A SCOTUS takings trifecta

A number of years ago, it dawned on me that takings decisions from the U.S. Supreme Court generally seemed to come down in June. No matter whether they were argued in October, January or May, the opinions materialized in June. After doing an inventory of several decades' worth of takings case, that suspicion was confirmed: June was the favored time to release this flavor of decision. The only explanation I could come up with is that the subject matter of these cases is generally something that the justices did not encounter in their earlier careers as lawyers or judges (with notable exceptions such as Justice William Brennan, who sat on state courts and considered a substantial number of land use cases) and thus did not feel as comfortable with them as with more standard search and seizure cases. But that is speculation. In any event, June it is.

This year is no different. During the tail end of this year's term -- in June, of course -- the Supreme Court released three takings decisions. And, for good measure, it threw in one Fourth Amendment case upholding the rights of property owners against unlawful search and seizure. The cases are Cedar Point Nursery v. Hassid, 2021 DJDAR 6262; Pakdel v. City & County of San Francisco, 2021 DJDAR 6459; PennEast Pipeline Co. v. New Jersey, 2021 DJDAR 6526; and Lange v. California, 2021 DJDAR 6246. Three of these case arose in California. All resulted in reversals, two for the 9th U.S. Circuit Court of Appeals and one for the California Court of Appeal. This column will attempt to briefly summarize this latest outpouring.

I alerted you to Cedar Point in my Nov. 30, 2020 column "Do farmers have property rights?" There, riding the wave of Cesar Chavez' popularity after his union organized some of the state's agricultural workers, California enacted the California Agricultural Labor Relations Act, making it an unfair labor practice for businesses to interfere with the right to organize farm workers. Cal. Lab. Code Sections 1152, 1153(a). The statute also created the Agricultural Labor Relations Board and charged it with carrying out the intent of the statute. One of the things that the board did was to enact the regulation at issue in this case, i.e., Cal. Code Regs., tit. 8, Section 20900(e), authorizing union representatives to take access to farms in order to convince the workers to organize.

The access was not, as the 9th Circuit noted, for 24/7-365 access. If that were so, the 9th Circuit would have found a taking. What the regulation did was to grant access for three hours a day during four 30-day periods each year. Finding that too intrusive, two farms sued to invalidate the regulation. Under the 9th Circuit's view, anything less than a complete invasion, all day and every day could not qualify as a taking under the 5th Amendment. The Supreme Court disagreed.

The opinion dealt with invasions by what the Supreme Court had earlier termed "interloper[s] with a government license," FCC v. Florida Power Corp., 480 U.S. 245, 253 (1987), or what Professor Tribe called "government-invited gatecrashers." The court had a clear roadmap to its conclusion. Repeatedly, its opinions had found that physical invasions violate the 5th Amendment. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 176, 179-80 (1979) (attempt to mandate public access to private marina); Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) (attempt to mandate public access to private beach); United States v. Causby, 328 U.S. 256, 259 (1946) (invasion by overflying aircraft). Sealing the deal, these opinions found a per se taking by these physical invasions even if all that was taken was an easement. That fit Cedar Point like the proverbial glove. Case closed.

Pakdel was a different brand of taking entirely. As background, you must understand that the case involves housing. And San Francisco. San Francisco has always jealously viewed the existing housing stock -- particularly rental housing -- as part of its way of dealing with the need for low income housing. In other words, although the housing units may be privately owned, San Francisco views them as some sort of quasi-public asset, although it makes no effort to actually purchase either the property as a whole or some interest in it. Thus, its regulations have historically been tough on rental property owners.

The property owners in Pakdel owned a tenancy in common interest in a small apartment building. They, along with their co-owners, wanted to convert their apartments into condo units, anticipating that they would then occupy the single unit they owned. The city was willing to permit the conversion, but there was a kicker. Among the conditions that must be satisfied was that the owners had to offer lifetime leases to the existing tenants. That, of course, would solve the tenants' problem, as they could remain as long as they liked. As for the owners, each of whom owned only a single unit they wanted to occupy, they were left out in the cold. So to speak. So they sued. The lower courts upheld the city's regulation.

The Supreme Court reversed, in a per curiam opinion without dissent. A "per curiam" opinion is an opinion of the court in a case in which the judges are all of one mind and the result is so clear that it is not considered necessary to provide an extended discussion. 21 C.J.S. Courts Section 237 (June 2021 update). This was such a case.

