UNITED STATES SUPREME COURT
Lingle vs Chevron
A Sighting from The Catbird Seat
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A Shocking US Supreme Court Case
Illegitimate Government
Summary: On May 25 and with little or no press coverage, the Supreme Court delivered a huge blow to freedom. Citizens are no longer entitled to reasonable Due Process requirements for property right cases.
The case, Lingle vs. Chevron fosters Sustainable Development policies.. The high court in this unanimous decision can no longer be said to be a protector of unalienable rights but instead has effectively adopted a political - economic system where rights are granted and rescinded by ruling edict. Saving the Republic will require an increasing public exposure of how the transformation of America is occurring. Apparently, the high court will not stand in the way of the globalist scheme to withdraw American's freedom. The court has sanctioned, by this decision, the nation's transformation of the economy from free enterprise to public/private partnerships. In doing that the court has abandoned Natural Law at its core.
In this review, Attorney Ronald A. Zumbrun, founder of the Pacific Legal Foundation and now of the Zumbrun law Firm in Sacramento California analyzes the shocking decision.
Full Text: Originally printed in THE DAILY RECORDER Monday, June 13, 2005 Official Newspaper for the City of Sacramento
PRIVATE PROPERTY'S STATUS OF A `POOR RELATION '
By Ronald A . Zumbrun*
Chief Justice William Rehnquist's opinion in Dolan v. City of Tigard, (1994) 512 U.S. 374 stated "[w]e see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to the status of a poor relation." Apparently a lot has changed since 1994 . While the Supreme Court looks to protect lap dancing as "speech" and increase criminal rights under the Fourth Amendment, private property rights, explicitly laid out as sacrosanct in the Fifth Amendment, are apparently undeserving of the same protection.
A sweeping change to Fifth Amendment jurisprudence was made May 23, 2005, but you might not have heard about it because almost no one seemed to notice. The U.S. Supreme Court's decision in Lingle, Gov. of Hawaii v. Chevron U.S.A., (2005) DJDAR 5868 has far reaching implications that limit an individual's options when challenging repressive environmental, zoning and land use regulations as unconstitutional "takings" under the Fifth Amendment to the Constitution.
In Lingle, the District Court decided that a Hawaii rent control law that capped the amount of rent oil companies could charge their gas station lessees was an invalid way to maintain the viability of independent gasoline dealers or protect consumers from high prices. In reversing the trial and appellate courts, the U .S. Supreme Court brashly plucked a major weapon from the hands of property owners who have had their land taken or severely regulated by the government.
The Hawaii state legislature passed a law in 1997, capping the amount of rent oil refiners could charge the retailers leasing their service stations . The legislature, apparently concerned that the state has only two oil refiners and a shrinking number of independent gas station dealers, tried to prop up the independent dealers by imposing a ceiling on rent. According to the state Attorney General Mark Bennett, this action was "designed to prevent the oil companies from increasing rents to drive independent dealers out of business ." The problem is, of course, that the rent control law, as with all government-imposed price controls, had the opposite effect on the free market . The trial and appellate courts essentially found that capping rents means capping profits, which , in. turn, discourages investment in gas station operations, leading to a scarcity of independent gas stations . In other words, the state law would make the problem worse instead of better.
Faced with a similar situation in Agins v. City of Tiburon, (1980) 447 U.S. 255, the Supreme Court there ruled that the Fifth Amendment's Takings Clause is violated by a land use regulation that does not substantially advance legitimate state interests, or denies a landowner the economically viable use of his land . The District Court, applying this test to the Lingle case, found that the law did not substantially advance the purported state interests because the regulations would not actually reduce lessee costs or retail prices, and invalidated the law pursuant to Agins.
Chevron made the "substantially advances" argument the centerpiece of its constitutional challenge to the rent control law, arguing that under Agins, the court should listen to economic experts and decide whether the rent control law "substantially advanced" a legitimate state interest. Because the law would actually have the opposite effect of its stated objective, the rent cap would "effect an uncompensated taking in violation of the Fifth and Fourteenth Amendments ."
As mentioned above, the District Court agreed with Chevron and struck down the law as unconstitutional. The Ninth Circuit initially vacated the decision, finding that the lower court had used the correct legal standard, but remanded the case for a finding of whether the law would actually benefit consumers . After finding the statute unconstitutional a second time, the lower court expressly rejected the state's argument that courts should not use such a stringent standard when scrutinizing economic regulations .
After the defeat, Attorney General Bennett scoffed that "intrusive review of state legislation by federal courts threatens principles of democratic government and federalism." Translation: We, the agents of government, don't want courts looking too closely at the laws we pass and how they may really impact constitutionally guaranteed rights.
