The Coastal Post - August, 1997

Constitutional Rights: Equal Treatment?

By Attorney General Dan Lungren

Do the federal courts exist only to hear the pleas of government regulators? A recent case involving an elderly woman's claim that a government agency had violated her constitutional rights attracted national attention because it presented a David vs. Goliath tale of confrontation in the federal court system.

Bernadine Suitum and her late husband bought a small parcel in Nevada, near Lake Tahoe, some 25 years ago, with the dream of someday building a retirement cabin. At the time, the Suitum's property was zoned for just such residential development.

Mrs. Suitum applied for a building permit in 1989. But the Tahoe Regional Planning Agency (TRPA), a bi-state governmental regulatory agency, had deemed her land environmentally sensitive two years earlier-15 years after she purchased the property. Despite its less-than-prime location-the lot affords no view of the lake and is surrounded on three sides by other cabins with a street on the fourth side-TRPA declared that the parcel's soil acts as a filter for stream water flowing into Lake Tahoe. With growing concern for the lake's diminishing clarity, TRPA sought to prevent Mrs. Suitum's intended construction by offering her the ability to sell her "transferable development rights" to another private property owner in the Tahoe area whose property was not under a TRPA development restriction.

The problem, as Mrs. Suitum saw it, was that the Fifth Amendment of the U.S. Constitution requires that when government "takes" the property of an individual-or by its actions accomplishes a "taking" by depriving the owner of the property's economic value-full compensation must be paid to the individual by the government. Selling "transferable development rights" to another private property owner not only skipped this requirement, Mrs. Suitum alleged, it would shortchange her of full compensation for her property, since the market for such development rights was not strong enough to entice a buyer at the market value of her property.

While she contested TRPA's development prohibition, Mrs. Suitum also argued that if the TRPA decision were to stand, the regulatory agency itself must fully compensate her for her economic loss.

Mrs. Suitum and her attorneys thought her case presented a legitimate constitutional question-one which must be answered by a federal judge.

That certainly seems a reasonable view. On any given day, we read news stories about people going to federal court, alleging violations of other Constitutional rights-the right to free speech (for example, to burn an American flag), the right to due process (frequently used in appeals by convicted criminals), the right to freedom of religion (or the separation of church and state)-and so on.

Yet when Mrs. Suitum confronted the government agency that had allegedly deprived her of her Fifth Amendment property rights, a federal district court judge said she could not be heard; Bernadine Suitum would have to accept the government's "half-loaf," selling her "transferable development rights" to another private party, before she could even claim unjust compensation.

It was a classic Catch-22: To be allowed into federal court, she must first be compensated, but not by the government, and not at the full value of her property. Only then could she come back before the judge, but having made the private sale, she would no longer have a clean claim that she was denied compensation for her property.

On appeal to the Ninth U.S. Circuit Court of Appeals, Mrs. Suitum was again denied a hearing on her constitutional question.

As a last resort, Mrs. Suitum asked the United States Supreme Court to unlock the door to the federal courthouse. With her family at her side, Bernadine Suitum listened as the nation's highest court peppered attorneys for the government with questions.

"My goodness," said Justice Sandra Day O'Connor, "why not give this poor, elderly woman the right to go to court and have her case heard?"

"You have created a problem," Justice David Souter told the TRPA lawyer. "Why should the landowner have to suffer because of the hardship you've created?"

Though my office was asked to file a brief in support of the regulatory agency, I declined, because I thought Mrs. Suitum should at least be allowed in the courthouse door, whatever the merits of her claims.

The Supreme Court agreed. In a unanimous, 9-0 ruling, the Court ordered the original federal judge to hear Mrs. Suitum's claims of constitutional violations.

Bernadine Suitum, the 82-year-old widow in a wheelchair, persisted in her fight to be heard. In the process, she won a victory not only for herself, but for every American whose constitutional rights must be protected by an open door to the courthouse.