chevron-down Created with Sketch Beta.
November 03, 2011 Articles

Justice Scalia Uses "Foreign Sources" to Support Judicial Takings

The plurality opinion in <i>Stop the Beach Renourishment</i> references woodchucks, the Queen of Hearts, and Orwell.

By Joseph Z. Fleming – November 3, 2011

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,No. 08-1151, 130 S. Ct. 2592 (2010), Justice Scalia stated at the outset that “We consider a claim that the decision of a State’s court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the States through the Fourteenth . . .” 130 S. Ct. at 2597. While that issue was raised by the petitioners, the Supreme Court concluded that the state had not engaged in a taking as contended. This was because the petitioners, based on an analysis of the Florida law, including common-law rulings, failed to establish ownership of property allegedly taken and the “Florida Supreme Court’s decision did not contravene the established property rights of petitioners.” Id. at 2613. The Court concluded the claim of the petitioners as members of an organization of beachfront, or littoral, owners contesting a state program, which would expand eroded beachfront (by “renourishment,” or depositing sand in restoration and then maintaining it in “nourishment”), did not eliminate the owners’ property rights as to their existing property; the extended beachfront that would occur thereafter (and only through natural slow deposit, or “accretion”); or their beachfront “access” to the water. As a result, the Court affirmed the decision of the Supreme Court of Florida, which had concluded that the statute enabling the restoration of the eroded beaches (and then maintenance for nourishment), was not an unconstitutional taking. The Florida Supreme Court had set aside an appellate court order concluding to the contrary (and ruling in favor of the petitioners’ organization, which represented many beachfront owners).

The facts of the case are intriguing at a time when beaches are being eroded and there are concerns about rising tides. From a water law point of view, the Court’s analysis that state law would control whether the petitioners had property taken is extremely important. In terms of the public-policy implications, the potential for erosion of the shorelines to continue, and concepts of restoration and nourishment, which expand the shoreline and therefore are of direct concern to both property owners and the public, are also important. In terms of property rights, all land use and environmental-law regulation may involve “taking” questions.

The approach of evaluating a judicial taking also may impact many other areas of the law. Federal and state courts’ decisions could be subject to scrutiny in various matters involving and impacting private property. For example, in Morton v. Zuckerman-Vernon Corp., 290 So.2d 141, 145 (Fla. 3rd D.C.A. 1974), a Florida appellate court found that if a judicial ruling improperly impairs and abrogates obligations of contract by judicial action, it is a taking of property without due process in violation of state and federal constitutional prohibitions. See also Phillip Morris USA v. Williams, 127 S. Ct. 1057 (2007), which set aside a large verdict as a violation of due process by taking property because of a desire to punish for harming persons not before the Court.

The points discussed in Stop the Beach Renourishment also are of extreme importance. For illustrations and detailed articles regarding the decision, see, e.g., Laura S. Underkuffler,Judicial Takings: A Medley of Misconceptions, 61 Syracuse L. Rev. 201 (2011); D. Benjamin Barron, The Complexities of Judicial Takings, 45 U. Richmond L. Rev. 903 (2011); Michael B. Kent, Jr., More Questions Than Answers: Situating Judicial Takings Within Existing Regulation Takings Doctrine, 29 Virginia Envtl. L.J. 143 (2011); Robert H. Thomas, Mark M. Murakami & Fred R. Eyerly, Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vermont L. Rev. 437 (2010).

This article focuses on Justice Scalia’s conclusion, which discussed fashioning a new standard for the concept of a judicial taking—although he and all eight of the Supreme Court justices involved in the decision (Justice Stevens took no part in the decision of the case) voted to affirm the Supreme Court of Florida and to reject the petitioners’ request for relief, because they did not have a property interest under Florida law. While the Court was unanimous in concluding that there was no unconstitutional taking of property in the case, there were concurring opinions by Justice Kennedy (joined by Justice Sotomayor) and Justice Breyer (joined by Justice Ginsburg), which disagreed with the plurality conclusion that federal courts may review the private-property-law decisions of state courts to determine whether their decisions unconstitutionally take “private property” for “public use without just compensation.”

Because none of the justices disagreeing with the concept of a judicial taking concluded that there could never be judicial takings but rather, maintained that it was not necessary to accept that approach in this case, in addition to the plurality opinion, an important judicial approach with constitutional dimensions has been established, whether or not there is agreement by those analyzing it. Therefore, it becomes important to analyze the plurality opinion, in which Justice Scalia, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, concluded there could be a judicial taking.

