On June 21, 2019 the United States Supreme Court ruled in an eminent domain case that is sure to have long lasting ramifications. If you are like me, it is a corrective action and you are pleased with the decision.
Here is the back ground to the case, Knick v. Township of Scott, Pennsylvania.
The Township of Scott, PA originated a local ordinance mandating that all cemeteries be open to the public during daylight hours. The problem was, there are several private, family cemeteries in Scott. Cemeteries that date back generations.
Rose Marie Knick is the owner of 90 acres in Scott Pennsylvania and on her property is a small family cemetery. She was noticed by the Town of Scott, that she was in violation of the ordinance since her property was not open to the public during daylight hours.
Rose Marie Knick went to state court and asked for an injunction and declaratory relief. She asserted the ordinance was an effective taking of her property. The Township of Scott responded by withdrawing the notice of violation and staying any enforcement.
The state court held that without an enforcement action, there was no harm done to Rose Marie Knick, and so they declined her request. She then filed suit in Federal District Court alleging the ordinance was a violation of the 5th Amendment to the United States Constitution.
“…nor shall private property be taken for public use without just compensation.”
5th Amendment to the United States Constitution
The District Court dismissed her suit and the Third Circuit affirmed that decision. Both courts sighted Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.
You can read a contemporaneous review of the case from Berkeley Law written by James D. Smith to get an idea of how “settled” this Catch-22 was considered to be. The article is entitled:
Ripeness for Taking Clause: Finality and exhaustion in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City
The “Catch 22” is that since the Williamson county decision, plaintiffs who asserted a taking by a state or local government had to first file their grievance in state court. The idea in Williamson was that once a plaintiff exhausted the state courts, and there was no compensation for the taking, then the plaintiff could file in Federal Court. But, as anyone who has watched taking cases in the past 30 years has seen, frequently the Federal Court will not take the case because the state courts had already ruled, leaving property owners whose property has been taken or partially taken by state or local government with no compensation nor a way to get compensated.
Plaintiffs who file in Federal Court prior to filing in state court are routinely denied by the Federal Court due to the “ripeness” of the case. When the Supreme Court ruled in Williamson County in 1985, one of the issues they addressed the “ripeness” of the case. One of the questions before court was the plaintiffs claim that the planning commission should pay damages for the regulatory taking. The Supreme Court refused to address the question because the bank’s claim was premature.
The Court maintained the bank’s claim was premature because:
1 – The final administrative decision from the planning commission and the Zoning Board of Appeals had not occurred.
2 – The bank had not pursued it just compensation through the state courts by filing an inverse condemnation action.
So, the Supreme Court adopted the premise that a taking by state or local government is not a taking unless the property owner exhausts all state court and administrative remedies. Unfortunately, for property owners their later attempt to gain compensation from Federal Courts were denied under the full faith and credit act. So, the reality became, there is no taking unless there is no compensation. But, if there is a system for compensation, then there is no taking…even if a property owner cannot seek and gain compensation.
The dissenting Justices in Knick v. Township of Scott, wrote quite a bit about why Williamson should be upheld and most of their comments centered around honoring stare decisis. Stare Decisis is Latin for “to stand by things decided”. In practical terms it has come to mean the court will stand by a previous decision, even if the reasoning of the decision is questionable or straight up wrong. They do this in the name of a predicable and reliable legal process, as the dissenting justices noted:
“It promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process”.
The dissenting justices went on to note that since Congress could amend the full faith and credit statute, then “the stare decisis bar was even higher”, becoming “superpowered”. They even note that Congress has discussed a change in the statue on and off since 2005.
One of the concluding statements of the dissenting opinion referencing stare decisis is “It is hard to overstate the value, in a country like ours, of stability in the law”.
In Knick v. Township of Scott, the Supreme Court overturned (5-4) Williamson County and concluded that under the Fifth Amendment to the Constitution, a government taking happens when the government takes the property, no matter when compensation is given or if there is a system to gain compensation.
The Majority concluded “that the state litigation requirement imposes an unjustified burden on taking plaintiffs, conflicts with the rest of our takings jurisprudence and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it.”
With that statement, property owners whose property is taken by a government can once again file for compensation in Federal Court, just as had been true throughout the first 197 years of our nation’s history. In fact, prior to the late 1800’s, property owners could file for an injunction in Federal Court and have the government thrown off the property. With the advent of states providing monetary relief through a state system, injunctions became rare and economic relief became common. But the principle was always the same, the government cannot take private property without providing just compensation. The “taking” is the violation of a property owner’s right.
Majority Justices:
Chief Justice Roberts (authored opinion), Thomas (concurring opinion), Gorsuch, Kavanaugh
Minority Justices:
Kagan (authored Dissent), Ginsburg, Breyer, Sotomayor
“Once there is a ‘taking’, compensation must be awarded because as soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation”
Justice Brennan – San Diego Gas & Electric v. San Diego (1981)
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