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“You throw the sand against the wind…and the wind blows it back again.” – William Blake … but is it a taking?

June 22, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

The big news this last week was that on Monday, June 15th the U.S. Supreme Court granted certiorari in a takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. (Florida Supreme Court, decided September 29, 2008, rehearing denied December 18, 2008).  Click here for the Florida Supreme Court opinion.   Here is the Florida Court of Appeal decision which gives more details.

Municipal lawyers will want to follow this for two reasons.  First, it ends a four-year hiatus since the U.S. Supreme Court took on a takings case (last decided were Kelo, Lingle and San Remo Hotel) and it will be the first for the new chief justice.  Second, at root, the case is about global warming and, specifically, the government’s role in adaptation planning. For a primer on the latter, see the recent Pew Center report

As a planner and land use lawyer, I see adaptation planning as the leading regulatory issue of the next decade.

The case was covered by on June 16th with several good links. It was also addressed by the Eminent Domain Law Blog.

The Court will be deciding whether Florida’s state legislation, the Beach and Shore Preservation Act, effects a per se taking of the upland owners’ property.  Click here for the relevant portion of the statute.

This is the provision at the center of the controversy, a vesting statute contrary to the common law of accretion, that basically gives the state the ownership of the land it creates when it fills seaward of the “erosion control line” which becomes the new property boundary:

161.191 Vesting of title to lands.

(1)  Upon the filing of a copy of the board of trustees’ resolution and the recording of the survey showing the location of the erosion control line and the area of beach to be protected as provided in s. 161.181, title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty, and title to all lands landward of such line shall be vested in the riparian upland owners whose lands either abut the erosion control line or would have abutted the line if it had been located directly on the line of mean high water on the date the board of trustees’ survey was recorded.

(2)  Once the erosion control line along any segment of the shoreline has been established in accordance with the provisions of ss. 161.141-161.211, the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process, except as provided in s. 161.211(2) and (3). However, the state shall not extend, or permit to be extended through artificial means, that portion of the protected beach lying seaward of the erosion control line beyond the limits set forth in the survey recorded by the board of trustees unless the state first obtains the written consent of all riparian upland owners whose view or access to the water’s edge would be altered or impaired.

Under the statute the state renourishes beaches, adding sand to them to combat erosion.  The project which started the current litigation would widen the beach at Destin, Florida by 210 feet for a length of 6.9 miles.  Who owns that “new” (actually “restored” given that it is renourishment after all) beach?  The State of Florida says it’s theirs; the littoral owners see the restored beach as belonging to them, not the state.

Take a look at the beach, courtesy of the Environment News Service.

The beach at Destin, Florida (Photo by Jennifer Lee)

The beach at Destin, Florida (Photo by Jennifer Lee)

The takings question before the Florida Supreme Court was this:  “On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?”  The Florida court found no per se taking.  It’s a matter of avulsion, not accretion, said the court.  In following the case you’ll come to learn the critical difference between the two and be able to impress family and friends.  The sound bite version is that avulsion deals with large, sudden changes, while accretion is little bits on new land very slowly over a long time.  Hurricane Opal (1995) was avulsive.

Hurricane Opal's 8 to 14 foot storm surge damaged hundreds of structures along the Florida Panhandle in October 1995. (Photo courtesy UACE 1995).

Hurricane Opal's 8 to 14 foot storm surge damaged hundreds of structures along the Florida Panhandle in October 1995. (Photo courtesy UACE 1995).

The questions presented to the U.S. Supreme Court are:

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?

This is a case to watch.  And with your other eye, keep track of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008), reh’g and reh’g en banc denied, — F.3d –, 2009 WL 367528 (Feb. 17, 2009).  The U.S. Court of Appeals for the Federal Circuit held that it was a per se taking to require the water district to provide a fish ladder at its facilities and divert some of its water to protect the fish under the Endangered Species Act.  Watch for a certiorari petition. Two motions for extension of time have been granted so the Solicitor General has until July 15th to file.

Wyeth v. Levine: Good News on Preemption from the Supreme Court

March 18, 2009
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Posted By: Matt Schettenhelm and Joseph Van Eaton, Miller & Van Eaton P.L.L.C.