The Supreme Court granted certiorari, viewing Lingle as a vehicle to correct what it thought was a mistake, pitting the Takings Clause against the means-ends test found in the "substantially advances" prong in Agins. The Court stated that the "substantially advances" portion of the Agins test "prescribes an inquiry in the nature of a due process, not a takings, test, and that it has no proper place in our takings jurisprudence."
Justice O'Connor stated that "we have long eschewed [rejected] such heightened
scrutiny when addressing substantive due process challenges to government
regulation" and the opinion's grant of "deference to legislative judgments" with
respect to government property regulations conflicts with Justice O'Connor's
claim that the Court's decision "does not disturb any of our prior holdings ." Since
1980, the "heightened scrutiny" that has been applied to government regulations
on private property, expressly rejected by the Court in Lingle, required the court
to inquire into the legitimacy of the , government's actions and motives in
enacting the legislation before the regulation will be allowed to stand . The burden
of proof was on the government . Now, it is on the property owner claiming a
violation of the Due Process Clause .
Justice Rehnquist's statement in Dolan has apparently been forgotten . The opinion makes clear that the new low level of scrutiny renders any Due Process challenge in this area essentially worthless. As stated by the Court, a regulation will only be invalidated if it "fails to serve any legitimate governmental objective" or if it is "so arbitrary or irrational that it runs afoul of the Due Process Clause ."
The government may now take our property so long as. it does not deprive us of all economically beneficial use of our land (Lucas v . South Carolina Coastal Council, (1992) 505 U .S. 1003; deprive us of enough economic value to raise to the level of a compensable taking (Penn Central Transp.Co. v. New York City, (1978) 438 U.S. 104 ; physically invade or directly appropriate all or a portion of our property (Loretto v. Teleprompter Manhattan CATV Corp ., (1982) 458 U.S. 419; or exact concessions or dedications without an "essential nexus" or a "rough proportionality" between the degree of the exaction and the impacts on the use of our land (Nollan v. California Coastal Commission, (1987) 483 U.S. 825, and Dolan v. City of Tigard, (1994) 512 U.S. 374).
A kernel of hope for property rights can be found in the Court's decision . The
landmark holdings of Nollan and Dolan, cases involving individualized land use
decisions, remain untouched. "[T]hese cases involve a special application of the
doctrine of `un-constitutional conditions,' which provides that the government may
not require a person to give up a constitutional right here the right to receive just
compensation when property is taken for a public use—in exchange for a
discretionary benefit conferred by the government where the benefit has little or
no relationship to the property." Such adjudicative decisions will be invalidated if
the government exacts property or conditions development in the absence of a
"nexus" between the property use and the discretionary benefit.
Lingle is the first of three important property rights cases the court will decide this term . On the heels of Lingle are Kelo v. City of New London, 268 Conn. 1 (2004) . (cert. granted 125 S . Ct. 27 (2005), addressing the question of whether the Fifth Amendment protects individuals from government taking their property for the sole purpose of increasing tax revenues and improving the local economy), and San Remo Hotel v. City and County of San Francisco, (2004) 364 F .3d 1088 (cert. granted 125 S . Ct. 685 (2004) deciding federal jurisdiction and whether forcing residential hotels who convert rooms to permanent tourist hotel use to provide replacement housing or pay a fee to the City constitutes a taking) . It is troubling to see such a narrowing of what began as the untouchable area of private property rights .
In this way, Lingle is likely signaling a fundamental change to review burdens on property rights using the. deferential "rational basis" test where the court will not second-guess or scrutinize the government regulation so long as it is not arbitrary or irrational. If so, then Justice Rehnquist got it wrong when he said that personal rights under the Takings Clause are not relegated to the status of a "poor relation" in comparison to First or Fourth Amendment rights. To be consistent with prior holdings and conform to constitutional muster, the Court should review property regulations in a due process challenge under some form of heightened scrutiny. The purpose of enumerating rights in the Constitution was to remove them from the reach of the government or whims of the majority; respect was to be given to the people' s decisions on all other matters.
Deference to legislative decisions where the Constitution is silent is one thing, and letting mob rule trample constitutional protections with hardly any review at all is quite another.
*Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm specializing in land use and environmental law. Zumbrun's column appears in the Daily Recorder on the second Monday of each month. G. Braiden Chadwick of the Zumbrun Law Firm assisted in preparing this article. Mr. Zumbrun may be contacted at zfirm@zumbrunlaw.com .
April 22, 2008, 00:02:21 GMT
A Shocking US Supreme Court Case
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www.kycbs.net/Lingle-vs-Chevron-Shocking-Decision.mht
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SUPREME COURT OF THE UNITED STATES
No. 04-163, Lingle, Governor of Hawaii, et al. v. Chevron U. S. A. Inc.
