In Defense of “Libertarian Crusades”

We in the public interest legal community -- especially on the libertarian or conservative side -- are used to taking slings and arrows from all quarters.  The media doesn't understand our quaint obsession with following the text of the Constitution.  The so-called progressives seethe at our evil defense of property rights and the freedom of contract.  Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.

But what we don't expect is to see federal judges openly and wantonly question our motives -- least of all in an actual opinion.  Yet this is precisely what Judge Jacques "Jack" Wiener did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case.  The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward.  The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a "rolling easement").  The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.

But the legal details aren't important.  What I want to highlight is Wiener's dissent, which begins with the following "Context" (a section title not commonly found in judicial opinions; see pages 22-23 here):

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

 
Apparently in Judge Wiener's world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission.  Somebody tell the NAACP or ACLU -- or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Wiener excoriates.  Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.

Chief Judge Jones pithily dispatches her colleague's grandiloquence in the majority's first footnote (see bottom of page 2 here):

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

And I won't even get into Wiener's mixed metaphors and schoolboy Latin -- he meant qua, not cum -- other than to say "hit the road, Jack."

(Full disclosure: I clerked on the Fifth Circuit and am familiar with Wiener's squishy, unreliable jurisprudence; he's very nice in person, but something happens in chambers -- left-wing clerks? -- that detracts from his effectiveness.  One caveat: Wiener is a great friend of the taxpayer; the IRS does not win in his courtroom.)

For commentary from the Volokh Conspiracy, see here.  For PLF's press release, see here.  Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).