INTRODUCTION A. The Supreme Court's Decision in Stop the Beach Renourishment B. Questions Remaining in the Wake of Stop the Beach Renourishment I. DETERMINING WHETHER A JUDICIAL TAKINGS CLAIM IS VIABLE A. Controlling Law After Stop the Beach Renourishment B. Has There Actually Been a Taking? C. Has There Been a Taking for Public Use? II. GETTING INTO FEDERAL COURT: NAVIGATING RIPENESS AND PRECLUSION DOCTRINES A. The Williamson County-San Remo Hotel Bar to Federal Takings Litigation 1. Williamson County ripeness 2. San Remo Hotel preclusion B. Why Judicial Takings Claims Properly Belong in Federal Court 1. The tension between Stop the Beach Renourishment and Williamson County-San Remo Hotel 2. The futility exception to Williamson County C. A Brief Word on the Rooker-Feldman Doctrine III. REMEDIES A. Compensation 1. Compensation as the ordinary takings remedy 2. The Eleventh Amendment B. Invalidation CONCLUSION INTRODUCTION
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, (1) the Supreme Court breathed life into the doctrine of judicial takings--the idea that judicial decisions, like executive and legislative action, might be deemed to take property rights under the Takings Clause of the Fifth Amendment. Before the case, judicial takings were the province only of law review articles, a few offhand mentions in Supreme Court concurring and dissenting opinions, and one or two cases in the lower federal courts. (2) Stop the Beach Renourishment firmly established the proposition that the U.S. Constitution provides some protection against judicial redefinition of property rights, though the Court was unable to determine whether the source of that protection is the Takings Clause of the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment. (3) In this Note, I seek to shed light on the unexamined questions of how and where, in the wake of that case, a party aggrieved by a judicial property law decision might actually go about bringing such a claim, and what remedy she might hope to obtain. I conclude that a plaintiff bringing a judicial takings claim (or a due process claim rooted in judicial takings) should be able to have her case heard in federal district court, notwithstanding the barriers the Supreme Court has erected that keep the vast majority of federal takings litigation in state court. I further argue that while the Eleventh Amendment likely prevents a federal court from awarding money damages to a judicial takings plaintiff, equitable relief--in the form of invalidation of the offending state court opinion--should be available.
The Supreme Court's Decision in Stop the Beach Renourishment
The plaintiffs in Stop the Beach Renourishment were beachfront property owners in Walton County, Florida, who sought to prevent local government from restoring beaches adjacent to their property under Florida's Beach and Shore Preservation Act. (4) The restoration contemplated adding sand to beaches that had been eroded in recent years by hurricanes. (5) The new sand would have pushed the mean high-water line further out to sea, but the boundary of the plaintiffs' property would have remained fixed--that is, it would no longer extend to the mean high-water line, and the plaintiffs would no longer be beach-front property owners. (6) After bringing an unsuccessful administrative challenge to the plan, the plaintiffs filed suit in state court, arguing that the government's action would deprive them of two property rights they possessed under Florida law: the right to receive accretions (7) to their property and the right to have the contact of their property with the water remain intact. (8) The Florida Supreme Court rejected their claim. (9) After unsuccessfully petitioning for rehearing, the plaintiffs then filed a petition for a writ of certiorari, asserting that the Florida Supreme Court's ruling itself effected a taking by redefining their property rights out of existence. (10)
With Justice Stevens, a Florida property owner, recused, all eight Justices who heard the case agreed that the Florida Supreme Court had not impermissibly changed the state's property law. (11) But in reaching that conclusion, a majority of the Court could not agree upon what test to apply to judicial takings claims. Writing for a four-Justice plurality, Justice Scalia concluded that "the existence of a taking does not depend upon the branch of government that effects it." (12) Thus, in the plurality's view, a judicial opinion that eliminates an "established property right"--that is, a property right "about [whose] existence" there is no "doubt" under settled law--constitutes a Fifth Amendment taking just as legislative or executive action would. (13) Justice Kennedy, joined by Justice Sotomayor, would have reserved the question of whether judicial action can give rise to a claim under the Takings Clause, but argued that the Due Process Clause applies: "If a judicial decision, as opposed to an act of the executive or the legislature, eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law." (14) Justice Breyer, joined by Justice Ginsburg, would have stopped short of announcing whether either the Takings Clause or the Due Process Clause could afford relief to property owners aggrieved by courts, since under any test, the Florida Supreme Court decision at issue did not eliminate property rights. (15)
