What to make the Justice Kennedy-authored 5 justice majority opinion in Murr v. Wisconsin, No. 15-214 (June 23, 2017)?
There, the majority adopted -- maybe "created from whole cloth" would be a more accurate description -- a multifactor test for determining the "larger parcel' or "denominator" in regulatory takings cases where the owner possesses more than a single parcel of land. We quoted the opinion's list in this post, and won't repeat it entirely here, but below is a short list of things that now must be considered by lower court judges (not juries) when they are deciding how much of the property the plaintiff owns can be used to measure the impact of the regulation on the parcel which she claims was taken:
- The "treatment of land." Yes, the actual metes-and-bounds of the legal parcel, but also, get this, the "expectations ... an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property." So in other words, not just the regs in existence at the time, but break out your crystal balls, property owners, you've got to maybe figure out future regulations.
- The "physical characteristics" of the property. "These include the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment." Topography ... seriously? And the human and ecological environment. What in the world could that touchy-feely factor actually mean in practice? This isn't a the Lockean view of property (the one that was, we thought, baked into the Fifth Amendment), this is a Leviathan-esque view of property as the mere product of positive law. You only own property as defined by "the human and ecological environment," according to five justices of the Supreme Court.
- Also, judges will need to look at the "value of the property under the challenged regulation," which is about as recursive a test as we could imagine, since it bootstraps the entire takings question into the bootstrapped property question. So in order to determine whether there's been a taking of property, the owner will need to show not only that the regulation has the same effect as eminent domain on the merits, but will also have to show that the regulation has the same effect as eminent domain to even get past the summary judgment threshold of whether the owner owns "property."
But the regulation must be "reasonable" according to Justice Kennedy, as if rational basis review were some kind of safety net for property owners. Besides, we thought after Lingle rejected Agins' "substantially advance" test that the reasonableness, vel non, of the regulation wasn't supposed to be part of the takings calculus. But after Murr, apparently it is back. See also Kennedy's Kelo and Lingle concurring opinions for more of his substantive due process view of the world.
From our point of view, the majority went completely off the rails here, and the opinion represents the four-plus-Kennedy simply throwing up their hands and tossing intellectual honesty out the window in favor of a test that federalizes common law (i.e., state law) property concepts which had survived mostly unchanged for a millennium.
Why would they do such a thing? All we can figure is that the majority may have predicted that Murr would be one of their last chances to influence the development of regulatory takings doctrine for a long time. COVFEFE! I only hope I am around when the true story of this case comes out.
The Court granted the cert petition when Justice Scalia was still alive, and it appeared that Hillary Clinton was the odds-on favorite to appoint a new, left-leaning Court majority during her predicted tenure with a lock on making a generation of liberal decisions. Perhaps the four solid conservatives (CJ Roberts, Scalia, Alito, and Thomas) believed that Murr would be one of their last chances to influence takings law before it inevitably swung leftward after the election, hence the grant of certiorari.
But those assumptions radically changed after Justice Scalia passed, and especially in November 2016, of course, and fortunes were radically reversed: The all-but-certain future liberal majority now could see that their presumed dominance had evaporated overnight. We speculated that the conservatives might -- during the months the Court delayed scheduling oral arguments -- try to muster support for dismissing the petition as improvidently granted.
We wondered whether there was any maneuvering on that, given the ultimate weakness in the facts which Chief Justice Roberts recognized in his dissent (he noted that even under the proper test, the Murrs might lose), and we predicted after oral arguments that he could be the sixth vote to affirm. So maybe better to dump the case than to risk a chance of it serving as a vehicle for the four liberal justices to convince Justice Kennedy this was one of the final cases in which he could cement his already spotty conservative property law legacy by moving regulatory takings doctrine two steps back, something he seemed to be hankering to do since Lucas by making it all due-processey and, like seemingly everything in his view, a mishmash test of “reasonableness.”
But that never happened.
So maybe the liberal majority, viewing Murr as the last charge of Wyatt Earp and his Immortals, threw principle to the wind, created a metaphysical, social justice warrior test for property that undercuts a thousand years of common law principles, deprives juries of the opportunity to decide what is and what isn’t reasonable reliance on metes-and-bounds, and takes the power to define property away from both property owners and state and local legislators, and hands it to mostly unelected philosopher-kings in black robes.
The Murr majority gives lower court judges a chance to play Justice Kennedy for a day and decide what counts as property (for today, but may not be tomorrow, who knows?), all based on what Your Honor believes is fair, or isn't, or is or isn’t worthy of being compensated, or whether the government can really afford to pay. There will no doubt be a plethora of law review articles which will try and justify these vague SJW factors as based somewhere in our common law property traditions. The authors would have a mighty hard time convincing us, because under Justice Kennedy's ad hoc-ism, you really don't know whether you own property until you make a takings claim and some judge decides you deserve to not be compensated when it is impressed into public service.
That’s not law, that’s judicial mob rule.
Strong letter to follow!
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Programming note: we'll be sponsoring a program at the ABA Annual Meeting in New York City on August 11, 2017 at the Hilton Midtown, Concourse E, entitled "Murr and Beyond: Implications for Regulatory Takings," featuring the arguing counsel for the parties (and us!). Ping me to sign up to attend.
