UVA Student Body v. Ivy Gardens Pool, et al.
74 U.Va 12 (2021)
Lake, J. delivered the opinion of the Court.
Petitioner comes to us today with a complaint rooted in the common law, which is our favorite sort of complaint. They’re already off to a great start. We granted review of this case to resolve whether the District Court of Petty Affairs was correct in dismissing the petitioner’s complaint for failing to state a claim. Upon review of the limited record, and relying, as we always do, on sound precedent,[1] we reverse and remand for a new trial.
Background
Based on the limited discovery that has taken place, it was determined that Ivy Gardens, The Pavilion, and other joined parties closed their apartment pools on or around September 27 of this year. Petitioner relies on the public trust doctrine to argue the pool closures were improper, and requests an injunction that would have them immediately reopened. Respondent was uncooperative with legal proceedings, but did make comments alleging that petitioner is a “troublemaker,” “nobody wants to go swimming when it's thirty degrees out anyway,” and “if your silly law newspaper keeps suing us, we will be contacting a real lawyer to serve you a cease and desist.” Given these facts, a closer look at petitioner’s argument is clearly warranted.
Whose Water is it Anyway?
The public trust doctrine holds that some submerged lands are held in trust by the state for the enjoyment of its citizens. Affected land can’t be sold or leased to private parties except in very limited circumstances, like improvement to the land for the benefit of the public. A pool is certainly an example of a submerged land, and closing a pool for half the year would not seem to be in-line with citizen enjoyment. Petitioner has presented strong evidence that pools are way more fun when they are accessible and people can swim in them, as opposed to sitting sadly on the deck throwing rocks at the vinyl cover. Respondent has pointed out that North Grounds Recreation Center (NGRC) is open year-round for indoor swimming, and the lower court found this alternative to be a suitable substitute for loss of apartment swimming facilities. We find the court erred in their judgement. Swimming at NGRC brings with it substantial risks not present in apartment pool swimming, including the chance of running into a professor during a midday workout.[2] The strength of petitioner’s claim is situated squarely in their application of public trust doctrine.
The public trust doctrine consists of wishy-washy water law handed down from ye olde Byzantine days.[3] As American philosopher Kanye West once asked, what’s the basis?[4] Is this doctrine based on an inherent right of citizenship, or is it rooted in the Ninth Amendment? Like so many other aspects of the law held together by Lepage-brand tape[5] and judicial clerk tears, it’s better not to worry about it. As far as this Court is concerned, the declaration of independence may well have said “we hold these truths to be self-evident, yadayadayada, life, liberty, and the pursuit of navigable waters.”[6]
With the doctrine’s authority established, we turn to its application in the instant case. Our beloved sister Court has long held the State’s own submerged lands in trust for the enjoyment of their citizens.[7] While the cowardly dissenter in this case may point out Ivy Gardens is a privately owned development and not a state agency, we argue that the University of Virginia’s purchase of the land in 2016 transformed Ivy Gardens into something “public entity adjacent.” That’s good enough for us. Our focus is instead on what submerged lands this doctrine covers. The English common law requires a body of water to be subject to the ebb and flow of the tide to be part of the public trust. The United States, on the other hand, has actual water like the Great Lakes and Mississippi River to deal with so we don’t have such a dumb requirement.[8] We follow a simple, all-American standard: if a submerged land was susceptible to navigation at the time of statehood, it belongs to the State as part of the public trust and must therefore be protected from private influence for the benefit of the public.
Was Ivy Garden pool susceptible to navigation at the time of Virginia’s statehood on June 25, 1788? The record is shockingly silent. For this reason we must remand for full trial and discovery.
