June 21, 2019
By Timothy Sandefur
Today’s Supreme
Court decision in Knick
v. Township of Scott may sound like a lot of legalese
at first, but it marks a vital step toward fulfilling the Constitution’s
promise to protect the rights of property owners nationwide.
That’s because the
Court overruled a bizarre 1985 case called Williamson
County v. Hamilton Bank, which had previously blocked
property owners from getting just compensation when the government took away
their property. The Williamson County decision
prohibited landowners from suing in federal court when state or local
governments confiscated their land. Instead, they were forced to go to state
court—not a hopeful prospect in states like California where state judiciaries
routinely disregard the importance of private property rights.
Worse, the Williamson County rule created a bizarre
paradox: Although the Court claimed that property owners could ask federal
judges to protect their rights in the event that state courts did not, the
opposite actually happened. If a property owner went to state court to seek
compensation for the deprivation of his or her rights, and lost, federal courts
would later use that state court ruling as a reason to also deny the owner compensation. As Chief Justice Roberts observes
in today’s decision, the Williamson
County rule crated “a Catch-22” whereby a property owner “cannot go to
federal court without going to state court first; but if he goes to state court
and loses, his claim will be barred in federal court.”
That made no
sense, and the Supreme Court today undid the error. The problem with the Williamson County case was that it
presumed that a property owner’s right to just compensation isn’t violated
until he or she seeks compensation and is denied it. But we don’t treat any
other right that way. We don’t say a person’s free-speech rights have not been
violated until after the person
challenges censorship in court and loses. We say her free-speech rights are
violated when she’s censored, and that means she can sue. We don’t say a
person’s right to freedom of religion is only violated after he sues the government for prohibiting him from praying and
loses that lawsuit—we say that his rights are violated when the government
prohibits him from praying, and that’s
why he can sue. But under the theory of Williamson
County, your property rights aren’t violated when the government takes your
land without paying for it; your rights are only violated after you sue and
(perhaps years later) lose your lawsuit.
That illogical
notion had very serious real-world consequences for property owners in the 35
years that Williamson County was on
the books. For example, when the owners of San Francisco’s San Remo hotel
wanted to convert their hotel from long-term residential use to night-by-night
tourist use, the city forced them to get a permit—and, as is typical of
California cities, it forced them to pay hundreds of thousands of dollars for
that permit. (As one California judge put it, this is like taking away the
landowner’s rights and then charging the landowner to get them back.) The
owners filed a lawsuit, but they weren’t allowed to go to federal court; they
had to go to state court, where—thanks to California’s hostility to private
property—they were denied just compensation. When the owners then filed a
federal lawsuit, they were again denied compensation…because the state court
had already ruled against them. This scenario played out so often that it came
to be known as “the Williamson County trap.”
Not only was this
a lawyer-trick to avoid respecting the rights of property owners, but it
contradicted the very purpose of our federalist system, which is to private “a
double security” to individual rights. Williamson
County transformed what should be the protections of federalism into a
weapon against people. Today’s decision puts a stop to that by declaring that a
property owner may bring a federal lawsuit “as soon as a government takes his
property for public use without paying for it.”
Justices Kagan,
Ginsburg, Breyer, and Sotomayor dissented, arguing that the property-rights
protections in the Fifth Amendment are “unique” because the Amendment “does not
prohibit takings,” but “permits them provided the government gives just
compensation.” And since the owner isn’t really denied compensation until he
loses his lawsuit, the Williamson County rule
makes sense. Worse, they contend, today’s decision will hamper government
programs that result in depriving people of their property. “Now, when a
government undertakes land-use regulation,” writes Justice Kagan, “the
responsible employees will almost inescapably become constitutional
malefactors.”
But as Justice
Kagan herself says, perhaps she should take the hint. Local governments run
afoul of the takings clause precisely because they so routinely deprive people
of their constitutional rights. To allow this to continue simply because we’ve
become accustomed to this abusive circumstance, or because it’s more convenient
for lawmakers than compensating property owners would be, is irrational.
Justice Thomas, in fact, has a fine answer to that in his short concurring
opinion: The taking of private property is unlawful “unless the government
‘pays just compensation before or at the time of its taking.’ If this
requirement makes some regulatory programs ‘unworkable in practice,’ so be
it—our role is to enforce the Takings Clause as written.” As for the notion
that a taking doesn’t happen until a person seeks compensation in court and is
denied it, that is precisely the fallacy at work in Williamson County. As Chief Justice Roberts puts it: “A later
payment of compensation may remedy the constitutional violation that occurred
at the time of the taking, but that does not mean the violation never took
place. The violation is the only reason compensation was owed in the first
place. A bank robber might give the loot back, but he still robbed the bank.”
To confuse the state-court remedy for a taking with the taking itself places an
anomalous and often insurmountable burden on the rights of property owners.
Today’s decision
is an immense victory for property owners nationwide—which is precisely why
defenders of ever-more intrusive government are so sensitive about it.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.
Learn about the Goldwater Institute’s work on property rights here.
