Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.

Supreme Court briefJun 4, 2018

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NO. 17-647

In the Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

TOWNSHIP OF SCOTT, PENNSYLVANIA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF JUSTICE AND FREEDOM FUND

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive, Suite 208

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Deborah J. Dewart

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

debcpalaw@earthlink.net

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

INTRODUCTION AND

SUMMARY OF THE ARGUMENT . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. THE ORDINANCE—ON ITS FACE—

UNQUESTIONABLY CONSTITUTES A

“TAKING” OF PETITIONER’S PROPERTY. . . . 4

A. The “mere enactment” of the Ordinance is a

“taking” of Petitioner’s property that

mandates “just compensation.” . . . . . . . . . . . 5

B. The Ordinance violates the Takings Clause

by disturbing Petitioner’s occupancy without

adequate provision for just compensation. . . 7

C. The Ordinance is so oppressive that the

Township should have been required to

exercise the power of eminent domain. . . . . 11

D. Williamson County’s exhaustion requirement

has created a tangled web that ensnares

aggrieved landowners and allows the

government to evade its Fifth Amendment

responsibility to compensate them. . . . . . . . 12

II. WILLIAMSON COUNTY’S SECOND PRONG

CONFLICTS WITH DECADES OF THIS

COURT’S PRECEDENT AND RENDERS THE

TAKINGS CLAUSE INFERIOR TO OTHER

PROVISIONS IN THE BILL OF RIGHTS. . . . 14

A. Congressional intent to guarantee a federal

forum for the vindication of federal

constitutional rights is evident in § 1983 and

predecessor statutes dating back to the Civil

Rights Act of 1871. . . . . . . . . . . . . . . . . . . . . 15

B. The state exhaustion requirement creates an

unwarranted inequality between the Fifth

Amendment and parallel provisions of the

Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Federal courts routinely adjudicate violations

of other constitutional rights, including those

that implicate land use, with no state

exhaustion requirement. . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

TABLE OF AUTHORITIES

Cases

Abingdon School Dist. v. Schemp,

374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . 20, 21

Armstrong v. United States,

364 U.S. 40 (1960) . . . . . . . . . . . . . . . . . . . . . . . 11

Arrigoni Enters., LLC v. Town of Durham,

136 S. Ct. 1409 (2016) . . . . . . . . . . . . . . . . 7, 8, 19

Barnes v. Glen Theatre,

501 U.S. 560 (1991) . . . . . . . . . . . . . . . . . . . . . . 20

Block v. Hirsh,

256 U.S. 135 (1921) . . . . . . . . . . . . . . . . . . . . . . 11

Brown v. Town of Cary,

706 F.3d 284 (4th Cir. 2013) . . . . . . . . . . . . . . . 20

Cherokee Nation v. Southern Kansas R. Co.,

135 U.S. 641 (1890) . . . . . . . . . . . . . . . . . . . . . . . 8

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . 20

City of Boerne v. Flores,

521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . 20

Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . 20

Daniels v. Williams,

474 U.S. 327 (1986) . . . . . . . . . . . . . . . . . . . . . . . 9

Desert Outdoor Advertising, Inc. v.

City of Moreno Valley,

103 F.3d 814 (9th Cir. 1996) . . . . . . . . . . . . . . . 20

Dolan v. Tigard,

512 U.S. 374 (1994) . . . . . . . . . . . . . . . . . . . . 6, 19

Ewing v. Mytinger & Casselberry, Inc.,

339 U.S. 594 (1950) . . . . . . . . . . . . . . . . . . . . . . 10

Ex parte Virginia,

100 U.S. 339 (1880) . . . . . . . . . . . . . . . . . . . . . . 16

FCC v. Florida Power Corp.,

480 U.S. 245 (1987) . . . . . . . . . . . . . . . . . . . . . . . 7

First English Evangelical Lutheran Church of

Glendale v. Cty. of L.A.,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . 7

Fuentes v. Shevin,

407 U.S. 67 (1972) . . . . . . . . . . . . . . . . . . . . . . . 10

Horne v. Dep’t of Agric.,

569 U.S. 513 (2013) . . . . . . . . . . . . . . . . . . . . . . 14

Kaiser Aetna v. United States,

444 U.S. 164 (1979) . . . . . . . . . . . . . . . . . . . . . . . 6

Knick v. Township of Scott, Pa.,

862 F.3d 310 (3d Cir. 2017) . . . . . . . . . . . . . . . 2, 5

Larkin v. Grendel’s Den, Inc.,

459 U.S. 116 (1982) . . . . . . . . . . . . . . . . . . . . . . 19

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

134 S. Ct. 1377 (2014) . . . . . . . . . . . . . . . . . . . . 14

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) . . . . . . . . . . . . . . . . . . . . . 5, 6

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . 4, 5, 6

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) . . . . . . . . . . . . . . . . . . . . . . 17

Martin v. District of Columbia,

205 U.S. 135 (1907) . . . . . . . . . . . . . . . . . . . . . . 11

McNeese v. Bd. of Educ.,

373 U.S. 668 (1963) . . . . . . . . . . . . . . . . . . . . . . 21

Melrose, Inc. v. City of Pittsburgh,

613 F.3d 380 (3d Cir. 2010) . . . . . . . . . . . . . . . . 20

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) . . . . . . . . . . . . . . . . . . . . . . 21

