Supreme Court Poised to Overrule Requirement that Takings Claims be Filed In State Court
Signaling a possible sea change in takings law, the United States Supreme Court has accepted for review the Third Circuit’s decision in Rose Mary Knick v. Scott Township, Pennsylvania, 862 F.3d 310 (3d Cir. 2017), cert. granted, 2018 WL 1143827 (March 5, 2018). The Court will reconsider its 1985 holding in Williamson County v. Hamilton Bank, 473 U.S. 172, that required property owners to exhaust State court remedies in order to pursue a federal takings claim. A Pennsylvania property owner is asking the Court to overrule Williamson County’s State litigation ripeness doctrine so that citizens may bring a takings claim for just compensation under the U.S. Constitution directly in federal court.
The Court seems prepared to do exactly that, which would remove a tremendous procedural and practical barrier to pursuit of takings claims against local and State governments that impose unreasonable conditions and exactions on land use projects. Land owners, developers, and facility owners will need to follow this case closely and make sure their perspectives on this vital issue are heard by the Supreme Court.
For decades the Court has come under criticism for creating in Williamson County a ripeness rule unique to the Bill of Rights. Forcing federal takings litigation into State court has led to great confusion, litigation gamesmanship by localities, and the wasting of resources by complainants and courts alike.
In Williamson County, a development company had sued in federal district court when a Tennessee county halted an on-going residential subdivision. The federal court in a jury trial found violations of due process and a taking of property under the U.S. Constitution, awarding damages and just compensation for the taking. The Sixth Circuit appeals court affirmed. But the Supreme Court reversed, announcing a new procedural doctrine: takings cases against localities and States are to be filed in the State courts under State takings laws. Williamson County, 473 U.S. at 194-97.
Four justices questioned this holding twenty years later, in San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), which held that takings plaintiffs were precluded from re-litigating claims in federal court under issue preclusion doctrine. A four-Justice concurring opinion went out of its way to question Williamson County’s ripeness rule, writing that “part of our decision in Williamson County . . . may have been mistaken.” San Remo, 545 U.S. at 348.
Now comes Rose Mary Knick. She owns a 90-acre parcel of land in Scott Township, Pennsylvania. Ms. Knick lives in a house on the parcel, which also includes farmland and grazing areas. In 2008, responding to a citizen’s inquiry about a possible ancient burial ground on the Knick land, township officials asked her about it. She replied she was unaware of a burial ground on her land. She also said there was no official State documentation of a cemetery.
The township proceeded to enact a private cemeteries ordinance. It required that the public be allowed to enter private property to visit a burial ground during daylight hours. Knick’s land was posted with “No Trespassing” signs.
In 2013, a township enforcement officer entered Knick’s property without her consent, identified multiple grave markers and tombstones, and the next day issued a Notice of Violation (NOV) stating that Knick must allow the public to visit the grave sites. Knick sued Scott Township in State court, claiming State constitutional violations, including that the ordinance’s public access requirement effected a physical taking of her property. She sought declaratory and injunctive relief, but not just compensation. The State court declined to rule on the case until the township filed a civil enforcement action against her. The State case appears to be still pending.
Ms. Knick then brought suit in federal court, claiming numerous constitutional violations, including violation of the Fifth Amendment’s takings clause. She sought just compensation and equitable relief. The federal court in 2016 dismissed an amended complaint, holding the takings claim was unripe under Williamson County, and that Ms. Knick had to file a new inverse condemnation case in State court and seek just compensation under State law. The Third Circuit affirmed the district court’s ripeness ruling in July 2017. Knick v. Scott Township, 862 F.3d 310 (3d Cir.).
Ms. Knick’s petition to the Supreme Court stresses that “[t]he most well-known problem associated with Williamson County arises from the tension between the state court litigation ripeness rule and the Full Faith and Credit statute . . . [that] bars federal courts from hearing a case after a related state court suit. . . . Accordingly, when a plaintiff unsuccessfully litigates for compensation in state court to comply with Williamson, any [federal] takings claim ripened by this process is impermissible in federal court because of preclusion barriers.”
The petition then highlights the other significant takings Catch-22 known well by practitioners -- namely, that the State court route “is often illusory due to…the principle that a government defendant may remove certain cases from state court to federal court.” That includes takings cases. Such “[r]emoval prevents state court litigation, and renders the removed claim unripe in the new federal forum under Williamson County.”
A third major point raised in the petition is a practical one: “In almost all takings cases, the state court is not the government body taking property, nor does it bear compensatory liability for a taking. These qualities fall on the shoulders of the executive or legislative agency responsible for invading private property….Requiring state court litigation in such a case adds nothing to the factual or legal sufficiency of a takings claim.” In other words, a state court forum adds nothing to the adjudication of the federal claim. The elements of proving a takings claim under the U.S. Constitution remain the same whether in state or federal court.
Petitioner Knick’s opening merits brief to the Supreme Court is due by May 21, 2018. Amici briefs in support of Petitioner are due within seven days of that filing. Oral argument will likely occur in the fall of 2018 or early 2019. Average time for a Supreme Court opinion after argument is three months.
It appears there are at least five Justices ready to overrule the Williamson County ripeness doctrine for being the constitutional anomaly it is. We should know in about a year. Parties considering filing takings claims should carefully consider the timing of their lawsuits to take advantage of the likely reopening of the federal courts to these claims.
Gus Bauman was co-counsel for the property owner in Williamson County before the Supreme Court; the Court cited his law review article on takings law. He has successfully prosecuted many takings claims and litigates a wide range of land use issues. Jimmy Slaughter is a trial lawyer who prosecutes constitutional claims against local and state governments, including preemption and takings claims, in addition to defending toxic tort and other environmental claims.