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▪ More on Wilkie: Is Property A Personal Constitutional Right?

More background on the Wilkie v. Robbins case, argued yesterday.

The Jackson Hole (WY) Star Tribune posts more details about the landowner Harvey Frank Robbins in this story, and sums up the issue before the Court:

Among other considerations, the high court will have to decide whether the 5th Amendment, like the 1st and the 4th, protects citizens from unlawful retaliation for exercising a presumed right.

I'd say that's just about so.  It should seem unremarkable that the express personal right of property is as much a part of the Bill of Rights as other, perhaps more familiar constitutional rights such as free speech, a free press, and freedom of belief.  It's all right there in the Fifth Amendment, which provides "nor shall private property be taken for public use, without just compensation."  The personal nature of the right is reinforced by the Fourteenth Amendment, which provides "nor shall any State deprive any person of life, liberty, or property, without due process of law." 

In Lynch v. Household Finance Corp., 504 U.S. 538, 552 (1972), the Court recognized the wholistic nature of constitutional rights, stating “[t]he dichotomy between personal liberties and property rights is a false one.”  One of the issues in Wilkie is whether the "right to exclude" that is the key component of a property right is "clearly established."  You might think, given the above, that this proposition is so far beyond argument that it would not be at issue. 

Indeed, if you examine other provisions of the Bill of Rights, you can see that the protection of individual liberty and the security of property from intrusion by both government and others go hand in hand.  For example:

• Third Amendment: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
• Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...”
• Fifth Amendment: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”)
• Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
• Lawrence v. Texas, 539 U.S. 558, 562 (2003):  “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.  In our tradition the State is not omnipresent in the home.”
  

R.S. Radford and Timothy Sandefur have posted "This Is My Land," a commentary on the issues in the case at Legal Times:

    It’s hard to imagine what else property rights might mean, other than that an owner can refuse the government’s demands without fear of reprisal. The defining characteristic of property is that it insulates us from others — creating a locus of security, privacy, and autonomy. Official retaliation for the assertion of property rights violates their very essence by piercing that shield and striking at the independence that private property protects — thus, in Blackstone’s words, “abridging man’s natural free will.”

My guess is the Court will see it that way, also. 

▪ Property Rights in the Supreme Court: Today's Argument in Wilkie

While there was much more attention devoted to today's argument in the school free speech case, another appeal argued today — Wilkie v. Robbins — deserves some light since it addresses a core constitutional issue: can the government retailiate against a property owner for refusing to surrender a Fifth Amendment right? 

Whether "BONG HITS 4 JESUS" is protected by the First Amendment may be important (and certainly more headline-grabbing), but landowners and regulators should pay special attention to Wilkie, as it may be as critical is 2005's infamous Kelo decision.  The transcript of the oral arguments is posted here.  The Solicitor General's office argued for the BLM officials; Professor Laurence Tribe argued for the landowners.

In Kelo v. City of New London, a bare majority of the Court held that a property owner is nearly powerless to object to a government demand that she give up her property, as long as the government is willing to pay "just compensation" under the Fifth Amendment's Takings Clause.  The government's position in Wilkie is far more extreme: in that case, the government wasn't even offering compensation, and when the landowner exercised his Fifth Amendment rights and refused to give up his land, government officials retaliated. 

After he sued them for, among other things, "extortion" under the RICO laws, the government officials claimed immunity because an official cannot be held liable unless the right she is alleged to violate is "clearly established," which the BLM officials claimed the right to be free from retaliation for exercising a Fifth Amendment right is not.

The justices' colloquy with the Solicitor General focused on the availability and nature of the relief the landowner would have if the Court does not recognize the RICO or Bivens claims.  When the officials argued the landowner had other remedies such as objecting to each of the BLM's incursions on his land through the administrative process, Justice Kennedy retorted,

your argument -- and I understand your argument that there's no essential free-standing cause of action for damages -- basically means he has a right to go broke with attorneys' fees challenging each individual incursion, each individual wrong.  (Tr. 6). 