The opinion of Justice Scalia included references to “foreign sources,” in the process that Justice Scalia used to conclude that to answer the petitioners’ question of whether the Florida Supreme Court engaged in a taking, it was necessary to evaluate the principles of taking law and whether the Takings Clause was only addressed to a “specific branch, or branches.” 130 S. Ct. at 2601. Justice Scalia reasoned that to avoid that necessity while ruling on the petitioners’ request was comparable to the “perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?” This judicial taking issue had to be addressed and “[o]ur precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary.” Id. at 2603. He reached that conclusion by relying on the following decisions:

1.      In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the California Supreme Court had overruled its prior decision holding that the California Constitution’s guarantees of the freedom of speech and of the press, and of the right to petition the government, did not require the owner of private property to accord those rights on his premises. The owners of a shopping center had, as a result of the judicial change imposing such freedoms on their property, contested this new judicial decision impacting their property and contended that their private property rights could not “be denied by invocation of a state constitutional provision or by judicial reconstruction of a State’s laws of private property. . . .” 130 S. Ct. at 2602.

2.      Justice Scalia noted that the decision in Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 163–165 (1980), was “even closer in point” and supported the proposition that there could be a judicial taking. 130 S. Ct. at 2602. In Webb, a purchaser of an insolvent corporation interpleaded the corporation’s creditors, placing the purchase price in an interest-bearing account in the registry of the circuit court, to be distributed in satisfaction approved by the receiver. The Florida Supreme Court had construed an applicable statute to mean that the interest on the account belonged to the county because the account was considered public money. Justice Scalia concluded that the Takings Clause “bars the Statefrom taking private property without paying for it, no matter which branch is the instrument of the taking.”

None of the four justices, in the separate concurring opinions (dissenting from the plurality opinion that there could be a judicial taking), distinguished, no less mentioned, the foregoing Supreme Court decisions relied on by Justice Scalia. Justice Kennedy noted that, as Justice Breyer had observed, the case did not require the Court to determine whether or when a judicial decision determining the rights of property owners can violate the Takings Clause. Justice Kennedy maintained that there were other alternatives preferable to resolving all of the issues raised by Justice Scalia’s opinion on judicial takings. He felt that: “These difficult issues are some of the reasons why the Court should not reach beyond the necessities of the case to recognize a judicial takings doctrine.” Justice Breyer also disagreed with “the plurality” because its opinion “unnecessarily addresses the questions of constitutional law that are better left for another day.” Justice Breyer was not interested in evaluating a matter that did not have to be evaluated in the case. After giving his various reasons, he opined that: “In the past, Members of this Court have warned us that, when faced with difficult constitutional questions, we should ‘confine ourselves to deciding only what is necessary to the disposition of the immediate case.’” Justice Breyer also quoted Justice Brandeis, who had suggested, in Ashwander v. TVA, 297 U.S. 288, 346–347 (1936):

The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

130 S. Ct. at 2619. Justice Breyer concluded, “I heed this advice here. There is no need now to decide more than what the Court decides in Parts IV and V, namely, that the Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’”

Justice Scalia addressed the concurring opinions of Justice Kennedy and Justice Breyer, which dissented from the conclusion that there could be a judicial taking. And Justice Scalia used “foreign sources,” in the sense that they were non-legal sources and authorities to examine the arguments that the Court did not have to address the question of whether there would, or could, be a judicial taking.

The Perplexing Woodchuck Question
The first non-judicial, or foreign, source that Justice Scalia evaluated was whether a decision had to be made as to the judicial taking. This involved the woodchuck question. Justice Scalia said:

One cannot know whether a takings claim is invalid without knowing what standard it has failed to meet. Which means that Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the ‘unnecessary’ constitutional question whether there is such a thing as a judicial taking.

Id. at 2603.

Justice Scalia said that it was not true that deciding a constitutional question contradicted settled practice. He indicated that the Court often recognized the existence of a constitutional right or established test for the violation of such a right, and then went on to find why that claim at issue failed, or not.

