Here are the links from our opening sessions this morning:
- “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement.” William Pitt (the Elder), on property.
- The Ninth Circuit video (and accompanying story from the LA Times (U.S. judges see ‘epidemic’ of prosecutorial misconduct in state’)
- Gideon Kanner’s Daily Journal article: “Misconduct of Government Counsel: It All Depends On Whose Ox Is Being Gored” (2012)
- The California Supreme Court in City of Los Angeles v. Decker, 558 P.2d 545, 551 (Cal. 1977):
It seems clear that the city and its attorney committed misconduct in this case in its argument to the jury. Defendant focused her theory of valuation on the point that airport parking was the highest and best use of her land. Essential to that claim was the fact that there was a present need for airport parking and that her property was suitable for that purpose. The city, knowing that its own airport Board had determined that there was such a need and that defendant’s property was suitable to fill it, committed misconduct when it improperly argued to the jury that there was no need for such airport parking and that the claim of such a need was speculative. (See fn. 1, ante.) Rule 7-105 of the Rules of Professional Conduct of the State Bar of California requires: “In presenting a matter to a tribunal, a member of the State Bar shall: (1) Employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth, and shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law.” As suggested by the American Bar Association, a government lawyer may be under an even higher duty: “A government lawyer in a civil action … has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.” (ABA Code of Prof. Responsibility, canon 7, ethical consideration 7-14.) Occupying a position analogous to a public prosecutor, he is “possessed … of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice.” (Professional Responsibility: Report of the Joint Conference (1958) 44 A.B.A.J. 1159, 1218.) [6] The duty of a government attorney in an eminent domain action, which has been characterized as “a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner” (Sacramento etc. Drainage Dist. v. Reed (1963) 215 Cal. App. 2d 60, 69 [29 Cal.Rptr. 847]), is of high order. “The condemnor acts in a quasi-judicial capacity and should be encouraged to exercise his tremendous power fairly, equitably and with a deep understanding of the theory and practice of just compensation.” (Hogan, Trial Techniques in Eminent Domain (1970) pp. 133, 135.)
We are of the view that, under the circumstances detailed above, the city by improperly denying the need for airport parking, misled the jury, failed to develop a full and fair record, and breached its responsibility to arrive at just compensation. We hold that this constitutes misconduct requiring a new trial.
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Federal Takings, a blog by colleague Thor Hearne and his Arent Fox team, wrote up some thoughts on yesterday’s conference sessions, “Why We Need the Fifth Amendment: Lessons from the American Law Institute Eminent Domain Seminar”
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Here’s the “Eychaner and the Chocolate Factory” case which Dana Berliner discussed during our “Challenging the Taking” session – “The Chicago Way: City Taking Non-Blighted Property For Economic Development Was Not Pretextual Because … Studies“
- The relevant parcel: Ocean Palm Golf Club Partnership v. City of Flagler Beach, No 5D12-4274 (Fla. App. 2014) (the case which Dwight Merriam discussed)
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Finally, here’s the recent order of the U.S. District Court for the District of Hawaii awarding a property owner a portion of her attorneys fees. This is the case about the “anti-eminent domain abuse” signs on property that was condemned.