Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

by John Echeverria

September 28, 2018

On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred.

The Knick case presents the opportunity for the Court to decide whether or not to embrace a longstanding goal of property advocates: to overturn the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, which channels most takings lawsuits arising from local zoning and other similar land use disputes into state court. In my view, Williamson County was correctly decided, its essential premises have been repeatedly affirmed by subsequent Supreme Court decisions, and the Court should reject the invitation in Knick to overturn its precedent.

The present case arose when Rose Mary Knick objected to an ordinance adopted by her Pennsylvania community requiring property owners to maintain and allow public access to private cemeteries located on rural properties. While the ordinance intrudes on landowner privacy, there is a large, venerable body of state property law recognizing citizens' rights to visit the graves of their ancestors on private lands. Subjecting landowners to the slight inconvenience of allowing the living to occasionally honor the departed by visiting their graves hardly seems to rise to the level of a constitutional violation.

But the Knick case now before the Supreme Court does not involve the merits of this takings dispute. Rather, the issue presented is whether the U.S. Court of Appeals for the Third Circuit correctly affirmed the District Court's dismissal of Ms. Knick's section 1983 takings lawsuit because she should have filed her claim in state court but mistakenly filed her claim in federal court instead. More generally, the case presents the question of whether takings plaintiffs are ordinarily limited to suing in state court (subject to potential eventual review by the U.S. Supreme Court) or whether they should be able to forum shop at the trial court level between the federal and state judicial systems.

As every experienced litigator knows, the opportunity to forum shop provides a plaintiff a tactical advantage, including the ability to select the court most likely to lean in favor of the plaintiff and her claim. Hence the enormous interest in this case on the part of Ms. Knick's counsel, the Pacific Legal Foundation (which has filed numerous petitions for certiorari in prior cases trying to persuade the Court to take up this issue), and its numerous libertarian and developer allies.

The basic reasoning behind Ms. Knick's challenge to Williamson County is straightforward. She points out that citizens challenging local government actions under the First Amendment or the Equal Protection Clause, for example, have the option of suing in either federal or state court. State courts are as bound by the federal constitution as federal courts and there is no jurisdictional bar to asserting these federal constitutional claims in state court. So why, Ms. Knick asks, should takings litigation be channeled into state courts?

In fact, there are sound reasons for handling takings litigation differently than other constitutional claims. Taken together, these reasons are more than sufficient to support upholding the Williamson County precedent.

First, and most fundamentally, a taking of private property is ordinarily an entirely lawful exercise of government power, akin to the power to tax, burdensome but nonetheless both essential and entirely constitutional. The "taking power" has been crucial for the lawful and laudable purpose of assembling the land necessary for the construction of the interstate highway system, military bases, post offices, and so on.

As the plain language of the Takings Clause indicates, it does not outlaw the exercise of the taking power, but instead imposes two conditions on the exercise of this power, that the taking be for a "public use," and that the government pay "just compensation" for the property taken by the government for public use.

This same basic understanding applies to both direct exercises of the eminent domain power and to inverse condemnation actions (like Ms. Knick's lawsuit) brought by citizens claiming that the government has taken their property through regulations or other policies: even if the claimant is correct that a taking has occurred, the taking is still entirely lawful and permissible – so long as it is for a public use and just compensation is available.

The distinctive character of the constitutional protection provided by the Takings Clause has several important implications. Because a taking for public use is entirely lawful (at least if the opportunity to secure just compensation is available), the Supreme Court has concluded that a property owner cannot sue to enjoin a taking for a public use. By contrast, because a government action infringing on First Amendment or equal protection rights is unlawful, a citizen can sue for an injunction to stop these constitutional violations.

Furthermore, while one can sue for damages for violations of the First Amendment or the Equal Protection Clause, a claim for money under the Takings Clause does not seek damages to remedy a constitutional wrong. Instead, a suit demanding just compensation under the Takings Clause simply enforces the condition (payment of just compensation) required to make the taking consistent with the Constitution.

While the Takings Clause is different in certain respects from other provisions of the Bill of Rights, it would be a mistake to describe the Takings Clause as a "second-class" provision. A takings lawsuit ordinarily does not support a request for an injunction. But, on the other hand, because the Takings Clause is one of the few "money-mandating" provisions of the Bill of Rights, Congress need not pass legislation to authorize private lawsuits under the Takings Clause. In sum, the protections provided by the Takings Clause are neither greater nor lesser than the protections provided by other provisions of the Bill of Rights; they are just different.

