Scheehle v. Justices of the Supeme Court of Arizona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK V. SCHEEHLE, 
Plaintiff-Appellant,
v.
JUSTICES OF THE SUPREME COURT OF
ARIZONA; REBECCA WHITE BERCH;
ANDREW D. HURWITZ; CHARLES E. No. 05-17063
JONES; RUTH V. MCGREGOR;
MICHAEL D. RYAN; JUDGES OF THE  D.C. No.
CV-98-01095-SMM
SUPERIOR COURT OF THE STATE OF
OPINION
ARIZONA, IN AND FOR THE
COUNTY OF MARICOPA; COLIN F.
CAMPBELL; MARGARET H. DOWNEY;
MICHAEL A. MCVEY; JONATHAN H.
SCHWARTZ,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
October 18, 2007—San Francisco, California
Filed November 15, 2007
Before: Jane R. Roth,* Sidney R. Thomas, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
14927
SCHEEHLE v. JUSTICES 14929
COUNSEL
Mark V. Scheehle, of Prescott Valley, Arizona, for plaintiff-
appellant Mark V. Scheehle.
Terry Goddard, Arizona Attorney General, and Paula S.
Bickett (argued), Chief Counsel — Civil Appeals, of Phoenix,
Arizona, for the defendants-appellees.
14930 SCHEEHLE v. JUSTICES
OPINION
CALLAHAN, Circuit Judge:
Mark V. Scheehle, an Arizona tax lawyer, challenges as an
unconstitutional taking the Arbitrator Appointment System of
the Maricopa County Superior Court (“Appointment Sys-
tem”), which requires that an experienced attorney serve as an
arbitrator for up to two days a year with minimal compensa-
tion. Following a decision by the Arizona Supreme Court that
the Appointment System was permissible under Arizona law,
the district court reaffirmed its grant of defendants’ motion
for summary judgment. We now affirm. We hold that Schee-
hle’s constitutional challenge to the Appointment System is
properly considered under the regulatory takings test set forth
in Penn Central Transportation Company v. City of New
York, 438 U.S. 104 (1978), and applying that test, we con-
clude that the impact of the Appointment System on Scheehle
does not amount to a taking for which Scheehle is entitled to
compensation under the Fifth Amendment.
I.
Arizona law requires that each superior court, by rule of
court, provide for the arbitration of cases in which the amount
in controversy does not exceed $65,000. Ariz. Rev. Stat. § 12-
133. At the time this action was filed, the Local Rules of Prac-
tice for the Superior Court of Maricopa County required that
all attorneys who reside in the county and have been active
members of the Arizona Bar for five years serve as arbitrators.1
Attorneys who served as arbitrators under the Appointment
System were paid a flat fee of $75 for each day in which they
actually conducted an arbitration hearing. The Superior Court
1
It appears that subsequent amendments to the Arizona Rules of Civil
Procedure may have extended the requirement to serve as an arbitrator to
attorneys who have been active members of the Arizona Bar for at least
four years.
SCHEEHLE v. JUSTICES 14931
rules further provided that an attorney who had served as an
arbitrator for two or more days during the year could be
excused.
Scheehle has been a member of the Arizona Bar since
1981, and a certified tax specialist since 1988. In September
1996, Scheehle was appointed as the arbitrator in a motor
vehicle personal injury action. He served as an arbitrator and
submitted a report to the Maricopa Superior Court in Decem-
ber 1997. In July 1997, Scheehle was appointed as the arbitra-
tor in a second motor vehicle personal injury suit and
accepted the appointment. In October 1997, while still serving
as the arbitrator in the second action, Scheehle was appointed
as the arbitrator in a third personal injury action.
Scheehle decided to challenge the authority of the Arizona
courts to require that he serve as an arbitrator. He returned the
file to the Presiding Arbitration Judge of the Maricopa County
Superior Court with a letter declining to serve as an arbitrator.
He also expressed his unwillingness to serve as an arbitrator
in any subsequent case, and his belief that the Appointment
System was unconstitutional and violated Arizona law. The
judge responded by holding a telephone conference at which
Scheehle placed his objections on the record. The judge fur-
ther encouraged Scheehle to apply for relief for good cause
shown from the particular assignment, but Scheehle declined,
choosing to challenge the Appointment System as a whole.
Scheehle was allowed to file a brief in support of his position.