Does the fact that the FDA has approved a drug’s label preempt a state law claim that an addition to the label was necessary to make the drug reasonably safe for use?  On March 4, 2009, in Wyeth v. Levine, the Supreme Court considered that question, and held that such a claim is not preempted by federal law – in what may prove to be an important decision reflecting the Court’s view of preemption generally.  While some commentators had previously suggested that the Roberts Court was likely to be sympathetic to business claims that a federal regulation preempts state and local laws, Wyeth – like December’s decision in Altria v. Good – may suggest that the Court’s approach to the Supremacy Clause is more sophisticated, and more sympathetic to state and local interests. It may also suggest that, where Congress acts in a field where states and localities have traditionally had strong, independent regulatory roles, the Court will be reluctant to preempt state and local requirements except where the law expressly provides for preemption. In today’s environment, when federal regulatory agencies are asserting broad rights to preempt state and local laws with very little express statutory authority, the case could prove quite significant…particularly if the reasoning in Justice Thomas’ concurrence is adopted in future cases.

Like many tort cases, the facts of Wyeth are difficult.  On April 7, 2000, Diana Levine visited a local clinic for treatment of a migraine headache.  When the physician assistant administered Phenergan an anti-nausea medication, using the IV-push method, the drug entered Levine’s artery and came in contact with arterial blood.  As a result, Levine developed gangrene, and doctors were ultimately forced to amputate her forearm.  In addition to her pain and suffering, Levine incurred substantial medical expenses and the loss of her livelihood as a professional musician.  

Levine filed suit against Wyeth, the manufacturer of the drug.  A jury found that Wyeth was negligent and that Phenergan was a defective product as a result of inadequate warnings and instructions regarding IV-push administration of the drug.  Wyeth claimed that the suit was preempted by federal law – based on the fact that the FDA had approved Phenergan’s label.  The trial court and Vermont Supreme Court disagreed, upholding a jury award of damages to Levine.

In a 6-3 decision, the Supreme Court affirmed. The Court began its analysis by recognizing that “the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”  Slip op. 8 (citing Medtronic v. Lohr, 518 U.S. 470, 485 (1996)).   First, the Court rejected the claim that it was “impossible” for Wyeth to comply with the state-law duty to modify Phenergan’s labeling without violating federal law.  Id. at 12.  The Court ruled that federal rules allowed Wyeth to add “newly acquired information” to a label.  Id.  In addition, the Court rejected the claim that requiring Wyeth to provide a stronger warning about IV-push administration of the drug would “obstruct the purposes and objectives of federal drug labeling regulation.”  Id. at 17.  The Court found no evidence that Congress had intended to establish “a ceiling” on drug regulation.  Indeed, while Congress had enacted an express pre-emption provision for medical devices, 21 U.S.C. § 360k(a), it did not do so with respect to prescription drugs, despite its “certain awareness” of state tort litigation.  As the Court put it, “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.”  Id. at 18.

Finally, the Court recognized an important principle of administrative law with respect to preemption.  Wyeth had contended that a preamble to an FDA regulation indicated that federal law establishes both a “floor and a ceiling” to drug labeling regulation.  Id. at 19.  The Court recognized that while an agency regulation with the “force of law” can preempt state requirements, the Court “has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption.”  Id. (emphasis added).  In this case, because Congress did not empower the FDA to preempt state law directly in this context, the Court examined what level of deference it owed the FDA.  The Court concluded it did not owe the FDA any such deference because the preamble was not the product of public comment, and because it is at odds with other evidence regarding Congress’s purposes.  Id. at 21.  In his concurrence, Justice Breyer indicated that “it is possible that [lawful specific regulations] would have pre-emptive effect.”  Opinion of J. Breyer at 2.

Justice Thomas’s concurrence is especially notable.  He stresses that because our federalist system is one of dual sovereignty, the Court’s preemption analysis should focus more closely on the statutory text.  As he puts it, “This Court’s entire body of ‘purposes and objectives’ preemption jurisprudence is inherently flawed.”  Opinion of J. Thomas at 13.  As he explains, “[T]he majority has concluded from silence that Congress believed state lawsuits pose no obstacle to federal drug-approval objectives.  That is the required conclusion, but only because it is compelled by the text of the relevant statutory provisions, not judicial suppositions about Congress’ unstated goals.”  Id. at 22.  Any other approach, in his view, leads to “the illegitimate – and thus, unconstitutional – invalidation of state laws.”  Id. At 24.

Supreme Court Rules in Pleasant Grove City, Utah v Summum: City Wins

February 26, 2009
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A unanimous Supreme Court released its decision in Pleasant Grove City, Utah v. Summum, No. 07-665, yesterday.  Justice Alito wrote the opinion, with five justices filing concurring opinions – Justice Stevens (joined by Justice Ginsburg), Justice Scalia (joined by Justice Thomas), Justice   Breyer, and Justice Souter. The question before the Court was whether the Free Speech Clause of the First Amendment entitled a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments, including a Ten Commandments monument, were previously erected and currently displayed.  In brief, the Court held that the placement of a permanent monument in a public park was a form of government speech and was, therefore, not subject to scrutiny under the Free Speech Clause. Although parks were a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park was not a form of expression to which forum analysis applied.

