The Supreme Court issued a new decision in the takings area, and, consistent with this general line of jurisprudence it is, in a world, confused. Stop the Beach Renourishment Inc. v Florida DEP http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf.
On one level, the ruling looks very straightforward. Grossly simplifying the facts, the state added sand between the ocean and property owners' land. The owners said that the state couldn't do that because they had a right to be next to the water under state property law. The Florida Supreme Court rejected the claim because it said the owners didn't have this right under existing Florida law. The Supreme Court unanimously agreed 8-0 (Justice Stevens recused himself because he owns Florida property). What could be simpler?
Well, first of all, isn't the state Supreme Court supposed to be the ultimate arbiter of state law? How is it that the Supreme Court steps in as the uber-tribunal reviewing whether the Florida Supreme Court got this right (is this Bush v. Gore again?)
Second, what's all this other language and disagreement, with three different opinions from Justices Scalia, Kennedy and Breyer? What's this about?
I'll tell you what this is about – takings law is a big fat mess and the Court knows it. They've backed themselves into a corner and don't know how to get out.
Yes, the state court is supposed to be the final arbiter of state law. Making this even more complicated, the common law isn't utterly frozen – it should be able to develop with the times. The Supreme Court knows this, and they don't want to be the uber-tribunal on all state property law, deciding not only what existing state law is, but how much a state court can deviate from it before a taking occurs.
But if a state supreme court pronounces in a decision that no taking of an owner's property has occurred because it says that its state property law is something that deviates massively from all preexisting law, then isn't that court effectively taking the person's property protected under that preexisting law? Justices Scalia, Thomas Alito and CJ Roberts said yes; Justice Breyer and Sottomayer said I don't want to deal with this yet and I don't have to; and Justice Kennedy, consistent with what he's been saying lately, said when a state court is taking the property, that sounds like a due process, not takings issue.
Justice Kennedy's opinion also sets out some complicated hypotheticals outlining some thorny procedural problems that arise with suits based on a state supreme court's deviation from its existing property law. So let's give him some points for facing the mangled existing situation and trying to find a solution.
But it's a little premature to determine whether his invocation of due process law presents that solution. At this point, that law in this context isn't much clearer – is his version of the due process law applicable in this takings context toothless post-Lochner, or is he returning to a pre-Lochner substantive law? How egregious does the deviation from existing state property law have to be? What factors do you examine?
Justice Kennedy's opinion also acknowledges another existing procedural problem in takings law – the fact that, based on a series of Supreme Court decisions, someone who has a takings challenge can't get it into federal court. He cites a Rehnquist concurrence saying perhaps it's time to re-visit this conundrum. So once again, at least he's thinking about these issues and trying to do something to fix the situation.
In sum, the Court was able to punt this time, but in doing so, it became even more transparent how addled takings law has become.