Mitchum v. Foster,

407 U.S. 225 (1972) . . . . . . . . . . . . . . . . . . . 15, 16

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1977) . . . . . . . . . . . . . . . . . . . . . . 16

Monroe v. Pape,

365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . 16, 21

National Advertising Co. v. City of Raleigh,

947 F.2d 1158 (4th Cir. 1991) . . . . . . . . . . . . . . 18

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) . . . . . . . . . . . . . . . . . . . . . . . 6

North American Cold Storage Co. v. Chicago,

211 U.S. 306 (1908) . . . . . . . . . . . . . . . . . . . . . . 10

Parratt v. Taylor,

451 U.S. 527 (1981) . . . . . . . . . . . . . . . . . . . . 9, 10

Patsy v. Florida Board of Regents,

457 U.S. 496 (1982) . . . . . . . . . . . . . 13, 15, 16, 17

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) . . . . . . . . . . . . . . . . . . . 11, 12

Pumpelly v. Green Bay Co.,

80 U.S. (13 Wall.) 166 (1871) . . . . . . . . . . . . . . . . 7

R.A.V. v. City of St. Paul, Minnesota,

505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . 21

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . 20

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974) . . . . . . . . . . . . . . . . . . . 2, 8, 9

Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) . . . . . . . . . . . . . . . . . . . . . . . 20

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) . . . . . . . . . . . . . . . . . . . . . . . 9

San Remo Hotel, L.P. v. City and

County of San Francisco,

545 U.S. 323 (2005) . . . . . . . . . . . . . . . . . . . . 8, 19

Steffel v. Thompson,

415 U.S. 452 (1974) . . . . . . . . . . . . . . . . . . . . . . 16

Stop the Beach Renourishment, Inc. v. Florida

Department of Environmental Protection,

560 U.S. 707 (2010) . . . . . . . . . . . . . . . . . . . . . . 14

vii

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . 7

Village of Belle Terre v. Boraas,

416 U.S. 1 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 20

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . . 20

Webb’s Fabulous Pharms. v. Beckwith,

449 U.S. 155 (1980) . . . . . . . . . . . . . . . . . . . . . . . 4

Williamson County Regional Planning Comm’n v.

Hamilton Bank,

473 U.S. 172 (1985) . . . . . . . . . . . . . . . . . . passim

Yee v. City of Escondido,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . 6, 7

Young v. American Mini Theatres, Inc.,

427 U.S. 50 (1976) . . . . . . . . . . . . . . . . . . . . . . . 20

Constitutional Provisions

U.S. Const., Art. III . . . . . . . . . . . . . . . . . . . . . . . . . 14

U.S. Const., Art. VI, § 2 . . . . . . . . . . . . . . . . . . . . . 17

U.S. Const. amend. I . . . . . . . . . . . . . . . . 3, 18, 19, 20

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . 3, 19, 21

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . 3, 9, 20, 21

viii

Statutes

Civil Rights Act of 1871 . . . . . . . . . . . . . . . . . . . . . 15

7 U.S.C. § 136 et seq. (Federal Insecticide,

Fungicide, and Rodenticide Act) . . . . . . . . . . . . . 9

28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 1491 (Tucker Act) . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 1997 et seq. (Civil Rights of

Institutionalized Persons Act) . . . . . . . . . . . . . . 16

42 U.S.C. § 1997e . . . . . . . . . . . . . . . . . . . . . . . 16, 17

45 U.S.C.S. § 701 et seq. (Regional Railroad

Reorganization Act) . . . . . . . . . . . . . . . . . . . . . . . 9

Ordinance 12-12-20-001 . . . . . . . . . . . . . . . . . . . . . . 2

Ordinance 12-12-20-001 § 5 . . . . . . . . . . . . . . . . . 2, 5

Ordinance 12-12-20-001 § 6 . . . . . . . . . . . . . . . . . . . 5

Other Authorities

Michael M. Berger, Supreme Bait & Switch: The

Ripeness Ruse in Regulatory Takings, 3 Wash.

U. J.L. & Pol’y 99 (2000) . . . . . . . . . . . . . . passim

Katherine Mims Crocker, Justifying a Prudential

Solution to the Williamson County Ripeness

Puzzle, 49 Ga. L. Rev. 163 (2014) . . . . . . . . . . . 18

Gideon Kanner, “[Un]equal Justice Under Law”:

The Invidiously Disparate Treatment of

American Property Owners in Taking Cases, 40

Loy. L.A. L. Rev. 1065 (2007) . . . . . . . . . . . 17, 18

Timothy Sandefur, Article: The Timing of Facial

Challenges, 43 Akron L. Rev. 51 (2010) . . . . 4, 18

Cong. Globe, 42d Cong., 1st Sess.,

App. 68 (1871) . . . . . . . . . . . . . . . . . . . . . . . 15, 16

INTEREST OF AMICUS CURIAE1

Justice and Freedom Fund (“JFF”), as amicus

curiae, respectfully urges this Court to reverse the

decision of the Third Circuit.

