Property Rights

THE TAKINGS CLAUSE RESTORED BY THE SUPREME COURT

            In Knick v. Township of Scott, 139 S. Ct. 2162 (2019), the United States Supreme Court restored the Fifth Amendment’s Takings Clause to the full-fledged constitutional status the framers envisioned when they included the clause among the other protections in the Bill of Rights.  The Takings Clause states that:

. . . nor shall private property be taken for public use without just compensation.

            While this bedrock of American property rights has long been recognized as one of our fundamental freedoms, a number of cases had made it seem virtually impossible for an owner whose property had been taken without compensation to seek justice in federal court. 

            Rose Mary Knick owned a farm on which was located in a small family burial plot.  When the township passed an ordinance requiring all cemeteries to be open to the public, Knick refused, claiming the township had taken a portion of her property without paying for it.  Knick sued in United States District Court, claiming the township had violated her civil rights under 42 U.S.C. §1983.  Such procedure is the standard way to seek redress of all civil rights, whether it be in state court or federal court.  The Court has long recognized that taking without compensation is a violation of the Fifth Amendment.  However, the high Court adopted an effective roadblock to seeking compensation in federal C in Williamson v. Hamilton Bank, 473 U.S. 172 (1985). 

            In Williamson, the Court held that a property owner could not sue in federal court for a property rights violation unless the case was “ripe.”  In order to be ripe, the owner had to exhaust all local administrative remedies and had to first sue in state court and obtain a final decision.  The problem, perhaps unintended, was that the final decision in state court would preclude filing in federal court since the federal court must give full faith and credit to state court decisions.  This meant that the property owner was altogether denied entrance to the federal court system. 

            In Knick, the Court overruled Williamson and its ripeness doctrine.  Chief Justice Roberts, writing the 5-4 opinion of the Court in Knick, was uncharacteristically critical of the Williamson Court, calling the ripeness doctrine of Williamson a Catch-22, confused, exceptionally ill-founded, and based on poor reasoning.  The four-member dissent was equally scathing of the Knick majority.  Their opinion, written by Justice Kagan, argued that the majority had smashed 100 years of legal rulings to smithereens without legal reasoning other than to criticize the Williamson Court, and that the majority’s opinion was inventive, without legal theory, and that it was dead wrong.  To the four dissenting justices, following precedent was more important than correcting the problems caused by a wrong decision. 

            Justice Kagan openly wondered what had caused the normally tepid area of eminent domain to become so heated.  To this author, we must wonder just how insulated Justice Kagan has been from the real world.  Eminent domain could never have been described as “tepid.”  It has been a hotly contested area of law for property owners and government agencies for many years, particularly in the ever-expanding realm of the conflict between government regulation and private property rights.

            The dissenting justices openly questioned what precedent might be at risk next.  One must wonder whether this was a somewhat disguised reference to an expected battle in the Court over abortion rights.

            It is too early to tell exactly how important this landmark decision will prove to be.  We know it will result in land use regulations being tested in federal court, and likely a number of inverse condemnation cases will end up in federal court.  Over the years, federal district court judges have shown a notable desire to keep real property law and land use regulations out of federal court, but many of those cases will now find federal courts to be open to their claims.  Some property rights lawyers have predicted that perhaps all condemnation actions may be removed to federal court, but in this author’s opinion, the potential glut of property law litigation will not occur.  Government entities have an inherent right to exercise the right of eminent domain to acquire property for public use.  As long as those entities follow the rules and procedures in state court for such acquisitions, it is unlikely there will be a civil rights violation that will subject the matter to federal court.

            For now, we know that federal judges, who are reluctant to hear about property rights, will not be able to rely upon Williamson and its ripeness test. 

William G. Blake

Attorney at Law