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Supreme Court Deals Blow to Property Rights

Chief Justice Roberts: “Today’s decision knocks the definition of ‘private property’ loose from its foundation.”

Olivier Douliery - Pool via CNP/NewscomOlivier Douliery - Pool via CNP/NewscomWhen governments issue regulations that undermine the value of property, bureaucrats don't necessarily have to compensate property holders, the Supreme Court ruled Friday.

The court voted 5-3, in Murr V. Wisconsin, a closely watched Fifth Amendment property rights case. The case arose from a dispute over two tiny parcels of land along the St. Croix River in western Wisconsin and morphed into a major property rights case that drew several western states into the debate before the court.

Chief Justice John Roberts, in a scathing dissent, wrote that ruling was a significant blow for property rights and would give greater power to government bureaucrats to pass rules that diminish the value of property without having to compensate property owners under the Firth Amendment's Takings Clause.

"Put simply, today's decision knocks the definition of 'private property' loose from its foundation on stable state law rules," Roberts wrote. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest."

Donna Murr, in a statement provided by the Pacific Legal Foundation, the libertarian law firm that represented the family in the case, said her family was disappointed by the result.

"It is our hope that property owners across the country will learn from our experience and not take their property rights for granted," Murr said. "Although the outcome was not what we had hoped for, we believe our case will demonstrate the importance of taking a stand and protecting property rights through the court system when necessary."

In 2004, Murr and her siblings sought to sell one of two parcels of land that had been in the family for decades. Murr's parents bought the land in the 1960s, built a cabin on one parcel, and left the other parcel undeveloped as a long-term investment.

The family attempted to sell the vacant parcel to pay for renovations to the cabin, but were prevented from doing so by regulations restricting the use of land along rivers like the St. Croix approved by the state in the 1980s, long after the purchase of both lots.

Those regulations effectively gutted the value of the Murrs' property. The property was appraised at $400,000 before the Murrs tried to sell it. When the family came to the county, now the only eligible buyer, the county offered $40,000.

The Murrs filed a lawsuit against the state and county, arguing that they should be compensated for the lost value of the property, arguing the Fifth Amendment of the U.S. Constitution guarantees governments must compensate property owners when land is seized or otherwise made un-useful for public purposes.

To avoid liability in the case, the state and county told the Murrs they could combine the two parcels of land for regulatory purposes. This meant that even though the two pieces of land were separate and the Murr family paid taxes on them separately, the family would be unable to make a takings claim for one of the two parcels.

In short, they could sell both lots together, but not one or the other.

Lower courts agreed with the government interpretation and the Supreme Court on Friday upheld the court rulings.

"Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here," Justice Anthony Kennedy wrote in the majority opinion. "They have not been deprived of all economically beneficial use of their property."

Justices Stephen Breyer, Elena Kagan, Ruth Bader Ginsberg, and Sonia Sotomayor joined Kennedy in the majority opinion, while conservative justices Clarence Thomas and Samuel Alito joined Chief Justice John Roberts' dissent. The Supreme Court's newest member, Justice Neil Gorsuch, did not participate in the case.

The ruling could have implications that go well beyond the 2.5 acres of land in Wisconsin.

Several western states filed amicus briefs in the case on behalf of the Murr family (as did the Reason Foundation, which publishes this blog). Though states like Nevada and Arizona did not have a direct interest in the Murrs' ability to sell their vacant land, they saw the case as having important implications for conflicts over federal lands.

Many state governments own contiguous lots and large bodies of water near areas owned by the federal government (military bases, national parks, etc). If those government bodies are allowed to merge contiguous lots for regulatory purposes, the federal government could impose severe restrictions on state land and wouldn't have to pay consequences, warned Ilya Somin, a professor of law at George Mason University who authored the amicus brief on behalf of those western states.

Writing Friday at The Washington Post about the ruling, Somin said it is "likely to create confusion and uncertainty going forward."

"In at least some cases, today's indeed ruling allows the government to avoid compensating property owners for the taking of their land, merely because they also own the lot next door," he writes. "But the vague nature of the test established by the Court makes it very hard to figure out exactly when that might happen."

With Friday being the 12th anniversary of the infamous decision in Kelo v. New London (in which the Supreme Court upheld an objectionable use of eminent domain), Somin jokes that maybe property rights advocates should hope the court doesn't release any more rulings on June 23.

Roberts, in his dissenting opinion, stressed that the court's ruling in Murr could allow for "ad hoc, case-specific consideration" of takings claims, thus undermining constitutional protections that should be consistent and predictable for property owners. Meaning more leeway for governments to do what Wisconsin did to the Murrs.

