SAN REMO AND JUSTICE BROWN

Those of you who really want a taste of Justice Janice Brown in action should read her dissent in the California Supreme Court takings case San Remo Hotel v. City and County of San Francisco (27 Cal.4th 643). You can access the opinion for free through the CA Supreme Court page, here. San Remo was a case that involved San Francisco's attempt to preserve affordable low-income housing by requiring owners of hotels that have residential units to obtain a permit before they eliminate those units. The conditions of the permit are that the hotel owner must either replace the old residential units with new ones or pay a fee that will be used to build new low-income residential units. The owners of San Remo hotel paid a fee (over $500,000) under protest and then sued, claiming that their property had been taken without just compensation (and thus that their rights under both the U.S. Constitution and the CA Constitution had been violated).

You might not think that this is a great way to help alleviate a shortage of affordable housing. You might think that it might be a good idea to try to convince the city to find some other method of doing so. (How about raising taxes to provide for low-income housing at the city's expense? Or maybe raising taxes to provide for an effective housing voucher program?) But to me the idea that this kind of regulatory scheme is unconstitutional and subject to being struck down by courts is dangerous because it will effectively hamstring cities and localities as they are trying to allocate burdens and benefits in their attempt to exercise their authority to provide for the "health, safety and welfare" of all their residents.

The CA Supreme Court decided that it should defer to the local authority here, but Justice Brown disagreed and wrote a scathing dissent that contained the following choice lines:

[I]t simply stretches the police power too far to suggest that the City is somehow regulating the use of property for the common advantage when it redistributes wealth by ordering a political minority to dedicate its property to the benefit of another group. The police power can no more be used in this way than it could be used to order a rich man to give a beggar a dime. (702)

See also this account of the oral arguments, where Justice Brown used the word "ransom" (a word that finds its way into her dissent as well, see 693).

This is a really interesting case. Justice Brown has also found her defenders for her position in San Remo (see, for example, Clint Bolick's essay here). I would bet the bottom dollar that the executive branch folks who vet nominations were elated to read her dissent. There is clearly a lot to think about with respect to these kinds of regulation in general. Still, courts should defer to legislative authorities in these kinds of situations. Justice Brown has shown that she would not defer to legislative authorities.

For those of you who still think that she would not have opportunity to write her policy preferences into law should she obtain a federal judgeship, note her approach to the Penn Central case (in which the Supreme Court rejected a challenge to a NYC historic preservation board decision by the owners of Grand Central station, who wanted to plant a multi-story office building on top of the station but were turned down by the board). See 702-3, where Brown argues that she " would not extend the holding of Penn Central beyond its unique factual context." Unremarkable for lawyers, perhaps, but for laypersons this argument means: even though she could save the legislative program with a reference to a valid Supreme Court precedent, were she so inclined, she would exercise her discretion not to do so.