First Eng. Evan. Luth. Church v. Los Angeles - Oral Argument

Argument of Michael M. Berger

Chief Justice Rehnquist: Mr. Berger, you may proceed whenever you're ready.

Mr. Berger: Mr. Chief Justice and may it please the Court:

Last term in MacDonald, Sommer & Frates versus County of Yolo, this Court found itself unable to reach the question of whether the just compensation guarantee is invoked when a local government regulation takes the use of private property, and it found itself unable to each that question because the California Court of Appeals had based its decision on two separate independent grounds:

One, that no taking had been properly alleged in the complaint; and two, that even if one had been properly alleged in the complaint, that California law forbade just compensation as a remedy.

This Court thus concluded that, since it could find that the independent holding that there was not a proper allegation of a taking was sufficient to justify the decision, it need not reach the compensation issue.

This case is different.

Here the California Court of Appeals dealt with only one issue, and it reached its conclusion for only one reason.

And since that takes only one sentence, I'd like to reread it to the Court:

"We conclude that because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to non-monetary relief, this court is obligated to follow Agins. "

Of course, the Agins opinion which the Court of Appeals was referring to was the 1979 decision of the California Supreme Court which concluded that monetary damages in the form of just compensation are not available for a regulation which takes the use of property.

Thus, adhering to the respect which this Court in MacDonald said must be paid to the decisions of the California Court of Appeals on matter of local law and local pleading, we would submit that the compensation issue which the Court was unable to reach in MacDonald is squarely before the Court in this case, because it's the only question of a federal nature that the California Court of Appeals dealt with and it's the only issue that was litigated on this question in the California courts.

Unknown Speaker: And you say you raised a federal constitutional claim of this sort in the California Court of Appeals?

Mr. Berger: Yes, sir.

And that's the issue that the California Court of Appeals dealt with.

They clearly analyzed the decision of the California Supreme Court in Agins in light of what had happened in this Court in its decisions since Agins, primarily the San Diego Gas & Electric opinions, and concluded that this Court had not yet clearly enough indicated what its feelings were for California to reach a different conclusion, and therefore it found itself bound by the California--

Unknown Speaker: For it, at any rate, to reach a different conclusion than the Supreme Court of California had reached.

Mr. Berger: --Well, that's true, and for any California court to reach a different conclusion.

In the reply brief, for example, we've collected all of post-Agins California decisions.

The California Supreme Court twice since Agins has reiterated the rule that regulations cannot lead to just compensation.

The California Court of Appeals in a dozen or more cases in varying contexts has held that damages under just compensation cannot be awarded for a regulatory taking of property, and they've held that even in cases which were expressly brought as federal civil rights cases under 42 U.S.C. Section 1983 in state courts.

Unknown Speaker: In California, I take it they say that you can get a declaration of invalidity and an injunction?

Mr. Berger: That is what the California courts say.

Unknown Speaker: And an injunction?

Mr. Berger: Well, that I suppose would go along with the declaration of invalidity.

Unknown Speaker: Well, in any event, what's really left over is whether you can get damages for a temporary taking.

Mr. Berger: If you get a declaration of invalidity, what's left is compensation for the other period of time, that's correct, Your Honor.

Unknown Speaker: And saying that you can't get damages for a temporary taking is a federal constitutional issue?

Mr. Berger: Yes, sir.

Unknown Speaker: And just like whether there was a taking in the first place.

Mr. Berger: It's a question of degree and of degree only.

Unknown Speaker: Well, you don't reach the remedy until you find there's a taking.

Mr. Berger: In this case the complaint alleged there was a taking.

Unknown Speaker: Well, I know.

Mr. Berger: Nobody challenged that.

Unknown Speaker: I know, I know.

Mr. Berger: And the courts only dealt with the question of whether the remedy--

Unknown Speaker: That's right.

Mr. Berger: --was just compensation.

Unknown Speaker: But there were two constitutional questions and they just, they decided one of them.

Mr. Berger: No, they assumed one of them.

Unknown Speaker: Well, all right.

They decided one of them, if there was a taking you had no remedy for damages.

Mr. Berger: But they assumed that the pleading under local law--

Unknown Speaker: Well, I know.

Mr. Berger: --adequately alleged a taking.

And having adequately alleged a taking, what the County said was, those allegations are immaterial.

Unknown Speaker: All I'm trying to get at is that we needn't worry that there was no decision below that there was a taking.

Mr. Berger: I agree with Your Honor that--

Unknown Speaker: That's all I'm trying--

Mr. Berger: --you need not be concerned because the court below held it to be immaterial.

Unknown Speaker: --May I ask, Mr. Berger--

Mr. Berger: Yes, sir.

Unknown Speaker: --it seems to me there might be two different sorts of taking, and I'm just curious as to what your allegation.

One, you might allege that if this regulation remains in place and it prevents us from building again in this area, that would constitute a taking for which we're entitled.

You might additionally allege that, even if the regulation is voided by a declaratory judgment after three and a half years of litigation, that the three and a half years of litigation, inability to build for three and a half years, is a separate taking, for which in all events we're entitled to compensation.

Do you make the second allegation in your complaint?

Mr. Berger: I believe we do, Your Honor.

We make the allegation that--

Unknown Speaker: That even if the regulation is voided, that the temporary deprivation of use would have been so serious that it amounts to a taking of your property?

Mr. Berger: --The detailed allegations are not that express in the complaint.

What the complaint alleges is that the ordinance which was adopted--

Unknown Speaker: I understand, that that's the taking and if it remains in place it's a taking.

But is it perfectly clear that you've alleged that the period of time that it takes to get your rights vindicated in court is also sufficient to amount to a taking?

Mr. Berger: --It seems to me that's implicit in the complaint, Your Honor.

Unknown Speaker: You think it's implicit in all allegations of taking?

Mr. Berger: It was never questioned in the courts below.

Unknown Speaker: All allegations of taking?

Mr. Berger: I believe it is, and as nobody ever questioned it--

Unknown Speaker: It certainly is at least theoretically possible that the temporary deprivation would not be serious enough to cross the constitutional threshold?

Or do you think that that's impossible?

If it's a taking when it's permanent, a fortiori it's also a taking even if it's a temporary taking?

Mr. Berger: --Well, in the colorful language of this Court in Loretto, taking doesn't depend on whether it's bigger than a breadbox.

