Amicus Curiae Brief — Lingle v. Chevron USA Inc.

(¢)

No. 04-163

In The

Supreme Court of the United States

S

LINDA LINGLE, Governor of the

State of Hawaii, and MARK J. BENNETT,

Attorney General of the State o’ Hawaii,

Petitioners,

v.

CHEVRON USA, INC.,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF THE NATIONAL CONFERENCE

OF STATE LEGISLATURES, NATIONAL

ASSOCIATION OF COUNTIES, NATIONAL

LEAGUE OF CITIES, U.S. CONFERENCE OF

MAYORS, INTERNATIONAL CITY-COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

¢

JAMES E. RYAN TIMOTHY J. DOWLING

UNIVERSITY OF VIRGINIA Counsel of Record

SCHOOL OF LAW COMMUNITY RIGHTS COUNSEL

580 Massie Road 1301 Connecticut Avenue N.W.

Charlottesville, VA 22903 Suite 502

(804) 924-3572 Washington, D.C. 20036

(202) 296-6889

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a court may invoke the Just Compensation

Clause to resurrect heightened scrutiny and invalidate

State economic legislation through de novo second-

guessing of the State’s judgment as to the law’s wisdom

and efficacy.

il

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE..............2.0000000 1

DTU EEE E o0.0ccccccvccvccssesscsesccesssecncosesessesscsssssessseneeses 2

I. Review Is Needed to Resolve the Federal and

State Appellate Court Splits Over Whether

the Just Compensation Clause Authorizes

Lochner-Like Second-Guessing of Economic

Regulation. ...........00crcccrcsscccvccrssseseereresssssoososs 2

Il. This Case Is an Exceptionally Good and

Timely Vehicle for Clarifying the Confusion

Among Federal and State Appellate Courts... 10

CONCLUSION.......:0csccsccrcssccrccsccecccoresccosessoossssonsssoses 15

iii

TABLE OF AUTHORITIES

Page

CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980)....8, 11, 12, 14

Bamber v. United States, 45 Fed. Cl. 162 (1999).............. 11

Berman v. Parker, 348 U.S. 26 (1954)............ccccccceeeeeenneees 10

Bowen v. Gilliard, 483 U.S. 587 (1987)............cccccceceeeeneenees 3

Brown v. Legal Found. of Wash., 538 U.S. 216

an 1

Cashman v. City of Cotati, 374 F.3d 887 (9th Cir.

Tass oa. ssnasnsnrnsnnnnennnonssorsscsssssosssees )

Chevron, U.S.A. Inc. v. Natural Res. Defense

Council, Inc., 467 U.S. 837 (1984)............ccccceceeeeeeenennees 10

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

IIIT Taser nasenpenensnnsnnponsnnononncssooossssooeces 13

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

SII aia. . ssssnssnensnnnsanonsoonssoscsssecsoooes 3

City of Monterey v. Del Monte Dunes at Monterey,

Ltd. 526 U.S. 687 (1999).........cccccccccecseeceerrereeerenenens 11, 12

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999) ..........ccccccseeeeees 4

Collins v. City of Harker Heights, 503 U.S. 115

ee. 9-10

Committee for Reasonable Regulation of Lake Tahoe

v. Tahoe Reg’l Planning Agency, 311 F. Supp. 2d

BI GD, Wie BBO .nncccccaccccscccccccccccccccccccccccccccscccccccsccccesees 9

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) ............... 3

Dolan v. City of Tigard, 512 U.S. 374 (1994) .............+. 1, 13

iv

TABLE OF AUTHORITIES — Continued

Page

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)...11, 14, 15

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

SIU onieenennenienpseedmanesitnceitseniiiieadetiniiiaiipaiieiidiiinasiiiniadisi iii 4

FCC v. Beach Communications, Inc., 508 U.S. 307

Sie rnesscennemenacenensensitennnmnaininisisiinibiiadiieaaiianasiiniiasinsiiiasiiliiaines 3

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)........ 1, 12, 14

Goldblatt v. Town of Hempstead, 369 U.S. 590

CEI cnenenimnensennesnnndbeeuansniennsnianiniieambuenimmeiimmunsenttstiainsinel 13

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984).......... 6

Lochner v. New York, 198 U.S. 45 (1905).......... 2, 3, 4, 5, 14

Lucas v. South Carolina Coastal Council, 505 U.S.

