Ken Klukowski: Supreme Court Ducks Question on Taking Property


ACRU Staff


June 21, 2010

ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on on June 21, 2010.

The legal world has been focused on a constitutional property-rights case before the Supreme Court. Last week the Court handed down its decision, and disappointed those waiting for this decision by deferring the big question to a future case. So it remains unclear whether courts can take your property without compensating you.

The Takings Clause of the Fifth Amendment provides that the federal government cannot take your private property unless it’s for public use, and the government gives you “just compensation” (usually fair market value) for the property. In 1897, the Supreme Court held that the Takings Clause also applies through the Fourteenth Amendment to any property taken by state or local governments, as well.

This taking of property is often done through eminent domain. That’s the power of the government to claim private property for itself. It’s either done through a law passed by the legislative branch of government, or through a condemnation decision by the executive branch. Eminent domain is how most roads, schools, libraries, and other public works are built.

One question that’s been kicking around for decades is whether a court judgment from the judicial branch can likewise be a taking that triggers the Takings Clause. If a judge makes a decision that takes away your property, does the Takings Clause command that it must be for a public use, and must you receive just compensation? In short, is there such a thing as a judicial taking?

We thought the Supreme Court was finally going to answer that question in this year’s case of Stop the Beach Renourishment v. Florida Dept. of Environmental Protection.

In this case, Florida has a program to lay down additional sand on certain beaches that have been eroded. Property rights are almost exclusively a matter of state law. Under Florida law, a person with waterfront property owns that property to the high-tide waterline, and then the land outward into the water belongs to the public. If sediments build up to push the high-waterline outward, then the owner gains property. If the land erodes into the water, then the owner loses property.

The group of Florida landowners suing in this case owned waterfront property. The state had put down extra sand, and so the question was whether their property line now extended outward with the new land. When a Florida state court ruled that they didn’t gain any property, they carried this case all the way up the chain to the U.S. Supreme Court, arguing that the Florida court’s decision has deprived them of property, and thus that the decision triggered the protection of the Takings Clause.

Legal scholar hoped that we would now have a definitive rule as to whether there’s such a thing as a judicial taking. They were wrong.

The Court held that what happened in Florida was not a taking because of the law of avulsions. Under Florida law, if your land slowly grows through a process of accretion, you gain property rights to the new land. But if a hurricane or other sudden event just dumps a bunch of extra sand or dirt on your shoreline, then you do not gain any property rights to this abrupt gain in land (called an avulsion).

Holding that having a big truck suddenly dump a few tons of sand on your waterfront shore was more like an avulsion than an accretion, all eight justices hearing this case agreed that the property owners didn’t gain any rights to that new property. (There were not nine jusices on this case since Justice Stevens recused himself because he owns waterfront property in Florida that would be impacted by this decision.) Since the property owners had no rights to the additional land, the state court’s decision against them never amounted to a loss of property. Without a loss of property, there is no Takings Clause claim.

The four conservative justices, in an opinion written by Justice Antonin Scalia, wanted to go further, arguing that the courts can indeed take property just like a legislature or executive, and that if so, then it activates the protections of the Takings Clause, requiring both public use and just compensation for the property owners. They sought to hold that there is such a thing as a judicial taking.

However, Justice Anthony Kennedy and the four liberal justices declined to answer that question. Since there was no taking of property in this case one way or the other, they decided to hold off on that question until another day. Without five votes, the issue remains open.

So a potentially-major case ends with a fizzle, not a bang. Landowners across the country, and the lawyers representing them, will just have to wait a bit longer before it’s clear whether the Constitution protects their rights from judges in the same way it protects those rights from the political branches of government—when those rights are protected at all.



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