In Stop the Beach Renourishment v. Florida Department of Environmental Protection (“Stop the Beach”), the Supreme Court managed to erode the property rights of littoral owners, failed to create binding law, and questioned whether state court judges can execute their jobs. While the justices figuratively “duke-it-out” in the opinion, one wonders if it ever occurred to the Justices that perhaps they cannot agree on reasoning because they got it wrong in the first place?
In Stop the Beach, littoral property owners, or ocean-front beach property owners, joined together in an attempt to overturn the Beach and Shore Preservation Act (“Beach Act”), passed by the Florida Legislature in 1961.Under the guise of beach restoration, the Beach Act allows Florida to deposit sand that is harvested from the ocean on top of submerged shore to correct years of erosion. The result is an enlarged beach area. Property interests are created by state law, and under Florida law, beachfront property owners own the land up to a high tide line. The land between the high tide line and the low tide line belongs to the State in trust for the public. The State also owns permanently submerged lands. In accordance with the Beach Act, Florida marks the high-tide line as a fixed “erosion control line.” After enlarging the beach, which results in the high tide line moving further seaward, the Beach Act provides that the State exclusively owns this new enlarged beachfront area—from the erosion control line to the water. The owners watched surrounding areas get an enlarged beach-as much as 75 feet from the erosion control line to the ocean. To a beachfront property owner, this could very well result in a change from limited pedestrian traffic, to persons now logistically able to bring lawn chairs, umbrellas, and radios on the new quiet 75 feet of public beach. The owners now have lost property and privacy. This is the factual inquiry that is missing from this opinion. There is a failure of the Court to either balance the State’s interest against the owners’ or consider the Beach Act as a legislative “per se” taking. Instead, Scalia attempts to legitimize a new “judicial takings” doctrine, and Kennedy attempts to answer back with either procedural or substantive due process. The unfortunate result is an unnecessary diminution of the Takings clause and unbinding precedent.
The Judicial Takings Conundrum
Before addressing the actual arguments in the case, Justice Scalia carefully lays out his view of the Court’s takings jurisprudence. He mentions the government’s exercise of eminent domain, the government’s use of property that results in destruction of private property, regulatory takings, and finally the recharacterization of private property to public property. It is interesting that he omits any mention of the Penn Central line of cases in his overview. Scalia then reminds us that the Takings Clause, “nor shall private property be taken for public use, without just compensation,” does not address a specific branch of government. This is where he lays his foundation for the so called “judicial takings” doctrine. He mentions case law where the movants attempt to claim that the judiciary “reconstructed” a State’s property laws and notes that the Supreme Court’s failure to address it doesn’t mean that it does not exist. The Court in those cases simply cited to cases where a legislative or executive taking had occurred. This is because there has never been a case that states a “judicial taking” has occurred.
Judicial takings are not recognized, because “takings” come in the form of eminent domain or inverse condemnation. These are tools employed by state legislatures through their laws. The role of the judiciary is to interpret those laws in the context of lawsuits. Under Scalia’s “judicial takings” doctrine, the judiciary would be subject to a level of scrutiny that is unprecedented. Essentially, federal courts would exercise a type of police power over the state courts to determine whether they committed a “judicial taking” when interpreting the law. This is surprising in light of Scalia’s consistent support for state sovereignty, and his frequent citation to the Tenth Amendment in other opinions. If the Court had decided that the Supreme Court of Florida did in fact execute a judicial taking, that decision would turn the entire Court system on its head. Statutes such as the Beach Front Act are a product of the state legislature acting. A court deciding a case based on its interpretation of that law should only be subjected to the appropriate review mandated by state law, such as an appeal. An additional layer of review, to determine whether the Court instigated a “judicial taking” would no doubt cause chaos and uncertainty in the judicial system.
It is mystifying why Scalia goes through such pains to address an issue that does not even reflect the holding of the case and relegates the Penn Central balancing test to a footnote. He mentioned the Penn Central test during his tirade against Breyer’s concurrence where Breyer argued that there was no need to decide whether the judiciary can ever affect a taking, nor establish the standard for determining whether it has done so. Scalia scolds Breyer and writes “one cannot know whether a takings claim is invalid without knowing what standard it has failed to meet.” This was followed by a footnote reference to Penn Central. The footnote states that the Penn Central test was a “multi-factor test for determining whether a regulation restricting the use of property effects a taking.” Scalia and all the other Justices avoid using the tools the Court already has: the Penn Central balancing test, or considering this a Loretto v. Teleprompter Manhattan type taking. There are plenty of facts and interests to balance, and there is an argument that the Beach Front Act is a physical invasion by the government with its implementation of the erosion control line. Instead, the Justices prefer to experiment with a new doctrine and attempt to answer a Constitutional question that is not needed to resolve the case.
Due Process
The other Justices, understandably reluctant to join the “judicial takings” bandwagon, speculate that Due Process can act as a means of judicial constraint. Due Process is the most malleable concept the Constitution provides. Justice Kennedy states that the Due Process Clause “would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat.”
Once again, the Justices seem overly concerned with the issue of whether a state court judge can properly execute the law. There is a constitutional presumption that judges and justices will follow the law, where an erroneously ruling may occur, there are appellate level courts in every state to keep lower courts in check. There is no need to bring in the Due Process clause here. The biggest misconception throughout this entire opinion is that the Florida Supreme Court acted. The Florida Supreme Court simply interpreted the law handed down by the Florida legislature. This entire discussion about “judicial takings” and due process as a means of constraining the judiciary is unnecessary.
An Alternative Holding
I disagree with the Court on its upholding the Florida Supreme Court's ruling finding that the Beach Front Act did not implement a taking here. There was indeed a taking. The taking occurred by the forced avulsion action by the state on the property owners, the implementation of a permanent erosion line that prevents the owners land from bordering on the high tide line, and the potential large public beach in front of the property. This deprives the property owner of land that is supposed to abut the high tide line, and potentially the privacy interest of the owner in owning a beach front property with limited public access. Such a law can greatly decrease the value of property and the owners should be compensated.
At the very least, the Court should have subjected this case to an “ad hoc” factual inquiry. Under Penn Central, the Court could have weighed the various interests of the property owners against the state. It is this author’s opinion that the property owners’ interests greatly outweigh the interests of the state. If the state’s interest is to correct the eroding shorelines, it could have implemented this law but eliminated the permanent erosion line as the line where the State takes the property. By maintaining the common law principle of where the property line is located and maintaining the coastline, the state could charge a tax to the beachfront property owners and could perhaps do this under its police power. The issue of a taking may have been avoided. The only thing clear in this case, is that the Court did absolutely nothing to advance the jurisprudence of the Takings clause. It only managed to insult the capabilities of our state court judges. It will be interesting and somewhat frightening to see where they go from here.
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