SIT EIRTTTID cccentonnattinnssinsediciipsaennsiasemennnentneupeianiniieiumidatiin 1,5

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

Fa cnessnnsnonnennssnemnnisiniiinnnendianmemaeninneidensiatiatenimamminaenemminiamiin 13

Nectow v. City of Cambridge, 277 U.S. 183 (1928)........... 14

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).......... 8

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)................. 1

Pegram v. Herdrich, 530 U.S. 211 (2000)..................00c0005 10

Rostker v. Goldberg, 453 U.S. 57 (1981) ............ccccccceseeeees 13

Santa Monica Beach, Ltd. v. Superior Court, 968

Se CIID Gite nncnmusnatetnntnicntnnnsinesenemmantaniiniasinal 7,10

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002).............:cccccc000 1,6

Tennessee v. Lane, 124 S. Ct. 1978 (2004)... g

TABLE OF AUTHORITIES -— Continued

Page

CONGRESSIONAL MATERIALS

Ninth Circuit Court of Appeals Reorganization Act

of 2001: Hearing on H. R. 1203 Before the Sub-

committee on Courts, the Internet, and Intellec-

tual Property of the House Committee on the

Judiciary, 107th Cong. 36 (2002) ..0...........cccccceeceeeeeesees

OTHER AUTHORITIES

R. Bork, The Judge’s Role in Law and Culture, 1

Awe Maria L. Rev. 19 (2008) ......................ccccccccccccseceeeees

A. Kozinski, Conduct Unbecoming, 108 Yale L. J.

GE cxnscnncncnnsnssnssnnensnsstonsesmmessenenmmmnntasensestnmanesaneanes

SE SPEED cecctnenmensntteninninnmmemmmnmsnmninimenenmnes

N. Williams, et al., The White River Junction

Manifesto, 9 Vt. L. Rev. 193 (1984) 00.0.0... .ccccccccccceeeeeeees

1

INTEREST OF THE AMICI CURIAE'

Amici’s members include thousands of State and local

legislators and other government officials throughout the

United States. They are responsible for drafting, enacting,

and administering laws and regulations in the public

interest. These efforts include “the commendable task of

land use planning,” Dolan v. City of Tigard, 512 U.S. 374,

396 (1994), as well as a broad array of other regulatory

initiatives that promote the public good. Amici thus bring

a vital perspective to regulatory takings challenges to

these protections, and we have submitted friend-of-the-

court briefs to this Court in many takings cases. See, e.g.,

Brown v. Legal Found. of Wash., 538 U.S. 216 (2003);

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg Planning

Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode Island,

533 U.S. 606 (2001); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987).

Amici’s members have a compelling interest in pre-

serving their police power authority to adopt reasonable

land use laws, economic legislation, and other community

protections, and in ensuring that courts refrain from

improperly second-guessing the wisdom of legislative

policy judgments. A grant of review and reversal in this

case will eliminate the chilling effect produced by the

* Counsel for the parties did not author this brief in whole or in

part. No person or entity other than the amici, their members, and

their counsel made a monetary contribution to the preparation or

submission of this brief. The parties have consented to the filing of

amicus briefs in connection with the petition for certiorari, and they

filed letters reflecting consent witt the clerk.

2

decision below, as well as the need for amici’s members to

expend limited resources defending against challenges

rooted in a level of scrutiny for economic regulation un-

precedented in modern times.

*

ARGUMENT

I. Review Is Needed to Resolve the Federal and

State Appellate Court Splits Over Whether

the Just Compensation Clause Authorizes

Lochner-Like Second-Guessing of Economic

Regulation.

It is no exaggeration to say that the rulings below

raise a question of historic proportions: May courts invoke

the Just Compensation Clause to resurrect heightened,

Lochner-esque scrutiny of economic regulation?

The trial court gave no deference to the State’s legisla-

tive judgment and held that Act 257 does not substantially

advance a legitimate interest. Pet. App. 50-53. It con-

cluded that Act 257 would not benefit Hawaii consumers

and thus violated the Just Compensation Clause because,

in the court’s view, the economic theories presented by

Chevron were “more persuasive” than the State’s position.