Argued February 22, 2005 Mark J. Bennett, Attorney General of Hawaii, argued the cause for petitioners. With him on the briefs were Michael L. Meaney, Deputy Attorney General, Seth P. Waxman, Paul R. Q. Wolfson, Robert G. Dreher, and John D. Echeverria.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Malcolm L. Stewart, Mark B. Stern, and Sharon Swingle.
Craig E. Stewart argued the cause for respondent. With him on the brief were Donald B. Ayer, Michael S. Fried, and Louis K. Fisher.
Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, and John J. Sipos, Assistant Attorney General, by Bill Lockyer, Attorney General of California, Manuel Medeiros, State Solicitor General, Thomas Greene, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy Attorney General, by William Vázquez Irizarry, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, Fiti Sunia of American Samoa, Terry Goddard of Arizona, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Douglas B. Moylan of Guam, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Jim Hood of Mississippi, Mike McGrath of Montana, Peter C. Harvey of New Jersey, Pamela Brown of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Gerald J. Pappert of Pennsylvania, Patrick Lynch of Rhode Island, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine O. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the American Planning Association by Edward J. Sullivan; for the League of California Cities by Andrew W. Schwartz; for the National Conference of State Legislatures et al. by Richard Ruda, Timothy J. Dowling, and Jason C. Rylander; and for the Service Station Dealers of America by Peter H. Gunst. Briefs of amici curiae urging affirmance were filed for the Action Apartment Association, Inc., by Rosario Perry; for the Cato Institute by Richard A. Epstein; for Equity Lifestyle Properties, Inc., et al. by David J. Bradford, David W. DeBruin, and Terri L. Mascherin; for Manufactured Housing Communities of Arizona, Inc., by Michael A. Parham; for the National Association of Home Builders by Michael M. Berger and Duane J. Desiderio; for the Pacific Legal Foundation et al. by R. S. Radford and Nancie G. Marzulla; for the Small Property Owners of San Francisco Institute et al. by Paul F. Utrecht; and for Charles W. Coupe et al. by Kenneth R. Kupchak and Robert H. Thomas.
www.kycbs.net/Lingle-vs-Chevron.mht
March 10, 2008
Replacing top judge is Lingle’s jurisdiction
Gov. Lingle will pick the next chief justice unless
the people alter the Constitution
By Ken Kobayashi, Star-Bulletin
Gov. Linda Lingle says she wants the next chief justice of the Hawaii Supreme Court to be a hard-working legal scholar who will not legislate from the bench.
Candidates would not be favored if they were prosecutors, "but it wouldn't hurt their chances, either," the Republican governor said in a recent interview with the Star-Bulletin.
Although Attorney General Mark Bennett has been mentioned in legal circles as a top contender, the governor said it is too early to mention any names.
But in explaining the qualities she would like to see in judges, Lingle made clear that she believes they should interpret laws and leave legislation to elected officials.
Her remarks suggest that her appointment of the state's next chief justice could be monumental for the five-member high court. Known for a long tradition of rendering "activist" decisions, the court has been hailed by civil rights advocates but criticized by others as going beyond reviewing and applying the laws.
Lingle's appointment would be the first time that a Republican governor would name a chief justice in more than 40 years. Democratic Gov. John Burns appointed William Richardson in 1966, and Democratic governors appointed the next two: Herman Lum and the current chief justice, Ronald Moon.
The only way Lingle would be prevented from making the appointment is if state lawmakers place on this fall's ballot -- and voters approve -- a proposed constitutional amendment to lift the mandatory retirement for judges who turn 70.
Unless the state Constitution is amended, Moon must retire when he turns 70 on Sept. 4, 2010, about three months before Lingle's term expires.
The state Senate approved a controversial measure last week that raises the mandatory retirement age to 80, and sent the proposal to the state House. But key senators acknowledge that it will be difficult for the amendment to pass because voters rejected a similar proposal in 2006 that eliminated the mandatory retirement provision. Voters rejected the amendment by 80,000 votes, 58 percent to 35 percent.
"It's an uphill battle," said Sen. Brian Taniguchi, Senate judiciary chairman. "I'm not going to die if the bill dies."
Senate President Colleen Hanabusa agreed with the prognosis. "I'm not sure it will make it out of the Legislature because we just put it on the ballot," she said.
Taniguchi maintained that he views the proposal as a civil rights issue against age discrimination and a "compromise" by retaining the retirement age but raising it to 80.
Opponents, including Lingle, contend the measure is aimed at preventing her from naming the next chief justice.
