The Township of Scott, Pennsylvania, apparently has a problem of unregulated cemeteries. Who knew?
So it did what local government do when they think they have a problem, it passed a law. That law, Ordinance 12-12-20-001, required owners of all cemeteries, public or private, to maintain them. The ordinance also contained two troublesome provisions. First, it requires the owners of the cemeteries to keep them open to the public during the day. Second, it allows the Township's code inspectors to enter "any property" to inspect and see if it is in compliance with the ordinance.
Under the authority of the ordinance, a code inspector came on Knick's property without a warrant, and told her "guess what, these stones are actually grave markers, and you better clean up this cemetery." Knick's response was "what cemetery? My land doesn't have a cemetery on it." Not buying it, the inspector wrote her up for violating the ordinance.
Knick sued in state court, seeking to enjoin the enforcement action. The Township withdrew the notice of violation and the parties agreed to stay enforcement actions. But Knick didn't file an inverse condemnation action, or include a claim for compensation in her state court challenge.
After the Township issued a second notice of violation of the ordinance, and the state court denied Knick's request for a contempt order, she sued in federal court, asserting a violation of her Fourth Amendment rights against warrantless searches, and her Fifth and Fourteenth Amendment rights to due process and just compensation. After some back and forth on the contents of the pleadings, the District Court dismissed the action because Knick had not exhausted her state law remedies.
In Knick v. Township of Scott, No. 16-3587 (July 6, 2017), the U.S. Court of Appeals for the Third Circuit affirmed.
The court concluded that Knick lacked Article III standing to assert a facial Fourth Amendment search-and-seizure claim because she did not appeal the District Court's ruling that the ordinance, as applied to her, was lawful because the search was of an open field, and thus not protected. She thus "accepted the District Court's conclusion that her Fourth Amendment rights were not violated." Slip op. at 11. Thus, even if she was injured by the inspector's actions, her rights were not violated, because even if a court were to enjoin the Township from enforcing the ordinance in an unconstitutional manner, it could still search an open field. In short, the Township could search an open field even without the ordinance.
Although the opinion "recognize[d] that the Ordinance's inspection provision 'is constitutionally suspect and we encourage the [Township] to abandon it (or, at least, to modify it substantially)," the court held that it needed a plaintiff with standing in order to consider the argument.
Knick fared no better with her claim for just compensation, because -- you guessed right -- Williamson County. As noted earlier, she had not sought compensation via available Pennsylvania law avenues. The court rejected each of her three arguments that she didn't need to pursue just comp in Pennsylvania courts.
First, it concluded that a facial takings claim isn't exempt from the available state procedures prong of Williamson County. The Third Circuit has already held otherwise, in County Concrete Corp. v. Town of Roxbury, 442 F.3d 159 (3d Cir. 2006), and "[w]e cannot overrule our own precedent." Slip op. at 23. If you want to try and understand the difference between a "facial" challenge, an "as-applied" challenge, and a "facial taking," at least in the Third Circuit's view, take a read of pages 24-27. We don't think the court's reasoning is entirely convincing.
Second, the court rejected Knick's argument that her earlier state court lawsuit was enough. This wasn't a claim for just compensation, only for injunctive relief, so she has not been denied compensation by the state, yet.
Finally, the court declined to exercise its prudential discretion and not apply Williamson County. Yes, it is an optional doctrine, but the facts here do not suggest that it would be unfair to require her to go back to state court and try and get compensated. The court distinguished decisions from other circuits which declined to apply Williamson County, concluding that "there is 'value in forcing a second trip' to state court here." Slip op. at 35.
More on the case here ("Challenge to Law Opening Private Cemeteries to Public Fails") from the Legal Intelligencer. Note that the owner's counsel says this case is going up the food chain to the Supreme Court ("'We are disappointed but will go to the Supreme Court for justice,' he said in an email Thursday.). So stay tuned.