Id. at 43. The Ninth Circuit affirmed, applying heightened

scrutiny under the Just Compensation Clause (id. at 6-17,

58-66), expressly rejecting the rational basis test typically

applied under the Due Process Clause (id.), and giving no

deference to the views of the State legislature regarding

the wisdom and efficacy of Act 257. Jd. at 17-21.

Plain and simple, the lower courts invalidated Act 257

because they disagreed with the judgment of the State’s

elected lawmakers that the measure would protect Hawaii

3

consumers. The lower courts articulated a naked prefer-

ence for Chevron’s economic views and rejected the State’s

legislative judgment as to the efficacy of Act 257, just as

the Lochner Court concluded that New York’s worker

protection laws were unwise. See Lochner v. New York, 198

U.S. 45, 53-54 (1905) (“The act must have a more direct

relation, as a means to an end, and the end itself must be

appropriate and legitimate, before an act can be held to be

valid.”). In other words, the lower courts imposed on

Hawaii their own economic vision regarding the efficacy of

Act 257, much as Lochner imposed Mr. Herbert Spencer’s

Social Statics on New York. See Lochner, 198 U.S. at 75

(Holmes, J., dissenting).

Since the demise of the Lochner era, courts generally

have upheld economic regulation against constitutional

challenge so long as there is a rational basis for the legis-

lature to conclude that the challenged law advances a

legitimate purpose.’ This familiar rational basis test, while

deferential, has some bite in appropriate cases.’ As the

Court well knows, the rational basis test is now firmly

entrenched in our constitutional jurisprudence, and every

Member of the Court has joined opinions criticizing the

* E.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 309

(1993) (“The question before us is whether there is any conceivable

rational basis justifying this [regulatory policy choice] for purposes of

the Due Process Clause of the Fifth Amendment.”); Bowen v. Gilliard,

483 U.S. 587, 602-03 (1987) (more searching scrutiny is appropriate

only where government action impairs a fundamental right or targets a

suspect class).

* E.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1996)

(zoning ordinance excluding group homes for the mentally retarded

lacked a rational basis); Craigmiles ». Giles, 312 F.3d 220 (6th Cir.

2002) (law permitting casket sales only by licensed funeral directors

lacked a rational] basis and thus violated the Due Process Clause).

4

more searching scrutiny of economic regulation that

characterized the Lochner era.‘ Scholars, too, routinely

refer to Lochner as reviled.’

And yet now in the Ninth Circuit - which comprises

nine States and two territories, nearly 40 percent oi the

Nation geographically, and more than 51 million people® —

federal courts are duty bound to use the Just Compensa-

tion Clause to engage in precisely the kind of policy

second-guessing regularly denounced by courts and com-

mentators. The lower courts did little more than swap the

Just Compensation Clause for the Due Process Clause to

justify this new judicial intrusion into economic policymak-

ing, a point made clear by this Court’s rejection of a due

process challenge to a very similar law. See Exxon Corp. v.

Governor of Maryland, 437 U.S. 117 (1978) (rejecting a due

* See, e.g., College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 690 (1999) (Scalia, J., joined by

Rehnquist, C.J., and O’Connor, Kennedy, and Thomas, JJ.) (referring to

“the discredited substantive-due-process case of Lochner”); id. at 701

(Breyer, J., joined by Stevens, Souter, Ginsburg, JJ., dissenting)

(describing Lochner as improperly limiting legislative flexibility without

constitutional warrant).

* Robert H. Bork, The Judge's Role in Law and Culture, 1 Ave

Maria L. Rev. 19, 21-22 (2003) (referring to Lochner as an “abomina-

tion”); David A. Strauss, Why Was Lochner Wrong?, 70 U. Chi. L. Rev.

373, 373 (2003) (“Lochner v. New York would probably win the prize, if

there were one, for the most widely reviled decision of the last hundred

years.”); Judge Alex Kozinski, Conduct Unbecoming, 108 Yale L. J. 835,

871 n.254 (1999) (referring to Lochner as “the most reviled opinion

since Plessy v. Ferguson”).

