Destin may be Sotomayor's first test: Analysts think new justice would vote against private property owners in beach restoration case

A new face on the Supreme Court may help settle an old but simmering issue that has divided Destin for years.

With the city about to become ground zero for beach restoration battles nationwide, The Log contacted legal experts and lobbyist groups to ask where Sonia Sotomayor would stand on the case and whether her nomination could swing the decision.

Robert Thomas, a land use and appellate lawyer based in Honolulu, Hawaii, said when the Destin beach restoration case goes before the high court sometime this winter, it will present an opportunity to find out Sotomayor’s judicial philosophy — especially after a largely tight-lipped performance at her Senate nomination hearings last month.

“This will be one of the first cases that she hears,” he said. “All eyes will be on her, not just on the result.”

The swing vote?
Sotomayor, who was confirmed by the Senate on Thursday, has served on the U.S. Court of Appeals for the Second Circuit in New York since President Bill Clinton elevated her to the post in 1998.

And while Sotomayor is “a stickler for fair process,” that court hasn’t been “terribly pro-property owner,” Thomas said.

Thomas said that at its core, the Destin case, filed by Stop the Beach Renourishment Inc., is about judicial taking.

The group claimed that Walton County’s 2006 beach restoration project deprived the owners of their property rights, and Thomas said the Florida Supreme Court’s 2008 decision to uphold that project “did not follow its own 100-year precedent and radically shifted Florida law and didn’t tell anyone.”

“A lot of objections to judges is that they shouldn’t legislate from the bench,” he said. “This case may give us some opportunity to find out what her thoughts are on that, because if courts aren’t legislating and aren’t making law, then government has to pay compensation to these owners.”

Thomas, who has analyzed the case on his Web site, inversecondemnation.com, said guessing how a Supreme Court judge will side in a given case is “almost a fool’s errand.”

“But if I was a betting man I’d put slight odds on her voting for the state on this one,” he said, indicating a vote against the property owners. “But it would be almost even money,” he said, adding that Sotomayor could even be the swing vote in a 5-4 decision.

‘A realistic chance’
While admitting that it is “complete speculation,” Benjamin Barros, an associate professor of law at Widener University School of Law, was also up to the task of Supreme Court crystal ball gazing.

He wrote an analysis of the beach restoration case on his “PropertyProf Blog” complete with a photo of the Destin beaches that have become the battleground over public and private property rights.

Barros expects only a “subtle impact” from Sotomayor’s nomination to the bench — one that isn’t likely to alter the ultimate outcome of the case. He said Sotomayor’s views on cases involving “taking issues” are still unclear but appear to put her in the “moderate-liberal mold” of Justices Ruth Bader Ginsburg and Stephen Breyer.

“Prior to the 1980s, liberal justices often sided with the property owner in takings cases. That hasn't happened more recently, so if Sotomayor follows the trend, she could be expected to vote against the property owner in Stop the Beach,” said Barros, who testified before Congress on eminent domain matters in 2005.

“So the impact of adding Sotomayor is that you replace a Justice Souter, who tends to rule against property owners but who might side with property owners in a particular case, with Sotomayor, who can be expected to be even more reliable against property owners.”

But don’t call the case just yet, Barros warns.

He said justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas have supported property owners in the past. Though still new enough to offer some surprises, Samuel Alito and Chief Justice John Roberts, both appointed by George W. Bush, also appear sympathetic to the plight of private property owners.

“The property owners still go into the case having a realistic chance at convincing five justices,” he said.

Partial parties
The American Shore and Beach Preservation Association, which was formed in 1926 to combat beach erosion nationwide, did not weigh in on Sotomayor’s nomination. It also has been mum on Destin’s restoration predicament.

“The government affairs committee is looking at how this will impact other states, but we have not made a decision on what we are going to do,” said Kate Gooderham, executive director of the ASBPA. “In a general overall context, we support beach restoration, but how to handle this particular matter hasn’t been decided.”

But while the ASBPA is sitting on the sidelines for now, critics are drawing the battle lines and they don’t necessarily like what they see with Sotomayor.

“Judge Sotomayor signed on to a 2006 property rights decision, Didden v. Village of Port Chester, about which property rights advocates and, indeed, all Americans, should be seriously concerned,” said Shannon L. Goessling, executive director and chief legal counsel of the Southeastern Legal Foundation.

The foundation has joined forces with the local Save Our Beaches group, which recently resurrected a lawsuit against the city and county over its 20-foot beach access policy. The foundation maintains that Destin “failed to protect property rights equally among the citizens.”

The foundation’s criticism of Sotomayor goes back to the 2005 Kelo v. City of New London case, where the U.S. Supreme Court held that the government can condemn private property and transfer it to someone else in order to promote “economic development.” In response, the controversial decision led to the enactment of legislation in more than 30 states prohibiting or limiting the use of government “eminent domain” power. Florida passed a 2006 ballot measure amending the Florida Constitution to restrict use of eminent domain.

“Nevertheless, Judge Sotomayor signed off on the Didden decision, which went further in allowing government condemnation of private property when the owners refused to negotiate with the village's designated ‘redevelopment’ developer,” she said. “In fact, her court said the property owners had no grounds on which to bring the constitutional challenge in the first place.”

Based on this decision, Goessling said, Sotomayor is likely to favor government power over constitutional private property rights in future cases.

“She has endorsed the concept that government can determine how, when, and what value private property has and can be used,” she said.

But for all the speculation, all the analysts contacted for this story said only time will truly tell.

“It’s pretty rare that a case gets up to Supreme Court,” said Robert Thomas. “It’s also pretty rare for it to be in your own back yard.”