The Queen of Hearts Approach
Justice Scalia then addressed the next “foreign source,” which was his conclusion that “Justice Breyer cannot decide that the Petitioners’ claim fails without first deciding what a valid claim would consist of.” Justice Scalia asserted that Justice Breyer “must either agree with the standard or craft one of his own.” He said that Justice Breyer’s position was paramount to “embracing a standard while being coy about the right,” which Justice Scalia characterized as “odd.” Justice Scalia concluded that “deciding this case while addressing neither the standard nor the right is quite impossible” (emphasis in original). He stated that Justice Breyer’s response that he “simply advocates resolving this case without establishing ‘the precise standard under which a party wins or loses,’” id., meant that Justice Breyer relied upon no standard at all. Justice Scalia then referenced the second foreign source, the Queen of Hearts, stating that by relying on no standard at all, precise or imprecise, Justice Breyer

simply pronounces that this is not a judicial taking, if there is such a thing as a judicial taking. The cases he cites to support this Queen of Hearts approach provide no precedent. In each of them, the existence of the right in question was settled, and we faced a choice between competing standards that had been applied by the courts. We simply held that the right in question had not been infringed under any of them. There is no established right here, and no competing standards.

Id.(emphasis in original).

It may be presumptuous to assume that the Queen of Hearts reference is a “foreign source,” because Justice Scalia did not explain the reference. Generally, the reference used in legal discussions is to Lewis Carroll’s Alice in Wonderland and involves the trial of Alice and the pronouncement by the Queen of Hearts: “First the verdict, then the trial.” Perhaps Justice Scalia had something else in mind, but the reference is still “foreign” in that it was not a citation to a legal provision, or a judicial opinion, or even a common-law principle. But, it was a reference to a “foreign source” to suggest that Justice Breyer had no right to affirm the Florida Supreme Court decision and deny the relief sought by the petitioners, who were members of an organization of beachfront owners, without giving a reason in addition to the failure of the owners to actually have a property right.

The Orwellian Explanation
Justice Scalia then analyzed Justice Kennedy’s conclusion that “the Florida Supreme Court’s action here does not meet the standard for a judicial taking, while purporting not to determine what is the standard for judicial taking, or indeed whether such a thing as a judicial taking even exists.” Justice Scalia focused on Justice Kennedy’s statement that “we need not take what he considers the bold and risky step of holding that the Takings Clause applies to judicial action, because the due process clause ‘would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat.’”

Justice Scalia concluded that Justice Kennedy invoked the due process clause “in both its substantive and procedural aspects,” although “not specifying which of his arguments relates to which.” At this point, Justice Scalia rejected the concept that either procedural or substantive due-process law would be a substitute to “do the job.”

Justice Scalia felt that in trying to avoid what Justice Kennedy called “the bold and risky step of holding the Takings Clause applies to judicial action,” Justice Kennedy would have the Court use procedural due process to impose judicially crafted separation-of-powers limitations on the states, and the concept that courts cannot be used to perform the governmental function of expropriation under that theory because legislative and executive branches were accountable for takings. Justice Scalia concluded these reasons might have a lot to do with “sound separation-of-powers principles that ought to govern a democratic society,” but had nothing to do with “protection of individual rights” that is the objective of the due process clause. Justice Scalia stated that the Court had no ability to reach a conclusion where “the citizen whose property has been judicially redefined to belong to the State would presumably be given the Orwellian explanation: ‘The court did not take your property. Because it is neither politically accountable nor competent to make such a decision, it cannot take property.’” (This additional “foreign source” was, it can be assumed, a reference to George Orwell’s 1984).

After discussing additional concerns about procedural due process, Justice Scalia concluded that substantive due process was not to be used to do the work of a Takings Clause, because “‘Where a particular Amendment provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’” Id. at 2606.

Justice Scalia also noted that “we have held for many years (logically or not) that the ‘liberties’ protected by Substantive Due Process do not include economic liberties.” Justice Scalia stated that Justice Kennedy’s language—that if a judicial decision eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law—was incorrect. It “propels us back to what is referred to (usually deprecatingly) as ‘the Lochner era.’ See Lochner v. New York, 198 U. S. 45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action.” 130 S. Ct. at 2606.

Justice Scalia’s references to “a step of much greater novelty” and “much more unpredictable effect than merely applying the Takings Clause to judicial action” should not go unnoticed. It may be that Justice Scalia has reserved that “step” for another time. Also there may be many more such issues (steps) in the future. 

