Santa Monica Beach, Ltd. v. Superior Court

BROWN, J., Dissenting.

J., Dissenting. laintiff seeks an opportunity to prove its claim that Santa Monica’s rent control ordinance violates the Fifth Amendment of the United States Constitution. If the standards enunciated by the Supreme Court in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [107 S.Ct. 3141, 97 L.Ed.2d 677] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [114 S.Ct. 2309, 129 L.Ed.2d 304] (Dolan) apply, Santa Monica must show its ceiling on residential rents has “substantially advanced” the ordinance’s legitimate aims and establish a rough proportionality between regulatory means and ends.

Out of the conviction that more than a decade of reinvigorated takings jurisprudence has changed nothing, the majority concludes the rational basis test is still the takings clause standard. On that basis alone, the majority refuses to grant plaintiff the chance to prove its case. According to its reasoning, not only does the takings clause not require Santa Monica to demonstrate a reasonable “fit” or “proportional relationship” between the ordinance’s restrictions on rental property and the ends it is said to further, it is sufficient to suppose the ordinance “substantially advances” those ends. The Fifth Amendment, the majority decides, requires no more.

The majority is wrong. Arbitrary government actions which infringe property interests cannot be saved from constitutional infirmity by the *1025beneficial purposes of the regulators. The framers of the takings clause sought to protect private property without regard to the decency of the government’s intentions. (See Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431, 495.) Although the takings clause is not a guarantee of the economic status quo, it does provide a bulwark against unfairness. (Sax, Takings and the Police Power (1964) 74 Yale L.J. 36, 57.) It is not the fact of loss but the imposition of loss by unfair means which the takings clause seeks to prevent. {Ibid.)

And it is this critical assessment of fairness—variously described as “proportionality,” “cost spreading,” “means-ends,” or “reciprocity of advantage”—which die majority declines to undertake when it invokes the rational basis test to insulate Santa Monica’s rent control ordinance from challenge.

I.

The Logical Limits of Judicial Deference

Judicial review is properly conceived in narrow terms. It is not a license to supersede the exercise of power by a coordinate branch which acts well within constitutional boundaries. Thus, I agree with the majority that it is generally improper for us to put legislation on trial. (Maj. opn., ante, at pp. 963, 973.) “[T]he proper course is to recognize that a [legislative body] can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.”1 (Tyson & Brother v. Banton (1927) 273 U.S. 418, 446 [47 S.Ct. 426, 433-434, 71 L.Ed. 718, 58 A.L.R. 1236] (dis. opn. of Holmes, J.).) As even the majority acknowledges,however, there are “circumstances in which some greater degree of judicial *1026scrutiny ... is appropriate,” particularly when “fundamental constitutional rights [are] at stake.” (Maj. opn., ante, at p. 973, fn. 4.)

The majority’s call to deference thus rests on an unspoken and critical assumption: that property merits only an inferior level of protection. That conclusion, a historical artifact of the demise of the Lochner era,2 has no defensible constitutional provenance.

Under the Fifth Amendment of the United States Constitution no person may be “deprived of life, liberty, or property without due process of law” and private property may not be “taken for public use without just compensation.” The Fourteenth Amendment contains a virtually identical clause. (Cf. Cal. Const., art. I, § 7.)

Nothing in the text or structure of either provision suggests an infringement of a property interest ought to be accorded greater deference than a restriction on a liberty interest. Economic freedoms are no different from other freedoms protected by the Constitution. “[I]t would have seemed a strange anomaly to those who penned the words in the Fifth [Amendment] to learn that they constituted severer restrictions as to Liberty than Property .... I can see no more persuasive reason for supposing that a legislature is a priori less qualified to choose between ‘personal’ than between economic values; and there have been strong protests, to me unanswerable, that there is no constitutional basis for asserting a larger measure of judicial supervision over the first than over the second.” (Hand, The Bill of Rights (1960) pp. 50-51; see also Dolan, supra, 512 U.S. at p. 392 [114 S.Ct. at p. 2320] [“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.”].)

