Notes From The ABA Panel On The Judicial Takings Case (Stop The Beach Renourishment v. Florida Department of Environmental Protection

On Friday, at the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law along with the Section of Real Property, Probate, and Trust Law co-sponsored a panel discussion of what was the most fascinating case of the Supreme Court's recently-concluded term, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010).

(Photo, from left to right: Dan Stengle, John Echeverria, James Burling, Richard Frank, and Robert Thomas; photo courtesy Dwight Merriam)

This Term, the Court dealt with corporate speech, guns, "crush videos," process patents, and Sarbanes-Oxley, but in Stop the Beach Renourishment, the Court attempted to tackle the most metaphysical of questions: can a state supreme court decision "take" property by changing the law? In the case, the Court came tantalizingly close to holding that a state supreme court decision can run afoul of the Fifth Amendment's Takings Clause and take property without just compensation. The Court concluded that the Florida Supreme Court's decision didn't, but four justices set out their theory of judicial takings, two justices argued these situations should be analyzed as substantive due process questions, and two justices concluded "not now, but maybe later."

I moderated a panel of experts: James Burling (Pacific Legal Foundation), John Echeverria (Vermont Law School), Richard Frank, University of California, Davis Law School), and Dan Stengle, (Hopping Green & Sams, Petitioner's counsel). It was an informative, and often combative discussion. With the Court leaving us hanging, the panelists discussed not only the case as decided, but provided insight for what the next case may bring.

Each of us filed briefs in the case. Dan, as the attorney representing Stop the Beach Renourishment, filed the Brief for Petitioners. I filed an amicus brief for Owners' Counsel of America (supporting the Petitioners). Jim Burling filed an amicus for The Cato Institute and Pacific Legal Foundation (supporting the Petitioners). Professor Echeverria supported the Respondents with the amicus brief of the American Planning Association. Professor Frank supported the Respondents with the amicus brief of Coastal States Organization.

Here are the links to the cases, articles,& other items discussed:

• Florida Supreme Court opinion (Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)).

• The opinion of the District Court of Appeal is available here.

• Gibson v. American Cynamid Co., No. 07-C-864 (E.D. Wis., June 15, 2010) - the decision mentioned by Professor Echeverria.

• The "Givings Clause?" - Tom Toles web only sketch from the Washington Post certainly captures one of the arguments made by Florida. Dan Stengle pointed out that the Petitioners never wanted the "renourishment" and argued it wasn't really necessary, and that in oral argument, most of the Justices indicated that any benefit to the littoral property should be taken into account in determining compensation and not liability.

• Professor Echeverria's forthcoming article Stop the Beach Renourishment: Why the Judiciary is Different (Aug. 2, 2010).

A majority of the hour-and-a-half session was devoted to the panelists answering questions. Here is a sampling (for the answers, you should have attended! But not to worry if you couldn't, we are in the process of scheduling a follow-up teleconference): 

• Is there such a thing as a judicial taking?

• Are there -- or should there be -- any federal constitutional limitations on the ability off state courts to define, or redefine, "background principles" of state property law?

• If a state legislative act, or an act of a state executive branch can be a regulatory taking, why not an act of the state's judicial branch?

• For the Court to adopt the theory of judicial takings, must it engage in "judicial activism?"

• The issue in the case was whether the Florida Supreme Court's decision takes property. Can a federal court engage in a judicial taking?

• If property rights are defined under state common law, how can a federal court say that a state court's interpretation of state common law is so wrong as to be a taking?

• Is it what the law was, or what the disappointed property owner thought the law was? In this case, was there a change in the law, or merely a perception of a change in the law?

• Why should private property owners be compensated for the state protecting their beachfront homes from storms and sea level rise by replenishing the beaches in front of their homes at public expense? (see "Givings Clause" above).

• Is the judicial takings theory just another tool to stop regulation by looking at diminished value of property?

• Can the U.S. Supreme Court tell state supreme courts that those courts are wrong in saying what their own law is? If yes, is that a chance in a view of federalism?

• If you were advising a governmental entity, how would you counsel it in approaching beach preservation in the future? Should they get the statutes rewritten so as to require a judicial decision before the agency acts?

• Regarding who pays for just compensation for a judicial taking, are there not strong concerns that liability risk would have a chilling effect on court decisions? Doesn't this negatively impact the independence of the judicial branch?

• Professor Echeverria's forthcoming article Stop the Beach Renourishment: Why the Judiciary is Different (Aug. 2, 2010).

A majority of the hour-and-a-half session was devoted to the panelists answering questions. Here is a sampling (for the answers, you should have attended! But not to worry if you couldn't, we are in the process of scheduling a follow-up teleconference): 

• Is there such a thing as a judicial taking?

• Are there -- or should there be -- any federal constitutional limitations on the ability off state courts to define, or redefine, "background principles" of state property law?

• If a state legislative act, or an act of a state executive branch can be a regulatory taking, why not an act of the state's judicial branch?

• For the Court to adopt the theory of judicial takings, must it engage in "judicial activism?"

• The issue in the case was whether the Florida Supreme Court's decision takes property. Can a federal court engage in a judicial taking?

• If property rights are defined under state common law, how can a federal court say that a state court's interpretation of state common law is so wrong as to be a taking?

• Is it what the law was, or what the disappointed property owner thought the law was? In this case, was there a change in the law, or merely a perception of a change in the law?

• Why should private property owners be compensated for the state protecting their beachfront homes from storms and sea level rise by replenishing the beaches in front of their homes at public expense? (see "Givings Clause" above).

• Is the judicial takings theory just another tool to stop regulation by looking at diminished value of property?

• Can the U.S. Supreme Court tell state supreme courts that those courts are wrong in saying what their own law is? If yes, is that a chance in a view of federalism?

• If you were advising a governmental entity, how would you counsel it in approaching beach preservation in the future? Should they get the statutes rewritten so as to require a judicial decision before the agency acts?

• Regarding who pays for just compensation for a judicial taking, are there not strong concerns that liability risk would have a chilling effect on court decisions? Doesn't this negatively impact the independence of the judicial branch?