Friday, June 18, 2010
From Steve Eagle (George Mason):
Based on existing Supreme Court jurisprudence and the oral argument, until a few weeks ago I was predicting that the Court would find no taking in Stop the Beach Renourishment and then stop. Having held unanimously that there was no taking, the Court didn’t stop.
I agree in principle with Justice Scalia’s assertion that “There is no textual justification for saying that the existence of the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation [Slip Op. at 8.] But here it is simply unnecessary to discuss the issue. The Takings Clause is violated when there is (a) a taking of property, and (b) a failure to pay compensation. Since the Court said 8-0 that there was no taking, and since the requirements are in the conjunctive, the Court should have followed up by going to lunch. I agree with Scalia that sometimes the Court has to decide what a valid claim consists of before declaring that a claim failed [p. 13]. That would have been the case had the owner been deprived of property. I don’t think that Scalia is arguing that there should be a lesser standard for judicial takings than for legislative or administrative takings, so how can an act that would not be a deprivation of property if engaged in by those other branches be a judicial taking?
BTW– if the takings standard doesn’t “vary according to the branch of government,” why didn’t the plurality join in Justice Thomas’ dissent from denial of cert. in Parking Association of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116 (1995) (decrying that Nollan-Dolan established different standards for legislative and administrative takings)?
I am a fan of substantive due process for property deprivations not equating to takings (e.g., government builds a 10-foot fence with no opening one-foot beyond your property line). See 2007 B.Y.U. L. Rev. 899. But Justice Kennedy’s continuing infatuation with due process where the Takings Clause clearly is germane is puzzling. Given the Circuit Courts’ proclivity to invoke the stomach pumping “shocks the conscience” standard of Rochin v. California, 342 U.S. 165, for SDP claims involving land regulation, it’s hard to project that SDP would provide effective protection for property owners.
I do think Kennedy has the better part of the argument when it comes to the fact that the State would have to pay just compensation if there were a judicial taking. [Kennedy, pp 3-4, 8.] Scalia’s rejoinder that the Court could “simply reverse the Florida Supreme Court’s judgment that the [Act] can be applied to the property in question” ducks the point that the Act would not work an impermissible taking, rather, it would work a compensable taking. [Scalia, p. 18.] Kennedy also scored a point with me when he pointed out that the problems with the Williamson County ripeness test, noted in the 4-Justice concurrence in San Remo Hotel, were the result of “reaching out” prematurely. [Kennedy, p. 9.]
In short, I’m well disposed to the Scalia judicial takings approach in principle. But as Justice Breyer said, it’s “better left for another day” [Breyer p. 1]
Posted by Ben Barros
[Comments are held for approval, so there will be some delay in posting]
Thursday, June 17, 2010
The Supreme Court today ruled in the Stop the Beach judicial takings case. In an opinion by Justice Scalia, the Court rejected the judicial takings claim. The Court's judgment was unanimous, but there were fragmented opinions on various issues, as described further below. For background on the case, see this post. For a recap of the oral argument, see this post. For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine.
I will be updating this post with analysis of the Court's opinions and with links to commentary about the case.
A Quick Summary of the Opinions
Justice Scalia delivered the Opinion of the Court, which was unanimous, for Parts I, IV, and V. These parts together hold that the Florida Supreme Court's opinion was sufficiently consistent with Florida caselaw that the takings claim should be rejected. Justice Scalia's opinion, however, is not the Opinion of the Court for Parts II and III. These Parts reach the issue of judicial takings, and assert that under the correct circumstances, a judicial action can violate the takings clause. Justice Scalia was joined in these Parts by the Chief Justice and Justices Thomas and Alito. Justice Stevens did not participate in the case (because he owns Florida beachfront property), and the four other Justices (Kennedy, Ginsburg, Breyer, and Sotomayor) declined to join in Parts II and III of Justice Scalia's opinion. Justice Kennedy wrote a concurring opinion, joined by Justice Sotomayor, and Justice Breyer wrote a concurring opinion, joined by Justice Ginsburg. Together, these concurrences suggest that it was unnecessary to reach the issue of whether it is ever possible to have a judicial taking. So on this critical issue, the Court split 4-4. Because of the tie, Justice Scalia's opinion is not controlling precedent on this issue. The overall issue of whether there can ever be a judicial taking is therefore still open as a matter of Supreme Court caselaw.