Justice and Freedom Fund is a California nonprofit, tax-exempt corporation formed on September 24,

1998 to preserve and defend the constitutional liberties

guaranteed to American citizens, through education,

legal advocacy, and other means. JFF’s founder is

James L. Hirsen, professor of law at Trinity Law

School and Biola University in Southern California and

author of New York Times bestseller, Tales from the

Left Coast, and Hollywood Nation. Mr. Hirsen is a

frequent media commentator who has taught law

school courses on constitutional law. Co-counsel

Deborah J. Dewart is the author of Death of a

Christian Nation (2010) and holds a degree in theology

(M.A.R., Westminster Seminary, Escondido, CA). JFF

has made numerous appearances in this Court as

amicus curiae.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Williamson County Regional Planning Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985) has created a

nightmarish maze that traps takings claimants and

ultimately slams the federal courthouse door in their

The parties have consented to the filing of this brief. Amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amicus, its

members, or its counsel, has made a monetary contribution to its

preparation or submission.

faces. In navigating the complex interplay among

procedural rules—including removal, res judicata, and

collateral estoppel—the befuddled claimant is like a

dog chasing its own tail but never catching it.

Meanwhile the ripened claim, like a rotten tomato, falls

to the ground.

The Township of Scott has passed an Ordinance

that imposes crushing financial burdens on Petitioner

no matter how she responds. Ordinance 12-12-20-001

(Dec. 20, 2012). She has three choices—none of them

good and all of them expensive. If she does nothing and

fails to comply, the Township will impose draconian

fines in addition to attorney fees and costs associated

with an enforcement action. These fines range from

$300 to $600 per day, plus attorney fees and other

court costs. Knick v. Township of Scott, Pa., 862 F.3d

310, 315 (3d Cir. 2017). If instead Petitioner elects to

comply with the Ordinance, she must foot the bill to

improve and maintain her property to ensure public

access, and she must sacrifice her privacy by allowing

strangers to enter her property at any time during

daylight hours. Ordinance 12-12-20-001 § 5. The third

and final option is litigation, but that choice entails

significant time and cost (e.g., attorneys, appraisers)

with no guarantee she will prevail and/or recover any

portion of her expense from the Township, particularly

in light of Williamson County’s mandate that she

exhaust her options in state court first, and only

then—maybe—set foot in federal court.

The procedures available for obtaining just

compensation are “[un]reasonable, [un]certain, and

[in]adequate].” Regional Rail Reorganization Act Cases,

419 U.S. 102, 124-125 (1974). The government

unreasonably imposes the entire burden on Petitioner

to initiate an inverse condemnation action after the

government has confiscated her property. The many

burdens on the landowner are only exceeded by the

uncertainty that an award of compensation will be

adequate to cover them—improvements to ensure

public access, perhaps a fence and signage to identify

the “cemetery” boundary lines, ongoing maintenance,

repairs, insurance, and real estate taxes—not to

mention the threat to property value. In addition to

financial burdens, a property owner may find it

difficult to discern whether an individual is a bona fide

cemetery visitor or an intruder intending to do harm.

These overwhelming burdens should be enough to

doom the Ordinance and Williamson County’s ripeness

doctrine. But there is more. Williamson County’s

procedural trap virtually guarantees that takings

claimants will be shut out of federal court, contrary to

congressional intent to provide a federal forum to

vindicate claims that a state or local government has

infringed rights under the federal constitution. Courts

have honored this principle in cases involving other

portions of the Bill of Rights—e.g., the First, Fourth,

and Fourteenth Amendments—while Fifth Amendment

takings claimants are forced to litigate in state court.

Property owners’ lack of access to federal courts

encourages local governments to be aggressive,

resulting in unconstitutional regulatory action.

Williamson County has created an unwarranted

inequality that has no basis in law or logic: It is solely

Fifth Amendment property rights that are demoted to

an inexplicable inferior status. This unfortunate

precedent deserves to be buried in Knick’s cemetery.

ARGUMENT

I. THE

ORDINANCE—ON

ITS

FACE—

UNQUESTIONABLY CONSTITUTES A

“TAKING” OF PETITIONER’S PROPERTY.

The Township’s public access mandate, removing

Petitioner’s right to exclude others from her property,

“is perhaps the most serious form of invasion . . . taking

not mere a single strand from the bundle of property

rights . . . [but] chop[ping] through the bundle, taking

a slice of every thread.” Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 435 (1982)

(internal citations and quotation marks omitted). The

Township has “by ipse dixit” recast Petitioner’s private

property as public property; this action is “the very

kind of thing that the Takings Clause of the Fifth

Amendment was meant to prevent.” Webb’s Fabulous

Pharms. v. Beckwith, 449 U.S. 155, 164 (1980) (a

“taking” occurred when the government retained the

interest earned on funds deposited with it).

To complicate the analysis, courts have used the

term “facial” for two distinct types of taking. In some

cases, “the enactment of a challenged law inherently

constitutes a taking of property.” Timothy Sandefur,

Article: The Timing of Facial Challenges, 43 Akron L.

Rev. 51, 62 (2010). Under other circumstances, an

oppressive law is “void on its face.” Id. at 61. In the

first instance, the remedy is compensation, but in the

second, invalidation. This case potentially fits either

mold. On its face, the Ordinance creates a public

easement in Petitioner’s land (Section A) requiring

“just compensation” (Section B) but it simultaneously

imposes draconian burdens on her privacy and finances

sufficient to warrant invalidity (Section C). Either way,

there is indisputably a Fifth Amendment “taking” that

is ripe for review—just like any other constitutional

infringement.

