Full disclosure up front: this one is from our shop, so we won’t be making detailed commentary.
With that out of the way, here’s Pacific Legal Foundation’s motion asking the Virginia Supreme Court to allow us to file a brief amicus curiae which urges the court to grant a discretionary appeal and review this Petition for Appeal by a Norfolk, Virginia homeowner who, according to the trial court, suffered a taking but was prevented from presenting all evidence of just compensation, including the “residue damage” required in partial takings by the Virginia Constitution.
Here’s the summary:
When the government invades and destroys a portion of a homeowner’s handicapped ramp and the court concludes it is liable for a taking, the Virginia Constitution requires payment of just compensation for the loss of the owner’s property, which includes “damages to the residue caused by the taking.” Yet the courts below denied Morgan that fundamental right, and her right to have the just compensation owed by the City determined by a jury. Left unreviewed, the court of appeals’ ruling will create unnecessary confusion where the plain text of the Constitution is clear: when property has been partially taken (as the circuit court held here), the just compensation owed includes damages to the residue, even where the court has determined there’s been no constitutional “damaging.” Va. Const. art. I, § 11, cl. 8 (“Just compensation shall be no less than the value of the property taken … and damages to the residue caused by the taking.”). This Court’s review is urgently needed to correct two fundamental errors.
1. The court of appeals’ first critical error was concluding that the circuit court’s determination that the City was not liable for a constitutional “damaging” also meant that the City’s partial taking had not caused “damage to the residue.” The court of appeals wrongly rejected Morgan’s argument that constitutional damagings (a question of liability) are not the same as “damages to the residue caused by the taking (a question of remedy).
2. The court’s second error flowed from the first, and had the severest of consequences. History and tradition demonstrate the central democratic importance of the jury in calculating how much just compensation is owed in both eminent domain and inverse takings, and for centuries, juries have occupied the central role in determining just compensation in both American and English law. The court’s refusal to consider evidence of damage to the residue caused by the taking resulted in Morgan being denied her fundamental right to have a jury make that determination.
Virginia employs a unique process for the Supreme Court to decide whether to grant discretionary review. There’s a Petition, followed by the opposing party filing a response. And instead of a Reply brief, the Petitioner gets 10 minutes of unopposed oral argument. Yes, unopposed. Just the Petitioner and the court. The respondent may attend, but doesn’t get to argue.
Stay tuned.