Interview: Pacific Legal Foundation’s Paul Beard on Property Rights

Paul BeardPaul Beard II is a principal attorney at Pacific Legal Foundation (PLF), where he focuses on property rights, especially in litigation against government agencies, such as the California Coastal Commission, that violate private property rights.

Last year, Beard argued and won a landmark property rights case (Koontz v. St. Johns River Water Management District) before the United States Supreme Court. The case establishes that land-use permit exactions of money are subject to heightened scrutiny under the United States Constitution. Beard also practices other areas of constitutional law, including free speech, equal protection, environmental, and Commerce Clause law. He currently is the lead attorney in PLF’s lawsuit, on behalf of Iowan artist Matt Sissel, challenging the constitutionality of ObamaCare under the Commerce and Origination Clauses.

Beard is admitted to the bars of California, numerous federal district and appellate courts, and the United States Supreme Court. He received a B.A. from University of California at Los Angeles (UCLA), and a J.D. from Cornell Law School. He is also a former classmate of mine in the Objectivist Academic Center (OAC) in Irvine, California. This is an edited transcript.

Scott Holleran: What is the primary challenge of being a lawyer for a non-profit organization that defends individual rights?

Paul Beard: Educating and trying to convince the courts, particularly in California, of the importance of private property rights and individual liberty. Finding cases is easy because we don’t charge for cases and it’s easy to set the case up for litigation. But it’s a much different question with this constitutionally originalist idea of what rights are and why they should be protected.

Scott Holleran: How can activists in the grass-roots movement for individual rights improve?

Paul Beard: Ultimately, the bottom line is doing a better job of educating voters—those who make a difference at the ballot box. Even local and state elections are important because the people we elect have control over the makeup of our judiciary. If we’re going to do a better job [advancing property rights protection] one component is educating the average voter—they do not understand the importance of the Constitution and the Bill of Rights and therefore don’t have the knowledge to vote for the right people that will be intervene in protecting individual rights. I say this as a lawyer. Of course, there are other ways, such as cultural, to influence and affect change.

Scott Holleran: What can those who want to support Pacific Legal Foundation do?

Paul Beard: Go to PLF’s Web site and donate—we take no funds from the government—plug into our social media and make sure that our work is getting distributed as far and wide as possible. Visit PLF not just for making donations but also for educating people. Help us find new clients and new cases.

Scott Holleran: Do you agree with Ayn Rand that property rights are paramount to individual rights?

Paul Beard: Absolutely. Without property rights, it’s PLF’s position and my personal view, all other rights fall. [Without property rights] [y]ou don’t have your own home publishing materials, computer, printer or copier. You need private property for freedom. So to the extent government regulates or overregulates, without property rights, we’re not really free. Government regulation that eliminates force from transactions is necessary and proper, both constitutionally and from a moral perspective. By overregulation, I mean regulation that goes beyond that fundamental purpose of eliminating force. It identifies regulation that itself causes or authorizes the initiation of force against individuals.

Scott Holleran: You recently argued before the United States Supreme Court in favor of property rights, giving PLF its seventh consecutive victory in the Supreme Court. Is anything about arguing before the Supreme Court easier than you anticipate?

Paul Beard: The argument was difficult not just because it was the Supreme Court but because of the issues involved. The easiest part from my perspective is always to respond to what my opponent has already said. If you’re the first to present the case, as I was, it’s harder. It is easiest to respond in that sense. But there’s really no such thing as easy when arguing before the Supreme Court. I came away thinking we may have lost the case. I can’t think of a moment when I was at ease.

Scott Holleran: Let’s talk about your case before the high court, Koontz v. St. Johns River Water Management District. What is an exaction?

Paul Beard: In the land use permitting context, it means a concession that is demanded by government as the condition of approving a permit that gives you the right to use and enjoy your private property. Exactions have been around since zoning laws were enacted in the early 1900s. Their use grew dramatically in the post-World War 2 era, with the creation of new suburban subdivisions. The whole land use permitting scheme should be unconstitutional, not just because of the exaction. The government has no business telling a property owner before he makes any use of his property what he can do so. The whole permitting process should not be allowed. Obviously that ship has sailed.

Scott Holleran: What is the essential argument against the California Coastal Commission and why doesn’t the PLF challenge its existence?