In January 1998, the Presiding Arbitration Judge entered an
order rejecting Scheehle’s arguments and imposing a $900
sanction on Scheehle for refusing the arbitrator appointment.2
Scheehle chose to initially challenge the sanction order by
filing a Petition for Special Action with the Arizona Supreme
2
Scheehle was again appointed to arbitrate a case in July 1998, but
because of his ongoing legal challenge to the arbitration system, he was
excused.
14932 SCHEEHLE v. JUSTICES
Court, but the Arizona Supreme Court declined to accept
jurisdiction over the petition. Scheehle then filed a complaint
in the United States District Court for the District of Arizona
naming the justices of the Arizona Supreme Court as the lead
defendants. The complaint alleged that the Appointment Sys-
tem amounted to (1) an unconstitutional taking of property
rights under the Fourteenth Amendment, (2) a denial of due
process under the Fourteenth Amendment, (3) a denial of
equal protection under the Fourteenth Amendment, (4) a
denial of rights of freedom of speech and freedom of associa-
tion under the Fourteenth Amendment, (5) involuntary servi-
tude in violation of the Thirteenth Amendment, and (6)
violation of the separation of powers doctrine. The complaint
also asserted supplemental state law claims.
On January 28, 2000, the district judge issued an order
granting summary judgment to defendants on all of Schee-
hle’s claims under the Constitution and dismissing his supple-
mental state law claims. The district court concluded:
Plaintiff’s claims under the United States Constitu-
tion must fail. The limited service required of attor-
neys by the Maricopa system is too minimal to
constitute a compensable taking of property. Plaintiff
has raised no evidence of a procedural flaw in his
treatment by the Maricopa courts, nor has he sup-
ported his equal protection arguments. Plaintiff’s
First and Thirteenth Amendment claims have no
basis in facts or in existing law.
Scheehle filed an appeal with this court asserting that the
Appointment System constituted a taking of his property
without compensation in violation of the Fifth Amendment
and violated his rights under the Equal Protection Clause of
the Fourteenth Amendment. Although we initially affirmed
the district court’s grant of summary judgment, we subse-
quently vacated that opinion3 and certified a question concern-
3
Scheehle v. Justices of Supreme Court of State of Arizona, 269 F.3d
1127 (9th Cir. 2001), withdrawing Scheehle v. Justices of the Supreme
Court of Arizona, 257 F.3d 1082 (9th Cir. 2001).
SCHEEHLE v. JUSTICES 14933
ing the propriety of the Appointment System to the Arizona
Supreme Court. After the Arizona Supreme Court answered
the certified question, we remanded the case to the district
court. Scheehle v. Justices of the Supreme Court of Arizona,
315 F.3d 1191 (9th Cir. 2003).
On remand, the district court, at Scheehle’s request, again
certified a question concerning the propriety of the Appoint-
ment System under Arizona law to the Arizona Supreme
Court. The Arizona Supreme Court accepted the certification
and held that it had “authority to promulgate a court rule
authorizing the superior courts in each county of this state to
require active members of the state bar to provide limited ser-
vice as arbitrators.” Scheehle v. Justices of the Supreme Court
of Arizona, 211 Ariz. 282, 285, 120 P.3d 1092, 1095 (2005).
Following receipt of the Arizona Supreme Court’s opinion,
the district court denied Scheehle’s motion for reconsideration
of summary judgment and entered judgment. The case is
again before us on Scheehle’s timely appeal from the judg-
ment.
II.
We review the district court’s grant of summary judgment
de novo. Thomas v. City of Beaverton, 379 F.3d 802, 807 (9th
Cir. 2004). However, this is not a situation where there are
any outstanding questions of fact. Rather, the provisions of
the Appointment System are known, as is the authority for the
system under Arizona law. Thus, Scheehle’s claim that the
Appointment System violates the Just Taking Clause of the
Fifth Amendment is ripe for determination.
Scheehle asserts that the Appointment System implicates
two distinct types of property interests: (1) his services as a
lawyer, and (2) his out-of-pocket costs necessarily incurred in
arbitrating a case. He contends that he is deprived “of the eco-
nomic benefit of his labor when his services are taken for
14934 SCHEEHLE v. JUSTICES
public use as an arbitrator.” He notes that numerous courts
have recognized that a lawyer has a property interest in his or
her law practice, as well as the funds a lawyer must expend
in order to practice law. From this premise, Scheehle reasons
that “a court appointment compelling an attorney to serve as
an arbitrator is a taking of property for which just compensa-
tion is required.” Scheehle further asserts that cases address-
ing real property takings that apply the regulatory takings test
are not applicable to his case because the time and effort an
attorney “devotes to serving as an arbitrator can never be
recovered, and the attorney is deprived of all economically
beneficial use of such time and effort.”
