Rose Knick thought the pinnacle of her case would be on October 3, 2018, when eight Supreme Court justices spent an hour hearing legal arguments arising from her attempt to hold Scott Township accountable for taking her property without paying for it. But now Rose will do something few people who make it to the Supreme Court do: she will be returning to the nation’s highest court for a second oral argument in her case.
Most experts speculate that the Court rescheduled the case because the justices were deadlocked and need Justice Kavanaugh—who had not yet been confirmed when Rose’s case was argued—to break the tie. Another possibility is that the Court is still deciding upon the best theory for overturning the 33-year old precedent that has so far robbed Ms. Knick of justice.
Rose’s legal odyssey began in 2013 after Township officials entered her Pennsylvania farm without her permission. With scant evidence, the town decided that Rose’s property contained one or more gravesites and declared her land a “cemetery,” which would subject her to unusual requirements imposed by a 2012 ordinance. Under the ordinance, Rose would have to open her private property to the public, 7-days a week, and trim shrubs and keep the area cleaned as if it were a cemetery, or face fines.
The Constitution allows government to take private property and make it public, like the Township did to Rose. But it must follow one condition: the government must pay “just compensation.” Yet Scott Township refused to pay Rose. In fact, the Township won’t even concede that it has taken anything from her; instead it threatened her with fines of $600 per day.
When Rose sought to enforce her constitutional property rights in state court, the state court claimed it could not hear her case until the town actually followed through with its threats. Having lost faith in state court, she went to federal court to enforce her federal rights.
But the federal court said it would not hear her claim either, because of a Supreme Court decision from 1985 called Williamson County Regional Planning Commission v. Hamilton Bank. That decision held that property owners like Rose would have to first pursue a claim seeking just compensation in state court before they could enforce their rights in federal court. The decision assumed that a party who was unsuccessful in state court could later go to federal court to enforce her rights. But that assumption proved false, as the Supreme Court later recognized.
Fortunately, last spring the Supreme Court agreed to hear Rose’s case and reconsider its decades-old decision. During the October 3rd oral argument, the justices raised numerous questions about Rose’s case. Several justices expressed interest in our argument that the Township violated Ms. Knick’s Fifth Amendment property rights when it took her property without providing or guaranteeing her the just compensation required by the Constitution. Further confirming that interest, the Court has now ordered Rose, the Township, and the Solicitor General (who participated as friend-of-the-Court in support of Rose) to address this topic further in supplemental briefs.
As we explained in Rose’s merits brief and during oral argument, the Township could have used legal condemnation procedures to take an easement across her land. But instead of using those procedures, the Township took a public-access easement on Rose’s property and then argued that it didn’t take her property at all. Instead it threatened her with fines if she failed to obey the new easement. This failure to guarantee Rose just compensation violates Rose’s Fifth Amendment right. What the Williamson County decision failed to recognize was that such a violation gives Rose, and all others like her, the right to go to federal Court to hold the government accountable.
In 2019, Rose will return to Supreme Court and we are optimistic that the Court will overturn Williamson County and recognize the right of all Americans to protect their constitutional property rights in federal court.