Justice Scalia then went on to discuss other perceived deficiencies in the analysis of Justice Kennedy. Justice Scalia concluded that Justice Kennedy’s concern—that allowing the courts to determine whether there was a taking might empower the courts and encourage their expropriation of private property—was incorrect. Justice Scalia used this as a way of expanding on his concept of what a taking by the judiciary could mean. He stated that state-court justices could not enter new rules adjusting rights of property owners “comfortable in the knowledge that their innovations will be preserved upon payment by the State,” under the takings concept, which Justice Scalia proposed, because that was impossible. He stated if the Court were to hold that “the Florida Supreme Court had effected an uncompensated taking,” there would not be an invalidation of the taking by ordering Florida to pay compensation. As a result, Justice Scalia was not going to conclude that the state judges, or the state legislature, would have to pay for the taking, if it were found, but only that the matter would then be referred to the state legislature, to determine whether or not the taking would be upheld, or would be one that would be compensated for by funding. Justice Scalia concluded that the only realistic incentive that subjecting judges to the Takings Clause might provide would be the incentive to get reversed, “which in our experience few judges value.”

Conclusions about What Could Be Future Chucking
The plurality opinion—consisting of four justices concluding that there could be a judicial taking—was not opposed by the remaining four justices (concurring as to the affirming of the Florida Supreme Court decision that there was no taking, but not agreeing that the judicial-taking theory should be considered). These dissents from the opinion of Justice Scalia did not contend a judicial taking was prohibited by law, but rather contended it invoked an unnecessary decision. In addition, none of the four justices, refusing to find judicial taking, concluded that could never occur. This decision also raises some interesting issues.

Justice Scalia was propounding the arguments in favor of the concept of a judicial taking, and as noted, no one concluded that there could never be such a taking. The arguments for restraint and the use of alternatives were not argued to be prohibitive of a judicial taking. Thus, the plurality approach was not followed, but was not opposed as being totally precluded. This could mean that the plurality opinion is a foundation for a series of new options.

Justice Scalia previously (before joining the Court) wrote about narrowing standing. He might have concluded that, once petitioners were found not to have the property they claimed was taken, they had no standing to raise the question of whether there had been a taking. See Antonio Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881 (1983). If Justice Scalia wanted to use Article III concepts he has written about, which relate to standing, he could have concluded that the so-called property owners owned property adjacent to an area that would be filled, which was already owned by the state under Florida law, and therefore should not be before the Court. He could have also contended there were no Article III “cases” or “controversies.” Justice Scalia also could have contended that if those who actually owned property, and have an arguably greater potential to be injured, do not have standing in such a situation, then groups that are arguably less affected, such as environmentalists and conservation groups, definitely would not have standing in an analogous situation. He chose not to do that, and opted for the judicial taking approach. Perhaps Justice Scalia did not have to, and did not want to, use a narrowed standing argument, something he has advanced before. Perhaps those dissenting from the judicial taking approach also did not want to raise a standing issue, which could later reduce standing further. However, if the judicial taking approach is available, it could be used to diminish, dissuade, or chill environmental protection and/or other types of claims by those seeking enforcement of regulatory results allegedly impacting various types of private-property interests.

The Constitution does provide for prohibitions against “private property” being “taken for public use, without just compensation,” and the Court’s decisions have concluded that, in addition to inverse condemnation, there can be regulatory takings. Justice Scalia has now presented an approach that may justify either a possible claim, or a defense. If you were seeking to invalidate a taking of property, you could assert that there was a constitutional basis for challenge of judicial taking, by using the plurality opinion. If you were being regulated and you wanted to argue that the regulation would amount to a taking, and the imposition of that by the judiciary would be a judicial taking, you could assert that as an affirmative defense. You could even raise such issues as to federal court rulings and also do so as to regulatory matters other than in land-use and environmental cases.

The “foreign sources” relied upon by Justice Scalia, such as the woodchuck, or the Queen of Hearts, and even the Orwellian references, are not cases. But they do show that Justice Scalia created a dialogue in his plurality opinion by raising references to frame analysis, which now could be the basis for future debates. The importance of this for those involved in litigating issues, which relate to not only water law but broader concepts of land-use and environmental law and also many other regulatory areas, is unique. All sides now have additional legal issues and arguments to contend with; what kind of approaches could be taken if the judicial approach could be taken to challenge judicial taking is a “perplexing question” indeed. We could look forward to seeing what kind of ideas would, and could, be chucked as a result.

Keywords: litigation, environmental litigation, Scalia, Woodchuck, Queen of Hearts, Orwell, due process, stop the beach renourishment

Joseph Z. Fleming is a shareholder in the Miami, Florida, office of Greenberg Traurig, P.A.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).