"The result is that the government's goals shape the playing field," Roberts wrote, "even before the contest over whether the challenged regulation goes 'too far' even gets underway."

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  • Citizen X - #6||

    Christ, what assholes.

  • ||

    Yes I think the Murr siblings were screwed by their parents.

    This is not a very good article, nor was its predecessor in March.

    The Murr siblings did not acquire the property until 1994 / 1995; long after the regulations regarding the area of 'developable acreage' was passed. According to the briefing docs the total developable acreage of both plats is less than 1 acre.

    IMHO the outfit that appraised this half-plot operated in the housing boom prior to the 2008 'unpleasantness'. half an acre $400,000?

    I am sorry but half the article discuss the implications to Federal Land!. This is not Federal Land it is county land.

    I think the siblings need to review their long term investment options - which may involve going after the 'Appraisers'.

  • Sevo||

    So when the government screws you, go sue somebody? Thanks a bunch.

  • Fuck you, Shikha (Nunya)||

    Find the nearest wood chipper. Fall in. Someone will be along shortly to accidentally start it.

  • Finrod||

    What he said. We're already at our quota for big-government apologists.

  • JunkScienceIsJunk||

    The ironic part of your criticism is that the Murr's were seeking legal protection from big government to secure their ownership claim and to provide the framework (and protection) by which they can profit from the land. Since that was not allowed, they were seeking reimbursement from the taxpayer to profit from their poor investment.

    These are all very real issues that libertarians need to reconcile. This is one reason why anarchists have had minarchists by the short and curlies for a very, very long time.

  • PurityDiluting||

    "It is our hope that property owners across the country will learn from our experience and not take their property rights for granted," Murr said. "Although the outcome was not what we had hoped for, we believe our case will demonstrate the importance of taking a stand and protecting property rights through the court system when necessary."

    Huh? How did using the court system to protect property rights work out for Murr?
    Go ahead, take a stand. The govt will take the property.

  • Fuck you, Shikha (Nunya)||

    I think what they meant was to know explicitly and empirically know exactly how you will be screwed.

  • Scarecrow Repair & Chippering||

    I see. It's ok to take one parcel if the same owner owns a neighboring parcel.

    So a cop killing a kid is ok if there are surviving siblings?

  • Citizen X - #6||

    Yep. Have you never read Reason before?

  • Elias Fakaname||

    Even better, some cops might let you choose which one they execute.....er.......shoot.

  • Fuck you, Shikha (Nunya)||

    Unlike dogs. For those they choose. Your only hope its they don't choose all.

  • Enjoy Every Sandwich||

    I'm not surprised given the Left's contemptuous attitude toward private property.

  • some guy||

    I mean, the Murr's already had a house, so it's not like they needed that other property.

  • NotAnotherSkippy||

    Well they're no bernie sanders.

  • Fuck you, Shikha (Nunya)||

    How many parcels of land do you need? As many as I tell you. Me, at least three. And an Audi.

  • Scarecrow Repair & Chippering||

    Even the most convoluted argument, that the owners still have some property and thus the taken property is inconsequential, runs up against the individuality os the parcels -- if the owner wants to sell the stolen parcel, its value has been destroyed; if they instead sell the remaining parcel, then does the taken parcel revert to them?

    What a bunch of shallow thinking maroons.

    It amazes me that Roberts was against the taking. It seems to be right up his redefinition alley.

  • NotAnotherSkippy||

    It's just a tax.

  • Dillinger||

    >>>It amazes me that Roberts was against the taking

    word. "Roberts" and "scathing dissent" aren't often in the same paragraph.

  • This Machine Chips Fascists||

    It's easy when you're not the 5th vote.

  • BYODB||


    Justice Anthony Kennedy wrote in the majority opinion. "They have not been deprived of all economically beneficial use of their property."


    Look, we didn't completely screw you guys over so you'll just have to kindly fuck off. Without recourse, of course.


    Is there anything good that has ever come out of a Kennedy? Don't answer that!

  • AlmightyJB||

    Dead Kennedys

  • BYODB||

    God damn I hated their lead singers voice. He sounded like a whiny retard. I honestly never saw the appeal.

    Give me NOFX 'The Decline' any day.

  • BestUsedCarSales||

    Man, Jello Biafra is one of the best punk singers ever. Even his spoken word albums are entertaining. Though, that has to do with them being rambling and incoherent leftists screeds.

  • Unicorn Abattoir||

    Prairie Home Invasion, which he did with Mojo Nixon, is a great one. Especially their remake of Phil Ochs' "Love Me I'm a Liberal"

  • ||

    He lost me when he started campaigning for Jerry Brown, but back in the 80s he was generally someone worth paying attention to.

