Jay Bybee models conservative judicial activism in the 9th Circuit.

The law, lawyers, and the court.
May 28 2010 4:44 PM

Torturing the Law

Jay Bybee models conservative judicial activism in the 9th Circuit.

Whether you love him or want to impeach him, you've got to admit Judge Jay Bybee can be very creative when it comes to the law. Most famously—or infamously—in the drafting of the so-called "torture memo," Bybee, then the assistant attorney general in charge of the Office of Legal Counsel for the Bush administration, co-authored a legal memorandum authorizing interrogation techniques most observers now agree amounted to illegal torture. The Bush administration ended up withdrawing that memorandum, and about the only remaining controversy is whether the document amounted to professional misconduct, as the DoJ's Office of Professional Responsibility concluded, or merely "poor judgment" as determined by a review of OPR's finding by Associate Deputy Attorney General David Margolis. Even Bybee, in private, is reported to regret having signed that memo.

Today Jay Bybee is a judge on the U.S. Court of Appeals for the 9th Circuit, but apparently being elevated to the federal bench hasn't stunted his creative powers. In a case called Guggenheim v. City of Goleta, Bybee has managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.

Advertisement

The Fifth Amendment provides that the government cannot take your land without offering just compensation in return. As you may recall from the Supreme Court's foray into the Kelo case in Connecticut, the assertion that the government wants to take your stuff tends to get people extremely excited. But using that doctrine to strike down this particular rent control law is an act of judicial creativity that's remarkable in so many ways. To better understand why this is so, a little history is in order. Property rights groups have always disliked California's rent control plans, right back to when they were enacted in the late 1970s. For example, the rent control ordinance being challenged in Guggenheim was a Santa Barbara County regulation enacted in 1979 trying to protect mobile home tenants from being taken advantage of by mobile home park owners, who own the plot of land on which the mobile home sits. Mobile homes are practically immobile—because of the cost of transporting them, only one in 100 is ever moved—so the county enacted mobile home park rent controls so park owners couldn't charge exorbitant land rents to tenants who couldn't pack up and move.

In the decades after these rent control plans came into effect, property rights groups challenged the regulations in court but always came up short. They tried to shoehorn their objections into a variety of constitutional theories, but the Supreme Court shot them down every time. And by the time all these litigation tactics had been tried, the rent control regulations had been in place for so long that the statute of limitations had run and they couldn't be challenged. Then, in 2005, in a case called Lingle v. Chevron, the Supreme Court threw out yet another takings clause claim, once again scuttling conservatives' favorite method of challenging land use regulations. Some in the property rights camp were starting to lose hope in the courts as champion in their quest for maximum rental profits.

Enter Judge Bybee and the Guggenheims. The Guggenheims bought a mobile home park in 1997 in what was, at that time, an unincorporated part of Santa Barbara County. Because mobile home rent control laws had been in place since 1979, with some further amendments in 1987, the price the Guggenheims paid for the mobile home park was discounted based on the reduced rental profits they would realize as a result of the rent control plan. Also, any constitutional claim the Guggenheims might once have brought in court was now time-barred by the statute of limitations.

But the Guggenheims brought a lawsuit challenging the rent control plan. Their theory was that something kind of constitutionally magical happened after the area in which the mobile home park is located was incorporated as the city of Goleta in 2002. When, as part of the requirements for incorporation, the city re-enacted the county code—including the identical rent control ordinance—everything officially changed from county regulations to city regulations. And this is how Judge Bybee worked his creative magic. After the lower court ruled in favor of the City and the case was appealed to the 9th Circuit, Judge Bybee revived the Guggenheims' stale challenge to rent control by seizing upon a mystical "gap in time" that occurred at the moment at which the city readopted the county code as part of its official incorporation. During this mysterious "gap in time," the county's original rent control law was apparently not in effect in the city, and the Guggenheims' takings claim, which should have been time-barred, was brought back to life. At best, this is a dubious reading of California law because newly incorporated cities like Goleta are required to immediately adopt an ordinance stating that all county ordinances "shall remain in full force and effect as city ordinances"—if there were truly this fleeting "gap in time" caused by incorporation, it is hard to see how the county's ordinances could "remain" in effect.

