Ken Klukowski: Justices Debate Whether Courts Can Take Property


ACRU Staff


December 3, 2009

This column originally appeared on on December 2, 2009.

If government action takes your property, the Constitution says government must give you fair market value for it. But what if a court takes your property? That’s what the Supreme Court is going to decide.

Government can take your property for public use under what is called “eminent domain.” The Takings Clause of the Fifth Amendment to the Constitution requires that if government action takes away your property–say, to build a bridge or a school–then that government must give you “just compensation,” meaning full market value for your property.

This has been a big issue in recent years, since the 2005 decision Kelo v. New London. In Kelo, the Court upheld by a 5-4 vote the taking of Susette Kelo’s house by eminent domain to build shops. (By the way, that land sits vacant and undeveloped. Kelo’s house was leveled to the ground, but the company hasn’t built any shops.)

But eminent domain almost always comes from the legislature passing a law or the executive branch deciding that it needs a plot of land. What about the courts? Can a court decision amount to a “taking” under the Fifth Amendment?

On Dec. 2, the Supreme Court heard arguments in the first real Takings Clause case to reach the Court since Kelo. And after forty-two years of debate among scholars, this case, Stop the Beach Renourishment v. Florida Dept. of Environtmental Protection (“Stop the Beach”), finally gives the Court a chance to settle whether there is such a thing as a “judicial taking” and how to deal with such cases.

Under traditional law (called “common law”), a person who owns waterfront property owns that land as private property up to the “mean high water line”–the average point where high tide touches the land. Out into the water from that line, it’s public land. Everything landward of that line belongs to the owner.

That line can change over time. If the beach erodes and the water advances inland, the owner loses property. If the beach expands, pushing the water out over time, the owner gains property.

Florida passed a law years ago to fight beach erosion. Under this law, the state carts in dump-trucks of sand to rebuild beaches. This benefits some property owners, for whom the water erosion went so far that it was eroding the foundation under their houses.

But other owners didn’t make out so well. For them, the water posed no danger. This extra sand–in many places over 70 feet wide–separates them from the waterfront that they paid extra money for when they bought that plot of ground.

This issue was tied up for years in the Florida courts, determining what rights the owners have. In the Stop the Beach case, the Florida Supreme Court decided by a 5-2 vote that the owners don’t have property rights in this newly-created beach; their property no longer reaches to the water. The affected areas are public land, where people can walk, lay down, set up a hotdog stand, or do whatever they want.

But the Florida court also held that this is not a “taking,” and so the government doesn’t owe anyone any money. So many landowners who bought what was originally beachfront property now only have beach-view property, a view that could include hundreds of people laying down or playing volleyball between the owner’s house and the ocean.

The U.S. Supreme Court is considering whether the property rights extend to the property, such that Florida would have the choice of either allowing the owners to exercise all their rights (including the right to exclude others from walking on their beach land) or have to pay to the owners for their loss.

The issue is made more complex because of all sorts of traditional legal rules. The common law is a little different in each state. Also, in Florida your rights are different from land changes that occur over time versus sudden, unexpected changes. And the Florida statute creating this restoration program also protects certain rights such as the right to access the water as if you still had land going all the way to the waterline.

Because of these issues, it’s not clear which way this case will go. Three of the liberal justices–including Obama’s pick, Justice Sotomayor–seemed to suggest that there is no “taking” here that government needs to compensate. Both of George W. Bush’s picks, Chief Justice Roberts and Justice Alito, clearly think there is a “taking.”

But it’s not completely clear where the other justices come down. It looked like the Court is poised to rule that there is a “taking” by a 5-3 vote, but you can’t be sure from how argument unfolded.

Conspicuously absent from the bench was the normally-vocal (and stridently liberal) Justice Stevens. Stevens reportedly owns waterfront property in Florida, so it’s likely that he recused himself from this case because of the conflict of interest. Without him, if the Court ties at 4-4, it leaves the Florida court decision intact.

Property rights were one of the most important issues to the Founding Fathers. Historically, the king had title to all land in Great Britain. That was one of the king’s greatest controls over his people. He could take land from anyone and reassign it to someone else, and in doing so could decimate his detractors, reward his friends, buy off influential people, and show everyone that he had the ultimate trump card to ensure loyalty and obedience.

So the Founding Fathers believed that a person couldn’t truly be free without the right to own property that no one could take away, because no one can be self-sufficient without property. Government sometimes needs land for public uses, but by forcing government to give the owner full value for the property, it both discourages government from taking property when it doesn’t really need it and also makes sure that private citizens have the means to get equal-value property somewhere else.

That’s why conservatives and libertarians weighed in strongly in this case, arguing for the rights of property owners. We’ll find out shortly whether the High Court agrees.



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