As the start of summer approaches, attorneys, politicians, and policy wonks will be keeping a keen eye on the Supreme Court. While most will be focused on the blockbuster cases, such as the inclusion of a citizenship question on the Census, another case may have a far more profound impact on federal litigation, local governments, and our common understanding of the Bill of Rights.
The dispute in Knick v. Township of Scott, Pennsylvania is a classic example of a local government behaving badly. The township passed an ordinance requiring any parcel of land within its jurisdiction to have public access hours if a grave exists on the property. Knick’s property does have one or more graves on her property, and in response to the ordinance, she brought suit, claiming among other causes of action, violation of her Fifth Amendment right to receive just compensation for the taking of her private property under §1983. The township responded with the argument that the precedent on this issue, Williamson County Regional Planning Commission v. Hamilton Bank 473 U.S. 172 (1985) precludes §1983 review until the taking is both complete and state law remedies have been exhausted. As a matter of theoretical law, Williamson County is consistent with other Bill of Rights cases; after all, it would be absurd to grant a cause of action to a criminal defendant whose home had yet to be unlawfully searched, or a citizen who had yet to quarter a soldier during peace time.
However, as a matter of practical application, Williamson County has proven to be a disaster for the Fifth Amendment’s Takings Clause. Due to the requirements that the taking be both fully complete and for state remedies to have been exhausted, property owners must bring causes of action in state courts in order to demonstrate sufficient finality. Consequently, they would have completed litigation on the Takings Clause question, resulting in collateral estoppel, or issue preclusion, and thus barring any further inquiry into the impropriety of the taking that is at issue in a constitutional claim brought under §1983. This procedural posture has put an enormous thumb on the scales in favor of state and local governments in Takings Clause litigation, and has almost entirely removed federal courts from reviewing local authorities for these claims as originally envisioned under §1983.
Local governments have responded to this incentive and have engaged in some egregious behavior, including against Ms. Knick. After listening to both sets of oral arguments (the case was reargued after Justice Kavanaugh was confirmed), I believe that there are at least five votes for Ms. Knick. In the next installment of this series, I will be discussing the potential impact of this case, especially through the lens of my home state, California.