Tuesday, June 27, 2017

Murr v. Wisconsin: Another Blow to Private Property Rights

Murr v. Wisconsin
Another Blow to Private Property Rights

         Last week in an opinion that has been almost universally condemned, the United State Supreme Court struck yet another blow to private property rights in this country.   In Murr v. Wisconsin, the constitutional requirement that private property can't be taken for public use "without just compensation" (ie. “Takings Clause”) was at issue.  
        Our founding fathers so feared the power of the government to take private property that they included what is known as the “Takings Clause” in the Fifth Amendment of the Constitution. The Takings Clause made early America different from the rest of world, in that finally it was no longer permissible for the sovereign to simply take a citizen’s property without redress. 
         For the last century, the Supreme Court recognized when the government goes too far in regulating property making it economically unusable, the government has “taken property for public use” and must compensate the owner. The question in takings cases has always been how do you decide when the government has gone too far.  It was hoped that Murr decision would once and for all, provide the clarity necessary to define when the government has gone too far and taken private property.  Sadly, Murr accomplishes just the opposite.
         In the late 1990’s the Murr’s took title to two separate, but adjoining lots which the Murr’s father had purchased in the 1960’s.  One lot had a cabin, the second lot was vacant.  The Murr’s problems began in 2004 when the family tried to sell the vacant lot to pay for improvements to their cabin on the lot next door.  
         County officials blocked the Murr’s sale of the vacant lot, citing 1976 regulations that treated the two lots as a single parcel which couldn’t be divided. The family claimed those rules stripped the vacant land of its value and asked the government for compensation of $400,000.00 since they couldn’t build on their vacant lot. In contrast, the government argued it's fair to view both lots as a whole, despite the fact they were separate, and said the family was owed nothing.
         In a 5-3 decision (Justice Neil Gorsuch did not participate because he was not yet on the Court when the case was argued), the majority ruled in favor of Wisconsin but rejected it’s position that courts should simply treat contiguous parcels as one parcel anytime state law says they should be.  The majority also rejected the Murr’s position which was that there should be a strong presumption in favor of analyzing each parcel separately.  Instead, the Court further muddied the waters regarding what constitutes a taking by creating a new, and horribly vague multifactor balancing test which is sure to create nothing but confusion, uncertainty, and more litigation.   
         In his dissent, Chief Justice John Roberts recognized the majority opinion did absolutely nothing to clarify the state of takings law (as should be a guiding principle of the Supreme Court), but rather undermined the Constitution's protections for private property owners by giving government the ability to expand its power.  Roberts also recognized, “today’s decision knocks the definition of ‘private property’ loose from its foundation on stable state law rules.”  He went on to excoriate the majority saying their opinion “compromises the Takings Clause as a barrier between individuals and the press of the public interest.”  Roberts instead favored adopting a presumption of treating each parcel separately contending there is no good reason for concluding a regulation which qualifies as a taking for a one parcel shouldn’t be a taking for another parcel right next door.
        At the end of the day, the majority forgot or ignored the real question which is supposed to be asked in a takings cases, that being; what property rights has the government taken away from the owner?  Not how much property did the government leave him. The plain meaning of the text of the Fifth Amendment requires compensation whenever private property is “taken,” and does not create exceptions for situations where the owner loses only part of her rights.  Sadly, Murr ignores the plain meaning of the Constitution in favor of the ever increasing trend of judicial invention.  As a result of Murr’s judicial invention, government at all levels will now be emboldened to further eviscerate private property rights in favor of the “public interest”.  Property owners will be left with no choice but to look to property rights lawyers to become more creative in manipulating their land holdings to avoid common ownership of property.  

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