By [post_author] –
On May 25 and with little or no press coverage, the Supreme Court delivered a huge blow to freedom. Citizens are no longer entitled to reasonable Due Process requirements for property right cases. The case, Lingle vs. Chevron fosters Sustainable Development policies.. The high court in this unanimous decision can no longer be said to be a protector of unalienable rights but instead has effectively adopted a political – economic system where rights are granted and rescinded by ruling edict. Saving the Republic will require an increasing public exposure of how the transformation of America is occurring. Apparently, the high court will not stand in the way of the globalist scheme to withdraw American’s freedom. The court has sanctioned, by this decision, the nation’s transformation of the economy from free enterprise to public/private partnerships. In doing that the court has abandoned Natural Law at its core. In this review, Attorney Ronald A. Zumbrun, founder of the Pacific Legal Foundation and now of the Zumbrun law Firm in Sacramento California analyzes the shocking decision.
Originally printed in THE DAILY RECORDER Monday, June 13, 2005 Official Newspaper for the City of Sacramento
PRIVATE PROPERTY’S STATUS OF A `POOR RELATION ‘
By Ronald A . Zumbrun*
Chief Justice William Rehnquist’ s opinion in Dolan v. City of Tigard, (1994) 512 U.S. 374 stated “[w]e see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to the status of a poor relation.” Apparently a lot has changed since 1994 . While the Supreme Court looks to protect lap dancing as “speech” and increase criminal rights under the Fourth Amendment, private property rights, explicitly laid out as sacrosanct in the Fifth Amendment, are apparently undeserving of the same protection.
A sweeping change to Fifth Amendment jurisprudence was made May 23, 2005, but you might not have heard about it because almost no one seemed to notice. The U.S. Supreme Court’s decision in Lingle, Gov. of Hawaii v. Chevron U.S.A., (2005) DJDAR 5868 has far reaching implications that limit an individual’s options when challenging repressive environmental, zoning and land use regulations as unconstitutional “takings” under the Fifth Amendment to the Constitution.
In Lingle, the District Court decided that a Hawaii rent control law that capped the amount of rent oil companies could charge their gas station lessees was an invalid way to maintain the viability of independent gasoline dealers or protect consumers from high prices. In reversing the trial and appellate courts, the U .S. Supreme Court brashly plucked a major weapon from the hands of property owners who have had their land taken or severely regulated by the government.
The Hawaii state legislature passed a law in 1997, capping the amount of rent oil refiners could charge the retailers leasing their service stations . The legislature, apparently concerned that the state has only two oil refiners and a shrinking number of independent gas station dealers, tried to prop up the independent dealers by imposing a ceiling on rent. According to the state Attorney General Mark Bennett, this action was “designed to prevent the oil companies from increasing rents to drive independent dealers out of business .” The problem is, of course, that the rent control law, as with all government-imposed price controls, had the opposite effect on the free market . The trial and appellate courts essentially found that capping rents means capping profits, which , in. turn, discourages investment in gas station operations, leading to a scarcity of independent gas stations . In other words, the state law would make the problem worse instead of better .
Faced with a similar situation in Agins v. City of Tiburon, (1980) 447 U.S. 255, the Supreme Court there ruled that the Fifth Amendment’s Takings Clause is violated by a land use regulation that does not substantially advance legitimate state interests, or denies a landowner the economically viable use of his land . The District Court, applying this test to the Lingle case, found that the law did not substantially advance the purported state interests because the regulations would not actually reduce lessee costs or retail prices, and invalidated the law pursuant to Agins.
Chevron made the “substantially advances” argument the centerpiece of its constitutional challenge to the rent control law, arguing that under Agins, the court should listen to economic experts and decide whether the rent control law “substantially advanced” a legitimate state interest. Because the law would actually have the opposite effect of its stated objective, the rent cap would “effect an uncompensated taking in violation of the Fifth and Fourteenth Amendments .”
As mentioned above, the District Court agreed with Chevron and struck down the law as unconstitutional. The Ninth Circuit initially vacated the decision, finding that the lower court had used the correct legal standard, but remanded the case for a finding of whether the law would actually benefit consumers . After finding the statute unconstitutional a second time, the lower court expressly rejected the state’s argument that courts should not use such a stringent standard when scrutinizing economic regulations . After the defeat, Attorney General Bennett scoffed that “intrusive review of state legislation by federal courts threatens principles of democratic government and federalism.” Translation: We, the agents of government, don’t want courts looking too closely at the laws we pass and how they may really impact constitutionally guaranteed rights.
