home *** CD-ROM | disk | FTP | other *** search
- SUPREME COURT OF THE UNITED STATES
- IRVING C. STEVENS and JEANETTE STEVENS,
- PETITIONERS v. CITY OF
- CANNON BEACH et al.
- on petition for writ of certiorari to the supreme
- court of oregon
- No. 93-496. Decided March 21, 1994
-
- The petition for a writ of certiorari is denied.
- Justice Scalia, with whom Justice O'Connor joins,
- dissenting.
- This is a suit by owners of a parcel of beachfront
- property against the City of Cannon Beach and the
- State of Oregon. Petitioners purchased the property in
- 1957. In 1989, they sought a building permit for
- construction of a seawall on the dry-sand portion of the
- property. When the permit was denied, they brought
- this inverse condemnation action against the city in the
- Circuit Court of Clatsop County, alleging a taking in
- violation of the Fifth and Fourteenth Amendments.
- That court dismissed the complaint for failure to state
- a claim pursuant to Ore. Rule Civ. Proc. 21A(8), on the
- ground that under State ex rel. Thornton v. Hay, 254
- Ore. 584, 462 P. 2d 671 (1969), petitioners never
- possessed the right to obstruct public access to the dry-
- sand portion of the property. App. to Pet. for Cert. C-
- 22-C-25. The Court of Appeals, 114 Ore. App. 457,
- 835 P. 2d 940 (1992), and then the Supreme Court of
- Oregon, 317 Ore. 131, 854 P. 2d 449 (1993), both relying
- on Thornton, affirmed. The landowners have petitioned
- this Court for writ of certiorari to the Supreme Court of
- Oregon. They allege an unconstitutional taking of
- property without just compensation, and a denial of due
- process of law.
- In order to clarify the nature of the constitutional
- questions that the case presents, a brief sketch of
- Oregon case law involving beachfront property is
- necessary.
-
- I
- In 1969, the State of Oregon brought suit to enjoin
- owners of certain beachfront tourist facilities from
- constructing improvements on the -dry-sand- portion of
- their properties. The trial court granted an injunction.
- State ex rel. Thornton v. Hay, 254 Ore. 584, 462 P. 2d
- 671 (1969). In defending that judgment on appeal to
- the Supreme Court of Oregon, the State briefed and
- argued its case on the theory that by implied dedication
- or prescriptive easement the public had acquired the
- right to use the dry-sand area for recreational purposes,
- precluding development. The Supreme Court of Oregon
- found -a better legal basis- for affirming the decision
- and decided the case on an entirely different theory:
- -[T]he most cogent basis for the decision in this case
- is the English doctrine of custom. Strictly con-
- strued, prescription applies only to the specific tract
- of land before the court, and doubtful prescription
- cases could fill the courts for years with tract-by-
- tract litigation. An established custom, on the other
- hand, can be proven with reference to a larger
- region. Ocean-front lands from the northern to the
- southern border of the state ought to be treated
- uniformly.- Id., at 595, 462 P. 2d, at 676.
- The court set forth what it said were the seven elements
- of the doctrine of custom and concluded that -[t]he
- custom of the people of Oregon to use the dry-sand area
- of the beaches for public recreational purposes meets
- every one of Blackstone's requisites.- Id., at 597, 462 P.
- 2d, at 677. The court affirmed the injunction, saying
- that -it takes from no man anything which he has had
- a legitimate reason to regard as exclusively his.- Id., at
- 599, 462 P. 2d, at 678. Thus, Thornton declared as the
- customary law of Oregon the proposition that the public
- enjoys a right of recreational use of all dry-sand beach,
- which denies property owners development rights.
- Or so it seemed until 1989. That year, the Supreme
- Court of Oregon revisited the issue of dry-sand beach in
- the case of McDonald v. Halvorson, 308 Ore. 340, 780 P.
- 2d 714 (1989). There, the beachfront property owners
- who were plaintiffs sought a judicial declaration that
- their property included a portion of dry-sand area
- adjacent to a cove of the Pacific Ocean. With such a
- declaration in place, they hoped to gain access (under
- Thornton, as members of the public) to the remaining
- dry-sand area of the cove lying on property to which the
- defendants held record title. The State intervened to
- assert the public's right (under the doctrine of custom)
- to use the dry-sand area of the cove, and to enjoin
- defendants from interfering with that right. The
- Supreme Court of Oregon held that the public had no
- right to recreational use of the dry-sand portions of the
- cove beach. 308 Ore., at 360, 780 P. 2d, at 724. McDon-
- ald noted what it called inconsistencies in Thornton, 308
- Ore., at 358-359, 780 P. 2d, at 723, and resolved them
- by stating that -nothing in [Thornton] fairly can be read
- to have established beyond dispute a public claim by
- virtue of `custom' to the right to recreational use of the
- entire Oregon coast.- Id., at 359, 780 P. 2d, at 724.
