Beveridge & Diamond

Supreme Court Leaves Question of Judicial Taking Unanswered

Beveridge & Diamond, P.C., June 30, 2010

The Supreme Court’s 8-0 decision upholding the decision of the Florida Supreme Court that Florida’s beach restoration law did not effect a taking without just compensation belies a deep division in the Court about the still unanswered question of whether a judicial decision itself can constitute an unconstitutional taking without just compensation in violation of the Fifth Amendment to the U.S. Constitution.

In Stop the Beach Renourishment, Inc. v. Florida Depart. of
Environmental Protection,
2010 U.S. LEXIS 4971, Slip Op. No. 08-1151 (U.S. June 17, 2010), the Supreme Court’s decision was ultimately governed by specific issues of Florida property law. Under Florida law, beachfront property seaward of the median high-water mark belongs to the state while the owners of beachfront property own the land between the high-water line and their houses. When two Florida cities sought to restore a beach by depositing new sand and extending the state-owned beaches seaward, owners of beachfront properties challenged the effort claiming that it would violate the Takings Clause by eliminating their rights of direct access to the water and to ownership in new lands deposited on the beach through natural processes.

The Supreme Court ruled that the Florida Supreme Court’s decision "did not contravene the established property rights" of the petitioners because the land under the water along Florida’s beaches belonged to the state and continued to belong to the state even after a state-sponsored program added new sand. As a result, the state did not improperly impact rights of beachfront owners and there was no unconstitutional taking.

The Court split 4-4 (Justice Stevens did not participate) on the larger issue of whether a decision by a court could itself be a taking in violation of the Fifth and Fourteen Amendments to the U.S. Constitution and what standard would be applied under those circumstances. Following the Florida Supreme Court’s decision determining that the Florida law was not an unconstitutional taking, owners of beachfront property sought a rehearing, arguing that the Florida Supreme Court’s decision was a violation of the Taking Clause. The Supreme Court has never ruled on this issue.

Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, wrote for the plurality that the Takings Clause applies to the government as a whole, not to particular branches, and that if a court “declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”

The remaining four justices that participated in the case, Justices Sotomayor, Kennedy, Breyer, and Ginsberg, all agreed in the judgment of the Court but, in two separate concurrences, stressed that there was no reason in this case to decide the broader constitutional question of judicial takings, leaving the issue unresolved by the Court.

For more information about the Court’s decision, please contact Marc J. Goldstein at, (781) 416-5715 or Gus B. Bauman at, (202) 789-6013. 

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