* Ninth Circuit Court of Appeals Reorganization Act of 2001:

Hearing on H.R. 1203 Before the Subcommittee on Courts, the Internet,

and Intellectual Property of the House Committee on the Judiciary, 107th

Cong. 36 (2002), at http://commdocs.house.gov/committees/judiciary/

hju80880.000/hju80880_0f.htm (prepared statement of Idaho Attorney

General Alan G. Lance).

5

process challenge to a law requiring oil companies to

divest company-operated stations to maintain a competi-

tive retail market for gasoline).

Amici do not make the Lochner-izing charge lightly,

and we are aware that the term is sometimes bandied

about so casually that users risk sounding like the boy

who cried wolf. But here the lower courts enforced a pure

judicial policy judgment on an economic issue that the

Constitution leaves to elected legislators, the very essence

of Lochner era jurisprudence. The wolf quite clearly is in

the flock.

And like Lochner, the rulings below find no plausible

basis in the text, structure, or original meaning of the

Constitution. This Court has recognized that the Just

Compensation Clause was originally understood as apply-

ing only to physical appropriations of property.’ Although

the Court has since extended the Clause to regulation that

constitutes the functional equivalent of an expropriation,

its text — “nor shall private property be taken for public

use, without just compensation” — cannot reasonably be

read as authorizing invalidation of economic regulation

based on a means-end inquiry into the law’s efficacy.

In fact, the text and structure of the Just Compensa-

tion Clause cut directly against the rulings below. The

Clause requires that any taking be for a public use, a

” See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014

(1992) (“[I]t was generally thought that the Takings Clause reached

only a ‘direct appropriation’ of property * * * or the functional equiva-

lent of a ‘practical ouster of [the owner's] possession.’”) (citations

omitted); id. at 1028 n.15 (“[EJarly constitutional theorists did not

believe that the Takings Clause embraced regulations of property at

all.”).

6

requirement that is satisfied if the legislature “rationally

could have believed that the [legislation] would promote

its objective.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229,

242 (1984). It makes no sense to construe the Just Com-

pensation Clause as also requiring a second means-end

inquiry under heightened scrutiny to determine whether a

taking occurred. The Ninth Circuit attempted to distin-

guish Midkiff by asserting that a more deferential stan-

dard was proper in that case because it involved a physical

taking as opposed to economic regulation. Pet. App. 15-16.

But this argument stands takings law on its head, for it is

well-established that physical occupations receive greater

scrutiny than regulation under the Just Compensation

Clause. See, e.g., Tahoe-Sierra, 535 U.S. at 321-24 (dis-

cussing the “longstanding distinction” between permanent

physical occupations and regulations, with the former

receiving categorical treatment and the latter being

subject to a more complex analysis).

In view of the sheer size of the Ninth Circuit, the

radical nature of its ruling by itself would justify review by

this Court. But the case for review is made far stronger by

the severe. split of authority among the federal circuits and

State high courts on the propriety of heightened means-

end review under the Just Compensation Clause. As

shown in the Petition (pp. 16-18), the Ninth Circuit has

split from the Fifth, Eleventh, and Federal Circuits, as

well as the highest courts of Florida, New Jersey, Rhode

Island, and Washington, on the question of whether

claimants can challenge the arbitrariness of government

action under the Just Compensation Clause. The Petition

(pp. 27-29) also demonstrates that the ruling below

squarely conflicts with the First Circuit and the highest

courts of California and New York regarding the proper

7

level of review under the ostensible “substantially ad-

vance” test.

These divergent rulings have prompted judges on both

sides of the issue to call out for clarification by this Court.

Compare Santa Monica Beach, Ltd. v. Superior Court, 968

P.2d 993, 1013 (Cal. 1999) (Kennard, J., concurring) (“Only

the high court can resolve this question and, given the

importance of this area of the law, I respectfully suggest

that it do so when the opportunity next arises.”), with id.

at 1047 (Brown, J., dissenting) (“If such measures are

capable of withstanding [means-end scrutiny under a]

takings clause analysis, the high court ought to tell us so,

preferably sooner rather than later.”).

