The decision in the Koontz case (Koontz v. St. John’s River Management Dist., No. 11-1447, June 15, 2013) came down this morning. That’s the Florida exaction case everybody has been waiting for. It’s a 5 to 4 decision with the majority opinion written by Justice Alito who explains that property rights are constitutionally protected from government extortion, the same as other constitutionally protected rights, and that “property” includes not just land but also money and the cost of construction of offsite public improvements. The dissent was written by Justice Kagan who foreshadows the end of the civilized municipal government as a result of this opinion.
Our favorite passage from the majority opinion:
“Extortionate demands for property in the land use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation.” Slip opinion, p. 10.
We will have more to say after we get the chance to read the majority and dissenting opinions in the detail they deserve.
Summing up: There were three cases this term dealing on the merits with takings (Arkansas Fish & Game, Horne, and Koontz), and property owners won all three.
Follow up. So we were wrong in our pessimistic conclusion to the preceding post, and glad to be wrong. Maybe being pessimistic is not always the way to go, the thermodynamic concept of rising entropy notwithstanding, but in this field that’s how the smart money bets. Of all the takings cases that were dealt with by the U.S. Supreme Court since 1978, in only one — count ’em, one — did the court affirm the owners’ award of just compensation (Del Monte Dunes). Still, sometimes the good guys win, even if in this case of attempted government extortion that hasn’t been easy.
Which brings us to a perplexing question: why are liberal judges who profess a devotion to a “living constitution” that protects people from an overreaching government, so fiercely committed to a kleptocratic mode of governance in which anything that tends to plunder private wealth, including modest wealth of ordinary people, is deemed such a great public good? If you figure that one out, please do let us know.