  • Elias Fakaname||

    One thing I always appreciated about Jello Biafra was his utter contempt,to for the privileged armchair leftists on college campuses. Which they showcased in 'Holiday in Campbodia'.

  • ToCa81||

    I fucking love The Decline. Such a great concept and totally underrated. I think a lot of NOFX's fan base didn't know what to think of it, because it was so out of character for them at the time.

    I also happen to like Biafra. He may be a lunatic, but his vocals on Plastic Surgery Disasters and In God We Trust, Inc. were fantastic.

  • Dillinger||

    my favorite Rawhide.

  • Dillinger||

    don't forget to pack a wife...

  • ||

    I'm glad they ruled that way, actually.

    Why, just last night I emptied the bank vault at my local Wells Fargo, but I left a buck behind, so no harm, no foul, right?

  • Citizen X - #6||

    Justice Anthony Kennedy wrote in the majority opinion. "They have not been deprived of all economically beneficial use of their property."

    That's something an asshole would say.

  • some guy||

    He sounds like any other mobster/highwayman/warlord. "Be happy we left you with something"

  • mondo_cane||

    And the asshole said it.

  • Longtobefree||

    I have been waiting since the sixties for the revolution - still waiting.

  • some guy||

    Won't happen. The rabble only rouse when they run out of food, security or entertainment. They couldn't care less about esoteric concepts like "natural rights".

  • Fuck you, Shikha (Nunya)||

    Fat, happy, and entertained, the only three things required for acquiescence. Agreed.

  • Eeyore||

    Justice wrote in the majority opinion. "The woman was not raped, because only the tip was used against her involuntarily."

  • The Last American Hero||

    More like "The woman was not raped, because the perp only stuck it in her ass".

  • Longtobefree||

    That's alleged perp.

  • Dana||

    Falls exactly along the lines of Constituion vs. living constitution. Please tell me Kennedy is retiring. Even Gorsuch's vote would not have stopped this insanity.

  • Adam330||

    The next step of this will be to declare there's no taking if you own land somewhere else. After all, that property still has value.

  • pan fried wylie||

    *there's no taking if you could theoretically buy land somewhere else

  • Adam330||

    That will be the opinion after that.

  • Fuck you, Shikha (Nunya)||

    And the one after that is you can't own land.

  • Baelzar||

    Just one more. One. More. We've got 3 and a half years....one is 84, one is 80, one is 78...

  • This Machine Chips Fascists||

    Justice Sessions

  • Set Us Up The Chipper||

    Fuck that...the evil elf just needs to be out of an position that has any sort of power.

  • creech||

    Typical b.s. My employer bought a ten acre parcel that was permitted to be bifurcated into two five acre parcels which was the minimum for building something. So he built the factory on one five acre lot and later tried to sell the other to an office developer. No can do - the state highway dudes sliced off .2 acre to widen their road, leaving the other lot too small to develop under the code. No go on the variance either because the Planning Commission reasoned there were plenty of other fully five acre lots in the area that the builder could buy and develop. Now my employer is stuck with land that cannot be used except by him should he ever want to expand the factory.

  • Bubba Jones||

    But he could develop his own office complex on the lot?

  • Fuck you, Shikha (Nunya)||

    Who did he piss off?

  • Longtobefree||

    He should exercise his constitutional right to donate to a politician's campaign.

  • Arcxjo||

    Some hacker needs to drain Anthony Kennedy's bank account of all but a penny.

    By his own logic, he won't have been robbed.

  • Fuck you, Shikha (Nunya)||

    And we've already been told that hacking isn't illegal if the right person does it.

  • Anarchist||

    Thanks to "Justice" Roberts my private insurance has almost doubled in price. He didn't seem to have any qualms over that.

  • Dave Burton||

  • Diane Reynolds (Paul.)||

    In at least some cases, today's indeed ruling allows the government to avoid compensating property owners for the taking of their land, merely because they also own the lot next door," he writes. "But the vague nature of the test established by the Court makes it very hard to figure out exactly when that might happen."

    All this 'adjacent lot' stuff just makes it sound complicated. It's not.

    We believe there are rural areas that are critical habitat. These residents live and own property in that critical area. You can't develop or build anything on your property. Case closed.

  • retiredfire||

    So, Constitutional compensation isn't required if the taking is "critical"?
    Don't recall seeing that exemption in the document.
    Since the Constitution is supposed to be a check on government, and it turns out to be government deciding what is "critical", then it seems like compensation is required.
    If it is so important to create "critical" areas, they should have to pay for that which they so designate.
    In fact, any area government decides shall be designated as "critical", should have to be purchased, at full market value, not just to pay compensation when the real owner is informed that they can't fully use their own land.

