Professor Shelley Saxer Files Amicus Brief in Supreme Court Case Vicki Baker v. City of McKinney, Texas

Professor Shelley Ross Saxer, along with co-authors James W. Ely, Jr. and David I. Callies, has filed an amicus brief in the Supreme Court case Vicki Baker v. City of McKinney, Texas. The pending Supreme Court case concerns the City of McKinney's refusal to pay homeower Vicki Baker after the city's police department destroyed Baker's home during a standoff with an armed fugitive.

Summary of Argument:

The police destroyed Vicki Baker’s home while apprehending a fugitive who had taken refuge there. Ms. Baker is due just compensation under the Takings Clause.

The panel below disagreed. It noted its sympathy for Ms. Baker, acknowledging that she is a “faultless” homeowner, and that denying her compensation would violate traditional notions of “fairness and justice.” Pet. App. 25a. But the panel stated that it was constrained by “historical precedent” to deny Ms. Baker just compensation. Id. That is because, according to the panel, the historical record requires courts to apply a broad, atextual public necessity exception to the Takings Clause. Based on that exception, the panel left Ms. Baker alone to bear the burden of actions that benefitted the public at large.

The panel, however, misread the historical record. In doing so, the panel mistakenly opened the door to a potentially limitless exception to the requirement of just compensation.

This brief sets out the historical evidence on three key points. These points show that Ms. Baker is entitled to just compensation for the destruction of her property, despite the fact that the police action in this
case was justified by public necessity.

First, the Takings Clause enshrines the common law principle of just compensation. This well-established principle safeguards individuals from government overreach by requiring the state to compensate them when it takes their property, and its protective purpose was construed broadly both before and after the Founding.

Second, numerous historical precedents emphasize that the government’s deliberate destruction of private property is just as much a compensable taking as the government’s seizure of that property for public use.

Third, exceptions to the Takings Clause must be grounded in history and tradition. It is true that history and tradition show that a public necessity allows the government to take private property. But as history and tradition show, a public necessity does not relieve the government of its obligation to compensate the property owner for the taking.

In sum, a broad necessity exception to the Takings Clause lacks support in history. As this case shows, that exception is also unjust to individual property owners like Ms. Baker.

The complete amicus brief may be found at Vicki Baker v. City of McKinney, Texas