Daily Journal: Property rights, the First Amendment and Malibu

December 01, 2021 | By JAMES BURLING

Last June, in Cedar Point v. Hassid, 2021 DJDAR 6262, the U.S. Supreme Court ruled that a California law that forced farmers to suffer uninvited union organizers onto their properties violated the Constitution’s takings clause. In holding for the farmers, Chief Justice John Roberts wrote for the majority that, “The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, ‘property must be secured, or liberty cannot exist.’”

This is more than an abstract sentiment wrapped in platitudes. Take the liberty interest in free speech. When government controls your property, how robust is your right to criticize the state? Alternatively, when government muzzles your speech, how can you assert your rights to your property?

Today, along the California coast, we now have a case where the rhetoric of property and liberty have met the reality of the California Coastal Commission. Dennis and Leah Seider are retirees who own a home along the beach in Malibu. There is an easement that allows the public to use the beach from the water’s edge up to their private land. For years, the Seiders and a neighbor put up small “Private Beach” signs at the beginning of the summer season so the public would know where the public easement ends and the private property begins. They would then remove the signs when the season ended.

After the neighbor died, the Seiders put their own sign up by their house but did not clarify the spot where the public easement was. As a result, the Coastal Commission issued the Seiders a notice of violation and ordered the couple to remove the sign because it was unpermitted “development” under California law. But after the sign was removed, some members of the public wandered onto the Seiders’ private property. When asked, some even refused to leave, claiming that they didn’t believe the Seiders’ land was private — because there was no sign saying so.

When the Seiders asked Malibu for permission to replace the sign, the city said no, that its hands were tied because years ago, the California Coastal Commission forced the city to adopt a coastal plan forbidding such signs without permits. Moreover, signs describing coastal property boundaries were banned altogether. The Seiders considered applying for a permit anyway, but the city’s permit application for such signs insists that applicants like the Seiders agree to pay the city’s legal bills if it is sued — such as by an activist group (of which there are plenty in coastal California) or even by the Coastal Commission — which has a habit of suing when permits are issued that it doesn’t like. This is too high a price for the Seiders to pay for the mere act of applying for a permit to exercise their First Amendment right to put up a sign.

Rather than applying for a permit, they were told they would not receive, and rather than writing a blank check for the city’s legal fees, the Seiders sued the city in federal court. They argued that the city coastal plan’s ban on signs and the demand that sign permit applicants indemnify the city violate the First Amendment. Alternatively, they argued that if the proposed sign did not violate the local coastal plan, then the city’s effective denial was ultra vires under state law.
The district court granted Malibu’s motion to dismiss because it found the Coastal Commission to be a necessary party and that the claims against the indemnification requirement to be unripe. The Seiders appealed and are awaiting oral argument before the 9th U.S. Circuit Court of Appeals.

The Seiders will argue that while the Coastal Commission may have been involved in the drafting and approval of Malibu’s local coastal plan, that plan is Malibu’s plan and not the Coastal Commission’s. Moreover, it is the city that is enforcing the plan and the remedy sought is directed solely at the city and not at the Coastal Commission. If the commission thinks the issue is important enough, or if it doesn’t think the city will defend the unconstitutional provision hard enough, the commission can always seek to intervene. But it can also choose — as it has done here — to stay out of the case. But none of that makes the commission an indispensable party justifying the dismissal.

As for the claims being unripe, the Seiders will note that it makes no sense to require them to ripen their claim by applying for a permit because the very act of filing an application holds them to the indemnification provision that constitutes the violation of their First Amendment rights. If they were to seek an application only to have a third party sue, Malibu would undoubtedly try — as it has said it will — to enforce the indemnification agreement against the Seiders.

It is black-letter law that ripeness doctrine does not require people to risk enforcement in order to challenge a violation of the constitution. If the risk is serious enough, as it is here, the legal challenge should be able to proceed. And by applying for a permit with its attendant indemnification demand, the city might well argue later that the Seiders waived their right to object once a third party sought attorney fees.

The ability to defend both one’s property and one’s right to speak shouldn’t be made more difficult than it already is. Government hostility towards property rights is made only more unpalatable when it is accompanied by hostility towards free speech. By forbidding signs that are meant only to protect private property from trespass, the city of Malibu has gone too far.

In 1972, in Lynch v. Household Finance, the Supreme Court wrote that “a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.” This case is a perfect illustration of that maxim.