Category Archives: property

Tulsa Professional Collection Services, Inc. v. Pope

485 U. S. 478

April 19, 1988

In Oklahoma, once you die, the executor of the estate can publish a general notice of the death in a newspaper for two weeks. If creditors of the deceased do not step forward within two months of the notice, their claims are barred. A hospital wanted to be paid for a dead man’s medical costs, but it missed the notice, and was barred. The hospital said that the lack of actual notice violated the Due Process clause.

The Court ruled 8-1 that Oklahoma law did violate the Due Process clause. According to established law, creditors had a Due Process right to actual notice rather than publication notice when state action was involved. The dead man’s family said that there was no state action – they published the notice on their own accord, and the two month timeframe ran by itself. O’Connor, writing for the Court, disagreed. The probate court, a state actor, is very much involved. The probate court appoints the executor, and asks for copies of the publication notice. Because of this level of state action, actual notice was required for creditors. O’Connor said that mail notice to reasonably ascertainable creditors would suffice, and that herculean efforts would not be expected.

Blackmun concurred in the result without comment. But Rehnquist dissented, and actually explained himself for once. The probate court’s involvement was so minimal and perfunctory that the proceeding really ought to be considered private rather than state action. Because private action did not require actual notice to creditors, the Oklahoma law was sound. I’m not sure who was right. This was a close call, and in any event I’m glad O’Connor included the limiting words at the end that over-the-top efforts were not Constitutionally mandated.


Commissioner v. Bollinger

485 U. S. 340

March 22, 1988

Jesse Bollinger operated a bunch of apartments in Lexington, Kentucky. To get around some weird lending laws, he set up a corporation, owned entirely by him, which would have title to the properties. However, virtually all other business involving the properties would be carried on by Bollinger’s various partnerships. The corporation was explicitly described as an agent of the partnerships, and many other businesses which dealt with Bollinger’s partnerships didn’t even know about the corporation. The question was whether Bollinger or the corporation owned the properties for tax purposes.

Unanimously, the Court said that Bollinger did (Kennedy did not participate). Usually, a corporation that holds property as an agent for someone else is not considered the owner for tax purposes. The IRS contended that this rule did not apply given that Bollinger was the sole stockholder of the corporation, and that agency could legally be doubted in such situations. Scalia dug through some boring cases from the 1940s which suggested as much. But Scalia cared more about the facts of the instant case, and factually, the corporation’s nature as a total agent was crystal clear. He thus declined to find the rigid and overbroad tests from the old cases to be controlling law.

Once again, an IRS case ended up unanimous. The Supreme Court really does seem to hate tax law as much as many law students do. In a complicated case, they tend to say “yeah, we’ll just go with whatever the lower court thought.” In any event, I kind of liked this ruling. Between it handing the IRS a loss, and it privileging the facts over arbitrary judicial tests, it was a good one.

United States v. Louisiana

485 U. S. 88

March 1, 1988

First, a word about the case name. The official citation is “United States v. Louisiana,” but the case does not involve Louisiana at all. United States Reports uses the more colloquial “Alabama and Mississippi Boundary Case,” but Alabama is likewise not involved at all. Well over a decade before, the federal government had began fighting with all three states about their territorial reach into the Gulf of Mexico, but by 1988 only Mississippi was still fighting. At issue was an area of water known as the Chandeleur Sound. The Special Master in charge of arbitrating the territorial disputes claimed that dealing with the Chandeleur area was beyond the scope of his charge.

Justice Blackmun wrote for a unanimous Court, and agreed with the Special Master (Marshall and Kennedy did not participate). Blackmun observed that Mississippi and the United States were substantially in accord about the area which was within the Special Master’s purview. He thus directed that an ultimate settlement be finally made for the areas within that purview, and allowed that the parties could come back later and institute new action to deal with the Chandeleur Sound dispute.

Phillips Petroleum Co. v. Mississippi

484 U. S. 469

February 23, 1988

More than 150 after becoming a state, Mississippi decided to assert its alleged right to some non-navigable swamplands that were subject to the influence of the ocean tide. Under common law, sovereignties like states had title to public waters. The landowners fought back, claiming that states only had title to navigable waters, and not all waters subject to tidal influence.

