Second Horne Case Decided. California Raisins – 2. Government – 0.

We didn’t have a chance to read the many opinions in this case properly when we began writing this post early in the morning, so unsurprisingly we have more to say about it now. But the bottom line remains (quoting from the court’s syllabus):

ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ, joined, and in which GINSBURG, BREYER, and KAGAN, JJ, joined  as to parts I and II. THOMAS, J, filed a concurring opinion. BREYER, J, filed an opinion concurring in part and dissenting in part, in which  GINSBURG and KAGAN, JJ, joined. SOTOMAYOR, J, filed a dissenting opinion.


So the basic news is good; the good guys won. Eight out of nine Justices agreed that the owners of the tons of raisins sought to be taken — physically seized — by the feds without compensation was clearly a taking that gave rise at the very least to an issue of compensability, with the majority finding the taking compensable and invalidating the feds’ attempt to seize Hornes’ raisins without compensation. Since the government’s position was unconstitutional, Horne was also relieved of any obligation to pay the government-imposed fine.

But we are baffled as to how so many smart people could produce so many opinions in answering the simple question whether a government physical seizure of tons of privately grown and privately owned raisins, and its exercise of dominion and control over them, is a “taking” within the meaning of the Fifth Amendment. It is. So say we and now so say eight of their Lordships, except for Justice Sotomayor whose opinion is so far out of it, that it leaves us speechless — at least for the moment — and wondering how a rational human being could utter such stuff. More about that anon.

Suffice it to say that Justice Sotomayor appears to be under the impression that a physical taking under Loretto v. Teleprompter Manhattanrequires that each and every property right be destroyed by governmental action before that action can be said to have effected a per se taking.” But the undisputed facts of Loretto were clear that what was in issue was not the destruction of “each and every” right of the owner, but the attachment of a TV cable box (not much bigger than the proverbial breadbox) to the exterior of an apartment building. That’s a destruction of “each and every property right” in the apartment building?! Huh? Or did she mean “each and every property interest” in the part of the subject property occupied by that box? And if so, wouldn’t that be contrary to the Penn Central case which says that takings jurisprudence does not divide property into segments but rather  deals with the subject property as a whole?

In any event,  we believe that such parsing of her opinion would be a waste of time because, as the Supreme Court took pains to explain in the World War II era General Motors case, a taking is the deprivation of the owner, not the accretion of any property interest to the taker, much less what the taker does with the property after its taking. And as the court emphasized in the 1954 case of Berman v. Parker, what the taker does with the property after the taking, is of no legitimate interest to the [former] property owner if he receives his just compensation. See the case law discussed in Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Planning — Sorry About That, Justice Stevens, 39 Urban Lawyer 529 (2007).

The best part of the majority opinion is the Chief Justice’s sensible conclusion that “This case, in litigation for more than a decade, has gone on long enough.” Amen to that, Your Honor.

Since this case has thus gone on “long enough” the court found no need to remand it for a calculation of values, because the government had found earlier that the taken raisins were worth $483,843.53, so it could not now contradict itself, and there was no point in trying their value now. In any event, doing so would be unnecessary because the relief granted by the Supreme Court to the Hornes was a Supreme Court order relieving them of their obligation to accede to the government’s demand that they surrender those raisins to the feds or pay a $400,000+ fine. Which is the relief they sought in the first place.

Bottom line: the [partial] dissenters simply don’t understand that the right to take and compensation are two separate issues. It is possible that a case presents the court with a taking, but no compensation is payable, as most recently illustrated by the AIG (Starr v. US) case that we wrote about earlier. And if there is no right to take it doesn’t matter what the value of the subject property is because then the owner gets to keep it, and no just compensation is payable.

Afterthought: We don’t have the chutzpa to appropriate it, so we suggest you go to Robert Thomas’ blog and take in the video of those California Raisins doing a victory dance.

Correction: The $400,000+ figure used in the text represented the value of the subject raisins, that the feds demanded in lieu of the Hornes’ physical delivery of them to the feds. On top of that, the feds demanded a $200,000 penalty for a total of over $600,000.

Edited 6/22/15 at 12:18 PM