Second, for many years the Supreme Court has recognized that the mandate imposed by the Takings Clause that just compensation be paid for a taking for a public use need not be complied with by paying the compensation in advance of, or contemporaneously with, the taking. Instead, it is sufficient under the Takings Clause if the government provides a post-taking mechanism for securing any compensation that may be due that is "reasonable, certain, and adequate." As explained in the brief filed by the U.S. Solicitor General in the Knick case, this understanding is the basis for the unquestioned constitutional authority of the United States to engage in so-called "quick takes" of private property – where the government seizes private property first and permits the affected landowner to pursue a claim for just compensation after the fact.

Finally, the principle of federalism is a prime, overarching feature of our constitutional system of government. Under this system, we have not just one sovereign, but many, consisting of the United States and each of the independent 50 states. When it is alleged that an action by a state (or one its subdivisions exercising delegated state power) has resulted in a taking of private property within the meaning of the federal Takings Clause, the claim necessarily implicates our system of federalism because it raises the question of whether the coercive power of the federal government can be brought to bear on state and local governments.

Viewing these three principles as a package, it is apparent why Williamson County was correctly decided. A property owner simply has no claim for just compensation to present under the federal Takings Clause if the state in which the taking allegedly occurred has an established procedure for adjudicating the takings claim and awarding any compensation that may be due. Indeed, it is grossly offensive to our system of federalism to suggest that a state (or one its subdivisions) can be called to answer a claim that it has failed to provide just compensation mandated by the federal Takings Clause when the state has its own procedure for awarding any compensation that is due and the plaintiff has simply declined to utilize the state procedure.

Ms. Knick and her allies also raise various collateral objections to Williamson County, but none has any merit. First, she raises a quibble about terminology, insisting that Williamson County talked about the requirement to pursue state compensation procedures in order to "ripen" the takings claim. The use of the word, "ripeness," she complains, implies that once a claimant has pursued the state procedures, win or lose, she should then be able to pursue her federal takings claim in federal court. But that implicit promise has been broken, she asserts, because subsequent Supreme Court decisions have affirmed that normal rules of issue and claim preclusion apply to state court adjudication of takings claims, meaning that if a takings claimant sues in state court and loses, she will be effectively barred from suing in federal court later.

The answer to this argument is that the Supreme Court correctly ruled in Williamson County that takings claimants must pursue their lawsuits in state court, but its use of the term, "ripeness," was an awkward way of explaining that a claimant simply has no cause of action under the federal Takings Clause if the state has a procedure for awarding any compensation that may be due. The Court should acknowledge its sloppiness in using the word ripeness in Williamson County, but it should not jettison the doctrine altogether.

Ms. Knick and her allies also assert that Williamson County has created a procedural minefield for takings plaintiffs, bouncing them between federal and state courts. But there is nothing to this argument either. Most of the procedural difficulties takings claimants have encountered in litigating their claims against state and local governments have been self-inflicted, stemming from their refusal to accept the holding of Williamson County that a takings suit against a state government or one of its subdivisions belongs in state court rather than federal court.

They point to cases in which government defendants have removed cases from state court to federal court after plaintiffs initially filed suit in state court. But these cases stem from an over-reading of the Supreme Court decision in City of Chicago v. International College of Surgeons, which, contrary to the view of some, cannot properly be read to authorize removal of takings lawsuits even if there is an adequate state procedure for awarding compensation for a taking. Significantly, this decision makes no reference to Williamson County. As a general matter, a case can be removed from state court to federal court only if it could properly have been filed in federal court to begin with; a claim of a taking for public use cannot properly be filed in federal court in the first instance if there is an adequate state procedure for awarding compensation.

Finally, Ms. Knick and her allies make the bald argument that takings claimants should have a right to litigate takings claims in federal court rather than state court because they prefer the federal forum. But there is no constitutional right to a federal trial court forum, as anyone who has taken a Federal Courts course knows. To the extent litigation of takings cases in state court forecloses relitigation of the same issues in federal court, the Supreme Court has repeatedly affirmed the principle that state courts are as bound by the Constitution as federal courts and can and should be trusted to resolve federal constitutional issues.

At the end of the day, Knick and her allies simply seek to have the same ability to forum shop as other constitutional claimants. But there is no constitutional right to forum shop, and the distinctive character and scope of the Takings Clause dictates that takings claims be handled differently than other constitutional claims. In sum, the Supreme Court should reaffirm the sound precedent set in Williamson County.

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John Echeverria is Professor of Law at Vermont Law School.

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