*1027I, too, find the dichotomy inexplicable. (See Board of Education v. Barnette (1943) 319 U.S. 624, 648 [63 S.Ct. 1178, 1190, 87 L.Ed. 1628, 147 A.L.R. 674] (dis. opn. of Frankfurter, J.) [“The Constitution does not give us greater veto power when dealing with one phase of ‘liberty’ than with another. . . . Our power does not vary according to the particular provision of the Bill of Rights which is invoked.”].)

Indeed, the ownership of property is itself an aspect of liberty. “Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right .... [A] fundamental interdependence exists between the personal right to liberty and the personal right [to] property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924) . . . .” (Lynch v. Household Finance Corp. (1972) 405 U.S. 538, 552 [92 S.Ct. 1113, 1121, 31 L.Ed.2d 424].)

Nevertheless, in the aftermath of Lochner and its progeny, the federal high court articulated such a hierarchy, relegating economic rights to a decidedly inferior status. This has resulted in a judicial review not merely deferential but actually nonexistent. The rational basis test—a standard of review which allows legislative action to stand if the court can hypothesize any perfunctory justification for it—is as bad in its own way as substantive due process. Neither approach finds support in the constitutional text.

n.

The Revival of Meaningful Review

In the takings arena, at least, the high court has moved to reclaim some of the ceded territory by imposing a heightened level of scrutiny. There are traces in Nollan suggesting a renewed appreciation of the connection between liberty and property. The majority insists this is no more than rational basis by another name, requiring the party challenging a rent control ordinance to show “ ‘it constitutes an arbitrary regulation of property rights.’ ” (Maj. opn., ante, at p. 967, quoting Dolan, supra, 512 U.S. at p. 391, fn. 8 [114 S.Ct. at p. 2320].) Wrong.

The practical meaning of Nollan is the court’s statement that “land-use regulation does not effect a taking if it ‘substantially advance[s] legitimate state interests’ . . . .” (483 U.S. at p. 834 [107 S.Ct. at p. 3147], italics added.) That statement describes a relational formula, one requiring judges deciding claims under the takings clause to scrutinize the connection or “fit” *1028between property restraints and the ends they purportedly further. The relation is more than one of logic, however, more than a naked “rational” connection between means and ends. It tests both the utility and the proportionality of government-imposed restraints on property. And it challenges government to justify the means chosen to further a particular end by asking two questions.

First, how does a particular limitation advance the ends the government asserts it furthers? Second, is the restraint “tailored” (in the language of equal protection) or “proportional” (in the language of the takings clause) to the end the government asserts is promoted? The inquiry is “equitable” in the chancery’s traditional sense. Regulators whose land use restraints are challenged as takings are required to do more than speculate that a given restraint might conceivably advance a legitimate governmental end. They must substantiate, if only “roughly,” a factually grounded, proportional relationship between property restraints and the goals they purportedly further.

Although the majority argues strenuously that these governing precedents must be narrowly limited to their facts, there is no basis in Nollan for concluding different tests apply to different kinds of regulatory takings, i.e., permit exactions but not legislative enactments. (Manocherian v. Lennox Hill Hosp. (1994) 84 N.Y.2d 385 [618 N.Y.S.2d 857, 643 N.E.2d 479]; see Trimen Development Co. v. King County (1994) 124 Wn.2d 261 [877 P.2d 187].) Why should the existence of a taking turn on the type of governmental entity responsible for the taking? For constitutional purposes, a taking is a taking. Some takings—physical seizures and regulations which deprive the owner of all economically viable use—are compensable per se; takings claims that fall outside those narrow categories are subject to heightened scrutiny—“a uniform, clear and reasonably definitive standard of review in takings cases.” (Manocherian, supra, 643 N.E.2d at p. 483.) Indeed, the dissent in Nollan complained that the majority’s rationale would impact all regulatory takings cases and noted the court’s “exactitude” was inconsistent with its prior standard for reviewing the rationality of a state’s exercise of its police power. (Ibid., quoting Nollan, supra, 483 U.S. at pp. 842-843 [107 S.Ct. at pp. 3151-3152] (dis. opn. of Brennan, J.).)

