Corpus Christi Caller-Times. April 5, 2012.
Texas Supreme Court affirms its unfortunate ruling on beach access
It's hard to imagine that the Texas Legislature in 1959 was any less property rights-conscious than today's and all in between. Considering the nation's fear of a Red Menace back then, Texas officials then, as now, would have resisted any encroachment on the sacred tenet of property rights. The Texas Open Beaches Act of 1959 was not seen as one.
To the contrary, it only codified an already accepted doctrine that the public had a right of access to the beaches, from the state's coastal boundary with Louisiana all the way to its border with Mexico. This law, never intended as tyranny of a few property owners, affirmed a right and freedom of all Texans.
The Texas Supreme Court severely undermined that right in a ruling March 30, choosing instead to protect — actually to extend dramatically — the rights of coastal property owners. The court's ruling actually was a clarification of an earlier ruling sent back to the court by a federal appeals court. The Supreme Court's clarification basically amounted to saying it meant exactly what it said the first time.
What the court said, in November 2010 in its Severance v. Patterson ruling, was that a property owner whose property was shifted suddenly into the public's easement on the coast by an act of God did not automatically lose that property to the state. Erosion caused by Hurricane Rita in 2005 left a Galveston Island house owned by Carol Severance too near the shore, beyond the dune/vegetation line that had been the long-accepted boundary for what belongs to the state.
The 2010 ruling, reaffirmed March 30, undermines the precedent recognizing a "rolling easement" along the beach that shifts automatically as the beach erodes. Building too near the shore was a calculated risk because of the rolling easement and Mother Nature's established trend of beach erosion. The court created a split in the concept of a rolling easement by affirming it when it's caused by garden-variety steady erosion but disregarding it when it occurs suddenly and rapidly as was the case with Hurricane Rita.
This sudden, act-of-God variety of shifting vegetation line, known as "avulsion," also creates a platinum opportunity for lawyers to litigate incessantly. "Disentangling these naturally occurring weather events from one another as envisioned by the Supreme Court seems an impossible task," coastal and marine law and policy authority Richard McLaughlin of the Harte Research Institute for Gulf of Mexico Studies wrote in a Nov. 12, 2010, guest column in the Caller-Times. "The only people who should be happy about the Supreme Court ruling are the relatively small number of beach homeowners who will be allowed to keep their properties on the beach and the large contingent of coastal geologists, meteorologists, historians and attorneys who will be asked to sort out this unworkable new rule."
There are reasonable limits to property rights in the public's best interest. For example, the owner of land on both sides of a river isn't allowed to own the river. Rivers widen and narrow over time — or all of a sudden if God is of a mind to impose an act of Himself.
These shifts, even the sudden catastrophic ones, don't give the landowner a claim to the river. Drawing a line where vegetation meets sand and not allowing private ownership on the sandy side was a similar common sense limit to property rights in the public's best interest.
But now, considering the rate of erosion and the widely held belief that God will continue to act, we have to wonder how near the shore and, eventually, how far offshore this court might allow coastal property owners' rights to extend.
The Brownsville Herald. April 1, 2012.
Court backs property owners against seizure of coastal land
The Texas Supreme Court has offered much-needed support for property owners' rights against confiscation of coastal lands.
The court ruled that the Texas Open Beaches Act does not supersede the rights of people who legally own coastal property.
The act states that all Texas beaches, from the waterline to the vegetation line, are public property. Erosion or sand deposits along the beach — or a disease that kills vegetation — can change the line. Hurricane Rita did just that when it hit the Texas coast in September 2005, pushing the visible vegetation line onto private property that until complied with the act's specifications. The Texas General Land Office, citing the act, seized more than 100 properties in Galveston and Brazoria counties. Not only did the state not offer compensation to the owners, in direct violation of the Fifth Amendment of the U.S. Constitution, but it ordered the property owners to remove all structures — demolish their homes and other buildings.
One property owner filed a lawsuit challenging the state's action.
The Supreme Court had issued a similar ruling earlier, but the state appealed to the U.S. Fifth Circuit
Court, which asked the state court to answer some legal questions.