A. The “mere enactment” of the Ordinance is

a “taking” of Petitioner’s property that

mandates “just compensation.”

Two relevant provisions of the Ordinance set off

constitutional alarms. The “inspection” provision

creates the right for public officials to enter private

property at any time to determine the existence and

location of burial sites. Knick, 862 F.3d at 315.

Ordinance 12-12-20-001 § 6. No prior notice to the

owner is required, even though the property may be a

private residence. If the land contains burial sites, the

“public access” provision requires the owner to make

that portion of the property “open and accessible to the

general public during daylight hours.” Ordinance 1212-20-001 § 5. Both provisions set off constitutional

alarms, but only the “public access” mandate is before

this Court.

At the very least, even if the Ordinance is a valid

exercise of police power, “just compensation” must be

paid. This permanent physical invasion of Petitioner’s

land is per se a Fifth Amendment taking. Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005). This

would be true even if the invasion “occup[ied] only

relatively insubstantial amounts of space and d[id] not

seriously interfere with [Petitioner’s] use of the rest of

[her] land.” Loretto, 458 U.S. at 430. Here, the

Ordinance imposes ongoing burdens and intrudes daily

on Petitioner’s privacy. This physical invasion extends

far beyond “a regulation that merely restricts the use

of property” (id.) or “some public program adjusting the

benefits and burdens of economic life to promote the

common good” (Lingle, 544 U.S. at 538) and is

“functionally equivalent to the classic taking in which

government directly appropriates private property or

ousts the owner” (id.).

This Court has long recognized that a “public

access” mandate, granting the public “a permanent and

continuous right to pass to and fro,” constitutes a Fifth

Amendment taking. Nollan v. California Coastal

Comm’n, 483 U.S. 825, 833 (1987). The Township

inflicts “a special kind of injury” by requiring Petitioner

to allow “stranger[s] [to] directly invade[] and occup[y]

[her] property.” Loretto, 458 U.S. at 436. See Nollan,

483 U.S. at 831 (“[h]ad California required the Nollans

to make an easement across their beachfront available

to the public on a permanent basis. . .no doubt there

would have been a taking”); Dolan v. Tigard, 512 U.S.

374, 384 (1994) (“had the city simply required

petitioner to dedicate a strip of land. . .for public

use. . .a taking would have occurred”); Kaiser Aetna v.

United States, 444 U.S. 164, 178 (1979) (public right of

access to privately improved pond). These cases all

implicate interference with an owner’s the right to

exclude, “universally held to be a fundamental element

of the property right.” Id. at 180. In Kaiser, the

plaintiffs had voluntarily modified their property, but

“just compensation” was required before the

government could demand public access. In Knick’s

case, the constitutional injury is even more glaring

because the burial sites have been on her property for

decades and she was not even aware of them. The

government’s mandatory interference with the right to

exclude is a factor that distinguishes these cases from

regulations that do not constitute a taking, e.g., Yee v.

City of Escondido, 503 U.S. 519, 527 (1992) (mobile

home rent control ordinance); FCC v. Florida Power

Corp., 480 U.S. 245, 252 (1987) (FCC review of rents

charged for utility pole space).

B. The Ordinance violates the Takings Clause

by disturbing Petitioner’s occupancy

without adequate provision for just

compensation.

The Takings Clause is not “a mere remedy.” Arrigoni

Enters., LLC v. Town of Durham, 136 S. Ct. 1409, 1409

(2016) (Thomas, J., dissenting from denial of certiorari).

It is not an afterthought, allowing the government to

run roughshod over private property rights, violating

the Fifth Amendment and leaving the distraught

landowner with the task of initiating litigation. Instead,

it “places a condition” on the government’s exercise of

power to take private property in. First English

Evangelical Lutheran Church of Glendale v. Los

Angeles, 482 U.S. 304, 314 (1987). Regardless of

whether the government takes possession of “an entire

parcel or merely a part thereof,” as in this case, “it has

a categorical duty to compensate” the landowner.

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 322 (2002). This principle dates

back to an early holding of this Court that the

government must compensate the owner of private

property it uses in a manner that inflicts “irreparable

and permanent injury to any extent.” Pumpelly v. Green

Bay Co., 80 U.S. (13 Wall.) 166, 177-178 (1871).

Williamson County refers back to early precedent

suggesting that provisions for obtaining compensation

need only be “reasonable, certain, and adequate” at the

time of the taking. Williamson County, 473 U.S. at 194,

citing Regional Rail, 419 U.S. at 124-125 (quoting

Cherokee Nation v. Southern Kansas R. Co., 135 U.S.

641, 659 (1890)). Cherokee Nation merits a closer look.

