At a recent conference I attended, one of the speakers, an eminent scholar of constitutional law and frequent US Supreme Court advocate, suggested that the Court’s decision in Kelo was the correct result because it allows the decision on whether a taking of private property is “for public use” to be made in the fora where it should be made, state legislatures and state courts.
In Kelo, as you may recall, a bare majority of the Court held that the “for public use” language in the Fifth Amendment’s Takings Clause does not permit the federal courts to review the substantive validity of an exercise of eminent domain. In other words, the reasons advanced by the condemning authority are nearly immune from federal judicial review.
The resulting firestorm in state legislatures and local governments, and the state court decisions in Hathcock and City of Norwood, the argument goes, are the natural result of the US Supreme Court avoiding injecting itself into an area the federal courts have no business being. Thus, Kelo shows that the system works the way it should.
While that proposition is not entirely disagreeable (and I agree it seems to have been the impetus for the Court’s majority), it does not appear to be consistent with the Court’s approach to other rights secured by the Bill of Rights.
For example, would it be surprising if a US District Judge declined to hear a challenge that a local ordinance violated the First Amendment’s Free Speech clause, holding that such decisions should be made in state courts, or local legislatures? You bet it would.
However, property owners who claim that state or local action violates the Takings Clause receive just that sort of treatment.
Whether it is the bizarre “ripeness” doctrine from the Williamson County case (which tells a property owner that she must seek redress for state claims in state courts first, but that if she loses there, she is barred from asserting her federal claims in federal court); or the Kelo decision in which the federal courts have washed their hands of the “for public use” language in the Fifth Amendment, it seems strange and inconsistent for certain constitutional rights to have priority status, and the federal courthouse door thrown wide open for those, but slammed shut for others.
Regulatory takings
▪ Regulatory Taking of Accreted Beachfront Land
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A Hawaii circuit (trial) court, as reported here, has declared that “Act 73,” (codifed here and here) which determined that certain land “accreted” on Hawaii’s shorelines is “public land,” is an “uncompensated taking” of private property.
The court held that the Act was a “sudden change in the common law,” and prevented the littoral owner from registering the property or quieting title.
The common law doctrines of accretion and erosion were generally uniform, and the littoral property owner took the bitter (erosion) with the sweet (accretion): if her property naturally washed away, she lost it; but, conversely, if land naturally accreted on her property, it was hers. One of the incidentals of owning property next to the ocean or stream.
Act 73 radically altered that balance, determining as a matter of legislative fiat that the State owned accreted land, while not disturbing the usual rules of erosion. Under Act 73, the littoral owner could not secure title to accreted land, yet continued to lose title to eroded land.
In other words, “heads the State wins, tails you lose.”
Continue Reading ▪ Regulatory Taking of Accreted Beachfront Land