October 2015

Mark your calendars for next Thursday, November 5, 2015, at 4:30pm at the University of Hawaii Law School Moot Courtroom for the annual Gifford Lecture in Real Property, sponsored by our colleagues at Carlsmith Ball. 

This year, the lecture is by Columbia Lawprof Thomas W. Merrill (also a recent Brigham-Kanner Property Rights prizewinner), and he will talk about “The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications.”

The postcard is below, so come on up to the law school and take advantage of having a legal scholar of great renown in town. 

2015 Gifford Lecture – Professor Thomas Merrill

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Continue Reading Thursday, November 5, 2015, U.H. Law School: Lawprof Thomas Merrill To Speak About Property And Public Trust

In Dimare Fresh, Inc. v. United States, No. 15-5006 (Oct. 28, 2015), the Federal Circuit held that the FDA wasn’t liable for a taking when it issued an incorrect food safety warning that hurt the tomato market, because it was just a warning and didn’t come with coercive action like a quarantine or a recall. In other words, just sayin.

The FDA thought that certain types of tomatoes from certain growing areas might be responsible for a salmonella outbreak. So it “went loud,” which in today’s internet-fueled media environment meant that over the course of the next few days, it issued two press releases, the first which identified the type of tomatoes it believed were involved (“raw red plum, red Roma, or round red” — a pretty wide net), and a second which let certain geographic areas off the hook. The FDA also briefed the media, narrowing the suspected…

Continue Reading Just Sayin: No Taking For FDA Salmonella Warning Which Killed Tomato Sales

We’ve had the Kansas Supreme Court’s opinion in Kansas City Power & Light Co. v. Strong, No. 110573 (Aug. 28, 2015) in the hopper for a while, but never quite got around to posting it. Something else always seemed to take precedence, and it’s just one of those decisions that doesn’t really reach out and grab you. [Unless you focus on the difference between the court-appointed appraisers’ valuation ($96,465) and that of the jury ($1,922,559). Lowball watch! material, but that’s not why we’re posting it.]

The opinion analyzes the condemnor’s three arguments that the trial court should have kept from the jury evidence offered by the property owners. Kansas has a statute which sets out the “formula” (the court’s words, not ours) for how valuation is calculated in a partial taking. The court notes it is a “simple” formula: the “before” value of the property less the value…

Continue Reading Kansas: We’re Pretty Much Not Going To Second-Guess The Jury When It Comes To Compensation

1.  Don’t repeatedly refer to your private poll as an “election” and limit it to “voters” of only a certain race. Real “voters” who are excluded from your election .. I mean poll might get the wrong idea, like it’s an election or something.  

2.  Don’t use public money to fund said election … “poll,” even indirectly. Washing public money through a government agency to a nonprofit might give people who don’t understand these things the wrong idea. Those fools might still consider it public money even though it is once-removed from official agency funding of your poll. Plus, it just looks bad, man.

3.  Don’t go on and on about how this election is to select “candidates” to be “delegates” to a “constitutional convention,” when this is really like a Moose Lodge vote and a wholly private affair, and none of anyone else’s damn business. …

Continue Reading Tips From An Election Lawyer For Setting Up Private Racially-Exclusive Elections, er … “Opinion Polls”

The Mississippi Highway Commission wanted to build a road. That road was on wetlands, so it needed a permit from the U.S. Army Corps of Engineers. In order to convince the Corps to issue the permit, the Commission offered up 1,300 acres of land as wetlands mitigation. Problem was, these 1,300 acres didn’t belong to the state, but were owned by Ward Gulfport. The Corps issued the permit, conditioned on the Commission acquiring the land from Gulfport.

Understandably, Gulfport wasn’t happy. It had its own plans for what it wanted to do with its land, and those plans — which included its own application for a wetlands permit — went out the window, including (allegedly) some sales that fell through. So Gulfport brought a takings claim in state court, and challenged the permit in federal court. The federal court agreed with Gulfport’s arguments and vacated the permit.

The state court…

Continue Reading Intent Matters: DOT Offering Someone Else’s Property To The Corps of Engineers So DOT Can Get A Permit May Be A Taking, Even If Temporary

We all know the old rule that “interest follows principal,” which means that when a deposit on account is private property, so is the interest which that deposit earns. 

Not according to the Florida Court of Appeals, however. In a 2014 decision, that court held that interest earned on quick-take deposits was not the private property of the owner whose land was taken, and thus the government could keep 90% of the money. After the Florida Supreme Court denied review, a cert petition was filed, asking the U.S. Supreme Court for review.  

Tampa needed land, and filed quick-take actions. It deposited the funds which it estimated to be just compensation with the court clerk. That transferred title from the owner to the City. The parties negotiated a settlement, and agreed that the settlement amount was “full compensation” for the taking. Problem was, the owner didn’t know that the …

Continue Reading New Cert Petition: Interest Earned On Quick-Take Deposit Is Property, Gov’t Can’t Keep 90%

In General Commercial Properties, Inc. v. Florida Dep’t of Transportation, No. 4D14-0699 (Fla. Dist. App. Oct. 14, 2015), the court held that a statute which requires the trial court to use the “first written offer” by the condemnor made prior to the initiation of the eminent domain case as the benchmark when it is calculating attorneys’ fees, does not mean that the DOT is stuck with a very early offer it made under the “Early Acquisition Program.”

Under this program, the DOT made early offers to owners for properties it wanted to acquire. There was no obligation on the part of the owners to sell. As the court phrased it, it was an “arms-length negotiation[]” with no eminent domain threat. (Yeah, right.) This was supposedly outside the usual eminent domain-related acquisition program, and if the owner said no thank you, there was nothing the DOT could have done. So in…

Continue Reading Fla App: Offer Early, Offer Often – Early Precondemnation Offer Does Not Trigger Attorneys’ Fee Statute

Here’s the amici brief we filed today in California Building Industry Ass’n v. City of San Jose, No. 15-330 (Oct. 16, 2015).

That’s the case in which the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

CBIA filed a cert petition, and our brief (filed on behalf of the National Federation of Independent Business Small Business Legal Center and the Owners’ Counsel of America) agrees that the Court should review this case. We argue that even though …

Continue Reading Amici Brief In SCOTUS Affordable Housing Case: Prohibiting Homebuilders From Selling At Fair Market Value For 55 Years Is A Taking

bears

If you are an appellant, you know it isn’t going to be a good day when the opinion in your case starts out like this:

“What a long, strange trip it’s been.”1 And, it doesn’t seem to be over due to the continued meanderings of the cause before us and the arguments posed by appellant and his counsel.

———-

1. “Truckin’” by the Grateful Dead.

Slip op. at 1. 

It didn’t get any better than that, and the fact that this was an appeal by a guy who pled guilty of the crime of delivering a controlled substance, after which he was convicted, may have had something to do with the court’s treatment.

A Texas statute allowed the trial court to assess court costs — in this case $2,000 — to a defendant who defers adjudication of guilt and he claimed that this was a taking. According to the court, this issue…

Continue Reading The Grateful Court: Making A Criminal Defendant Pay Court Costs Is A Tax, Not A Taking