Paul Beard: As to the first question, the basic legal philosophical argument against the Coastal Commission is that the Coastal Act, the state statute which gives rise to the California Coastal Commission and all its powers, in essence socializes all of the private property in the coastal zone. Under the Coastal Act, since its passage in the early 1970s, coastal private property owners really just own title to the property, they don’t own the property as they see fit. Most jurisdictions in the country are like that, with Houston as an exception, and have [certain] government agencies that issue permits. Magnify that to the entire state—a land use body that purports to tell everyone within the coastal zone whether they can use their property and, if they can, the extent to which they can use their property. And, if they can, what values the property owner must give up to the state in exchange for the property owner exercising his property rights. As to the second part of the question, with regard to the state of California and the U.S. as a whole, the way the Constitution has been interpreted, it’s near impossible to make a credible argument in a court of law that the government does not have the authority to regulate land use. Maybe one day, when the culture has significantly changed, we can get back to [a legal recognition of] property rights. But right now the law is unequivocally clear that the government can use and dictate use of your private property. Their power is limited—our cases prove that—but they can regulate land use. To what extent is where the battles are at. [The] Kelo [decision by the Supreme Court] was a disaster but we saw some success because the burden shifted to states to fix the eminent domain problem [and some did]. In Kelo, we saw that the government can take property from property owner A and give it to property owner B. That’s insane. Eminent domain had previously been used to build roads and schools and now it’s being used for cronyism. California Gov. [Edmund “Jerry”] Brown did do one good thing when he agreed to defund redevelopment agencies.

Scott Holleran: Is the right to property properly understood?

Paul Beard: It’s the biggest issue and it’s an issue of cognitive dissonance. People tend to get the concept of private property rights in regard to themselves but not with regard to someone else’s private property rights and pursuit of individual rights. When it’s a company or others, not themselves, people tend to say we should restrict property rights—ban so-called big box stores, go to the public hearing [to protest]—that is the biggest problem or hurdle. I think most folks can get on board with the homeowner or small business owner and [recognizing] their rights but, as soon as the example gets bigger—especially if it’s a large business like Walmart—then it’s a question of wealth, status and size and it becomes ‘property rights for us, no property rights for them’. There is class warfare-ism. Fundamentally, what they see as an issue of ‘I’m building a home on my lot—who am I injuring? No one.’ But if Walmart is [perceived as potentially] putting a small business out of business or creating low-wage jobs or increasing traffic congestion, all these so-called injuries to the public justify the regulation.

PLFMcNameeScott Holleran: Why did you lose the McNamee case, in which the property owners (George and Sharlee McNamee, pictured with their attorney, Paul Beard) asserted their right to have amenities, such as a picnic table and shed, on beach property they own?

Paul Beard: I was probably a lot more optimistic about the California court system than I am today. The courts, particularly in California, have come up with these doctrines [hostile to property rights]. One of them says [in effect] ‘who is the court to second guess what the government [agency or bureaucracy] has decided?’ The California Coastal Commission, for example, hears permits for land use every day and they may decide whether—whether!—private property is an aesthetic harm to the community. [The judicial doctrine of deference is:] Who are three judges on the court of appeals to say what is good for this neighborhood? Were the McNamees’ picnic amenities consistent with other uses of that stretch of beach and the state’s own use of that beach? We were questioning the aesthetic judgment of the Commission. The court just wasn’t willing to second guess the California Coastal Commission. Because the legislature so broadly defines what the Coastal Commission can regulate, it has near-limitless power.

Scott Holleran: This gets back to your point about voting –

Paul Beard: Absolutely. There could be an amendment in the California legislature tomorrow to rectify the Coastal Act. Someone tried to build in an exception to the Coastal Act for allowing fireworks on the Fourth of July and the bill didn’t pass because there weren’t enough votes.

Scott Holleran: In legal terms, is a government commission for the environment consistent with the law?

Paul Beard: It isn’t. [Pauses] I want to be as precise as possible. I want to talk about the Bill of Rights. Any government agency that preemptively restricts your right to your property—your private property—is inherently unconstitutional. You look through the Constitution and nowhere does it say that [government may unreasonably restrict the right to private property]. Under the 5th and 14th amendments, the Bill of Rights protects every individual’s fundamental rights to use, develop and enjoy their property without unnecessary and improper regulation. This gets back to what we were talking about earlier. If the government acts to protect a tree or a bug or enhance aesthetics, that is a violation of property rights.

Scott Holleran: What is the most important case for property rights in American history?