- -[T]here may also be [dry-sand] areas,- the court said,
- -to which the doctrine of custom is not applicable.-
- Ibid. The court noted that -[t]here [was] no testimony
- in this record showing customary use of the narrow
- beach on the bank of the cove. . . . The doctrine of
- custom announced in [Thornton] simply does not apply
- to this controversy. The public has no right to recre-
- ational use of the [dry-sand beach area of the cove]
- because there is no factual predicate for application of
- the doctrine.- Id., at 360, 780 P. 2d, at 724.
- With McDonald now the leading case interpreting the
- law of custom, petitioners here brought their takings
- challenge in the Oregon state trial court. As recited
- above, that court dismissed for failure to state a claim
- upon which relief could be granted, saying that -[Thorn-
- ton] teaches us that ocean front owners cannot enclose
- or develop the dry sand beach area so as to exclude the
- public therefrom. . . . [B]ecause of the public's ancient
- and continued use of the dry sand area on the Oregon
- coast . . . its future use thereof cannot be curtailed or
- limited.- App. to Pet. for Cert. C-24. The trial court did
- not cite McDonald, and its peremptory dismissal pre-
- vented petitioners from doing what McDonald clearly
- contemplated their doing: providing the factual predicate
- for their challenge through testimony of customary use
- showing that their property is one of those areas -to
- which the doctrine of custom [was] not applicable.-
- McDonald, supra, at 359, 780 P. 2d, at 724. Moreover,
- when petitioners attempted to introduce such factual
- material on appeal they were rebuffed on grounds that
- appeal was confined to the purely legal question of
- whether the complaint stated a claim under Oregon law.
- App. to Pet. for Cert. I-197-I-198 (Tr., Mar. 3, 1993);
- see also id., at I-185-I-190.
- In its decision here, the Supreme Court of Oregon
- quoted portions of Thornton's sweeping language appear-
- ing to declare the law of custom for all the Oregon
- shore. But it then read Thornton (which also originated
- in a dispute over property in Cannon Beach) to have
- said that the -historic public use of the dry sand area of
- Cannon Beach met [Blackstone's] requirements.- 317
- Or., at 140, 854 P. 2d, at 454 (emphasis added). The
- court then framed the issue as the continuing validity of
- Thornton in light of Lucas v. South Carolina Coastal
- Council, 505 U. S. ___, (1992). The court quoted our
- opinion in Lucas: -Any limitation so severe [as to
- prohibit all economically beneficial use of land] cannot
- be newly legislated or decreed (without compensation),
- but must inhere in the title itself, in the restrictions
- that background principles of the State's law of property
- and nuisance already place upon land ownership.- 317
- Ore., at 142, 854 P. 2d, at 456 (quoting Lucas, 505
- U. S., at ___, (slip op., at 23-24) (emphasis added by the
- Oregon court). The court held that the doctrine of
- custom was just such a background principle of Oregon
- property law, and that petitioners never had the prop-
- erty interests that they claim were taken by respond-
- ents' decisions and regulations. 317 Ore., at 143, 854 P.
- 2d, at 456. It then affirmed the dismissal.
-
- II
- As a general matter, the Constitution leaves the law
- of real property to the States. But just as a State may
- not deny rights protected under the Federal Constitution
- through pretextual procedural rulings, see NAACP v.
- Alabama ex rel. Patterson, 357 U. S. 449, 455-458
- (1958), neither may it do so by invoking nonexistent
- rules of state substantive law. Our opinion in Lucas, for
- example, would be a nullity if anything that a State
- court chooses to denominate -background law--regard-
- less of whether it is really such-could eliminate
- property rights. -[A] State cannot be permitted to defeat
- the constitutional prohibition against taking property
- without due process of law by the simple device of
- asserting retroactively that the property it has taken
- never existed at all.- Hughes v. Washington, 389 U. S.
- 290, 296-297 (1967) (Stewart, J., concurring). No more
- by judicial decree than by legislative fiat may a State
- transform private property into public property without
- compensation. Webb's Fabulous Pharmacies, Inc. v.