The facts in the case were as follows.  Pioneer Park in Pleasant Grove City contained a number of buildings, artifacts, and permanent displays, including the first City Hall and fire department buildings, a 9/11 memorial, and a Ten Commandments monument from the Fraternal Order of Eagles, donated in 1971. The City’s criteria for permanent displays in the park required that monuments be directly related to the City’s history, or be donated by a group with “long-standing ties to the . . . community.” Summum, a religious group, applied to have a monument of its Seven Aphorisms displayed, and advised that its proposed monument would be similar to the Ten Commandments monument already in the park.  (The Summum religion includes the belief that, when Moses received stone tablets from God on Mount Sinai, he received two separate sets of tablets – the first was inscribed with the Seven Aphorisms; the second, later, tablet contained the Ten Commandments. Moses revealed the first tablet to only the few that were sufficiently spiritually mature, and received the Ten Commandments (something of a poor second) after he destroy the Aphorisms tablet.)  After the City denied Summum’s request, citing its policy, Summum sued, alleging a violation of its free speech rights. (Summum argued, but abandoned, its Establishment Clause argument before the matter reached the appellate courts.)

The Tenth Circuit held that the park monuments constituted private, not government, speech, in a traditional public forum. Pleasant Grove City’s content-based choices and policy failed strict scrutiny review, and the City was ordered to accept the monument. A divided Tenth Circuit subsequently denied the City’s petition for a rehearing and rehearing en banc. The judges who dissented on the denial of rehearing (who would be referred to in the Supreme Court decision), pointed out that parks, as traditional public forums, had to be open to speeches, demonstrations, and other forms of transitory expression. The City, in this case, had not, “by word or deed, invite[d] private citizens to erect monuments of their own choosing in these parks. It follows that any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.”

Following the grant of certiorari, IMLA filed an amicus brief in support of the City, authored by Professor Mary Jean Dolan of the John Marshall Law School.  The brief included a survey of existing monuments and placement policies in U.S. municipalities.  In its opinion, the Supreme Court several times cited the IMLA brief.

Beginning its analysis, the U.S. Supreme Court noted that there were no prior decisions on the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments.  First, the government had a right of expression, the “right to speak for itself.”  While the Free Speech Clause restricted the government’s regulation of private speech, including speech in traditional public forums, it did not apply to the government’s own speech. Permanent monuments accepted by governments and placed on public property, despite the fact of being donated by private entities, “typically represent government speech.” Such displays were a traditional form of a government’s expression, and “throughout our Nation’s history, the general government practice with respect to donated monuments [was] one of selective receptivity,” demonstrated by way of design input, prior submission requirements, requests for modifications, and legislative approval for specific content.  Pleasant Grove City, like other governments, took into account content-based factors like local history and culture. Thus, in making the decision to accept a permanent monument, the municipality was choosing its message.     

The Court rejected Summum’s argument that something more definite or formal (e.g., passing a resolution) was needed before a government could be said to adopt a monument as its own expressive vehicle. “We see no reason for imposing a requirement of this sort,” adding that the City in this case took ownership of most of the monuments in the park. To require more would be a “pointless exercise that the Constitution does not mandate.” This would be unworkable for other reasons: a monument, even a text-based one, could easily convey more than one message. As demonstrated by the Statue of Liberty, the message intended by monument’s creator or donor could be different than that expressed by the government accepting the monument, and could change over time.

Public form analysis was “out of place” in addressing such displays. The installation of permanent monuments was not analogous to other forms of speech on government public property. Unlike demonstrating or leafleting, parks could only accommodate a finite number of permanent displays.  The application of content-neutral time, place and manner restrictions was not feasible because the “obvious truth of the matter [was] that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.”

Justice Scalia and Justice Souter, in their concurring opinions, touched briefly on the “shadow” in this case, the Establishment Clause. Justice Scalia, referring to the Court’s earlier ruling in Van Orden v. Perry, 545 U. S. 677 (2005) (Ten Commandments monuments had an “undeniable historical meaning”) added that the city here need “not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.” Justice Souter, taking a broader look, indicated that if a monument had “some religious character, the specter of violating the Establishment Clause” would require the city “to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.” However, it was “simply unclear how the relatively new category of government speech [would] relate to the more traditional categories of Establishment Clause analysis, and this case [was] not an occasion to speculate.”

