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Energy and Environment Monitor

U.S. Supreme Court Removes One Hurdle in Takings Cases Against State and Local Governments

June 27, 2019

By: Robert G. McLusky

Rose Mary Knick owns 90 acres outside Scranton, Pennsylvania. Her property includes a residence, pasture and a small graveyard where the ancestors of neighbors are supposedly buried. Her Township adopted an ordinance, that broadly defined cemeteries to include the graveyard and that required her to keep it “open and accessible to the general public during daylight hours.” After a Township “Code Enforcement” officer advised her that she was violating the ordinance by failing to allow access all day, she sued the Township in federal court. There, relying on a federal statute that authorizes actions against state and local officials who deprive persons of their rights under the Constitution, she claimed that the application of the ordinance effected an unlawful “taking” of her property in violation of the 5th Amendment to the U.S. Constitution.
The federal district court dismissed her case, ruling that a prior decision by the Supreme Court required that she first sue the Township in state court. In the new ruling, the Supreme Court overruled that prior precedent as erroneous and determined that States may not impose restrictions on an individual’s rights to pursue a 5th Amendment claim. See Knick v. Township of Scott, PA, 588 U.S. ___ (June 21, 2019) (5-4 decision). In doing so, the Supreme Court noted that its prior rulings had worked unintended and impermissible limitations on such claims. In particular, the Court observed that its prior rulings not only prohibited takings claims in federal court against state and local officials until the plaintiff had unsuccessfully pursued a takings claim in state court but also provided that the denial of that claim in state court precluded a later federal action. This, the Court observed, violated the Civil Rights Act of 1871, which guarantees a federal forum for claims of unconstitutional treatment at the hands of state officials.
The four dissenting justices criticized the majority for overruling established law by “smashing it to smithereens,” and for opening a potential Pandora’s Box of litigation. It also criticized the majority for finding that a violation of the Fifth Amendment is actionable from the moment of the “take.” The dissent said “takes” which are followed by a procedure for payment have historically been treated as entirely permissible but feared that the majority’s opinion will be used to require advance payment for “takes.” Likewise, the dissent criticized the majority for likely making state and local officials “constitutional malefactors” whenever they undertake land use regulation - because there is no “magic formula” for determining in advance whether their schemes will be adjudged to effect an uncompensated taking.


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