By John McClaughry

On June 21 the U.S. Supreme Court issued its opinion on a case with enormous consequences for landowners facing takings of their property by government. In doing so the conservative majority overrode both the liberal Justices and the Trump administration.

Rose Mary Knick’s Pennsylvania property included a small private cemetery, allegedly the last resting place of generations of her ancestors. Scott Township adopted an ordinance to enforce a state law that cemeteries on private land shall be open to the public during reasonable hours. Rose Mary objected that by creating a public thoroughfare to her family property, the township and state had taken her property rights.

John McClaughry is vice president of the Ethan Allen Institute.

The position of the township and the state, backed by the Trump Justice Department, was that an actual “taking” of her property did not occur until after the plaintiff had litigated or settled the required payment of compensation in a process under state law.

But the Fifth Amendment of the U.S. Constitution, long ago made applicable to state and local governments, says “nor shall private property be taken for public use without just compensation.” A civil rights statute called “section 1983” allows a person whose constitutional rights have been violated to obtain relief in a federal court. In a 1985 case (Williamson County), the Supreme Court held that a landowner plaintiff can’t get relief from a taking of property in a federal court, until the plaintiff is finally denied just compensation under a state law procedure.

But here’s the curve ball. If a state court has finally ruled on a takings claim, the federal courts won’t entertain the plaintiff’s suit because of another case, known as the “San Remo preclusion trap.” That case held that once the state court has issued a final decision, the federal court must give that decision “full faith and credit”. That means that the plaintiff whose rights have been denied is denied access to a federal court to obtain a U.S. Constitutional remedy.

As the amicus brief by land use law professor Michael M. Berger made crystal clear, state judges in cahoots with local governments “can and do use ‘ripeness rules’ in takings cases as an offensive weapon to delay litigation, increase both fiscal and emotional costs to the property owner, and convince potential plaintiffs that they should not even try to ‘fight city hall.’”

A 5-4 majority of the Court held for Mary Rose Knick. For the five conservative justices, Chief Justice Roberts wrote, “The fact that the State has provided a property owner with a procedure that may subsequently result in just compensation cannot deprive the owner of his Fifth Amendment right to compensation under the Constitution, leaving only the state law right.”

“The takings plaintiff thus finds himself 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, his claim will be barred in federal court. We now conclude … the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.”

The four liberal justices, backed by the Trump Administration, objected because of their concern that the majority’s rule would, in Justice Thomas’s critical characterization, allow courts to “enjoin or invalidate broad regulatory programs ‘merely’ because the program takes property without paying for it.” “If this requirement makes some regulatory programs unworkable in practice,” Justice Thomas continued, “so be it — our role is to enforce the Takings Clause as written.”

The effect of the ruling is that Mary Rose Knick can demand her rights to just compensation in federal court from the moment that the government took away some of her property rights for public use. Had the liberal (sic) Justices prevailed, she would enter the long dark judicial tunnel, which might – eventually – provide her with the compensation she is constitutionally owed. That long-delayed compensation might well fall short of the years of legal fees her case may have required as it went up and down in state and federal courts.

It is ironic and disappointing that the Trump administration, along with the four liberal Justices, chose the side of the government’s power and convenience to take and regulate the property owner’s rights.

The Knick ruling is a benefit of having a Supreme Court majority that interprets the Constitution as it was and is written, rejects the government’s excuses for violating it, and is willing to overturn damage done to citizens’ rights in the past.

John McClaughry is vice president of the Ethan Allen Institute.