The last time the U.S. Supreme Court faced Williamson County in a merits case, the property owners made the mistake of not challenging that case's "state procedures" requirement directly. An exchange with Justice O'Connor went like this; from the transcript:Justice O'Connor: And you haven't asked us to revisit that Williamson County case, have you?
Mr. Utrecht: We have not asked that this Court reconsider the decision in Williamson County.
Justice O'Connor: Maybe you should have.
But fool me once, shame on you; fool me twice...we won't get fooled again!
This time, therefore, no mistake: the owners raised a challenge to Williamson County squarely, and as a result, there may now be a light at the end of the very bizarre ripeness tunnel that has mostly kept federal courts from reviewing claims that the U.S. Constitution has been violated.
This morning, the Court agreed to hear a case we've been following out of the Third Circuit, one which we dubbed "The Night of Living Zombie Zoning Inspectors." If that title doesn't grab you, how about this, the first Question Presented from the cert petition which the Court agreed to consider:
Whether the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), requiring property owners to exhaust state court remedies to ripen federal takings claims, as suggested by Justices of this Court? See Arrigoni Enterprises, LLC v. Town of Durham, 136 S. Ct. 1409 (2016) (Thomas, J., joined by Kennedy, J., dissenting from denial of certiorari); San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 348 (2005) (Rehnquist, C.J., joined by O’Connor, Kennedy, and Thomas, JJ., concurring in judgment).
The case also raises (although not directly) a question that has long plagued property owners: to what extent can local officials physically invade property in order to "have a look around" for things like valuations, zoning inspections, conformity with rent control, and other regulations?
By way of background, the Township of Scott, Pennsylvania, apparently has a problem of unregulated cemeteries. We had no idea. 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 of the "state procedures" requirement of 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.
Any regular reader of these pages knows about the Williamson County/San Remo Hotel "ripeness" Catch-22: try vindicating a property owner's federal constitutional right in federal court in the first instance, and the federal court will tell you that you are too early -- a regulatory taking is of no constitutional moment until the state regulators have made a final decision, and the state courts have denied compensation (even if this means the state hasn't offered compensation and in state court denies it owes any). But bring a federal action after a state court inverse condemnation case, and the federal court will tell you that you are too late -- you already litigated your federal claim, even if you expressly didn't.
The Catch-22 nature of this prompted four Justices to note in San Remo Hotel (the case in which Justice O'Connor delivered her now classic rejoinder above) that the Williamson County experiment may have run its course and is due for another look. Chief Justice Rehnquist wrote:
Finally, Williamson County's state-litigation rule has created some real anomalies, justifying our revisiting the issue... I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic... In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts.
We shall see, of course. The Court could very well leave things the way they are. Or it could throw out the requirement entirely. Or keep the rule in place but narrow it down. Who can say?
You know what our answer is. Legal scholars and practitioners have extensively criticized Williamson County's analysis (see here and here for examples, or see Michael M. Berger & Gideon Kanner, Shell Game! You Can’t Get There From Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 The Urban Lawyer 671 (2004) for an extensive reference guide).