UPDATE (Jan. 16, 2019): Today the U.S. Supreme Court heard oral argument for the second time in Knick v. Township of Scott. When the Court ordered reargument, many believed it was to break a 4-4 split on the case (since it was originally argued before Justice Kavanaugh’s confirmation). However, the unusual second argument suggests that the Justices truly wanted to hear argument on issues they did not consider last October. This left case observers wondering whether the Court was most concerned with stare decisis, statutory interpretation of Section 1983, the balance between state and federal courts, or closing the doors of the federal courthouse to property owners. Questioning touched on all issues and at times felt a bit hostile on all fronts. While the Justices appeared quite uneasy about overruling Williamson County, property owners may find hope in an unexpected place – Justice Kagan and her concern that Williamson County presents a Catch 22 in which property owners must first go to state court before filing in federal court, but then when they lose, are precluded from filing their action in federal court due to procedural rules.
Click here for transcript of SCOTUS argument
UPDATE (Nov. 28, 2018): The U.S. Supreme Court has set Knick v. Township of Scott for reargument during its January 2019 sitting.
UPDATE (Oct. 4, 2018): Earlier today an 8-member U.S. Supreme Court heard oral argument in possibly the most important property rights case of the term – Knick v. Township of Scott. Much of the argument focused around when a regulatory takings violation occurs. Does it occur when the local government enacts the regulation? Does it occur when it enforces the regulation? Does it occur when a variance is denied? Or does it not occur until the property owner seeks compensation in a state court and is denied that compensation? In the answer to those questions lies the answer to the ultimate question – when can a property owner bring its regulatory takings claim in federal court?
A number of the Justices appeared skeptical of overruling Williamson County outright, but seemed to understand the Catch-22 that results effectively precluding property owners from ever being able to bring their federal taking claims in federal court. We now must wait to see if, as Justice Breyer put it, the Court will “let sleeping dogs lie” or if the Court will agreed with Ms. Knick’s attorney and recognize that “Williamson County is not a sleeping dog. It has run wild through the state and federal courts for 30 years swallowing just compensation rights of ordinary people like Ms. Knick.”
WASHINGTON, DC (June 5, 2018): For thirty years, Southeastern Legal Foundation and like-minded property rights advocates have urged the Supreme Court to overrule Williamson County Regional Planning Commission v. Hamilton Bank – an unprecedented case which, when applied, requires property owners to first sue in state court to ripen a federal takings claim. In short, the only way to protect your rights is to sue - a state of affairs that can't possibly have been in the minds of the property rights-friendly Founders.
The issue once again comes to the Supreme Court in Knick v. Township of Scott, Pennsylvania. In this case, the township passed a new ordinance requiring all “cemeteries” be open and accessible to the public during the day. Rose Mary Knick owns 90 acres, and is now being fined hundreds of dollars every day for not opening her property to the public – all because a few old stone markers were found by town officials who entered her property without permission. The state court threw out Ms. Knick’s challenge, saying she could not proactively challenge the town ordinance. Out of options, Ms. Knick sued in federal court, where her case was thrown out because she had not litigated the case in state court. The federal court cited Williamson County. Ms. Knick is now left with no judicial options and forced to pay steep fines and open her land to the public.
As SLF has argued before, no other constitutional right is systematically barred from federal court. Americans should be outraged. Here at SLF we are, and this week, SLF, along with Cato Institute, NFIB Small Business Legal Center, and the Beacon Center of Tennessee, filed its second amicus brief of this Term, urging the United States Supreme Court to reconsider and overrule Williamson County.