(1) What is the standard for judicial takings? As noted above, the big question of whether there can ever be a judicial taking is still open. If the ultimate answer to this question proves to be "yes", what would be the standard for deciding whether there is a judicial taking? Four justices objected to even considering this issue, but Justice Scalia's opinion proposes the following standard: "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 . . ." (Slip op. at 10, emphasis original). Later in his opinion (at 23), Justice Scalia rejects the standard suggested by Justice Stewart's Hughes v. Washington concurrence that a decision that "constitutes a sudden change in state law, unpredictable in terms of relevant precedents" would be a taking. So the focus of Justice Scalia's proposed standard is on whether there is an established right of private property, not on whether the outcome was predictable. There might often be a congruence between clear establishment of a right and predictability of an outcome, but Justice Scalia gives a few examples (at 23-24) where that might not be the case.
(2) What is the future of judicial takings litigation? One fear about allowing judicial takings is that the federal courts will become the courts of last resort for property disputes. Justice Scalia suggests that a litigant who loses before a state supreme court can only raise a judicial takings challenge through a cert petition to the United States Supreme Court. (Slip op. at 23). But property owners who were not a party to the original litigation could challenge the state supreme court's decision as a judicial taking in the lower federal courts: "And where the claimant was not a party to the original suit, he would be able to challenge in federal court the taking effected by the state supreme-court opinion to the same extend that he would be able to challenge in federal court a legislative or executive taking previously approved by a state supreme-court opinion." (at 23). I am not at all an expert on Williamson County and San Remo, so I can't yet fully evaluate the impact of this statement. And, of course, Justice Scalia's opinion is not binding on this point. But Justice Scalia certainly seems to invite property owners to (a) bring cert petitions claiming judicial takings if they lose in state supreme court; even though cert petitions have a low chance of being granted, a petition claiming a judicial taking would get a sympathetic read from at least some of the Justices' chambers; and (b) bring lower court judicial takings cases if they were not litigants before the state supreme court. These invitations, combined with the lack of clear guidance on any of these issues from the Court, suggest that we will see a lot of litigation on these issues in the near future.
[UPDATE: Some further thoughts about the litigation that we're likely to see. First, I think that state supreme courts might be especially careful after Stop the Beach to paper up their property opinions well. As the actual outcome in Stop the Beach showed, state property law often allows a substantial amount of wiggle room. Another way of putting this is that state law property rights might not always be as clear as many people suppose. Second, it may be that the statute of limitations has not yet run on judicial takings claims based on some recent state supreme court decisions. I don't have any specific case in mind, but property owners who were not parties to the initial litigation might start bringing claims in the lower federal courts. Third, although the denial of cert would preclude a takings claim by the litigant in the state supreme court, the cert denial would have no precedential value, so every cert denial in a judicial takings case might be followed by claims brought in the lower federal courts by similarly situated property owners. Fourth, these claims are going to be very challenging for the lower federal courts. Not only is the standard for judicial takings unclear, but the procedural propriety of bringing judicial takings claims in the lower federal courts is not even clear -- Justice Scalia suggested that these claims could be brought, but his opinion is not controlling precedent on this point. It could turn out in some case down the road that these kind of claims cannot be brought in federal court. Faced with this mess, lower federal courts would do well to do what the Supreme Court ultimately did in Stop the Beach: look for some precedential support for the state supreme court opinion that is being challenged, and reject the constitutional challenge.]
(3) Justice Kennedy's concurrence could be very important. Justice Kennedy raises a number of interesting issues in his concurrence. I want to focus for now on just one. Consistent with his approach in a number of other takings cases, Justice Kennedy has advocated for a relatively robust role for due process analysis. The most important statement in Justice Kennedy's concurrence might be this: "The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is 'arbitrary or irrational' under the due process clause." (Slip op at 4). Like Justice Scalia's proposed judicial takings test, this one focuses on clearly established property rights. So it is possible to count six votes for the proposition that a state supreme court opinion that eliminates clearly established property rights is unconstitutional: the Chief Justice and Justices Scalia, Thomas, and Alito on judicial takings grounds, and Justices Kennedy and Sotomayor on due process grounds. I also think it is very interesting that Justice Sotomayor joined Justice Kennedy's opinion, rather than Justice Breyer's. This may be a hint that Justice Sotomayor may be more protective of property rights than many of the Court's liberal justices have been over the last few years. It is worth remembering in this context that both Justice Brennan and Justice Marshall wrote a number of takings opinions that were very pro-property owner (e.g., the San Diego Gas & Electric dissent by Justice Brennan, the Loretto opinion by Justice Marshall).