A. Scheehle has not shown that he is entitled to
compensation under the regulatory takings test.
There is no question that the Appointment System deprived
Scheehle of something. The question is whether the depriva-
tion is of a nature or amount such as to constitutionally
require compensation. In Lingle v. Chevron U.S.A., Inc., 544
U.S. 528 (2005), Justice O’Connor sets forth the framework
to Scheehle’s contentions. She noted:
The Takings Clause of the Fifth Amendment, made
applicable to the States through the Fourteenth, see
Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,
. . . (1897), provides that private property shall not
“be taken for public use, without just compensation.”
As its text makes plain, the Takings Clause “does not
prohibit the taking of private property, but instead
places a condition on the exercise of that power.”
First English Evangelical Lutheran Church of Glen-
dale v. County of Los Angeles, 482 U.S. 304, . . .
(1987). In other words, it “is designed not to limit
the governmental interference with property rights
per se, but rather to secure compensation in the event
of otherwise proper interference amounting to a tak-
ing.” Id., at 315, . . . (emphasis in original).
SCHEEHLE v. JUSTICES 14935
...
Beginning with [Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922)], however, the Court recog-
nized that government regulation of private property
may, in some instances, be so onerous that its effect
is tantamount to a direct appropriation or ouster —
and that such “regulatory takings” may be compen-
sable under the Fifth Amendment. In Justice
Holmes’ storied but cryptic formulation, “while
property may be regulated to a certain extent, if reg-
ulation goes too far it will be recognized as a tak-
ing.” 260 U.S., at 415, . . . The rub, of course, has
been — and remains — how to discern how far is
“too far.” In answering that question, we must
remain cognizant that “government regulation — by
definition — involves the adjustment of rights for
the public good,” Andrus v. Allard, 444 U.S. 51, 65,
. . . (1979), and that “Government hardly could go on
if to some extent values incident to property could
not be diminished without paying for every such
change in the general law,” Mahon, supra, at 413.
544 U.S. at 536-38.
[1] Since the Fifth Amendment does not prohibit the taking
of private property, but rather “places a condition on the exer-
cise of that power,” we must look to how the Supreme Court
has defined that condition. In Penn Central, the Court
observed that the “question of what constitutes a ‘taking’ for
purposes of the Fifth Amendment has proved to be a problem
of considerable difficulty.” 438 U.S. at 123. The Court pro-
ceeded to identify several factors of particular significance to
an evaluation of a regulatory takings claim. In Lingle, the
Court summarized these factors as follows:
Primary among those factors are “[t]he economic
impact of the regulation on the claimant and, particu-
14936 SCHEEHLE v. JUSTICES
larly, the extent to which the regulation has inter-
fered with distinct investment-backed expectations.”
[438 U.S. at 124.] In addition, the “character of the
governmental action” for instance whether it
amounts to a physical invasion or instead merely
affects property interests through “some public pro-
gram adjusting the benefits and burdens of economic
life to promote the common good” — may be rele-
vant in discerning whether a taking has occurred.
Ibid. The Penn Central factors — though each has
given rise to vexing subsidiary questions — have
served as the principal guidelines for resolving regu-
latory takings claims that do not fall within the phys-
ical takings or Lucas rules. See, e.g., Palazzolo v.
Rhode Island, 533 U.S. 606, . . . ; id., at 632-634, . . .
(O’Connor, J., concurring).
Although our regulatory takings jurisprudence can-
not be characterized as unified, these three inquiries
(reflected in Loretto, Lucas, and Penn Central )
share a common touchstone. Each aims to identify
regulatory actions that are functionally equivalent to
the classic taking in which government directly
appropriates private property or ousts the owner
from his domain. Accordingly, each of these tests
focuses directly upon the severity of the burden that
government imposes upon private property rights.
544 U.S. at 538-39.
[2] When the regulatory takings test factors are applied to
Scheehle’s claim, the compelled conclusion is that there has
been no constitutional taking. First, the economic impact of
the imposition on Scheehle is negligible. He is required to
devote two days out of the 365 days in a year to arbitration.
Moreover, there is no showing or suggestion that this obliga-
tion interfered with any existing legal work.4 Second, the obli-
4
The Appointment System appears to allow for recusals if the arbitra-
tion would interfere with an attorney’s existing obligations to clients.