As Gerald Gunther has pointed out, the legitimacy of means-focused scrutiny is as old as the Constitution itself. It requires courts to “take seriously a constitutional requirement that has never been formally abandoned: that legislative means must substantially further legislative ends. . . . The core of that principle survived the constitutional revolution of 1937.” (Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A *1029Model for a Newer Equal Protection (1972) 86 Harv. L.Rev. 1, 20-21, italics added (Evolving Doctrine).)

Two features of Nollan bear directly on the question of the intensity of means scrutiny as applied to land use regulatory restraints. Unlike the rational basis standard, which forswears genuine evidentiary burdens on the government, Nollan contemplates a factual defense in support of the claim that a given regulatory restraint actually promotes specific ends. Professor Gunther has described the nature of the government’s burden this way: “[Means scrutiny] requires that there be an affirmative relation between means and ends .... The model would have the Court assess the [government’s] justification . . . largely in terms of information presented by the defenders of the law rather than hypothesizing data of its own.” (Evolving Doctrine, supra, 86 Harv. L.Rev. at p. 47.)

What does Nollan’s “means scrutiny” amount to in the larger context of constitutionally permissible property restraints? Most notably, the Nollan standard is nonsubstantive. It has no concern, strict or permissive, with the validity of legislative ends. Nor does it require land use regulators to demonstrate a “compelling interest” (or any interest) to justify them. Those are substantive matters left to political decisionmaking and legislative competence. And because it is means-focused, the Nollan test is instrumental, examining the utility of specific limitations regulators have chosen as furthering articulable ends, rather than the merits of the ends themselves.

HI.

Fairness, Proportion, and the Limits of Democratic Process

Although the constitutional compensation requirement is considered a necessary restraint on the despotic exercise of absolute, arbitrary, and uncontrollable government power (Story, Commentaries on the Constitution of the United States (1987) § 933, pp. 663-664; Chicago, Burlington &c. R’d Co. v. Chicago (1897) 166 U.S. 226, 237 [17 S.Ct. 581, 586, 41 L.Ed. 979]), courts have prudently recognized the takings clause “cannot be pressed to its grammatical extreme . . . .” (Tyson & Brother v. Banton, supra, 273 U.S. at p. 446 [47 S.Ct. at p. 433] (dis. opn. of Holmes, J.).) There must be, in Justice Holmes’s descriptive phrase, “some play ... to the joints” for the machinery of government to work. (Ibid.; see Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 412-416 [43 S.Ct. 158, 159-160, 67 L.Ed. 322, 28 A.L.R. 1321].)

“[Government regulation—by definition—involves the adjustment of rights for the public good. Often this adjustment curtails some potential for *1030the use or economic exploitation of private property.” (Andrus v. Allard (1979) 444 U.S. 51, 65 [100 S.Ct. 318, 326-327, 62 L.Ed.2d 210].) The constitutional guarantee against uncompensated takings is not violated by every adjustment of the benefits and burdens of economic life, but it is contravened when the adjustment is clearly disproportionate, “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (Armstrong v. United States (1960) 364 U.S. 40, 49 [80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554].) It is this elementary notion—that the takings clause embodies a fundamental principle of fairness in the distribution of economic burdens—that the Nollan/Dolan matrix seeks to effectuate. In the context of regulatory takings, the means-ends test allows a rough approximation of where government action falls along a continuum ranging from clearly permissible general adjustments, those that “securef] an average reciprocity of advantage,” as Justice Holmes described them (Penna. Coal Co. v. Mahon, supra, 260 U.S. at p. 415 [43 S.Ct. at p. 160]), to unconstitutional predatory or rent-seeking exactions.