(4) Justice Stevens may have been missed by the pro-government side. Justice Stevens has been the intellectual leader of the pro-government side on regulatory takings issues since at least 1987. This is speculation (though informed speculation), but I would have expected Justice Stevens to have made the case against recognizing a doctrine of judicial takings had he not recused himself. Justice Breyer was satisfied with making the case that this issue shouldn't be decided now. I think that Justice Stevens would have said more. [UPDATE: Tony Mauro at the BLT has some additional thoughts on the impact of Justice Stevens' recusal].
(5) Potential impact on the broader regulatory takings issue. There are two notable things about the plurality portion of Justice Scalia's opinion for regulatory takings more broadly. First, it continues to emphasize the concept of equivalence that has been a theme in recent regulatory takings cases. By "equivalence" I mean the idea that a regulation or other government action is a taking if it is the equivalent of an exercise of eminent domain. (See slip op. at 8). This idea was a major theme in Lingle v. Chevron. I think that this is a potentially important concept in that it may circumscribe the scope of regulatory takings - regulations that lead to a total diminution in value of property are easy to equate to an exercise of eminent domain; regulations that result in a lesser diminution in value seem much less like the equivalent of an exercise of eminent domain. Second, Justice Scalia's opinion includes a shot across the bows of state supreme courts that might want to use the background principles exception from Lucas to insulate a regulatory action from a takings claim. After quoting the relevant language from Lucas, he states that "A constitutional provision that forbids the uncompensated taking of property is quite simply insusceptible of enforcement by federal courts unless they have the power to decide what property rights exist under state law." (Slip op. at 22). In other words, in Justice Scalia's view, federal courts shouldn't be too deferential to state court characterizations about the scope of property rights.
(6) Some classic Scalia. In taking on Justice Breyer's argument that there was no need to address the core judicial takings issues, Justice Scalia makes a reference to a classic tongue twister: "JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?) or (b) answer in the negative what he considers to be the 'unnecessary' constitutional question whether there is such a thing as a judicial taking." Justice Scalia treats the question of the woodchuck as open, but it of course has an answer: a woodchuck would chuck as much wood as a woodchuck could chuck if a woodchuck could chuck wood.
(7) The Euclid cameo. Michael Allan Wolf, who knows a lot about Euclid, just pointed out to me that Justice Scalia badly miscites Euclid - see the slip opinion at p. 12, describing Euclid in a parenthetical as "recognizing that block zoning ordinances could constitute a taking, but holding that the challenged ordinance did not do so." As Michael pointed out, this is clearly wrong on a number of levels. Most importantly, in my humble opinion, is that Euclid is not a takings case. It is a substantive due process case, as Justice Kennedy suggests in his concurrence (slip op. at 3). I really don't think that it is helpful to Justice Scalia's broader agenda to treat Euclid as a takings case, and in any event it is simply wrong to do so.
A couple of random points. First, in my first big post about this case, I wrote: "I would guess that Justice Scalia was instrumental in obtaining the cert grant. I predict that the Supreme Court will find a taking in Stop the Beach and that Justice Scalia will write the opinion of the Court." Well, I was at least half right. My predictions after oral argument were a little more on target re: the outcome. Second, it has frequently been observed that blogs have compressed the cycle of analysis on Supreme Court opinions. Having just tried to put together some cogent thoughts in about three hours really drove that point home for me. Third, Justice Scalia showed academics no love at all, and did not cite the leading law review articles on judicial takings. Justice Kennedy did cite some, but not all, of the leading articles on point. Fourth, I noted before that I advocated in the past (albeit as a law student) for federal judicial takings review of state court property decisions. Here is what I said in my student note (63 Fordham L. Rev. at 1881-82) on the judicial takings standard:
The Court should explicitly adopt Justice Stewart's Hughes v. Washington test, while avoiding the problematic "reasonable expectations." State court findings in just compensation cases should be reviewed to ensure that they define property using legitimate statutory and common law precedent, rather than using the inherent flexibility of common law to define property rights out of existence. If the state courts previously have recognized a property interest, either between private individuals or between an individual and the state, then the state cannot destroy that interest without compensation. Such a requirement would accommodate the desire to have the state's property law serve as the primary source of the definition of property, while maintaining the protection of liberty required by the Just Compensation Clause.
This is somewhat close to the standard that Justice Scalia proposed, which is kind of cool. The problem is that I'm not sure that I still agree with what I said as a law student. I'll have to sort that out sometime soon.