SCHEEHLE v. JUSTICES 14937
gation does not interfere with any “distinct investment-backed
expectations.” To the contrary, in accepting admission to the
Arizona Bar, and in practicing before the Maricopa Superior
Court, Scheehle voluntarily became an officer of the court
with the concomitant obligation to render service to the court
when requested. See United States v. Dillon, 346 F.2d 633,
635 (9th Cir. 1965); see also Powell v. Alabama, 287 U.S. 45,
65 (1932). Third, the Appointment System “merely affects
property interests through ‘some public program adjusting the
benefits and burdens of economic life to promote the public
good.’ ” Lingle, 544 U.S. at 539. In return for a license to
practice law in Arizona, Scheehle is obligated to serve for two
days a year as an arbitrator — a position that his training as
a lawyer (despite his subsequent specialization), admission to
the bar, and years of practice make him particularly qualified
to perform. There is no suggestion, nor will the record support
the suggestion, that this two-day obligation remotely out-
weighs the benefits conferred by admission to the practice of
law. In sum, the Appointment System’s imposition on Schee-
hle when evaluated under the regulatory takings test is not a
“taking” under the Fifth Amendment that requires compensa-
tion.5
B. The per se test for takings under the Fifth Amendment
is not applicable to Scheehle’s claim.
Scheehle seeks to avoid the compelled result of the applica-
tion of the regulatory takings test by urging that we should
use a per se test because the time and effort an attorney “de-
votes to serving as an arbitrator can never be recovered, and
the attorney is deprived of all economically beneficial use of
such time and effort.” He asserts that like the interest income
5
The district court properly rejected Scheehle’s claim for out-of-pocket
expenses noting that he had not quantified his actual costs and expenses
or indicated that they exceeded the $75.00 per day which he received for
serving as an arbitrator. On appeal, Scheehle has not argued that the dis-
trict court’s findings were wrong.
14938 SCHEEHLE v. JUSTICES
at issue in Phillips v. Washington Legal Foundation, 524 U.S.
156 (1998),6 his “law license, knowledge, training, experi-
ence, expertise, skill, time, and energies” are intangible prop-
erties that may not be taken without the payment of just
compensation.
[3] Scheehle’s approach, however, is contrary to case law
and circuit precedent. In Lingle, 544 U.S. at 537-38, the
Supreme Court discussed when a per se rule should be used.
It first noted that over the years it has recognized “that gov-
ernment regulation of private property may, in some
instances, be so onerous that its effect is tantamount to a
direct appropriation or ouster — and such ‘regulatory takings’
may be compensable under the Fifth Amendment.” Id. at 537.
The Court’s indication that only “onerous” regulations require
compensation implicitly confirms that the regulatory takings
test is the general standard. Indeed, the Court went on to state:
Our precedents stake out two categories of regula-
tory action that generally will be deemed per se tak-
ings for Fifth Amendment purposes. First, where
government requires an owner to suffer a permanent
physical invasion of her property — however minor
— it must provide just compensation. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S.
6
Phillips does not support Scheehle’s claim because there the Supreme
Court determined that under an Interest on Lawyers Trust Account
(IOLTA) program, the interest earned was private property. Here, there is
no question that Scheehle’s services constitute private property. Moreover,
Phillips appears to have been limited by the Supreme Court’s subsequent
opinion in Brown v. Legal Foundation of Washington, 538 U.S. 216
(2003). There the Court held that where private property is taken, the “just
compensation” required by the Fifth Amendment “is measured by the
property owner’s loss rather than the government’s gain,” id. at 235-36,
and appears to place the burden of showing loss on the claimant. Id. at
236-37. Thus, even if the per se test were applicable, it is not clear
whether Scheehle would be able to rely on his hourly rate or would be
required to present evidence of work actually lost or declined due to his
serving as an arbitrator.
SCHEEHLE v. JUSTICES 14939
419, . . . (1982) . . . . A second categorical rule
applies to regulations that completely deprive an
owner of “all economically beneficial us[e]” of her
property. Lucas, 505 U.S., at 1019, . . . (emphasis in
original). . . .
Outside these two relatively narrow categories . . . ,
regulatory takings challenges are governed by the
standards set forth in Penn Central Transp. Co. v.
New York City, 438 U.S. 104, . . . (1978).
544 U.S. at 538.
[4] Scheehle’s claim does not fit within either of these
exceptions to the application of the regulatory takings test.
