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On The Front Lines

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

WASHINGTON, 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.


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