The most important case of the term was Knick v. Township of Scott, 588 U.S. ___ (2019).

Knick was originally argued before the Supreme Court on Oct. 3, 2018. There were only eight justices then sitting and there was a lack of consensus. The court then issued an order directing the filing of supplemental briefs and restoring the case for argument. Re-argument took place on Jan. 16, 2019 before a full court with the addition of Justice Brett Kavanaugh.

'Knick'

The facts of the case were relatively simple. The Township of Scott, Pennsylvania passed an ordinance affecting private properties determined to be or contain cemeteries.

In relevant part, the ordinance required that "all cemeteries within the Township…be kept open and accessible to the general public during daylight hours" and that no owner could unreasonably restrict or charge any fee to access the cemetery (the "public-access provision"). Additionally, the ordinance permitted a township office to enter any property within the township to determine whether there is a cemetery on the property, in order to enforce the public-access provision.

Rose Mary Knick owns property in the Township of Scott, and in April 2012, a township officer entered her property without an administrative warrant and identified certain stones as grave markers. The officer cited Knick as violating the ordinance. Knick disputes that a cemetery exists on her property and filed a lawsuit to challenge. Knick challenged the ordinance on several grounds.

First, she alleged that the ordinance authorizes unrestrained searches of private property in violation of the Fourth Amendment of the U.S. Constitution. Second, she argued that the ordinance takes private property without just compensation, in violation of the Fifth Amendment. Notably, Knick did not initiate an "inverse-condemnation proceeding" against the township, which is the local administrative process for challenging a taking by the government.

In previous litigation, the courts held that Knick's Fifth Amendment claims were not ripe until she had sought and been denied just compensation using state inverse-condemnation procedures as required in the U.S. Supreme Court's 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Williamson County gave property rights second-class status, as the only right guaranteed by the Constitution not directly enforceable by federal courts. That has all changed now. The precedent of Williamson County has fallen. In fact, it is a complete game changer. A claimant can now file a summons and complaint in the district court and avoid the notoriously condemnor-oriented state judges and the biased Appellate Division. In New York, there are no juries. Trials are before one judge selected by the county. The same judge every time. That could be a good thing when you have a smart judge who enjoys a condemnation matter, but sometimes it is not.

Chief Justice John Roberts stated: "[W]e now conclude that the State litigation requirement imposes an unjustifiable burden" on a property owner's claim that his or her land has been effectively taken for public benefit without the government paying just compensation.

Justice Elena Kagan was furious and wrote a 19-page dissent. In conflict with "precedent after precedent," she said the decision will serve "to channel a mass of quintessentially local cases involving complex state-law issues into Federal cases."

Justice Kagan would do well to re-read Justice Benjamin N. Cardozo's work, "the Nature of the Judicial Process, Yale University Press (1921), where he states, "the rule of adherence to precedent, though it ought not be abandoned, ought to be in some degree relaxed."

'Timbs'

Timbs v. Indiana, 139 S. Ct. 682 (2019) involved the seizure of a $42,000 Land Rover for a minor offense which had a maximum fine of $10,000. The Supreme Court in a decision authorized by Justice Ruth Bader Ginsburg held that the action allowed the court to augment its Fourteenth Amendment by the "excessive fines clause" of the Eighth Amendment due process jurisprudence. To demonstrate the importance of this protection against government's ability to commandeer property, Ginsburg traced what she called the "venerable lineage" of this protection to Magna Carta in 1215. The opinion then follows the protection down through colonial constitutions and finally to the Bill of Rights. "For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history. Exorbitant tolls undermine other constitutional liberties."

'Ceder Point Nursery'

In Ceder Point Nursery v. Shirema, no. 16-16321 (9th Cir. 2019), the problem at the center of the controversy was the ability of unions to approach agricultural workers in order to convince them to designate a union as their bargaining agent. From the unions' viewpoint, the most convenient place to approach the workers was at the farms where they worked. The employers preferred not to have union reps bothering their employees while they were supposed to be working. California—by statute and then by regulation—granted the unions the access they desired, albeit subject to some restrictions as to time and place.

The U.S. Court of Appeals for the Ninth Circuit majority emphasized that the owners had chosen to plead only a permanent physical taking. Thus, that was the only theory that would be examined. To establish a permanent physical taking, the owners argued that, although the unions were restricted somewhat in the time and manner of their dealings with the workers, regulation placed no "end point" on the union/worker contacts. That, they urged, brought the case within the holding of Nollan v. California Coastal Commn., 483 U.S. 825 (1987) where the U.S. Supreme Court ruled that a government condition that opened private property to random use by members of the public at will—i.e., with no end point—would be a permanent taking that could not be done without compensation. Not enough. In Nollan, the public use would be continuous not, as here, with any restrictions. As that was the only takings theory presented, the owners lost.

When government acts to prevent storm damage, it sometimes results in damages. In In re Upstream Addicks and Barker (Texas) Flood Control Reservations, No. 17-9001L (Dec. 17, 2009), it was noted that when government does its job and provides for the common defense and reaches the solution believed to be the optimum way to achieve the most good for the most people, the government is responsible for the costs of those choices. It is a recognition that, when government does its job, it sometimes has adverse side effects and someone must pay for them. The logical choice for that payment is the entity that has the greatest ability to spread the cost, i.e., the government, not random individuals who happen to be in the way. E.g., Armstrong v. United States, 364 U.S. 40, 49 (1960).

That is in line with settled Supreme Court holdings that "costs cannot outweigh the constitutional right" (Fuenties v. Shevin, 407 U.S. 67, 90, n.22 (1972)) and that "one who causes a loss should bear the loss" (Owen v. City of Independence, 445 U.S. 622, 654 (1980)). In sum, "[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner." Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002).)

The federal government sought to convince the U.S. Supreme Court that it could not properly function if it had to compensate every property owner who was injured by its programs. Interestingly, that was also a flood case. In Arkansas Game and Fish Comm'n v. United States, 568 U.S. 23, 37 (2012), the government asked the court to create the flooding equivalent of the mythical one dog bite rule (i.e., just as all doges are entitled to one bite without liability because until then the owner doesn't know the dog is a biter, all federal dams are entitled to a one free flood rule before liability attaches). The court refused to buy it. In fact, its unanimous opinion scoffed at the governmental defense that liability would "impede the government's ability to act in the public interest."

Justice Ginsburg replied for the court: "Time and again in Takings Clause cases" the government has made this argument. However, when the argument was rejected in the past "the sky did not fall."

As the decisions indicate, the Supreme Court is still intent on protecting property owners when their property is taken and enforcing the constitutionally required payment of just compensation.

Michael Rikon is a partner of Goldstein, Rikon, Rikon & Houghton.