Bennett and City Prosecutor Peter Carlisle, who opposed the 2006 proposal, submitted testimony in opposition to the current measure before Taniguchi's committee last month.
The proposal's supporters include the Hawaii Government Employees Association and the Japanese American Citizens League.
Republican Sen. Fred Hemmings, who voted against the measure last week, said in an interview that the proposal was "petty politics at its worst."
"I think they (Democrats) will try to do whatever they can to put it on the ballot," he said.
Taniguchi said he believes Moon is doing an "all-right job," but said the motivation behind the measure is not to keep him as chief justice. The senator noted that Moon was a Republican before he got to the bench.
BETS ARE ON BENNETT
The speculation that Bennett will be Lingle's choice has been fueled by his role as a trusted adviser to the governor. In addition, his was one of three names Lingle submitted to the White House for a lifetime tenure as a U.S. district judge here. In 2005, President Bush chose Michael Seabright, now a federal judge, from the list.
The speculation prompted Taniguchi to ask Bennett at last month's hearing about the chief justice's job.
In an interview, Bennett gave the same answer he gave to the senator: If the job somehow opened up now, he would not apply for it.
"My plans right now are, when I'm done as attorney general, to return to private practice and/or teach," he said. "But I would not even begin to speculate about what my feelings might be in two years."
Lingle's appointment would be subject to Senate approval. The Democratic-dominated Senate has rejected some of her appointments, including Ted Hong to the Circuit Court and Randal Lee to the Intermediate Court of Appeals.
But if Lingle gets the names for Moon's replacement early in 2010 and her appointment is rejected, she would be able to name another person from a list of four to six names submitted by the Judicial Selection Commission.
If the Senate rejects all of her choices, the commission would chose the chief justice from its list, according to the state Constitution. The commission's selection would not be subject to Senate approval.
Hanabusa said "it's almost positive" that Bennett will be appointed by the governor. She said one of the criticisms is that he is sometimes almost "overzealous" in representing the administration over the legislative and judicial branches. Hanabusa cited his efforts against the mandatory retirement amendment that was placed before the voters by the Legislature in 2006.
"I think people are watching because they have concerns," she said.
Hemmings, however, said he is a "big fan" of Bennett and applauded him for his work with prosecutors and police in pushing for legislation. "It's hard to deny his success and record," Hemmings said.
Another name mentioned is Mark Recktenwald, a former assistant U.S. attorney who was Lingle's director of the Department of Commerce and Consumer Affairs before the governor named him chief judge of the Intermediate Court of Appeals last year.
Hanabusa said Recktenwald is considered a good administrator and would have support, but indicated senators might wait to see how he does as the chief appeals court judge.
Recktenwald said he has been chief judge for only about 10 months and is focused on doing a good job. "I haven't given consideration to anything else," he said.
SAME-SEX SHUTDOWN
Lingle's appointment would oversee a Hawaii Supreme Court whose history includes expanding the public's rights to beaches and surface waters; recognizing the rights of native Hawaiians go onto private property for traditional religious and food gathering practices; and striking down laws the court believed infringed on the rights of criminal defendants.
In its landmark and highly controversial case, the high court issued a 1993 decision that paved the way for same-sex marriages in Hawaii. That ruling prompted state lawmakers to complain that the court was creating new law, and it led to a constitutional amendment that essentially negated the ruling.
"I continue to try to reflect what the public would like to see in a judiciary, and that is a judiciary that really interprets the laws that elected people pass rather than try to make law as a judge from the bench," Lingle said.
Lingle notes that unlike the three previous Democratic governors, she is not a lawyer who might be familiar with judicial candidates. She suggests that helps bring a fresh prospective to her judicial appointments.
Because her appointments are for 10-year terms, the judges Lingle has selected -- and will select -- will remain on the bench for years after she leaves office.
Lingle said she wants her legacy to be that the courts will be a place where people "get a fair shake."
"I think the very highest achievement you can have for a judiciary is that the average citizen of a state or of a country will get fair treatment no matter who they are," she said.
http://starbulletin.com/2008/03/10/news/story03.html
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Additional Internet References:
Documents, News Articles and Related Links
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http://starbulletin.com/2006/04/11/news/story03.html
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www.ftc.gov/opa/2001/09/chevtex.htm *
www.chevron.com/news/press/2002/2002-02-13.asp *
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http://starbulletin.com/2002/12/10/news/story5.html *
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www.state.hi.us/ag/press_releases/news_2004/news_062204.htm *
www.usdoj.gov/osg/briefs/2004/3mer/1ami/2004-0163.mer.ami.html *
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Last updated April 21, 2008, by The Catbird