Unknown Speaker: That's a physical occupation.

We're talking about regulatory takings here.

Mr. Berger: I understand that that was a physical occupation rather than a regulatory taking.

And you know, whether we're in fact able to prove that this was a taking, that it crossed the threshold, is an issue that we haven't reached in this case yet, because the California court dismissed the case.

And it may be that when we go back to trial the evidence won't show a taking, or the evidence wouldn't have shown a significant diminution in the value of the property.

Unknown Speaker: But you're out of court now, you're out of court now.

Mr. Berger: But that's a matter of fact.

Unknown Speaker: You're out of court.

Mr. Berger: The allegations are that the regulation did in fact take the use of property.

Unknown Speaker: And you had no chance to prove it because you're out of court for another reason.

Mr. Berger: At this point, yes.

Unknown Speaker: And do California rules allow notice pleading, the way the federal rules do?

Mr. Berger: Technically, it's called fact pleading, but the facts that are required to be pled in the complaint are equivalent to federal notice pleading.

They are very... only the basic fundamental facts are required to be pled in the complaint, ultimate facts the California court calls them, rather than evidentiary facts.

And it's clear as a matter of the record in this case that the County certainly understood what those minimal allegations meant, because they immediately responded by moving to strike them on the ground that under the Agins case there could be no recovery of compensation for a taking by a regulation.

Unknown Speaker: May I ask you about the discussion of temporary taking.

As long as the ordinance is on the books, you have a taking, don't you?

Mr. Berger: Yes, Your Honor.

As long as the ordinance is there, it takes the use of property.

Unknown Speaker: So as of today, the argument in this case, are we to consider it as a temporary or a permanent taking?

Mr. Berger: Well, this temporary taking is now nine years old, and I strongly suspect from an economist's standpoint that if you have taken something for that long you've taken it permanently.

Unknown Speaker: If we leave the ordinance in effect, it'll be a permanent taking so far as we know, is that correct?

Mr. Berger: Yes, that's correct.

Unknown Speaker: Well now, the case was litigated, though, was it not, under some temporary ordinance, as opposed to the one now in effect?

Mr. Berger: The case was originally filed under what they called a temporary ordinance, yes, ma'am.

Unknown Speaker: And you assert for our purposes here that that admittedly temporary ordinance is a permanent taking?

Mr. Berger: That temporary ordinance was in effect for three years, of course, before they replaced it.

The general effect of the permanent ordinance, so-called, is the same as the temporary ordinance, if allowed--

Unknown Speaker: But we are looking at it from the standpoint of that original temporary ordinance.

Mr. Berger: --I think-what this case involves is not the so-called temporary ordinance or the so-called permanent ordinance, but the County's pattern of regulation of this particular piece of land.

It started out with their moratorium, their temporary ordinance so that they could study what use they wanted made on this land, and they consistently followed it through.

Unknown Speaker: Well, that's the record we have in front of us.

The things that have happened since are not part of that original trial record.

Mr. Berger: That's correct.

If remanded, that of course would become of interest to both parties, what has happened since, because the temporary ordinance, the original ordinance, of course, flatly prohibits any use on the property and doesn't allow the County to make the arguments that it does--

Unknown Speaker: Well, under your theory would a municipality or county that made it temporarily impossible to build on something because of road repair or something of that kind have made a taking then that requires compensation for that interim period?

Mr. Berger: --No, not necessarily, Your Honor.

Unknown Speaker: But possibly?

Mr. Berger: It would depend on what the facts showed.

In this case we're not, for example, talking about a temporary road repair that requires a minor detour that may have disrupted the use for a short period of time.

Unknown Speaker: Well, some of these things take a while.

A major bridge or a freeway construction or something could deprive a property owner of access for a good while.

Mr. Berger: Yes, they can.

And under--

Unknown Speaker: And in your view that would require compensation.

Mr. Berger: --Under settled law, Your Honor, if access is totally deprived to property, that is the taking of the property interest and requires compensation.

Unknown Speaker: Even though it is admittedly for a temporary duration?

Mr. Berger: Yes, ma'am.

The highway people routinely condemn temporary easements so that they can perform just that kind of construction without having to litigate with people over inverse compensation cases.

They acknowledge that they are taking their access and interfering with their use, and they directly go ahead and buy that interest.

What we have in this case is a County effort to turn what had for 20 years been a usable--

Unknown Speaker: May I inquire, do they do this in California, what you've been saying in response to Justice O'Connor, that they routinely pay just compensation in dollars on these road repair situations?

Mr. Berger: --Not on minor road repairs, Your Honor.

Unknown Speaker: I thought in California the rule was they don't pay dollars for taking.

You're just telling us they do.

Mr. Berger: I'm talking there about direct condemnation.

Unknown Speaker: But supposing they didn't... I think Justice O'Connor's question was supposing they didn't go through the compensation procedure, they just built a road in a way that denied access, all the use of an adjacent parcel of land, for 90 days.

Is the owner of that parcel of land entitled in California to compensation?

I think not.

Mr. Berger: 90 days, I suspect--

Unknown Speaker: Well, say six months.

Let me put it, the period of time it would take you to litigate this case and have this regulation set aside.

Mr. Berger: --Yes.

Unknown Speaker: Would he be entitled to compensation in California--

Mr. Berger: Yes.

Unknown Speaker: --for the same interference caused by road repair?

Mr. Berger: I think if you looked at a case that the California Supreme Court decided called Jones versus People, which is precisely that case, where a parcel of vacant land was rendered inaccessible because of a freeway--

Unknown Speaker: I'm talking about temporarily, not permanently.

We're talking about temporary interference.

I think that was Justice O'Connor's question.

Mr. Berger: --Well, eventually they did get access, eventually.

But they were deprived of access.

Unknown Speaker: For a temporary period?

Mr. Berger: And the Supreme Court said that damages had to be paid, just compensation had to be paid.

Unknown Speaker: Well, how does that square with Agins?

Why won't they give just compensation here, then?

Mr. Berger: They view regulations very differently from the way that they view anything else.

And the only way that I can explain it to Your Honor is in that fashion.

I can't make sense of it personally.

Unknown Speaker: So that if the state built a wall around this place because they thought it was too dangerous, the flood and all the rest, then you would have gotten compensation?

