November 2015

The latest news in a fast-moving election law case, about the validity of a Hawaiians-only election to choose delegates to a constitutional convention about the issue of Hawaiian national sovereignty: this morning, Associate Justice Anthony Kennedy issued this order which temporarily puts a stop to the counting of the ballots. An extraordinary move, but one which wasn’t exactly unpredictable, given the issues involved (which we noted here). 

More background on the case, and the Supreme Court filings of the parties in this post from SCOTUSBlog. 

More stories here:

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Continue Reading Justice Kennedy Temporarily Halts “Hawaiians Only” Election

The headline of this post is clickbait, of course, since the California Court of Appeal didn’t formally file an amicus brief in favor of the government in Property Reserve, Inc. v. Dep’t of Water Resources, No. S217738, a case now pending in the California Supreme Court. But the court’s opinion in Young’s Market Co. v. Superior Court, No. D068213 (Nov. 19, 2015), published late last week, sure does seem like a brief in support of the Department of Water Resources in that case. 

Property Reserve is the case which has been briefed and is awaiting oral arguments, in which the California Supreme Court is considering whether precondemnation entries sought by the California Department of Water Resources conform to the “entry statute,” or are so extensive as to be takings triggering the protections of the eminent domain code. In that case, a different Court of Appeal…

Continue Reading Court Of Appeal Files Pro-Condemnor Amicus Brief In Cal Supreme Court “Entry Statute” Case

In 1989, agents of the Libyan government blew up a plane of civilians, killing 170 passengers and crew. Victims’ families brought suit against the Socialist People’s Libyan Arab Jamahiriya in U.S. District Court in D.C. for damages, and after winning summary judgment, the court entered judgments totaling approximately $1.3 billion. Libya appealed to the D.C. Circuit.

The very day the appeal was filed, the U.S. government and Libya entered into a settlement agreement which established a $1.5 billion settlement fund to compensate U.S. victims, and a $300 million fund to compensate “Libyan victims of U.S. airstrikes.” The two governments agreed that the funds were in full settlement of all claims for its respective nationals. As a consequence of this agreement, all pending lawsuits in the courts were “terminated.” The U.S. intervened in the D.C. Circuit appeal, and asked the court to dismiss. The court agreed, and terminated the appeal…

Continue Reading CFC: Terrorism Victims Properly Alleged Their Judgments Against Libya Were Taken By Govt Settling Claims By Agreement

Here’s a fascinating decision from the Ninth Circuit on our other area of interest, election law. 

Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142 (9th Cir. Nov. 10, 2015) was a challenge to Tucson’s unusual hybrid system of electing the city council. The primary election is a partisan primary, limited to residents of each of the city’s wards. Once elected in these ward-by-ward primaries, the candidates go on to an at-large general election, where everyone in the city is eligible to vote. This system was challenged as violative of equal protection, because it deprives city voters of the ability to vote in the ward-by-ward primaries.

In a 2-1 decision authored by Judge Konzinski, the Ninth Circuit agreed.   

Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142 (9th Cir. Nov. 10, 2015)

Continue Reading Election Law Detour: All Voters Must Be Allowed To Vote In Primary If It’s “Unitary” With General Election

A quick one from the Georgia Court of Appeals. In Fincher Road Investments, LLLP v. City of Canton, No. A15A1290 (Nov. 13, 2015), the court held that a condemnee was entitled to recover attorneys’ fees and costs when the condemnor abandoned a taking, and was entitled to recover just compensation for the temporary cloud which the condemnation placed on the property.

This started as a quick-take, and the City deposited $787,400 with the court, after which the court declared that the City had title. The owner objected to the taking itself, and to the amount of compensation. After the court denied the owner’s petition to set aside the taking, the owner appealed. The court of appeals held the trial court should have considered certain facts about the timing of notice of the condemnation. When the case was remanded, the City told the trial court it no longer wanted the…

Continue Reading Ga App: Property Owner Entitled To Temporary Takings Damages In Addition To Attorneys’ Fees When Condemnor Drops Case

Here’s the recently-published brochure with more details about the ALI-CLE Eminent Domain and Land Valuation LItigation conference, set for Austin in January 2016. 

