Regulatory Takings and Substantive Due Process Claims After Lingle v. Chevron

December 4th, 2011

My frequent-coauthor Ilya Shapiro blogs about an cert petition filed in Harmon v. Kimmel challenging New York’s Rent Control Law under the Fourteenth Amendment’s Due PRocess Clause as a regulatory taking:

One way to challenge some of these laws is to argue they are so arbitrary and poorly justified that they violate the Fourteenth Amendment’s Due Process Clause. Because this is an especially difficult type of challenge to bring, Cato joined the Pacific Legal Foundation and the Small Property Owners of San Francisco Institute on a brief supporting the Harmons’ request that the Supreme Court review lower-court rulings against them. Although the Court has ruled that the Takings Clause does not permit challenges based on claims that the alleged taking fails to “substantially advance legitimate state interests,” the Due Process Clause is an independent textual provision.

We thus clarify the relationship between property rights and due process, arguing that a law which advances no legitimate governmental purpose can be challenged under the Due Process Clause. To hold otherwise would be to deny property owners any meaningful avenue for defending their property from onerous and irrational regulations.

Here, the Second Circuit held that:

[T]he Due Process Clause cannot “do the work of the Takings Clause” because “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”

And from the brief:

Thus, while Lingle repudiated the Court’s previous view that failure to substantially advance legitimate interests was grounds to strike down a regulation under the Takings Clause, the decision reinvigorated substantive due process doctrine as the proper and exclusive vehicle for such allegations. In short, after Lingle, allegations that a property regulation fails to substantially advance legitimate state interests set forth a claim for a due process violation that cannot possibly be subsumed by a takings claim, since those allegations no longer state a viable claim for a taking.

The brief argues that Graham and Albright v. Oliver do not apply to this case.

Correspondingly, however, Graham does not apply if the alleged substantive due

process violation stems from allegations that are not covered by an explicit textual protection. See County of Sacramento v. Lewis, 523 U.S. 833, 842-44 (1998) (applying substantive due process, rather than Fourth Amendment standards, to an excessive use of force claim that did not involve a search or seizure).

Here’s the key:

Post-Lingle, the Harmons’ allegations in support of their substantive due process claim simply do not describe conduct covered by the explicit protections of the Takings Clause. And as the Ninth Circuit has put it, the Takings Clause only precludes due process challenges that are “actually covered by the Takings Clause.” Crown Point, 506 F.3d at 855.

The Graham-derived passage from Stop the Beach Renourishment, relied on by the Second Circuit in this case, does not offer a valid foundation for treating the Harmons’ substantive due process claim as subsumed in their takings claim. Rather, Lingle’s retrenchment of takings law controls, particularly its clear holding that complaints of regulatory failure to advance legitimate state interests are not covered by the Takings Clause, but must be independently adjudicated under the Due Process Clause.

And in conclusion:

This Court should definitively clarify that, after Lingle, substantive due process claims supply an independently viable avenue for relief from arbitrary or illegitimate property restrictions, and thus that such claims must be adjudicated without respect to takings law. Only in this way can uniformity among the circuit courts of appeals be established on this important question of constitutional doctrine.

I see next-to-no-shot at the Court granting cert here, but interesting issue.

I addressed something similar in my article about Village of Willowbrook v. Olech. There, I attempted to use the Equal Protection Clause of the 14th Amendment to check takings under the 5th/14th Amendment.

Why challenge a taking under the Equal Protection Clause when the Takings Clause does the trick? Resolving this tension is essential to validly positing Olech as a constitutional and pragmatic approach to challenging eminent domain abuse.

However, upon closer scrutiny of what the Olech claim seeks to accomplish, this situation is distinguishable. The Takings Clause provides “nor shall private property be taken for public use without just compensation.”91 In the lexicon of Oliver, the plain text of the Amendment suggests three primary constitutional inquiries: (1) whether there is a taking; (2) whether the taking is for public use; and (3) whether the government provides just compensation.92 According to Oliver, these are the “explicit textual source[s] of constitutional protection against a particular sort of government behavior.”93 Thus, if one were to use the Equal Protection Clause to challenge any of these three protections, Oliver would control. For example, if a litigant contended that a taking did not constitute a public use under the Equal Protection Clause, the Court should disregard such an extracurricular appeal to this extraneous constitutional clause. Similarly, if a litigant argued that the compensation was not just, a claim under the Equal Protection Clause should be dismissed under Oliver.

In contrast, an Olech claim, based on the Equal Protection Clause, guards against a totally different evil. The Olech claim protects a class of one that is intentionally and irrationally treated differently from other similarly situated homeowners, and the governmental action results in the taking of his property. The three threshold questions of the Fifth Amendment are not implicated. First, this claim does not query whether a taking exists. Second, the definition of a public use is irrelevant. Third, whether just compensation is provided is of no matter. The Olech claim can only find refuge in the Equal Protection Clause. The Fifth Amendment provides no textual anchor for challenging this species of governmental action. Thus, Oliver does not control, and an appeal to the Equal Protection Clause is an appropriate means in this limited context to challenge eminent domain takings.

Crown Point Development v. City of Sun Valley from CA9 is also here.