The Nerve Of Those Californians, Vindicating Federal Constitutional Rights In Texas Federal Courts!

As we noted in this post, the recent U.S. Court of Appeals for the Fifth Circuit decision in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009) is garnering a lot of commentary for the dissenting judge's opening ad hominem and the majority's terse response.  Earlier, we summarized the substantive issues in the case, which involve the Fourth Amendment's seizure requirements in a takings-esque fact pattern -- which are, ultimately, more interesting that this distraction -- but wanted to comment briefly.

The case involves a Texas property owner -- but (quelle horreur!) a resident of California -- who seeks to prevent Texas officials from enforcing a Texas statute regulating beachfront ownership because it would either take her property without just compensation, or is an unconstitutional seizure (or both).  The Fifth Circuit affirmed the dismissal of her takings claim as unripe for federal review under Williamson County, but held that her Fourth Amendment seizure claim was not subject to that case's ripeness requirement. Ultimately, the majority certified the questions of state law relevant to the seizure issue to the Texas Supreme Court. 

One of the panel's three judges dissented, however, and to say that his dissent was unusual is somewhat of an understatement, because he begins the opinion with an attack on the plaintiff and her lawyers, Pacific Legal Foundation.  [Before we go further, I must disclose that I do PLF's work in Hawaii, so I am viewing this from the perspective of one who has a (slight) stake in the issue.  Also, a disclaimer: the views expressed here are my own, not PLF's which can be found here.]

The dissent attacked on two grounds: (1) that the plaintiff and her lawyers are from California and (2) that the case is part of a "thinly veiled Libertarian crusade." Here's the full text:

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit's published mission statement declares that its raison d'être includes "defend[ing] the fundamental human right of private property," noting that such defense is part of each generation’s obligation to guard "against government encroachment.") The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians' Cervantian tilting at Texas’s Open Beaches Act ("OBA") is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum
knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority's reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance's action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Slip op. at 22-23 (footnote omitted) (emphasis original).  Most of the criticism of the dissenting opinion has focused on its knock against the "thinly veiled Libertarian crusade" (see here, here, and here, for example), and rightly asks why a litigant's or attorney's motivations are in any way relevant to the resolution of the issues. After all, hardly a peep is heard when other public interest organizations litigate pro bono on issues of public importance, and a goodly portion of the federal courts' civil docket would disappear if "test cases" and public interest cases could somehow be dismissed simply because they were part of "a [insert your political philosophy here] crusade."  Federal courts have article III standing requirements and other prudential doctrines to avoid advisory opinions and to preserve federalism, but there's little doubt that if a federal court has subject matter jurisdiction over a controversy, it has some obligation to consider it, even if the plaintiff and her lawyers may also have some larger view of the goals of the case.

However, what makes us the most uneasy about the dissenting opinion is its openly hostile labeling of the plaintiff and her lawyers as "these Californians."  We might be tempted to characterize it as an uncontrolled outburst of local Texan pride or a display of old-school "home cooking" (e.g., "'these Californians' should know that's not how we do things here in Texas"), but it appears that Judge Weiner is from Louisiana, so that dog won't hunt ("You Californians should know that's not how we do it in the Fifth Circuit" doesn't quite pack the visceral punch of the original).

It would also be different were the residence of the plaintiff and her attorneys somehow relevant to the issue in the case -- if the case were about personal jurisdiction and minimum contacts, for example.  But the residence of the plaintiff and her lawyers, their philosophical leanings, and that they are representing her without charge, have nothing to do with the case. Thus, the "meta-message" the dissenting opinion delivers is more hostile and ominous: out-of-state troublemakers do not deserve to have standing in "our" courts.

Shades of Jim Crow sentiments have no place in a judicial opinion, and in the end, any legal or logical credibility the dissent may otherwise have possessed is lost in its gratuitous references to the state of residence of the plaintiff and her lawyers. 

The majority responded with an appropriate degree of restraint in footnote 1: 

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent "Context"), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

Slip op. at 2 n.1.  Download the opinion and the dissent here.