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 AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Center for Constitutional

Jurisprudence

c/o Fowler School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

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, as suggested by

Justices of this Court? See Arrigoni Enterprises, LLC

v. Town of Durham, 136 S.Ct. 1409 (2016) (Thomas,

J., joined by Kennedy, J., dissenting from denial of

certiorari); San Remo Hotel, L.P. v. City and County

of San Francisco, 545 U.S. 323, 348 (2005) (Rehnquist,

C.J., joined by O'Connor, Kennedy, and Thomas, JJ.,

concurring in judgment).

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

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

IDENTITY AND INTEREST OF AMICUS ...............1

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

ARGUMENT ...............................................................2

The Williamson County State Litigation

Requirement Is Inconsistent With The Text And

History of the Takings Clause of the Fifth

Amendment ................................................................. 2

CONCLUSION ............................................................9

iii

TABLE OF AUTHORITIES

Cases

Arrigoni Enterprises, LLC v. Town of Durham,

136 S. Ct. 1409 (2016)..............................................9

Danforth v. United States,

308 U.S. 271 (1939)..................................................7

First English Evangelical Lutheran Church of

Glendale v. Los Angeles,

482 U.S. 304 (1987)..................................................2

Horne v. U.S. Dept. Ag.,

135 S.Ct. 2419 (2015)...............................................5

Little Rock Junction Ry. v. Woodruff,

49 Ark. 381 (1887) ...................................................5

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981)..................................................7

San Remo Hotel, L.P. v. City & County of San

Francisco,

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

Seaboard Air Line Ry. Co. v. U.S.,

261 U.S. 299 (1923)..................................................7

Stop the Beach Renouirshent, Inc. v. Fla. Dep’t of

Envtl. Prot.,

560 U.S. 702 (2010)..................................................9

U.S. v. Dickinson,

331 U.S. 745 (1947)..................................................7

U.S. v. Dow,

357 U.S. 17 (1958 .....................................................8

Constitutional Provisions

U.S. Const. Amend. V..................................................2

Statutes

1 Stats 1 (Declaration of Independence ¶2) ...............2

Other Authorities

Adams, John, Discourses on Davila, in

THE WORKS OF JOHN ADAMS (Charles Francis

Adams ed., 1851)......................................................4

Adams, Willi Paul, THE FIRST AMERICAN

CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE

MAKING OF THE STATE CONSTITUTIONS IN THE

REVOLUTIONARY ERA (1980).....................................4

Blackstone, William, COMMENTARIES ON THE LAWS OF

ENGLAND (Univ. of Chicago Press 1979) ......... 3, 5, 7

Desan, Christine, MAKING MONEY: COIN, CURRENCY,

AND THE COMING OF CAPITALISM (2014) ..................6

Ely, James W., Jr., PROPERTY RIGHTS: THE GUARDIAN

OF EVERY OTHER RIGHT: A CONSTITUTIONAL

HISTORY OF PROPERTY RIGHTS 17 (1997) ............. 3, 4

Hamilton, Alexander, The Defense of the Funding

System, in THE PAPERS OF ALEXANDER HAMILTON

(Harold C. Syrett ed., 1973) ....................................4

Locke, John, SECOND TREATISE OF GOVERNMENT,

(Indianapolis: Hackett Pub. Co., 1980) ...................3

McKechnie, William Sharp, MAGNA CARTA: A

COMMENTARY ON THE GREAT CHARTER OF KING

JOHN, WITH AN HISTORICAL INTRODUCTION 330

(1914).................................................................... 5, 6

Webster, Noah, AN EXAMINATION INTO THE LEADING

PRINCIPLES OF THE FEDERAL CONSTITUTION (Oct.

10, 1787) ...................................................................4

Rules

Rule 37.3(a)..................................................................1

Sup. Ct. Rule 37.2(a) ...................................................1

Sup. Ct. Rule 37.6........................................................1

IDENTITY AND INTEREST OF AMICUS

The Center for Constitutional Jurisprudence1 is

the public interest law arm of the Claremont Institute, whose stated mission is to restore the principles

of the American founding to their rightful and preeminent authority in our national life. This includes the

protections for the natural right to own and use private property recognized in the Fifth Amendment.

