As we’ve discussed previously, landowners seeking just compensation for an unconstitutional taking of their property are subject to a bizarre rule requiring them to litigate first in state court before proceeding to federal court. This makes no sense because it is impossible to go to federal court after having lost in state court. And, as we’ve argued emphatically, federally guaranteed rights should be ensured protection in federal court against state deprivations. Federal courts can and do hear constitutional cases against state actors all the time—and there is simply no principled reason for closing the federal court house doors specifically for litigants seeking just compensation for a taking of their property. If anything, Congress placed protection of property rights at the very top of its list of concerns when ratifying the Fourteenth Amendment and enacting U.S.C. Section 1983—authorizing suit in federal court against state actors that violate constitutional rights.
Nonetheless, for over thirty years the lower courts have rigidly applied the rule from Williamson County Regional Planning Commission v. Hamilton Bank to deny takings claimants the right to have their cases heard in federal court. Instead, they are forced to litigate in state courts that may be more hostile to property rights—especially in cases where they are called upon to rule that a coordinate branch of state government violated the Fifth Amendment in manner that may expose state or local government to significant liabilities. The Founding Fathers and Congress wanted to ensure that litigants could enforce federal rights in federal court in order to get a fair shake.
Finally, after more than three decades, the Supreme Court has agreed to reconsider Williamson County. The NFIB Legal Center has repeatedly asked the Supreme Court to take up this issue because it significantly impacts landowners in jurisdictions hostile to property rights (think California). We were especially pleased that the Court has agreed to hear arguments in Knick v. Township of Scott, Pennsylvania—in which a landowner seeks compensation for a municipal ordinance that purports to give the public a right to traverse her land. This sort of enactment is flatly unconstitutional and obviously problematic for small business landowners that have a keen interest in prohibiting trespassers. Although Supreme Court precedent demands payment of compensation, the Knick family’s claim has been long-delayed as they’ve been sent to litigate in a Pennsylvania court rather than federal court. NFIB filed in support of the cert petition and will again support the Knick family with a merits brief.
George Mason University Law School Professor Ilya Somin offers further commentary here.