Amici’s members in the States of California and

Washington are especially concerned about the conflict

between the Ninth Circuit and the highest courts of those

States, splits that will encourage forum-shopping and

generate confusion among government officials, the

regulated community, and the public. More generally,

amici’s members nationwide now face the burden of

uncertainty created by a deep split among five federal

appeals courts and six State high courts regarding the

propriety of a means-end inquiry under the Just Compen-

sation Clause, or the proper level of scrutiny for any such

inquiry. Plainly, these are fundamental issues upon which

national uniformity is desirable.

The Ninth Circuit’s improper second-guessing of a

legislative policy choice threatens not only similar regula-

tion, but also countless other laws that will be challenged

by claimants on the ground that they inadequately ad-

vance a legitimate goal. Future takings claimants almost

certainly will argue there is no principled basis for limiting

8

heightened scrutiny to rent control cases, especially given

that a principal case cited by the Ninth Circuit — Agins v.

City of Tiburon, 447 U.S. 255 (1980) — is not a rent control

case, but instead a workaday zoning challenge that pur-

ports to articulate a general test for takings liability.

While it is common for government-side amicus briefs

in regulatory takings cases to list examples of laws that

would be threatened by an adverse ruling, in this case the

list could be virtually endless. It is difficult to imagine an

economic or social regulatory provision that could not be

challenged by an affected property owner in the hope that

the court would second-guess the wisdom of the underly-

ing policy choices, deem the law ineffective, and invalidate

it under the Just Compensation Clause. The rulings below

thus threaten the core federalism principle of preserving

the role of States and their municipal subdivisions as

laboratories of experimentation. See New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissent-

ing) (“It is one of the happy incidents of the federal system

that a single courageous state may, if its citizens choose,

serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country.”).

The implications of the Ninth Circuit’s ruling are

made all the more startling by the absence of economic

harm to Chevron, which stipulated that Act 257 allows it

to recover more rent in the aggregate from its lessee-

dealer stations than it would otherwise charge, a rate of

return that, in Chevron’s words, “satisfies any Constitu-

tional standards.” Pet. 3 & n.2 (citing record). Because the

Ninth Circuit’s ruling does not turn on any showing of

economic harm, countless State and local laws in the

Circuit are now up for grabs, as claimants request judicial

9

second-guessing of those laws regardless of their economic

effect.

The real-world impacts of the Ninth Circuit’s ruling

already are being felt. Just weeks ago, in Cashman v. City

of Cotati, 374 F.3d 887, 896-99 (9th Cir. 2004), the Ninth

Circuit relied on the ruling below to sustain a takings

challenge to a mobile home ordinance because, in the

court’s view, the law did not substantially advance the

public interest. The Cashman ruling prompted the dissent

to lament the court’s return to judicial activism: “We

learned in the 1930s that economic regulation is generally

done better by politically accountable legislators than by

life-tenured judges. I regret to say that the Ninth Circuit

is unlearning that painfully learned lesson.” Jd. at 905

(Fletcher, J., dissenting). And in Committee for Reasonable

Regulation of Lake Tahoe v. Tahoe Reg'l Planning Agency,

311 F. Supp. 2d 972 (D. Nev. 2004), the court held that the

Ninth Circuit’s 2000 ruling in the instant case required

heightened scrutiny of a local ordinance regulating the

appearance of lakefront housing. Jd. at 998-99. Given the

invocation of the ruling below in a takings challenge to an

aesthetic ordinance, it seems certain that future invoca-

tions will be limited only by the imagination of claimants’

counsel.

As Justice Scalia observed in another context, means-

end inquiries that go beyond rationality review are “flabby

tests” that “invit[e] judicial arbitrariness and policy-driven

decisionmaking.” Tennessee v. Lane, 124 S. Ct. 1978, 2008-

09 (2004) (Scalia, J., dissenting); accord, Collins v. City of

Harker Heights, 503 U.S. 115, 125 (1992) (“As a general

matter, the Court has always been reluctant to expand the

concept of substantive due process because guideposts for

responsible decisionmaking in this unchartered area are

10

scarce and open-ended.”). Review here is necessary to

restore proper respect for decisions by our elected State

and local officials, and to prevent judicial policymaking

under the guise of regulatory takings analysis."

II. This Case Is an Exceptionally Good and

Timely Vehicle for Clarifying the Confusion

Among Federal and State Appellate Courts.