Mr. Berger: I believe if they'd have done that--

Unknown Speaker: But not if they said, we'll post signs that say nobody can enter?

Then you don't.

Mr. Berger: --I believe if they had done that the courts would have viewed it differently.

But having done it only by regulation, they find that it doesn't require compensation.

And it's exactly that kind of a hypothetical, Your Honor, that concerns us.

Unknown Speaker: Mr. Berger, did you argue to the Court of Appeals specifically in California that Agins was contrary to federal law, that Agins was unconstitutional under federal law?

Was that argument made?

Mr. Berger: Yes, we did.

That argument was expressly made, Your Honor.

You'll find in the briefs a separate response that we did to the County's second motion to dismiss the complaint, and as appendices to that we have included pieces of the briefs that we filed in the California courts.

And in there we expressly directed the California court's attention to everything that this Court and the federal Courts of Appeals had done since Agins and concluded that Agins had no federal underpinning, that it was totally contrary to what was going on in this Court and in the Ninth Circuit particularly.

The Ninth Circuit three, I think now four, times has said that Agins at best is suspect and at worst doesn't represent the views of a majority of the U.S. Supreme Court.

The problem we face in California with the Ninth Circuit is in getting them not to abstain, to take these cases, because they keep wanting the California court to clean up its own act.

But the California Supreme Court and the California Courts of Appeals continue to follow this line, to hew to the Agins line, and say that if it's a regulation, as opposed to building a wall around it, then you don't get compensation.

You know, this is the same argument that was made far more eloquently than I can make by Justice Brennan in his San Diego Gas dissent and Justice White in MacDonald.

Unknown Speaker: May I ask you--

Mr. Berger: That it doesn't matter how you interfere with the owner's rights from the owner's standpoint.

It's the same thing if you built the wall or if you passed the regulation.

Unknown Speaker: --I understand, but you have a kind of a double-barreled claim.

One, you claim that the regulation is a taking if it remained in place; and secondly, you claim that even if it were rescinded today, you suffered damage during the temporary period it took to litigate.

Mr. Berger: That's correct.

Unknown Speaker: And that's a separate form of taking.

What is the measure of... assume the court... you win on the taking claim, the court says, well, we'll cancel the regulation.

What is the measure of damages that you contend you're entitled to?

Mr. Berger: Well, obviously we haven't gotten that far.

Unknown Speaker: But you don't contend that in that situation you'd get the full value of the property, do you?

Mr. Berger: I sincerely doubt it.

It would be subject to appraisal testimony and, as in any other inverse compensation case, I suspect what would happen is that the appraiser would use some form of rental value or return on investment value.

Unknown Speaker: Supposing the appraiser found that at the date of cancellation of the regulation the property was even more valuable than it had been when you originally wanted to build.

Would you still be entitled to compensation?

Mr. Berger: That it was even more valuable?

Yes, I think we would still be entitled to compensation for the lost use of the property.

How the appraisers would decide to value it is a whole different question, and I don't think this Court needs to get tied up in the nuances of valuation.

What we need in California particularly is for this Court to tell California that the compensation question needs to be faced.

As the Arizona Supreme Court said most recently... that's the most recent case which adopted the compensation resolution to this issue... we don't need to instruct the trial courts at this point on how to value the issue; we can let them experiment.

That's what trial courts are for.

Unknown Speaker: May I ask just one other question.

Do you contend you're entitled to compensation in every case in which the regulation is invalidated and it took three years to do it?

Or is there some special additional burden you have to show about the harm during the interval?

Mr. Berger: If the property in fact... if the use of the property was taken during that interim, I believe that is a taking, and the taking would require a trial on what just compensation is due for that period of time.

Unknown Speaker: So every time you invalidate a land use regulation, you'd be entitled to some compensation for the loss of use during the period it took to litigate it?

Mr. Berger: I think it's potential, it's possible that there may be some cases where there in fact was no value lost.

Or there may be cases where there was no use being made or going to be made during that time.

Unknown Speaker: Mr. Berger, the Solicitor General has suggested that, rather than implying a damage remedy directly from the Constitution or inferring one directly from the Constitution, you would have the remedy of using Section 1983.

What's wrong with that, apart from the fact that you haven't used it here, I mean.

If you knew about it, why wouldn't that give you as satisfactory... why wouldn't that give everybody as satisfactory a remedy as implying a direct monetary cause of action as the Constitution would?

Mr. Berger: Let me answer that in several ways, Your Honor.

First, although it's never been mentioned in this case, the allegations of the facts in this case would support an action under 1983.

1983, as this Court knows, creates no substantive rights.

It's just a remedial vehicle.

And what we've been arguing about in this case is the substantive right to just compensation.

So the issue of what remedial vehicles get used hasn't been brought up.

I think that the allegations in this complaint are adequate to state a 1983 cause of action if that were true.

Unknown Speaker: Supposing it had been a federal regulatory taking.

Would 1983--

Mr. Berger: 1983 only works against state governments.

Unknown Speaker: --Maybe that's why the Solicitor General thinks that that's better than applying it directly.

Mr. Berger: It's something that he's totally uninvolved in, Your Honor.

But secondly, in the California courts--

Unknown Speaker: Well, it doesn't work against the state either, does it?

Mr. Berger: --You have Eleventh Amendment problems against the state.

Unknown Speaker: Just municipalities, right, precisely.

Mr. Berger: Yes, we're talking here only about local government agencies.

Unknown Speaker: But you haven't commented on the underlying theory of the SG's suggestion in his brief.

Mr. Berger: No.

Unknown Speaker: That the Fifth Amendment is not self-executing at all.

Mr. Berger: The underlying theory of the Solicitor General, Your Honor, I candidly found insulting to this Court because it was based on expressly stating that a whole raft of opinions of this Court, including most recently U.S. versus Clarke, in which this Court said the Fifth Amendment just compensation guarantee is self-executing, are simply wrong.

For example... and I think this Court said it very clearly in Jacobs versus United States--

Unknown Speaker: Well, we just said, but we didn't hold it, because--

Mr. Berger: --That's true, you did say it.

In Jacobs--

Unknown Speaker: --Where have we held that it's self-executing?

Mr. Berger: --Let me show you in Jacobs.

Unknown Speaker: Against government.

