Land rights plaintiff Rose Mary Knick. (SCOTUS Blog/Pacific Law Foundation)

The decision in an important takings case, Knick v. Township of Scott, Pennsylvania, reargued Jan. 16, is soon to be released. Be watching for it, because it could have a major impact on how governments regulate land use, and on the willingness of private property owners to challenge government regulation that overreaches. As an added bonus, we will get to see where Justice Brett Kavanaugh may position himself on property rights issues.

The issue is one of “ripeness;” specifically, whether the court should modify its 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank requiring that property owners exhaust their available state court remedies to ripen federal takings claims and, alternatively, whether Williamson County’s ripeness doctrine precludes direct federal review of facial, not applied, takings claims. Federal circuit courts are split on the latter question, with the Sixth, Ninth, Tenth and now the Third Circuits holding that facial claims are barred, while the First, Fourth and Seventh Circuits hold facial claims are exempt from Williamson County. 

Ripeness has two prongs. The government must reach a final, determinative position because otherwise who knows if the regulation goes so far as to be a taking, and also how else can the measure of damages be calculated if the government’s absolute, bottom line, take-it-or-leave position is not known? Fair enough.

The second prong is the one that Knick is all about. In Williamson County, the court said that “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the just compensation clause until it has used the procedure and been denied just compensation.” That sounds straightforward. Go to the state if it has a remedy and get those courts to order it.

The problem is that in many—if not most—cases, in what has come to be a called the “ripeness shuffle,” the unfortunate property owner doesn’t get a desired result in the state court and then, on going back to the federal courts, finds out a claim is now barred by issue and claim preclusion, except if the high court decides to grant certiorari. The court’s decision in San Remo Hotel, L. P. v. City and County of San Francisco (2005) tells the horror story of how nearly impossible it is to escape the inevitable loss of a taking claim once a litigant is forced by the compensation prong to go to state court. The injustice is that Williamson County ripeness essentially bars the federal trial courts from hearing the claims of violation of the Fifth Amendment’s protection of private property rights.

One of the tricks of the trade for government defendants is to remove a federal takings claim from the state court to the federal court, when the property owner had dutifully brought it in state court in deference to Williamson County. And then, voilà, the federal court dismisses the claim or remands it because the state remedies have not been exhausted. Really, it happens. It is a trial lawyer’s equivalent of checking into the Bates Motel.

Rose Mary Knick claims that Scott, Pennsylvania, has taken her property rights by allowing public access to burial grounds on her property. Knick argues that a taking is complete when the property owner is adversely affected by government action (unless the government offers compensation then and there) and consequentially is actionable directly in federal court. At the reargument, there did not seem to be any takers for Knick’s position on the taking being complete. Solicitor General Noel Francisco disagreed with Knick as well, but offered a perhaps-too-nuanced theory that even though the taking might not be complete, Williamson County was still flawed by not enabling direct claims directly to federal court.

In a colloquy with Kavanaugh, who may be the deciding vote, Kavanaugh offered the solicitor general the opportunity to argue, as he had in his brief, that direct federal jurisdiction under 28 U.S.C. § 1331 might save Mrs. Knick and avoid reversing Williamson County. The United States in its amicus brief also suggested that Williamson County might be reconsidered to hold that local property owners could bring claims directly to federal court under 42 U.S.C. § 1983 as a means by which to enforce their Constitutionally-protected rights right, even though it would be prior to a determination that there has been a taking.

The best guessers seem to think Chief Justice Roberts will author the opinion. We shall see.

Attorney Dwight Merriam is a member of the Connecticut Law Tribune’s editorial board.