The Supreme Court granted certiorari, viewing Lingle as a vehicle to correct what it thought was a mistake, pitting the Takings Clause against the means-ends test found in the “substantially advances” prong in Agins. The Court stated that the “substantially advances” portion of the Agins test “prescribes an inquiry in the nature of a due process, not a takings, test, and that it has no proper place in our takings jurisprudence.”
Justice O’Connor stated that “we have long eschewed [rejected] such heightened scrutiny when addressing substantive due process challenges to government regulation” and the opinion’s grant of “deference to legislative judgments” with respect to government property regulations conflicts with Justice O’Connor’s claim that the Court’s decision “does not disturb any of our prior holdings .” Since 1980, the “heightened scrutiny” that has been applied to government regulations on private property, expressly rejected by the Court in Lingle, required the court to inquire into the legitimacy of the , government’s actions and motives in enacting the legislation before the regulation will be allowed to stand . The burden of proof was on the government . Now, it is on the property owner claiming a violation of the Due Process Clause .
Justice Rehnquist’ s statement in Dolan has apparently been forgotten . The opinion makes clear that the new low level of scrutiny renders any Due Process challenge in this area essentially worthless. As stated by the Court, a regulation will only be invalidated if it “fails to serve any legitimate governmental objective” or if it is “so arbitrary or irrational that it runs afoul of the Due Process Clause .”
The government may now take our property so long as. it does not deprive us of all economically beneficial use of our land (Lucas v . South Carolina Coastal Council, (1992) 505 U .S. 1003; deprive us of enough economic value to raise to the level of a compensable taking (Penn Central Transp.Co. v. New York City, (1978) 438 U.S. 104 ; physically invade or directly appropriate all or a portion of our property (Loretto v. Teleprompter Manhattan CATV Corp ., (1982) 458 U.S. 419; or exact concessions or dedications without an “essential nexus” or a “rough proportionality” between the degree of the exaction and the impacts on the use of our land (Nollan v. California Coastal Commission, (1987) 483 U.S. 825, and Dolan v. City of Tigard, (1994) 512 U.S. 374).
A kernel of hope for property rights can be found in the Court’s decision . The landmark holdings of Nollan and Dolan, cases involving individualized land use decisions, remain untouched. “[T]hese cases involve a special application of the doctrine of `un-constitutional conditions,’ which provides that the government may not require a person to give up a constitutional right here the right to receive just compensation when property is taken for a public useÂ—in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.” Such adjudicative decisions will be invalidated if the government exacts property or conditions development in the absence of a “nexus” between the property use and the discretionary benefit.
Lingle is the first of three important property rights cases the court will decide this term . On the heels of Lingle are Kelo v. City of New London, 268 Conn. 1 (2004) . (cert. granted 125 S . Ct. 27 (2005), addressing the question of whether the Fifth Amendment protects individuals from government taking their property for the sole purpose of increasing tax revenues and improving the local economy), and San Remo Hotel v. City and County of San Francisco, (2004) 364 F .3d 1088 (cert. granted 125 S . Ct. 685 (2004) deciding federal jurisdiction and whether forcing residential hotels who convert rooms to permanent tourist hotel use to provide replacement housing or pay a fee to the City constitutes a taking) . It is troubling to see such a narrowing of what began as the untouchable area of private property rights .
In this way, Lingle is likely signaling a fundamental change to review burdens on property rights using the. deferential “rational basis” test where the court will not second-guess or scrutinize the government regulation so long as it is not arbitrary or irrational. If so, then Justice Rehnquist got it wrong when he said that personal rights under the Takings Clause are not relegated to the status of a “poor relation” in comparison to First or Fourth Amendment rights. To be consistent with prior holdings and conform to constitutional muster, the Court should review property regulations in a due process challenge under some form of heightened scrutiny. The purpose of enumerating rights in the Constitution was to remove them from the reach of the government or whims of the majority; respect was to be given to the people’ s decisions on all other matters . Deference to legislative decisions where the Constitution is silent is one thing, and letting mob rule trample constitutional protections with hardly any review at all is quite another.
Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm specializing in land use and environmental law. Zumbrun’s column appears in the Daily Recorder on the second Monday of each month. G. Braiden Chadwick of the Zumbrun Law Firm assisted in preparing this article. Mr. Zumbrun may be contacted at email@example.com .