Mr. Berger: In Jacobs versus United States, 290 U.S., this Court said in the holding the right to recover just compensation was guaranteed by the Constitution.

It rested upon the Fifth Amendment.

Statutory recognition was not necessary.

A promise to pay was not necessary.

Such a promise was implied because of the duty to pay imposed by the Amendment.

The right to compensation arose from the Constitution, not from the statute.

Unknown Speaker: Where there's a taking.

Mr. Berger: Also--

Unknown Speaker: But if the court stops the taking, then there's no compensation.

Mr. Berger: --Of course.

If there's no taking, then the question will never be reached.

But in this case it's the only question we have: What is the remedy once we have a taking?

Unknown Speaker: No, California says: We're not going to allow the taking.

That's what the California court's are saying.

Mr. Berger: I don't think they're saying that at all.

Unknown Speaker: Your remedy is we will stop that taking.

Mr. Berger: That's a matter of fact.

That's like saying we're not going to allow the sun to rise tomorrow.

What the county does is to take the property.

If California wants to call that lettuce instead of calling it a taking, it doesn't change what happened.

Unknown Speaker: What California says, if you take it without just compensation you've got to give it back, just as if you take--

Mr. Berger: But you can't give back what's been taken in the past.

Unknown Speaker: --You cancel the regulation.

Suppose the regulation was enacted without following appropriate procedures, taking without due process of law.

The remedy is you've got to give it back.

You don't have to pay anybody anything for that.

Mr. Berger: That can be, yes, that's right.

But what happens, Your Honor, is it provides no remedy for the taking that's already occurred, and it in fact guarantees nothing about the future.

Unknown Speaker: But they're two separate questions: what already occurred; when you give it back, has there still been a taking?

Mr. Berger: I don't know that we've given it back, because what it does is it returns the regulation to the entity and tells the entity, draft a new regulation.

Now, that guarantees nothing.

As Justice Brennan's dissent in San Diego pointed out and as virtually every commentary on this issue has pointed out, there are an awful lot of government agencies that will take those regulations back, dicker with them a little bit, make minor changes, and then re-enact them and force the property owner to litigate all over again.

Unknown Speaker: But meanwhile you haven't had the use of your property in any event.

Mr. Berger: Exactly, and that's entirely the problem.

You have not had the use of your property while they've been playing this game with you.

Unknown Speaker: Well, Mr. Berger, do you think that local governments don't have authority to engage in flood control regulation?

Mr. Berger: Oh, not for a minute do I make that assertion, Justice O'Connor.

I believe that they do.

Unknown Speaker: And does the church plan to rebuild on a flood plain where people have been killed?

Is that the church's plan?

Mr. Berger: The church can't plan to rebuild, because the ordinance won't allow it.

Unknown Speaker: If you get it struck down, that's the church's plan?

Mr. Berger: If the ordinance were struck down, the church would like to be able to use the property the way it had used the property.

And it's not building in a flood plain where people had drowned.

No question there was a tragic flood that occurred in that area.

It was a freak of weather conditions, as the record shows.

But the point is that what the County has done is to engage in the valid purpose of flood control, something which we acknowledge.

We never challenged that flood control was not a valid purpose.

But once they've decided to engage in a valid purpose, when that valid exercise of power takes property of private people for public use in the process, then the just compensation clause comes into use.

Unknown Speaker: Well, do you think that any time a local government says, in this particular location it's subject to flooding and no one may build there, that that is a taking?

Mr. Berger: It could be.

I don't think that every time.

It would depend on the property.

You know, the market is what it is.

The fact is this property has been used for 20 years in this fashion.

It may be that there is other property which is at the bottom of a river and which isn't usable.

Unknown Speaker: Mr. Berger, suppose... is there anything that stands between your position and the Federal Government having to pay innumerable people nationwide some to be determined amount of compensation every time a regulation of the FCC or the FTC or any other federal agency is stricken down?

Mr. Berger: Is there anything that--

Unknown Speaker: That stands between the position you're arguing here and that.

Mr. Berger: --Sure, because in my situation what we are talking about is a regulation which totally deprives the owner of property of its rightful use.

The regulations that come up with the Federal Government, I have not seen any that come that totally as prohibitions of use.

And what we've got here is a regulation which as a matter of conceded pleading fully takes the use of property.

Unknown Speaker: Well, how about a patented item or a designer drug of some kind, and you apply for federal approval and the regulatory process takes a long time.

Mr. Berger: That hasn't deprived you of the use of that.

Unknown Speaker: Oh, yes.

You can't market it until you have approval.

Mr. Berger: I don't believe that's technically true, Your Honor.

I believe that you can market--

Unknown Speaker: Make that assumption, because I think there are some examples.

Mr. Berger: --Drugs is a different stories.

Patented items was a wholly different one.

And as the Court discussed in Ruckelshaus versus Monsanto, when you go into a business of that sort, which is a regulated industry, knowing what it is and knowing what its confines are, that's an assumption of risk, if you will, that a business is allowed to take, and there is no constitutional problem that arises when there is some delay in the process.

But where we have--

Unknown Speaker: It's a little hard to distinguish that from your theory, frankly.

Mr. Berger: --Well, I'm sorry that Your Honor is having that trouble.

What I see in our case is a piece of property that has been open and usable for at least two decades and which the County comes in now and says: That property is now a part of the County-owned flood control channel; we're just not going to change the title; we're going to let you keep the title, but we're going to wash the water through it.

Unknown Speaker: But wouldn't your argument be exactly the same if your client had bought it ten days before the regulation went in effect?

Mr. Berger: I don't think my argument would be quite as strong as if we owned it for 20 years.

Unknown Speaker: You'd be making the same argument, wouldn't you?

Mr. Berger: If we bought it ten days before the regulation went into effect?

Unknown Speaker: Sure, if you hadn't used it for 20 years, you bought the property ten days before and then the temporary regulation took effect.

Mr. Berger: Maybe, and we may end up arguing over the amount of damages, because if we had bought that property ten days before the regulation went into effect, after the devastating flood, I strongly suspect that the market price would have been virtually nil.

Unknown Speaker: But you would be arguing there had been a temporary taking.

Mr. Berger: There still may have been a taking.

What its value is is something wholly different, and I think that's the question we're getting into.

Unknown Speaker: Not worth the attorney's fees.

Mr. Berger: Probably not, Your Honor.