- Beckwith, 449 U. S. 155, 164 (1980). See also Lucas,
- 505 U. S., at ___, (slip op., at 26). Since opening
- private property to public use constitutes a taking, see
- Nollan v. California Coastal Comm'n, 483 U. S. 825, 831
- (1987); Kaiser Aetna v. United States, 444 U. S. 164, 178
- (1979), if it cannot fairly be said that an Oregon
- doctrine of custom deprived Cannon Beach property
- owners of their rights to exclude others from the dry
- sand, then the decision now before us has effected an
- uncompensated taking.
- To say that this case raises a serious Fifth Amend-
- ment takings issue is an understatement. The issue is
- serious in the sense that it involves a holding of
- questionable constitutionality; and it is serious in the
- sense that the land-grab (if there is one) may run the
- entire length of the Oregon coast. It is by no means
- clear that the facts-either as to the entire Oregon
- coast, or as to the small segment at issue here-meet
- the requirements for the English doctrine of custom.
- The requirements set forth by Blackstone included, inter
- alia, that the public right of access be exercised without
- interruption, and that the custom be obligatory, i.e., in
- the present context that it not be left to the option of
- each landowner whether he will recognize the public's
- right to go on the dry-sand area for recreational pur-
- poses. In Thornton, however, the Supreme Court of
- Oregon determined the historical existence of these fact-
- intensive criteria (as well as five others) in a discussion
- that took less than one full page of the Pacific Reporter.
- That is all the more remarkable a feat since the Su-
- preme Court of Oregon was investigating these criteria
- in the first instance; the trial court had not rested its
- decision on the basis of custom and the state did not
- argue that theory to the Supreme Court.
- As I have described, petitioners' takings claim rests
- upon the assertion both that the new-found -doctrine of
- custom- is a fiction, and that if it exists the facts do not
- support its application to their property. The validity of
- both those assertions turns upon the facts regarding
- public entry-but that is no obstacle to our review. -In
- cases in which there is a claim of denial of rights under
- the Federal Constitution, this Court is not bound by the
- conclusions of lower courts, but will reexamine the evi-
- dentiary basis on which those conclusions are founded.-
- Niemotko v. Maryland, 340 U. S. 268, 271 (1951); see
- also Broad River Power Co. v. South Carolina ex rel.
- Daniel, 281 U. S. 537, 540 (1930); Demorest v. City Bank
- Farmers Trust Co., 321 U. S. 36, 41-43 (1944). What is
- an obstacle to our review, however, is the fact that
- neither in the present case (because it was decided on
- motion to dismiss) nor even in Thornton itself (because
- the doctrine of custom was first injected into the case at
- the Supreme Court level) was any record concerning the
- facts compiled. It is beyond our power-unless we take
- the extraordinary step of appointing a master to conduct
- factual inquiries-to evaluate petitioners' takings claim.
- Petitioners' due process claim, however, is another
- matter. Respondents' brief in opposition does not
- respond to that claim on its merits, but asserts that
- petitioners' claim has been -raise[d] for the first time in
- their petition for certiorari.- Brief in Opposition 25. I
- think not. Petitioners argued before the Court of
- Appeals of Oregon that since they were not parties to
- Thornton, their rights to dry-sand beach could not have
- been determined by that decision because they -have not
- had their day in court.- App. to Pet. for Cert. G-90-
- G-92. In their brief to the Supreme Court of Oregon,
- they contended that application of Thornton to other
- property owners presented a -serious proble[m] of
- violation of the . . . due process clause of the Fifth
- Amendment.- App. to Pet. for Cert. H-155. I believe
- that petitioners have sufficiently preserved their due
- process claim, and believe further that the claim is a
- serious one. Petitioners, who owned this property at the
- time Thornton was decided, were not parties to that
- litigation. Particularly in light of the utter absence of
- record support for the crucial factual determinations in
- that case, whether the Oregon Supreme Court chooses
- to treat it as having established a -custom- applicable to
- Cannon Beach alone, or one applicable to all -dry-sand-
- beach in the State, petitioners must be afforded an
- opportunity to make out their constitutional claim by
- demonstrating that the asserted custom is pretextual.
- If we were to find for petitioners on this point, we
- would not only set right a procedural injustice, but
- would hasten the clarification of Oregon substantive law
- that casts a shifting shadow upon federal constitutional
- rights the length of the State.
- I would grant the petition for certiorari with regard to
- the due process claim.
-