In the coming days and weeks, we’ll be posting more details about the conference. Our co-planning chairs Joe Waldo, Jack Sperber, and Andrew Brigham have assembled a great agenda, taught by the usual stellar faculty. If eminent domain, appraisal, or land use is your thing, you really should attend. 

33d Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, Jan. 28-30, 2016, Austin, TX

Continue Reading ALI-CLE Eminent Domain And Land Valuation Conference: Full Brochure

Here’s the amicus brief we filed today on behalf of our Owners’ Counsel of America colleagues in Livingston v. Frank, No. 15-470 (cert. petition filed Oct. 9, 2015). That’s the case in which the Florida District Court of Appeal held that the interest generated by quick-take deposits is not the private property of the condemnee, and therefore it is not a taking when the clerk of the court gives 90% of the interest to the condemnor.

Our brief argues that the Florida court rewrote the rules of who owns the deposit in order to save the statute which allows the clerk to give the interest on the deposit to the condemnor. There’s a strong “judicial takings” flavor to the brief, even though we don’t think it’s necessary for the Court to go down that path expressly in order to take the case and reverse.  

Here’s the Summary…

Continue Reading New SCOTUS Amicus Brief: There’s No IOU’s In Eminent Domain – Quick-Take Deposit Belongs To The Property Owner

As we noted here, the government is taking the property belonging to a Nevada family which is immediate adjacent to the infamous super-secret “Area 51” site.

For more details on the story, read “The Unlikely Struggle of The Family Whose Neighbor is Area 51.” It tells the history of the property, the alleged past misdeeds of the government, and the family’s current eminent domain struggles which are now in the valuation phase. It’s a great read.

The most interesting tidbit? The family’s lawyers have demanded a jury trial. In a federal taking.  We all know that you don’t get a jury in a federal condemnation. But why not? The demand for a jury isn’t necessarily a crazy one, as this other case — which also seeks a jury in a federal inverse condemnation action — shows.  

For more, see this story from the Las Vegas Sun.Continue Reading Valuation And “The Area 51” Taking

Those of you who represent property owners on the business end of eminent domain who practice in Florida and the few other states which allow recovery of attorneys’ fees, consider yourselves lucky: the rest of us poor slobs who practice in places where they are not permitted — either as a component of a constitutional command of just compensation, or by legislative grace — are envious.

We understand that to force a property owner to bear its own fees and costs to recover just compensation — compensation which the condemnor should have offered in the first place — effectively denies just compensation, and allows a condemnor to get away with an inadequate offer simply because it may make little economic sense for the property owner to fight back with a lawyer. Each dollar spent on attorneys is a dollar less the owner gets for her property.   

But even if…

Continue Reading Florida: When Govt Excessively Litigates An Eminent Domain Case, “Full Compensation” Requires Payment Of Attorneys Fees

“Waikiki” means a lot of things to a lot of people. With its wall-to-wall high rises, it could be Las Vegas-by-the-Sea. Or the site of the most famous beach in Hawaii, if not the world. A place where impossibly tony shops and kitsch exist side-by-side. Where the “Hawaiian” bric-a-brac is imported from the Phillipines and China, and the beach sand is reputed to be Australian. A place to go, and a place to escape from. 

But whatever Waikiki might be, one thing is certain: it no longer has just two hotels as it once did, nor is it a sleepy agricultural backwater. It is the economic engine that drives Hawaii’s tourist economy, and the visitor destination, where one-third of our tourists end up. Even with these contradictions — or perhaps because of them — the ordinance which controls development within the Waikiki Special District requires consideration…

Continue Reading What Does “Waikiki” Mean? – Variances, Safety Valves, And A “Hawaiian Sense Of Place”