If I have any time left, I'd like to reserve it.

Argument of Jack R. White

Chief Justice Rehnquist: Thank you, Mr. Berger.

We'll hear now from you, Mr. White.

Mr. White: Mr. Chief Justice and may it please the Court:

Before this Court can reach the remedy question that Mr. Berger so strongly urges upon the Court, it must first decide that it has jurisdiction and it must decide that the issue of ripeness, that the issue of remedy is ripe in this action.

In Agins, MacDonald, and Williamson County, the three more recent cases involving this kind of question, the Court made it clear that it's not going to reach questions of what the appropriate remedy is for an alleged regulatory taking arising out of a zoning ordinance unless and until it has a ripe and valid taking claim.

I take strong issue with Mr. Berger's contention in this case that the taking claim is both ripe and valid and must be assumed by this Court.

it's neither ripe nor valid, for all of the same reasons in Agins and MacDonald and Williamson County.

In addition to that, however, we believe that on the face of the record before this Court the loss of use that we're talking about in this case cannot be regarded as a taking under the rule announced in Mugler versus Kansas by this Court 100 years ago, where the Court drew a very clear distinction, which I think is still valid today, between an exercise of police power to prevent a dangerous use of one's property--

Unknown Speaker: But doesn't that go beyond the ruling of the Court of Appeal, Mr. White?

I thought that they had assumed for purposes of decision that there was a taking and they said under California law, even if there was a taking here, you're not entitled to damages by reason of temporary deprivation.

I don't think they really decided the question of whether there was a taking.

They assumed there was one.

Now, do you want us to look into that and say, well, no matter what California law is, we don't think there was a taking here?

Mr. White: --Yes, Your Honor, I do.

Let me explain why.

Unknown Speaker: That's a very strange procedure.

Mr. White: Let me explain--

Unknown Speaker: We have to decide, do we want to avoid one constitutional question in order to get to another.

Mr. White: --Well, first of all, the constitutional question that I'm talking about has to have been raised as a prerequisite to reaching the remedy issue.

And when I discuss jurisdiction, I'm going to point out that it wasn't.

Unknown Speaker: Well, that's a different argument.

Mr. White: It is.

The point right now, however, is in this case the court in California did not assume a taking.

It didn't decide the issue one way or another, because a motion to strike does not call into question or it does not even raise an issue about the sufficiency of the pleadings.

Unknown Speaker: Well, it dispose the case on the basis that damages were not available.

Mr. White: It did, Your Honor, based on Agins.

Unknown Speaker: So the case was over then.

Mr. White: It was over, that's correct.

Unknown Speaker: Well, they're out of court.

How can they ever get back in by just saying there's a taking?

Give us the damages because there's a taking, and they'll be laughed out of court.

Mr. White: Justice White, there was a way in which they could very easily have gotten into court in this action and preserved the issue for this Court.

All they had to do was add a cause of action for declaratory relief challenging the validity of the ordinance.

That's what the plaintiff did in Agins.

Indeed, it was the cause of action for declaratory relief that provided appeal jurisdiction to this Court.

That's how this Court got to review Agins.

Unknown Speaker: But that isn't what the California Court of Appeals said here.

If they had said that, perhaps it would have been an entirely permissible disposition to say, you didn't bring a declaratory judgment action so you don't get a ruling.

But the California Court of Appeals didn't go on that basis.

Mr. White: That's correct.

The Court of Appeal didn't.

The court could have.

Unknown Speaker: Perhaps they could have, but it didn't.

Mr. White: It never passed on the question of whether there was a taking.

But I don't think it makes any difference whether the court below passed on the taking question, because this Court has said it regards the question of taking as an antecedent to the remedy issue.

In the final analysis, it's up to this Court to decide whether a cause of action for a taking has been adequately alleged.

Unknown Speaker: But that's not part of the case, Mr. White.

I really don't understand this argument.

Suppose the issue in the case... there are two issues in another case, whether any holder of a leasehold interest can have his property taken, and it comes before a California court and the court says its ruling is you're out of court because no owners of leasehold interest can have any cause of action.

Now, would you come up here and say that we couldn't dispose of that case and we couldn't determine whether that's a valid federal constitutional law, because the issue of taking has never yet been determined?

Mr. White: Your Honor, I think that's correct.

If the court... let me explain.

If the court looked at the pleading and saw that the pleading did not adequately allege a federal claim, then the remedy question should not be reached.

It doesn't matter whether the court below decided one way or the other on the sufficiency of stating the federal claim.

It's up to this Court to decide if a federal claim has not been properly alleged, and if a federal claim has not been properly alleged--

Unknown Speaker: Not just colorably, but fully?

Not just colorably alleged.

Mr. White: --That's right.

Unknown Speaker: It has to be valid.

Mr. White: In order to reach the remedy question.

It doesn't have to be... it only needs to be colorably alleged for jurisdictional purposes.

But for this Court to reach the remedy question, unless it's going to back away from what it said in Agins and in MacDonald and in Williamson County, it's going to have to be satisfied that a cause of action was alleged, not that a cause of action that clearly on its face wasn't alleged, that the court below didn't decide that.

Because if it's clear to this Court looking at those allegations that there is not and could not as a matter of law be a regulatory taking in this case, then any decision it gives on the remedy question is purely an advisory opinion.

It's not going to apply to this case.

And the point I am making is, on the face of the allegations in this complaint no cause of action was stated as a matter of law.

Unknown Speaker: You want us to review the federal issue that was not decided below in order not to review the federal issue that was decided below.

Mr. White: That's correct, because it is antecedent to reviewing the federal issue that is before the Court now.

If there's no federal claim asserted, then the question of whether there might be a remedy if a federal claim had been asserted is not properly before this Court.

Unknown Speaker: May I ask, though, the first cause of action, last allegation, is

"Ordinance No. 11855 denies First Church all use of Lutherglen. "

Mr. White: That's correct.

Unknown Speaker: Why doesn't that allege a taking?

Mr. White: No, that does not, Your Honor.

First of all, it's a bare conclusion.

In Agins and MacDonald, the same kind of allegations were treated as conclusions, but the reason for that--

Unknown Speaker: Well, I understand.

They could say as a matter of California law you've got to allege the value and you've got to allege, and so forth and so on.

Mr. White: --That's correct.

