Thursday, October 18, 2012

More on Categorical Rules in Takings Law

Earlier this week, Dave Owen authored a thought-provoking post on this blog suggesting that recent activity surrounding the Takings Clause at the U.S. Supreme Court may reflect the Justices’ discomfort with categorical rules.  I thought I might add a slightly different and, sadly, far less optimistic perspective.

Professor Owen's post honed in on one of the more significant tensions in takings jurisprudence: “the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.”  He noted the traditional perception that “the anti-regulatory agenda and the clarity agenda” often are aligned, yet suggests that the Supreme Court’s recent steps into the takings morass might not necessarily fit within that perception.

The Roberts Court has decided one takings case (Stop the Beach Renourishment v. Florida Department of Environmental Protection) and two others are pending this term (Arkansas Game & Fish Commission v. United States and Koontz v. St. Johns River Watershed Management District).  It is at least arguable that an anti-regulatory sentiment and categorical rules figure prominently in all three.

It is true that Justice Scalia’s plurality opinion in Stop the Beach rejected a categorical rule against the theory of “judicial takings;” however, in lieu thereof, the judicial takings test set forth in that opinion—that a judicial decision declaring that an “established” property right “no longer exists” implicates takings protections—could itself be considered a categorical rule.  Justice Scalia’s test could be interpreted to extend the reach of judicial takings to include every judicial change to any previously declared property principle.  The per se quality of the plurality’s standard in Stop the Beach—in the words of Justice Scalia, its “definiteness”—is reminiscent of the Court’s prior holdings that regulations that result in physical invasions or total economic wipeouts categorically amount to takings.  Indeed, it is the bright-line nature of the Stop the Beach plurality’s test that has led several takings scholars to predict that Justice Scalia will have grave difficulty in garnering a fifth vote for his vision of a judicial takings doctrine in the future. 

In an interesting side note, as reported here, Justice Stevens recently explained his recusal in Stop the Beach in a speech at Chicago-Kent College of Law.  Though he stepped aside given that his wife owned waterfront property in Florida, Justice Stevens suggested that, had he participated in the case, he first would have “tried to persuade [his] colleagues to dismiss the case as having been improvidently granted review, because there was no justification for using it as a vehicle for discussing the subject of judicial takings.”  He went on to say that he would have refused to join Justice Scalia’s “advisory opinion” because: (1) if any taking occurred, it was not committed by a court; (2) federal review of state court decisions altering existing rules is grounded in the Due Process Clause, not the Takings Clause; and (3) he was “sure Justice Brandeis would not have joined" Justice Scalia’s opinion.

With respect to Arkansas Game & Fish Commission, there arguably is precedent suggesting the categorical imperative that temporary flooding resulting from the government’s operation of a dam cannot serve as the basis for a takings claim.  Yet the claimants advocate for a different categorical rule, one suggesting that temporary permanent invasions of land amount to per se takings.  When the cert petition was granted, Richard Frank (U.C. Davis) predicted on the Legal Planet blog that “the Court will likely wind up ruling in favor of Arkansas and against the federal government, finding that even non-permanent physical invasions of property are compensable under the Fifth Amendment.”  And as I noted here, commentators on both sides of the takings divide echoed this position after the oral argument earlier this month (though I, admittedly, was not as convinced that the federal government got the short end of the stick at oral argument).

As for Koontz, the Court is slated to review two issues.  On the first, a considerable majority of the many state and lower federal courts that have addressed whether monetary exactions are subject to the strictures of the Nollan and Dolan tests have answered in the negative.  If this is considered a categorical rule, its converse—that monetary exactions are subject to Nollan and Dolan—would seem to be, as well. 

In those jurisdictions where monetary exactions are not subjected to Nollan and Dolan scrutiny, those exactions are regularly subjected to the ad hoc analysis set forth in Penn Central.  But the second issue in Koontz is different in this regard: the Florida Supreme Court arguably held that exactions that are proposed but later refused or withdrawn can never be challenged as takings under any test.  The U.S. Supreme Court’s abandoning this categorical rule seemingly would depart from the traditional perception that Professor Owen so readily identified, in the sense that eschewing the categorical rule would promote the anti-regulatory agenda at the expense of clarity.

-Tim Mulvaney

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