  • The Metonymy||

    I thought the 5th Amendment protected you from self-incrimination. What fuckery does it have to do with land valuation? Was the property taxed at a higher valuation?

  • Bob Armstrong||

    Read the last line :

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  • Get To Da Chippah||

    Well the Murrs were offered just forty grand for the lot. So that makes it constitutional.

    .depr

  • Sevo||

    The Metonymy|6.23.17 @ 6:22PM|#
    "I thought the 5th Amendment protected you from self-incrimination. What fuckery does it have to do with land valuation? Was the property taxed at a higher valuation?"

    Why is someone so ignorant posting here?

  • Fuck you, Shikha (Nunya)||

    Nature then. Educate them. Don't belittle.

  • Bruce 6225||

    Isn't REASON getting sucked into the Frankfurt School with it's anti conservatism? It's easy to learn 'critical theory' and use it's destruction for one's gain. How about focusing on individual rights vs collectivism? There's a reason for a social system to worry about all the things that swirl about in the 'special rights' world. A-sexual norms make a nation weaker. Doesn't mean the individuals haven't a right to go about such business.

  • ThomasD||

    "They have not been deprived of all economically beneficial use of their property."

    So as long as I didn't deprive Kennedy of all of his oxygen that would be ok, right?

  • fdog50||

    "Ad hoc, case specific consideration of taking claims that undermine constitutional protections that should be consistent and predictable" ? Sounds exactly like what lawyers want. A big legal battle every time. It will keep them all driving BMWs and Porsches.

  • Fuck you, Shikha (Nunya)||

    No, no, no. It's judicial "deference". Or, a way to avoid having conviction. Or a way to only slowly erode rights. Frog in a pot and all that.

  • markuzick||

    Land is a natural resource and as such there is no natural right to it's exclusive ownership, only rights established in it's use that may not be infringed. Unused land belongs to no one, but is given with an unjust title as a privilege by the state whose rulers believe they own everything and everyone, the "landlords" being really just tenants of the state who gain control of land, whether justly by use or unjustly by decree, in exchange for taxes (rent) or political favors.
    This case is about unused land; and analogous to the case of taxi medallions, when your "property" consists of an unjust monopoly granted by arbitrary decree, you ought not complain when you lose it by another arbitrary decree - no matter what you paid for the unjust monopoly privilege.

  • Sevo||

    markuzick|6.23.17 @ 10:26PM|#
    "Land is a natural resource and as such there is no natural right to it's exclusive ownership,"

    Fuck off, slaver,

  • markuzick||

    @ Sevo : So you are a statist who believes he can own people; who believes property rights emanate from state privilege; that anyone who questions the legitimacy of the state is a slaver? You have much in common with the imbecile I saw on the news crying out for "liberty!" as he was dragged away for rioting in defense of Obamacare; or the taxi drivers protecting their "property rights" from ride sharing.

  • Fuck you, Shikha (Nunya)||

    No, you are an asshat trying to redefine unused.

  • mortiscrum||

    Your definition of ownership is problematic, I think. What do you mean by "usage?" If I have a 20 acre parcel with a house on one corner, am I "using" the rest? Under your description it seems like someone could come along and easily claim that I'm not using the remaining 19.5 acres and they're taking it for a new subdivision.

    If the definition of ownership isn't something approaching "I can do what I want with it, including nothing," owning something loses it's power.

  • JunkScienceIsJunk||

    It's not his definition. Many libertarian scholars have a pretty well-established definition of "usage" when making a similar argument. There have been books upon books written by libertarians in support of or in opposition to his very first sentence: "Land is a natural resource and as such there is no natural right to it's exclusive ownership..."

    Regardless of which side of the issue you're on, you CAN'T cite individualism and wash your hands of it. Both sides of the issue require consent of the community in some shape or form -- either to acknowledge and protect your so-called "ownership" of a scarce natural resource, or to govern the parcel of land.

  • No Yards Penalty||

    He sounds like White Indian.

  • Fuck you, Shikha (Nunya)||

    Then give me your humble abode, fuck face. Try reading your Marx bullshit again, but this time try using logic.

  • markuzick||

    Why would I give my property to a fool?...because I feel sorry for you? You're so indoctrinated that you believe that property can only exist by fiat of the state. Things can only be transformed into property by the actions of people - property is created by using and or transforming nature. Until then, it's not property - no matter what state "authorities" you've paid or bribed. Just because unjust monopolies are the customary way business is done doesn't make it legitimate. When you live by the rules of thugs, you may make a killing in the real estate market and I wish you luck, but don't act so innocent and surprised when the thugs decide it's convenient to change the rules to rip you off.

