It’s time to restore constitutional rights protecting private property

October 01, 2018 | By CHRISTINA MARTIN

Originally published by The Hill, October 1, 2018.

If you were to quiz the average American about the liberties protected under the Bill of Rights, many would readily cite freedom of speech, freedom of religion, and the right to bear arms. But most may not recall that property rights protections were included in the Constitution as a critical foundation to individual freedom.

We could use a refresher course on the importance of property rights in a free society. As John Adams said, property rights are “sacred” and without them, society devolves into “anarchy and tyranny.” This seems self-evident. Yet these constitutional rights have been systematically under attack for decades, and federal courts largely have looked the other way, in part because of a controversial 1985 Supreme Court decision.

But now that may be about to change, because of the courage of one Pennsylvania landowner.

Rose Knick lives on a 90-acre farm in Scott Township, in eastern Pennsylvania. In 2012, the town enacted an ordinance requiring landowners to provide public access to private property if township officials decide that land contains a gravesite.

Without her permission, city workers intruded on Knick’s property, where they found a few loose stones they decided were grave markers. The township ordered her to open her property to the public for anyone who might want to visit the site.

Knick has no reason to believe anyone was buried on her property, but town officials threatened hefty daily fines to force her to open her private property to the public. She rightly understood this violated her constitutional rights, since the Fifth Amendment protects against uncompensated “takings” of private property by the government. So Knick did what any aggrieved citizen might do: She went to the courts to stop this assault on her rights.

Or at least that’s what she tried. She filed in state court first, but was told the court would not hear her suit until after she was prosecuted by the town for refusing to abandon her rights. So she filed in federal court, but was told the court would not hear her suit, because of a controversial Supreme Court decision in the 1985 case of Williamson County Regional Planning Commission vs. Hamilton Bank.

The Williamson case held that a property owner must bring their Fifth Amendment takings claim to state court, rather than federal court, to give the state an opportunity to provide compensation. At first glance, that may sound okay. But in reality, the Williamson decision interacts with other procedural rules in a way that leaves many property owners — people such as Knick — without the ability to enforce their rights in any court.

The result was that property rights were summarily demoted to second-class rights. In the 33 years since that wrong-headed court decision, untold numbers of property owners have found themselves shut out of court when they seek compensation in a takings case.

The cause of individual liberty lost badly in the Williamson decision. But that same decision was a boon for state and local governments, who could now ride roughshod over the rights of property owners without fear of being held accountable in federal court.

Rather than give property owners their day in court, government agencies, with attorneys on staff and deep pools of taxpayer dollars at their disposal, could use federal law to bounce property owners out of state court into federal court and then get the case dismissed or sent back to state court under Williamson. Many plaintiffs simply surrender from exhaustion, cutting their losses before years of litigation drives them to financial ruin.

This state of affairs flies in the face of any reasonable idea of fair play. When citizens believe their constitutional rights have been abused, they have a right to access the courts and have their case heard. Property owners are entitled to their day in federal court when governments violate their federal property rights without payment of just compensation.

But there’s good news on the horizon. This week, the U.S. Supreme Court will hear Rose Knick’s case and it will revisit the 1985 Williamson decision and the damage caused by that precedent.

Property rights are not second-class rights, and overturning the Williamson decision would be a vital step toward restoring those rights to their rightful place and restraining government overreach. The treatment Rose Knick has received at the hands of local officials has been inexcusable. But if her case should lead to a change in the law, it will be a significant win for the cause of individual freedom.

Christina Martin is an attorney with the Pacific Legal Foundation, a public interest law firm representing Rose Knick at no charge in her case against the township.