On June 21, 2019, the Supreme Court of the United States handed down Knick v Township of Scott, 588 US ____ (2019).  I wrote about Knick in this blog twice, September 21, 2018 and November 5, 2018.

          Knick was originally argued before the Supreme Court on October 3, 2018.  There were only 8 Justices then sitting and there was a lack of consensus.  The Court then issued an Order directing the filing of supplemental briefs and restoring the case for argument.  Re-argument took place on January 16, 2019 before a full court with the addition of Justice Kavanaugh.

          The facts of the case were relatively simple.  The Township of Scott, Pennsylvania passed an ordinance affecting private properties determined to be or contain cemeteries.

          In relevant part, the ordinance required that “all cemeteries within the Township…be kept open and accessible to the general public during daylight hours” and that no owner could unreasonably restrict nor charge any fee to access the cemetery (the “public-access provision”).  Additionally, the ordinance permitted a Township office to enter any property within the Township to determine whether there is a cemetery on the property, in order to enforce the public-access provision.

          Rose Mary Knick owns property in the Township of Scott, and in April 2012, a Township officer entered her property without an administrative warrant and identified certain stones as grave markers.  The officer cited Knick as violating the ordinance.  Knick disputes that a cemetery exists on her property and filed a lawsuit to challenge.  Knick challenged the ordinance on several grounds.  First, she alleged that the ordinance authorizes unrestrained searches of private property in violation of the Fourth Amendment of the US Constitution.  Second, she argued that the ordinance takes private property without just compensation, in violation of the Fifth Amendment.  Notably, Knick did not initiate an “inverse-condemnation proceeding” against the Township, which is that local administrative process for challenging a taking by the government.

          In the previous litigation, the Courts held that Knick’s Fifth Amendment claims are not ripe until she has sought and been denied just compensation using State inverse-condemnation procedures as required in the US Supreme Court’s 1985 decision in Williamson County Regional Planning Commission v Hamilton Bank of Johnson City.  Williamson County gave property rights second class status, as the only right guaranteed by the Constitution not directly enforceable by Federal Courts.  That has all changed now.  The precedent of Williamson County has fallen.  In fact, it is a complete game changer.  A claimant can now file a summons and complaint in the District Court and avoid the notoriously condemnor oriented State Judges and the biased Appellate Division.  In New York, there are no juries.  Trials are before one Judge selected for the County.  The same Judge every time.  That could be a good thing when you have a smart Judge who enjoys a condemnation matter, but usually it is not.

          Chief Justice John Roberts stated, “we now conclude that the State litigation requirement imposes an unjustifiable burden” on a property owner’s claim that his or her land has been effectively taken for public benefit without the government paying just compensation.

          Justice Kagan was furious and wrote a 19-page dissent.  In conflict with “precedent after precedent,” she said that decision will serve “to channel a mass of quintessentially local cases involving complex state-law issues into Federal cases.”

          Justice Kagan would do well to re-read Justice Benjamin N. Cardozo’s work, “the Nature of the Judicial Process, Yale University Press (1921), where he states, “the rule of adherence to precedent, though it ought not be abandoned, ought to be in some degree relaxed.” 

          As for me and my firm, we are delighted that precedent was overturned.

Posted in Fifth Amendment, Knick v Township of Scott, Ripeness of Claims, Uncategorized, Williamson County v Hamilton Bank
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