In the Knick of Time, U.S. Supreme Court Gives Hope to Victimized Landowners
Rose Mary Knick owns 90 acres in Scott Township, Pennsylvania, a property that, like many such properties in Pennsylvania, includes a small neighborhood graveyard. The Township enacted an ordinance requiring that all cemeteries be open to the general public during daylight hours. You can guess the rest.
The Fifth Amendment to the Constitution provides that “private property [shall not] be taken for public use, without just compensation.” Many cases have held that the essence of private property is the “right to exclude others.” The Township’s ordinance, giving the general public unrestrained trespass rights to Ms. Knick’s property except after nightfall, confiscated that right.
A 1985 decision of the United States Supreme Court forbade Ms. Knick from suing in federal court until she had sought relief from her state courts. She sought that relief, but like thousands of California landowners in similar straits became stymied by her state courts. Her case at long last reached the U.S. Supreme Court, which on June 21 overruled its 1985 decision and held that when a landowner’s property is taken by a state or local government without compensation, she may bring an action in federal court without awaiting the interminable doings and nearly inevitable rejections of the state-court system. The case is Knick v. Township of Scott (June 21, 2019).
Chief Justice John Roberts, writing for the majority, summed up her plight: “The takings plaintiff thus finds himself [sic] in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses [which in California he or she will], his claim will be barred in federal court. The federal claim dies aborning.”
Fourteen months following Appomattox and Lincoln’s assassination, the Fourteenth Amendment was proposed and in two more years was ratified. Its Section 2 provides: “[N]or shall any state deprive any person of life, liberty or property, without due process of law.” Supreme Court decisions have held that the right not to be “deprived” of one’s property without due process of law includes the right not to have one’s property taken by a State, or by one acting under color of state law, without just compensation. In 1871 Congress passed the Civil Rights Act which provides a right of action, in federal court, for any person alleging that another person, acting under “color” of state law, has violated the plaintiff’s Fourteenth Amendment rights. The Act is codified in section 1983 of Title 42 of the United States Code.
America has zealously guarded the first right protected by the Fourteenth Amendment. Regardless what one thinks of capital punishment, we don’t do it often, and the “due process” afforded a person sentenced to death often consumes decades. We fiercely guard the rights of defendants in non-capital cases as well, to protect their right to liberty. No one is imprisoned without having counsel, without the protection against self-incrimination, and of course without the presumption of innocence.
But what of that third right protected by the Fourteenth Amendment? Consider how many court cases have vindicated a property owner who had been repeatedly frustrated in attempts to develop her property, or who after years of process obtains the entitlements but at a cost of conditions making the dreamed-of project infeasible. How many can you name? You can think of many property owners and developers who sought to play by the planning and zoning rules, only to be rejected over and over and who, often in the end, gave up their lands, for a tax write-off, to some organization that had been playing that game all along. The reason you probably can’t recall cases vindicating the rights of those landowner victims is that there have been so few.
The right to property has been the orphan stepchild of the Takings Clause of the Fifth Amendment, and of the Due Process Clause of the Fourteenth Amendment, all but written out of the Constitution. Chief Justice Roberts wrote that the Takings Clause has been relegated “to the status of a poor relation” among the provisions of the Bill of Rights. The right not to be deprived of one’s property without due process of law, or taken without compensation, as Hamlet might put it, is “more honored in the breach than the observance.” Until now.
A number of factors have contributed to the failure of the Fifth and Fourteenth Amendments to protect property rights. But none has been more insidious perhaps than that 1985 Supreme Court decision holding that, before a property owner may seek a remedy in federal court under Section 1983, she must first exhaust state-court remedies. California courts in particular are famously hostile to private-property rights, and the invariably futile act of exhausting state-court remedies can take many years, and untold amounts of money against defendants whose legal teams are fully funded by taxpayers.
California trial courts are quick to rule in favor of local and state regulatory agencies that deny project applications, or impose Draconian conditions. Two or three years or more are then consumed in the appeals process, which usually results in affirmances. In addition, the California Supreme Court in four cases in the early 1980s overruled prior property-law decisions, radically rewrote California property law, and applied something ironically called the “public trust” to lands that, the day before the decision, had not been subject to it. In a fifth case—and these five cases were decided in the breathtakingly short span of four years—it applied the “public trust” to water, something that “trust” had never been applied to before. In a quintessential Kinsley gaffe, Justice Stanley Mosk observed in justification for the rulings that, if the Court didn’t impose the public trust on these lands and waters, the State would have to pay for taking them.
California courts have done more than just side with overreaching state and local land-use agencies. They have conferred on practically anyone the legal standing to sue landowners who actually get permits. Think of the thousands of suits brought by “Concerned Citizens” and such other cacophonously named groups since the California Environmental Quality Act (CEQA) was passed in 1970. The state Supreme Court has also conferred standing on anyone who wishes to allege that something—your backyard, your water right, your apple orchard—is subject to that ethereal public trust, something only it, the California Supreme Court, can see.
Now if a state court should rule in favor of the project opponent in a CEQA case, say, or rule in favor of a “public trust” plaintiff, with the result the property is taken, perhaps the state is subject to suit in federal court. A state court, after all, is part of its state, just as the Legislature is, just as the Executive branch is. And what about those “concerned citizens” who sue so often? They act “under color of” state law (CEQA, the Coastal Act, and the liberal standing conferred by the state courts). That is, the state has delegated the authority to sue to take away land-use entitlements, in the name of the State. If those “concerned” parties win, after all, they are awarded “private attorney general fees.” Nothing could make it more plain that they are bounty hunters deputized by the State. When a court grants them relief and invalidates land-use entitlements, say, are those concerned citizens possible defendants too, alongside the court that decrees their wishes, under section 1983?
But then there’s that fearsome “Anti-SLAPP” statute, which purports to protect the First Amendment rights of citizens to sue landowners at will, with impunity. The Anti-SLAPP laws might seem to muddy the waters.
So perhaps this is the question: Does a citizen have a First Amendment right to take property, without just compensation, under color of state law, and thus violate a landowner’s Fifth Amendment right?
Will we see this Supreme Court take up that question?
John Briscoe
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