  • Finrod||

    You're a fool, so you have no right to own land, by your logic.

  • JunkScienceIsJunk||

    Yup. Chew on that for a while.

    Or read the works of many libertarian economists and philosophers about that very issue.

  • Ride 'Em||

    I don't believe that is what the framers had in mind. In fact, just the opposite. Your position is exactly the same as the king's was. He owned all land. The framers understood that a person could only be free if he/she was the owner of their property and had the right to use it as they saw fit. I would amend it with: as long as you don't harm your neighbor's property. Otherwise there is no sense to having ownership. I think you got your philosophy from the old rock song "Signs".

  • markuzick||

    Unless you have created the land; water; air; or any natural resource, you can not own it outright, but can acquire property rights within the context of your use of the resource. Imagine if the King said, "I own the all the air above my kingdom and grant title to the air over each Provence to my loyal nobles who in turn may lease title to air merchants who may demand payment for breathing or any other use of the air of which he has exclusive control." When you own natural resources, not rights in their use acquired through your effort or purchase from someone whose effort created them, then you are a slave owner. Access to natural resources is a requirement for all life to exist: if your access to them in a manner that does not harm another's person or property is excluded by some arbitrary title granted by the state, then you do not own yourself but are a slave owned by other slaves in a society built upon slavery to the state.

  • No Yards Penalty||

    I thought for a long time you had died, White Indian.

  • mondo_cane||

    It's wonderful to live in the land of the free. NOT.

    Anyone who thinks the government is his/her friend is an idiot.

  • seedeevee||

    "the county, now the only eligible buyer,"

    That statement appears to be a fabrication by our author Eric Boehm.

  • Ride 'Em||

    Who else would want a parcel that can't be used?

  • mysmartstuffs||

    Justice wrote in the majority opinion. "The woman was not raped, because only the tip was used against her involuntarily.

    My recent post: ZooWarrior Review
    Sent from Honest Jvzoo Reviews and bonus

  • Mickey Rat||

    "...under the Firth Amendment..."

    Not to be confused with the Fourth Amendment or the Firth of Forth Amendment.

  • Cloudbuster||

    That's a sad excuse for a Supreme Court ruling if you think about the fact that if the properties were separated by an intervening property it would have been a taking, but since they were adjacent, it would not. That shouldn't have any bearing at all upon the ability to sell a uniquely-deeded piece of property for its fair market value.

  • AD-RtR/OS!||

    First KELO, and now MURR....
    All your property belongs to us.
    And you shall have it in 168-grain increments.

  • Ankah||

    I did some additional reading, and the article is poorly written.

    The family had purchased one lot under their name, where the cabin is built, and the other lot was in the name of a company that belonged to the Murr Family.
    When they passed it one to the siblings, they were "Jointly conveyed" during the process. That was part of the question presented to the SCOTUS.
    I think one of the issues here is how the town offered to purchase the empty lot, and then, once that was turned down, suggested to combine both in order to sell. The other issue is how the zoning law passed in 1975, but since the lot under the company name was passed on in 1994, the lot can not be grandfathered in, from my limited understanding.

    Sucks for them, but I can see the reasoning of the decision on this particular case. Reading about the further ramifications, and how this very unique situation may affect other, simpler issues, I truly wish the SCOTUS had skipped it.

  • antodav||

    When even basic property rights become a partisan issue that divides the court along ideological lines, it becomes clearer than ever that judicial activism is real and that the court is not impartial or neutral in how it interprets the Constitution. Half the court is dominated by outright socialists who believe the government owns all land by default and essentially only leases it to individuals, and can terminate that lease at any time. This ruling has sanctioned backdoor eminent domain without compensation for the loss.

  • Ankah||

    It is interesting that you say that in relation to socialists.

    The next big argument about eminent domains will come from the right, and their wall. Maybe this is a coincidence, maybe not.

  • Leo Kovalensky||

    Completely agree. This is less of a right/left thing and more about authoritarianism vs individual liberty. Team blue will take your land for the good of the people and the "environment", team red will take your property for the good of the people and the supposed security threat that your property poses. Both are authoritarian, and both positions are in direct conflict with the founding principles of this country.

  • m.EK||

    "do all you have agreed to do and do not encroach on other persons or their property"

    Why does that not apply to governments and religions? How is it that corporations can harm others and have government make rules, call them "laws", and harm or hide behind these "rulings"?

    We have NO Law, just rules/"laws". It is called Institutionalized Corruption for you statists.

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