In this post -- the fifth and penultimate post in a series of deeper dives that we're posting about June's U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) -- we'll be trying to take some educated guesses about what the decision means for the future.
Here are all of the posts in our Cedar Point series:And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don't miss listening to the recording of ALI-CLE's "Takings and Eminent Domain After Cedar Point: What Practitioners Need to Know."
- Part I: SCOTUS's Strawberry Letter 23 To Property Rights
- Part II: Common Sense (Keep Out) And Common Law (The Right To Exclude)
- Part III: No, Chicken Little, The Sky Isn't Falling
- Part IV: The Other Opinions
- Part V: Help Us Help You
- Part VI: What Others Are Saying
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So what to make of Cedar Point beyond its narrowest holding that absent a few exceptional circumstances, any regulation that gives a right of access to someone's land is a "categorical" taking regardless of the duration of the access granted, and that the only issue in these cases is the amount of compensation owed?
One one hand, you might see this case simply and only as clarifying (or sub silentio overruling, take your pick) the physical takings rule of Loretto, which if you were to read that case narrowly limited categorical treatment to "permanent" occupations, and subject less-than-permanent physical access regulations to non-categorical (Penn Central) treatment. Or you might see this as the Court doubling down on the distinction between physical invasions and plain-old regulatory takings. Or maybe an invitation to strike while the property rights iron is hot.
Our point in this post is to look at these other possible hands. Or at least try and read any tea leaves the majority laid down.
So here are some of the points that get us thinking.
The Property Guy
The biggest point we read between the lines of Chief Justice Roberts' opinion was this: the Chief is solidly the "property guy" on the Court. In addition to Cedar Point, how many of the Court's property or property-related opinions has he authored? Knick. Penn East. Horne II. Murr dissent. Winter. This recent per curiam sure reads a lot like he wrote it, too. Those opinions he didn't author he played a big part in: the fifth vote in Koontz; presumably employing his role as Chief to organize unanimous or nearly unanimous decisions in Arkansas Game, Horne I, Brandt, Hawkes, and Sackett; and joining in very pro-property rights pluralities when there wasn't a majority. (Did we miss any?)
Yes, he was counsel for the government in Tahoe-Sierra (which held that a long-term moratorium on development is not a categorical taking), but that was in his role as advocate. And as we know, a lawyer's position when serving as counsel may not necessarily be the lawyer's own views. We read the Cedar Point majority opinion's nine positive Tahoe-Sierra citations not as a sign that CJ Roberts doesn't understand his his own earlier handiwork, but more as a signal that we shouldn't hold out his role as the advocate in that case as a sign he's a police power hawk or a takings dove. Indeed, if you were to not already know that Tahoe-Sierra was decided against the property owner, the Cedar Point majority opinion would not clue you in to that fact because it cites the case very positively -- you'd think the owner won that one.
We think a more likely signal comes from his time as a clerk for then-Associate Justice Rehnquist, author of the Kaiser Aetna opinion that plays such a large role in the Cedar Point rationale. Rehnquist was also on the unanimous Pruneyard Court -- and if we're reading the timeline correctly, young Mr. Roberts was one of his clerks during consideration of that case. [Barista's edit: lawprof Josh Blackman sent us a note with the correct timeline: "Roberts clerked for Rehnquist starting in OT 1980--a few months after Pruneyard was decided."] We're guessing that he is in sync with Justice Rehnquist's property sensibilities more than his own Tahoe-Sierra advocacy.
As an exercise, you might compare the style of the Kaiser Aetna opinion (Rehnquist) with Cedar Point (Roberts). We get a lot of the same vibe. To us, the opinions are similar enough that they could have been written by the same author if you didn't know better: the centrality of the right to exclude with a nod to local property law, but not a sole reliance on it; owners' reliance interests in property as a set of shared cultural understandings; and the eschewing of an overly technical labeling of these rights. Read them side-by-side and see if you don't agree.
In sum, despite a lot of criticism of the Chief in conservative circles because he goes wobbly on a lot of those issues, there's little question in our mind that he's the solid center of gravity on the Court for property rights. Convince him, and you will very likely carry the day. (Remember that as you frame the issues in your case, brothers and sisters.)
Help Us Help You
That takes us to our second point, which is related.
After a string of love-fest decisions in which the Court issued unanimous or near-unanimous opinions (many think in a reaction to the calls for expansion of the Court), what was the first case in which we might say that the Court broke the string and split along the "usual" conservative/liberal lines and the headlines could tell us about a "sharply divided" Court? That's right, Cedar Point. Do we think it was merely coincidence that a takings case was the one in which the Court's solid public front got put aside (albeit gently - see, e.g., the majority's and dissent's "you the man" nods to each other's analytical chops). No we don't.
