In Citrus County v. Halls River Development, Inc., the Fifth District Court of Appeal ruled that the mere enactment of a statute, ordinance, or other governmental rule or regulation may satisfy the “as applied” requirement of the Bert J. Harris, Jr., Private Property Rights Protection Act if the impact of the statute, ordinance, or other governmental rule or regulation is “readily ascertainable” upon enactment. This ruling effectively negated the plaintiff landowner’s cause of action under the Harris Act by requiring a presuit claim to be asserted within one year from the time the Comprehensive Plan amendment was adopted in 1997, instead of allowing the landowner to assert a presuit claim within one year from the time the applicable Comprehensive Plan amendment was applied to the landowner’s property in 2002.
The court’s ruling contradicts the plain language and intent of the Harris Act, which is to create a separate and distinct cause of action to provide relief (in the form of payment of compensation) when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, inordinately burdens real property.
Florida’s beaches are critical to the State’s economy and pro-vide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) is eroding, with 387 miles of beach (about forty-seven percent) experiencing “critical erosion.” To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA), specifically directing the State to provide for beach restoration and nourishment projects.
The position of Chief Justice of the United States is an enigmatic one. The Chief Justice is the titular head of the highest court in the land, the leader of the institution empowered to say what the law is, even when doing so invalidates the actions of its coordinate branches. Unlike the heads of the other branches or departments, however, the Chief Justice retains relatively little power or responsibility that is not shared by the other members of the Court. Beyond presiding over the Court’s conferences, assigning opinions, and performing administrative and ceremonial duties, the Chief Justice’s core judicial functions are largely indistinguishable from those of the Associate Justices. Nevertheless, close observers of the Court use the identity of the presiding Chief Justice to delineate specific eras and trends in the Court’s history. The Roberts Court is no exception.
John Roberts took office as the Chief Justice of the United States on September 29, 2005. The first five years of the Roberts Court‛ have been eventful, as the Court has welcomed four new members during that period, including Chief Justice Roberts himself. Not surprisingly, the Court has handed down scores of significant decisions, many of which have generated public acclaim, disdain, or both. And the Court has, at times, found itself used as a prop in political debates about the role of courts in American democracy.
Judges at all levels of the state and federal judiciaries are expected to resolve legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations for their decisions. Of course, there are many situations in which the binding legal text is vague, and the applicable law is unhelpful, incomplete, or even contradictory. In those circumstances, judges must, out of necessity, fill in the gaps of the law or simply extend or narrow prior law as best they can.
John G. Roberts, Jr. has now served more than five years as the seventeenth Chief Justice of the United States. He has held that position longer than Harlan Fiske Stone did and for nearly twice as many days as John F. Kennedy was President.
Although Chief Justice Roberts’ judicial opinions, and those of the Court, offer jurisprudence to analyze, it is too early to reach definitive judgments regarding his influence as Chief Justice or his success in that position. Roberts holds an office that, unique among high governmental positions, resists confident real-time assessment.
When Chief Justice John G. Roberts appeared before the Senate Judiciary Committee for his confirmation hearings, he famously remarked: “Judges are like umpires. Umpires don’t make the rules, they apply them.” The comment implies that for a judge there is really no judgment to be exercised, and hence a judge’s personal view is irrelevant.
To date, the Roberts Court has rendered three opinions that utilize empirical data to protect children. These decisions are based on social science research and “common sense” concerning children’s physical and psychological vulnerability to harmful influences, undeveloped moral character, and general tendency to make poor choices. Two opinions involved regulation of speech that may influence children to engage in harmful speech or conduct, and one opinion found that a harsh criminal penalty imposed upon a juvenile violated his Eighth Amendment rights. These opinions could indicate that the Roberts Court will continue to protect children from harmful media influences and unfair penalties based on legislative fact-finding concerning children’s physical and psychological immaturity and unsettled moral character.
Federal preemption of state tort lawsuits (especially products liability and negligence lawsuits) has concerned the Supreme Court in recent decades. Since 1992, the Court has decided at least sixteen cases involving this issue. The Roberts Court alone has handed down six such cases with the two most recent having just been decided in the 2010 term. The large number of cases has spurred discussion of the Roberts Court’s “keen interest in preemption battles.” More important than the number of cases, however, is that the Roberts Court has come to accept a particular view of tort lawsuits in its preemption decisions—one that envisions such lawsuits not as vehicles to redress “wrongs done by private parties to private parties‛ but rather as merely arm[s] of the public regulatory state.” This regulatory view of tort lawsuits may eventually affect the outcome of the Court’s preemption decisions.
The confluence of Justice Stevens’ retirement from the United States Supreme Court and the five-year anniversary of Chief Justice Roberts’ ascension provides an opportunity for a new look at the familiar debate over the relative desirability of rigid rules and contextualized, fact-specific analysis in constitutional cases. In a trio of recent First Amendment cases, the Court has stated and applied, and then retreated from, strict doctrinal rules and the refusal to defer to congressional findings that normally accompany such rules. These cases raise anew the question of the appropriateness of such rules and their durability as meaningful constraints on courts confronting difficult fact patterns. To convert into a question Justice Souter’s defense of such rules: does deciding First Amendment cases based on ‚fairly strict categorical rules‛ really ‚keep[ ] the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said‛?