Certiorari Granted in Taking Case

The case is Murr v. Wisconsin, Docket No. 15-214, and the question presented is whether two legally distinct but commonly owned parcels of land (that were acquired at different times) must be treated as one for purposes of analyzing whether a regulatory taking has occurred when one of them is subject to confiscatory regulation. In other words, may the owner sue in inverse condemnation for the taking of the regulated parcel, or is he — as stated in the Penn Central case — out of court because he still has one parcel that he can build on?

This is interesting because if you look at the Penn Central opinion, you will notice that it cites neither doctrine nor authority for its assertion which is (a) contrary to the court’s earlier decision in United States v. Grizzard (1911) holding that in partial inverse takings the owner is entitled to compensation for the diminution in value of his remaining land, not just the part taken, and (b) most of inverse condemnation cases decided by the U.S. Supreme Court involved partial taking –easements being the frequent example.

We have had a lot to say about the Penn Central case, concluding that it’s an intellectual and doctrinal mess, and if you want to check out what we had to say, read Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 William & Mary Bill of Rights Jour. 653 (2005). It’s on the long side but it covers both the case and its context, analyzes the views of the Supreme Court clerks who worked on it, and it deals with background facts and lower court opinions, that law reviews don’t often deal with.

The Supreme Court will probably decide it next year, but there should be lots of action involving the parties’ and their friends’ briefing, and we expect the usual suspects to scream bloody murder over the fact that the Court is even considering this issue on the merits.