Just Deserts for Justice Stevens

The big news from the Supreme Court last week was its decision in Citizens United v. Federal Election Commission, in which the court struck down statutory limitations on campaign contributions, notably holding that corporations, the same as individuals, have a first amendment right to advocate political positions, and that laws denying them that right are unconstitutional. So what does that have to do with eminent domain? Read on. There is a wrinkle in this decision that is of interest. Justice Stevens dissented in Citizens United, complaining among other things, that the majority improperly expanded the issues it decided, beyond those presented by the petitioners. The SCOTUS blog also notes that, and observes that the court held over Citizens United from last term, and ordered reargument in order to address those expanded issues. 

So why is this of interest to eminent domain types? Because Justice Stevens did the same thing that he complained of in Citizens United, in the case of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). There, the petitioners presented the question of whether the Ninth Circuit’s holding that a moratorium can never be a taking was error. But the Supreme Court, after sitting on the petition for an inordinate length of time rewrote the question presented and granted certiorari on an issue different from the one submitted by petitioners. The petitioners’ first question was: 

“In light of this Court’s clear holding that a temporary moratorium on land use can require compensation for a temporary taking of property (First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 [1987]), is it permissible for the Ninth Circuit Court of Appeals to hold – as a matter of law – that a temporary moratorium can never require constitutional compensation?” Emphasis in the original.

 But certiorari was granted on the question that as rewritten by the court read: 

“Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?” 

What’s the difference between the two versions? The Petitioners’ formulation addressed the issue of whether lower courts may depart from the Supreme Court’s First English holding that as a matter of law a moratorium could be a temporary taking, whereas the 9th Circuit asserted that, on the contrary, a moratorium could not be a taking because of its temporary nature. Thus, the rewritten question enabled the court to duck the question of law presented by the petitioners, and to deal solely with the specifics of that case rather than with the far-reaching rule laid down by the 9th Circuit. Stevens was thus able to acknowledge that a moratorium could be a taking, while still ruling that this particular moratorium was not a taking, allowing him to affirm the opinion below even as he acknowledged indirectly that the 9th Circuit was wrong.

This reformulation of the question presented also allowed Justice Stevens to press the owners’ lawyer in oral argument as to whether any moratorium – perhaps one as short as a few minutes – would be a taking. This reduced the substantial question of law presented by the petitioners who had been denied the right to build individual homes on their lots for a period of years, to a word game over whether short, de minimis interdictions of land owners’ right to build a home are takings.  

We have no way of knowing whether Justice Stevens rewrote the petitioners’ Question Presented, but since he eventually wrote the majority opinion holding that this “temporary” moratorium was not a taking, it seems fair to suppose that either he did it or it was done by a clerk at his direction. 

So it’s a case of just deserts to see Justice Stevens complaining that the majority in Citizens United departed from the questions presented by the petitioners. Evidently, this is a case of “what goes around, comes around.”