Justice Ginsburg appeared to agree, eliciting from the government its position that the only remedy a landowner may have to halt a pattern of bad acts is piecemeal administrative actions (Tr. 9-10).  The Solititor General argued that administrative appeals, writing a letter to the Department of the Interior Inspector General, petitioning elected officials, and going to the newspapers were sufficient and available remedies, and that just compensation is the only remedy under the Takings Clause:

I think that what is distinct about the Bivens claim here is first Bivens and Just Compensation Clause claims are fundamentally incompatible.  And that in Bivens, its damages are nothing.  Here the constitutional right actually explicitly provides a remedy, just compensation.  (Tr. 21).

I think this misses the point of the landowner's claims.  He is not seeking relief for a violation of the Takings Clause, at least directly.  He did not ask for the two most common remedies under the Takings Clause: an inverse condemnation claim for damages (see, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)), or the invalidation of the government action (see, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)).  Instead, his claims are based on the allegations that the officials broke federal RICO statutes and committed a "constitutional tort" (Bivens) when they retaliated against him for asserting his constitutional property rights. 

Were this done in any other context but property, it would be unremarkable to suggest that the officials would not have immunity.  The government is prohibited from firing you, for example, when you exercise your free speech or religious rights.  Nor may a prosecutor point out the negative inferences when a criminal defendant asserts the other Fifth Amendment right, the right against self-incrimination, and refuses to testify.  There would be outrage and  calls for action if federal officials behaved the way they are alleged to have done here, were the target anyone but a property owner: breaking and entering, instituting criminal prosecutions, and "inciting a neighbor to ram his truck into the [landowner] while he was on horseback." (Tr. 32). 

More on the arguments to follow.

▪ Wilkie Transcript Posted

The transcript to today's oral arguments in the Wilkie v. Robbins case is posted here.  More to follow after a chance to digest it.

▪ SCOTUSblog on Wilkie Land Use Extortion Arguments

SCOTUSblog has posted a detailed summary of the facts and issues in Wilkie v. Robbins, the case being argued on Monday about government's RICO immunity, the "right to exclude," and whether government officials may be held liable when they retaliate against a landowner who refuses to give up his property rights.

▪ Supreme Court Preview: Is There a Right to be Free From Government Retaliation For Defending Your Property Rights?

That's one of the three questions the US Supreme Court will consider on Monday, March 19 2007, when it hears arguments in Wilkie v. Robbins. 

The case involves a Wyoming rancher who sued officials of the federal Bureau of Land Management, claiming they began "a campaign of harassment and coercion designed to force [him] to give the Government a property interest in his land without just compensation." 

The property owner sued the BLM officials under federal Racketeer Influenced and Corrupt Organizations (RICO) laws, asserting their attempts to coerce him to surrender an easement over his land was "extortion."  Those efforts included filing false criminal and administrative charges against the property owner, harassing ranch guests, and cancelling the owner's right-of-way across neighboring BLM land.  The BLM officials claimed they were immune from suit, arguing their behavior did not violate "clearly established" law.  Northwestern U's School of Journalism has posted a summary of the facts of the case.

The Tenth Circuit ruled in favor of the property owner, see Robbins v. Wilkie, 433 F.3d 755 (10th Cir. 2006), and the Supreme Court granted review on an expedited briefing schedule. 

The Supreme Court will decide, among other issues, whether the Fifth Amendment protects against retaliation for exercising the right to exclude the government from property, or whether just compensation is the sole remedy for extortionate government conduct in land regulation.  The Court will also tackle the question of whether that rule is so "clearly established" that government officials lack their usual immunity when they violate it.   

I think so, for a couple of reasons.  First, the Fifth Amendment is a normative proscription, not just a remedial device — it provides a framework for how government and its officials are supposed to behave, not merely an after-the-fact compensation remedy.  As in other areas of constitutional law, the government is not permitted to retaliate against those who choose to exercise their rights.  Second, the right to exclude others — government included — is perhaps the most fundamental element of property ownership, so the BLM officials should not have expected that their conduct was immune. 

The merits briefs of the parties, the joint appendix, and the amicus briefs may be accessed here.  More on the case after Monday's argument.

▪ Legal Issues in Single Victim Legislation

Recently, I was a guest on Jay Fidell's ThinkTech program on Hawaii Public Radio, talking about legal issues that may arise when legislation is targeted at specific individuals or companies (what I refer to as "single victim legislation"). 

