In Scheehle v. Justices of the Supreme Court of Arizona,No. 05-17063 (Nov. 15, 2007), the Ninth Circuit held that Arizona’s”low bono” requirement that all attorneys serve as arbitrators for $75per day, maximum two days, is not a taking. It’s probably safe tosurmise that the plaintiff’s position probably received little sympathyoutside of certain members of the Bar:
Mark V.Scheehle, an Arizona tax lawyer, challenges as an unconstitutionaltaking the Arbitrator Appointment System of the Maricopa CountySuperior Court (“Appointment System”), which requires that anexperienced attorney serve as an arbitrator for up to two days a yearwith minimal compensation. Following a decision by the Arizona SupremeCourt that the Appointment System was permissible under Arizona law,the district court reaffirmed its grant of defendants’ motion forsummary judgment. We now affirm. We hold that Scheehle’s constitutionalchallenge to the Appointment System is properly considered under theregulatory takings test set forth in Penn Central Transportation Company v. City of New York,438 U.S. 104 (1978), and applying that test, we conclude that theimpact of the Appointment System on Scheehle does not amount to ataking for which Scheehle is entitled to compensation under the FifthAmendment.
The plaintiff claimed that the government took hisproperty (the difference between his usual hourly fee and the $75 perday stipend he received under the arbitration program, and hisunreimbursed out-of-pocket expenses), and transferred itto another private party, without compensation.
I haven’t had a chance to fully digest the opinion yet, so in the meantime, go here for the thoughts of University of San Diego Law School Professor Shaun Martin at his California Appellate Report, and here for a summary and links from the California Blog of Appeal.
Oral argument recording here (4mb wma).
[*I wish I could take credit for the “low bono” label, but it’s not mine– a fellow Honolulu lawyer used the term to describe thoseless-than-the-usual-fee cases that we sometimes undertake as a publicservice.]
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Carl Christensen asked a thoughtful and interesting question in a comment, so I am transferring venue here:
The Ninth Circuit’s decision relies heavily on Powell v. State ofAlabama, 287 U.S. 45 (1932), United States v. Dillon, 346 F.2d 633 (9thCir. 1965), and United States v. 30.64 Acres of Land, 795 F.2d 796 (9thCir. 1986), to support its conclusion that attorneys may properly berequired to provide pro bono representation. In all three of thesecases, however, the courts were requiring attorneys to provide pro bonoservices to indigent litigants. The Arizona rule has no suchlimitation, however, and since Arizona requires arbitration in caseswhere the amount in controversy may be any amount up to $65,000, itwould be logical to assume that a significant number of the litigantsin cases subject to arbitration will not be indigent. If licensedattorneys must provide pro bono services to litigants who are notindigent, the economic effect of the rule would be to require them tosubsidize private non-indigent litigants who would likely be quitecapable of employing arbitrators at commercial rates (and indeed maywell already be employing private attorneys who are being paid at theirnormal hourly rates). If Mr. Scheehle’s objection had been limited toany requirement that he provide pro bono services to non-indigentlitigants, could he have argued that the court rule, as so applied,violated the Takings Clause because it provides only a purely privatebenefit?
There may well be a good argument that if the government’s goal was toprovide arbitration services to those who cannot otherwise afford them (likethe pro bono programs established by many bar associations), thatrequiring the lawyer-plaintiff to donate his services to people who canafford them for less than full compensation does not advance that interest very well. The indigent deserves Mr. Scheehle’s reduced-fee services more than Bill Gates, for sure. But after Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005), I don’t see this as a Takings Clause argument.
In examining the question of whether the regulation improperlytransferred too much of Scheehle’s property to undeserving parties, acourt would likely approach it as a Due Process question. After Lingle,absent an attempt by the government to affirmatively take privateproperty by eminent domain, the question of whether government’sactions serve legitimate public goals, or will effectuate a legitimatepublic purpose is treated under the Due Process Clause, although Kelo and Lingleblurred the lineseparating public use challenges and substantive due processchallenges. Same test different label, perhaps. If property ownersare challenging the regulation as illegitimate and seek to invalidateit, they proceed under Lingleand due process; but if it’s compensation they seek, the touchstonesare the regulatory takings doctrine (the per se categories, or as in Scheehle, the Penn Central test).