482 U. S. 304
June 9, 1987
A Lutheran church in Glendale had a beautiful retreat called Lutherglen, but a flood destroyed all the retreat’s buildings. Los Angeles County passed an ordinance which prohibited any use of Lutherglen until further notice. The Lutheran church sought compensation, but the California courts demurred, stating that unless the temporary regulation was judicially found to be a taking, no monetary compensation could issue. And the courts were (apparently) of the view that property-owners could not be compensated for any period of time prior to such a judicial finding.
The Court ruled 6-3 that property owners must be compensated for the period of time preceding a judicial determination that a regulation amounts to a temporary taking. Rehnquist wrote for the majority, and he first had to establish that the Court could even announce such a rule in this particular case. He claimed that the California courts had assumed that the Lutherans had been deprived of a great deal of value through the regulation, and so the Supreme Court could assume so as well. Turning to the merits the case was simple. The takings clause was an absolute command that compensation be given; not a suggestion. Whether a taking was regulatory or temporary did not matter. And neither did the timing of a judicial determination either.
Who could dissent from such straightforward logic? Stevens, bien sûr! In parts joined by Blackmun and O’Connor, he argued that the California courts had not really left the case in such a posture that the Supreme Court could make the ruling it did, and also that there was no evidence that the Lutherans could not get compensation if they tried an alternate legal method of challenging the regulation. But then, he went on further, now alone. He actually argued that only physical temporary takings, as opposed to regulatory ones, should be amenable to monetary compensation. He thought compensation for temporary regulatory taking placed too much burden on governments, and that line drawing on what regulation went “too far” would be hard. Finally, the horror of all horrors, Stevens essentially admitted that he didn’t think any regulatory takings, no matter how financially ruinous to property owners, ought to be compensated. Cutting through his crap, he basically wanted the takings clause removed from the Constitution.
Although Stevens “respectfully dissent[ed],” his opinion was laced with lots of typical passive-aggressive insinuation. The Court’s decision “will generate a great deal of litigation,” he ominously intones to start off his opinion. The Court acted in a “dangerous way.” “It is hard to understand how appellant ever expected to rebuild Lutherglen,” he snottily declares. Stevens accused the bipartisan majority of having a “radical view.” He found the very concept of compensating property owners “utopian.” He airily stated that financial ruin for certain owners was merely a mildly unfortunate “inevitable byproduct.” He tut-tutted about the Court’s “loose cannon,” and loftily bemoaned that the majority had chosen not to take the “better part of valor.”
I don’t think there’s any Supreme Court Justice, past or present, who I personally loath as much as Stevens. One commenter on Althouse summed it up best: “He’s a little frickin’ dictator in a stupid bow tie.” If you want proof that he’s no friend of freedom, use this Big Brother loving opinion (especially the last section) as one of your lead exhibits.