WASHINGTON (CN) – A Pennsylvania town whose grave-hunting law brought it all the way to the U.S. Supreme Court urged the justices Wednesday to shut the door on one angry local who tried to bypass state procedures with a federal takings suit.
The local here, Rose Mary Knick, is demanding damages after an official for Scott Township entered her property without a warrant in April 2013 and identified certain stones on her land as grave markers.
Under the township’s cemetery ordinances, officials are permitted to access any resident’s property to determine the existence and location of a cemetery, and property owners must keep their private cemeteries open to the public during the day. Knick for her part disputes that the stones on her property signified graves.
On the road to the Supreme Court, Scott Township’s law permitting such intrusions drew puzzlement from the Third Circuit. U.S. Circuit Judge D. Brooks Smith called it “extraordinary and constitutionally suspect” in a 2017 opinion, but ultimately the federal appeals court found that Knick failed to exhaust inverse-condemnation procedures at the state level.
Urging the Supreme Court to affirm, the town’s attorney argued this morning that the court should not supersede lawmakers in taking action here.
“Congress could fix that,” said Teresa Ficken Sachs, an attorney with the Philadelphia firm Marshall Dennehey. “Congress could enact Section 1331(a) – or whatever – and give state takings claimants, just looking for compensation, a route straight to federal court. But Congress has not done that. And this court should not do that by modifying or creating a whole different interpretation of federal court jurisdiction.”
Justice Brett Kavanaugh questioned whether the township has an interest in keeping Knick’s case local.
“Do the municipalities get a home court advantage in state court as compared to federal court, in your judgment?” Kavanaugh asked.
Sachs insisted state courts are simply better positioned to hear challenges coming out of local regulations.
“I think doctrinally, I think they’re the best places to look at all these issues of state law that involve balancing a lot of local interests,” Sachs said. “They have an interest in shaping state property law.”
Pacific Legal Foundation attorney David Breemer argued for Knick meanwhile that the court should step in here to align takings cases with other constitutional challenges.
“I don’t think the Fifth Amendment varies depending on what court you’re in or what you’re defending,” Breemer said. “And I think the just compensation clause has to be interpreted in the same way in both of those circumstances. And there’s no other basis for saying, well, state courts should have it first.”
Justice Stephen Breyer questioned Breemer about how this interpretation would burden governments, saying it would require municipalities to know ahead of time who it should and who it should not compensate.
“Look, the reason I’m asking this, it should be obvious, but there is no practical way that I can think of to implement your rule because you have to go ask somebody for money,” Breyer said. “And they’re going to say yes or no, and they’re going to say yes or no in a tough case depending upon what papers you show them. That’s called evidence. And then what the federal court will be doing will be just what they’re doing now.”
Breemer replied that governments should be prepared, when they enact a regulation, to know how that regulation will affect people’s properties.
“If you do not know what to do, then you go ahead and you enact the ordinance,” Breemer said. “And a property owner must bear the burden of bringing an expensive lawsuit under Section 1983 or otherwise to prove that it is a taking, if it’s ripe.”
Solicitor General Noel Francisco, who argued for the federal government, voiced trouble with Knicks’ proposal as well, saying it could cause significant problems for federal officials.
The Supreme Court initially heard oral argument on this case on Oct. 3, 2018, before Justice Brett Kavanaugh took the bench, only to ask the parties for additional briefing a month later.