Claims for unconstitutional takings of property against state actors should not be treated differently than other fundamental rights claims and relegated to second‐​class status. Thirty years ago, in Williamson County Regional Planning Commission v. Hamilton Bank, the U.S. Supreme Court pronounced a new rule that a property owner must first sue in state court to ripen a federal takings claim. As illustrated by Knick v. Township of Scott, Pennsylvania, in which Cato has filed a brief supporting the property owner’s petition to the Court—joined by the NFIB Small Business Legal Center, Southeastern Legal Foundation, and Beacon Center—this radical departure from historic practice has effectively shut property owners out of federal courts without any firm doctrinal justification.


Rose Mary Knick owns 90 acres in Scott Township in western Pennsylvania, a state known for its “backyard burials.” In 2012 a new ordinance required all “cemeteries” be open and accessible to the public during daylight hours. It also allowed government officials to enter private property to look for violations. In 2013, township officials entered Ms. Knick’s property without her permission and—after finding old stone markers on her property—cited her for violating the cemetery code. Fines are $300–600 per infraction per day. Ms. Knick took the township to court; the state court dismissed her claims as improperly “postured” because the township had not yet pursued civil enforcement to collect the fines. When Ms. Knick then turned to federal court, the district court dismissed her constitutional claims, citing Williamson County’s state‐​litigation requirement. The U.S. Court of Appeals for the Third Circuit affirmed this Kafkaesque process.


The failed attempt to gain meaningful review of a facially unconstitutional ordinance showcases the unique challenges faced by property owners asserting takings claims. If filing in state court, the best they can hope for is review from a judge who may be friendly to the government defendants responsible for the taking. And when pursuing that state‐​court remedy, property owners face the possibility of “removal” by defendants to federal court—where that court then dismisses the claims precisely because the property owner failed to fully pursue state litigation! Adding insult to injury, if a property owner complies with Williamson County’s requirement by seeking redress in state court, but receives an unfavorable decision, a combination of procedural barriers prevents federal courts from revisiting the claims.


The Fourteenth Amendment, which explicitly protects life, liberty, and property, cannot tolerate this state of affairs. And there is no reason to believe that this anomalous treatment of takings claims is what the Reconstruction Congress had in mind when, in the face of pervasive state abuse, it enacted the federal statute (42 U.S. § 1983) that guarantees access to federal forums to vindicate federal constitutional rights. As an unsound and impractical rule, Williamson County’s state‐​litigation requirement has earned a burial of its own in the graveyard of discarded precedent. 


The Supreme Court should take this case.