Edward Sullivan and Carrie Richter
BridgeTower Media Newswires
After nearly three years, the United States Supreme Court has decided to hear a case that alleges a claim for taking of property without just compensation under the Fifth Amendment to the federal constitution. But the question the case presents isn’t over whether a taking occurred or whether the public owes the property owner. Rather, the case is about whether the claim is in the appropriate court: Must a state court hear this claim or may it proceed directly to a federal court?
The answer is important – for if the case must be heard first in a state court, it must proceed through the trial and appellate levels and then be subject to Supreme Court review through a discretionary certiorari petition. This process certainly winnows out weak or unjustified claims, but also discourages through cost and delay claims that might have merit. If the matter may be heard in federal court, it then proceeds directly through those courts. Indeed, it would be easier and faster to get to the Supreme Court to resolve difficult takings questions.
Property rights advocates have been complaining about this problem for years; however, local government and public rights advocates have U.S. Supreme Court precedent in their favor. In a 1985 case, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the court determined that takings claims generally could not be heard first in federal courts. Rather, the case had to be “ripe,” which means that if a state had a mechanism for compensating landowners for takings, the landowner must use that state mechanism before seeking Supreme Court review. Property rights advocates would prefer to bring these claims directly to federal courts, which would be faster and cheaper.
Enter now Rose Mary Knick, who owns property in Scott Township, Lackawanna County, Pennsylvania. The township has an ordinance that requires all private property to be open to inspection by officials to determine the existence and location of any cemetery. Moreover, the ordinance requires cemeteries to be open to the public during daylight hours.
While there are other issues in the case, the focus is on whether Knick’s property was “taken” by the warrantless physical invasion of her property through the inspection by town officials and through the requirement that her property be open to public entry. Knick sued in federal court to get answers to these questions, but the trial court dismissed her claims, telling her that she must proceed in Pennsylvania state courts. The Court of Appeals for the Third Circuit affirmed that decision.
Although Knick brought a “facial” claim – i.e., arguing that the mere enactment of the ordinance violated her constitutional property rights, the Third Circuit court concluded she must still litigate her claim in state court, because it was not the ordinance that effected a constitutional breach; rather, it is the denial of just compensation for that action that is unconstitutional. Because the gist of Knick’s complaint is rooted in a failure to award just compensation under the Fifth Amendment, a state court must make the determination of denial before that claim is “ripe” for Supreme Court review.
Knick claimed she had used the state courts to vindicate her claim, but the Third Circuit court answered that she never asked for money damages, an omission that turned out to be fatal to her case.
Finally, Knick claimed that the bar to federal courts hearing her case were not absolute; indeed courts refer to these bars as “prudential,” suggesting that federal courts have the power to waive them. The Third Circuit court declined that waiver request, characterizing it as based on efficiency (which is not a recognized basis for an exception), but noted that the Fourth Circuit and the Ninth Circuit courts (the latter includes Oregon) have waived the requirements in certain cases. Thus, the Third Circuit concluded that the Pennsylvania state courts were better equipped than a federal court to undertake the valuation of Knick’s land and that forcing the litigation to proceed at that level “incentivized” litigants to use proper legal channels. This uneven treatment of just compensation claims in takings cases through this federal court waiver authorization may well be a significant reason for the Supreme Court to take this case.
While there is much to be said for this decision and the filtering process for deciding just compensation claims in takings cases, there is some justification for the position of property rights advocates. For while claimants cannot bring these cases in federal courts and must resort to state courts, there is precedent to the effect that public agency defendants can generally remove state litigation to federal courts on request. This asymmetrical ability is often chosen by public agencies (and their insurance companies) for strategic reasons unrelated to the claim itself. Federal litigation, while quicker, is also document intensive, more expensive and more specialized than that in state courts and is not for the inexperienced lawyer.
Where will the Supreme Court go with Ms. Knick’s alleged cemetery property? If it chooses to allow more takings claims for compensation to be heard in federal courts, where, if at all, will it draw the line? The typical takings claim is over excessive regulation that makes a property investment economically unviable. This is a different type of takings case – one that involves physical invasion. If the Supreme Court allows plaintiffs to go directly to federal courts in physical invasion takings claims, must it then allow regulatory takings cases to proceed directly to federal courts as well?
One of the principal reasons for the Williamson County Regional Planning Commission decision was a fear that the federal courts would be awash with takings litigation. And while constitutional scholars and policy wonks debate these questions, they have significance in real time for property owners and officials at the state and local levels. With some luck, we may have some answers from the Supreme Court by this summer.
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Edward Sullivan is a retired practitioner of land use and municipal law for more than 45 years. Contact him at esulliva@gmail.com.
Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.