The Center has previously appeared before this Court

as amicus curiae in several cases addressing the constitutionality of property restrictions, including

Arrigoni Enterprises, LLC v. Town of Durham, 136 S.

Ct. 1409 (2016) (cert. denied); Horne v. Dep’t of Agric.,

135 S. Ct. 2419 (2015); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013); Arkansas

Game & Fish Comm’n v. United States, 133 S. Ct. 511

(2012); Sackett v. Environmental Protection Agency,

566 U.S. 120 (2012); and Stop the Beach Renourishment v. Florida Department of Environmental Protection, 560 U.S. 702 (2010).

SUMMARY OF ARGUMENT

The state-litigation requirement of Williamson

County is contrary to the text and history of the Fifth

Amendment. The rights protected in the Bill of Rights

are not granted by governments, but are instead inalienable natural rights. One of the chief rights in this

1 Pursuant to this Court’s Rule 37.3(a), this amicus brief is filed

with the consent of the parties. Pursuant to Rule 37.6, Amicus

Curiae affirms that no counsel for any party authored this brief

in whole or in part and that no person or entity other than Amicus Curiae, its members, or its counsel made a monetary contribution to fund the preparation and submission of this brief.

group is the individual right to own and use private

property. The Founders sought to protect this inalienable right by imposing a condition on the exercise of

government power to take or interfere with property.

That condition was the payment of just compensation.

Thus, when state or local governments take property

without paying compensation, they have violated this

restriction on the exercise of their powers. A requirement that an individual litigate his rights in private

property, rights protected by the federal constitution,

in state court simply ignores the text and history of

the Constitution.

ARGUMENT

The Williamson County State Litigation Requirement Is Inconsistent With The Text And

History of the Takings Clause of the Fifth

Amendment

One of the core principles of the American Founding is that individual rights are not granted by majorities or governments, but are inalienable. 1 Stats 1

(Declaration of Independence ¶2). The Fifth Amendment seeks to capture a part of this principle in its

announcement that “private property [shall not] be

taken for public use, without just compensation.” U.S.

Const. Amend. V. The Takings Clause sets out both a

condition for the exercise of government power and

the remedy for the failure of that condition – Just

Compensation.2 First English Evangelical Lutheran

Church of Glendale v. Los Angeles, 482 U.S. 304, 314

(1987).

2 We save for another day the argument that “public use” is also

a condition set forth in the text of the Fifth Amendment.

The Williamson County state-litigation rule ignores the requirement of compensation as a condition

on the exercise of government power over the ownership and use of private property. Instead, the state

litigation requirement relegates “just compensation”

to the status of a mere remedy. In so doing, it ignores

the importance of ownership and use of private property in the scheme of inalienable natural rights that

form the foundation of the American concept of individual liberty.

Recognition of the vital nature of individual

rights in property predated the American Constitution. Blackstone noted that property is an “absolute

right, inherent in every Englishman . . . which consists of the free use, enjoyment, and disposal of all his

acquisitions, without any control or diminution, save

only by the laws of the land.” Blackstone, 1 COMMENTARIES ON THE LAWS OF ENGLAND 135 (Univ. of Chicago Press 1979) (1765).

The founding generation also relied on the writings of John Locke who noted that private property

was natural, inseparable from liberty in general and

actually preceded state’s political authority. John

Locke, SECOND TREATISE OF GOVERNMENT, (Indianapolis: Hackett Publishing Company, 1980) 111; James

W. Ely, Jr., PROPERTY RIGHTS: THE GUARDIAN OF

EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF

PROPERTY RIGHTS 17 (1997). Locke argued that government was formed to protect as “life, liberty, and estates” and Thomas Jefferson merely substituted “estates” with “pursuit of happiness” in the Declaration.

