Monday, October 24, 2005
[UPDATE: The substance of this post has been included as footnote 46 if this essay.]
This is the third in a series of posts on my research into archival information about the Court's decisionmaking process in leading takings cases. My first two posts discussed the Court's conference notes on Hawaii Housing Authority v. Midkiff and Berman v. Parker, two public use cases central to the Court's recent decision in Kelo v. New London. If you haven't read those posts, please note the caveats in my first post on Midkiff, which also apply to this post.
This post moves further back in time to Miller v. Schoene, 276 U.S. 272 (1928). Schoene involved the destruction of plaintiffs' cedar trees under Virginia's Cedar Rust Act. As the Court explained,
[C]edar rust is an infectious plant disease in the form of a fungoid organism which is destructive of the fruit and foliage of the apple, but without effect on the value of the cedar. Its life cycle has two phases which are passed alternately as a growth on red cedar and on apple trees.
Plaintiffs "challenged the constitutionality of the statute under the due process clause of the Fourteenth Amendment." I should note at this point that the Court's decision last term in Lingle v. Chevron calls into question the continued relevance of early substantive due process cases that on the surface resemble modern regulatory takings cases. (I discuss this further in an essay available on SSRN). This said, Schoene has been of interest in the regulatory takings context because the Court allowed the state to destroy plaintiffs' property without compensation beyond the costs of removal of the cedar trees.
Schoene is relatively easy to explain even under modern regulatory takings doctrine -- cedar plants infected with cedar rust certainly seem to qualify as a common-law nuisance, and mitigation of a common-law nuisance per se is not a taking. The case, however, presents an interesting contrast with Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). There, Justice Holmes' famous opinion of the Court held that a law that prevented the mining of coal in a manner that might cause subsidence under a dwelling amounted to a taking of the plaintiff coal company's property. As I'll explain further in a future post, I've finally been convinced that Mahon, like Schoene, was a substantive due process case, in that the Court was deciding whether the government act was a taking under the 14th Amendment's Due Process Clause rather than the 5th Amendment's Just Compensation Clause. I still disagree with many of the conclusions that scholars such as Bill Treanor, Robert Brauneis, and Brad Karkkainen draw from this fact, but, as I noted above, Lingle may have made this whole discussion less relevant to contemporary takings doctrine.
In any event, Holmes' famously cryptic opinion in Mahon has had a tremendous impact on modern regulatory takings law. In trying to figure out exactly what Holmes meant in Mahon, some people have looked to Schoene and noted that Holmes did not dissent in that case. Holmes' willingness to join the Court's opinion in Schoene is therefore of at least historical interest.
Conference notes do not exist from this era, but some evidence of each justice's views is preserved on the slips of paper used to circulate draft opinions to members of the Court. Most of these slips simply tell the author of the draft whether the replying justice will join in the proposed opinion. In Schoene, various justices wrote "yes", "I agree", or "I acquiesce" (the last from Justice Butler). Sometimes, however, a justice would write a substantive comment to the author of the opinion. Justice Holmes wrote a short note to Justice Stone, the author of the opinion in Schoene:
Good [illeg; presumably something like "I agree"]
It has been argued that destruction is not a taking. Answered in U.S. v. Welch, 267 U.S. 333, 339 in which I cite a Mass case where I [four more words that are hard to read; first appears to be "discussed" or "dismissed"; last appears to be "notion" or "motion"]
Welch involved a the destruction of a right-of-way easement by flooding caused by a government dam. At page 339 of the U.S. Reports, Holmes wrote:
A private right of way is an easement and is land. We perceive no reason why it should not be held to be acquired by the United States as an incident to the fee for which it admits that it must pay. But if it were only destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end.
As support for this proposition, Holmes cites the "Mass case" referenced in his note to Justice Stone, Miller v. Horton, 152 Mass. 540 (1891). Miller v. Horton involved the destruction of plaintiff's horse, which was suspected of having a disease called glanders. It turned out that the horse was not infected in fact infected, and the plaintiff claimed compensation. Holmes, writing the opinion for the Massachusetts Supreme Court, recognized throughout his discussion that an infected horse was a nuisance, and could be destroyed without compensation to the owner. But what about a horse that was destroyed on the good faith belief that it was infected? Holmes wrote:
We cannot admit that the legislature has an unlimited right to destroy property without compensation, on the ground that destruction is not an appropriation to public use within article 10 of the declaration of rights. When a healthy horse is killed by a public officer, acting under a general statute, for fear that it should spread disease, the horse certainly would seem to be taken for public use as truly as if it were seized to drag an artillery wagon. The public equally appropriates it, whatever they do with it afterwards. Certainly, the legislature could not declare all cattle to be nuisances, and order them to be killed without compensation. [Citation omitted]. As we have said, it only declares certain diseased animals to be infected.
152 Mass. at 547-48. Holmes therefore concluded that the government had failed to establish a justification for their destruction of plaintiff's property.
Reading Schoene and Miller v. Horton together, it seems apparent that Holmes thought that the destruction of an actually diseased animal or plant was a taking of property but that no compensation was required because the government was acting to abate a nuisance. Where the property was not in fact a nuisance, compensation was due even if the government acted reasonably and in good faith.
Holmes therefore held a narrow view of the nuisance exception that is much closer to that articulated by Justice Scalia in the opinion of the Court in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), than that articulated by Justice Blackmun in dissent in that case. As I have argued before, Holmes also did not believe that any exercise of the police power per se was not a taking.
And what of Mahon? On one level, it can be seen as consistent with Holmes' non-deferential approach to exercises of the police power in the takings context. It is interesting, though, that Holmes did not reference Mahon in his note to Justice Stone, leaving open the possibility that Holmes saw Mahon and Schoene as presenting distinct issues. If you have any thoughts on the relationship between Mahon and Schoene, please leave a comment.
[Comments are open, but I have to review them before they post, so there might be some delay]