Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th 761 (1997)

Citation: Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th 761 (1997)
Parent Document: Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th 761 (1997)
Jurisdiction: California (state)
Effective Date: 1997-08-26
Original Source: https://www.courtlistener.com/opinion/5607899/kavanau-v-santa-monica-rent-con... ↗

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Penn Central, supra, 438 U.S. 104, of course did not involve a price regulation. In the context of price regulation, the high court has sometimes employed an analysis under the takings clause similar to that which it employs under the due process clause, focusing on the regulation’s impact and investors’ ability to earn a fair return. In Duquesne, for example, an electric utility argued that electricity rates constituted a taking because the rate-setting agency did not include certain costs in the rate base. (Duquesne, supra, 488 U.S. at p. 305 [109 S.Ct. at p. 614].) Though the court was addressing a takings issue, it did not cite Penn Central. Instead, it cited due process cases, including Permian Basin, supra, 390 U.S. 747, Hope Gas, supra, 320 U.S. 591, and Pipeline Co., supra, 315 U.S. 575, and applied a “fair return” analysis similar to the analysis it had traditionally applied in due process cases. (Duquesne, supra, 488 U.S. at pp. 307-310 [109 S.Ct. at *777pp. 615-617]; see also FCC v. Florida Power Corp. (1987) 480 U.S. 245, 250-254 [107 S.Ct. 1107, 1111-1113, 94 L.Ed.2d 282] (Florida Power) [also applying what appears to be a due process analysis when reviewing a price regulation under the takings clause]; 20th Century, supra, 8 Cal.4th at pp. 292-296 [same]; Cotati, supra, 148 Cal.App.3d at p. 293 [a breach of the due process clause in the context of rent control “might well violate” the takings clause]; 2 Rotunda & Nowak, Treatise on Constitutional Law (2d ed. 1992) § 15.12, p. 505, fn. 59 [“Early Supreme Court opinions concerning utility rate regulation were written in terms of ‘due process of law’, but those opinions are now understood as establishing principles identical to those inherent in the takings clause . . . .”]; Brauneis, “The Foundation of Our ‘Regulatory Takings’ Jurisprudence”: The Myth and Meaning of Justice Holmes’s Opinion in Pennsylvania Coal Co. v. Mahon (1996) 106 Yale L.J. 613, 672, fn. 270 [“More recently, the Court has once again seemed to graft what was originally a due process test of governmental authority onto the Takings Clause . . . .”]; but see Yee v. Escondido, supra, 503 U.S. at p. 529 [112 S.Ct. at p. 1529] [suggesting that traditional takings clause jurisprudence applies to rent regulations]; Pennell v. San Jose (1988) 485 U.S. 1, 8-14 [108 S.Ct. 849, 855-859, 99 L.Ed.2d 1] [treating the takings clause and the due process clause separately when deciding a constitutional challenge to a rent control law].) Court of Appeal Decision in Kavanau I

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