sachs: I'm sorry?

Neil Gorsuch: Assuming I disagree with you on that, then what?

Teresa Ficken Sachs: I would say that you still have to have a constitutional violation.

And in Williamson County, the only claim --

Neil Gorsuch: The precedential force, you would concede, if Williamson County was interpreting the Constitution, the precedential force is diminished when you're arguing only it's a matter of interpreting 1983, right?

Teresa Ficken Sachs: Statutory -- well, actually, statutory decisis has a stronger -- yes, stronger stare decisis effect.

So, if it were only constitutional, I would agree with Your Honor. But that, again, that's a -- that's a supposition because the only claim raised in Williamson County, just like the only claim raised in this case, was a Section 1983 claim. And so, to answer Your Honor's second question about whether Williamson County was well reasoned, it is when you put it back in that context. The context was, has a constitutional violation been identified? And there was no constitutional violation because the petitioner there had not been deprived of a reasonable, certain, and adequate means of getting compensation. And, therefore, there is -- that that was the -- that -- that marrying of the two doctrines that I talked about before.

The Court did talk about the constitutional requirements and what would violate the Fifth Amendment, but they found that a Section 1983 violation had not occurred.

Brett M. Kavanaugh: If Williamson County is wrong, you argue that it still should not be overruled.

Why?

Teresa Ficken Sachs: Your Honor, because the -- the -- the underlying principles of Williamson County are what municipalities have relied upon.

Brett M. Kavanaugh: And how do they rely on them?

Teresa Ficken Sachs: They've relied upon them by enacting litigation -- I'm sorry, regulations, ordinances, statutes, knowing that they cannot be attacked as unconstitutional for failing to provide just compensation. They -- they know that --

Brett M. Kavanaugh: Well, they know they can be attacked in state court.

Teresa Ficken Sachs: They can -- they can be -- compensation can be requested, but the enactments are not rendered unconstitutional by failing to provide just compensation. And that's a really important difference.

And it goes back to one of the questions here before about -- about regulatory takings and their difficulty. I think it's -- it's important just to keep in mind that when this Court found in the Mahon case in 1922 that the -- the doc -- sort of created the doctrine of regulatory takings in the first place, it was against an existing backdrop of the Hayes case, just two years earlier, where this Court held that a -- an inverse condemnation action was a reasonable, certain, and adequate method for obtaining compensation, even where the government, as it did in that case, denied that there was any taking. This Court has held that many times since then and --

Samuel A. Alito, Jr.: You've totally -- you totally lost me in your explanation on what --

Teresa Ficken Sachs: I'll --

Samuel A. Alito, Jr.: -- where -- where the municipal reliance is.

Teresa Ficken Sachs: Because if -- if the -- if municipalities -- the reliance, I guess, maybe I can say it's on the front end, Your Honor.

It's not on the back end, are they going to federal court or state court. It's on the front end.

Are their enactments constitutional or are they not constitutional? And we know that their --

Samuel A. Alito, Jr.: Yeah, and that's going to be decided if it's -- you know, if the property owner disagrees, it's going to be contested in state court or in federal court. I -- I don't understand the difference.

What's -- where's the reliance, other than reliance on the fact that, well, if we go ahead with this, at least we're going to get -- and -- and it's challenged, at least it's going to be in our own courts.

Teresa Ficken Sachs: Because the basis of the challenge would be different, Your Honor.

Samuel A. Alito, Jr.: No, it won't.

How is it different?

Teresa Ficken Sachs: Because, under Section 1983, the claim is that the municipality has already violated the Constitution.

And the -- under a state inverse condemnation action, it's a claim for -- for compensation.

Neil Gorsuch: But you conceded --

Sonia Sotomayor: Ms. Evans --

Neil Gorsuch: -- that there is a violation of the Constitution.

I mean, you acknowledge that the violation of the Constitution is complete.

So --

Teresa Ficken Sachs: No, Your Honor.

If I -- if I said that, let me back up.

The injury, there is an injury, but there is --

Neil Gorsuch: Well, I -- I -- I'm sure I heard that, and I'm quite sure I heard that, counsel, that you said the problem here is that there's no 1983 cause of action.

Teresa Ficken Sachs: Correct.

Neil Gorsuch: Not that there's a violation of the Constitution, absence of that.

Teresa Ficken Sachs: No.

The 1983 cause of action requires violation of the Constitution, Your Honor.

So I -- I don't know -- if I missaid that, let me say it again. A 1983 action requires a violation of the Constitution.

Neil Gorsuch: Surely, but, again, counsel, I -- I -- I'm pretty sure I heard earlier --

Teresa Ficken Sachs: Okay.

Neil Gorsuch: -- that -- you acknowledge that there's a violation of the Constitution upon the taking and the failure to provide compensation.

