Rutherford Institute Asks U.S. Supreme Court to Protect Property Rights, Especially as It Relates to Due Process Assurance of ‘Life, Liberty or Property’

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Rutherford-InstituteWASHINGTON, D.C. — Warn­ing against estab­lish­ing a prece­dent that would allow indi­vid­ual prop­er­ty rights to be sac­ri­ficed to tar­get the polit­i­cal­ly weak for the ben­e­fit of the pow­er­ful, The Ruther­ford Insti­tute has asked the U.S. Supreme Court to ensure that Amer­i­cans are not deprived of “life, lib­er­ty or prop­er­ty, with­out due process of law.” In fil­ing an ami­cus brief with the Supreme Court in Kent­ner v. City of Sani­bel, Insti­tute attor­neys argue that the con­sti­tu­tion­al guar­an­tee to due process requires state and local gov­ern­ments to demon­strate some sub­stan­tial basis before they can attempt to restrict a homeowner’s prop­er­ty rights. The case revolves around a rul­ing by the Eleventh Cir­cuit Court of Appeals that upholds a Flori­da city’s ordi­nance pre­vent­ing the own­ers of ocean­front prop­er­ty from con­struct­ing a boat dock on their prop­er­ty, pur­port­ed­ly in an effort to pro­tect­ing sea­grass­es, although no evi­dence was pre­sent­ed to sup­port such a claim.

Once again, we find our­selves in the inex­plic­a­ble posi­tion of hav­ing to con­tend that the Con­sti­tu­tion pro­vides real pro­tec­tions for the prop­er­ty rights of Amer­i­cans from a gov­ern­men­tal bureau­cra­cy intent on assert­ing its author­i­ty,” said John W. White­head, pres­i­dent of The Ruther­ford Insti­tute and author of A Gov­ern­ment of Wolves: The Emerg­ing Amer­i­can Police State. “Courts must stand up to those in pow­er and the mon­eyed inter­ests call­ing the shots by assur­ing the guar­an­tee to due process of law is not an emp­ty promise.”

In Sep­tem­ber 1993, the City of Sani­bel, a coastal Flori­da city locat­ed on the Gulf of Mex­i­co, adopt­ed an ordi­nance for­bid­ding the new con­struc­tion of docks and piers fronting San Car­los Bay. The stat­ed pur­pose of the ordi­nance was to pro­tect sea­grass­es that grow on the sub­merged lands of the bay, although no evi­dence was pre­sent­ed that this pur­pose was fur­thered in any way by the pro­hi­bi­tion on docks and piers. After the ordi­nance was adopt­ed, David and Susan Kent­ner, as well as oth­er indi­vid­u­als who chal­lenged the ordi­nances, pur­chased real estate prop­er­ty on the bay. Although the plain­tiffs’ rights as own­ers of sea­side prop­er­ty nor­mal­ly would have includ­ed dock­ing rights, the City’s ordi­nance pre­vent­ed the home­own­ers from exer­cis­ing this right and mak­ing rea­son­able use and enjoy­ment of their land. The home­own­ers sued the City alleg­ing that the ordi­nance vio­lat­ed their rights under pro­vi­sions of the Unit­ed States and Flori­da Con­sti­tu­tions that for­bid depriv­ing any per­son “of life, lib­er­ty or prop­er­ty with­out due process of law.” How­ev­er, the fed­er­al dis­trict court ruled that the plain­tiffs’ prop­er­ty rights were not pro­tect­ed by the sub­stan­tive pro­vi­sions of the due process clause and dis­missed their claims. The appeals court affirmed, hold­ing that “there is gen­er­al­ly no sub­stan­tive due process pro­tec­tion for state-cre­at­ed prop­er­ty rights.”

In ask­ing the U.S. Supreme Court to review and reverse the low­er courts’ deci­sions, Ruther­ford Insti­tute attor­neys argue that exclud­ing prop­er­ty rights from the sub­stan­tive pro­tec­tions of the due process clause is not only con­trary to the plain words of the Con­sti­tu­tion, but to the his­to­ry of the Due Process Clause of the Four­teenth Amend­ment. Pro­tec­tion of the right to own and use prop­er­ty was deemed an essen­tial pre­req­ui­site to the real­iza­tion of oth­er basic civ­il rights and lib­er­ties the Amend­ment was meant to pro­tect. Fur­ther­more, his­to­ry has shown that state and local gov­ern­ment often ben­e­fit the polit­i­cal­ly pow­er­ful at the expense of minori­ties and oth­er dis­en­fran­chised groups. The Institute’s brief asks the Court to restore the pro­tec­tion of prop­er­ty due process was meant to pro­vide by requir­ing state and local gov­ern­ments to demon­strate a sub­stan­tial basis for lim­it­ing the free­dom of cit­i­zens to use and enjoy their property.

The Ruther­ford Insti­tute was joined by the Cato Insti­tute, the Nation­al Fed­er­a­tion of Inde­pen­dent Busi­ness, and the Own­ers Coun­cil of Amer­i­ca in fil­ing the ami­cus brief in Kent­ner v. City of Sani­bel.



Click here to read The Ruther­ford Institute’s ami­cus brief in Kent­ner v. City of Sani­bel.


Nisha White­head
(434) 978‑3888 ext. 604
(434) 466‑6168 (cell)