Judicial Takings

Can a state court decision effect a judicial “taking” in violation of the federal constitution? The United States Supreme Court addressed that question this term, but did not furnish a definitive answer. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Court furnished three opinions, none of them fully joined by a majority of the justices. As a result, the answer remains uncertain.

The Problem

Typically, when a landowner advances a taking claim, the landowner complains about the action of a legislature or a state or municipal agency. Thus, to use some familiar examples, in Penn Central Transportation Co v. City of New York, 438 US 104, landowner complained about the action of the New York City landmarks commission. In another leading New York case, Bonnie Briar Syndicate Inc. v. Town of Mamaroneck, 94 NY2d 96, landowner challenged a zoning amendment enacted by a town board. And in Manocherian v. Lenox Hill Hospital, 84 NY2d 385, the taking challenge was to a statute enacted by the state legislature. Suppose, though, the value of a landowner's parcel is significantly reduced not by a legislature or agency, but by a judicial decision that changes the common law of the state. Can that decision amount to a taking?

Stop the Beach Renourishment: The Facts

In Stop the Beach Renourishment, the initial taking challenge was to the action of a state agency. Pursuant to a state statute, two municipal entities obtained permits to deposit sand along a lakeshore to restore beach that had been eroded by hurricanes. Lakefront owners challenged the issuance of the permits, contending that deposit of the soil would deprive them of the right to receive accretions of sand to their property, and of the right to have contact between their property and the lake remain intact. The Florida Supreme Court rejected their taking claim, concluding that the right to accretions was not a vested property right, and that the doctrine of avulsion permitted the state to reclaim the restored beach on behalf of the public. That court held that the lakefront owners had no right to contact with the water other than the right of access. Lakefront owners then sought a rehearing in the Florida Supreme Court, concluding that the court's decision itself effected a taking in violation of the Fifth and Fourteenth Amendments. The Florida Supreme Court denied the rehearing, but the United States Supreme Court granted certiorari to consider the “judicial taking” issue.

The Court's Opinions

Although none of the three opinions in the United States Supreme Court commanded a majority, the result was unanimous: The Florida Supreme Court's decision did not constitute a taking. All eight participating justices (Justice Stevens did not participate) signed on to the portion of Justice Scalia's opinion in which he concluded that the Florida Supreme Court's decision did not interfere with any well-established property right of the lakefront owners. Justice Scalia observed that it is well-established Florida law that “if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner's contact with the water.” The only issue was whether state-induced avulsions should be treated differently from other avulsions, and Justice Scalia noted that Florida law provided substantial authority for rejecting different treatment. As a result, the Florida Supreme Court's decision “did not contravene the established property rights” of the lakefront owners.

In a portion of his opinion to which only four justices subscribed, however, Justice Scalia endorsed the principle that the taking clause applies equally to actions of state courts and state legislatures. In his words, “[t]he Takings Clause ' is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the government actor ' It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.” As a matter of logic, there is much to commend Justice Scalia's opinion; nothing in the federal constitution commands any particular separation of powers by the states. On the other hand, the common law tradition envisions an institutional role for judges different from the role of legislatures and agencies.

That difference in institutional context had significance for Justice Kennedy, who wrote a concurring opinion, joined by Justice Sotomayor. Justice Kennedy contended that the primary constraint on state judicial power to interfere with private property rights should be located in the due process clause, not the takings clause. He noted, in particular, that holding that state courts had worked a taking would enable the state courts to force the political branches to pay just compensation for a temporary judicial taking. He concluded that the court should wait for a case in which the issue is properly presented before holding that a judicial decision can effect a taking. Justice Breyer, concurring for himself and Justice Ginsburg, concluded that resolving the judicial taking issue was simply premature, and criticized Justice Scalia for reaching out to decide an issue unnecessary for resolution of the case before the Court.

Implications

Because Justice Scalia's suggestion that there is a cognizable federal constitutional claim for a “judicial taking” did not command a majority of the Court, it is not clear what implications Stop the Beach Renourishment will ultimately have. But consider some of the difficulties. New York courts have long held that a landlord has no duty to mitigate damages when a tenant defaults. If the Court of Appeals were to abandon that rule (as have the courts of many other states), would landlords have a claim for a judicial taking (because the court has interfered with an established property right)? And if so, which landlords ' those who had relied on the old law by not mitigating, or all landlords, who now know that in the future they will have to mitigate? Until Stop the Beach Renourishment, no one would have thought that such judicial evolution of the common law would raise federal constitutional claims, but Justice Scalia's endorsement of judicial takings ' together with this assertion that a taking can arise when the state transfers property from one private owner to another ' raises the possibility that all evolution of state property law might be subject to federal constitutional scrutiny. It is no wonder, then, that four of the justices were unwilling to start down that path, and it seems unlikely that a majority will move in that direction any time soon.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.

