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Justice Scalia concurring
SUPREME COURT OF THE UNITED STATES
No. 99—2047
ANTHONY PALAZZOLO, PETITIONER
v.
RHODE ISLAND et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND
[June 28, 2001]
Justice Scalia, concurring.
I write separately to make clear that my
understanding of how the issues discussed in Part II—B of the Court’s
opinion must be considered on remand is not Justice O’Connor’s.
The principle that underlies her separate
concurrence is that it may in some (unspecified) circumstances be “[un]fai[r],”
and produce unacceptable “windfalls,” to allow a subsequent purchaser
to nullify an unconstitutional partial taking (though, inexplicably, not
an unconstitutional total taking) by the government. Ante, at 4.
The polar horrible, presumably, is the situation in which a sharp real
estate developer, realizing (or indeed, simply gambling on) the
unconstitutional excessiveness of a development restriction that a naï ;ve
landowner assumes to be valid, purchases property at what it would be
worth subject to the restriction, and then develops it to its full value
(or resells it at its full value) after getting the unconstitutional
restriction invalidated.
This can, I suppose, be called a
windfall–though it is not much different from the windfalls that occur
every day at stock exchanges or antique auctions, where the knowledgeable
(or the venturesome) profit at the expense of the ignorant (or the risk
averse). There is something to be said (though in my view not much) for
pursuing abstract “fairness” by requiring part or all of that windfall
to be returned to the naï ;ve original owner, who presumably is the
“rightful” owner of it. But there is nothing to be said for giving it
instead to the government–which not only did not lose something
it owned, but is both the cause of the miscarriage of
“fairness” and the only one of the three parties involved in the
miscarriage (government, naï ;ve original owner, and sharp real estate
developer) which acted unlawfully–indeed unconstitutionally.
Justice O’Connor would eliminate the windfall by giving the malefactor
the benefit of its malefaction. It is rather like eliminating the windfall
that accrued to a purchaser who bought property at a bargain rate from a
thief clothed with the indicia of title, by making him turn over the
“unjust” profit to the thief.
In my view, the fact that a restriction existed
at the time the purchaser took title (other than a restriction forming
part of the “background principles of the State’s law of property and
nuisance,” Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1029 (1992)) should have no bearing upon the determination
of whether the restriction is so substantial as to constitute a taking.
The “investment-backed expectations” that the law will take into
account do not include the assumed validity of a restriction that in fact
deprives property of so much of its value as to be unconstitutional. Which
is to say that a Penn Central taking, see Penn Central Transp.
Co. v. New York City, 438
U.S. 104 (1978), no less than a total taking, is not absolved by the
transfer of title.
Notes
*. Contrary to Justice O’Connor’s
assertion, post, at 4, n., my contention of governmental wrongdoing
does not assume that the government exceeded its police powers by ignoring
the “public use” requirement of the Takings Clause, see Hawaii
Housing Authority v. Midkiff, 467
U.S. 229, 240 (1984). It is wrong for the government to take property,
even for public use, without tendering just compensation.
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