inversecondemnation.com

Sotomayor On Takings And Property Rights Issues

The Senate's hearings on Circuit Judge Sonia Sotomayor's nomination as an Associate Justice of the U.S. Supreme Court begin today. Here's our summary of cases in which she was involved as a circuit and district judge on the issue.

If confirmed, we may find out her thinking about regulatory takings very soon, because in its next Term, the Court will be reviewing Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), a case about the taking of littoral (beachfront) land in Florida. Our summary of the issues in that case is here.

If she is elevated to the Court, this case could prove especially interesting because her one unabashedly pro-property owner decision as a Second Circuit judge focused on procedural due process. In Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005), the court held that New York's eminent domain law deprived the property owner of adequate notice, and that when the law provides a short time frame to institute a challenge to a condemnation, the government has an obligation to provide express and conspicuous notice of the time frame. The Stop the Beachfront petition raises a procedural due process question:

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

This case is shaping up to be very interesting.

Field Of (Broken) Dreams In New London?

That now-cliched line from Field of Dreams, "if you build it they will come" (actually, it's "he will come," but work with us here) seemed to be the driving force behind the New London Development Corporation's plans for the Fort Trumbull neighborhood when it wanted to condemn the homes of Susette Kelo and her neighbors. If they condemned, Pfizer would come.

They condemned the hell out of it, but it turns out that it wasn't the pharmaceutical giant that came, or even Shoeless Joe and his Black Sox. According to a report in the New London, Connecticut paper The Day, birds -- killdeer, red-winged blackbirds, mourning doves and others -- have come: "Fort Trumbull Neighborhood Is For The Birds."

When Spinoza observed some 350 years ago that "nature abhors a vacuum," the Fort Trumbull peninsula hadn't seen its first fort yet, let alone any hints of the epic property-rights struggle to come as the 21st century dawned.

Now, just two years after the last house was razed by the New London Development Corp. for an as-yet unrealized new development, the former neighborhood is something of a demonstration site for the Dutch philosopher's famous insight. The empty lots once occupied by yards, porches and office buildings are turning into a meadow of wildflowers, milkweed and tall grasses, and the birds are moving in.

As Professor Gideon Kanner commented on this story last week, You Can't Make this Up. See also Eminent Domain is for the Birds, from Reason's blog.

Tuesday Round-Up

Here are items which we've been reviewing today:

• Dwight Merriam's thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor.

• A report that the "Florida Hometown Democracy" initiative has made the 2010 ballot. According to the report "[i]f the proposal gets 60 percent approval at the polls, Hometown Democracy would require local referendums on changes to city and county comprehensive plans."

• From the Willets Point United blog: "Willets Point United Hires NY State's Top Eminent Domain Attorney." (They've hired our Owners' Counsel of America colleague Michael Rikon.)

• The New York Court of Appeals (that state's highest court) will be hearing arguments in the Atlantic Yards cases. The NY Observer's report here, and the NY Times report here.

• Speaking of takings for sports facilities, Professor Gideon Kanner dishes on using taxpayer money to attract and support stadiums and arenas.

• My Damon Key colleague Mark Murakami links to a Maui News article about a different approach to beach erosion issues.

Links From ABA Condemnation Committee Conference Call

A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics discussed during today's call, and other items of interest which we didn't have time for:

• Judge Sonya Sotomayor's decisions about eminent domain and regulatory takings

• Resource page for the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009).

• On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment - our summary of Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) and Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978), two cases regarding judicial takings relied upon by the cert petition,

• Scalia and O'Connor's dissent from the denial of cert in Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) ("As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a State court chooses to denominate "background law" -- regardless of whether it is really such -- could eliminate property rights.").

• McQueen v. South Carolina Coastal Comm'n, 530 S.E.2d 628 (S.C. 2000).

• Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980) (California Supreme Court's interpretation of California Constitution's free speech clause to require a shopping center to allow handbilling on its property was not a taking).

• Another beachfront case - Severance v. Patterson, No. 07-20409 (5th Cir., Apr. 23, 2009). 

• Case to watch: Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). More here.

• Property owners entitled to damages including reasonable attorneys fees and costs for failed condemnation attempt, even if government prevails in intermediate steps. More here.

• Delegation of eminent domain power: redevelopment agency without power to take property until it enters into a development agreement when statute requires as a condition precedent. Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (Minn. Ct. App., May 19, 2009).

• Delegation of eminent domain power: statutory delegations strictly construed. Spokane Airports v. RMA, Inc., No. 26538-2-III (Wash. Ct. App., Apr. 28, 2009).

• Might Makes Blight In The New York Appellate Division - Develop Don't Destroy Brooklyn v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009).