The Court ruled 5-3 that Mississippi received title back in 1817, and could assert it (Kennedy did not participate). Justice White showed some old dicta suggesting that the state’s common law ownership of waters was defined tidally, and bolstered this by claiming that some of the reasons for this common law ownership, like fishing and reclamation, had nothing to do with navigability. That England’s definition of sovereign ownership of waters might be different was brushed aside. So was the fact that some individual states went with a navigability test. Also deemed irrelevant by White was the fact that navigability was the touchstone for inland waterways. Concluding, he said that in light of judicial precedent, the Mississippi landowners had no reasonable expectation that Mississippi was bound to respect.

O’Connor, joined by Stevens and Scalia, sharply dissented. The dicta in old cases about tidal influence was just careless, she said, and a closer examination of the precedents showed that navigability was indeed the preeminent test. Plus, it made no sense to have separate tests for inland waterways, and waterways connected to seas. O’Connor was also worried that some coastal states which had long since settled on the navigation test might be tempted to try and move to the tidal influence test. Finally, she savaged the Court’s indifference to the expectations of the landowners who had paid taxes on the property for more than 150 years. O’Connor’s dissent was absolutely right – this decision was rotten, and Mississippi’s actions were shameful. On the bright side, it was nice to see Stevens backing a property owner for once, even if it was in dissent.

Nollan v. California Coastal Comm’n

483 U. S. 825

June 26, 1987

The Nollan family sought to tear down a small house on California beachfront property, and build a much bigger one which would block view of the ocean. State regulators conditioned the right to build the new house on the Nollans granting the public easement to pass across the beach. The state claimed this was necessary because the bigger house served to separate the general public from seeing the ocean. The Nollans protested that the regulations violated the takings clause.

The Court ruled 5-4 that the condition was invalid. Scalia, writing for the Court, conceded that the government could in theory condition rebuilding on the granting of an easement. However, there would have to be an appropriate nexus between the condition and the government’s goal. But there was no such nexus, and Scalia explained this more succinctly than I ever could. “It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house.” To buttress his conclusion that the beach viewing goal had nothing to do with the easement requirement, Scalia string cited over 20 state and federal decisions!

Brennan’s dissent, joined by Marshall, was a great grab bag of objections. The California Constitution, he said, granted citizens a right of access to waters that was superior to any private property rights. The Nollans knew about the easement restriction when they bought the property, and thus essentially assented to adhering to it. Lack of visual access to a beach is alleviated by greater physical access, and thus there was in a fact a close nexus between the goal and the regulation. Finally, Brennan said that requiring such a close fit did not comport with a good deal of takings clause precedent.

Blackmun’s brief dissent stated the he could see a clear correlation between the regulatory goal and the burden imposed. Stevens, joined by Blackmun, lamented that the decision was the inevitable result of the Lutherglen case. His opinion was a thinly veiled ‘I-told-you-so’ directed at Brennan and Marshall. It really is quite amazing how statist the dissenters were. Whether or not they admitted it, a total blank regulatory check was what they wished to give the government.

First English Evangelical Church of Glendale v. County of Los Angeles

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.

Utah Div. of State Lands v. United States

482 U. S. 193

June 8, 1987

The question in this case was who owned the bottom of a lake. Not the water in the lake, but the land beneath it. Under the old colonial rule, every state got the right to sub-water lands. But in 1888, Congress passed a law that gave the United States the power to reserve certain lakebeds for itself. By this law, the land under Utah Lake was reserved the next year. The state of Utah contended that it got title upon statehood in 1896.

In a 5-4 ruling, the Court said that Utah, and not the United States, had ownership of the lakebed. O’Connor wrote for the majority, and first noted that the government bears a heavy burden of proof to show that a state is divested of its traditional legal possession. After examining the history of federal land regulation in the 1880s, she concluded that it was far from clear that Congress meant to give the United States irrevocable ownership of submerged lands. Whatever evidence existed in the debates of Congress and in the work of geological surveyors, it wasn’t enough to overcome the presumption of state title to all lakebeds.