Further thoughts on the case from around the blogosphere and the media (to be updated periodically):
Lior Strahilevitz has a thoughtful analysis of the question raised by Jerry Anderson (on the property listserv and in the comments here) at the University of Chicago Law School Faculty Blog.
Timothy Sandefur comments on the case at the Pacific Legal Foundation's blog. [UPDATE: Tim has a second post with some further thoughts on the case.]
Josh Blackman is happy that Justice Sotomayor may be more protective of property rights than Justices Breyer or Ginsburg.
Robert H. Thomas collects some links at the Inverse Condemnation Blog.
Ilya Somin comments on the case at the VC.
Ilya Shapiro of the Cato Institute discusses the case.
NPR's Nina Totenberg has a story on the case.
Steve Eagle comments here at PropertyProf.
UPDATING the list of commentary a few days later:
Eduardo Penalver has some excellent thoughts at Prawfs.
Tim Mulvaney has an op-ed on the case.
[photo of Destin, Florida beach via Wikicommons]
[Comments are held for approval, so there will be some delay in posting]
Tuesday, June 15, 2010
Rose Cuison Villazor has another new essay up on ssrn, "Reading between the (Blood) Lines," which appeared in the Southern California Law Review. It responds to Ariela Gross' new book, What Blood Won't Tell. Here is the abstract:
Legal scholars and historians have depicted the rule of hypodescent - that "one drop" of African blood categorized one as Black - as one of the powerful ways that law and society deployed to construct racial identities and deny equal citizenship. Ariela J. Gross’s new book, "What Blood Won’t Tell: A History of Race on Trial in America," boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, "What Blood Won’t Tell" argues that the legal and social construction of race was far more complex, flexible and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. On the other hand, "What Blood Won’t Tell" highlights circumstances, both historically and in recent memory, of the ways in which blood distinctions played crucial roles in shaping the identity of people of color, including indigenous peoples. Importantly, "What Blood Won’t Tell" also examines how blood quantum rules relate to contemporary efforts to reassert indigenous peoples’ sovereignty and claims to lands.This Review highlights the important contributions of "What Blood Won’t Tell" to our understanding of the racial experience of indigenous peoples and the contemporary methods used to remedy the present-day effects of indigenous peoples’ colonial experience. "What Blood Won’t Tell" advances a more robust account of the racialization of people of color through rules about blood differences in at least three ways. First, it places the colonial experience of indigenous peoples within the larger historical contexts of racial subordination and efforts to promote White domination and privilege. Second, it underscores the federal government’s ongoing responsibility to counteract the long-standing effects of its past misdeeds by addressing indigenous peoples’ unresolved claims to lands that have been stolen from them. Third, it allows us to take a careful look at the relationship between blood quantum rules and the right of indigenous peoples to exercise self-determination. Taken together, these three perspectives reveal the immense challenges inherent to remedying the long-term effects of the racialization and colonization of indigenous peoples.
Post by Alfred Brophy
Sunday, June 13, 2010
Rose Cuison Villazor has a new article up on ssrn, "Oyama v. California: At the Intersection of Property, Race and Citizenship." It is forthcoming in the Washington University Law Review. Rose's abstract is as follows:
Oyama v. California was a landmark case in the history of civil rights. Decided in January 1948, Oyama held unconstitutional a provision of California’s Alien Land Law, which allowed the state to take an escheat action on property given to U.S. citizens that had been purchased by their parents who were not eligible to become citizens. At the time, the country’s naturalization law prohibited Japanese nationals from becoming U.S. citizens. Thus, the Alien Land Law applied primarily to Japanese nationals and Japanese Americans. Critically, Oyama recognized that the state’s attempted taking of a citizen’s property because his father was Japanese constituted a violation of his equal protection rights. In so doing, Oyama created a paradigm shift in the treatment of property rights of Japanese Americans. Despite its significance, Oyama has received surprisingly little attention in legal scholarship. Leading constitutional and property law casebooks have virtually ignored the case. This Article seeks to correct that oversight. As this Article argues, Oyama fills a neglected void in our collective historical understanding of race, property law, and citizenship. Equally important, it provides a timely normative and prescriptive response to contentious contemporary debates about the validity of state and local law restrictions on leaseholds against a select group of noncitizens, namely undocumented immigrants. By calling attention to the historical and contemporary contributions of this largely unnoticed case, this Article argues why Oyama should be included in the canons of property and constitutional laws.
Posted by Alfred Brophy