Unknown Speaker: But they didn't do that.

Mr. White: And in addition to that... no, they didn't allege anything but that it denies all use, which is the barest of conclusions.

Beyond that, however, as the Court recognized in Agins and in MacDonald, the Court can take judicial notice of the actual provisions of the ordinance.

And it has... in those cases what it did is it compared the actual provisions of the ordinance with the bare conclusory allegation that it denies all use.

If the Court looks at these ordinances... and by "these ordinances" I mean the temporary ordinance, which is the only ordinance that is the basis of the complaint in this case... and if it looks at the permanent ordinance, it'll see that it doesn't deny all use at all.

Unknown Speaker: Don't we also have to look at the survey?

Mr. White: The survey?

Unknown Speaker: Or whatever the property looks like?

How can we say just on the face of the ordinance it doesn't have the practical consequence that they say it has?

Mr. White: Well, the question is who has the burden of presenting the facts--

Unknown Speaker: It's very hard for an appellate court to try a case that hasn't been... to try an issue that hasn't been tried below.

Mr. White: --That's correct, Your Honor.

But the real question is who has the burden of presenting it to the court in a fashion that raises the issue and preserves it for appeal.

And if they allege nothing but a single bare conclusion which this Court would have to say without more doesn't state a taking, then they didn't state a taking.

That's not our fault; it's their fault.

Unknown Speaker: Why would we have to say without more that this didn't state a taking?

I mean, I'm not at all sure that that sort of an allegation might not be sufficient under the federal rules, and I'm not at all clear as to what California requires.

But from the California Court of Appeals decision, I gather it didn't require much more.

Why would they go to the trouble of deciding the remedy issue?

Mr. White: Why would who go to the trouble of deciding the remedy issue?

Unknown Speaker: The Court of Appeals.

Mr. White: Because that was the only issue in front of them.

The motion to strike--

Unknown Speaker: Well, it wasn't even in front of them on your theory, because there was absolutely no reason to even get to it.

There was not a sufficient allegation of a taking.

Mr. White: --No.

The County filed a motion to strike based on the grounds that the allegations were irrelevant.

They were irrelevant based on the Agins decision, which had been decided just a matter of months before the motion was filed.

The Agins decision said in essence, if you have a regulatory taking claim, the proper remedy is declaratory relief, not inverse compensation.

Unknown Speaker: You led the Court of Appeals into it?

Mr. White: We led the Court of Appeals into it, but the plaintiff has--

Unknown Speaker: Dispose of this case on a remedy issue, forget all this business about taking.

Mr. White: --No, Your Honor, I don't think that's correct.

Unknown Speaker: Well, that's what your motion was apparently.

Mr. White: Well, but--

Unknown Speaker: Agins.

Mr. White: --But why was it the County's burden to do something beyond what was necessary--

Unknown Speaker: I don't know whether it was your burden or not, but you wanted to get rid of the case on this particular federal issue, namely Agins.

And we succeeded.

Mr. White: --I'm sorry.

We wanted to get rid of it based on the California Supreme Court decision that said this is not a proper remedy--

Unknown Speaker: Right.

Mr. White: --for a taking.

As I started to say before, the remedy could have been preserved for this Court very simply, by adding a declaratory relief action.

The complaint was amended twice.

It was amended once a couple of years after the motion to strike had been granted.

They did not add the cause of action for declaratory relief.

Had they done so, then the issue would have been preserved for this Court.

It would have been a perfect issue.

The Court would then... the California court would have had to pass on the taking issue, because now there's a declaratory relief cause of action in front of them.

They have to judge the validity of the ordinance.

So there was a very simple technique for the church to get the issue before this Court.

It didn't.

The County elected to do something that the California Supreme Court said it could do, and it's true that that... that by doing that they didn't get a review of their taking issue.

But they could have done it.

They could have done it even after the motion had been granted, by asking to amend to add a cause of action for declaratory relief.

So it's not just the County's fault that the issue isn't here before this Court.

It's every bit as much the fault of the plaintiff, and it's the plaintiff's burden to present the federal issue and preserve it.

And I submit that if anybody is to bear the burden of this fault, it should be the plaintiff and not the County.

Unknown Speaker: Mr. White, did not the Court of Appeals, the California Court of Appeals, assume the correctness of the allegations in the complaint?

Mr. White: No, Your Honor.

Unknown Speaker: You made a motion to strike.

Mr. White: But a motion to strike does not test the validity of the allegations.

A motion to strike, as distinguished from a demurrer, simply says they're irrelevant; whether they're true or not, it doesn't matter.

Unknown Speaker: Why did the Court of Appeals quote from Agins, the California Supreme Court case to the effect that there was a total taking of use?

Mr. White: What it said was--

Unknown Speaker: Referring to the ordinance that was in the complaint.

Mr. White: --No, my recollection of what the Court of Appeals said was that if there is a total taking.

Unknown Speaker: I don't think that's right, but you may be.

I don't have the opinion here.

Mr. White: But there is only a total taking or a total denial of use that amounts to a taking if the County does not have the right to prevent that use.

Let me move to the point that I was trying to make before, which is why a mere allegation of denial of all use, even if it's accepted as a fact, not treated as a conclusion of law, even if it's accepted as a statement of fact by this Court, that doesn't state a taking claim.

And the reason it doesn't is from the very facts in this record some of which are in the trial transcript that's before the Court, some of which can be judicially noticed, we have a safety regulation.

The rule of Mugler versus Kansas applies here.

Under Mugler versus Kansas, a government has the right to prohibit a dangerous use of land.

And what the Court said 100 years ago in that case is that that is not a taking, it's not the kind of regulation for which the government must pay compensation.

Mugler versus Kansas has been reiterated in other cases, in Goldblatt versus Town of Hempstead, and a recently as this Court's opinion in the Penn Central case and in Chief Justice Rehnquist's dissent in that case, where both the Court and the dissent agreed on one key point, and that is that when you're dealing with a regulation aimed at protecting the health and safety of the citizens you're dealing with a different animal.

What you have there is an exception to the normal rule that a regulation which destroys property values can be regarded as a taking, because if all the government entity is doing is protecting the citizens from a dangerous use of land then it has not only the right to do that without paying compensation, but I submit the obligation to do it.

Suppose we accept the proposition--

Unknown Speaker: Has the obligation to do it without condemnation?