• Determining Eminent Domain Pretext In Serial Takings - County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw., Dec. 24, 2008) (proposed Findings of Fact and Conclusions of Law on remand).

• Rose Acre Farms, Inc. v. United States, No. 2007-5169 (Fed. Cir., Mar. 12, 2009) - regulation restricting the sale of eggs was not a taking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation "was not severe" and the character of the government action "strongly favored" the government.

Eminent Domain Academic Round-Up: Pretext And Compensation

I've been reading some noteworthy law journal articles on the subject of eminent domain --  two on the issue of pretext, and one on just compensation. Worth reviewing.

• Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77 Fordham L. Rev. 3095 (2009).

  The plaintiffs in Goldstein based their pretext claims on both Justice John Paul Stevens's brief discussion of pretext in the majority opinion of Kelo and Justice Anthony Kennedy's more lengthy discussion in his concurrence. Acknowledging that "[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption . . . of invalidity is warranted," Kennedy’s fifth-vote concurrence identified the possibility of "a more stringent standard of review than [rational basis review] for a more narrowly drawn category of takings." Although the Second Circuit rejected the application of this heightened pretext standard in Goldstein, it acknowledged that "Kelo opened up a separate avenue for a takings challenge" where the plaintiff alleges the asserted public purpose is a pretext for bestowing a private benefit.

  Article available here from the Fordham Law Review. (In the section on Goldstein and Twombly, this inversecondemnation.com post is cited.)

• Daniel B. Kelly, Pretextual Takings: Of Private Developers, Local Governments, and Impermissible Favoritism, 17 Sup. Ct. Econ. Rev. (forthcoming Summer 2009).

  Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm’s credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site for an assembly, the government may need to rely on a private party to identify, as well as develop, a particular site. However, when the government itself possesses information regarding the site, precondemnation private involvement, as well as post-condemnation involvement by a preferred developer, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that a burden-shifting framework, analogous to Title VII’s test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

  Available here from SSRN.

• Matthew Cory Williams, Restitution, Eminent Domain, and Economic Development: Moving to a Gains-Based Conception of the Takings Clause, 41 Urban Lawyer 183 (Winter 2009) (25th Smith-Babcock-Williams Student Writing Competition Winner).

Post-Kelo, those recognizing the value of eminent domain to aggregate property for redevelopment have suggested that the real focus should not be on whether economic development is a public purpose, but on the amount of compensation given to the takees. Indeed, assuming takees werec compensated at the takee’s subjective value, the problem of forcing takees to "sell" their property to the government would be a much less divisive issue. However, current measures of "just compensation" are based on the "fair market value" of the property. In response to this "under compensation," several suggestions have been made on how to raise the level of compensation, and some states have enacted measures aimed at increasing compensation levels. Proposed solutions seek to award some of the benefit of the reaggregation and development of the land, called "after value," to the takees. This article examines whether awarding after value to takees complies with the major purposes of the Takings Clause. While it examines a few of the many proposed ways to award takees a portion of this after value, this article focuses more on whether the general idea of after value complies with the philosophies underlying the Takings Clause.

Article available here for ABA members.

NY Times On Judge Sotomayor And Property Rights

Adam Liptak reports Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings in the June 14, 2009 edition of the New York Times, comparing SCOTUS nominee Sotomayor's decision in an infamous (at least in eminent domain circles) case with the positions of the two Justices most recently confirmed to the Court, Chief Justice Roberts and Associate Justice Alito on a similar issue.

Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.

Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its wisdom and consequences. The decision, a 5-to-4 ruling in 2005, allowed local governments to take private property for business development and provoked outrage across the political spectrum. 

The article details the events which resulted in the Second Circuit's unreported summary decision in Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006), noting that the issue will likely be raised in Judge Sotomayor's upcoming confirmation hearings. As explained in the Times piece:

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser's company could put a Walgreen’s in the same place. 

The Second Circuit's unsigned panel order disposed of the case in a mere 1 1/2 pages, agreeing with the district court's dismissal of Didden's challenge for being brought too late, and holding that even if not time-barred, that Kelo "obliges us to conclude that they have articulated no basis upon which relief can be granted." Order at 3.

These type of summary orders by an appellate court are especially frustrating for the parties and their attorneys, because they provide no clue as to the court's rationale, no guidance for future cases, and appear to blow off worthwhile arguments without explanation. The lack of an opinion setting forth the court's rationale also makes it difficult for the losing party to seek further review (the Supreme Court denied cert in this case).

We've summarized Judge Sotomayor's property rights-related decisions in this post, and if she is confirmed, we won't have long to wait to find out her views on regulatory takings since the Court recently accepted review of a case from Florida on takings of beachfront property. That case won't be heard until next term when the new Justice presumably will be on the Court.