In his concurring and dissenting opinion in Pennell v. San Jose (1988) 485 U.S. 1, 15 [108 S.Ct. 849, 859, 99 L.Ed.2d 1], Justice Scalia illustrated this means-ends relationship. That case involved due process, equal protection and takings clause challenges by landlords to the San Jose rent control ordinance. A majority of the court refused to decide the takings claim on the ground “it would be premature to consider this contention on the present record.” (Id. at p. 9 [108 S.Ct. at p. 856].) But in his separate opinion, Justice Scalia addressed the takings clause claim. Because one of the provisions of the San Jose ordinance used to fix residential rent ceilings included a “tenant hardship” factor, the ordinance, according to Justice Scalia, had the effect of requiring landlords to subsidize those tenants unable to pay market rents. That consequence, Justice Scalia wrote, violated the takings clause: “The traditional manner in which American government has met the problem of those who cannot pay reasonable prices for privately sold necessities—a problem caused by the society at large—has been the distribution to such persons of funds raised from the public . . . through taxes .... Unless we are to abandon the guiding principle of the Takings Clause that ... is the only manner that our Constitution permits.” (Pennell v. City of San Jose, supra, 485 U.S. at pp. 21-22 [108 S.Ct. at pp. 862-863] (conc. and dis. opn. of Scalia, J.).)

No provision of the Santa Monica rent control ordinance resembles the “tenant hardship” feature of the ordinance in Pennell. But Justice Scalia’s point—that the hardship factor violated the takings clause by arbitrarily transferring value from one (landlords) to another (tenants unable to pay rent)—is no different in principle from the effect of any rent control measure. All such redistributive schemes involve an implicit subsidy of tenants *1031by property owners, a subsidy by which value is taken from one and given to another.

It is not the transfer of value that is constitutionally suspect; it is the distributive inequality of the means by which it is effected. If the core principle underlying the takings clause is that “public burdens . . . should be borne by the public as a whole,” (Armstrong v. United States, supra, 364 U.S. at p. 49 [80 S.Ct. at p. 1569]) that principle is arguably violated by all rent control schemes. Instead of raising the sums necessary to provide subsidies to qualified renters through a general public tax—the “traditional manner” by which public subsidies have been raised—rent control singles out a small segment of the public, owners of residential rental property, to bear the entire cost. The effect is to “load[] upon one individual more than his just share of the burdens of government” and to require that “he surrender[] to the public something more and different from that which is exacted from other members of the public . . . .” (Monongahela Navigat’n Co. v. United States (1893) 148 U.S. 312, 325 [13 S.Ct. 622, 626, 37 L.Ed. 463].)3

There is a troubling political feature to rent control as well, one also underlined in Justice Scalia’s separate opinion in Pennell. (485 U.S. at pp. 20-23 [108 S.Ct. at pp. 862-863].) “The politically attractive feature of [rent control] is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved ‘off budget,’ with relative invisibility and . . . relative immunity from . . . democratic processes. San Jose might, for example, have accomplished something like the result here by simply raising the real estate tax upon rental properties and using the additional revenues ... to pay part of the rents of ‘hardship’ tenants .... Subsidies for . . . groups [e.g., senior citizens, students, the handicapped, or war veterans] may well be a good idea, but because of the . . . Takings Clause our governmental system has required them to be applied, in general, through the process of taxing and spending, where both economic effects and competing priorities are more evident.” (Id. at pp. 22-23 [108 S.Ct. at p. 863] (conc, and dis. opn. of Scalia, J.); cf. Prop. Owners Ass’n, etc. v. Tp. of No. Bergen (1977) 74 N.J. 327 [378 A.2d 25, 31, 5 A.L.R.4th 908] [“compelled [rent] subsidization by landlords or by tenants who happen to live in an apartment building with [low income] senior citizens” held unconstitutional as confiscatory].)

