This is the first takings case that has come before Chief Justice Roberts and Justices Alito and Sotomayor since each have joined the bench and the first major property rights case to reach the bench since Kelo.
Additionally, it has been confirmed that Justice Stevens was absent from yesterday's argument and has recused himself from the case as he owns beachfront property in Florida and, therefore, might be directly affected by the decision of the Court. It is important to note, with respect to the absence of Justice Stevens, that if the Court was to reach a 4-4 decision in this case, the decision of the lower court would be upheld without comment. If the Court is split 4-4, no permanent decision would be issued and nothing would change with respect to the case or its outcome.
Although we will not attempt to predict the outcome of this case, we certainly enjoyed reading what others have predicted and would like to point to the blog analysis of Professor D. Benjamin Barros regarding yesterday's argument and his predictions as well as the suggestion of Professor John D. Echeverria, as quoted on the NY Times blog, that the State of Florida would "win."
Since there has already been so much analysis of the arguments and the possible decision of the Court, we simply point out what we see an the fundamental issue in this case and why it is important for property owners not just in Florida but around the country and not just with waterfront land but any property anywhere. The fundamental issue is whether a state court can alter a century of common law practice without relevant precedent and effectuate a 'judicial taking." The Petitioners/property owners in Stop the Beach have argued that the Florida Supreme Court did effectuate a judicial taking by overturning a century of common law regarding littoral rights. The Petitioners argued further that a test to determine whether a judicial taking has occurred would be to apply a test proposed by Justice Potter Stewart in his concurring opinion in Hughes v. Washington, 389 U.S. 290 (1967). Justice Stewart suggested that a judicial taking occurs when a property owner loses property rights under a state court decision that “constitutes a sudden change in state law, unpredictable in terms of relevant precedents.” It is precisely this that the Petitioner and many briefs in support of the Petitioners have argued - that the Florida Supreme Court disregarded years of common law precedent and in its 2008 opinion created a situation by which the property owners were deprived of their littoral property rights without just compensation and, as such, this is a violation of the 5th Amendment.
For additional commentary on yesterday's argument in Stop the Beach see these links:
- SCOTUS Oral Arguments in the Judicial Takings Case: Are 'Background Principles" of Property Law Completely Up to State Judges? (Part I, II, & III) - Robert Thomas
- Does Denying Property Owners Ownership Rights to Land Up to the Water Line Amount to a “Judicial Taking”? - Prof. Ilya Somin (Note: Robert Thomas did file a brief in this case on behalf of the Owners' Counsel of America, however, the brief and OCA's position is not in support of the Respondents but rather the Petitioners/property owners.)
- A Stevens-less Court talks Beach Parties, Erosion and Judicial Takings - Ashby Jones, Wall Street Journal Law Blog