The main point we're trying to make in the amici brief we are filing today on behalf of Citizens' Alliance for Property Rights Legal Fund in Knick v. Township of Scott, No. 17-647 (cert. granted Mar. 5, 2018), is that the average property owner simply cannot fathom why—if a state or local government has taken property in violation of the Fifth Amendment—he cannot bring a takings claim in federal court until he has first pursued and lost an inverse condemnation claim in state court.
Other cases arising under the Constitution get the keys to the federal courthouse door, no questions asked. But not takings.
Yes, this is the case in which the "exhaustion of state remedies" requirement from Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) is finally being directly reviewed. The last time the Supreme Court considered Williamson County in an argued case was 2005, and the landowner expressly asked the Court to not overrule the decision. This time, however, the landowner didn't hold back, and the Court is considering this Question Presented:
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[.]
Ms. Knick is challenging a Township ordinance which requires the owners of property on which the Township believes cemeteries are located to keep these cemeteries open to the public during the day, and to allow code inspectors to enter to see if the owner is in compliance with the ordinance.
Ms. Knick didn't believe there's a cemetery on her land, and after a state court denied her 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. The federal court dismissed the takings claim because Knick had not sued the Township in state court for compensation, and therefore had not exhausted her state law remedies under Williamson County. The Third Circuit affirmed.
We summarized the case and the issues in this post, if you want more detail.
Our brief's main point relies on a variation of a popular meme to illustrate the faulty rationale, and odd results which Williamson County has spawned:
[F]ile a federal takings claim in federal court and the presumption is that it is premature because the state has not yet denied just compensation; you need to try and force the government to pay, which includes suing in state court for compensation—and lose that claim—before the federal court can even consider whether the Fifth and Fourteenth Amendments have been violated. But by doing so, you will later be deemed to have litigated the federal claim (even if you didn’t), and will be precluded from doing so "again."
Br. at 8-9. Here's the Summary of Argument from our brief:
Our brief makes two main points. First, to show the corrosive effect Williamson has on the average property owner’s reasonable assumption that she can bring a federal constitutional claim in federal court. Second, to point out a foundational flaw in Williamson, and to highlight a particularly egregious example of how that case is employed to run owners though a pointless maze.
More popular memes translated to the Williamson County milieu, if you are a glutton for punishment:
OK, we're done.
Stay tuned, or follow along on the Court's docket here.