Tag: Fifth Amendment

Judicial Takings and Scalia’s Shifting Sands

By
Ilya Shapiro

Last term, the Supreme Court decided what could end up being an important precedent for protecting property rights – even as the Court ruled unanimously against the property owners in that particular case!  How is this possible?  Read the new article by Cato legal associate Trevor Burrus and me, “Judicial Takings and Scalia’s Shifting Sands.”

Here’s the background:  Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida’s gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners’ lawsuit against the state, the Florida Supreme Court (SCOFLA, if you remember your Bush v. Gore trivia) departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court effectively discarded 100 years of property law and rewrote the definition of property.

The U.S. Supreme Court had never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner’s due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners.

In June, Court finally decided Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The decision waded through a jumbled mass of arcane waterfront law to reach a very simple and unanimous holding: the Florida Supreme Court did not subvert an existing property right to such an extent that its decision constituted a “judicial taking.”  The state won.  The property owners lost.  SCOFLA was vindicated.

Still, while all eight justices ultimately ruled for the state – Justice Stevens recused himself because his Florida property is subject to the renourishment program – six accepted the idea that judges can violate the Constitution by reinterpreting pre-existing property rights (albeit under two different theories), and the other two declined to reach the question.  Although the Stop the Beach Court found that SCOFLA had not departed from sufficiently established state property law to constitute a taking, the idea of a judicial taking – whether through the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Due Process Clause – is very much alive.

And that’s where our article in the Vermont Law Review picks up.  In this article, Trevor and I examine the background of the judicial takings doctrine, react to the Court’s decision here in light of Cato’s amicus brief, and contrast Justice Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Topics: 
Government and Politics, Law and Civil Liberties, Political Philosophy

Eminent Domain Shenanigans

By
Ilya Shapiro

Five years ago, in the landmark property rights case of Kelo v. New London, the Supreme Court upheld the forced transfer of land from various homeowners by finding that “economic development” qualifies as a public purpose for purposes of satisfying the Fifth Amendment’s Takings Clause.  In doing so, however, the Court reaffirmed that the government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”

State and federal courts have since applied that pretext standard in widely differing ways while identifying four factors as indicators of pretext: evidence of pretextual intent, benefits that flow predominantly to a private party, haphazard planning, and a readily identifiable beneficiary.  Moreover, since Kelo, 43 states have passed eminent domain reform laws that constrain or forbid “economic development” condemnations.

While many of these laws are strong enough to curtail abuse, in at least 19 states the restrictions are undercut by nearly unlimited definitions of “blight.”  The state of New York has seen perhaps the most egregious examples of eminent-domain abuse in the post-Kelo era, and now provides the example of Columbia University’s collusion with several government agencies to have large swaths of Manhattan declared blighted and literally pave the way for the university’s expansion project.  In this brazen example of eminent-domain abuse, the New York Court of Appeals (the highest state court) reversed a decision of the New York Appellate Division that relied extensively on Kelo’s pretext analysis and thus favored the small business owners challenging the Columbia-driven condemnations.  The Court of Appeals failed even to cite Kelo and ignored all four pretext considerations, instead defining pretext so narrowly that even the most abusive forms of favoritism will escape judicial scrutiny.

Cato joined the Institute for Justice and the Becket Fund for Religious Liberty in a brief supporting the condemnees’ request that the Supreme Court review the case and address the widespread confusion about Kelo’s meaning in the context of pretextual takings.  Our brief highlights the need for the Court to establish and enforce safeguards to protect citizens from takings effected for private purposes.  We argue that this case is an excellent vehicle for the Court to define what qualifies a taking as “pretextual” and consider the weight to be accorded to each of the four criteria developed by the lower and state courts.

The Supreme Court will decide whether to hear the case later this fall. The name of the case is Tuck-It-Away, Inc. v. New York State Urban Development Corp and you can read the full brief here (pdf).  You can read more from Cato on property rights here.

Topics: 
Law and Civil Liberties

If Only Hawaii’s Government Were as Beautiful as Its Beaches

By
Ilya Shapiro

Throughout history, people have fought over beaches, including in the legal arena. In the latest case in which Cato has filed an amicus brief, a state has once again redefined property rights to take possession of highly-valued beachfront property.

In 2003, Hawaii passed Act 73, which took past and future title to accretions (the slow build-up of sediment on beaches) from landowners and gave it to the State, changing a 120-year-old rule. While waterlines are unpredictable, the original rule — common to most waterfront jurisdictions — helped establish legal consistency. Indeed, without such a rule, beachfront property becomes beachview property in just a few years.

In response to Act 73, homeowners sued the state, claiming that the law violated the Takings Clause of the Fifth Amendment or, in the alternative, the Due Process Clauses of the Fifth and Fourteenth Amendments. The state appellate court held that compensation was owed only for the accretions that had accumulated before Act 73’s enactment because the right to subsequent accretions had not “vested” (the legal term for when an expectation becomes an actual property right). Hawaii’s Supreme Court declined to review that ruling, so the property owners asked the U.S. Supreme Court to do so.

