Supreme Court Case About Gravesites Raises Issues of Equal Protection of Property

David Breemer (L) of the Pacific Legal Foundation and Rose Mary Knick on the steps of the Supreme Court building in Washington on Oct. 3, 2018. Pacific Legal Foundation

A township in rural Pennsylvania claimed a forgotten cemetery existed on a woman’s property and, on that basis, demanded she open her property to the public. She contends this order violates her property rights and sued, seeking the opportunity to have relatively speedy redress through access to federal courts.

The Trump administration and Rose Knick, the Pennsylvania property owner, urged the Supreme Court on Jan. 16 to overturn a 34-year-old legal precedent that forces property owners to seek legal redress in state courts after their property is taken, before filing suit in federal courts.

The case, known as Knick v. Township of Scott, Pennsylvania, is on appeal from the Philadelphia-based U.S. Court of Appeals for the Third Circuit. This is the second time that Knick has appeared before the high court seeking vindication of her rights.

The Trump administration supports Knick and sent U.S. Solicitor General Noel Francisco in person to represent it during oral arguments. Teresa Ficken Sachs represented Scott Township, Pennsylvania, where Knick resides.

The case was previously argued Oct. 3, before Associate Justice Brett Kavanaugh was confirmed to the court and when there were only eight justices, making a 4-4 split a distinct possibility. Kavanaugh was sworn in as a justice Oct. 6. The court restored the case to its calendar on Nov. 2 and, on Nov. 28, ordered it be re-argued. Re-argument allows all nine justices to weigh in on this important property-rights case.

Suspected Gravesites

Knick ended up in court because authorities in Scott Township, in the eastern part of the Keystone State, enacted an unusual law defining cemeteries as including suspected gravesites on private property. The legislation forces private property owners whose land is claimed to contain a private cemetery to open the area to the public.

In 2013, the local government claimed some stones it found on Knick’s 90-acre farm were gravestones and declared her property a “cemetery.” She was ordered to open her property to the public or face fines of $600 per day.

Searches of hundreds of years of property records located no evidence of gravesites on the property, according to Pacific Legal Foundation, which is representing her.

Knick sued, claiming a violation of her Fifth Amendment rights and asserting that her property had been unconstitutionally taken by the township. A federal court refused her claim, citing Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a Supreme Court ruling from 1985.

That decision forces property owners to sue in state courts before filing in federal courts, and, according to her lawyers, fails to place property rights on an equal footing with other rights such as free speech and due process.

Solicitor General’s Case

Solicitor General Francisco told the court that the administration doesn’t accept all of the arguments advanced by Knick, but does reject the conclusion of the Williamson County ruling that “a Section 1983 action [under the Civil Rights Act of 1871] is not available to redress the deprivation of the right to just compensation.”

That statute was enacted during post-Civil War Reconstruction, a period when trust of state governments and their courts was at a low ebb, leading some of the justices to ask if federal courts today were somehow better than state courts.

Francisco dodged the question. “We think it’s [i.e. the statute] available to redress all constitutional rights, including that one,” he said.

“And the right to just compensation is one that vests the moment the property is taken. That’s why a property owner is entitled to interest, dating back to the moment of a taking.”

Under questioning by Justice Elena Kagan, Francisco said, “there’s simply nothing in the Fifth Amendment that says you have to go to state court before you go to federal court.”

Kagan asked Francisco: “Is there any other area in our law generally where somebody can go to court under 1983, under anything else, and say I’ve been deprived of a constitutional right before a constitutional violation has occurred?”

Francisco replied that such a thing can be done under the Tucker Act, a federal statute in which the United States waives its sovereign immunity in certain kinds of lawsuits.

Plaintiff’s Attorney’s Explanation

On the courthouse steps following the oral argument, Knick’s lawyer, J. David Breemer, senior attorney with the Pacific Legal Foundation, explained his understanding of the case, in an exclusive interview with The Epoch Times.

“The primary issue is when the government takes your private property, invades it for instance, as in this case, for public access, a trail, do you have a right to go into court and ask for just compensation at the time it invades you or do you have to go through a series of procedural hurdles that are unique to only property owners and which treat them as different, second-class constitutional citizens?

“Normally, when the government injures you, if you have a constitutional right that’s harmed, you can immediately go to a federal court to protect your right, but you can’t in the property context. You have to go through the state-law process and that harms you because it delays your relief, it’s expensive, and you oftentimes lose by attrition.

“Our constitutional rights are only as good as the court’s willingness to protect them. So if you, as a property owner, can’t get a court to hear your claim that your property’s been taken, your right is diminished. It’s a paper right. It’s what’s happened in this case, that property owners can’t go to a federal court and they often can’t get a speedy hearing in a state court so they often can’t protect and vindicate their Fifth Amendment rights. That’s what the case is about.

“What the court said in Williamson County in 1985, which is at issue here, is that when the government invades your property, we cannot consider it to be an uncompensated invasion until you go through a state court process … but they said it’s part of the Constitution.

“But that conflicts with what the court has said since 1884, which is if they invade your property and don’t pay you right then, is when you have a constitutional right of violation to claim. So this case is about whether we should go back to the traditional and simpler rule that works, that the time of the taking, the time of the invasion is the time when you can go to the court and ask for compensation, rather than having to go through a secondary, two-year, three-year-long process.”

Only eight of the court’s nine justices attended the oral arguments.

Justice Ruth Bader Ginsburg, 85, is recovering at home after surgeons excised two cancerous growths from a lung on Dec. 21. It was her second consecutive week of not attending court arguments. Nonetheless, Ginsburg, who has access to the briefs and transcripts of arguments, is expected to take part in the case.