Why Isn't This A "Judicial Taking?" Washington Supreme Court Orders Property Owner To Sell To Neighbor

Courts have equitable powers to fashion remedies that the law may not account for, but does a state's judicial power stretch so far as to allow it to order a property owner to sell an acre of property (at fair market value) to a neighbor who had built an encroaching structure over the property line due to the erroneous words of a surveyor, even though the neighbor could not prove adverse possession or any other theory that would entitle its building to continue to encroach?

In Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), a deeply divided (5-4) Washington Supreme Court held that even though the encroaching property owner was not entitled to adversely possess the property, the court would order an appraisal of the property, and force the owner to sell it. Our thanks to the Supreme Court of Washington Blog and to our colleagues at the Eminent Domain Law Blog for bringing this case to our attention (note: the Washington court web site is hosed up, so we can't provide a link to the slip opinion, but we will once the court site unsticks itself - update: opinion is posted here). Read the story from the Seattle Times (Oops! The House in on the Wrong Lot) for more, including the judicial intrigue that apparently is involved.

The majority agreed that the encroaching owner did not meet Washington's 10-year adverse possession requirements, but that it would be "unfair" to order the owner of the encroaching structure to remove it:

We recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach. Nothing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers. Proctor does not forfeit the right to his land, nor do the Huntingtons get something for nothing.

Slip op. at 13. The four dissenting justices were hearing nothing of it:

A fundamental aspect of private property is the landowner's right to choose if he or she will sell the property and, if so, for how much. The majority cannot simply stroll through Sherwood Forest, redistribute property, and say any harm is slight if the victims are paid what the court determines is fair market value. If Proctor really valued his property only at the market value, he would have sold it already.

Dissent at 6. In other words, the five-justice majority of the Washington Supreme Court ordered the owner of the property -- against his will -- to sell it to a neighbor for fair market value.

But read the quote from the majority again: "Proctor does not forfeit the right to his land." Say what? You bet he did: it was a forced sale, albeit for value. That seems a lot like eminent domain, doesn't it? In Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010), six Justices agreed that in certain circumstances, a state supreme court’s recharacterization of property from private to public would violate the Constitution; the four-justice Scalia-led plurality concluded it would be a Takings Clause problem, while Justice Kennedy, joined by Justice Sotomayor, saw it as involving the legitimacy of the state court’s action – in other words, substantive due process. Justice Breyer, joined by Justice Ginsburg agreed there was no judicial taking in the case, but demurred on expressing any opinion of when there would be.

In our recent draft article on judicial takings, my colleagues and I argue that a state supreme court decision takes property when it when it changes state law and, in doing so, interferes with an "essential use or economic value of the property." The Washington Supreme Court's decision in Proctor seems to fit the bill on both counts. First, despite the majority's assertions otherwise, it does change Washington law in that ownership (real or adverse) or property is no longer a necessary element in a defense to a trespass or ejectment claim. Second, the right to exclude others -- including the right to force a trespasser off your land -- is one of the core elements of property that should be protected by the Fourteenth Amendment from state interference, or, in this case, actual deprivation. The majority's notion of "no harm, no foul" by ordering an appraisal and the payment of fair market value only seems to underline the condemnation-esque result of its decision.

In the Washington case, the state supreme court did not recharacterize the property from private to public, but ordered it transferred from one private owner to another with no apparent public benefit (other than keeping the two neighbors from dueling it out with pistols at high noon on the disputed land). Thus, it is arguably not only a judicial taking, but a judicial taking that violates the public use clause, because the only beneficiary of the Washington Supreme Court's judicial largess is the encroaching owner. Under the Kennedy/Sotomayor view in Stop the Beach Renourishment, this might not be a legitimate function of the state supreme court, even when it is exercising its equitable powers.

Will there be a cert petition, asking the other "Washington" Supreme Court to revisit the issue in Stop the Beach Renourishment? Stay tuned.