The Constitution “does not provide or require that

compensation shall be actually paid in advance of the

occupancy of the land to be taken. But the owner is

entitled to reasonable, certain and adequate provision

for obtaining compensation before his occupancy is

disturbed.” Id. (emphasis added). The provisions at

issue in Cherokee Nation met this standard because

there was a detailed scheme for payment of

compensation, and if the landowner appealed, an

amount equal to double the award had to be paid to the

court and held until the matter was resolved. Id. at

643-646. Land was taken in Cherokee Nation to

construct a railroad, but construction could not

commence until “full compensation shall be made to

such occupants for all property to be taken or damage

done by reason of the construction of such railway.” Id.

at 644. In contrast to this carefully drafted statutory

protection for property owners, the Ordinance

disturbed occupancy the moment it was passed, as

evidenced by the violation notices Petitioner received.

Thus, “[i]n effect, Williamson County forces a property

owner to shoulder the burden of securing compensation

after the local government effects a taking.” Arrigoni,

136 S. Ct. at 1409 (Thomas, J., dissenting from denial

of certiorari).

In San Remo Hotel, L.P. v. City and County of San

Francisco, 545 U.S. 323, 337 (2005), Justice Rehnquist

expressed reservations about requiring takings

claimants “to utilize all state compensation procedures

before they can bring a federal takings claim.” Id. at

349 (Rehnquist, J., concurring) (emphasis added). To

support its state court exhaustion prong, Williamson

County cites two cases that have nothing to do with

state procedures for just compensation—reasonable or

otherwise. Instead, both involve exhaustion of federal

statutory remedies. In Regional Rail, 419 U.S. at 124125, this Court found that the Tucker Act, 28 § U.S.C.

1491, provided adequate procedures to compensate the

railroads, and Congress did not withdraw that Act’s

grant of jurisdiction when it enacted the Regional

Railroad Reorganization Act, 45 U.S.C.S. §§ 701 et seq.,

to reorganize railroads into a single viable system

operated by a private for-profit corporation set up by

the government. Similarly, in Ruckelshaus v. Monsanto

Co., 467 U.S. 986 (1984), a case holding that trade

secrets are protectable property under the Takings

Clause, the Federal Insecticide, Fungicide, and

Rodenticide Act, 7 U.S.C. § 136 et seq., did not

withdraw the availability of Tucker Act remedies, but

required litigants to exhaust the statutory procedures

available under federal law. Yet Williamson County

cites both of these cases as support for its requirement

to exhaust state court remedies before pursuing a

federal takings claim in federal court. Williamson

County, 473 U.S. at 194. The logic here is not apparent.

Williamson County does another end-run around

the Constitution when it asserts that the state court

exhaustion requirement “is analogous to th[is] Court’s

holding in Parratt v. Taylor, 451 U.S. 527 (1981).”

Williamson County, 473 U.S. at 195.2 This purported

Daniels v. Williams, 474 U.S. 327, 330-331 (1986) overruled

Parratt to the extent Parratt held that a state official’s mere lack

of care deprives an individual of life, liberty, or property under the

Fourteenth Amendment.

analogy is flawed. In Parratt, an inmate sued for

violation of due process when state prison officials

negligently failed to deliver hobby materials he had

ordered by mail. Mere deprivation of property was not

a constitutional violation per se—there had to be a lack

of due process, and adequate post-deprivation remedies

were available in this situation. What Williamson

County overlooks is Parratt’s caution that ordinarily

“pre-deprivation notice and hearing . . . serve as a

check on the possibility that a wrongful deprivation

would occur” (citing cases, including Fuentes v. Shevin,

407 U.S. 67 (1972) (striking down prejudgment

replevin statute)). Parratt, 451 U.S. at 538. Postdeprivation procedures may suffice in cases where

quick state action is necessary or where meaningful

pre-deprivation process is impossible or impractical. Id.

at 539; see, e.g., North American Cold Storage Co. v.

Chicago, 211 U.S. 306 (1908) (seizure and destruction

of unwholesome food to protect public health); Ewing v.

Mytinger & Casselberry, Inc., 339 U.S. 594 (1950)

(seizure and destruction of drugs). It is obviously

impractical to provide pre-deprivation process for an

official’s unforeseeable carelessness in delivering prison

mail. But there is no immediate need for state action

with respect to burial sites that have been in places for

decades, and it is neither impossible nor impractical to

provide an orderly procedure before the government

confiscates an interest in real property.

C. The Ordinance is so oppressive that the

Township should have been required to

exercise the power of eminent domain.

There is “a point at which the police power ceases

and leaves only that of eminent domain.” Block v.

Hirsh, 256 U.S. 135, 156 (1921); see also Martin v.

District of Columbia, 205 U.S. 135, 139 (1907)

(“constitutional rights . . . are matters of degree”). The

Ordinance compels Petitioner “to bear public burdens

which, in all fairness and justice, should be borne by

the public as a whole.” Armstrong v. United States, 364

U.S. 40, 49 (1960). The massive potential burden is

limited only by the imagination. The Ordinance

prohibits charging a fee for access, so the entire

financial burden falls on the landowner, beginning with

litigation and other costs associated with seeking

compensation from the Township. The requirement

that aggrieved property owners file inverse

condemnation proceedings after their occupancy has

been disturbed is only the beginning. There are likely

costs associated with clearing a path or roadway to

make the “cemetery” accessible. The owner may need

to construct a fence, and perhaps one or more signs, to

identify the location of the graves. If a visitor is

injured, the landowner is vulnerable to litigation and

must bear the ongoing costs of insurance, repairs, and

maintenance. The landowner must pay real property

tax on the entire property, including the portion now

dedicated to public use.