It is hard to conceive of a better case for resolving the

disparate rulings among federal and State appellate courts

regarding the purported means-end inquiry under the Just

Compensation Clause. The trial record is fully developed.

The ruling below cleanly frames the constitutional issues.

The ruling conflicts with State high court rulings within

the Ninth Circuit, thereby threatening the unfairness of

forum-shopping and additional burdens on federal courts

as claimants flock to the friendlier federal forum. And the

issue has percolated among lower appellate courts to the

point where judges on both sides of the question are

calling out for clarification. See page 7, supra (discussing

Santa Monica).

* See Pegram v. Herdrich, 530 U.S. 211, 221-22 (2000) (complicated

factfinding and policy judgments “are not wisely required of courts

unless for some reason resort cannot be had to the legislative process,

with its preferable forum for comprehensive investigations”); Chevron,

U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 866

(1984) (“[Flederal judges — who have no constituency — have a duty to

respect legitimate policy choices made by those who do.”); Berman v.

Parker, 348 U.S. 26, 32 (1954) (“[T)he legislature, not the judiciary, is

the main guardian of the public needs to be served by social legislation,

whether it be Congress legislating concerning the District of Columbia,

or the States legislating concerning local affairs.”; citations omitted).

11

Just as important, Members of this Court repeatedly

have identified this area of the law as confused and

confusing. The Court articulated the substantially advance

formulation in its terse 1980 opinion in Agins. For many

years, it was largely ignored by lower courts. E.g., Bamber

v. United States, 45 Fed. Cl. 162, 165 (1999) (the substan-

tially advance test “has not had a fruitful life” outside the

narrow context of compelled dedications of land). In

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), four

dissenting Justices stated flat out that the Just Compen-

sation Clause “does not apply” to challenges to the reason-

ableness or efficacy of legislation,’ and a fifth Justice

declared the Agins means-end inquiry to be in “uneasy

tension” with a proper understanding of the Clause.” All

five concluded instead that only the Due Process Clause

governed judicial examination into the statute’s reason-

ableness and efficacy."

The following year, in City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687 (1999), the Court

* Eastern Enterprises, 524 U.S. at 554 (Breyer, J., joined by

Stevens, Souter, & Ginsburg, JJ., dissenting) (observing that the Just

Compensation Clause “does not apply” to challenges to the legitimacy of

legislation because “at the heart of the Clause lies a concern, not with

presenting arbitrary or unfair government action, but with providing

compensation for legitimate government action”).

* See id. at 545 (Kennedy, J., concurring in the judgment).

" Id. at 545 (Kennedy, J., concurring in the judgment) (“[T]he more

appropriate constitutional analysis arises under general due process

principles rather than under the Takings Clause.”); id. at 556 (Breyer,

J., joined by Stevens, Souter, & Ginsburg, JJ., dissenting) (concluding

there was “no need to torture the Takings Clause to fit this case”

because issues regarding the reasonableness of government action find

“a natural home in the Due Process Clause, a Fifth Amendment

neighbor.”).

12

acknowledged that it has never fully explained “the nature

or applicability” of the substantially advance formulation

outside the special context of compelled dedications of

land, id. at 704, but it declined to clarify the doctrine

because the issue had not been properly preserved. Id.

Still, five Justices wrote or joined separate opinions

expressly refusing to endorse the formulation as a legiti-

mate test of takings liability.” As the Ninth Circuit recog-

nized, the “varying opinions” and “inconsistent nature of

the Court’s precedent” in regulatory takings cases “suggest

confusion” over whether the Just Compensation Clause

authorizes heightened scrutiny of whether economic

regulation adequately advances the public interest. Pet.

App. 10.

The Ninth Circuit’s use of the Agins substantially

advance test to invalidate legislation further highlights

the test’s inherent dissonance. The purpose of the Just

Compensation Clause is “to secure compensation in the

event of otherwise proper interference” with property.

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 314-15 (1987). It is analytically

discordant to strike down government action by invoking

constitutional text that provides fair compensation for

property expropriated for public use.

