A10 Supreme Court
Beach work’s addition of public-owned sand doesn’t erode rights
by Robert Barnes Florida’s beach restoration
program does not violate the rights of waterfront property owners, the Supreme Court de-
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FRIDAY, JUNE 18, 2010 High court rejects Fla. waterfront property owners’ argument
cided unanimously Thursday, even though the new strip of sand created by the state belongs to the public, not the private land- owners.
But the court split evenly on the broader property-rights issue the case represented: whether the action of a court can create an unconstitutional “taking” of pri- vate property, just as if the action had been taken by another arm of government.
For decades, Florida’s beach
restoration and renourishment program has been pumping in wide strips of sand to save erod- ing shorelines and protect the state’s most important tourism feature. Homeowners have not object-
ed before. But a group of property owners in the Florida Panhandle objected because they the pro- gram comes with a catch: The new strips of beach have been
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deemed to be public property. The homeowners feared their
waterfront view of white sand and sea oats would soon include throngs of strangers toting um- brellas and coolers. They said the state law meant that their proper- ty lines no longer touched the wa- ter. The Florida Supreme Court said that did not matter, since they enjoyed the same access to the beach they had always had. The U.S. Supreme Court
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agreed, saying the state was fill- ing in only submerged land that belonged to the public and that the property owners had not suf- fered a loss. The judgment was 8 to 0; Jus-
tice John Paul Stevens did not participate because he owns a condominium on a strip of South Florida beach that is scheduled for restoration.
But the justices split evenly on the broader issue in the case,
which was whether the actions of the judiciary — in this case, the state’s high-court decision up- holding the program — could constitute a “taking” of private property forbidden by the Consti- tution. Four members of the court —
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clar- ence Thomas and Samuel A. Alito Jr. — said yes. “It would be absurd to allow a
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state to do by judicial decree what the takings clause forbids it to do by legislative fiat,” Scalia wrote. He provided a standard for what would constitute a taking: “If a legislature or a court de- clares that what was once an es- tablished right of private proper- ty no longer exists, it has taken that property,” he wrote. On the current court, Scalia has been the most outspoken in looking for a judicial takings case, an issue important to ad- vocates of private property rights. He said in 1994 case that such a challenge would be warranted if the state court changed a proper- ty owner’s rights by “invoking nonexistent rules of state sub- stantive law.” Since then, the court had passed on 15 challenges that attempted to raise the issue before it accepted the Florida case. Even though he was unable to muster a majority, Scalia seemed to want to get his position on rec- ord. The other justices — Anthony
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The Obama administration has decided to sue Arizona over the state’s controversial immigration law, according to Secretary of State Hillary Rodham Clinton. The Justice Department declined Thursday to confirm such a plan. In a June 8 interview with an
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Ecuadorean television station, Clinton said the department, un- der President Obama’s direction, “will be bringing a lawsuit” over the measure. A video of the inter- view was distributed Thursday by the American Civil Liberties Union, which urged the adminis- tration to go to court. Justice Department spokes-
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man Matthew Miller said the de- partment “continues to review the law’’ and declined to com- ment further. The Arizona legislation em- powers police to question anyone who authorities have a “reason- able suspicion” is an illegal im- migrant. The Justice Department has been considering for nearly two months whether to sue the state to stop the law from taking effect this summer. Federal officials have given strong signals in recent weeks that a lawsuit is almost certain, and one official involved in re- viewing the law said Thursday that “there is no reason to think” that Clinton’s assertion was wrong. The official spoke on the condition of anonymity because no decision has been announced. Arizona officials have urged the administration not to file suit, and Gov. Jan Brewer (R) said in a statement Thursday: “If our own government intends to sue our state to prevent illegal immigra- tion enforcement, the least it can do is inform us before it informs the citizens of another nation.”
markonj@washpost.com
Staff writer Anne E. Kornblut contributed to this report.
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M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg — said there was no reason to make such a finding to decide the Florida case. Kennedy and Sotomayor fur- ther suggested that they may not find such judicial takings to be authorized by the Constitution. “It is unclear whether the tak- ings clause was understood, as a historical matter, to apply to judi- cial decisions,” Kennedy wrote for the two. But D. Benjamin Barros, a pro- fessor at Widener University School of Law, noted that Ken- nedy and Sotomayor still seemed sympathetic to property owners. He pointed to Kennedy’s words in the concurrence that a “judicial decision that eliminates or sub- stantially changes established property rights, which are a legit- imate expectation of the owner, is ‘arbitrary or irrational’ under the due process clause.” The case is Stop the Beach Re- nourishment v. Florida Depart- ment of Environmental Protec- tion.
barnesbob@washpost.com
Clinton: Ariz. to face suit over law on immigration
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