Pakdel ran afoul of the Supreme Court's decision two years ago in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), discussed in my June 24, 2019 column, "Ding dong, the witch is dead!" There, the Supreme Court bit the proverbial bullet and conceded that it had seriously erred in a 1985 opinion that placed procedural roadblocks in the path of takings plaintiffs by requiring pre-litigation ripening and exhaustion before a federal court could consider their claims.

Pakdel's conclusion echoed the nine judges who dissented from rehearing the court of appeals' opinion en banc. (People in other parts of the country are usually baffled by the fact that nine judges is not enough to get even an en banc rehearing, let alone a victory. But it may have helped to persuade the Supreme Court.) The reason that the Supreme Court's opinion was unanimously per curiam was that it said that the court's intent in Knick was to remove such procedural impediments to litigation, and it really meant that.

Pakdel was brought as a Civil Rights Act claim under 42 U.S.C. Section 1983. The point of that statute, as the Supreme Court has repeatedly held, is to "throw open the doors of the United States courts" to those who had been deprived of constitutional rights "and to provide these individuals immediate access to the federal courts." Patsy v. Fla. Bd. of Regents, 457 U.S. 496, 504 (1982). Shortly thereafter, the Supreme Court addressed the finality and exhaustion issues and rejected them as barriers to federal court jurisdiction, holding that section 1983 relief is available "independent of any other legal or administrative relief that may be available as a matter of federal or state law." Burnett v. Grattan, 468 U.S. 42, 50 (1984).

The 9th Circuit's attempt to eviscerate section 1983 in property rights cases was unanimously rejected.

PennEast was a different animal entirely. Where both Cedar Point and Pakdel were inverse condemnation suits brought by property owners claiming that governmental action had taken their property (although the government vehemently denied it), PennEast was a direct condemnation case. Here, the condemning agency admitted it was taking property and wanted to pay for it. The problem was that the condemning agency was not the government but, as the Supreme Court put it, a "delegatee" of the federal eminent domain power.

Here, after the federal government had acted pursuant to the Natural Gas Act, in pursuit of its power over interstate commerce, to approve a gas pipeline across land owned in part by the state of New Jersey, the state claimed that it had sovereign immunity to a suit brought by a private company.

The majority wasted little time instructing that the concept of the "united states" included the cession of some rights and powers by the states to the central government. Here, the central government had simply delegated its conceded power of eminent domain to a private pipeline company in order to effectuate federal policy.

Candidly, I am not sure what all the fuss was about. Although there is a scholarly and well-crafted dissent by Justice Amy Coney Barrett (on behalf of four justices), that dissent shows that there was an easy way for the federal government to accomplish its goal aside from delegating the eminent domain power to a private pipeline company. As the dissent said: "In fact, there is an obvious option that the court barely acknowledges: The United States can take state land itself." So, bottom line, one way or another, was that New Jersey was destined to lose this case and lose its ability to block the passage of the pipeline over its land.

In contrast to all of the above, Lange was a somewhat quirky criminal prosecution. Cops followed a man as he drove into his garage and then confronted him in his own garage. California courts thought all was fine. This earned them a lecture from the Supreme Court about different kinds of "hot pursuit," different levels of misdemeanors, and how there can be no categorical rule about pursuing misdemeanor suspects into their homes. All interesting, but not so much for property lawyers. What is useful from the standpoint of an "unlawful seizure" of private property under the Fourth Amendment is the court's discussion of the protection accorded to one's home by both English common law and the subsequently enacted Fourth Amendment.

"[W]hen it comes to the Fourth Amendment, the home is first among equals." Florida v. Jardines, 569 U.S. 1, 6 (2013). At the Amendment's "very core," the court said, "stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion." Collins v. Virginia, 2018 DJDAR 4931 (2018). This, of course, derives from English common law, and the majority opinion quotes this classic: "In a 1763 Parliamentary debate, about searches made to enforce a tax, William Pitt the Elder orated as follows: 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!'" Miller v. United States, 357 U.S. 301, 307, and n.7 (1958).

And that was really all the Supreme Court needed to say. Although there were a number of separate opinions, the justices were unanimous that this violation of the defendant's right to be secure on his own property had to be overturned.

So, from a takings law standpoint, June was a hefty month. In three cases the Supreme Court strongly reinforced the protection provided property owners by the Constitution in situations as various as union organizing, regulation of rental housing, and pursuit by an officious police officer. The only case that a property owner lost was one in which even the dissent conceded the loss was inevitable if only the government had taken the proper tool from its box. All in all, it was a good month for property rights. 