Most land owners are aware government agencies cannot take their land without paying fair market value, at least in theory. As a general rule, absent emergencies, governments are precluded from seizing or occupying your land without undergoing legal processes to compensate you. They also are not supposed to prevent you from making some economic use of your property by regulating away that ability. Still government sometimes oversteps your rights on these points.
Unlike some rights discovered from “emanations” from the Constitution and resort to lunar observations by some liberal U.S. Supreme Court justices, your right to protect your property is actually mentioned in the Constitution’s Fifth Amendment. It reads you cannot ”be deprived of life, liberty or property without due process of law; nor shall private property be taken for use without just compensation.”
Notwithstanding its express appearance in the Constitution, about 35 years ago the Supreme Court reduced protection of private property to second class status. In Williamson County v. Hamilton Bank, the Supreme Court said before you can sue to protect your federal property due process rights in federal court, you had to exhaust state remedies (and often your wallet) in state political subdivisions and courts. Further, the Supreme Court had also ruled if you lost in state court, you lost your chance to bring your case in federal court.
A week ago Friday, the Supreme Court corrected this injustice and hopefully placed property rights on a track toward first class status. In Knick v. Township of Scott, Chief Justice Roberts authored the majority opinion joined by Justices Alito, Gorsuch, Kavanaugh and Thomas. The opinion concluded that the state pre-filing exhaustion requirement “imposes an unjustifiable burden on takings plaintiffs” and is inconsistent with review of other Fifth Amendment rights.
The plaintiff, Rose Mary Knick was a sympathetic figure. She owned property with some big stones on it in the Township of Scott. The township had an ordinance requiring cemeteries to be open to the general public. A township official went on her property without her permission or a warrant, claimed authority to do so under the ordinance, claimed certain stones were grave markers and cited Rose Mary for violating the ordinance. This surprised Ms. Knick who denied having a cemetery on her lot but was now compelled to let anyone on her land.
Knick did not contest the ordinance in the township that enacted and enforced it in the first place, and where she was almost sure to spend money on fees and lose. Rather she went directly to federal court to exonerate her federal right. The court dismissed the claim as unripe for federal adjudication under Williamson County. Ms. Knick appealed to the Third Circuit Court of Appeals which affirmed the dismissal even though it found the ordinance constitutionally suspect. Fortunately, the Supreme Court agreed to hear the case and determined the federal right protecting landowners against taking without due process and just compensation could be raised in federal court in the first instance, without going through the Township and state courts. Read the decision for a detailed account of how Williamson County could have potentially compromised your real property rights.
Perhaps Knick v. Township of Scott signals a trend in the Supreme Court to raise property rights explicit in the Constitution to first class status. A good place to start would be for the Supreme Court to accept a case affording the opportunity to overturn the obstacles to compensation for partial regulatory takings; and another for the opportunity to overturn the 2005 Kelo v. City of New London decision where Justice Souter’s opinion allowed a city to take the home of a woman who had lived there 60 years, among other homes, and transfer the property to a private developer.
Notwithstanding efforts by some to discredit property rights, governments may now have to deal with a Supreme Court that reads the Constitution.