What better way to bid farewell to 2017 than with a whopper case from the Hawaii Supreme Court? And we’re not exaggerating — this one is really big.
Now you might think that given the amount of time this blog devotes to property interests and property rights, we’d be downright tickled when our home court
Back in October, the William and Mary Law School awarded U. Hawaii lawprof David Callies the Brigham-Kanner Prize at a two-day conference in Williamsburg. Our summary of the conference is posted here.
We spoke at the conference, at the first panel entitled “The Future of Land Regulation and a Tribute to David Callies,”
We’ve all heard the story of what may be the very first recorded eminent domain action — or at least the first case of eminent domain abuse — the Old Testament’s telling of the story of Naboth’s Vineyard.
You remember: Naboth the Jezreelite owned a vineyard that had been in his family for a
In Cappel v. Nebraska Dep’t of Natural Resources, No. S-16-1037 (Dec. 22, 2017), the Nebraska Supreme Court concluded the Department’s notices to Cappel pursuant to an interstate water compact which closed off his land’s ability to draw surface water from the Republican River for irrigating his crops was neither a physical nor regulatory taking.
An inversecondemnation.com holiday tradition, the Yule Log, updated for current events.
The facts in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., No. 53S04-1703-CT-121 (Dec. 20, 2017), are not all that complex and the result is pretty straightforward: the complaint did not show on its face when the plaintiff had knowledge that new rules caused an existing utility easement to expand in size, and
So begins a clip from the forthcoming feature film “Little Pink House,” the picture about the Kelo v. New London case. A phrase that many of us are familiar with, no doubt.
Those of you who are following along with the film remember that even before it was completed, we interviewed its producer
The South Dakota Supreme Court’s opinion in Montana-Dakota Utilities Co. v. Parkshill Farms, LLC, No. 28174 (Dec. 13, 2017), resolved both a public use question, and one of compensation. In other words, something for every takings maven, no matter your interest. Read on!
This was a taking of permanent easements by publicly-regulated but privately-owned
Here’s a story on which we’ve been waiting a while. ProPublica, which holds itself out as “an independent, nonprofit newsroom that produces investigative journalism with moral force,” has published a series of stories on eminent domain, focused on the border wall. As the above blurb notes, we served as one of the story’s sources.
Here’s the amici brief we filed earlier today in a case we’ve been following closely since its inception (and in which we filed an amicus brief when it was in the Sixth Circuit).
This is Brott v. United States, No. 17-712 (cert. petition filed Nov. 6, 2017), the case which asks whether Congress can require property owners asserting inverse condemnation or regulatory takings cases seeking just compensation against the federal government to sue in the Article I Court of Federal Claims. The Question Presented which the petition presents is straightforward:
Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?
Rather than go into detail about our brief’s argument, we’ll just post the Summary of Argument:
The government does not enjoy its usual sovereign immunity when it takes property, either affirmatively or inversely, and this Court has repeatedly confirmed that the Just Compensation Clause is “self-executing.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (“We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of ‘the self-executing character of the constitutional provision with respect to compensation.”).
But what does this mean, exactly? Even as the Sixth Circuit recognized that property owners have a right to compensation that springs from the Constitution itself and the right to sue does not depend upon a waiver of sovereign immunity, it held that Congress is not compelled to provide an Article III forum to vindicate that right. Or indeed, any forum at all. Thus, even if the forum Congress created―the Article I non-jury Court of Federal Claims (CFC)―is not constitutionally adequate, well, that’s good enough. In the words of the Sixth Circuit, “[t]he Fifth Amendment details a broad right to compensation, but does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced.” Brott v. United States, 858 F.3d 425, 432-33 (6th Cir. 2017). That is sovereign immunity by another name.
However, we think this Court said it best in United States v. Lee, 106 U.S. 196 (1882), the takings lawsuit over what today is Arlington National Cemetery, when it held that courts (referring to Article III courts, and not what is, in essence, a Congressional forum), must be available for those whose property has been taken:
The [government’s argument it cannot be sued] is also inconsistent with the principle involved in the last two clauses of article 5 of the amendments to the constitution of the United States, whose language is: ‘That no person * * * shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.’ . . . Undoubtedly those provisions of the constitution are of that character which it is intended the courts shall enforce, when cases involving their operation and effect are brought before them.
Id. at 218-19.
The story of how the private estate of General Robert E. Lee’s family became Arlington National Cemetery is at the center of this case: the Court held that Lee’s heir was entitled—after a jury trial in an Article III court—to ownership of the property. The Court affirmed that in our system, unlike those in which monarchs rule over their subjects, the federal government could be sued in its own courts, and that the government had violated Lee’s due process rights and had taken Arlington without compensation. Lee may have been rendered 135 years ago, but the principles which the Court enunciated on sovereign immunity, the independent federal judiciary, and the Fifth Amendment, are still highly relevant today.
Others have filed amicus briefs in support, and we’ll post those shortly. Or, you can now go to the Court’s docket entry for the case and download them directly yourself.
Stay tuned, as always.