Dwight Merriam

Sen. Sheldon Whitehouse in his recent National Law Journal broadside, “'Knick'-Picking: Why a Recent SCOTUS Ruling Signals a New Day,” goes off the rails in claiming the U.S. Supreme Court's decision in Knick v. Township of Scott is the product of five conservative justices ganging up to ignore legal precedent so as to impose their agenda and of “dark money” funding a shadowy coalition of groups bent on remaking the court and influencing it to their ends.

The plain fact is that Williamson County v. Hamilton Bank (1985), the decision the court overruled in Knick, was wrongly decided in the first instance and has proved utterly unworkable. This is not a conservative or liberal issue. It is a question of Constitutional interpretation. The Fifth Amendment to the U.S. Constitution provides that no one should have their “private property be taken for public use, without just compensation.” What Knick does is protect that right by opening the door to the federal courts.

The legal construct that Williamson County created was that a person's property could not be deemed “taken” by the government and a claim for compensation justiciable in federal court until they had subjected themselves to a long process in state court to see if the government b forced to pay something for the rights it invaded.

In the case of Rose Mary Knick, what her town did was pass a law that said anyone during daylight hours could enter her private farmland where she lives alone to access an old, hardly recognizable small private gravesite 300 yards into her property. Under the doctrine of Williamson County Mrs. Knick hadn't lost anything, at least not yet, even though strangers might wander across her property for years while she sought relief in a state court. Until she was done in state court, her case was not “ripe” for federal court.

What Knick does is make clear that the taking of Mrs. Knick's property interest occurred the moment the town ordered her to open her private property to the public and on that day she ought to have the right to go to federal court to get relief from the violation of her rights under the federal Constitution. Where else should a property owner be able to get relief under the Bill of Rights than in federal court?

The court made a mistake in 1985 in Williamson County. The court corrected it in Knick, plain and simple. Instead of maligning the majority, we ought to commend them for stepping up and admitting there was error and, that as a practical matter, Williamson County had created a procedural nightmare.

Yes, this was a big victory for property rights advocates, but it is not an issue of political and social philosophy, and right versus left. Prof. Daniel R. Mandelker, Washington University School of Law, has taught land use law for seven decades and is revered by government lawyers and planners. He is, in his own words, a “police power hawk.” He believes in comprehensive government planning and tough regulation to promote the public good, including affordable housing, historic preservation, and environmental protection. He has argued for reversal of the Williamson County ripeness rule for more than three decades and he joined in an amicus brief in Knick urging the court to overrule it. Prof. Mandelker lent his voice and reputation to the cause, uninfluenced by “dark money.”

No doubt property owners will be emboldened by this decision and more takings cases will be filed in federal court encompassing a wider range of infringement of private property rights. But the Knick situation, as so many others like it, was entirely avoidable. The town could have negotiated to acquire an easement from Mrs. Knick and paid fair value for it. If she would not agree, and the town felt strongly enough about it and could prove in court that having the access was a public use, it could have used its eminent domain power to take the easement, paying just compensation at the time of the taking.

Finally, no one need fear that federal courts will be deciding garden variety, local zoning disputes for two reasons. First, the federal courts are courts of limited jurisdiction and generally have no right to decide issues of state law, unless they elect do so under the doctrine of pendant jurisdiction. Second, many takings claims going to federal court are going to be free of state claims because the property owners will not challenge the legality of the offending local regulation or decision, instead suing only to get paid for what has been taken.

Let's move on.

Attorney Dwight Merriam is a member of the Connecticut Law Tribune's editorial board.