The issue raised its head when the Hawaii Legislature seemed ready to consider a proposal requiring one company — and one company only — to undertake an environmental impact statement before beginning its interisland ferry service.  Further background here and here. 

In short, whenever the government attempts to change the ground rules mid-stream, it raises several concerns:

• Contracts Clause - the US Constitution prohibits a state from enacting a law "impairing the Obligation of Contracts."  This prohibits a state legislature from altering the terms of a contract existing at the time of the law's passage, especially when directed at specific parties.  A law is even more suspect when a state is impairing its own contractual obligations by legislation.
• Vested rights and equitable estoppel - if the government has provided "official assurances" and a party has relied, it is unfair and unconstitutional for the government to change the applicable rules.
  
• Equal protection - people in similar circumstances should be treated the same, so legislatures cannot discriminate without compelling reasons.
  
• Due process - laws should be fundamentally fair and reasonable, particularly if they change long-standing rules, broadly applicable.

The podcast of these comments is posted here.

▪ Declaratory Judgments, Private Rights of Action, and Land Use Litigation

The Hawaii Supreme Court recently issued an opinion clarifying when a plaintiff may enforce a statute or ordinance by seeking a declaratory judgment.  Rees v. Carlisle (No. 26998, Mar. 12, 2007) considered the question of whether the Honolulu City Prosecutor may use public funds to advocate passage of an amendment to the Hawaii Constitution. 

The case had nothing whatsoever to do with land use.  Directly, that is.  The last section of the opinion (part E) is worth paying attention to for those who practice land use law, however, since it clarifies when a private party has a right to bring a lawsuit seeking a declaratory judgment under Haw. Rev. Stat. § 632-1.  Declaratory judgments are often the preferred remedy in land use litigation, and the opinion provides a good roadmap to the issues when that remedy is sought.

Statutes may define legal rights and obligations, but often contain no clear remedial provisions or any indication who may enforce the statute.  The question the court analyzed is whether a plaintiff can seek a declaratory judgment that the defendant is violating such a statute.  Relying on the language of  § 632-1 granting court jurisdiction to make "binding adjudications of right," the court held that "the declaratory judgment statute thus makes clear there must be some 'right' at issue in order for the court to issue relief."  In other words, the plaintiff must be seeking to enforce a "right" created by the statute, which is determined by examining whether the legislature intended to benefit or protect persons such as the plaintiff when it enacted the statute in question.

I will be dealing with the interplay between declaratory judgments, administrative law, and the often grey area between state and county regulatory agencies and the courts in an upcoming seminar in Honolulu, "Practical Guide to Zoning and Land Use Law" (Apr. 5, 2007).  I'll be covering the topic "Appealing an Administrative Zoning Decision," which will deal with private rights of action, standing, and jurisdictional questions in land use litigation.  Full details and registration information here.  Hope you can make it.

▪ Podcast of KIPO FM 89.3 Appearance (mp3)

Hawaii Public Radio, KIPO FM 89.3, has posted the podcast of my commentary during Jay Fidell's program on potential constitutional problems with legislation targeting specific individuals or companies. 

Click here for the streaming media, or here to download the 54MB mp3.  My comments begin at the 19:10 mark.

▪ 9th Circuit Limits Clean Water Act Jurisdiction

Ninth Circuit holds in San Francisco Baykeeper v. Cargill Salt Division (Nos. 04-17554, 05-15-51, Mar. 8, 2007):

We conclude that the district court improperly expanded the regulatory definition of "waters of the United States" when it held that bodies of water that are adjacent to navigable waters are subject to the CWA [federal Clean Water Act] by reason of that adjacency.  Our conclusion is based on the CWA, the regulations promulagated by the agencies responsible for administering it, and the decisions of the Supreme Court addressing the reach of the Act and its regulations.

More on the CWA here.

▪ RICO, Nollan/Dolan, and "Extortion"

Nollan/Dolan meet Don Corleone.  The Maui News reports on a homegrown version of the Wilkie v. Robbins issue, the case set for argument in the US Supreme Court on March 19, 2007.  The issue is whether government officials can be sued under federal "RICO" anti-racketeering laws.  Wlkie involves the federal Bureau of Land Management's attempts to wrest an easement from a Wyoming rancher in return for land use permissions, and a report of the Maui case is here.