Willi Paul Adams, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE

STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 193

(1980).

Alexander Hamilton, building on these concepts,

noted the central role of property rights in the protection of all of our liberties. If property rights are eliminated, he argued, the people are stripped of their “security of liberty. Nothing is then safe, all our favorite

notions of national and constitutional rights vanish.”

Alexander Hamilton, The Defense of the Funding System, in 19 THE PAPERS OF ALEXANDER HAMILTON 47

(Harold C. Syrett ed., 1973). This idea was also endorsed by John Adams, “Property must be secured, or

liberty cannot exist.” John Adams, Discourses on

Davila, in 6 THE WORKS OF JOHN ADAMS 280 (Charles

Francis Adams ed., 1851).

Our nation’s Founders believed that all that

which liberty encompassed was described and protected by their property rights. Noah Webster explained in 1787: “Let the people have property and

they will have power that will forever be exerted to

prevent the restriction of the press, the abolition of

trial by jury, or the abridgment of many other privileges.” Noah Webster, AN EXAMINATION INTO THE

LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION

58-61 (Oct. 10, 1787) . From the beginnings of our

country, and always in the minds of the Founders,

these rights stood or fell together. Ely, supra, at 5.

This natural right to own and use property is not

absolute. But if the government wants to take the

property it must pay just compensation. This requirement is both a condition on the exercise of the power

and a remedy for its abuse. The concept of just com-

pensation is one imported by the Founders from English common law, and particularly the Magna Carta.

Horne v. U.S. Dept. Ag., 135 S.Ct. 2419, 2426 (2015).

This source of the just compensation rule helps to understand when compensation must be paid.

The barons who compelled King John to sign

Magna Carta brought forth several grievances, of importance here was the King’s abuse of the royal right

of “purveyance.” Purveyance was the right of the king

to “bu[y] up provisions and other necessaries ... at an

appraised valuation, in preference to all others, and

even without consent of the owner.” 1 William Blackstone, COMMENTARIES 277. The King, in 1215, acting

as the government, used his royal right of purveyance

in a manner much the same as the modern day eminent domain. See Little Rock Junction Ry. v. Woodruff, 49 Ark. 381 (1887) (“[Eminent domain] bears a

striking analogy to the king’s ancient prerogative of

purveyance, which was recognized and regulated by

the twenty-eighth section of magna carta.”). While legally permissible for the Kings of England to requisition supplies in exchange for prompt payment of a

market price, purveyance was prone to serious abuse.

William Sharp McKechnie, MAGNA CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN, WITH AN

HISTORICAL INTRODUCTION 330 (1914).

At the time Magna Carta was signed, there was

no dispute that the King was required to pay for the

provisions he took. Id. The issue then, as now, was

with the timing and type of payment, which was often

“indefinitely delayed or made not in coin but in exchequer tallies.” Id. Instead of paying cash, the king’s

officers would “pay” with exchequer tallies. These tallies were sticks used to memorialize royal debts owed

to particular subjects – essentially a Royal IOU.

Marks would be made along the length of the stick to

record the size of the debt, and then the stick would

be split lengthwise. Each half of the stick would contain a portion of all of the lines, and because of irregularities in the wood, the sticks were difficult to forge.

Each party would keep half of the stick; those halves

later could be matched up to prove their authenticity.

But exchequer tallies were not necessarily negotiable in the same way as money because of the difficulty in proving to potential transferees that one half

of a stick actually conformed to another half held by

the Exchequer. So, in practice, Exchequer tallies’ primary use was to offset the creditor’s future taxes. See

Christine Desan, MAKING MONEY: COIN, CURRENCY,

AND THE COMING OF CAPITALISM 175-185 (2014).

Magna Carta provided several distinct clauses

that addressed the king’s abuse of his right to purveyance which are relevant to the discussion of the Fifth

Amendment’s historical background the most vital of

which is Clause 28. Clause 28 stated, “No constable

or other bailiff of ours shall take corn or other provisions from any one without immediately tendering

money therfor, unless he can have postponement

thereof by permission of the seller.” McKechnie at

329.