I don't think that follows.

Has the obligation to do it.

Mr. White: --Well, the bottom line is this.

The bottom line is suppose... and I think that is what we can assume is the case here... suppose a regulation in fact denies all use.

Now, we don't concede that, but if the Court wants to accept that as a general proposition, that it's bound by that conclusory allegation and this one in fact denies all use.

The County's position is that use is dangerous, and the fact that a Mugler type regulation which prevents a dangerous use of land happens to deprive the property owner of all of his use does not provide an exception to the Mugler rule that compensation doesn't have to be paid.

The bottom line question is does the County have to make a choice between allowing a dangerous use of land to be resumed or buy the land by paying compensation, because the only way to prevent a dangerous use of this land would be to put a permanent restriction.

Then we've got a total taking, a permanent taking.

Does the County have to do that?

Is that the County's choice, allow them to make a dangerous use of the land or buy them out, particularly in a situation like this, where this is a flood-prone area?

When they bought into that property in a flood-prone canyon they had to know that there was flood danger.

Indeed, this is not a freak situation, as Mr. Berger suggested.

There's evidence in the record that there were prior floods.

Indeed, there was a 1969 flood that did damage to this property.

The 1978 flood was more severe, but it was devastating.

It obliterated everything in the canyon.

And we're talking about a very narrow mountain canyon.

That canyon is approximately 250 feet wide, or at least the flood protection area is 250 feet wide.

Unknown Speaker: Counsel, do we have to do that to decide this case?

Mr. White: I think the--

Unknown Speaker: Do I have to find out how wide that canyon is?

Mr. White: --The Court does have to decide whether the bare statement of a denial of all use states a cause of action in the face of the record that I am discussing now, the facts that are in the record.

What I'm suggesting is that to state a claim of taking you have to state more than a mere denial of all use.

Unknown Speaker: Well, Mr. White, supposing the California Court of Appeals had expressly said: The plaintiff's complaint in this case states only that the regulation denies them all use of their property; the Appellee says this is not enough to state a claim for taking; but under our pleading law we hold that it is.

Would you still say that we should require more than the California courts do to state a claim of taking?

Mr. White: Yes, I do, Your Honor, because I think that the ultimate question of whether an adequate federal claim has been stated lies with this Court, not with the Court of Appeals in California.

But of course that didn't happen here anyway.

They didn't decide one way or another.

Had they done so, it's quite clear they would have decided there was no taking, because under California law flood plain management regulations are not a taking.

Turner versus County of Del Norte, cited in our brief, is a case based on the flood plain regulation adopted under the California Colby-Alquist Act, which has provisions exactly like this.

Unknown Speaker: May I ask you a hypothetical.

Mr. White: Yes.

Unknown Speaker: You're talking about flood control.

The Mississippi River floods with some frequency large areas of particularly Louisiana.

Let's assume, for example, that the state of Louisiana, because of the cost that the state incurred whenever there was a serious flood, that no one could build on property within ten miles of the Mississippi River.

Would there be any taking under your analysis?

Mr. White: I think the question... I think, Justice Powell, the question would be whether the restriction was reasonably necessary to--

Unknown Speaker: Let's assume it was reasonably necessary; so that if you owned property within that area you get zero compensation, is that your construction of the Fifth Amendment?

Mr. White: --Your Honor, I do believe that's correct.

I think if the public entity is protecting health and safety and it prohibits a dangerous use of land while allowing other uses... and there were other uses available on this property... then it's not a taking.

But even if it denies all use because the only possible use is dangerous, then yes, I would say that's not a taking under the Fifth Amendment.

Unknown Speaker: Let me give you another one.

There's a great deal of liberality with respect to zoning ordinances, going back to our decision, or this Court's decision in Euclid.

But let's assume a zoning ordinance that said with respect to someone's property that it not only cannot be built on, but the state wants to make a part there.

Would there be any taking?

Mr. White: Oh, of course.

Unknown Speaker: Of course there would be?

Mr. White: Yes.

Unknown Speaker: Why?

Mr. White: If the state wanted to make a park?

Unknown Speaker: A zoning ordinance, a zoning ordinance that zones a property for park use only.

You bought it because you were going to build a--

Mr. White: I think I may have misunderstood your question.

They zone it, they downzone it, is that what you're saying?

Unknown Speaker: --And you bought the property when it was zoned, say, for residential.

And 20 years later or ten years later or the next day, without your having any knowledge of the zoning ordinance being pending, the city zones your property so that you could not use it for any purpose.

It's going to make a public park.

Is the zoning ordinance valid?

Mr. White: Do we have the safety element involved here?

Unknown Speaker: No safety element.

Mr. White: No safety?

Oh, well then that's different, because what they've done--

Unknown Speaker: Wait a minute.

Would you be entitled to compensation?

Mr. White: --Yes.

Well, under the California rule what you would have to do is challenge it.

If it was declared invalid, then the public agency would have to decide whether it wanted to keep the regulation or not.

If it wanted to keep the regulation, then it would have to pay compensation.

That fact situation, by the way, would then present the temporary taking remedy issue that the Court has been talking about.

But the difference why that's a taking, at least if the regulation is allowed to be permanent... and there's a question about whether it's a taking if it's only permanent.

But if it was permanently down-zoned to be a park, then the public is getting the benefit of that property.

In this case the public is not getting the benefit of the church's property.

It is doing nothing more than saying you can't put buildings in the middle of a flood channel that's going to cause an increase in the level of flood waters downstream, endangering other people.

The County in this case did--

Unknown Speaker: Would there be a taking, for which compensation would be allowed?

Mr. White: --In your zoning case, where they had zoned it into a park, yes, Your Honor.

Unknown Speaker: There would be compensation?

Mr. White: Well, it would be a taking for which compensation would be required if the zoning regulation remained permanent.

Now, if the property owner challenged the zoning ordinance under the California rule and it was declared to be invalid because it goes too far under Pennsylvania Coal versus McMahon... or Mahon... then you'd have the question whether it was a taking during the temporary period.

My position on that is no, it's not a temporary taking.

Unknown Speaker: Well, coming back to this case, let's assume that there had never been a flood, no threat of flood.

The County just decided this would make a lovely public park and so it said to, whatever it is, to the Appellant in this case: We are taking your property for the purpose of a public park; it's beautiful for that purpose.