New Article On Redevelopment And "Blight" - Proposal For Reform

I just finished reading a recently-published law review article by Missouri Court of Appeals Judge Harold L. Lowenstein, Redevelopment Condemnations: A Blight or a Blessing upon the Land?, 74 Mo. L. Rev. 30 (2009) (available here).

Despite the efforts of legislatures to reform eminent domain, the exercise of eminent domain for private redevelopment still confers a concentrated benefit on a few while imposing the costs of such redevelopment on a discrete set of property owners. To remedy this imbalance, and to prevent developers and development agencies from abusing this power, this article proposes that property owners be accorded remedies at the beginning as well as at the end of the eminent domain process.

The article recommends redefining blight in "concrete and measurable terms," and allowing courts to undertake "meaningful judicial review" of blight determinations. The article also suggests that precondemnation blight cover damage to property for the "pall cast" by the establishment of a redevelopment district.

Worth a read.

Video Of Kelo's New London Neighborhood With Author Jeff Benedict

A short video with Jeff Benedict, author of Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009), which tells the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005) (available from Amazon here).

More on the book here.

SCOTUS Nominee Sotomayor On Takings Issues

Second Circuit Judge Sonia Sotomayor, the nominee to fill Justice David Souter's seat on the U.S. Supreme Court, has served as either a federal District or Circuit Judge for 18 years during which she's either authored or sat on panels in cases involving eminent domain or regulatory takings.  Here's an admittedly unscientific sampling of those decisions, which reveal a mixed bag on the property issue:

• Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005) (Sotomayor on panel).  This decision represents the most favorable case for property owners, although it is more a due process than a takings case.  The panel held that New York's eminent domain law deprived the property owner of due process notice, and that when the law provides a short time frame to institute a challenge to a condemnation, the government has an obligation to provide express notice of the time frame. The court held:

  Thus, while the legislative decision to condemn is not reviewable, the purpose of the condemnation is. The role of the judiciary, however narrow, in setting the outer boundaries of public use is an important constitutional limitation. To say that no right to notice or a hearing attaches to the public use requirement would be to render meaningless the court's role as an arbiter of a constitutional limitation on the sovereign's power to seize private property.

  The district court's opinion on remand is summarized here.

• In an earlier decision in the same litigation, the Second Circuit in an opinion authored by Judge Sotomayor held that a property owner had standing to challenge the lack of individual notification of the taking of his property, and that the owner was not precluded from asserting a due process challenge because he would not have raised it as a defense to the taking under New York's eminent domain law.  On the issue of the remedy available to the property owner (who sought return of his land), Judge Sotomayor refused to order the return of the property, and wrote:

  We recognize that at least one other circuit appears to order reinstatement and backpay as a remedy in employment cases before a new hearing is held. This intermediate remedy would be analogous to ordering a return of Brody's property upon a finding of a due process violation, and then requiring the Village to begin again and initiate condemnation procedures that complied with due process, regardless of the likely merits of Brody's challenge in the Article 2 process. While we express no view on what the appropriate remedy would be for denials of due process in the employment context, we find that the reliance interests of third parties in this case are sufficiently compelling that Brody is entitled to a return of his property only if he can prove that any denial of due process made a difference in the condemnation proceedings. Moreover, in cases such as this one, we believe that these same reliance interests create a strong incentive for the condemnor to comply with the requirements of due process before the property has been condemned and development has begun, in light of the risk that a court somewhere down the road might order a return of the property.

  Brody v. Village of Port Chester, 345 F.3d 103, 120-121 (2d Cir. 2003) (citations and footnote omitted).  Cf. Ciszewski v. New York, 279 Fed. Appx. 39 (2d Cir. 2008) (not reported in the Federal Reporter) (unsigned summary order; Sotomayor on panel) (property owner precluded from raising due process challenges to a taking when owner did not challenge public use).

• Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006) (not reported in the Federal Reporter) (unsigned summary order; Sotomayor on panel) appears to be the the only case in which a Kelo-like situation was presented (the order cited Kelo as the reason it was "obliged to conclude that [the property owners] have articulated no basis upon which relief can be granted." Professor Richard Epstein has summarized the case and Judge Sotomayor's role in it here:

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.

• Gherardi v. New York, 161 Fed. Appx. 60 (2d Cir. 2005) (not reported in the Federal Reporter) (unsigned summary order; Sotomayor on panel) gives some indication that Judge Sotomayor has no real issues with the regulatory ripeness rules of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).  The court in Gherardi rejected an as applied takings challenge because the plaintiffs did not allege they applied for, and were denied, development approvals.  See also Leone v. Whitford, 300 Fed. Appx. 99 (2d Cir. 2008) (not reported in the Federal Reporter) (unsigned summary order; Sotomayor on panel) (affirming the dismissal of a regulatory takings claim for failure to exhaust administrative remedies under Williamson County); Webster v. National Fuel Gas Supply Corp., 268 Fed. Appx. 85 (2d Cir. 2008) (not reported in the Federal Reporter) (unsigned summary order; Sotomayor on panel) ("We dismiss the inverse condemnation claim encompassed in Webster's complaint in order to allow the New York state courts to adjudicate this claim in the first instance.").

