SCOTUS Takes Up Case of Private Property Forced to Become Public

Knick v. Scott Township raises questions of which courts protect property

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March 7, 2018

The Supreme Court announced Monday that it would hear arguments in the case of a Pennsylvania farm owner whose case could potentially overturn part of a previous ruling that critics have attacked as making it much harder for property owners to protect their rights in federal court.

The case, Knick v. Scott Township, Pennsylvania, concerns Rose Mary Knick, who owns a 90-acre property in rural eastern Pennsylvania, where she and her family have lived since 1970. Knick found herself subjected to a township ordinance which allowed anyone—including township employees—to freely pass on her private property. Knick v. Scott Township concerns Knick's attempt to secure her property rights in both state and federal court, and the unexpected procedural stoppages that have kept her normally private farm free and open to the public.

"Property owners are treated differently, and more poorly, than other classes of citizens when it comes to having a day in court. Mrs. Knick's catch-22 case, where she's yanked around from state to federal to state court without a hearing is an example of that," said J. David Breemer, a senior attorney at the Pacific Legal Foundation, which is representing Knick.

Knick's story begins in 2008, when someone made a public inquiry suggesting that there was an "ancient burial ground" on her land. Knick denied any such burial ground's existence, which further was not documented either on her title or in any official state registry or documentation.

In 2012, the township created a first-of-its-kind ordinance mandating that owners of cemeteries allow right-of-way and access to the sites during daylight hours, even if said cemeteries are on private property. That regulation was called "extraordinary and constitutionally suspect" by the Third Circuit Court of Appeals, which heard Knick's case before it went to the Supreme Court.

What the ordinance meant was that members of the public could enter Knick's otherwise-private property with abandon, based on the alleged but seemingly non-existent cemetery. The ordinance also meant that a township code enforcement officer entered Knick's property without permission, in what may constitute a violation of Knick's Fourth Amendment protection against unreasonable search.

Knick sued the township, alleging that the ordinance constituted an unconstitutional taking of her private property without due compensation, as required by the Fifth Amendment. Before she could fully pursue remedy in state court, however, the township withdrew its notice of violation and said it would not seek a fine against Knick. The state court refused to rule on the issue, saying it was "not in the proper posture" for ruling absent an actual civil action by the township. In other words: Knick could not obtain relief for the violation of her rights at the state level, due to the actions of the very township she was suing.

Still, the ordinance stood, meaning that Knick's otherwise private property was now de facto public. Knick took her case to federal court, where she ran afoul of an obscure Supreme Court decision from the 1980s, Williamson County Regional Planning Commission v. Hamilton Bank. In that case, the court found that a property owner who wants to secure his or her right to a due compensation in federal court must first exhaust all possible remedies at the state level. Unless said remedies have been exhausted, the court found, takings cases are not "ripe" for federal jurisdiction.

This may sound like a minor point of procedure, but it creates enormously challenging hurdles for property owners like Knick who have had their rights violated, but who cannot obtain relief in state courts. They are ping-ponged back and forth between state and federal court, unable to obtain relief in either.

"You have over and over and over again, property owners with claims against the government don't get a hearing. So they lose their rights because of this process itself. The process deprives them of their rights. You just give up. You just get drained," Breemer said.

Indeed, the original petition to the Supreme Court points out an additional Kafkaesque twist to the status quo. Under Williamson County, deference by federal courts to state decisions means that a loss for a property owner at the state level precludes the possibility of federal litigation. In other words, "the very act of ripening a case ends it."

"The whole 'justice delayed, justice denied'—it's even worse than justice delayed. It's justice shell gamed," Breemer said.

Counsel for Scott Township did not respond to a request for comment on this article.

It is not as of yet clear when Knick's case will go before the Supreme Court, but the issue is increasingly pressing: seven different federal appellate courts have ruled on the question in other cases, with four coming down against Knick's side and three in favor. Such a circuit split is seen as a major reason for SCOTUS granting a review.