Wednesday, December 2, 2009

Of Hotdog Stands and Beach Parties -- Oral Argument in Stop the Beach

The Supreme Court heard oral argument this morning in Stop the Beach Renourishment v. Florida DEP.  If you are new to the case, this post summarizes what it at stake.  My overall view of the case hasn't changed much after hearing oral argument.  I will update this post with notes from oral argument throughout the afternoon.  For now, here are some quick thoughts:

(1)  Justice Stevens was not on the bench.  Informed comment around the Court seemed to be that he has recused himself because he owns Florida beachfront property.  This is a potentially big deal because (a) Justice Stevens has been the most vocal advocate of the government position in the Supreme Court's recent regulatory takings jurisprudence and (b) because it increases the chances of a 4-4 decision.

(2) I'm really not sure how this case is going to come out.  There was a lot of support for the general idea of judicial takings on the bench, and Florida's counsel conceded that the right case could present a judicial taking.  The doubts are about whether there was a judicial taking in this case.  A number of justices who the petitioner need to win in this case -- the Chief Justice, Justice Scalia, and Justice Kennedy, all asked some skeptical questions.  Not that skeptical questions mean that much in this context.

More, including an explanation of the title of this post, soon.


Okay, the transcript of oral argument is now available on the Supreme Court's website.  So I won't bother doing a blow-by-blow of the argument.  The title of the post comes from the hypotheticals that the members of the Court were playing around with.  The hot dog stand stuff starts pretty early with a question from Justice Sotomayor. 

Having thought about it a bit further, here are my thoughts on how the case comes out. First, the usual caveat that predicting case outcome based on oral argument questions is a fool’s game.  So call me a fool – here’s my guess.  I think that the Chief Justice and Justices Scalia, Alito, and Thomas are likely to be sympathetic to the Petitioner’s case.  (As usual, Justice Thomas didn’t ask any questions, so this is just a guess based on his general pro-property owner tilt in takings cases).  This seems to me to be a best-case for the Petitioner, and even these four votes might not be solid.  Justice Scalia, in particular, asked some questions that seemed to suggest that he thought that there might be some basis in Florida caselaw for the Florida Supreme Court’s decision.  Justice Scalia also wasn’t as aggressive in pressing Respondent’s counsel as I would have expected. 

That’s only four votes for the Petitioner, and the Petitioner needs five to win.  Justice Kennedy would be the most likely fifth vote, but he asked a number of questions that suggested that he is skeptical of Petitioner’s claims in this particular case.  He commented at one point that one Florida case that Petitioner had cited didn’t help Petitioner’s case.  He also suggested that this was a close case based on Florida law – if this is his view, then it is hard seeing him finding that this was a judicial taking.  Finally, Justice Kennedy asked a fairly skeptical question about what the standard would be for judicial takings.  This gist of the question was whether the standard would be based on a pile of adjectives like “sudden” and “unexpected” in describing a change in state property law.

Justice Breyer was fairly aggressive in trying to help Respondents’ counsel out during the argument.  As expected, Justice Ginsburg also appeared to be sympathetic to the government.  Justice Sotomayor asked some good, interesting questions, but these questions didn’t suggest to me that she was leaning either way.  Still, if the Petitioners appear to be having a hard time with Justice Kennedy, it seems likely that they will have difficulty getting Justice Sotomayor.

All of this said, there seemed to be some widespread concern among the members of the Court about judicial overreaching, and there didn’t seem to be a lot of hostility to the general idea of judicial takings.  Justice Breyer raised the hypothetical of a state Supreme Court suddenly holding that the state could put a power plant on someone’s private property without compensation, and phrased the question in a way that made it seem that he thought that this kind of judicial action would be an obvious taking.  The Chief Justice presented a hypothetical in which a state legislature passes a law, the state Supreme Court holds that it is a taking, a person runs for election to the state Supreme Court on a platform opposing the takings holding, is elected, and becomes part of a majority that changes the law to eliminate the takings problem.  This was very interesting hypothetical on a number of levels, but at the least it suggested that there was a set of facts that the Chief Justice thought would constitute a judicial taking.

So one possible outcome is an opinion of the Court that supports the general idea of judicial takings, but finds that there wasn’t one in this case.  At a panel held at Georgetown Law after the oral argument, Richard Lazarus made an interesting observation that Justice Stevens’ absence could be very important here.  If the Petitioners lose, and the Chief Justice is in the minority, then the opinion assignment would typically go to Justice Stevens.  With Justice Stevens recused, the senior justice in the majority may be Justice Kennedy, or even Justice Scalia.  Presuming that the senior justice keeps the opinion, then either Justice Kennedy or Justice Scalia might be expected to write an opinion more favorable to the general idea of judicial takings than Justice Stevens would.

Given the general lack of hostility on the Court to the idea of judicial takings, I’d be surprised to see an opinion that closed off the possibility of judicial takings entirely.  The more likely outcome would be an opinion that holds that this case didn’t present a judicial taking, and leaving the question of whether another case could constitute a judicial taking open.  And, of course, the possibility still remains that the Petitioners will get their fifth vote, and the Court will find a judicial taking in this case.

Ben Barros

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Great synopsis, Ben. The best outcome would be for the Court to duck the "judicial takings" question altogether. It's an interesting academic issue, but it is not essential to deciding the case. The Court could resolve the case by deciding that Florida's sand-dumping project was an "avulsion" (unfortunately, the oral argument did little to clarify this point), deciding that the essential littoral rights of the petitioners were preserved by the statute, or deciding that because in this case the Erosion Control Line and Mean High Water Line are the same, no taking - judicial or legislative - occurred here anyway, at least yet.

I have serious concerns about the Court chilling the development of state common law by wading into the issue of "judicial takings." It may threaten the validity of some of the New Jersey and Oregon supreme court decisions regarding beach access. If the Court is going to establish a new doctrine of "judicial takings," it should do so in a case that more clearly presents the issue.

Posted by: Paul Diller | Dec 2, 2009 5:00:40 PM

I live in Florida in a coastal country but not on the beach. It has never before been a question about who owns the land from mean low water to 50 feet. That is owned by the citizens (state) of Florida. There are no private beaches in Florida. If the court holds for the land owners then they will not have a home in 5 to 10 years. Several good studies from Duke University entitled "The Beaches are Moving" indicate that the natural process is to destroy the present barrier island and form a new one 300 to 400 yards off shore. This case will destroy the Renourishment of the beaches and Miami Beach, Lauderdale Beach, Singer and Jupiter Islands will be lost. Damned if you do, Damned if you don't.

Posted by: Charles A. Pierce | Dec 3, 2009 4:23:03 PM

Hey Ben,
Thanks for the summary. Fascinating case (I've not really dug into it yet myself). I wonder if there was a motion for Justice Stevens to recuse himself and, if so, from whom. It would seem odd for the State to have sought his recusal here.

Posted by: Jamie Colburn | Dec 6, 2009 11:04:05 AM


My sense is that Justice Stevens recused himself, without motion of any party.


Posted by: Ben Barros | Dec 7, 2009 6:55:04 AM

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