*1032The politics of rent control are not confined to “invisible” regulations. Santa Monica’s program was approved by a majority of the city’s voters. Does that “democratic” feature eliminate the concerns Justice Scalia expressed in Pennell? Would overwhelming voter approval of a proposal to confiscate the assets of a local (and unpopular) religious sect survive constitutional scrutiny? In American constitutional discourse, such questions lack legitimacy; they neither require nor deserve a response: The “very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (Board of Education v. Barnette, supra, 319 U.S. at p. 638 [63 S.Ct. at pp. 1185-1186] (per Jackson, J.).) The difficulty with such distributive schemes is not, to borrow from Alexander Bickel, the “counter-majoritarian difficulty,” it is the majoritarian difficulty itself. (Cf. Bickel, The Least Dangerous Branch (2d ed. 1986) pp. 16-23.) Along with other provisions of the national Constitution, the takings clause stands as a bulwark against confiscatory acts by a majority.

Nor are the social effects of an unprincipled majoritarianism difficult to discern. As Justice Scalia’s dissent in Pennell suggests, it is not likely that a majority of voters would approve publicly financed rent control; if, that is, voters had to pay the cost. Of course, someone must pay the substantial cost of rent ceilings. When those costs are paid by rental property owners through government compulsion, however, it is impossible to measure the intensity of public support for rent subsidies. A majority is thus able to impose ceilings on rents while, at the same time, shifting their cost from the public to a small minority—owners of rental property. Thus, Notion’s proportionate impact requirement “does more than distribute the costs of government programs. It has the desirable allocative consequence of reducing the frequency of undesirable government programs in the first instance. . . .” (Epstein, Rent Control and the Theory of Efficient Regulation (1989) 54 Brook. L.Rev. 741, 755; see also Nozick, Anarchy, State and Utopia (1974) pp. 270-271 [“So why do people find the subletting-allowed scheme [of rent control] unacceptable? It[s] defect is that it makes explicit the partial expropriation of the owner.”].)

The fact that the state has acted through “the landlord-tenant relationship does not magically transform general public welfare, which must be supported by all the public, into mere ‘economic regulation’ which can disproportionately burden particular individuals.” (Pennell v. San Jose, supra, 485 U.S. at p. 22 [108 S.Ct. at p. 863] (conc. and dis. opn. of Scalia, J.).) The key *1033to the takings clause is fairness, and the imposition of loss by unfair means is what the clause seeks to prevent. Thus, “just compensation,” like the notion of “just price,” contains a subtext of reciprocity. The “substantially advance” test is just a way of measuring whether the benefit and burden are relatively equal. If they are, compensation is not required. Where government can demonstrate a close, and proportional, match between means and ends, i.e., a “proportional nexus,” the impact of the regulation is necessarily small, the burden offset by the benefit, and the interference spread over the general population. Where the connection between the regulation and its purported ends is both indirect and conjectural, or clearly disproportionate, fairness and justice require that compensation be paid. (Dolan, supra, 512 U.S. at p. 391 [114 S.Ct. at p. 2319]; Nollan, supra, 483 U.S. at p. 865 [107 S.Ct. at p. 3163].)

Instead of attempting to measure the actual fit between the city’s rent ceiling and its fact-based justifications for the ordinance, the majority applies an enfeebled rational basis standard, and contents itself with supposing that some generalized conception of the public good might be promoted by the means chosen. But a laissez-faire attitude toward takings claims is no longer good enough. The United States Supreme Court’s precedents appear to establish a minimal level of protection which this court lacks authority to diminish.