• Also in the ripeness context, Judge Sotomayor was on the panel in a prisoner habeas corpus appeal, in which the court contrasted prudential ripeness with "more fundamental and more rigid, constitutionally-based" ripeness:

  The notion of ripeness, as a doctrine of prudence, has become a staple in the adjudication of claims that a state or municipality has taken property without providing just compensation. In that context, a plaintiff must obtain a final decision from the regulatory body that the plaintiff alleges has taken his or her property, and the plaintiff must also seek compensation through any procedures the state has in place. See Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733-34, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). Until a plaintiff can demonstrate that both of these requirements are met, the plaintiff's regulatory takings claim is generally deemed not ripe. Id. But since the doctrine is driven by judicial prudence rather than the Constitution, a court is free to exercise jurisdiction over such a case when the circumstances so warrant. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1012-13, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (noting that a takings plaintiff's opportunity to apply for a special permit "goes only to the prudential 'ripeness'" and deciding that prudence dictated that the Court reach the merits in that case-given that Article III injury had properly been alleged-since the special permit scheme that the plaintiff had not complied with had been established only late in the litigation).

  Simmonds v. INS, 326 F.3d 351, 358 n.7 (2d Cir. 2003).

• Judge Sotomayor was the district judge in a bankruptcy case which involved a claim of a regulatory taking.  In In re St. Johnsbury Trucking Co., 199 Bankr. 83 (S.D.N.Y. 1996) and 191 Bankr. 122 (S.D.N.Y. 1996), she summarily dismissed a claim that the regulation was a taking even though she agreed that they wiped out the value of property ("St. Johnsbury protests that these two sections, as distinct from the other undercharge defenses, "destroy the entire economic value of St. Johnsbury's undercharge claims" against small shippers and for claims accruing prior to September 30, 1990. Indeed they do."):

  As a matter of law, the question of whether a regulatory action rises to the level of an unconstitutional taking is governed by the three-part test enunciated in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) and refined in Connolly v. Pension Benefit Guarantee Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986). The Whittier court analyzed the takings issue raised by St. Johnsbury in light of Connolly and I agree with its analysis. Whittier, 57 F.3d at 650-51. Connolly held that Congress has the freedom to "adjust the benefits and burdens of economic life to promote the common good." Connolly, 475 U.S. at 225, 106 S.Ct. at 1026. That is what Congress did by enacting the Rates Act.

HAWSCT: Property Owners Entitled To Attorneys Fees & Costs For Failed Taking, Even If Gov't Prevails In Intermediate Steps

Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not "finally taken" in a condemnation action when a single condemnation fails or is dismissed, even if the condemnor succeeds in a subsequent -- or concurrent -- attempt to take the property. [Disclosure: we represent the property owner in these cases.]  The court remanded the issue of damages sustained at the trial court level, and in a May 14, 2009 order (posted here), the trial court awarded the property owners 100% of the attorneys fees incurred at trial, including over $1.5 million in attorneys fees and $111,000 in costs.

Additionally, in County of Hawaii v. C&J Coupe Family Ltd. P'ship, No. 28822 (Apr. 21, 2009) (opinion posted here), the Supreme Court held that a condemnee is also entitled to damages it sustains on appeal.  As noted in this post, however, we asked the Supreme Court to reconsider its conclusion that the property owner was not entitled to damages associated with the County's motion to transfer the consolidated appeals from the Intermediate Court of Appeals to the Supreme Court because "the County prevailed" on that motion.  See slip op. at 29-30.  Today, in an order, the court agreed and amended its earlier opinion to read:

Although the County prevailed on that motion, it appears that Appellant has properly included attorneys' fees incurred in defending the motion to transfer in its Request, inasmuch as fees are encompassed under HRS § 101-27 as part of "all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings" in Condemnation 1.  Therefore, those entries will be included in the fee award.

Order at. 5. In other words, what matters for the determination of governmental liability under section 101-27 is whether the property is "finally taken," not whether the government may win intermediate steps along the way. If the taking fails, the government is liable for all of the property owner's fees and costs, even those related to motions the government may have won.

The court did not amend any other portion of the opinion, noting that "costs of court" claimed under section 101-27 must be reasonable, and that copying costs are not included within the meaning of the term "costs of court" as used in that statute.  The amended opinion is available here.