Of course, if a court were to award compensation upon

concluding that a law did not advance the public interest,

* Del Monte Dunes, 526 U.S. at 732 n.2 (Scalia, J., concurring in

part and concurring in the judgment) (“express[ing] no view as to [the]

propriety” of the substantially advance formulation); id. at 753 n.12

(Souter, J., joined by O’Connor, Ginsburg, & Breyer, JJ., concurring in

part and dissenting in part) (“offer[ing] no opinion” on whether the

substantially advance formulation is correct).

13

the result would be even more bizarre. Such a law pre-

sumably would be improper because public officials are

authorized to act only in the public interest. It makes no

sense to say that an unauthorized law is cured by the

payment of compensation to affected property owners, or

that the public should pay when laws provide no benefit to

the public. This anomaly in remedies demonstrates that

the Due Process Clause, not the Just Compensation

Clause, provides the appropriate framework for evaluating

whether a law adequately advances a legitimate goal.

The history of the compensation remedy in regulatory

takings doctrine helps explain how due process and

takings analyses became conflated. Prior to 1987, certain

commentators and courts believed that invalidation was a

sufficient remedy for a regulatory taking.” As a result,

there often was little need to distinguish between due

process and takings analyses because violations of either

clause led to invalidation. This Court frequently mixed the

relevant terminology, referring to “takings of property

without due process.” To further confuse the issue, the

Just Compensation Clause applies to State and local

governments through the Due Process Clause of the

Fourteenth Amendment,” thereby encouraging a blurring

of standards and phraseology.

" E.g., Norman Williams, et al., The White River Junction Mani-

festo, 9 Vt. L. Rev. 193 (1984) (invalidation is an adequate remedy for

violations of the Just Compensation Clause).

* E.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 498 n.7

(1981) (describing claims as alleging “takings of property without due

process”); Rostker v. Goldberg, 453 U.S. 57, 61 n.2 (1981) (same);

Goldblatt v. Town of Hempstead, 369 U.S. 590, 591 (1962) (same).

” E.g., Dolan v. City of Tigard, 512 U.S. 374, 383-84 & n.5 (1994)

(citing Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897)).

14

In 1987, the Court’s landmark ruling in First English

made clear that the government must pay just compensa-

tion for a taking, regardless of whether the taking occurs

directly through the power of eminent domain or inversely

through regulation that denies land economically viable

use. 482 U.S. at 314-22. Although the government may

limit its liability to temporary damages by rescinding the

offending regulation (id. at 321), just compensation still

must be paid.” Since the First English ruling, it has

become far more important to distinguish between due

process and takings due to the difference in remedy.

Worse still, the Agins Court derived its “substantially

advance” formulation from the Lochner era's “substantial

relation” standard for due process cases. See Agins, 447

U.S. at 260 (citing Nectow v. City of Cambridge, 277 U.S.

183, 188 (1928)). Although the demise of the Lochner era

brought an end to heightened scrutiny of economic legisla-

tion under the Due Process Clause, heightened scrutiny

improperly lives on under the Ninth Circuit’s reading of

Agins.

The five-Justice concurring and dissenting opinions in

Eastern Enterprises constitute a candid acknowledgement

that a due process means-end inquiry improperly crept into

takings jurisprudence prior to First English. As Justice

Kennedy recognized, the Agins substantially advance test

results from a stark “imprecision” in regulatory takings

doctrine, an imprecision rooted in “equivocal” assertions.

“ There might be a narrow exception to the obligation to pay

compensation for a taking where the challenged government action

requires the claimant to pay money to a third party. Eastern Enter-

prises, 524 U.S. at 520-21 (plurality). This exception is inapplicable

here.

15

Eastern Enterprises, 524 U.S. at 545-46 (Kennedy, J.,

concurring in the judgment). The Court should grant

review here to clarify once and for all that means-end

examinations of regulation should take place under the

Due Process Clause, not the Just Compensation Clause.

¢

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JAMES E. RYAN TIMOTHY J. DOWLING

UNIVERSITY OF VIRGINIA Counsel of Record

SCHOOL OF Law COMMUNITY RIGHTS COUNSEL

580 Massie Road 1301 Connecticut Avenue N.W.

Charlottesville, VA22903 Suite 502

(804) 924-3572 Washington, D.C. 20036

(202) 296-6889

September 2004