September 8, 2010
Further Thoughts on the Judicial Takings Standard
As I mentioned in a prior post, I am working on an article on Judicial Takings after Stop the Beach. In that prior post, I discussed the private-private v. private-public distinction and its significance for judicial and regulatory takings. In this post, I will make two further arguments about the judicial takings standard. First, there was no need for the Court to address the judicial takings standard in Stop the Beach. Second, there is no need for a unique judicial takings standard, and judicial takings cases can be analyzed under the Court's current takings standards. As with the prior post, what follows is largely text from my draft article, with footnotes removed. I will probably post the article on SSRN sometime in the next week or so.
The Supreme Court Did Not Need to Resolve the Judicial Takings Standard in Stop the Beach
The three opinions issued by the justices in Stop the Beach contain a significant amount of discussion of whether the Court needed to reach the issue of the substantive takings standard applicable to judicial takings cases. Justice Scalia’s plurality opinion argued that the Court needed to reach this issue; Justices Kennedy and Breyer each argued in concurrence that the Court did not need to reach this issue.
On the surface, this debate might seem to be of largely academic interest, because none of the opinions issued in Stop the Beach commanded a majority of the Court. If Justice Scalia’s opinion had commanded a majority, then whether the Court needed to reach the issue of the substantive standard might have mattered a great deal – if the Court did not need to reach this issue, then Justice Scalia’s discussion of the standard might be discounted as mere dicta. Because Justice Scalia did not command a majority for his position, his discussion of the substantive judicial takings standard is not binding precedent, dicta or not. On further consideration, however, resolving the issue of whether the Supreme Court needed to reach the substantive standard will be critical to lower federal courts deciding judicial takings challenges, because those courts themselves will have to decide whether and when they need to address the substantive judicial takings standard.
Justice Scalia’s argument for the proposition that the Court needed to resolve the substantive standard is straightforward: the Court cannot decide whether there has been a judicial taking until it decides what constitutes a judicial taking. Thus, in critiquing Justice Breyer’s position that the Court need not reach the issue, Justice Scalia wrote: “Justice Breyer cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of.” Justice Breyer responded by asserting that “courts frequently find it possible to resolve cases – even those raising constitutional questions – without specifying the precise standard under which a party wins or loses.” Justice Breyer also noted the consistent theme in the Court’s prior decisions of the importance of deciding only the narrow issue presented by a case. For his part, Justice Kennedy also argued that it was a bad idea for the Court to reach out and decide issues that it need not reach before those issues had been considered in the lower courts and by commentators.
Justices Breyer and Kennedy have the better of this argument. Justice Scalia, of course, was correct that a court needs to have at least some idea of the applicable substantive standard before it resolves a party’s claim. But Justice Breyer was also correct that in some cases a court need not resolve the specific standard before it rejects a claim. Consider a common law court deciding for the first time whether to recognize a doctrine of felony murder in a case where it turns out that the victim is still alive. The court would be entirely correct to decide the case without resolving the specific felony murder standard, because on any conceivable analysis, a murder prosecution requires the victim to be dead. Although the law on judicial takings is still wide open, everyone would agree that to state a judicial takings claim a property owner would have to demonstrate that a state court judicial action was a departure from, or inconsistent with, the prior property law in that jurisdiction – if a state court holding is consistent with the state’s prior property law, then nothing has been taken from the property owner. (See Lucas). Alternatively, this same point can be made in terms of a comparison to takings by the legislature or the executive. Under no theory of judicial takings could a judicial action be a taking if it would not be a taking for the legislature or the executive to do the same thing. A legislative or executive action is not a taking if it is consistent with the state’s background principles of property law. (again, see Lucas). For a takings claim to be made, the property owner must establish that something was taken. In Stop the Beach, the Court unanimously concluded that the Florida Supreme Court’s holding was consistent with the prior Florida law on beachfront property. Under no conceivable standard, then, could the Florida Supreme Court’s holding be a judicial taking, and the United States Supreme Court therefore did not need to reach the specific substantive standard for judicial takings to reject the Petitioner’s claims.
Justices Kennedy and Breyer were also correct to argue that it is unwise to reach an issue if it is unnecessary to do so. An overarching theme of this Article is that the issues presented by judicial takings are far more complex than the Court’s opinions in Stop the Beach (including those by Justices Kennedy and Breyer) might suggest. Had the Court finally resolved any of these issues in Stop the Beach without recognizing their complexity, it might have created more problems than it solved.
Lower federal courts considering judicial takings claims would therefore be wise to resolve only the narrow issues presented by any particular case. Under any conceivable theory of judicial takings, a judicial taking can only occur if the challenged state court holding is inconsistent with the state’s prior property law. If a court concludes that the challenged state court holding is consistent with the prior law in that state, then the court should reject the judicial takings claim without reaching the issue of the specific judicial takings standard.
There is no Need for a Unique Judicial Takings Standard
The logic of judicial takings rests on two basic points. First, the judiciary is a state actor, and is subject to the constitution. Second, the judiciary is capable of taking property. The first point seems incontrovertible, and the examples of judicially mandated private-public transfers discussed in my prior post demonstrate that the second is true as well. As Justice Scalia argued in his Stop the Beach plurality, “the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.”
On this logic, there is no need for a unique test for judicial takings. A judicial action should be considered a taking under the Just Compensation Clause if the equivalent action would be a taking if it was performed by the legislature or the executive.
The prototypical judicial takings fact pattern involves a change in property law by a state judiciary. Although this fact pattern may appear to be superficially different from the standard regulatory takings case, it in fact fits very well into the structure of the Court’s existing regulatory takings jurisprudence. The Court has considered takings challenges to legislative changes to property law that are similar to changes that might be made by the judiciary. In Hodel v. Irving, for example, the Court held that a legislative change to rules relating to the transfer of property at death was an unconstitutional taking. It is important to note (as discussed further in my prior post) that Hodel involved a private-public transfer – the change in law resulted in the property interests in question escheating to the state at death, rather than transferring to another private person. For present purposes, it is sufficient to recognize that it is easy to imagine a state court making the type of change in law that the legislature made in Hodel. It is similarly easy to imagine state court decisions making other types of changes to the law that would resemble other branches of the Court’s regulatory takings caselaw. The private-public transfer scenarios discussed in the prior post that involved judicial alterations of use rights in property that could easily be analyzed under cases such as Penn Central and Lucas, and of judicial requirements of public access to private property that are similar to those at issue in cases like Kaiser Aetna and Nollan.
There can be little question that a legislative or executive action that simply declared that previously-recognized property rights no longer existed would be a regulatory taking under the Court’s existing takings jurisprudence. The dominant theme of the Court’s most recent regulatory takings cases is that a government action is a taking if it is the equivalent of an exercise of eminent domain, and this principle of equivalence prominently featured in Justice Scalia’s Stop the Beach plurality opinion. The declaration that a property right no longer exists is certainly the equivalent of the taking of that property right through eminent domain. Prior to each government action, owners held private property rights; after each, those rights were held by the public. Thus, as Justice Scalia argued in Stop the Beach, “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” In his opinion, Justice Scalia placed his emphasis on “or a court.” Here, I would place the emphasis on “a legislature.” The branches of government are equivalent in this context, and there is no need to create a unique standard for judicial takings.
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