White dissented, and was joined by Brennan, Marshall, and Stevens. He found that the geological surveyors of the day were quite clear in asserting title of the lakebed against future state claims. He also showed that subsequent acts of Congress did demonstrate a knowledge of this ownership, rather than the apathy that the majority opinion claimed. White finished by talking about the government’s strong interest in retaining title due to potential compensation it would have to pay to a state for land use.

I’ve been amazed by the amount of times that either Blackmun or Stevens bailed out the more conservatives Justices when one of their number defected. You just don’t see that happen much anymore. As to the ruling itself, I have no clue which side was more legally correct. It’s cases like this that really make you understand why ideological voting would develop on the Supreme Court. Sometimes there isn’t a clear legal answer, and the most salient thing you can latch onto is the identity of the parties. Goodness knows I’m glad the state won, and not the federal government.

Young v. United States ex rel. Vuitton et Fils S. A.

481 U. S. 787

May 26, 1987

Young was convicted of selling counterfeit Louis Vuitton handbags. Sometime later, Louis Vuitton lawyers suspected Young of continued counterfeiting. Company lawyers got permission from the court to investigate. In a sting operation, they collected plenty of evidence, and prosecuted a successful contempt of court charge. Young argued that this conviction should be overturned, because the contempt charge was investigated and prosecuted by Vuitton lawyers rather than neutral lawyers.

The Court ruled 8-1 that the conviction had to be overturned. Brennan wrote the majority opinion, which first said that a District Court could appoint private lawyers to investigate and prosecute a contempt charge. Even though courts could not generally instigate legal proceedings, Brennan said the need for courts to be able to enforce their legal judgments and decrees called for an exception, and that the Federal Rules and some precedents did lend some support to this idea. Nonetheless, because the lawyers who prosecuted the case represented Vuitton, the prosecution violated Young’s rights. It was a blatant conflict of interest that clearly violated the ethics of the legal profession. In a section joined only by Marshall, Blackmun, and Stevens, Brennan concluded that the violation was so severe that the case was not amenable to harmless error analysis on remand.

Blackmun concurred, and said that the appointment of Vuitton lawyers was a flat out due process clause violation. Powell, joined by Rehnquist and O’Connor, thought that harmless error inquiry should be possible on remand because the evidence of continued counterfeiting was so overwhelming, and because a neutral jury had convicted Young on the contempt charge. White dissented – he found no problem with the appointment of Vuitton lawyers, but gave no explanation why.

Then there was Scalia, who filed a truly remarkable concurrence in judgment. He put forth a cogent and persuasive argument that the judge’s instigation of the contempt proceedings violated the plain separation of powers scheme set out in the text of the Constitution. Judicial power just didn’t extend to instigating contempt investigations, end of story. He showed that this was the understanding that prevailed for a century after the Constitution’s ratification. With this reasoning, he provided the liberal Justices with the fifth vote to vacate Young’s conviction.

While I think Scalia was totally correct, there’s another reason why I’m glad that Louis Vuitton lost. I am unable to bring myself to any kind of moral indignation about handbag trademark violations. A handbag is a handbag, and it’s absolutely revolting when hundreds of dollars are spent on one just to show the rest of the world your sophistication and wealth. This disgusting and prideful fashion fetishism ought not be protected by law at all, but Louis Vuitton has proven only too happy to outright abuse the law that exists. About a decade ago, the company filed a patently frivolous suit against a small dog toy manufacturer. Although Louis Vuitton lost, they nearly destroyed the victorious smaller company in the process.

Hodel v. Irving

481 U. S. 704

May 18, 1987

Due to some horrible legislation passed in the 1800s, Indian tribal lands were ridiculously splintered between owners by the 1980s. Forty acre tracts often had literally hundreds of separate owners due to subdivision in wills over several generations. Congress finally passed a law that made very small land interests revert to the tribe upon the death of the owners. The law did not compensate those who would have been the new owners. Mary Irving of the Sioux tribe claimed that this violated the takings clause.

