Today, Robert Thomas, Tred Eyerly and I filed an amicus brief on behalf of the Owners' Counsel of America supporting the Petitioner in the Florida Shoreline Case.
Our brief is here.
The Questions Presented to the U.S. Supreme Court is:
The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Our brief highlights three legal points:
First, the definition of "property," while largely left up to the states to craft, does include some universal normative principles which are protected by the federal Constitution. Among these are the right to exclude others and, in this case, the right of littoral landowners to accreted land.
Second, when a state supreme court changes the definition of "property" to the owner's detriment, a "taking" of property can occur. Absent the provision of just compensation, the remedy for such action should be the invalidation of the state supreme court's decision.
Finally, in the areas of shoreline boundaries, custom and public trust, state supreme courts have re-wrote the rules of property without compensating the landowners. We provided our analysis of the Robinson litigation in Hawaii, the Sotomura litigation in Hawaii, the State ex rel. Thornton v. Hay case (462 P.2d 671 (Or. 1969)) from Oregon, the PASH case from Hawaii and the Matthews v. Bay Head Imp. Ass'n. (471 A.2d 355 (N.J. 1984))case from New Jersey.
One to watch. Interesting issues of interplay between state laws and the federal Constitution. This case is especially important in Hawaii where shoreline issues, in terms of ownership and access, are particularly thorny.
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