Can a state court decision effect a judicial “taking” in violation of the federal constitution? The United States Supreme Court addressed that question this term, but did not furnish a definitive answer. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Court furnished three opinions, none of them fully joined by a majority of the justices. As a result, the answer remains uncertain.

The Problem

Typically, when a landowner advances a taking claim, the landowner complains about the action of a legislature or a state or municipal agency. Thus, to use some familiar examples, in Penn Central Transportation Co v. City of New York , 438 US 104, landowner complained about the action of the New York City landmarks commission. In another leading New York case, Bonnie Briar Syndicate Inc. v. Town of Mamaroneck , 94 NY2d 96, landowner challenged a zoning amendment enacted by a town board. And in Manocherian v. Lenox Hill Hospital , 84 NY2d 385, the taking challenge was to a statute enacted by the state legislature. Suppose, though, the value of a landowner's parcel is significantly reduced not by a legislature or agency, but by a judicial decision that changes the common law of the state. Can that decision amount to a taking?

Stop the Beach Renourishment: The Facts

In Stop the Beach Renourishment, the initial taking challenge was to the action of a state agency. Pursuant to a state statute, two municipal entities obtained permits to deposit sand along a lakeshore to restore beach that had been eroded by hurricanes. Lakefront owners challenged the issuance of the permits, contending that deposit of the soil would deprive them of the right to receive accretions of sand to their property, and of the right to have contact between their property and the lake remain intact. The Florida Supreme Court rejected their taking claim, concluding that the right to accretions was not a vested property right, and that the doctrine of avulsion permitted the state to reclaim the restored beach on behalf of the public. That court held that the lakefront owners had no right to contact with the water other than the right of access. Lakefront owners then sought a rehearing in the Florida Supreme Court, concluding that the court's decision itself effected a taking in violation of the Fifth and Fourteenth Amendments. The Florida Supreme Court denied the rehearing, but the United States Supreme Court granted certiorari to consider the “judicial taking” issue.

The Court's Opinions

Although none of the three opinions in the United States Supreme Court commanded a majority, the result was unanimous: The Florida Supreme Court's decision did not constitute a taking. All eight participating justices (Justice Stevens did not participate) signed on to the portion of Justice Scalia's opinion in which he concluded that the Florida Supreme Court's decision did not interfere with any well-established property right of the lakefront owners. Justice Scalia observed that it is well-established Florida law that “if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner's contact with the water.” The only issue was whether state-induced avulsions should be treated differently from other avulsions, and Justice Scalia noted that Florida law provided substantial authority for rejecting different treatment. As a result, the Florida Supreme Court's decision “did not contravene the established property rights” of the lakefront owners.

In a portion of his opinion to which only four justices subscribed, however, Justice Scalia endorsed the principle that the taking clause applies equally to actions of state courts and state legislatures. In his words, “[t]he Takings Clause ' is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the government actor ' It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.” As a matter of logic, there is much to commend Justice Scalia's opinion; nothing in the federal constitution commands any particular separation of powers by the states. On the other hand, the common law tradition envisions an institutional role for judges different from the role of legislatures and agencies.

That difference in institutional context had significance for Justice Kennedy, who wrote a concurring opinion, joined by Justice Sotomayor. Justice Kennedy contended that the primary constraint on state judicial power to interfere with private property rights should be located in the due process clause, not the takings clause. He noted, in particular, that holding that state courts had worked a taking would enable the state courts to force the political branches to pay just compensation for a temporary judicial taking. He concluded that the court should wait for a case in which the issue is properly presented before holding that a judicial decision can effect a taking. Justice Breyer, concurring for himself and Justice Ginsburg, concluded that resolving the judicial taking issue was simply premature, and criticized Justice Scalia for reaching out to decide an issue unnecessary for resolution of the case before the Court.

Implications

Because Justice Scalia's suggestion that there is a cognizable federal constitutional claim for a “judicial taking” did not command a majority of the Court, it is not clear what implications Stop the Beach Renourishment will ultimately have. But consider some of the difficulties. New York courts have long held that a landlord has no duty to mitigate damages when a tenant defaults. If the Court of Appeals were to abandon that rule (as have the courts of many other states), would landlords have a claim for a judicial taking (because the court has interfered with an established property right)? And if so, which landlords ' those who had relied on the old law by not mitigating, or all landlords, who now know that in the future they will have to mitigate? Until Stop the Beach Renourishment, no one would have thought that such judicial evolution of the common law would raise federal constitutional claims, but Justice Scalia's endorsement of judicial takings ' together with this assertion that a taking can arise when the state transfers property from one private owner to another ' raises the possibility that all evolution of state property law might be subject to federal constitutional scrutiny. It is no wonder, then, that four of the justices were unwilling to start down that path, and it seems unlikely that a majority will move in that direction any time soon.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.