Obviously the obligation to serve two days a year as an arbi-
trator does not deprive Scheehle of “all economic beneficial
use” of his license. His better argument is that the two-day
obligation is in essence a minor, but permanent, physical
invasion of his property. This argument, however, depends on
viewing any imposition by a state on an attorney’s time as a
discrete deprivation of property requiring compensation under
the Fifth Amendment. This view has been rejected by court
decisions recognizing that states may regulate the practice of
law. See Leis v. Flynt, 439 U.S. 438, 442 (1979) (“Since the
founding of the Republic, the licensing and regulation of law-
yers has been left exclusively to the States and the District of
Columbia within their respective jurisdictions.”)
[5] The position that any imposition on an attorney’s time
must be compensated is foreclosed by our opinions in Dillon,
346 F.2d 633, and United States v. 30.64 Acres of Land, 795
F.2d 796 (9th Cir. 1986). In Dillon, this court held that there
was “an obligation on the part of the legal profession to repre-
sent indigents upon court order, without compensation.” 346
F.2d at 635. The adoption of the balancing approach of the
regulatory takings test rather than a per se approach is clear
from the opinion, which went to note:
14940 SCHEEHLE v. JUSTICES
An applicant for admission to practice law may
justly be deemed to be aware of the traditions of the
profession which he is joining, and to know that one
of these traditions is that a lawyer is an officer of the
court obligated to represent indigents for little or no
compensation upon court order. Thus, the lawyer has
consented to, and assumed, this obligation and when
he is called upon to fulfill it, he cannot contend that
it is a “taking of his services.” Cf. Kunhardt & Com-
pany, Inc. v. United States, 266 U.S. 537, . . . (1925).
In Powell v. State of Alabama, 287 U.S. 45, . . .
(1932), the Supreme Court held, in a capital case
where the defendant was unable to employ counsel
and was incapable of making his own defense ade-
quately because of ignorance, etc., that it was the
duty of the court to assign counsel for him, and
stated at page 73, . . . :
“Attorneys are officers of the court, and are bound
to render service when required by such an appoint-
ment.”
346 F.2d at 635.
Any doubt that a state could require some services from an
attorney without compensation was dissolved by our opinion
in 30.64 Acres of Land, where we noted:
Courts have long recognized that attorneys, because
of their profession, owe some duty to the court and
to the public to serve without compensation when
called on.
[T]he obligation of the legal profession to serve indi-
gents on court order is an ancient and established tra-
dition, and . . . appointed counsel have generally
been compensated, if at all, only by statutory fees
SCHEEHLE v. JUSTICES 14941
which would be inadequate under just compensation
principles, and which are usually payable only in
limited types of cases.
United States v. Dillon, 346 F.2d 633, 635 (9th
Cir.1965), cert. denied, 382 U.S. 978, . . . (1966); see
Peterson v. Nadler, 452 F.2d 754, 758 (8th Cir.
1971). This duty of public service is a condition of
practicing law, and constitutes neither a taking under
the fifth amendment, id. at 635-36; accord Dolan v.
United States, 351 F.2d 671, 672 (5th Cir.1965); see
also Hurtado v. United States, 410 U.S. 578, 588-89,
. . . (1973) (citing, inter alia, Dillon), nor involuntary
servitude under the thirteenth amendment, see White
v. United States Pipe & Foundry Co., 646 F.2d 203,
205 n.3 (5th Cir. 1981).
795 F.2d at 800-01. The opinion may not expressly say that
state regulation of attorneys is subject to the regulatory tak-
ings test and not a per se test, but no other conclusion is possi-
ble.
Moreover, as noted in 30.64 Acres of Land, the position is
consistent with, if not compelled by, the Supreme Court’s
opinion in Hurtado v. United States, 410 U.S. 578, 588-89
(1973). There the Supreme Court cited Dillon in support of
the position that “the Fifth Amendment does not require that
the Government pay for the performance of a public duty it
is already owed.”7
7
Dillon has been cited approvingly by a number of other circuits. See
United States v. Accetturo, 842 F.2d 1408, 1413 (3rd Cir. 1988) (affirming
that district court had power to require counsel to undertake representation
of criminal defendant in the middle of trial); Family Div. Trial Lawyers
v. Moultrie, 725 F.2d 695, 706 (D.C. Cir. 1984) (“While we agree with the
district court that some pro bono requirements do not constitute a ‘taking,’
we think it equally clear that an unreasonable amount of required uncom-
pensated service might so qualify.”); Williamson v. Vanderman, 674 F.2d
1211, 1215 (8th Cir. 1982) (affirming appointment of counsel to represent
criminal defendant without compensation, but reversing order that the
attorney bear the necessary costs of criminal defense work).
