Continued from Part I
Coldron seemed to sense that the court was in danger of veering off track and buying into the argument in the amicus brief filed by the League of California Cities and California State Association of Counties in support of the city about the claim being time-barred. Judge Clifton returned to his initial barrage of questions and asked whether the ordinance was the same after the City incorporated, and whether the park owners were seeking a “windfall” from that event. Recall that Goleta was originally not an incorporated city, so these parks were subject to the County’s mobile home rent control ordinance. When the City incorporated, the County ordinances continued in effect for a time, and after a gap (another issue in contention), the new City of Goleta adopted its own mobile home rent control ordinance.
Coldron responded to Judge Clifton’s question by noting that “there is no expiration on Constitutional rights,” a quote from the U.S. Supreme Court’s Palazzolo case. Judge Clifton was not pleased, and snapped “that’s not an answer.” “You must acknowledge facts,” he stated, “answer the question: is there anything different between the County and the City rent control regulations.” Coldron answered “no.” Judge Rymer jumped back in and asked whether there was any different in economic effect on the face of the ordinance. Coldron responded that there was no difference.
Judge Kleinfeld, who dissented from the panel opinion, posed a hypothetical that went to what was being referred to as the “statute of limitations” issue (more correctly, it is a question of “property” and “notice” and whether a purchaser of property who buys after a regulatory scheme is in place may bring a claim that the regulation is a taking). Let’s say the state builds a road in the 1970’s that encroaches on my property, he asked. I do nothing since my property is not worth too much, and I don’t want to pay my lawyer to bring an inverse condemnation claim. Time passes and I sell it to you, but in the meantime, the property has become quite valuable, and it is worth your time to pay your lawyer to bring an inverse condemnation claim against the state. “It seems quite clear,” Judge Kleinfeld stated, “that the seller could have sued for a taking many years ago, but didn’t. I don’t see where this case is any different.” The unstated part of his hypothetical was that having let the time pass without suing, the seller did not transfer that right to the buyer.
Coldron agreed with the first part (that the buyer could not sue), but took issue with the second, arguing that the hypothetical was different than the case before the court. [Barista’s note: this is somewhat dangerous territory for an appellate advocate – usually when judges ask hypotheticals, they want them answered and can get testy if you respond “well, judge, that’s not our case.” I’ve heard judges snap back “of course it’s not this case, it’s a hypothetical!”] However, Coldron avoided that, and his answer was quite effective; he stated that for Judge Kleinfeld’s hypothetical to truly be like the present case, the state would have to remove the encroachment for a time, and then attempt to put it back after the buyer purchased the land (see paragraph 1 above).
Next, Judge Kleinfeld and Coldron got into an exchange about the length of the gap. Judge Kleinfeld asked whether it was “a couple of hours” between the County’s rent control ordinance expiring, and the new City’s rent control ordinance becoming effective. Coldron asserted that was not true, that it was not, as argued by the City, a “moment in time,” and that the gap was actually “significant” since it was minimum two months, and up to four. Kleinfeld asked whether the County’s ordinances were readopted “as a matter of law,” to which Coldron responded that they were, but that there was still a gap where the mobile home parks were not subject to any rent control ordinances at all. Besides, he argued, the City could have not adopted a mobile home rent control ordinance at all (as his clients had urged the City), so there was nothing in the gap period that would suggest their property continued to be the subject of these regulations.
Judges Smith and Clifton sought clarification. Judge Smith asked whether there was any point in time where the mobile home parks were not subject to some kind of rent control ordinance. Coldron answered that in this case, the City stipulated that there was a gap, and that the stipulation controls. Judge Clifton asked whether during that time, the mobile home park owners went up on the rent (since there was no rent control ordinance in effect). Coldron replied that no, there was no increase because state law prohibited it.
Judge Kleinfeld reentered the fray. “I don’t see how Palazzolo helps,” he stated, and he attempted to distinguish the facts of that case. Palazzolo involved a property owner who didn’t keep up on the corporate formalities, he argued. Thus, the Supreme Court held that he was entitled to bring the claim, even though it was technically a different entity that owned the property when the cause of action accrued. That is a different case than here, where the mobile home park was purchased by an entirely different owner. When Coldron again raised the “no expiration date on Constitutional rights” quote, Kleinfeld responded that the court “enjoys rhetorical flourishes,” but that facts would be more helpful.
In the last exchange before the City’s argument, Judges Kleinfeld and Smith asked Coldron about the record. And in one of those moments that all appellate advocates dread, they asked not just generally about the record, but for specific page citations. Judge Smith asked whether there was anything in the record to support the idea that the property was worth more before the City ordinance. Coldron responded that Dr. Quigley had testified that it was, and that his testimony went unchallenged.
Judge Smith: What part of Quigley’s testimony?
Coldron: Where he testified to a 90% drop in value.
Judge Smith: That’s general.
Coldron: Quigley’s testimony was not rebutted, so it must be accepted.
Judge Kleinfeld: What page of his testimony? I have it here in front of me. Where?
Coldron: In the September 6 order of the court, the court found this testimony was not rebutted. But I can’t tell the page number.
Chief Judge Kozinski: It must not be important if you can’t tell where it is.
[Barista’s note: It is an old adage of appellate lawyers that they must “know the record, inside and out.” Yet, it’s hard to fault Coldron (asking for a page number in a trial record is awfully nitpicky) and it seemed a bit unfair of the court to harp on him about this. This case has not been a straightforward motion, trial, and appeal. Because of the maze of procedural hurdles erected in front of takings claims by the U.S. Supreme Court and the California courts, this litigation has stretched over years and has involved several jurisdictions. Trying to intuit what one judge out of eleven may consider important during your thirty minute argument could be asking for the advocate to go from well-prepared to superhuman.]
Next, the City’s argument in Part III.