The line between what's public and what's private is—in the words of a recent Florida Supreme Court decision—"a dynamic boundary" that, "by its very nature, frequently changes."Tiger Woods is a public person who wishes he had more privacy. Party crashers Tareq and Michaele Salahi are private persons who probably wish they had a bit more publicity. Justice Anthony Kennedy—who assisted the Salahis in their quest to be larger-than-life by speaking at their wedding (skip ahead to the 50-second mark unless your tolerance for gloves and doves is higher than mine)—has been grappling very publicly of late with questions about when private speeches should be public and public ones should be private. And Kennedy and the rest of the Supreme Court devote a whole Gidget-ish morning to this private/public divide by pondering whether a private beach is still private when there's a noisy hot dog stand or a raging spring break taking place at the water's edge.
The question before the court in what might be—but probably isn't—the biggest takings case since Kelo v. New Londonin 2005 is what happens when the state of Florida, in an effort to stop erosion, trucks in tons of soft, white sand to expand the size of your beach but then keeps a strip of that new beach for itself. That makes Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection kind of like Kelo but without the poor people. It's also not exactly a takings case, since, as several justices point out today, the landowners who are complaining that the state took their beach away actually haven't lost anything. As Justice Ruth Bader Ginsburg puts it, "They have a wider beach that's theirs, so they have gained property." In a sense, it's not so much a takings case as a give-and-takings case.
The case began in 2003 when six property owners in the Florida-panhandle town of Destin challenged the Beach and Shore Preservation Act, a statute that requires state officials to establish a "renourishment" project when waterfront land is "critically eroded." The act provides that the state owns any new dry beach created up to something called the Erosion Control Line. The act also expressly protects the property owners' rights to access the water and to enjoy the peace and quiet of their beachfront properties. The property owners sued, claiming that the act had downgraded their waterfront property into water-view property. The Fifth Amendment takings clause says governments must pay "just compensation" when they take private property for public use. The landowners initially prevailed with this claim before a state appeals court, but lost by a 5-2 margin at the Florida Supreme Court. They have now broadened their appeal to include the novel question of whether the Florida Supreme Court, by siding with the state, itself committed a "judicial taking" by grabbing property for public use without paying for it. Justice John Paul Stevens—who owns a beachfront apartment in Fort Lauderdale, Fla.—was not present at argument today, presumably because he might someday be accused of judicially taking private land away from himself.
The landowners are represented at oral argument today by D. Kent Safriet, who says that "[g]iven this court's jurisprudence that a state's legislative and executive branches cannot violate the Fifth Amendment, we see no reason why the judicial branch should be treated any differently." Justice Ruth Bader Ginsburg is unpersuaded, pointing out that the landowners' contention at trial was that the legislature was guilty of a taking and that it makes no sense to claim now that "the judiciary somehow is complicit in this violation by the legislature."
Justice Stephen Breyer tells Safriet, who is saying that property owners have a common-law right to claim what they have lost, "But you didn't lose anything. It just went out the front door there. … You didn't lose one inch. All you lost was the right to touch the water. But the court here says you, in effect, have that right because you can walk right over it and get to the water." Safriet says that adding a state-owned beach in front of their land means his clients have lost their right to contact the water's edge.
Asks Chief Justice John Roberts: "If somebody wanted to put up a hot dog stand on this new land, would you have the right to tell them they can't?"
Breyer says the statute precludes the state from putting up anything on that strip that destroys your "right of enjoyment." So if the state "put up a noisy hot dog stand that keeps you up at night," that would violate the statute. Scalia points out that the state could still erect "quiet hot dog stands during the daytime." Justice Sonia Sotomayor counters that under Florida common law, even before the start of this litigation, "a hot dog stand could have sat in the water" beyond the property owner's boundary line.
Justice Antonin Scalia asks, "Did any of these beachfront owners think this was a good deal, that the state has prevented further erosion of their land and, you know, the price they pay for this is that they have this 60-foot stretch that the public can use, and that may wash away in six years anyway, and if they're lucky the state won't have enough money to put it back?" Scalia concludes that he's "not sure it's a bad deal" for the property owners. It may be better to have the erosion-controlled beach: Without it, "all of your property might be underwater, right? That wouldn't be very good."
Safriet says his clients were willing to take that risk.
Justice Kennedy wonders how the court would ever measure judicial taking, even if there were such a thing. What would a madcap judiciary do that would be so out-of-bounds as to constitute a judicial taking? "Would we just find all sorts of adjectives—sudden, unexpected, unfounded?" He adds that even if he were willing to invent a doctrine of judicial takings, he doesn't want to "have to become real experts in Florida law." He's not all that sure the Florida Supreme Court did anything all that out-of-bounds, anyhow. "It's a close case," says Kennedy. "It might have gone either way."
The Chief Justice asks a hypothetical in which someone essentially runs for the Florida Supreme Court by promising to have a position on judicial takings. Say they changed the law of takings? Would that represent a judicial taking?
Justice Samuel Alito, formerly the founder of the "pay-per-view, human sacrifice channel," wonders whether the city, in an effort to "attract more students … for spring break," could create a "huge beach in front of privately owned homes" and "have televised spring-break beach parties" there. Florida Solicitor General Scott D. Makar reminds the good justice that "this is the Beach and Shore Preservation Act. It isn't designed to create some recreational playground for spring breakers." Scalia quickly invents "the Spring Break Act of 2010" (wherein you party on that 3-foot stretch of wet beach like there's no tomorrow).
When Makar concedes the state could pass a spring-break-party-promoting act, Breyer gets angry at him for giving up the hypo, pointing out that the statute goes out of its way to ensure that residents don't lose any of their current rights to access or enjoy the beach. They just lose the right to contact the water. The chief justice gets even angrier: "But that is what the whole case is about, whether they have a right to contact the water or not. It seems to me if your only answer to every question is they don't have the right, you're just completely begging the question."
Kennedy frets that Makar hasn't answered Alito's beach party hypothetical. He's worried about whether "Porta-Johns" are going to start to dot the edges of America's private beaches.
Edwin Kneedler * has 10 minutes to represent the Justice Department, which sides with Florida in this litigation. He tries to get the court to sidestep the whole "judicial takings" issue, which Roberts promptly dismisses as a "clever ploy." Kennedy needles Kneedler on why the Florida Supreme Court failed to cite the one case that represents the best authority for its conclusion. The chief justice asks whether Florida could put up an amusement park on its strip of state property. Kneedler reminds the court that under Washington state law you might be able to, but Florida is far more protective of its private-property owners.
Underwater hot dog stands! Flat Stanley beach parties! Porta-Johns! These and other unimaginable horrors represent the nightmarish consequences of judicially blurring the already blurry line between public and private Florida beaches. It's only when one begins to consider how truly terrifying this whole towel-spreading, hot-dog-eating, hand-jive-performing American public really is in the eyes of some members of the court that one can understand why they are willing to fight for their own privacy like it's—well, like it's still 1965.
Correction, Dec. 3, 2009: The original article misspelled Edwin Kneedler's name. (Return to the corrected sentence.)