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By AndrewHyman Comments () / Email this page » / Leave a comment »

Today, the Washington Post has an op/ed urging rejection of Justice Brown for the DC Circuit. A cloture vote in the Senate is scheduled for noon. UPDATE: The vote was 65-32 for cloture.

The Post relies upon a single opinion by Justice Brown: a dissent in the The San Remo Hotel Case. In that case, the City of San Francisco imposed a $567,000 fee for a hotel to convert from residential to tourist use, and Justice Brown wrote that the fee was unconstitutionally excessive.

The case is still in litigation. Oral argument was held in the U.S. Supreme Court on March 28, 2005. The main issue in state court was whether $567,000 was such an excessive amount as to be an unconstitutional "taking" of private property without just compensation.

Surely the Post would agree that the City of San Francisco could not take a billion dollars in return for the permit, and therefore this case boils down to a question of degree. Justice Brown was not the only one who found this half-million dollar fee excessive. One of five dissenting SF Supervisors called the fee “organized extortion,‿ and the state Court of Appeal called the conversion fee “ransom.‿

Of course, the Post did not mention the fee, or mention that the Constitution sets an upper limit to such fees. Whether Justice Brown was wrong or right in this case, she was not the only dissenter in the case. Two other justices of the California Supreme Court said this:

[T]he majority prevents plaintiffs from demonstrating their entitlement to writ relief, prematurely analyzes plaintiffs' as-applied takings claims, and summarily disposes of plaintiffs' other claims without any analysis whatsoever....

This was a close case, it's still in litigation, and there are reasonable arguments on both sides.

UPDATE: Ed Whelan at Bench Memos also addresses the Post's editorial.