Justices Stevens and Breyer also echoed the need for municipalities to be careful. Justice Stevens indicated the decision was not a “free license” for a government to “communicate offensive or partisan messages”; Justice Breyer likewise indicated that the “government speech” doctrine would not permit a city to “discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds.” 

A copy of the opinion is available online at

IMLA thanks all of the participants in the survey done as part of our brief, and thanks Professor Dolan for her excellent brief. 

Professor Dolan will be speaking at the upcoming IMLA Mid-Year Seminar about this case.

The Curious Case of California Same-Sex Marriage

January 29, 2009

Posted By: Larry Hoyt, County Attorney, Boulder, Colorado

Curious – Part One:

Background: A funny thing happened on the way to the wedding chapel!

First, way back in 2004, the Honorable Gavin Newsom, Mayor of San Francisco, ordered the County Clerk to begin issuing marriage licenses to same-sex couples; numerous licenses were issued and ceremonies held within the space of about a week to great notoriety and in the face of multiple camera crews, in the San Francisco City Hall, and the San Francisco Superior Court refused to stop the weddings that were taking place.

However, a week later, upon petition of the state Attorney General and others, the state Supreme Court enjoined further issuance of same-sex marriage licenses, then decided on the merits that San Francisco did not have the authority to permit marriages that were contrary to state law; it ruled that the marriages that had been performed for same-sex couples to that date were invalid (see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.)

All of this was happening while a coalition of individuals and groups were pursuing lawsuits in the California state courts seeking to overturn the state law (mini-DOMA: state “Defense of Marriage Act”, styled after the federal DOMA signed by Clinton in 2000, that states that no agency of the federal government shall recognize a same-sex marriage, and seeks to limit any use of the Full Faith and Credit Clause to extend recognition of a same-sex marriage in one state to other states) that limited state recognition of marriages to those comprised of two opposite-gender individuals.

Finally, in May 2008, the California Supreme Court took this issue head-on, and ruled that the California state constitution’s equal protection clause required marriage equality, that sexual orientation is a suspect classification, and that marriage is a fundamental right.   Same-sex marriage certificates began to be issued on July 17, 2008.

*But wait!  Even as the Court was issuing its ruling, same-sex marriage opponents had obtained sufficient signatures on petitions to place an initiated measure on the statewide ballot in November to amend the California state constitution to include a provision stating that marriage in California is solely between one man and one woman.  On November 4, 2008, statewide voters approved the ballot measure, known as Proposition 8, by a margin of 52% to 48%, and county clerks throughout the state were ordered to stop issuing same-sex marriage licenses once again.

Immediately following the announcement by the California secretary of state’s office that Prop. 8 appeared to have passed, lawsuits were once again filed, this time directly in the California Supreme Court, asking that Prop. 8 be declared void.

So, Curiosity No. 1 is the California Supreme Court’s ruling from May 15, 2008, that limiting marriage to only opposite-gender couples is unconstitutional as a violation of equal protection under the state constitution.  The Court stated the issue thusly:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
In re Marriage Cases  43 Cal.4th 757, 779-780, 183 P.3d 384, 39, 76 Cal.Rptr.3d 683, 699 (Cal.,2008)

It turns out that, but for the approval by the state legislature of a same-sex domestic partnership law, effective January 1, 2005, that provided for domestic partnerships with virtually all the state-law derived rights and responsibilities of marriage in California, the Court would have been presented with essentially the identical question that many other courts have addressed, i.e. is a state’s constitutional guarantee of equal protection violated by restricting state recognition of marriage to opposite-gender couples?  Instead, the Court was presented with a “separate-but-equal” challenge, given the marriage v. domestic partnership scheme of California law.

Why is this curious?  It evokes a great deal of irony that, essentially, the more rights and responsibilities a state recognizes for same-sex couples, the less likely it is to be able to maintain a distinction between those relationships and state-sanctioned marriage.  Put another way, the states that treat same-sex couples the worst (i.e. no recognition, no rights or responsibilities that accompany the relationship, as opposed to the rights of individuals who have many characteristics, including a sexual orientation) have the best chance to discriminate against same-sex couples in excluding them from marriage.  Perhaps it was good for California, but query where it leaves GLBT persons in the middle of the country who are seeking protections for even more basic rights, like employment, enjoyment of public accommodations, and housing?

NEXT TIME: Curiosity Part 2: Is a state constitution’s equal protection guarantee worth anything?

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.