Indeed, even on its own terms, today’s decision is anomalous. In effect, the majority concedes the ordinance does not further its stated goal of “providing affordable housing for the poor, the elderly, and young families” (maj. opn., ante, at pp. 969, 970-971) by quoting approvingly from the due process analysis of Schnuck v. City of Santa Monica (9th Cir. 1991) 935 F.2d 171, 175 (Schnuck): “[Plaintiff] contends that the Rent Control Law does not ‘substantially advance’ its purpose, which she misperceives as only to help the poor, elderly, minorities, and families with children. The Rent Control Law’s stated purpose is to help all Santa Monica tenants, not just those within the mentioned groups, and not those who wish to become tenants there. [Citation.] Controlling rents to a reasonable level and limiting evictions substantially alleviate hardships to Santa Monica tenants. That rent control may unduly disadvantage others, or that it may exert adverse long-term effects on the housing market, are matters for political argument and resolution; they do not affect the constitutionality of the Rent Control Law.” (Fns. and italics omitted; see maj. opn., ante, at p. 970.) But these are precisely the concerns which affect the constitutionality of the ordinance under the takings clause.

The Schnuck court declined to consider the regulatory takings claim because the plaintiff, who objected to the ordinance as applied, had not *1034sought compensation through an inverse condemnation action. (Schnuck, supra, 935 F.2d at pp. 173-174.) The case certainly cannot be cited for the proposition that such a broad statement of purpose (“to help all Santa Monica tenants” [italics omitted]) would survive a challenge under the takings clause. Moreover, in a case decided after Schnuck, the high court left no doubt that the “substantially advance” test is properly applied to regulatory takings claims. (See Yee v. Escondido (1992) 503 U.S. 519, 534 [112 S.Ct. 1522, 1532, 118 L.Ed.2d 153] [petitioners “allege in this Court that the ordinance does not ' “substantially advance” ’ a ‘ “legitimate state interest” ’ no matter how it is applied. See Nollan v. California Coastal Comm’n, supra, at p. 834; Agins v. Tiburon, 447 U.S. 255, 260 (1980) [100 S.Ct. 2138, 2141, 65 L.Ed.2d 106].”].)

Regulatory takings claims implicate both prongs of the Fifth Amendment. To survive a takings challenge, the government’s actions must substantially advance narrowly tailored goals. Conversely, to defend broadly defined exercises of the police power, the government must show that general public burdens are not being imposed arbitrarily or in a discriminatory fashion. The “substantially advance” test thus assumes the legitimacy of the state’s interest. But the legitimacy and validity of that interest is always open to a challenge under the due process clause. In this case, if Santa Monica’s goal under the ordinance may be broadly defined as assisting all tenants, then landlords can be compelled to subsidize those who are better off than they are and to subordinate their priorities to the priorities of all their tenants. The plaintiff in Schnuck, for example, was an elderly widow who owned an eight-unit apartment building subject to the Santa Monica rent control ordinance. She lived in a third floor apartment and rented the other units. After suffering a stroke, she wanted to move to the first floor apartment in order to avoid having to climb the stairs. The first floor tenant refused to move, however, and the rent control board informed Schnuck that the tenant could not be evicted. (Schnuck, supra, 935 F.2d at p. 172.) How can such an arbitrary and despotic regime be justified as a proper exercise of the police power—even under the less exacting standards of the due process clause?

Concurring in Railway Express v. New York (1949) 336 U.S. 106 [69 S.Ct. 463, 93 L.Ed. 533], Justice Jackson wrote that the “framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were *1035affected.” (Id. at pp. 112-113 [69 S.Ct. at pp. 466-467].) Justice Jackson was discussing the equal protection clause, but as Professor Gunther has pointed out, imposing a minimally rational means-ends test, whether under the due process and equal protection clauses or the “substantially advance” standard of the takings clause would help “to assure rationality of means, without unduly impinging on legislative prerogatives regarding ends.” (Evolving Doctrine, supra, 86 Harv. L.Rev. at p. 23.)

