You can take the Justice out of the Court, but you apparently can't take the Court out of the Justice. Retired Justice John Paul Stevens has added the "ninth vote" (his words, not ours) in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010), the case is which the other eight Justices all agreed that the Florida Supreme Court had not changed the law, so there had been no "judicial taking." Four Justices, however, opined that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause.
Justice Stevens sat that one out, recusing himself because news stories had noted his wife owned a beachfront condo in Ft. Lauderdale. But the lure of adding his reaction to Justice Scalia's opinion has proven too much to resist, and in a recent talk, Justice Stevens told us what he would have done had he not stepped aside.
To us, the most curious claim he makes is that the Court should not have addressed the issue at all, since the property owners had not properly raised their federal constitutional claims below, and that if a petitioner only brings up the judicial takings claim in the course of a petition for rehearing in the state supreme court, she has not preserved the issue. See p. 10-12. This makes no sense whatsoever, because in the typical judicial takings scenario, it would require the property owner to be a mindreader. How is a property owner supposed to predict that a state supreme court is going to make a sudden and unpredictable change in the state's law of property in a judicial decision and preserve the argument for U.S. Supreme Court review before the state supreme court actually does so? Maybe by arguing to the court "hey guys, you better not suddenly and unpredictably change our state's law of property because if you do, that would be a judicial taking?"
Take, for example, the course of events in what is perhaps the most paradigmatic judicial taking scenario, the infamous Hawaii water rights case. There, in a dispute between two sugar companies over who had rights to certain surplus water in a Kauai stream under Hawaii law, the Hawaii Supreme Court "sua sponte overruled all territorial cases to the contrary and adopted the English common law doctrine of riparian rights." Robinson v. Ariyoshi, 753 F.2d 1468, 1470 (9th Cir. 1985) (citing McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973)). The court "also held sua sponte that there was no such legal category as 'normal daily surplus water' and declared that the state, as sovereign, owned and had the exclusive right to control the flow," and "that because the flow of the Hanapepe [stream] was the sovereign property of the State of Hawaii, McBryde's claim of a prescriptive right to divert water could not be sustained against the state." Robinson, 753 F.2d at 1470. In other words, in a dispute between "A" and "B" over which of them possessed water rights, the Supreme Court simply said "neither of you do, the State owns it all." Without briefing or argument. Thus, the federal takings issue could only be raised on a petition for rehearing. The same was true in the Stop the Beach Renourishment case, where the petitioner claimed the Florida Supreme Court changed the state law of accretion and erosion.
Justice Stevens' other argument is that "judicial takings," if they exist at all, are Fourteenth Amendment Due Process claims and not Fifth Amendment Takings claims. See p. 13. Here, he makes the argument that the sole remedy for a Fifth Amendment taking is the payment of just compensation, and does not allow a court to invalidate the offending action:
Even if we assume that the scope of the Fifth Amendment's limitation on the scope of a government's power to condemn private property is coextensive with the Fourteenth's, it is noteworthy that neither the text nor the history of the Fifth Amendment's Takings Clause places any limit on the scope of that power; the Clause imposes only a requirement that just compensation be provided for a taking.
See p. 15. Justice Kennedy may agree with Justice Stevens on this one (see, e.g., his concurring opinions in Kelo and Lingle where he makes the point that challenges to the power to take are really due process in nature), but what Justice Stevens is arguing for is a broader revision in the "incorporation" doctrine, where all challenges under the Bill of Rights to state actions are, in reality, Due Process challenges. That question may get more play in the case the Court agreed last week to review, Koontz v. St. Johns River Water Management Dist., No. 11-1447 (cert. granted Oct. 5, 2012), since it involves Nollan/Dolan exactions, where, as we recall, this debate first erupted between Justices Stevens and Scalia.
One final point. What is it about takings that gets Justice Stevens going? Is he also making talks rehashing other constitutional issues that he didn't get to rule on? We're not being facetious here, we're really asking. If you know of other examples, please ping us.
Update: Gideon Kanner may have an answer to our question, here.