Fordham Law

'Judicial Takings' Still Unresolved By High Court Ruling

William Treanor in Law360, June 17, 2010

Media Source

By Nick Malinowski

Law360, New York (June 17, 2010) -- In finding that Florida can claim sand added with public funds to hurricane-ravaged beaches as state property, the U.S. Supreme Court on Thursday shot down a citizens group petition contending upland property owners were being illegally stripped of their littoral rights to accretion without compensation, but left unresolved the wider issue of judicial takings.

The court affirmed a decision by the Florida Supreme Court determining that Florida's Beach and Shore Preservation Act, which established procedures for depositing sand on the submerged seabed of eroded beaches and maintaining the new land as public property, does not describe an illegal taking because the state, not upland property owners, owned the property that was allegedly taken.

As owner of the submerged land the state has the right to fill in its property, and if an avulsion, a sudden loss or gain, exposes land seaward of littoral property that had previously been submerged, the state has a claim to that new property, whether the avulsion was caused by natural events or by the state dumping new sand in the water, Justice Antonin Scalia wrote for the court.

The petitioners, Stop the Beach Renourishment Inc., failed to show that before the Florida Supreme Court's decision they had rights to future accretions and contact with the water superior to the state's right to fill in its submerged land, he said.

Yet, even as the justices ruled 8-0 against the property owners, they were split 4-4 on the most closely watched aspect of the dispute: whether a court action can constitute an illegal taking under the Fifth Amendment of the U.S. Constitution.

Justice Antonin Scalia, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, ruled that the Takings Clause does, in fact, apply to the judicial branch, noting that it would be “absurd to allow a state to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.”

In separate concurring opinions Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, and Justice Anthony Kennedy, joined by Justice Sonia Sotomayor, determined that the difficult constitutional questions surrounding the issue of judicial takings were not necessary to resolve in order to dispose the current case and were best left for another day.

Justice Kennedy was perhaps the most outspoken against the idea of judicial takings, implying in his concurrence that the Due Process clause sufficiently protects property owners from improper court mandates.

Justice John Paul Stevens, who recused himself because he owns beachfront property in Florida, would have been the tie-breaking vote on the issue.

While Justice Stevens likely would have sided with Justices Breyer and Kennedy, and the 4-4 tie renders the decision less than law, the fact that four of the eight justices acknowledged the idea of judicial takings is "very significant" to the protection of private property rights, said Bradley Gould, a property attorney at Holland & Knight LLP.

The decision will be used by private property advocates and property owners to try to prevent state courts from redefining private property into public property, and could still be persuasive, he said.

"The concepts of accretion and avulsion are really complicated, and I'm not sure it's as clear as the U.S. Supreme Court set forth, but generally speaking, if the government decides to improve property or property rights that they don't own, than that should give rise to a taking and a requirement of compensation," Gould said.

In this case you have property owners who now have a public beach behind their houses, which has to significantly affect their property values, yet they got nothing in return, he said.

Looking ahead, the court's ideological split leaves the judicial takings issue "dead in the water" for the foreseeable future, according to John D. Echeverria, a Vermont School of Law Professor who penned an amicus brief in support of the respondents on behalf of the American Planning Association.

"The case underscores the importance of the judicial selection process and how divided the court is on the property rights question," he said. "The issue could come back and it could fare better in a different court, but it's not coming back anytime soon."

Even so, the decision will spark continued debate on the subject, and Justice Scalia, who has been itching for years to take the subject on, got an opportunity to say his piece, Dwight Merriam of Robinson & Cole LLP said.

"Scalia has unleashed the pit bull of judicial takings, and it is locked firmly on the pant leg of local governments. Whether it can bite through or not will depend on the next case," Merriam said.

The case could have a greater impact on the volume of legal scholarship on judicial takings than it will have on the actual law, he added.

While agreeing that the outcome of the judicial takings battle was unsurprising, Fordham Law School dean William Treanor is more optimistic that the issue will have another day in court soon.

There is no shortage of beachfront litigation, and these cases, by dint of their complexity, end up before the Supreme Court more regularly than the classic eminent domain takings disputes, Treanor said.

“They involve sensitive environmental issues, beachfront access is a very valuable property right, the stakes are high and the legal issues are complicated,” he said.

The next case would have to differ significantly from this one for the court to pick it up, Merriam said.

Presumptive Justice Elena Kagan would be the swing vote if a new case came to the court in short order, Treanor said.

Early speculation would suggest that she would have gone along with Justices Breyer and Kennedy on this particular divide, joining those justices with a narrower view of property rights, he said.

Attorneys for the petitioners in the case said they were “deeply disappointed” by the ruling and were fearful that it would lead to “more incidences of government unfairly taking private property away from hardworking citizens.”

However, they said they were encouraged by Justice Scalia's opinion on judicial takings.

The 8-0 decision on the constitutionality of the Florida law should make government-side lawyers pleased, and by establishing that state law will determine what a taking is, it is also a boon for local governments, Merriam said.

While beachfront property owners are the apparent losers in the case, beach nourishment programs could be the real winner, Echeverria said.

This decision gives a green light to these programs, which will be one of the tools states and local governments use to address climate change, he said.

Stop the Beach is represented by Hopping Green & Sams PA.

The respondents are represented by the Florida Attorney General Thomas Merrill and Fowler White Boggs PA.

The case is Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection et al., case number 08-1151, in the U.S. Supreme Court.