Questions Remaining in the Wake of Stop the Beach Renourishment
Scholarly reaction to Stop the Beach Renourishment, like the judicial takings commentary that preceded the case, has focused primarily on broad theoretical questions, such as whether a judicial takings doctrine should exist; (16) whether it is a more suitable vehicle than due process; (17) its implications for federalism (18) and separation of powers; (19) its definition of what constitutes property; (20) and its effect on the modern role of courts (21) and the evolution of the common law. (22) While these questions are interesting and weighty, far less attention, both before and after Stop the Beach Renourishment, has focused on the thorny practical issues that will be of far more interest to potential judicial takings plaintiffs. Such issues include whether, where, and when plaintiffs may be able to bring their judicial takings claims, as well as what remedies they might seek. Indeed, as Justice Kennedy recognized in his concurring opinion, it remains "unclear" both "how a party should properly raise a judicial takings claim" and "what remedy a reviewing court could enter after finding a judicial taking." (23) Justice Kennedy viewed these "difficult questions" and others as good reason to avoid recognizing a judicial takings doctrine, (24) and a variety of commentators have noted these problems without exploring them in detail. (25)
My aim is to provide some answers to these questions, laying out a road-map of sorts for how a judicial takings claim may be brought after Stop the Beach Renourishment and what obstacles plaintiffs will face along the way. This Note proceeds in three Parts. The first Part asks--from a descriptive, rather than a normative, standpoint--when judicial takings might provide an avenue for relief. That is, when can property owners who feel aggrieved by judicial opinions hope to bring a successful challenge, under either the Takings Clause or the Due Process Clause? (Because, as I explain, there will likely wind up being little practical difference between bringing a claim under the Takings Clause and under the Due Process Clause, I use the term "judicial takings" to refer broadly to claims brought under either clause asserting that a judicial opinion unconstitutionally deprived the plaintiff of a preexisting property right.) I begin by asking, given the fractured holding in Stop the Beach Renourishment, what law controls such claims today. (26) Concluding that plaintiffs can rely upon Stop the Beach Renourishment to provide a basis for seeking at least some relief, I discuss how principles of ordinary takings law doctrine--such as the distinction between physical and regulatory takings and the public use requirement--might apply in the judicial takings context.
The second Part addresses the difficulty plaintiffs will face in seeking to have judicial takings claims heard in federal court. Judicial takings plaintiffs can be expected to have an exceptionally strong preference for proceeding in federal court, since in nearly all cases they will be alleging that state courts have taken their property--not an attractive claim to present to those very same state courts. But the Supreme Court has established an interlocking set of procedural barriers, grounded in principles of ripeness and preclusion, that generally prevent the vast majority of takings claims from being heard in federal court. (27) Most commentators have argued that these doctrines will bar federal courts from entertaining judicial takings claims. While that is a possibility, I conclude that alleged judicial takings likely constitute one of the few categories of takings claims that can squeeze through these barriers and may proceed in federal court, because it would be futile to bring them in state court. I also conclude that the Rooker-Feldman doctrine would not serve as a bar to federal court litigation of judicial takings claims.
The third Part discusses what remedies might be available to plaintiffs whose property rights have been taken by court decisions. There are two obvious possibilities: compensation and invalidation of the offending court decision. There is a strong presumption that compensation is the appropriate remedy for judicial takings, just as it is the default remedy for legislative and executive takings. Yet the Eleventh Amendment likely bars federal courts from ordering states to pay compensation for takings effected by their judiciaries. As...