This case stands in contrast to this Court’s decision

in Penn Central Transp. Co. v. New York City, 438 U.S.

104 (1978), holding that New York City’s historic

landmark designation law did not constitute a taking.

Penn Central, unlike this case, did not implicate a

“public access” obligation or other physical invasion.

But as Justice Rehnquist observed in dissent, the

landowner would likely discover that “the landmark

designation imposes upon him a substantial cost, with

little or no offsetting benefit except for the honor of the

designation.” Id. at 139 (Rehnquist, J., dissenting). In

this case, Petitioner suffers a daily, permanent physical

invasion of occupancy coupled with ongoing and

unpredictable financial burdens.

Williamson County acknowledges the possibility

that the government’s desired result may be “so unduly

oppressive” that it can only be accomplished through

eminent domain, but the question was “not properly

presented” and therefore “must be left for another day.”

Williamson County, 473 U.S. at 185. That day has now

come. The Ordinance here is “unduly oppressive.” The

“cemetery” portion of Knick’s property, which she must

open and maintain for daily public access, has now

become public property. The macabre result of this

legislative transformation is that the only time her

“private cemetery” is actually private is during

nighttime hours!

D. W i l l i a m s o n

C o unty ’ s

exhaustion

requirement has created a tangled web

that ensnares aggrieved landowners and

allows the government to evade its Fifth

Amendment responsibility to compensate

them.

The state court exhaustion requirement created by

Williamson County dicta has facilitated gamesmanship

where Fifth Amendment claims are bounced like

rubber balls between state and federal courts,

ultimately tossing the aggrieved landowner out of the

game. This expulsion upends the federal forum

Congress intended to preserve for 42 U.S.C.S. § 1983

litigants. In a key ruling confirming the absence of a

state exhaustion requirement for § 1983 litigants, this

Court anticipated the type of entanglements

Williamson County has spawned, including res

judicata, collateral estoppel, and availability of interim

relief. Patsy v. Florida Board of Regents, 457 U.S. 496,

514 (1982). In Patsy, this Court observed that the

“difficult questions concerning the design and scope of

an exhaustion requirement” could be addressed

efficiently by legislation but “if answered incrementally

by the judiciary,” the result would be “costly, remedydelaying, and court-burdening litigation.” Id. at 513514. That is precisely what has happened—here and in

numerous other cases.

Property owners asserting takings claims are faced

with an unjustifiable dilemma. When seeking a remedy

in a state court, they face the threat that government

defendants will remove the action to federal court,

where their claims can be dismissed because the state

litigation was aborted. Even when a landowner abides

by the Williamson County requisite and seeks judicial

review at the state level, if the state court result is

unfavorable, federal courts are still unavailable due to

the quagmire of procedural barriers created by

Williamson County. This is exactly what happened to

Knick when she challenged the Ordinance in state

court as a violation of her property rights. After that

court refused to provide a forum for her suit she turned

to the federal court for redress but was told that her

complaint could not be heard because of the

requirement that she must sue in state court—the very

forum where Knick had begun her quest for justice.

In short, Williamson County’s ripeness doctrine

“creates a class of constitutional pariahs who may

never litigate their federal constitutional claims in

federal court.” Berger, Michael M., Supreme Bait &

Switch: The Ripeness Ruse in Regulatory Takings, 3

Wash. U. J.L. & Pol’y 99, 127 (2000).

II. WILLIAMSON COUNTY’S SECOND PRONG

CONFLICTS WITH DECADES OF THIS

COURT’S PRECEDENT AND RENDERS THE

TAKINGS CLAUSE INFERIOR TO OTHER

PROVISIONS IN THE BILL OF RIGHTS.

This Court has jurisdiction and the aggrieved

landowner has Article III standing as soon as the

government has taken private property without paying

for it. Horne v. Dep’t of Agric., 569 U.S. 513, 526 n. 6

(2013). At this point there is a “case” or “controversy”

regardless of “whether an alternate remedy exists.” Id.

In Horne, this Court recognized that the “prudential

ripeness” requirement, wherein “the Government has

both taken property and denied just compensation,” “is

not, strictly speaking, jurisdictional.” Id. at 526; Stop

the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl.

Prot., 560 U.S. 702, 729, and n. 10 (2010). This Court

has also repeatedly affirmed that “a federal court’s

obligation to hear and decide cases within its

jurisdiction is virtually unflagging.” Lexmark Int’l, Inc.

v. Static Control Components, Inc., 134 S. Ct. 1377,

1386 (2014) (internal citations and quotation marks

omitted).

There is no reason to require Petitioner to waste

resources on an inverse condemnation action under

Pennsylvania state law before presenting her claim in

federal court. The moment the Ordinance became law,

the constitutional violation was complete, as evidenced

by the two Notices of Violation she received. Petitioner

has the same right to proceed as any other person

deprived of rights under the U.S. Constitution.

A. Congressional intent to guarantee a federal

forum for the vindication of federal

constitutional rights is evident in § 1983

and predecessor statutes dating back to the

Civil Rights Act of 1871.

