Recently, in Intellectual Laziness on the Supreme Court, a short essay about the Supreme Court’s recent Equal Protection decision about unequal property assessments, Professor Richard Epstein wrote, “[i]t’s time to scrap the irrational ‘rational basis test.'” Decisions like the Ninth Circuit’s recent opinion in Samson v. City of Bainbridge Island, No. 10-35352 (9th Cir. June 15, 2012) make you think he’s onto something.
We were about to do a detailed post about the case, when our partner Mark Murakami beat us to it, so we won’t repeat the facts or the panel’s analysis (more accurately, lack of analysis, given the application of the “rational basis” test) here. Instead, we offer these thoughts:
- A property owner can win in state court, and obtain a ruling that a temporary building moratorium is unconstitutional, but a permanent prohibition is not? That’s because the ruling was one of Washington state constitutional law. Wait, I thought the courts are supposed to treat state and federal constitutional claims as if they were the same?
- If an opinion by a left-leaning judge starts off with language that sounds too good to be true to a property owner (“‘Full indeed is earth of woes and full the sea,’ remarked Hesiod, and reviewing the long odyssey of Kelly and Sally Samson, we are inclined to agree.”), don’t get your hopes up — it is too good to be true, and by the end of the opinion, the court will have ruled against the property owner (“It is surely vexing to the Samsons that they and their co-plaintiffs successfully challenged the moratorium in state court, but received no damages for their efforts..But the federal courts do not exist to to satisfy litigants who are unahppy with what they recieved in state court. Nor do they exist to second-guess the manner in which city officials promote the public welfare.”).
- The bootstrap rationale — recently affirmed by the Supreme Court in Armour — under which a regulation passes the rational basis test if there could be any conceivable basis to support, seems to have reached its nadir in this case. In Armour, the city asserted it did not have to return an unequal sewage assessment to the property owners who paid it because it would be too much hassle to do so. Here, the city asserted that it was rational to pass the construction moratorium ordinance without the usual process because it was an “emergency.” And what was the “emergency?” — if they didn’t adopt a moratorium to prevent property owners from vesting their property rights, their property rights might vest before the city had time to adopt a permanent prohibition.
Samson v. City of Bainbridge Island, No.10-35352 (9th Cir. June 15, 2012)