But with this "gap in time" as his lever out of the statute of limitations, Judge Bybee found the city's rent control ordinance to be an unconstitutional taking on its face. As a constitutional matter, a successful facial challenge must show that that there is no set of circumstances under which the regulation can be constitutionally applied. And as Judge Bybee's opinion conceded, he was breaking new legal ground: The Supreme Court has never found a regulation—rent control or otherwise—to be facially unconstitutional under the Takings Clause.

That the Supreme Court has never before found a regulation unconstitutional on its face under the Takings Clause is hardly surprising. As explained in a brief Constitutional Accountability Center filed with the 9th Circuit, courts must exercise particular restraint in declaring an act of government to be a regulatory taking, given that the text and history of the Fifth Amendment itself show that the Founders intended to limit only physical takings of property for public use without just compensation. And even Justice Antonin Scalia, a solid supporter of the property rights movement, acknowledged in Lucas v. South Carolina Coastal Council that "early constitutional theorists did not believe the Takings Clause embraced regulations of property at all."

While the Supreme Court eventually decided to extend the Takings Clause to regulations that "go too far," it has made clear, particularly in Lingle and other recent cases, that regulations can be takings only when they are truly extreme to the point that the taking becomes a functional equivalent of a physical occupation or "taking" of land. After all, nearly every land use regulation limits property rights in some way. But very few of them rise to the level of being unconstitutional takings. So Judge Bybee's decision tossed aside the careful limitations in Supreme Court precedent and broke new jurisprudential ground, that a regulatory—as opposed to a physical—taking was unconstitutional. And he did it for the very first time in a case in which it could not be more unjustified, and by pinning his constitutional reasoning on a mythical gap in time into which, evidently, the law itself evidently disappeared altogether.

The pro-property activism of Bybee's opinion in Guggenheim is amply demonstrated by the dissent from his conservative colleague Judge Andrew J. Kleinfeld, who is himself certainly no fan of rent control. But Kleinfeld explained in dissent that, no matter how much he or anyone else might want to declare this rent control ordinance a taking, no faithful application of the Constitution and court precedent allows it. As Judge Kleinfeld explained, the Guggenheims purchased their mobile home park with the rent control plan in place—and, accordingly, the price they paid for it reflected a discount based on the reduced rental profits. The "gap in time"—which was literally mere moments on the day the city incorporated—did not change any of that. The Guggenheims got exactly what they paid for: a mobile home park subject to rent control. The city took nothing from them. There simply was no taking. Not under the law, not under the facts, and not under any common-sense understanding of how the law works in real life.

Talk of judicial activism tends to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method. Whatever one thinks about rent control, we should all be able to agree that bending the law to reach a judge's desired outcome is the very definition of judicial activism.

Fortunately, the full 9th Circuit has now agreed to reconsider Judge Bybee's decision. Let's hope the rest of the judges on the 9th Circuit are a little less creative in their reading of both the Constitution and Supreme Court precedent. Let's also hope that critics of the 9th Circuit's purported "activist" tendencies are as willing to decry blatant judicial activism when it comes from a pro-property conservative, as they are when they think it is coming from lefty liberals.

Like Slate on Facebook. Follow us on Twitter.

Doug Kendall is president and Elizabeth Wydra is chief counsel of Constitutional Accountability Center, a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution's text and history. CAC filed a brief in Guggenheim in support of the City, a copy of which may be found here. CAC was joined on the brief by the American Planning Association, APA California, and the Western Center on Law and Poverty.

  Slate Plus
Political Gabfest
Dec. 18 2014 9:03 AM We Were Doing It Wrong: The Very First Political Gabfest Watch Emily, John, and David review their inaugural Gabfest from 2005.