Amici Brief Asks Supreme Court to Confirm that Property Rights Are Fundamental Rights Deserving Constitutional Protection

The National Federation of Independent Business (NFIB) Small Business Legal Center, Cato Institute, Rutherford Institute and Owners’ Counsel of America (OCA) have joined together in filing an amici brief urging the U.S. Supreme Court to grant review of the Eleventh Circuit’s decision in Kentner v. City of Sanibel, No.13-13893 (May 8, 2014) (Supreme Court Docket No. 14-404). In the brief supporting the Plaintiff-landowners, OCA and its fellow amici ask the Supreme Court to confirm that the constitutional guarantee of due process protects private property rights from government confiscation or revocation and to ensure that property owners nationwide are not deprived of “life, liberty or property, without due process of law.”

“The Eleventh Circuit concluded in Kentner that a property owner’s riparian rights, although recognized by the State of Florida as property rights, are not considered as ‘fundamental’ rights under the U.S. Constitution so that they are protected by the Fourteenth Amendment’s Due Process Clause,” said Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu.

“In holding that the city’s ban on the construction of docks and piers was not subject to federal due process protections, the Eleventh Circuit held that a ‘state-created’ right is somehow not deserving the same level of due process protection as a ‘fundamental’ right,” explained Thomas, who signed on the brief as the Hawaii representative of the Owners’ Counsel of America.

The case revolves around Ordinance 93-18 enacted by the city of Sanibel, Florida in September 1993 purportedly to protect seagrasses growing on the submerged lands of the Bay Beach Zone an fronting San Carlos Bay. The ordinance prohibited the construction of new docks and piers within the Bay Beach Zone. Plaintiffs purchased properties in this zone after the ordinance was adopted. Because they own waterfront property bordering the high tide line, Plaintiffs possess riparian rights – rights to access the water, including “reasonable docking rights.”

Plaintiffs challenged the law in state court on the grounds that it violated their rights to due process and did not substantially advance a legitimate state interest. The city removed the case to federal court which dismissed the complaint concluding that riparian rights are based in state law and are not “fundamental” rights protected by the U.S. Constitution. The Eleventh Circuit Court of Appeals affirmed holding that “there is generally no substantive due process protection for state-created property rights.”

“The decisions of the federal district court and Eleventh Circuit are clearly troubling in that property rights, whether so called ‘state-created’ or ‘fundamental,’ are not given the protection under federal law when the facts suggest that the due process clause of the Fourteenth Amendment is violated,” said Andrew Brigham, managing partner of Brigham Property Rights Law Firm, PLLC and the Florida representative of OCA. “By excluding property rights from the substantive protections of due process, the Eleventh Circuit is setting a precedent based upon a false premise that must be challenged.”

Coauthored by Professor Ilya Somin of George Mason University School of Law and Luke Wake of the NFIB Small Business Legal Center, the amici brief of the NFIB, Cato Institute, Rutherford Institute and Owners’ Counsel of America argues that the decision of the Eleventh Circuit goes against the text of the Fourteenth Amendment, its original meaning, and longstanding precedent. Furthermore, the brief contends that the Eleventh Circuit’s arbitrary distinction between “legislative” and “executive” acts that infringe on property rights is at odds with Section 1 of the Fourteenth Amendment which specifies that “no State” is permitted to violate the Due Process Clause, regardless of which branch of state government happens to be the violator.

“OCA joined the NFIB, Cato Institute and Rutherford Institute as amici in this case to urge the Supreme Court to step in and confirm that property rights deserve due process protection and ensure that all Americans are not deprived of ‘life, liberty or property, without due process of law’,” Brigham stated.

More commentary about this case is available at the following links:

Amici Brief Asks: Aren’t Property Rights “Fundamental” Rights? – Robert Thomas

Our amicus brief on Due Process Clause protection for property rights – Ilya Somin

Rutherford Institute Asks U.S. Supreme Court to Protect Property Rights – The Rutherford Institute

Yes, Florida, the Constitution Protects Property Rights – Ilya Shapiro & Trevor Burrus, Cato Institute

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