Jun 17, 2010

Posted in Uncategorized

Instant Analysis: Stop the Beach Renourishment v. Florida Department of Environmental Protection

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Today the Supreme Court decided Stop the Beach Renourishment v. Florida Department of Environmental Protection. The Court found that the Florida Supreme Court did not take property without just compensation in violation of the Fifth andFourteenth Amendments.

Justice Scalia, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, wrote separately and found that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause. This opens the door to future judicial takings.

Justice Kennedy, joined by Justice Sotomayor, noted that this case does not require the Court to de-termine whether, or when, a judicial decision determining property owners’ rights can violate the Takings Clause. Kennedy wrote that if principles like due process are inadequate to pro-tect property owners, then the question whether a judicial decision can effect a taking would be properly presented.

Justice Breyer, joined by Justice Ginsburg agreed that no un-constitutional taking occurred here, but concluded that it is unneces-sary to decide more than that to resolve this case Difficult questionsof constitutional law—e.g., whether federal courts may review a state court’s decision to determine if it unconstitutionally takes privateproperty without compensation, and what the proper test is for evalu-ating whether a state-court property decision enacts an unconstitu-tional taking—need not be addressed in order to dispose “of the im-mediate case.” Such questions are better left for another day.

Lots of good stuff after the jump.

Parts II and III, only joined by Scalia, Roberts, Thomas, and Alito provided some insights into “general principles of our takings jurisprudence.”

The opinion provides that the takings clause is not limited to action by a specific branch of the government, thus opening the door to judicial takings:

The Takings Clause (unlike, for instance, the Ex PostFacto Clauses, see Art. I, §9, cl. 3; §10, cl. 1) is not ad-dressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the govern-mental actor (“nor shall private property

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