Unanimously, the Court agreed that the law was unconstitutional. O’Connor wrote for seven Justices who thought the takings clause had been violated. The land that Mary Irving and others had been denied the right to own was in some cases worth a few thousand dollars. More than that, the law’s total destruction of a persons right to will property to an heir was said to be without precedent in American law. Even though government interest in preventing further Indian land fractionalization was compelling, O’Connor said that the law simply went too far.

Stevens, joined by White, concurred in judgment. He did not think the law ran afoul with the takings clause, but did think it was a due process violation. The law went into effect immediately upon signature. Owners of the land at issue had no notice, and no opportunity to take any workaround measures to insure that their heirs were not deprived of the land’s financial value. Scalia and Brennan both threw in one paragraph concurrences. Scalia, joined by Rehnquist and Powell, said that the decision effectively nullified a more pro-government takings clause decision called Allard. Brennan, joined by Marshall and Blackmun, said that Allard’s logic had not been nullified at all. I’m too lazy to read Allard for myself, so I have no idea who’s right.

I agree with the majority opinion, and have little to add to it. It is worthy of mention that Hodel contains one of the greatest names in Supreme Court history: a member of the Sioux tribe called Mary Poor Bear-Little Hoop Cross. The decision also points out (quite hilariously) that the law at issue had a glaring typo: “descedent” where “descend” should have been.

Keystone Bituminous Coal Assn. v. DeBenedictis

480 U. S. 470

March 9, 1987

To prevent damage to homes, public buildings, and cemeteries from coal mining, the Pennsylvania legislature prohibited mining above a certain distance below the surface, and required mining companies to compensate those whose buildings were damaged anyway. Coal companies argued that this law violated both the takings clause and the contracts clause, and that a Supreme Court case from 1922 known as Mahon controlled.

Stevens wrote for the Court, which ruled 5-4 that the Pennsylvania law was Constitutional. The majority said that Mahon could be distinguished, because the mining law there was intended to benefit private parties rather than society as a whole. Stevens cited precedents to show that legislation enacted to serve compelling societal interests did not require that owners be compensated for corresponding diminution in their property values. Mahon could also be distinguished because the law at issue in that case would have made mining impracticable – something not asserted by the coal companies in DeBenedictis.

Turning from Mahon, the petitioners also argued that the law deprived them of 27 million tons of coal. Stevens replied that this was only about 2% of the coal in the mines, and that it ought not be seen as a separate parcel of property under Court precedents. Finally, the petitioners argued that the law destroyed the value of a unique feature in Pennsylvania property law known as the Support Estate. Stevens contended that strange features of state property law did not matter, and that the Support Estate lacked appreciable independent economic value. In response to the contracts clause challenge – the law abrogated contracts where surface owners had waived the right to claim compensation against the coal companies – the Court held, citing the horrendously activist Blaisdell ruling from 1934, that contracts could be abrogated if the societal interests in doing so were significant enough.

Rehnquist wrote the dissent, which was joined by Powell, O’Connor, and Scalia. He first pointed out that the law in Mahon, contrary to the majority’s intimations, actually was geared toward the general societal welfare, and thus could not be so easily distinguished. Rehnquist also faulted the majority treating coal mining as if it were a public nuisance. Moving on to address the 27 million tons of unusable coal, Rehnquist argued that it was a discrete amount of physical matter that was just as effectually taken from the companies as it would have been if the government had literally confiscated it. Compensation was thus required. Finally, Rehnquist showed that the Support Estate most certainly did have economic value, and that this value was totally destroyed by the Pennsylvania law.

I remember well the outcry when Kelo v. New London came down in 2005. It’s the most universally hated decision I can remember in my lifetime. Even in that case though, Kelo still got compensated. This decision appears to be several degrees worse. In one fell swoop, coal companies had 27 million tons of coal effectually taken from them without any compensation at all, and the economic value of all Support Estate was obliterated. When I award the prize for worst decision of the term, this figures to be a strong contender.

Justice Stevens, keeping it classy: “it is petitioners’ position that, because they contracted with some previous owners of property generations ago, they have a constitutionally protected legal right to conduct their mining operations in a way that would make a shambles of all those buildings and cemeteries.” Guy doesn’t sound biased at all, does he?