Did the government push too far in Koontz?

January 22, 2013 | By BRIAN HODGES

With all of the talk about last week’s oral argument in Koontz v. St. John’s River Water Management District, there has been surprisingly little said about the radical position taken by the state and federal governments.  As discussed here and here, state, local, and federal governments filed briefs asking the Supreme Court to rule that government demands for money are not protected by the Takings Clause.  This argument, however, appears to have pushed too far.

Unsurprisingly, the government’s argument did not resonate with the conservative Justices.  Justice Scalia commented:

As I understand your position, cash is magical, right?  The government can come in and come into my house, take all the cash that’s there, and that is not the basis for takings claim, right?  Because cash is not—is not a taking.  Does that make any sense?

Justice Kennedy asked:

I take it it’s a given that the government cannot take an easement on your property.  It cannot use your property for its own purposes.  It cannot park its trucks there.  It cannot cut the grass.   Why is it that if it can’t do those, it can still force you, as a condition to using your property to its highest and best use, to pay them money?

More surprisingly, Justice Breyer—whose support is presumed to be essential if the government is to prevail—rejected the notion that the monetary nature of the District’s demand somehow took the case outside the purview of the Takings Clause.

when the government says, I will let you develop your land if and only if you give $50,000 to the Shriners hospital, you would say, I can’t develop my land.  And besides, that significantly interferes with my investment-backed expectations.  And besides, there is no relation whatsoever.  Therefore, I win under the Takings Clause.  …  Okay, So if I’m right about the framework, that takes care of all the hypotheticals you were asked.  In those cases, there is a significant interference with investment-backed expectation, and there’s no justification whatsoever, so the Takings Clause applies.

And in response to an argument by the United States that the Takings Clause does not apply to money demands, Justice Breyer said:

No, no.  Why isn’t the answer yes, it is applicable?  Of course it’s applicable.  I own a piece of land and they have significantly interfered with my investment-backed expectation.  …  And to say that I can’t put a house on this because I’m supposed to pay for a football field, which has nothing to do with it, is as close to insisting that you have to have 4,000 columns of coal in your mine so that you can never use it as I can think of. [a reference to the Justice Oliver Wendell Holmes’ decision in the early takings case, Pennsylvania Coal Co. v. Mahon (1922)]  It’s Holmes brought up to date.  …  At least that argument would be made […] And why wouldn’t it be a winning argument?

Even Justice Ginsburg seemed hesitant to allow money demands to escape any constitutional scrutiny, asking the District’s attorney:

why isn’t it entirely reasonable to say, if you are going to put a condition on a permit, that condition has to have some rough proportionate relationship to the harm that is being done to the permit—that seems to me permanently sensible, that if they are going to exact a condition, the condition has to have some discrete proportional relationship to the harm?