Now maybe we're reading too much into the fact that a property rights case was selected as the one where everyone went back to their own hill, but hear us out: we think Cedar Point sends up a clear flag that the majority might not be overly excited about considering many of the headline-grabbing hot-button political and social issues, but may be receptive to more on the property front.
What drives our conclusion?
First, Cedar Point starts off with a strong reaffirmation of the essential nature of property rights. See slip op. at 5 (which cites "the Founders" including John Adams). The Justices might not feel institutionally equipped to resolve politically-charged social issues, but property rights may be a whole different story because property questions are firmly rooted in common law lawyering, a topic that the Justices seem very comfortable speaking with expertise about. Next, the majority continued by with pooh-poohing the core argument against a broader scope of regulatory takings (that any restrictions on property rights that are a result of regulations must be analyzed under Penn Central), and concluded that the result is more important than the method. See slip op. at 7. Finally, the majority shifted the focus when a regulation regulates property's use to the point that it "appropriates" the right to exclude (or other fundamental property right), from whether there's been a taking to the amount of compensation owed, a point the property rights bar has been emphasizing for a long time. See slip op. at 11 ("The duration of an appropriation—just like the size of an appropriation ... bears only on the amount of compensation.").
We're also taking as a good sign that six Justices signed on to the Cedar Point opinion although a couple of them have been property rights ciphers so far. There's no question in our view that Cedar Point takes a bold, confident stance on property rights at a time that the Court and its members are under extreme scrutiny and could just have easily adopted a Tahoe-Sierra-ish analysis of less-than-permanent invasions. But they didn't and instead went big. So even though Cedar Point may be a good example of Chief Justice Roberts' usual incremental approach, we're taking it as a big hint that the Court wouldn't mind the opportunity to look at a lot of takings stuff with fresh eyes. Bring us cases. "Show us the pure joy of the game" (to paraphrase Jerry Maguire). Go big or go home. Help us help you.
And if we're completely off base about this, we think that if nothing else the solid majority in Cedar Point does offer a lot of intriguing possibilities about takings and property due process cases in the next few years, whichever way they cut.
More than the "Just Compensation" Clause
Next, Cedar Point confirmed for us something we've contended for a long time: that the Fifth Amendment is not just the "Just Compensation" clause, and that declaratory and injunctive relief are available remedies for "takings" issues. In Cedar Point, the property owner did not ask for just compensation, but only "declaratory and injunctive relief prohibiting the Board from enforcing the regulation against them." Slip op. at 3. Just comp may be the usual remedy in these cases, but it isn't the only remedy.
In our thinking, this should spur us all to go back and look at a few issues. First, the jurisdiction of the federal courts to hear takings claims against the federal government, and whether they belong exclusively in the Court of Federal Claims. Second, the same issue with respect to takings claims against state governments in federal court. The real party in interest in Cedar Point, after all, was the State of California, notwithstanding the Eleventh Amendment. And finally, whether more regulation may be subject to takings challenges because the relief sought isn't limited to a massive just compensation judgment (thus taking out of contention many cases that may not present be ones the owner can convince a lawyer to undertake), but includes a remedy that puts the onus where it should be: on the government asking itself not simply whether a regulation is a good thing, but thinking about whether it wants to pay for it.
State law isn't the be-all-end-all of "property"
In light of Cedar Point's "common sense" and "intuitive" approach to defining private property in the Fifth and Fourteenth Amendments and its re-emphasis of background principles of nuisance law, we think that there's going to be a renewed focus on what it means to own property, and more fundamentally, where that debate takes place (in state courts, state legislatures, or elsewhere). Cedar Point rejected the argument that state law alone defines "property," and can with the stroke of a pen "manipulate" certain concepts inherent in the notion of the Court’s conception of what it means to own private property.
And don't get too hung up on labels the Court cautioned, and we think this governs not only "regulatory takings," but the definition of property itself. See slip op. at 6 ("But that label can mislead."). Formalities may count for a lot in the law (and in property law specifically), but just as we don't require livery of seisin in order to convey real property any longer, the Court isn't going to be hidebound to how a state defines or redefines property if doing so undermines traditional "sticks" the majority see as fundamental.
Next up, Part VI (the final post in this series), in which we'll check out what others are saying about the case, and post up some of the many commentaries that have been written about Cedar Point.
Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021)