The Takings Clause of the Fifth Amendment imported these protections into the federal Constitution.

As Justice Story noted, the Takings Clause is “an affirmance of a great doctrine established by the com-

mon law for the protection of private property.” 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 661 (1833) (emphasis added).

In a sense, the Williamson County state-litigation

requirement is akin to the old tally sticks from the

Middle Ages in England. In much of the same way

that tally sticks afforded no immediately tangible

value to the individual whose property was taken (except a mere promise to pay a debt in the future), the

state-litigation requirement offers a party with a takings claim a “chose in action” rather than immediate

compensation.

This view that payment of compensation was a

condition on the exercise of government’s power to

take property is nothing new. Justice Brennan, in his

dissenting opinion in San Diego Gas & Elec. Co. v.

City of San Diego, 450 U.S. 621, 654 (1981), noted “[a]s

soon as private property has been taken, whether

through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner

has already suffered a constitutional violation.” Prior

to the decision in Williamson County, this Court routinely recognized that payment of just compensation

was a condition on the exercise of the power of government to take private property. See Danforth v. United

States, 308 U.S. 271, 283-84 (1939) (“compensation is

due at the time of taking....”); Seaboard Air Line Ry.

Co. v. U.S., 261 U.S. 299, 306 (1923) (“[I]t was the duty

of the government to make just compensation as of the

time when the owners were deprived of their property.” (Citation omitted)); U.S. v. Dickinson, 331 U.S.

745, 751 (1947) (“[T]he land was taken when it was

taken and an obligation to pay for it then arose.”); U.S.

v. Dow, 357 U.S. 17, 20 (1958) (“For it is undisputed

that ‘(since) compensation is due at the time of taking,

the owner at that time ... receives the payment.”).

The Cherokee Nation decision is not to the contrary. There, Congress exercised its power of eminent

domain and created a commission for the purpose of

calculating the compensation due. Cherokee Nation v.

Southern Kan. Ry. Co., 135 U.S. 641 (1890). Indeed,

the litigation over the compensation occurred before

the property was taken. Id. Importantly, Congress

recognized that actions taken pursuant to the statute

required the payment of compensation. The state-litigation requirement of Williamson County, by contrast, involves state and local entities that claim no

taking has occurred. Compensation is not the primary

issue in the state litigation. Instead, the issue is

whether the federally protected right has been violated. San Remo Hotel, L.P. v. City & County of San

Francisco, 545 U.S. 323, 345 (2005). There is simply

no basis for requiring litigation of federal constitutional rights in state courts.

The Williamson County state-litigation rule ignores the text and history of the constitutionally protected rights in private property. See, e.g., San Remo

Hotel, 545 U.S. at 351 (Rehnquist, C.J. joined by

O’Connor, Kennedy, and Thomas, JJ., concurring in

judgment) (“Williamson County’s state-litigation rule

has created some real anomalies, justifying our revisiting the issue ... [the rule] all but guarantees that

claimants will be unable to utilize the federal courts

to enforce the Fifth Amendment’s just compensation

guarantee.”); Stop the Beach Renouirshent, Inc. v. Fla.

Dep’t of Envtl. Prot., 560 U.S. 702, 742 (2010) (Kennedy, J., concurring in part and concurring in the

judgment) (“Until Williamson County is reconsidered,

litigants will have to press most of their judicial takings claims before state courts....”); Arrigoni Enterprises, LLC v. Town of Durham, 136 S. Ct. 1409 (2016)

(Thomas, J., dissenting from denial of cert., joined by

Kennedy, J.).

CONCLUSION

The Court should return to the original understanding of the Takings Clause. The compensation requirement is a condition on the power of the government to take private property. Requiring litigation in

state court over this federally protected constitutional

right serves no purpose.

DATED: June, 2018

Respectfully submitted,