A REIGN OF ERROR: PROPERTY RIGHTS AND STARE DECISIS.

• Author: Wolf, Michael Allan

ABSTRACT

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases and other law and law-related sources; explores why the phenomenon of reproducing mistakes matters in a legal system whose lifeblood is words and that heavily relies on the principle of stare decisis; and argues that one legacy of this cautionary tale of an unforced error can be a functional understanding of how the Due Process, Equal Protection, and Takings Clauses can and should protect private property rights in different yet related ways.

TABLE OF CONTENTS INTRODUCTION I. CONSTITUTIONAL PROTECTIONS FOR LANDOWNERS: COMPREHENSIVE OR DEFICIENT? II. ROBERGE AND ITS IMMEDIATE AFTERMATH A. Zoning Comes to Seattle B. Justice Butler Writes for the Court C. The Improper T Appears in Print D. The Replication Begins: No Harm, No Foul III. Two Streams Diverge A. The "Properly" Authorities B. The "Property" Authorities: Three Advantages for Property Owners 1. Opinions 2. Secondary Materials 3. Briefs and Trial Documents IV. A Mistake That Matters A. Covering All the Bases B. The Fragility of Stare Decisis CONCLUSION: REINING IN ERROR The number of people who read Supreme Court opinions carefully and the varied expertise of those readers are enormous. Every word, every fact, every characterization of the facts, and every discussion of background legal doctrine is subject to close scrutiny. Errors will be discovered and reported, if not immediately, then eventually, perhaps nearly a hundred years later.

Richard J. Lazarus (1)

I think the only issue is ... if there was a property right, was it taken. This Court has said in the State of Washington v. Roberge that the right to devote one's land to a legitimate use is property within the protection of the Constitution.

Supreme Court oral argument in PFZ Properties, Inc. v. Rodriguez (2)

INTRODUCTION

What would happen if a typographical error, very small but substantively meaningful, appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in case reports published by the two leading commercial companies and in several online databases? And what would happen if judges, commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated that mistake? These are not hypothetical questions spun by a clever law professor; they are inquiries based on real facts.

On February 13, 2019, U.S. Court of Appeals Judge Gerald Tjoflat closed the book on a property rights dispute originating in Hillcrest Property's application, in December, 2006, to develop an "83,000 squarefoot retail shopping center and three commercial spaces" in Pasco County, Florida. (3) Five years before, the county and the Florida Department of Transportation promised to compensate Hillcrest $4.7 million for a 100-foot strip needed for future road development, and Hillcrest agreed to drop its Fifth Amendment takings claim. (4) However, Hillcrest kept alive an as-applied substantive due process claim, for which it sought nine years of attorney's fees. (5)

Judge Tjoflat displayed scant sympathy for Hillcrest's attempt to erase litigation costs and for its legal theory, including counsel's misplaced reliance on one of the Supreme Court's earliest zoning decisions:

Washington ex rel. Seattle Title & Trust Co. v. Roberge ... another decision of the Supreme Court that Hillcrest flags, is yet another police-power case.... Hillcrest cites a single line within the opinion: "The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution." But that language has no significance here when the entire paragraph is devoted to discussing whether the enactment at issue accords with the police power. (6) The effort to recoup attorneys' fees and costs came up short: "[R]egardless of how arbitrarily or irrationally the County has acted with respect to Hillcrest, Hillcrest has no substantive-due-process claim." (7)

Hillcrest's counsel, like counsel in dozens of state and federal cases, quoted language from the 1928 decision in Washington ex rel. Seattle Title Trust Co. v. Roberge (8) in support of their aggressive defense of property rights against unsympathetic land use regulators. Unfortunately, these briefs and opinions include a very small, but meaningful, mistake, because Justice Butler's opinion for a unanimous Court in Roberge in actuality reads, "The right of the trustee to devote its land to any legitimate use is properly [not 'property'] within the protection of the Constitution." (9)

This Article traces the widespread, exponential replication of an error that first appeared in the earliest released version of Roberge. The Article shows how the error reappears in numerous cases and other sources well into the twenty-first century, explores why the phenomenon of reproducing mistakes matters in a legal system whose lifeblood is words and that heavily relies on stare decisis, and ponders lessons gleaned from this very real, cautionary tale.

For more than ninety years, litigators; authors and editors of law review articles, books, treatises, encyclopedias, case reporter headings and summaries, and statutory compilations; and, most importantly, trial and appellate judges, have cited, relied upon, and reproduced an error that first appeared when the Court released the text of Justice Butler's ruling as a slip opinion to the public generally and to West Publishing Company (compiler of the Supreme Court Reporter) and Lawyers Co-operative Publishing Company (compiler of the United States Supreme Court Reports, Lawyers' Edition) specifically. (10) The error was corrected in the Preliminary Print and in permanent Volume 278 of the United States Reports. (11) Nevertheless, even today, when judges, lawyers, students, and other consumers of Supreme Court opinions rely on Thomson Reuters Westlaw, they are misled by the text of the Roberge opinion and by West Headnote 2, which incorrectly reads: "Right of owner to devote his land to any legitimate use is 'property,' within due process clause." (12) The mistake also appears in versions of the case posted on Cornell University Law School's Legal Information Institute site, (13) and on the Justia, (14) Wikisource, (15) and Fastcase sites. (16)

Despite the correct language in the official reporter and in the LexisNexis version (though not in the LexisNexis headnotes (17)), attorneys in dozens of briefs filed between 1930 and 2020 (including one by future FBI Director James B. Comey (18)), many seeking to persuade courts to extend the Constitution's already ample protections of property rights one large step further, have invoked and sought support from the Roberge language featuring the improper t. The ultimate outcomes of most cases were, thankfully, unaffected by this misquotation. In other instances, courts, relying at least in part on this still-uncorrected error, have rendered substantive opinions that expand property rights protection at the expense of sensible land use regulations. And attorneys continue to offer the incorrect language in pursuing due process and takings challenges against longstanding land use regulatory practices.

This Article is divided into four substantive sections followed by closing thoughts. Part I reviews the chief constitutional provisions that protect private property owners from arbitrary, unreasonable, and confiscatory regulations of the use of land, and shows how the mistaken reading of Roberge gives false hope to counsel, judges, and commentators who believe those protections are not robust enough. Part II provides the background of the Roberge litigation culminating in the Court's slip opinion, explains how and when the mistake was officially corrected, and highlights the earliest sources that replicated the error. Part III traces two lines of authorities developing over several decades: those quoting the correct language and those duplicating the mistake. Part IV explores why this mistake matters, arguing that the legacy of this simple error can be a proper understanding of how the Due Process, Equal Protection, and Takings Clauses comprehensively protect property private property rights in different though related ways. In the wider context, the tale of this error exposes the fragility of a system of constitutional lawmaking based on the principle of stare decisis. The Conclusion reviews lessons learned from this curious, if not unique, dramedy of errors. In a world in which lightning-quick Wikipedia and Google searches too often substitute for careful research, the tale of the improper t reminds us of the importance of taking the time and effort to check the original source, especially when what is seen on the page or screen looks too good to be true.

1. CONSTITUTIONAL PROTECTIONS FOR LANDOWNERS: COMPREHENSIVE OR DEFICIENT?

   As with all government regulation affecting private property, (19) in the context of zoning and other forms of state and local land use regulation there are two kinds of owners who claim that government officials have violated their constitutional rights: (1) those owners entitled to make productive use of property who want to be left alone, and (2) those owners who want to make more intensive and lucrative use of their property but first need to secure government permission. As Figure 1 below...