We said as much in First English, right?

Teresa Ficken Sachs: No.

No, only when there's not -- yeah, where there's no process provided.

And I agree with Your Honor.

If there's no process provided, then yes.

The taking and the violation happen at the same time. But the -- the -- the injury, that's the taking, is not the same as the violation. And I think that is really important to keep in mind because I think there's been a lot of conflating of those two terms in talking about a federal takings claim versus a constitutional -- a claim for a constitutional violation.

Elena Kagan: And -- and, Ms. Sachs, tell me if I'm wrong, but I understood the argument you were just making as very similar to the General's argument, at the end of his argument, where he said if -- if Mr. Breemer's theory were accepted, it would put employees of the government in a very ticklish situation because, at a much earlier time, you would be forcing employees to say we're going to go invade the Constitution.

Isn't that right?

Teresa Ficken Sachs: Yes.

Correct, Your Honor.

Neil Gorsuch: So you are adopting the government's view on this score?

Teresa Ficken Sachs: On -- on -- we -- we are in agreement with the government with respect to the -- the fact that a -- an inverse condemnation action provides what the Constitution requires. I think the Solicitor General says it provides what the Constitution requires, all that the Takings Clause requires under the Fifth Amendment, and yet somehow the Solicitor General says that's not true when a state does the same thing.

And that's where we greatly disagree. The Section 1983 provides remedies coextensive with the Fourteenth Amendment.

The Fourteenth Amendment does not put greater burdens on the state than it does on the federal government.

John G. Roberts, Jr.: Thank you.

Teresa Ficken Sachs: And the Solicitor General cannot have it both ways.

Thank you, Your Honor.

John G. Roberts, Jr.: Thank you, Ms. Sachs. Mr. Breemer, two minutes remaining.

J. David Breemer: Thank you.

May it please the Court: I want to talk about state courts real quickly.

One of the problems in just saying, well, it's a wash and you can bring your Fifth Amendment claim in state court, so what's the problem, is you can't bring your Fifth Amendment claim in a state court. Williamson County says this: No Fifth Amendment Takings Clause claim exists until you use a state law inverse condemnation process. In federal court or state court, it does not exist, while over in the court of claims it does exist.

And since you have to use that state law inverse condemnation process, it's different in every state. There are different procedures, different rules.

And until you go through all that state law procedure, you don't have a Fifth Amendment claim.

But why is a Just Compensation Clause different?

Brett M. Kavanaugh: Is the substance of the claim any different from the takings claim?

J. David Breemer: In many case, it is, yes.

In state law inverse condemnation cases, in many cases, it is.

In many states, you have to file a writ of mandate action first before you can bring that inverse condemnation. Inverse condemnation requires that initial writ of mandate action to try and invalidate.

And Section 1983 doesn't require that.

And the Just Compensation Clause doesn't require that. The other point I would like to make real quickly is that the government doesn't have to consider every regulation to see if it's a taking unless it wants the benefit of the Cherokee Nation exception.

That's a benefit for the government to say, oh, we're going to consider if it's a taking, and -- and admit it and provide a process.

That's not a burden.

That's a benefit. It can go under the regular rule, just like every other constitutional provision, and decide, look, we're going to do this, final act, it may harm some people --

Sonia Sotomayor: What happens -- what happens when the government says, yes, the graveyard municipality ordinance requires compensation.

Everybody who has some person living there gets compensation.

J. David Breemer: That's the --

Sonia Sotomayor: Now somebody comes in and says, I have my goldfish or my dog buried there.

Why shouldn't I get compensation for the people who want to come visit -- the prior owners who want to visit the dog cemetery? Well, that person can go to federal court now?

J. David Breemer: No, I --

Sonia Sotomayor: Even though the state has said we'll pay compensation for a taking?

J. David Breemer: If the -- when the state says we'll pay compensation for a specific act, that's Cherokee Nation.

Then it -- the entitlement is established.

There's no violation of just compensation.

The entitlement is established.

That's why there's an exception for that rule.

Sonia Sotomayor: So why can't the state just come in and say we will pay just compensation to anyone who's been injured by this so long as a state court says it's a taking? I -- I don't -- it's no different than the goldfish guy.

John G. Roberts, Jr.: You --

J. David Breemer: Can I answer?

John G. Roberts, Jr.: You may -- you may answer briefly.

J. David Breemer: Because we're talking about the Fifth Amendment.

There are state remedies for many, many injuries, but there are also federal remedies. And the Fifth Amendment stands on its own in that the just compensation is complete at the time of invasion.

And when the United States invades you, it should be complete at the time when the local government invades you, and we wouldn't have all these problems with res judicata removal that make the state court option practically unviable and unpredictable.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.