Williamson County’s state exhaustion prong

undermines the fundamental principles behind 42

U.S.C. § 1983. The federal government’s role as “a

guarantor of the basic federal rights of individuals

against incursions by state power” was firmly

established during the post-Civil War era when

Congress enacted the Civil Rights Act of 1871, the

predecessor to 42 U.S.C. § 1983. Patsy, 457 U.S. at 503.

“Section 1983 opened the federal courts to private

citizens, offering them a uniquely federal remedy”

when states trampled their rights under the U.S.

Constitution. Mitchum v. Foster, 407 U.S. 225, 239

(1972) (emphasis added). This early civil rights

legislation was enacted not only for those who were

previously enslaved, “but also to all people where,

under color of State law, they or any of them may be

deprived of rights to which they are entitled under the

Constitution by reason and virtue of their national

citizenship.” Id. at 239 n. 30, quoting Representative

Shellabarger, Cong. Globe, 42d Cong., 1st Sess.,

App. 68 (1871). The “very purpose of § 1983” was to

protect the people from state intrusions on their federal

constitutional rights. Mitchum, 407 U.S. at 242,

quoting Ex parte Virginia, 100 U.S. 339, 346 (1880).

“Williamson County stands this doctrine on its head by

asserting that state courts not only may . . . but indeed

must be interposed” between the people and the federal

courts charged with guarding their rights. Berger,

Supreme Bait & Switch, 3 Wash. U. J.L. & Pol’y at 126127.

A judicially crafted exhaustion requirement is

irreconcilable with this time-honored role of the federal

courts. This Court has repeatedly confirmed that

exhaustion of state remedies is not a prerequisite to

filing a § 1983 action. The issue was squarely

presented—and exhaustion unequivocally rejected—in

Patsy, 457 U.S. at 498. Even before Patsy, this Court

already had, on “numerous occasions . . . rejected the

argument that a § 1983 action should be dismissed

where the plaintiff has not exhausted state

administrative remedies” (id. at 500), “recognizing the

paramount role Congress has assigned to the federal

courts” (Steffel v. Thompson, 415 U.S. 452, 472-473

(1974)). The availability of state relief is irrelevant,

because “[t]he federal remedy is supplementary to the

state remedy, and the latter need not be first sought

and refused before the federal one is invoked.” Monroe

v. Pape, 365 U.S. 167, 183 (1961) (overruled in Monell

v. Dep’t of Soc. Servs., 436 U.S. 658 (1977) insofar as it

held that local governments are wholly immune from

suit). This conclusion is bolstered by the inclusion of a

limited exhaustion requirement in the Civil Rights of

Institutionalized Persons Act, 42 U.S.C. § 1997 et seq.,

for adult prisoners filing § 1983 actions. See 42 U.S.C.

§ 1997e. “A judicially imposed exhaustion requirement

. . . would usurp policy judgments that Congress has

reserved for itself.” Patsy, 457 U.S. at 508.

Moreover, if Takings Clause plaintiffs are left “at

the mercy of state courts,” then these courts “get to

define the contours of federal law and are de facto free

to trump the federal courts’ interpretation of federal

law.” Berger, Supreme Bait & Switch, 3 Wash. U. J.L.

& Pol’y at 128. This scenario “makes hash out of the

federal supremacy clause” (U.S. Const., Art. VI, § 2).

Id. Williamson County allows state courts to deny

access to the federal judiciary to vindicate federal

rights—precisely the result § 1983 was enacted to

avoid. Id.

B. The state exhaustion requirement creates

an unwarranted inequality between the

Fifth Amendment and parallel provisions

of the Bill of Rights.

Williamson County has contributed to the creation

of “a legal regime of invidiously unequal treatment of

people in their capacity as property owners,

particularly—and perversely—when the government

seeks to take their property from them.” Gideon

Kanner, “[Un]equal Justice Under Law”: The

Invidiously Disparate Treatment of American Property

Owners in Taking Cases, 40 Loy. L.A. L. Rev. 1065,

1067 (2007). As this Court recognized decades ago, “the

dichotomy between personal liberties and property

rights is a false one.” Lynch v. Household Fin. Corp.,

405 U.S. 538, 552 (1972). The right to property,

whether a welfare check or real estate, is no less

“personal” than the right to speak or travel. “Congress

recognized these rights in 1871 when it enacted the

predecessor of §§ 1983 and 1343 (3).” Id. It is people

who have the right to enjoy property—property itself

does not have rights.

Commentators have noticed the growing inequality

over the years. Crocker, Katherine Mims, Justifying a

Prudential Solution to the Williamson County Ripeness

Puzzle, 49 Ga. L. Rev. 163, 205 (2014) (“There is little

reason to believe that the Takings Clause should be an

outlier among these basic liberties—or that the

Supreme Court meant to make it one.”) Kanner,

[Un]equal Justice, 40 Loy. L.A. L. Rev. at 1070 (federal

courts “stand ever ready to adjudicate . . . local

controversies over regulations of land” when federal

constitutional rights other than the Takings Clause are

infringed). Sandefur, The Timing of Facial Challenges,

43 Akron L. Rev. at 62-63 (noting inequalities between

facial takings challenges and other facial challenges in

computing the statute of limitations); Berger, Supreme

Bait & Switch, 3 Wash. U. J.L. & Pol’y at 124 n. 104

(“Why should one facial invalidity under the Bill of

Rights be shielded by limitations, but not the other?”).3

Even convicted criminals sometimes receive relief in

federal court without exhausting state court postconviction remedies. Kanner, [Un]equal Justice, 40

Loy. L.A. L. Rev. at 1078.