14942 SCHEEHLE v. JUSTICES
Scheehle seeks to distinguish cases such as Dillon on the
grounds that they concern the ancient and established tradition
of attorneys being obligated to serve indigents on court order.
This argument fails to recognize the breadth of our rulings,8
and more importantly, confuses the authority of a court to
compel an attorney to serve with the attorney’s alleged consti-
tutional right to compensation for that service. If a state has
no authority to require a service from an attorney, the imposi-
tion would presumably be illegal without resort to the Fifth
Amendment.9 As Justice O’Connor noted, the Fifth Amend-
ment presumes that the state has the authority to “take” the
property and only regulates when a taking requires compensa-
tion. Lingle, 544 U.S. at 536-37. Accordingly, whether the per
se test exception to the generally applicable regulatory takings
test applies does not turn on a state’s authority to impose the
obligation on the attorney.
[6] Rather, the Supreme Court has looked at the impact of
the regulation on the “property,” not the underlying reason for
the regulation. In Lucas v. South Carolina Coastal Council,
the Supreme Court noted:
Where the State seeks to sustain regulation that
deprives land of all economically beneficial use, we
think it may resist compensation only if the logically
antecedent inquiry into the nature of the owner’s
estate shows that the proscribed use interests were
not part of his title to begin with. This accords, we
8
To reiterate, in Dillon we relied on Powell, which held that a trial court
had a duty to appoint counsel, even in the absence of a statute, and that
attorneys “are officers of the court, and are bound to render service when
required by such an appointment.” 287 U.S. at 65. In 30.64 Acres of Land,
we broadly stated “Courts have long recognized that attorneys, because of
their profession, owe some duty to the court and to the public to serve
without compensation when called on.” 795 F.2d at 800.
9
Scheehle’s arguments that the Arizona courts lacked authority to man-
date service as an arbitrator were rejected by the Arizona Supreme Court.
Scheehle, 211 Ariz. at 285.
SCHEEHLE v. JUSTICES 14943
think, with our “takings” jurisprudence, which has
traditionally been guided by the understandings of
our citizens regarding the content of, and the State’s
power over, the “bundle of rights” that they acquire
when they obtain title to property. It seems to us that
the property owner necessarily expects the uses of
his property to be restricted, from time to time, by
various measures newly enacted by the State in legit-
imate exercise of its police powers; “[a]s long recog-
nized, some values are enjoyed under an implied
limitation and must yield to the police power.” Penn-
sylvania Coal Co. v. Mahon, 260 U.S., at 413, 43
S. Ct., at 159. And in the case of personal property,
by reason of the State’s traditionally high degree of
control over commercial dealings, he ought to be
aware of the possibility that new regulation might
even render his property economically worthless (at
least if the property’s only economically productive
use is sale or manufacture for sale). See Andrus v.
Allard, 444 U.S. 51, 66-67, 100 S. Ct. 318, 327, 62
L. Ed. 2d 210 (1979) (prohibition on sale of eagle
feathers).
505 U.S. 1003, 1027-28 (1992) (footnotes omitted). Here,
both tradition and case law confirm that the benefits conferred
by admission to the bar (“the nature of [an attorney’s] estate”)
do not preclude court directed temporary service as an arbitra-
tor: “the proscribed use interests were not part of his title to
begin with.” Id. at 1027. In other words, the “bundle of
rights” a person acquires with admission to a bar does not
include a right to compensation under the Fifth Amendment
for duties that he or she owes to the courts unless the particu-
lar duty imposed amounts to a taking under Fifth Amendment
pursuant to the regulatory takings test. We note that the cost
to an attorney of representing an indigent criminal defendant,
which we have held does not necessarily constitute a taking,
30.64 Acres of Land, 795 F.2d at 801, will usually far exceed
the cost of serving as an arbitrator for two days a year.
14944 SCHEEHLE v. JUSTICES
III.
[7] We conclude that whether the Appointment System’s
requirement that Scheehle devote up to two days a year to
serving as an arbitrator with minimal compensation consti-
tutes a taking under the Fifth Amendment is determined by
the application of the regulatory takings test as set forth by the
Supreme Court in Lingle, 544 U.S. at 536-40, and Penn Cen-
tral, 438 U.S. at 123-28. Applying the regulatory takings test,
we determine that the services required of Scheehle by the
Appointment System do not amount to a taking of property
for which he has a right to compensation under the Fifth
Amendment.
The district court’s grant of summary judgment for the
defendants is AFFIRMED.