Land Commissioner Jerry Patterson argued that the public — actually the state — had a "rolling" easement along the beaches, which changed with the natural changes of the vegetation line. Because the changes were brought on by acts of nature, not by the state, then the state's possession was automatic.
A majority of five high court justices disagreed, while three wrote dissenting opinions supporting the state's confiscation of private property without due process or compensation.
This is a major issue, especially in areas like South Padre Island, where development is rapid and people have invested heavily in coastal property.
Climate Central, a research group based in Princeton, N.J., this month issued a report predicting that the seas along the Texas coast had a 1 in 6 chance of rising by a foot or more in the next decade. That would push the beach line back significantly and affect hundreds of properties that currently are behind the vegetation line. We can also assume that Rita isn't the last major storm that will hit the Gulf Coast, and either erode or cover up existing vegetation lines.
Texas has long touted the Open Beaches Act, promising to maintain public access to all the state's shoreline. It makes little sense to assume, much less assert, that when circumstances change that line, the state automatically gets to claim land that private landowners have held and maintained, at their expense, for years. It's only fair to respect that investment and the people who have made it, and invoke established eminent domain procedures, which include offers of just compensation and legal appeals processes.
We applaud the Supreme Court justices who recognized that government is expected to respect and protect individual rights, including property rights. Those rights are especially important when they must be defended against assaults by the government itself.
San Antonio Express-News. April 7, 2012.
Court ruling threatens public access
An opinion issued by the Texas Supreme Court will gut the Texas Open Beaches Act. Plaintiffs are hailing it as a victory for property rights. It represents, instead, a defeat for reason and to public access to the state's 367 miles of beaches.
Unlike many states, Texas considers all its beaches to be public property. That's been the law since the Legislature passed the Open Beaches Act in 1959. In 2009, voters overwhelming approved Proposition 9, which established in the Texas Constitution "the public's unrestricted right to access public beaches as a permanent easement."
That right has been in limbo since the 5th U.S. Circuit Court of Appeals sought the Texas court's opinion in a case brought by a California resident who owned a rental house on Galveston Island. In 2005, Hurricane Rita shifted the vegetation line — which in Texas marks the boundary between private property and public beaches — landward.
The Texas General Land Office ruled, properly, that the shift put the house entirely on a public easement and offered the owner $40,000 to remove the damaged structure. She sued the state claiming a violation of her constitutional rights — the case pending before the 5th Circuit.
In 2010, six Texas Supreme Court justices ruled that the Open Beaches Act did not apply in cases where shifts in the vegetation line occur suddenly rather than as the result of long-term erosion. The opinion threatened to overturn established law and open up a floodgate of litigation to privatize beach property. In a 5-3 decision last week, the high court upheld that opinion.
The distinction between sudden and gradual erosion is fatuous. How sudden is too sudden? The court's elimination of the long-established rolling public easement means that, presumably in some cases, even when a coastal property begins to sink into the Gulf of Mexico, it's still private property.
"The Texas coastline is constantly changing, and the risks of purchasing property abutting the ocean are well known," Justice David Medina wrote in his dissenting opinion. "I would instead follow the Constitution and the long-standing public policy of this state and hold that the beaches of Texas are, and forever will be, open to the public."
Justices Dale Wainwright, Nathan Hecht, Paul Green, Phil Johnson and Eva Guzman have put that policy at grave risk.
Lubbock Avalanche-Journal. April 6, 2012.
Penalties in Texas open meetings law needed to ensure compliance
Laws without consequence are more accurately called suggestions, and public officials need more than mere suggestions to ensure they conduct the public's business in the open.
That was the purpose of Texas' 1967 Open Meetings Act, which bars a quorum of a public body from discussing in private the issues upon which it will act. The penalty for violating the law is up to six months in jail and a $500 fine.
That penalty, a lawyer representing 15 elected officials challenging the law told a three-judge panel of the 5th U.S. Circuit Court of Appeals, is onerous. An Associated Press report on Thursday's hearing in Houston said the plaintiffs argued the law "stifles free speech rights and leaves officials open to criminal penalties for mentioning government business in informal settings."
