By: Barbara E. Lichman, Ph.D., J.D.

On June 21, 2019, the Supreme Court, in a decision by Chief Justice John Roberts, chose to overrule a lower Appellate Court and almost a century of precedent which purportedly required property owners whose property is “taken” by state or local government agencies, either through regulation or physical incursion, to go through local and state legal processes before turning to the federal courts for relief under the Fifth Amendment to the United States Constitution.

Under the new ruling in Knick v. Township of Scott, Pennsylvania, 588 U.S. ___ (2019), the court majority (consisting of Roberts, Alito, Gorsuch, Thomas and Kavanaugh) ruled that property owners may bring Fifth Amendment claims for compensation as soon as their property has been taken, “regardless of any post-taking remedies that may be available to the property owner,” citing Jacobs v. United States, 290 U.S. 13, 17 (1933), under state or local law.

The Fifth Amendment to the United States Constitution states categorically “nor shall private property be taken for public use, without just compensation.” The devil, of course, is in the definitions. The Supreme Court has broadened its interpretation of the term “taking” over the years, from “physical occupation of property,” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); to regulation that comes close to physical occupation by conditioning the grant of a government approval upon a relinquishment of some or all of property interest, e.g., an easement, over real property, Nollan v. California Coastal Commission, 483 U.S. 825 (1987); to a regulation that deprives property of all of its economically viable use, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

The dissent, however, chose to agree with the lower court and to rely on precedent purportedly establishing that: “‘[A] Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation’ (emphasis in original)). If the government has not done both, no constitutional violation has happened.” See, e.g., Horne v. Department of Agriculture, 569 U.S. 513, 525-26 (2013).

Based on the assertion that no taking has occurred if the possibility of compensation still exists, the dissent proceeds to the second question: “At what point has the government denied a property owner just compensation, so as to complete a Fifth Amendment violation?” Knick, supra, 588 U.S. at p. 3. The dissent found the answer in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), in which the court found that the property owner had improperly sued a local planning commission in federal court under 42 U.S.C. § 1983 for an alleged taking, before availing itself of available state law remedies.

The Knick majority firmly rejected the dissent’s position.

It pointed out that, to assume the dissent’s position would put the claimant between the proverbial “rock and a hard place.” The dissent’s view would force the claimant to first use state court avenues for recompense, while, at the same time, their federal claim could be barred by using that avenue, under 28 U.S.C. § 1738, the “full faith and credit” statute, which requires the federal court to “give preclusive effect to the state court’s decision, blocking any subsequent consideration of whether the plaintiff had suffered a taking within the meaning of the Fifth Amendment.” Knick, supra, 588 U.S. at p. 6, citing San Remo Hotel L.P. v. City and County of San Francisco, 545 U.S. 323, 347 (2005).

Ultimately, the majority held that “because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, . . . [t]he ‘general rule’ is that plaintiffs may bring constitutional claims under §1983 ‘without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available.’” Knick, supra, 588 U.S. at p. 11.

To have decided otherwise would appear to fly in the face of the extant case law definitions of “taking,” by allowing governmental entities, whether state or federal, free reign to usurp private property by physical incursion, or regulation, for as long as it takes to decide the issue in the state court, and depending on the decision in that court, perhaps perpetually. For that reason, the Supreme Court majority held conclusively and apparently correctly, that “the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled.” Knick, supra, 588 U.S. at p. 2.

Source: Aviation & Airport Development Law News