Paul Beard: The most damaging case is a case called Village of Euclid v. Ambler Realty Company in 1926. It was a landmark Supreme Court case that upheld zoning. It’s certainly proper and necessary for the state to prevent people from exercising rights in a way that harms others. Along comes this case in which the first zoning law is challenged in court. The law attempted to plan the way in which property was used for purposes of aesthetics and all types of non-injurious factors. The Supreme Court upheld that under the 14th amendment [and it constitutionalized zoning and the idea that the state can dictate land use including private property]. There’s also a case PLF litigated, Nollan v. California Coastal Commission, and I don’t mean for that to sound self-serving. Exactions began to creep up after 1926 [following the Euclid decision]. Zoning really took off in the 1960s because of the ecology movement—with conservation and easement cases—and the government was doing this routinely over the years. The California Coastal Commission said that whenever anyone along the coast comes to us for a permit to do something we are going to require a public access easement across their property with one contiguous public access easement. The California Coastal Commission used the permitting process to get these permits for free. The Nollan family wanted to replace a bungalow with a single family residence—they wanted to upgrade their own home—on their beach property, so the Nollans sued and it went to the 1987 Supreme Court. The court struck down the decision and the new rule is that whenever the government demands any interest in real property as a condition of a permit, it must first show that the impact of the proposed project necessitates that interest.

Scott Holleran: Does PLF, which takes cases pro bono like Institute for Justice, favor individuals that are poor, old and under some sort of supposed minority status and what is PLF’s criteria for taking a case?

Paul Beard: We have IRS restrictions. In order to maintain our 501(c)3 status, we provide free services to those who can’t otherwise afford it. A case has to be against the government with a legal issue that we think if taken up in the court system will provide a precedent that will broadly benefit a large number of private property owners. A third criteria involves the type of client. Either the client can’t afford legal representation or, given the cost benefit analysis, he wouldn’t otherwise sue.

Obama-Obamacare-SignatureScott Holleran: You are also the lead attorney on the case of Matt Sissel against ObamaCare. What is Mr. Sissel’s claim and what is the status of his case against the dictate?

Paul Beard: That the so-called Affordable Care Act has as its central provision a tax penalty on those who refuse or otherwise decline to obtain the minimum coverage that the federal government has prescribed—and if he doesn’t get that, he pays a penalty and that penalty is a tax according to the Supreme Court. If this penalty is a tax, it fails the origination clause of the Constitution because the ObamaCare with all its taxes originated in the United States Senate but the Constitution requires that all revenue raising bills to originate in the House of Representatives. It plainly in its entirety violates the Constitution and should be struck down. We just lost before a panel of the [District of Columbia] Circuit Court of Appeals and we are now going to seek a rehearing from the entire DC Court of Appeals, which has 11 active judges. If we fail to obtain a successful ruling, then we will seek the Supreme Court’s review, which is very rare. But we think we have a better chance because all it takes is for four of the nine [Supreme Court] Justices to say they want to hear a case for it to get accepted. We think we may have four Justices who dissented from the [National Federation of Independent Businesses (NFIB)] decision on Constitutional grounds. We are also actively investigating a challenge to the capital gains tax—an important revenue-raising aspect of ObamaCare.

Scott Holleran: In legal terms, is health care a right?

Paul Beard: Absolutely not. Health care, like any other service or product, is not a right—you have a right to pursue the purchase of the product or service but you certainly don’t have the right to others’ work and to get it for free. The ban on the pre-existing conditions is based on the same false premise.

Scott Holleran: Does PLF defend whistleblowers such as Edward Snowden who speak out against the state?

Paul Beard: No, we don’t. Our legal objectives are very specific in environmental law and property rights.

Scott Holleran: Is America a nation of laws or of men?

Paul Beard: Increasingly of men—with the passage of the Endangered Species Act, the Clean Water Act, the Clean Air Act, ObamaCare and executive actions.

Scott Holleran: Most of those laws were enacted by Republicans and with conservatives’ support. Who in your view poses the biggest threat to individual liberty: conservatives or leftists?

Paul Beard: Statists are the greatest threat, whatever the ideology. We have done a lot of work with Tea Party groups and I do see a softening and return to basic Constitutionalism and the idea that the primary purpose of government is to protect individual rights.

Scott Holleran: Is it true that you speak five languages?

Paul Beard: Yes. I’m fluent in Spanish, French, Italian and English. I also speak Portuguese.

Scott Holleran: Do you have a philosophy and, if so, what is it and why do you think you need it?

Paul Beard: Yes, I do. I think the most persuasive philosophy is what Ayn Rand articulated, particularly her views on morality and politics, when she created Objectivism. She has revolutionized the way I make every decision in my own life and the way I view religion and the way I approach my work. More than anyone, she has influenced my life.

Scott Holleran: Are you optimistic about the future?

Paul Beard: I am. If I weren’t I’d probably resign today. With the work the grass-roots, Tea Party activists and other groups are doing in the long term, [I think] we will get to the point where everyone values individual rights and demands a government that protects those rights.

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