We wrote about this case in our September 21, 2018 blog. 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 2013, 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 alleges that the ordinance authorizes unrestrained searches of private property in violation of the Fourth Amendment of the US Constitution. Second, she argues 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 the local administrative process for challenging a taking by the government.
The district court dismissed all but two of Knick’s claims with prejudice, and dismissed two of them (described above) without prejudice pending exhaustion of state-law remedies. Knick appealed the dismissal of her clams to the Third Circuit. The Third Circuit affirmed the dismissal, finding that although the ordinance was constitutionally suspect, she lacks Article III standing because she failed to demonstrate an injury-in-fact and redressability as to her Fourth Amendment claim, and that her 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, that is, the only rights guaranteed by the Constitution not directly enforceable by federal courts.
Rose has asked the Supreme Court to review and overturn this 33-year-old procedural justice-buster and put property rights on equal footing with other rights such as due process and free speech.
The case was argued on October 3, 2018 with Pacific Legal Foundation representing Rose Knick. There were only 8 Justices then sitting and it is clear that there was not only a lack of consensus but perhaps a lack of understanding of the differences between an inverse action and an eminent domain action.
The Supreme Court, now 9 strong with Justice Kavanaugh, issued an Order directing the filing of supplemental briefs and restoring the case for reargument. The essential question, which apparently is confusing the court, is whether an inverse condemnation case is just like an ordinary eminent domain case. Pacific Legal Foundation has presented its alternative argument as it is the government’s actions which constitute the take, not the state court in denying compensation. “Once the government has acted in a way that destroys the use or value of property, the taking is complete.” Therefore, there is no need to force claimants to go to a state court rather than a federal court.