Would that be a taking?

Mr. White: If permitted to stand, yes, I believe that would be a taking.

Unknown Speaker: It would?

Mr. White: Yes.

Unknown Speaker: But because of the flood, that's the difference?

Mr. White: Yes.

The difference again is what the County would be doing your hypothetical, Justice Powell, is it would be saying: You can't use your property, so the public can come on and use it, or at least enjoy the open space, enjoy the benefits of it.

That is a restriction on property that benefits the public as a whole.

It doesn't protect them from anything.

Mugler versus Kansas' rationale, which distinguishes between police power regulation for safety purposes and taking unoffending--

Unknown Speaker: Yours is limited to safety?

Mr. White: --Absolutely, absolutely.

Justice Marshall, this regulation was adopted by the County... and this is in the record... in an effort to comply with the national flood insurance program, which requires regulations like this.

The national flood insurance program provides federally assisted flood insurance to flood-prone areas only if the local government agencies adopt flood plain management regulations that restrict construction in natural flood channels.

That's exactly what the County did here.

If the Court holds that that's a taking, then there are going to be a lot of compensation paid throughout the United States in all these flood plains where local government entities are trying to comply with the federal regulations to restrict construction in flood plains.

The reason construction in flood plains is being restricted is that it's dangerous.

It's dangerous because it raises the flood level.

It's dangerous because it causes a surge of water downstream, and when the building breaks up, as these buildings did... what more proof do we need than the actual events of this case... you've got tons of debris, in addition to all the backed up water, going downstream, damaging downstream property owners and taking lives.

The Federal Government has said that's dangerous and we've got to stop that, and so if you want federal assistance in getting flood insurance, you local governments have got to adopt regulations that restrict new construction in flood plains.

Unknown Speaker: Mr. White, just in case we reach the merits, do you want to say a few words about why we shouldn't imply a monetary cause of action?

Mr. White: Yes, Justice Scalia, I will.

I think what you have under the California rule is a situation where the California Supreme Court said that it interferes with the legislative prerogative for the court to order it in essence to exercise its power of eminent domain.

And declaring that the regulation is invalid satisfies the requirements of the Fifth Amendment because it removes the offending regulation.

In essence, the permanence has been lifted.

Unknown Speaker: It sure does, except for the interim period.

Mr. White: Except for the interim period, that's correct.

Unknown Speaker: Now, why shouldn't we imply--

Mr. White: Because the interim period is nothing more than a delay inherent in the regulatory process.

It's no different than delays on trying to get permits.

It's no different than a whole host of delays that are caused by various kinds of building and safety regulations.

Unknown Speaker: --That may be, but during that delay the person has been deprived of the use of the land.

Mr. White: But they do in all the other cases.

Is it a constitutional taking of use in all those cases?

If that's so, then when there's delay--

Unknown Speaker: What other cases?

What other cases are you talking about?

Maybe it is.

Mr. White: --A delay in issuing a building permit perhaps.

You can't build on the property until you get a permit, and you have to go through a number of attempts to get a permit.

Perhaps along the way there is an arbitrary denial of one of them, and then five months later it's finally granted.

Has there been a taking for five months?

I don't think so.

I don't think that that kind of temporary harm, if you will, rises to the level of an appropriation of property, because that's what the Court has said you have to have for a regulatory taking that doesn't involve any kind of physical invasion, a mere loss of use of property.

Unknown Speaker: Well, Mr. White, there are some horror stories out there of local governments intentionally running these things through the mill indefinitely in a jurisdiction like California, with full recognition that if they lose on one they can make a minor modification of the requirement and go again and effectively deprive people forever of any use.

Now, what's an owner to do?

Mr. White: Well, Justice O'Connor, I don't know of any horror stories.

I've seen references to horror stories in law review articles, but I don't know of any actual case involving--

Unknown Speaker: Well, the Agins come pretty close, don't they?

Mr. White: --Well, the Agins, I don't know what happened after the Agins decision was decided.

But this Court held that there was no taking in the Agins case.

But my point is I don't think a rule of general application should be adopted on the assumption that some regulatory agencies may be acting in bad faith when other regulatory agencies, like the County of Los Angeles, which adopted a regulation that it thought was in compliance with the national flood insurance program... why should the County be penalized with a rule that's based in part on a policy that assumes there's going to be gamesmanship when it didn't engage in any gamesmanship?

So if there's going to be compensation for a temporary harm because a regulation has gone too far, I would draw a line at the situation where there is some kind of showing of bad faith or intentional conduct on the part of the zoning authorities to go beyond what is permissible.

Here we have a situation where there was no way on God's earth that the County of Los Angeles could have known when it adopted what it thought was a badly needed safety regulation in accordance with the federal regulations that it was going to have to pay some compensation for it because it had crossed over that line.

So I would draw the line for compensation for temporary harms where there is some kind of intent or bad faith.

And if there isn't any, then I don't think that there should be any compensation.

Rebuttal of Michael M. Berger

Chief Justice Rehnquist: Thank you, Mr. White.

Mr. Berger, you have one minute remaining.

Mr. Berger: Thank you, Your Honor.

I'm a little confused by counsel's conclusion there about making this some sort of an intentional tort.

We're talking about the Constitution and the vindication of rights under the Constitution.

There has never been any such intent element in inverse compensation cases.

The question, as this Court has held on many occasions, is what is the impact of the governmental action on the private property owner?

If the impact is to take the property, then compensation is payable.

It has nothing to do with whether the government was well intentioned or ill intentioned, and I would urge this Court not to import that difficulty into these cases.

I was also a bit surprised to hear counsel say he doesn't know what happened to the Agins' since the decision by this Court in 1980, since they filed an amicus curiae brief in this case and explained exactly what's happened to them since 1980.

They're still without the use of their property.

They're still without compensation, and the City of Tiburon has put another temporary moratorium on their property after they got building permits.

Now, they're six years down the road from this Court; they still don't know what they're going to do.

That's the kind of horror story, Justice O'Connor, that does go on in California, and it goes on all the time.

The people of this country need an answer to this question.

We urge the Court to reach the question and decide that just compensation is mandated for a regulatory taking of property.

Chief Justice Rehnquist: Thank you, Mr. Berger.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Tuesday next at ten o'clock.