U.S. Supreme Court

The U.S. Supreme Court's important decision in Knick v. Township of Scott, 2019 WL 2552486, on June 21 will increase the number and range of takings cases brought by property owners now that the court has bulldozed open the direct path to the federal courts. The 5-4 decision, written as some predicted by the chief justice, overrules the 34-year-old precedent in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and pulls no punches in doing so: “Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights. … Williamson County was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”

Under Williamson County, takings plaintiffs have been subject to what has been pejoratively labeled the “ripeness shuffle,” and blocked from proceeding in federal court until the state courts have considered compensation. Effectively, this process has barred most claimants from ever having their day in federal court. Williamson County held that “a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law.”

In its decision in Knick overruling Williamson County, the court holds that a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.” Period. Full stop. The federal courthouse door has been opened full wide.

The case of Rose Mary Knick was procedurally typical. Her complaint brought under 42 U.S.C. §1983 in federal court alleged a taking arising from the town enacting an ordinance requiring that she and other property owners with small private cemeteries on their land allow the public to come onto their property during the day. The district court dismissed her claim under Williamson County and the Third Circuit affirmed.

The chief justice was joined by Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh. Property rights pundits had been waiting to see where Kavanaugh would line up, many predicting he would join with the other conservative justices. Justice Elena Kagan filed a dissenting opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined. The dissent argues that there is no taking until the government denies compensation in a subsequent proceeding. The dissent also expresses the fear that federal courts will be burdened with local and state law issues, and that the majority decision transgresses the principles of stare decisis.

Property rights advocates are ecstatic. Robert Thomas is a partner with Damon Key Leong Kupchak Hastert in Honolulu, the author of the popular blog inversecondemnation.com, and a leader in Owners' Counsel of America, an organization devoted to protecting private property rights. He observes:

“The federal judiciary's unnecessary thirty-year abandonment of property and takings cases is at long last over. The court today rightly relegated to history's dustbin a judicially-created doctrine that deprived property owners of a federal court forum to resolve federal constitutional claims. The decades of damage that Williamson's County's ripeness doctrine wrought on property owners cannot be retroactively undone of course, but by putting property rights on equal footing with other constitutional rights, today's ruling is a step in the right direction. The court rectified a mistake it never should have made, and rightly restored property owners' rights to the 'full-fledged constitutional status' they should enjoy.”

Jim Burling, who is vice president for legal affairs for the Pacific Legal Foundation, which represented Knick before the court, was especially pleased with the result because his nonprofit legal organization had been fighting for decades to get Williamson County overruled:

“Property rights are no longer poor relations to other constitutional rights. For too long, property rights have been the only constitutional right that Americans have not been able to litigate in federal court; now property rights are on an equal footing. Knick will give property owners the same choice of forum for federal takings claims that state and local governments have always had in defending those claims: state or federal court.

“While today's decision doesn't change the substantive law of takings, it will put more teeth into that law by making it possible for property owners to avoid some decidedly unfriendly local and state courts.

“Now that Scott Township will face a serious takings claim when the case is remanded to federal district court, we hope it will come to its senses and pay Ms. Knick for the taking of an easement across her property, up to the present, and then rescind the ordinance. Ms. Knick simply wants peace, quiet, and security on her farmland—not a potential parade of trespassers at all hours of the day.”

Michael M. Berger of Manatt, Phelps & Phillips in Los Angeles has argued four takings cases before the court and authored an amicus curiae brief in Knick for the Institute for Justice, Owners' Counsel of America and professor Daniel R. Mandelker, supporting petitioner. Berger has a unique perspective from which to assess Knick:

“For 34 years, American property owners have been prevented from seeking constitutional justice in federal courts. For reasons that were never clear, the Supreme Court concluded that such federal issues had to be “ripened” by trying—and losing—them in state courts. No other American litigant was blocked from the federal courthouse in this way. No more. Apparently, 34 years of nonsense was enough for a majority of the Court, which clearly and decisively put an end to the practice. So one is tempted to chant “ding dong, the witch is dead” while dancing on the grave of Williamson County Reg. Planning Agency v. Hamilton Bank, the case that inflicted this unfair rule on American citizens. Many of us knew the rule was wrong 34 years ago, and have repeatedly said so ever since. Reading the majority opinion in Knick v. Township of Scott, one is only left to wonder how the clarity of its analysis escaped everyone for decades. This is an issue on which conservatives and liberals should be able to join: conservatives because it provides the promise of real protection for property rights, and liberals because it protects the rights of individuals against the power of the collective state. All in all, a good day for the Constitution.”

Property owners who believe they have been wronged by the government will be encouraged by Knick to bring their cases to federal court under 42 U.S.C. §1983, and lawyers who might represent them will more readily step up with the path ahead now cleared and the possibility of recovering their attorney fees under §1988. There will be more cases brought and more issues will be raised, further challenging the limits of public regulation.

The court assured governments that overruling Williamson County need not impede government regulation: “Governments need not fear that our holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available—as they have been for nearly 150 years— injunctive relief will be foreclosed.”

This is the dawn of a new era in takings litigation.