Conclusion

The majority’s assertion that “the heightened intermediate scrutiny standard articulated in Nollan and Dolan does not apply in this case” (maj. opn., ante, at p. 967) is more wish than fact. Rent control measures have been upheld by the United States Supreme Court under circumstances easily distinguished from those present here. Controls have been sustained as either short-term “emergency” measures (e.g., Block v. Hirsh (1921) 256 U.S. 135 [41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165] [war powers clause]) or against challenges under the due process clause, a quite dissimilar standard. (See, e.g., Pennell v. San Jose, supra, 485 U.S. at pp. 11-13 [108 S.Ct. at pp. 857-858]; see also Nollan, supra, 483 U.S. at pp. 834-835, fn. 3 [107 S.Ct. at p. 3147].) In light of the history of due process economic standards discussed above, these cases provide no basis for assuming such controls will survive Nollan’s means scrutiny under the just compensation clause. Indications are to the contrary (compare Chastleton v. Sinclair (1924) 264 U.S. 543 [44 S.Ct. 405, 68 L.Ed. 841] with Nollan, supra, 483 U.S. 825), and the question remains an open one. If such measures are capable of withstanding a Nollan-inspired takings clause analysis, the high court ought to tell us so, preferably sooner rather than later.

Until that day, I dissent.

I strongly disagree with the aggressive notion of appropriate judicial review espoused by one of my dissenting colleagues. He notes the plurality in American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 [66 Cal.Rptr.2d 210, 940 P.2d 797] “expressly endorsed a procedure whereby the. lower court did exactly what the majority [here] decries: it ‘invalidate[d] legislation that it [found], after a trial, [would] fail[] to live up to expectations.’ ” (Dis. opn. of Chin, J., ante, at p. 1022.)

In my view, this “procedure” improperly usurped legislative power and injected the court into an area in which it could claim no competence. A trial may be a crucible for finding truth, i.e., determining what particular facts occurred in a particular case, but it is not a crucible for revealing “The Truth.” “[I]n matters of normative judgment, no court should be in the position to supplant a society’s collective understanding, distilled through experience and expressed in legislative enactments, on the basis of the evidence presented in a single case. . . . [¶] When fundamentally moral and philosophical issues are involved and the questions are fairly debatable, the judgment call belongs to the Legislature.” (American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at pp. 446-447 (dis. opn. of Brown, J.).)

Lochner (Lochner v. New York (1905) 198 U.S. 45 [25 S.Ct. 539, 49 L.Ed. 937]) is the name that has come to symbolize judicial usurpation of power. But the problem with Lochner was not that it sought to make judicial review meaningful or that it deemed economic interests worthy of protection. The Lochner court was justly criticized for using the due process clause “as though it provided a blank check to alter the meaning of the Constitution as written.” (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 675 [86 S.Ct. 1079, 1086, 16 L.Ed.2d 169].) The “revolution of 1937” ended the era of economic substantive due process but it did not dampen the court’s penchant for rewriting the Constitution. Although the court left the protection of property interests largely to the mercy of legislatures, it continued to apply substantive due process to the protection of civil liberties. “As several of the Justices have noted in dissent, there is only a verbal difference between the ‘fundamental rights’ branch of the compelling governmental interest test and the now discredited substantive due process doctrine of such cases as Lochner. . . . Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected . . . .” (Lusky, By What Right? (1975) p. 266, fns. omitted.)

The author of today’s majority opinion dissented in Pennell v. City of San Jose (1986) 42 Cal.3d 365 [228 Cal.Rptr. 726, 721 P.2d 1111]. His views reflected the same Armstrong-like theme of distributive unfairness as Justice Scalia’s dissent: “[T]he issue is whether [the] obligation [of satisfying the housing needs of those with low incomes] can be thrust upon private property owners rather than remain a responsibility of society as a whole through tax-supported government agencies. ... I am convinced [San Jose’s] scheme is unconstitutional.” (Pennell v. City of San Jose, supra, 42 Cal.3d at pp. 375-376 (dis. opn. of Mosk, J.).)