Federal judge attacks right to counsel and seek redress

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A dissent in a recent Fifth Circuit case exhibits a shocking disregard for the right of citizens to counsel and to seek redress from the government.

In short, the owner of beachfront property in Texas is suing the state under the Takings Clause, claiming that a beachfront easement granted by Texas statutes constitutes a taking of property.

The dissenting judge, however, is more interested in her choice of counsel, the Pacific Legal Foundation, than the merits of the dispute.

The first two paragraphs of the dissent read as follows:

“Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.

“And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).”

Can you imagine the uproar that would ensue if a judge began an opinion by attacking a party for being represented pro bono by an environmental group, and bemoaning that the federal courts had been enlisted as “unwitting foot-soldiers in this thinly veiled crusade against private property”? There is no doubt in my mind that the mainstream media would amplify and echo demands for impeachment for weeks.

I think it’s clear the opinion doesn’t warrant impeachment, but a shameless attack on a party’s right to counsel of choice by a federal judge does warrant some type of censure. (h/t Volokh Conspiracy)