Wednesday, July 18, 2007, 8:10 AM

COA Rejects Takings Clause Challenge; Addresses Constitutional Issue Not Properly Raised

In an unusual case, the Court of Appeals (COA) yesterday reversed the trial court and rejected a takings clause challenge to a state law that essentially grants an easement over private property to the descendants of a deceased person buried on the property, for the purpose of visiting and maintaining the burial ground. The case is Massey v. Hoffman.

To begin with, it's unusual that the court even reached the constitutional issue. The issue was raised late, after trial, by way of an amended answer. Adopting the U.S. Supreme Court's view that a Rule 12(b)(6) issue may not be asserted post trial (see Arbaugh v. Y&H Corp., 546 U.S. 500, 507 (2006)), the COA held that the merits of the takings clause challenge was not properly before the trial court, and thus wasn't properly before the COA.

Yet the COA decided to address the constitutional issue anyhow, on the basis that the issue could arise in later cases--even though, if the COA had found a constitutional violation, it wouldn't have granted relief in this case. In other words, the COA seemed to issue an advisory constitutional opinion to govern not this particular case, but future cases.

Wait a minute. Isn't it hornbook law (as the COA itself recited as recently as three months ago, see Winebarger v. Peterson, 642 S.E.2d 544 (2007)) that a court will address a constitutional issue only when resolution of the issue is necessary? Is this a new exception to that established rule, an exception for constitutional issues likely to arise in later cases? But aren't all constitutional issues likely to arise in later cases? Where is the line to be drawn?

On the merits, the COA held that N.C.G.S. 65-75 doesn't violate the takings clause. The statute provides that the state (the clerk of superior court) may order a private property owner to grant entry to descendants of a decedent whose remains are reasonably believed to be interred in a grave on the private property, for the purpose of discovering, restoring, maintaining, or visiting the grave, even though private property owner doesn't consent. The trial court held that the statute violates the U.S. Constitution's takings clause (Fifth Amendment: "nor shall private property be taken for public use, without just compensation") and the cognate right implicit in the N.C. Constitution's "law of the land" clause (Art. I, section 19).

But the COA held that the state has a legitimate interest in preserving the sanctity of grave sites, that this is part of the state's police power, and -- here's the punchline -- that the constitutional prohibition against taking private property for public use without just compensation isn't applicable when the state properly exercises its police power.

That punchline seems broad. I need to look at the underlying state cases cited by the COA, but might there be a distinction between police power "regulatory takings" and takings of private property that essentially grant a permanent easement right to other citizens? The COA doesn't cite any federal decisions, even though the federal takings clause apparently was implicated. The U.S. Supreme Court has held that regulatory action is a per se taking requiring just compensation if government requires a property owner to suffer a permanent physical invasion of her property, however minor. See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking). Don't orders issued under N.C.G.S. 65-75 arguably require a property owner to suffer permanent physical invasion of her property, however minor, by granting descendants (generation after generation) access to visit and maintain permanent burial grounds that happen to be on the property? The COA seemed to treat this as a land-use regulation. But the law doesn't regulate the property owner's use of the property. It grants an easement to other persons to let them visit the property.

Also, it's not clear from the COA's opinion whether the property owner argued that the law doesn't effect a taking for "public use." Is it a public use for a descendant to visit and maintain her ancestors' grave site? The COA's answer likely would be that because "rights of burial" are "somewhat of a public nature" and police powers are implicated, the public-use requirement would be satisfied.

While it's tempting to think that a person who acquired property with notice of the access law must be barred from mounting a takings challenge on that basis, the U.S. Supreme Court recently rejected similar reasoning. See Palazzolo v. Rhode Island, 533 U.S. 606 (2001); but see id. (O'Connor, J., concurring).

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