Cato, joined by the Pacific Legal Foundation, filed a brief supporting that petition and argues that the appellate court’s decision was contrary to long-standing definitions of waterfront property rights. Our brief highlights the increasing need for the Court to establish and enforce a judicial takings doctrine.

More and more states are using backdoor tricks — like legislative “guidelines” and judicial creativity — to take property in violation of constitutional rights: This Hawaii case is distressingly similar to last term’s Stop the Beach (in which Cato also filed a brief). In that case, Florida took property by adding sand to the beach and then laying claim to the newly created land — in essence asserting that property that was defined by contact with the water (in technical terms, “littoral” or “riparian”) had no right to contact the water. The Court ruled that while Florida’s actions did not rise to the level of a judicial taking, a large enough departure from established common-law rules could constitute a constitutional violation.

In this latest brief, we highlight both the largeness of Hawaii’s departure from established law and the spate of such actions in recent years — which circumstance calls out for Supreme Court review.  The case is Maunalua Bay Beach Ohana 28 v. Hawaii and the Court will decide later this fall whether to take it up.

Topics: 
Government and Politics, Law and Civil Liberties

Another Judicial Takings Case Headed to the Court

By
Ilya Shapiro

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.

Topics: 
Law and Civil Liberties, Regulatory Studies

Bulldozing Homes, Billing Homeowners

By
Ilya Shapiro

Officials in Montgomery, Alabama, are bulldozing homes in their historic civil rights district – and billing the homeowners for the cost of demolition:

Christina Walsh of the Institute for Justice writes about this injustice at the Daily Caller:

Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you.  Oh, and you’re paying for it.

This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.”  It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).

Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days … the city can sell your now-vacant land to the highest bidder.

The rest of her article is here.  Also, see ABC News, Big Government and Reason magazine.  And you can find Cato’s work on property rights here.

Topics: 
Government and Politics, Law and Civil Liberties

Fifth Anniversary of Kelo v. New London

By
Ilya Shapiro

With all the property rights news coming out of the Supreme Court and New York Court of Appeals in the last week, I almost missed Wednesday’s fifth anniversary of the dreadful Kelo v. New London decision.  Justice Stevens’s  opinion in Kelo sanctioned a transfer of private property from homeowners to a big company in the name of (promised but, as we’ve seen, never realized) job creation and increased tax revenue. 

This was a Pyrrhic victory for eminent domain abusers, however, given:

  • 9 state high courts have limited eminent domain powers;
  • 43 state legislatures have passed greater property rights reform;
  • 44 eminent domain abuse projects have been defeated by grassroots activists;
  • 88 percent of the public now believes that property rights are as important as free speech and freedom of religion.

To learn about these and other fascinating developments that turned a property rights lemon into at least some type of lemonade, see the Institute for Justice’s new report and video.

Topics: 
Government and Politics, Law and Civil Liberties

More on Property Rights (Plus Privileges, Immunities, Due Process)

By
Ilya Shapiro

Yesterday I blogged about the Florida property rights case, which I now consider the best unanimous opinion against my position I could ever imagine.  Although the property owners lost, four justices stood for the idea that courts no less than legislatures or executive bodies are capable of violating the Takings Clause (Fifth Amendment), while two others endorsed remedying such violations via Substantive Due Process (Fourteenth Amendment), and the remaining two didn’t express an opinion one way or the other.  For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David Bernstein.

An interesting side note involves Justice Scalia’s excoriation of Substantive Due Process (and Justice Kennedy’s use of it):

Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular.

…

The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.

Scalia also calls Kennedy’s method “Orwellian”  – after having said that Justice Breyer uses a “Queen-of-Hearts” approach “reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?”  Really, this is classic Scalia, a delight to read (and you should, here).

The problem with what Scalia says, as Josh Blackman points out, is that the Court is about to release its opinion in the Chicago gun case, McDonald v. Chicago and, based on the oral argument, is about to incorporate the Second Amendment via Substantive Due Process.  If SDP is so bad, how can Scalia (endorsed by Chief Justice Roberts and Justices Thomas and Alito) use it to protect a “new” right? – particularly when the Privileges or Immunities Clause was created for just this purpose!  One answer is that, to Scalia, “babble” – his term for SDP – is still worth more than “flotsam” (his term for P or I), as I discuss here.  Another is that, to put it bluntly, Scalia is a results-oriented non-originalist, as Josh and I discuss here.

Speaking of Blackman-Shapiro collaborations, for the correct way to apply the right to keep and bear arms to the states, see our law review article called “Keeping Pandora’s Box Sealed.”  And Tim Sandefur, who authored Cato’s McDonald brief (read a summary here) just published a fascinating related article called “Privileges, Immunities, and Substantive Due Process.”  I haven’t read it yet but am very much looking forward to it. 

Tim also recently wrote a book defending economic liberties (which Justice Scalia also disparages in his Stop the Beach opinion), called The Right to Earn a Living: Economic Liberty and the Law.  I hear it makes for good beach reading.

Topics: 
Law and Civil Liberties

Pages