“Not everything that s[tink]s violates the Constitution,” Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit said in a special concurrence on a Tampa Bar area due process opinion that’s generating #AppellateTwitter buzz. “If ever a case proved the truth of that little nugget, this is it.”
Newsom said he was borrowing a 20-year-old quote from “an insightful (and hilarious) lawyer friend” and using a euphemism to cover his friend’s more colorful vocabulary.
“Because this is a family show, I’ll clean it up a bit,” the judge said.
Newsom used his concurrence to highlight issues while still agreeing with Judge Gerald Tjoflat, who was also joined by Judge Stanley Marcus.
Georgia Court of Appeals Judge Stephen Dillard flagged the ruling for his 15,000 Twitter followers. “I think Judge Kevin Newsom’s latest opinion, a special concurrence, will be of some interest to #AppellateTwitter and many of my law professor friends,” Dillard tweeted after the opinion posted online.
Over the next day or so, the tweet generated kind comments — true to Dillard’s Twitter style — though one complained of too many dashes. Mostly they deemed Newsom’s writing great, impressive and enjoyable, while finding amusement in their own late-night reading preferences.
But first, Tjoflat set the stage.
“The question before us is whether a litigant in this Circuit has a substantive-due-process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance,” Tjoflat wrote. “The answer to that question is a resounding ‘no’—an answer that this Court delivered in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), 24 years ago and has reaffirmed ever since.”
Tjoflat would know, after serving on the court since 1975 — and writing the McKinney opinion.
“We held in McKinney that executive action never gives rise to a substantive-due-process claim unless it infringes on a fundamental right,” Tjoflat said. “A land-use decision is classic executive, rather than legislative, action — action that, at least here, does not implicate a fundamental right under the Constitution.”
The appeal from the Middle District of Florida came in a dispute between Pasco County and Hillcrest Property.
The county ordinance in question aimed “to protect transportation corridors from encroachment” by development, Tjoflat said. When a developer seeks a permit, the county requires a right-of-way dedication as a condition.
Hillcrest Property owned 16.5 vacant acres and applied in 2006 to develop an 83,000-square-foot retail shopping center. In February 2007, the county the dedication of 50 feet for the future expansion of State Road 52 to four lanes. A few months later, the county said it would need an additional 90 feet for a total of 140 feet. The county was to compensate Hillcrest for the additional land but then years later said it was unable to pay, Tjoflat said.
Hillcrest sued the county, alleging violations of the takings clause of the Fifth Amendment, as incorporated by the Fourteenth Amendment. The company also made due process claims under the Fourteenth Amendment.
The trial court granted summary judgment on some of Hillcrest’s claims but not others and enjoined the county from taking the land. The county appealed. “We accordingly vacated the District Court’s order but expressed ‘no view as to the merits of Hillcrest’s pending as-applied substantive due process claim,’ ” Tjoflat said. “The litigation continued.”
Now Tjoflat said, “We must decide the one claim that lingers and put this case to rest.” That would be the due process claim. Tjoflat explained why he found it lacking.
“We cannot be clearer on this point: regardless of how arbitrarily or irrationally the County has acted with respect to Hillcrest, Hillcrest has no substantive-due-process claim,” Tjoflat concluded. He reversed the district court’s grant of summary judgment to Hillcrest.
“What happened to Hillcrest here was pretty doggone s[tink]y,” Newsom wrote in his special concurrence, again quoting his old friend mentioned earlier. The county was demanding 4.5 acres, more than a quarter of Hillcrest’s land.
“Over the course of the next few years, the parties continued to haggle, the county continued to deny Hillcrest’s construction permits, and Hillcrest — presumably feeling like it was trapped in some Ayn-Rand-ian nightmare — eventually sued,” Newsom said.
Newsom analyzed constitutional law and prior relevant decisions, saying he went with the majority by a different path.
“To be clear, I think the majority has it exactly right under our existing precedent,” Newsom said. “I’m just not convinced that our precedent has it exactly right.”
Hillcrest was represented by David Smolker and Ethan Loeb of Smolker Bartlett Loeb Hinds & Thompson in Tampa.
The county was represented by Donald Hemke and H. Raymond Allen II of Carlton Fields in Tampa.
The lawyers did not respond by deadlines to requests for comment.
The case is Hillcrest Property v. Pasco County, No. 17-14789.