Justice Pazhwak, dissenting
There are many who have suggested that the law ought to conform to common sense. If that were true, I might be out of a job, so this Court will dismiss that notion out of hand. That being said, there are times when even this Court must attempt to inject some kind of common sense into its opinions, so here it goes. The temperature of outdoor pool water objectively gets far colder during the off-season months when they are traditionally closed, and while I have no doubt there are some who would enjoy dunking themselves in freezing cold water and give some apparently scientific reason for why it is good for the body and mind, most people do not have such a drive to take the plunge, or perhaps even the right level of preparation to survive it.[9] It is mystifying that Justice Lake, who has spent time in Alaska, and understands that swimming in extremely cold water, is, well, really cold, could find the petitioner’s argument for enjoyability persuasive. Moreover, the residents of North Grounds (excluding Darden students) have enough challenges on their plate without the temptation to conquer the cold water plunge in their neverending need to live a life of achievement. Thus, those who would enjoy the outdoor pools being open year-round are undoubtedly limited, at least from a swimming perspective, and this Court should not have found that the threshold for citizen enjoyment had been met as a condition for invoking the public trust doctrine. Yes, it could be argued that there are other ways for a pool to be enjoyable besides swimming, and some might cite the fact that Chief Justice Tonseth enjoys hanging out by them as often as he can. However, I believe the onset of cold weather dissuades even individuals like Chief Justice T[10] from such behavior, especially if he is wearing shorts that provide less than adequate heat retention.[11]
Even if we were to take the petitioner’s argument for enjoyment seriously, Justice Lake’s holding involves an extraordinary application of the common law public trust doctrine as a basis for remanding this case to the lower court to determine whether the Ivy Garden pool was susceptible to navigation in 1788. To get to that conclusion she stretches the doctrine to its utter extreme, disregarding or dismissing its contours to apply it to swimming pools. I think Kayne West was in there somewhere? Justice Lake is clearly myopically interpreting the common law to attain a certain legal result in the instant case, and while other judges have used this approach to arrive at much lauded opinions that get put into casebooks for future law students to read and scratch their heads over, in this case I believe she goes too far and would set a dangerous precedent on this usually consistent, rational, and objective Court.
Finally, Justice Lake writes that the “cowardly dissenter in this case may point out Ivy Gardens is a privately owned development and not a state agency.” I thought it important to break down my dissent to this portion of her opinion into two parts. Firstly, I assume that I am the so-called “cowardly dissenter” to whom she is referring. After having a clerk research the test for this designation, I cannot deny her finding that I am indeed a dissenter by virtue of writing a dissent. However, after examining the test for a designation “cowardly,” I found no legally cognizable doctrine under which I could be placed under this definition, unless Justice Lake actually meant cowardly to mean courageous.[12] An alternate theory is that the inclusion of “cowardly” was an attempt at ad hominem[13] to deter me from addressing this part of her opinion, or to prejudice others against my dissent. If so, this was a nice try by Justice Lake. However, after I spent some time repeating an age-old adage to myself regarding sticks and stones, I decided that a Justice of the Court of Petty Appeals has a duty to apply the law based on sound precedent no matter the attacks levelled against them, even by their respected peers. So, under multiple theories this “cowardly dissenter” designation clearly holds no material weight beyond recognition that I am a dissenter. Instead, to address the second part of Justice Lake’s statement regarding the appropriate designation of Ivy Gardens, I will channel the tenacity of a Justice Clarence Thomas dissent and firmly object to attempts to erode property rights by this Court and all courts! Assuming that the public trust doctrine is appropriately applied, Justice Lake’s assertion that Ivy Garden has become “public entity adjacent” by virtue of UVA’s purchase, and therefore subject to a taking by the public for the purpose of year-round operation, is what I would call a “communist takeover adjacent” legal innovation. While creating such a property designation and using it for a taking might fly in the People’s Republic of China, North Korea, or Cuba, sadly for Justice Lake, this is America! I thus respectfully dissent.
[1] Law Weekly v. CoPA Copiers, 369 U.Va 96 (2019) (“We do what we want.”).
[2] The risk of irreparable psychic damage is too high for us to agree to such a substitution.
[3] See L. Szeptycki, WB302E if you need more details.
[4] Kanye West, Jesus Walks, The College Dropout (2004)
[5] This court holds antitrust litigation close to its heart.
[6] Probably included in secret lemon juice code on the back.
[7] Martin v. Waddell’s Lessee, 41 U.S. 367 (1842)
[8] Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892)
[9] https://theconversation.com/diving-into-cold-water-can-be-deadly-heres-how-to-survive-it-119341
[10] EIC
[11] See Knee Length or Just Above the Knee Length Shorts v. Short Shorts, Law Weekly (Sept. 29, 2021).
[12] See Courage the Cowardly Dog v. Cartoon Network, 21 U.Va 64 (2009). (describing how a dog labelled as cowardly was actually courageous).
[13] No opinion is complete without some Latin