The panel is hearing the appeal of another federal judge's ruling against the elected officials. The issue first arose in 2005 when members of the Alpine City Council were indicted for using email to discuss policy matters. They lost in federal court. Their appeal was dismissed as moot after they'd left office and the indictments dropped.
But the 15 current plaintiffs picked up the challenge, arguing in part that the potential penalties are unjust because it's so easy for public officials to inadvertently violate the law.
But the same judge who ruled against the Alpine council members in the original case, ruled against the new plaintiffs. U.S. District Judge Robert Junell a year ago called their argument "nonsensical" and said the act is a disclosure law, not a content-based restriction on speech.
"This court finds that a Texas citizen has — at the minimum — a significant right, if not a fundamental right, to open government," he wrote. "Speech concerning public affairs is more than self-expression; it is the essence of self-government."
On Thursday, the AP reports the plaintiffs' attorney said "his clients support open government but worry the law criminalizes behavior such as simply talking to a colleague about a matter on a city council agenda."
"The issue is ... when you have criminal sanctions, you have the grave arm of censorship," Craig Enoch said, adding that other remedies, such as open records laws, ensure transparency.
According to the AP report, that didn't fly.
"This is not a no-speech case," Judge Jerry Smith told Enoch. "I know you like to frame it that way, makes it sound more onerous."
Sean Jordan, deputy solicitor general for Texas, said, "These laws are designed to ensure government officials don't get into a practice of deliberating in private."
"Criminal penalties ensure compliance," said James Ho, an attorney for government officials and news organizations that support the law.
Serving in public office is a privilege for which one must volunteer. There are two ways to avoid the $500 fine and jail time: Don't conduct public business in private, or don't run for public office.
Both the law and its penalties are increasingly important as technology offers more ways — such as email, texting and social media — for public officials to keep private what should be public.
There's nothing wrong with requiring those who choose to hold public office to follow the law, or with penalizing those who think their desire to keep debate private is superior to the public's right to hear the discussion.
The Dallas Morning News. April 7, 2012.
Ruling on strip searches leaves us open to abuse
A wise old police chief once told us, "Look, anyone can get arrested." The unspoken coda: even if that person didn't do anything to deserve it.
Police often get it right, but often isn't always. Usually, the person in handcuffs did kill or rob or rape or steal, assault a spouse or neighbor, get into a drunken brawl, mouth off to the wrong somebody or just forgot to pay a traffic ticket until a warrant went out.
Usually, but not always. It might even be you.
So, should every arrested person also be subject to a strip search when booked into jail? Every person, even the ones jailers have no reason to suspect of concealing drugs or weapons or anything else?
Does this pass your reasonable person test?
Five justices of the U.S. Supreme Court decided this week that it passed theirs, a misguided ruling that unnecessarily opens new and disturbing avenues for potential abuse.
Albert Florence, a finance director for a car dealership, was on his way to a family celebration when a New Jersey state trooper stopped and arrested him, upon finding that Florence had an outstanding warrant. The warrant, as it happens, was issued in error because Florence had paid his fine. Still, he was invasively strip-searched — twice in six days.
No serious person would dispute jailers' responsibility to secure their facilities, which includes making sure weapons and contraband are kept out of the general population.
Yet we can't understand how Justice Anthony Kennedy, in his majority opinion, finds it unworkable to require jailers to have a reasonable suspicion of specific inmates before requiring all inmates to submit to such searches. Kennedy's example of Timothy McVeigh, stopped for a minor traffic offense, is especially off-point, since a strip search would have changed nothing about that fateful day in Oklahoma City or its aftermath.
Texas jails had been governed by a 5th Circuit Court of Appeals ruling that required "individualized reasonable suspicion" before strip-searching inmates brought in for petty offenses.
The Supreme Court ruling allows such strip searches but does not mandate them. Our hope is that Texas jailers will show the good sense to continue to follow the letter and spirit of the Fourth Amendment, which is supposed to protect all of us against unreasonable search and seizure.