by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Apparently, the specter of spring breakers descending upon Florida beaches is the scariest hypothetical threat to beachfront property the Justices on the Supreme Court can think of.  (Well, that and hot dog vendors.)  But none of the Justices at oral argument today—except maybe Justice Alito—seemed too worked up about state restoration of eroding beaches, the actual alleged “threat” to private beachfront property at issue in Stop the Beach Renourishment v. Florida Department of Environmental Protection (“STBR”).

The petitioner-property owners in STBR are asking the Court to recognize, for the first time, a doctrine of “judicial takings.”  The Constitution’s Fifth Amendment “takings clause” requires governments to pay “just compensation” when they take private property for public use.  This requirement has been applied to acts of the legislative and executive branches, but the Court has never held that a court decision can amount to a taking of property.

In STBR, the property owners are challenging a decision of the Florida Supreme Court that upheld the Florida Beach and Shore Preservation Act, under which the state agrees to rebuild a highly eroded local beach area and then maintain the beach up to a fixed boundary called the “erosion control line.”  This approach necessarily means that the boundary between the state land and private property shifts from the variable mean high tide mark to the newly-fixed “erosion control line.”  In this case, the program created an approximately 75-foot wide strip of sand between the private property parcel and the water; this sand will be maintained at taxpayer expense, and, accordingly, will be owned by the public.  The Preservation Act expressly protects the private property owners’ rights to access the water, ensures the property owners’ continued peaceful enjoyment of their beachfront properties, and prohibits any permanent structures from being erected on the new strip of sand.  Most of the Justices at argument today seemed to accept that this program likely enhanced the value of the petitioners’ beachfront property, which seems quite logical given that it lessens the chances of the petitioners’ homes being washed out to sea in the next big hurricane.  Since a takings claim will only succeed if the property owner is actually owed something—if the value of the property decreases as a result of the state action—this took a lot of the drama out of the argument early on.

Even Justice Scalia, who has previously expressed support for the concept of judicial takings and is often a fiery advocate for property rights, couldn’t get worked up about the alleged taking in this case—and you know you’re in trouble if you’re a takings petitioner who can’t get Scalia worked up about property rights.  The main problem for the STBR petitioners is that their judicial takings claim requires them to show that the Florida Supreme Court’s decision upholding the Preservation Act “suddenly and dramatically” changed Florida law in such a way that it took their valid property rights.  But, while one might quibble with the state court’s decision that beachfront property owners have a common law right to access the water but not necessarily a right to have their property touch the water, as Justice Kennedy pointed out this morning, at best for petitioners the state court ruling was close call on a new issue—hardly a “sudden and dramatic” change in law.  (It didn’t help their cause that petitioners’ lawyer kept acknowledging that there was no case law directly on point—how can a court “suddenly and dramatically” change state law if there isn’t any law to be changed?  As Justice Scalia said, “If there is no case law, it seems to me you’ve lost your case.”)

Justice Alito and Chief Justice Roberts asked Florida’s Solicitor General some of their toughest questions on the property owners’ “right to exclude” the public from the sandy beach in front of their property.  Preventing erosion and keeping homes from washing away under the Beach and Shore Preservation Act is all well and good, but Justice Alito was worried about his hypothetical Spring Break Act of 2009, which would call for the state to dump 200 feet of sand in front of private beachfront homes to create a wide beach aimed at attracting hordes of spring breakers.  If property owners had to endure the shenanigans of these undesirables while they were trying to enjoy their sunset cocktails, looking out over what they thought was going to be their private beach, wouldn’t their rights be violated and their property values diminished?

After a little back and forth, Justice Breyer couldn’t take it anymore and said that we should just forget this whole spring break nonsense and recognize that the challenge here is to a particular judicial opinion—petitioners brought a “judicial takings” claim, after all—that was written to interpret the way the Beach and Shore Preservation Act, in particular, interacted with common law property rights.  Looking at the actual state court opinion, it was unquestionably a reasonable interpretation of the common law as modified by the statute.  If someone wants to challenge the Preservation Act—or Justice Alito’s Spring Break Act of 2009—that is one thing, but, Justice Breyer seemed to be saying, if you want to create a new doctrine of judicial takings, let’s at least focus on the state court opinion and not get distracted by thoughts of drunken college students in Fort Lauderdale.

Deputy Solicitor General Ed Kneedler, arguing for the United States in support of Florida, added an even more calming thought: there is no need to even mess around with fashioning some new doctrine of judicial takings.  Justice Breyer and Chief Justice Roberts both agreed that there had to be some remedy if a judge arbitrarily re-interprets property rights to the detriment of private owners, and Kneedler noted that there indeed was such a remedy already existing in Supreme Court precedent: the “fair or substantial” test, under which a federal court will review state court rulings to ensure that they have a fair or substantial basis and are not mere pretexts for evading constitutional rights.

After Kneedler was done, it was hard not to wonder: why are we here again?  Perhaps the only Justice with a solid answer to that question was Justice Stevens: he was, in fact, not there.  (Presumably, Stevens was absent because he reportedly owns beachfront property in Florida and felt it proper to recuse himself from considering the case.)  There is still a question of whether the Court will recognize a doctrine of judicial takings in the abstract, or rule instead based on the established “fair or substantial” test (for which CAC also advocated in its brief filed in the case).  But it was pretty clear after argument that today was no day at the beach for the STBR petitioners.

For more information on Stop the Beach Renourishment v. Florida Department of Environmental Protection, see our previous posts on Text & History and Warming Law.