This commentator cites National Advertising Co. v. City of

Raleigh, 947 F.2d 1158, 1160 (4th Cir. 1991), where the Fourth

Circuit dismissed the Fifth Amendment claim as barred by the

statute of limitations—but not the First Amendment claims.

Berger, Supreme Bait & Switch, 3 Wash. U. J.L. & Pol’y at 124

n. 105.

In short, the Takings Clause, “as much a part of the

Bill of Rights as the First Amendment or the Fourth

Amendment,” has unquestionably been “relegated to

the status of a poor relation.” Dolan, 512 U.S. at 392;

Arrigoni Enters., 136 S. Ct. at 1411 (Thomas, J.,

dissenting from denial of certiorari). This Court should

correct the inequality by eliminating the second prong

of Williamson County’s ripeness doctrine.

C. Federal courts routinely adjudicate

violations of other constitutional rights,

including those that implicate land use,

with no state exhaustion requirement.

The inferior status of Takings Clause claims is

inexplicable. “[This] Court has not explained why . . .

we should hand authority over federal takings claims

to state courts, . . . while allowing plaintiffs to proceed

directly to federal court in cases involving, for example,

challenges to municipal land-use regulations based on

the First Amendment, . . . or the Equal Protection

Clause. . . .” San Remo Hotel, 545 U.S. at 350-351

(Rehnquist, C.J., concurring). “Federal court protection

is . . . routinely provided in land use cases involving

other aspects of the Bill of Rights.” Berger, Supreme

Bait & Switch, 3 Wash. U. J.L. & Pol’y at 124. These

cases typically do not even mention a state court

exhaustion requirement:

• First Amendment - Establishment Clause:

Larkin v. Grendel’s Den, Inc., 459 U.S. 116

(1982) (schools and churches granted “veto”

power to prevent issuance of liquor licenses

within 500 feet of their properties).

• First Amendment - Free Expression and

Religion: Renton v. Playtime Theatres, Inc., 475

U.S. 41 (1986) (adult theatre); Young v.

American Mini Theatres, Inc., 427 U.S. 50 (1976)

(adult establishment); Barnes v. Glen Theatre,

501 U.S. 560 (1991) (nude dancing); City of

Boerne v. Flores, 521 U.S. 507 (1997) (church

building permit); Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)

(church inspection and zoning approval).

• First Amendment - Signage Restrictions: Reed v.

Town of Gilbert, 135 S. Ct. 2218 (2015)

(municipal sign code); Desert Outdoor

Advertising, Inc. v. City of Moreno Valley, 103

F.3d 814 (9th Cir. 1996) (on-site and off-site sign

restrictions); Melrose, Inc. v. City of Pittsburgh,

613 F.3d 380 (3d Cir. 2010) (building signs);

Brown v. Town of Cary, 706 F.3d 284 (4th Cir.

2013) (sign restrictions on private residence).

• Fourteenth Amendment - Equal Protection

Clause: Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432 (1985) (group home); Village of

Belle Terre v. Boraas, 416 U.S. 1 (1974) (single

family homes).

The result is the same in contexts not involving land

use. Federal courts conform to congressional intent to

provide a federal forum for § 1983 actions, either

openly rejecting or declining to mention any obligation

to file in state court first. For example:

• First Amendment - Establishment Clause

(public schools): Wallace v. Jaffree, 472 U.S. 38

(1985) (moment of silence); Abingdon School

Dist. v. Schemp, 374 U.S. 203 (1963) (Bible

reading).

• Fourth Amendment – Search Warrant: Monroe

v. Pape, 365 U.S. at 183 (“It is no answer that

the State has a law which if enforced would give

relief.”)

• Fourteenth Amendment – Racial Discrimination

in Education: McNeese v. Bd. of Educ., 373 U.S.

668, 671 (1963) (“[R]elief under the Civil Rights

Act may not be defeated because relief was not

first sought under state law which provided a

remedy.”)

These cases, challenging state and local laws that

implicate “parallel features of the Bill of Rights,” are

commonly initiated in federal court and the rights at

issue are “routinely protected” there through 42 U.S.C.

§ 1983. Berger, Supreme Bait & Switch, 3 Wash. U.

J.L. & Pol’y at 125. “Why are property owners required

to go first to state court in order to ripen their federal

taking claims?” Id. (emphasis added). As Justice

Rehnquist observed, many of these cases involve land

use. Some cases do have their genesis in state court but

come to this Court on appeal. Plaintiffs have a choice

as they begin their journey for justice; they may select

either a federal or a state forum to initiate the action.

When cases come before this Court from state supreme

courts, it is not because they were denied a federal

forum but because they chose to file in state court. See,

e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490

(1981) (billboards) (California Supreme Court); R.A.V.

v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)

(cross burning) (Minnesota Supreme Court).

CONCLUSION

This Court should reverse the Third Circuit ruling

against Petitioner and eliminate the procedural

nightmare created by the second prong of Williamson

County’s ripeness requirement.

Respectfully submitted,