42 U.S.C. § 1983 | Civil Rights

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In Turner v. Jordan, No. 22-13159 (Sep. 17, 2024), the U.S. Court of Appeals for the Eleventh Circuit held that even though the federal courts have jurisdiction over Turner’s takings claim, the court nonetheless has the discretion to choose to wash its hands of the case in order to protect a state’s administrative procedures.

This is one of those home equity takings cases, with the twist here being that Turner claims that because Florida officials failed to account for his homestead exemption, his property sold for half of what it should have at a property tax foreclosure sale. He alleged that with the exemption, the sale would have netted him some equity to which he was entitled. The district court dismissed for comity reasons, and the Eleventh Circuit affirmed.

Of course, the opinion pays lip service to the more-often-in-the-breach-than-in-the-observance principle that “federal courts have a ‘virtually unflagging obligation ……

Continue Reading Comity Of Errors: CA11 Chooses Nondisruption Of State’s Administrative Process Over Constitutional Right To Compensation

The gunfight at the OK Corral is about all we know
about bearing arms in public places.

There’s a lot going on in the U.S. Court of Appeals for the Ninth Circuit’s opinion in Wolford v. Lopez, No. 23-4356 (Sep. 6, 2024), and none of it is about takings, at least directly. And the case involves a Second Amendment challenge to Hawaii and California’s restrictions on where a bearer of arms can bear those arms, a topic that is beyond our full understanding as mere mortals.

So why are we covering it? Well, glad you asked. This one is peripherally about property rights and because of the posture of the case avoids what we think is the biggest issue from a property rights viewpoint. The bulk of the case analyzes the state’s ability to restrict carrying weapons in public places like beaches, parks, and other public venues. But one…

Continue Reading Guns N’ Encloses: While Figuring Out Gun “Sensitive Places,” CA9 Backhandedly Upholds The Right To Exclude

Here’s the latest takings cert petition. This one seeks review of the Seventh Circuit’s affirming the district court’s sua sponte abstaining from considering a property owner’s challenge to a Wisconsin municipality’s exercise of eminent domain.

The court concluded that federal courts could — but shouldn’t — consider the owner’s public use challenge because there were ongoing parallel state proceedings (this this case, an eminent domain case in a Wisconsin court). That alone doesn’t seem terribly controversial.

But as the petition points out, there was not actually a “parallel” state court proceeding here, because Wisconsin law apparently doesn’t permit an owner to challenge public use in the proceeding the Village filed. As the Petition puts it:

The Seventh Circuit Court of Appeals’ particularly broad approach to the Colorado River doctrine stands out among the circuits. In the case at hand, the court of appeals expanded the doctrine even…

Continue Reading New Cert Petition: When State Law Bars Owner From Challenging A Taking, Can Federal Court Abstain?

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Yes, the mysterious ducks remain — and seem to have multiplied.

It’s that time of the year again. Fall’s-a-coming, and that means that starting today, we’re back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:

  • Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
  • Land Use Controls (an especially hot topic at the moment)

The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law — it’s really interesting, and a good place to make your way in the practice, and law students recognize that.

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We don’t use $400 casebooks in either class.

Time to jack back into the (takings and land use) Matrix.

6a00d83451707369e20240a476d216200c-800wiContinue Reading Back To School For Dirt Law @ William & Mary, Season VII

Screenshot 2024-07-31 at 17-33-40 The End of Means-End Scrutiny by Francesca Procaccini SSRN

Here’s an article worth reading, just posted to SSRN, Procaccini, The End of Means-End Scrutiny (July 29, 2024).

For your takings and individual liberty nerds, please focus on pages 36-38 (showing how takings analysis is not accomplished by the usual means-ends scrutiny), pages 40-42 (social and economic liberties), and pages 43-44 (searches and seizure).

Why move from means-ends scrutiny to more robust judicial review? Zero in on pages 50-52 (“Transforming Rights from Mediated Interests to Uncompromising Trumps”). We’re thinking the author concludes this move is a bad thing, but we’re not so sure it is.

Here’s the Abstract:

It is black letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, this Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and…

Continue Reading New Article: “The Ends of Means-Ends Scrutiny”

Because the latest takings cert petition is one of ours (our colleagues Dave Breemer and Deb La Fetra are counsel for the petitioner), we won’t be commenting all that much on it.

Except to say that this is the latest in a series of cases where the obligation to provide just compensation for takings butts up against a state government’s claim that it cannot be sued in federal court unless it agrees to be sued. We wrote up the Seventh Circuit’s opinion below here (“Coming And Going: Eleventh Amendment Trumps Fifth Amendment – States Must Consent To Be Sued In Federal Court, Even For Just Compensation“)

Here are the Questions Presented:

1. Whether a state’s constitutional obligation to pay just compensation when taking property waives its sovereign immunity from a claim seeking damages for an unconstitutional taking?

2. Whether a property owner may sue state officials in their…

Continue Reading New Cert Petition: Does The Obligation To Provide Just Compensation Waive Sovereign Immunity?

Worth reading: a student-authored piece in the latest issue of the Harvard Journal of Law & Public Policy, “Original Understanding of ‘Background Principles’ in Cedar Point Nursery v. Hassid.“

From the Introduction:

But in Cedar Point, when considering a regulation that authorized union organizers to enter certain businesses, the Court held that even a temporary physical occupation was a per se taking requiring compensation.

The Court’s shift to a per se rule is significant because it means a landowner can receive “just compensation” without satisfying Penn Central’s high bar required for regulatory takings. For governments, the Cedar Point holding could pose a heavy financial burden if they must compensate landowners for temporary intrusions authorized under existing regulations. Due to this imposing financial burden, some have suggested that Cedar Point threatens existing civil rights regimes, which at first blush resemble the labor rights regulation at…

Continue Reading New Article: “Original Understanding of ‘Background Principles’ in Cedar Point Nursery v. Hassid“

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It’s not quite “Yes Virginia…” but here is our annual Independence Day missive on the legal angle on the Declaration. This may have special significance as the nation is in the process of reexamining many of our assumptions and history. But though the Founders may have been flawed individuals — as we all are — there’s really no question about the ideas they captured, and, thankfully, put down on for posterity.

—————————————————————————————

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.).

Nonetheless, as we celebrate our independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally

…
Continue Reading The Verified Complaint In Equity: The Declaration Of Independence, v.248

Today at 10am Hawaii Time (1pm PT/4pm ET), the Hawaii Supreme Court will hear oral arguments in a case asking whether a 1922 deed restriction imposed by the Territory of Hawaii on a land patent conveying fee simple title to a private owner, subject to the land always being used for “church purposes” (i.e., a fee simple determinable) void under either the Hawaii Constitution’s Establishment Clause, the U.S. Constitution’s Establishment Clause, or a Hawaii statute declaring that “[e]very provision in … a written instrument relating to real property that purports to forbid or restrict the conveyance … to individuals because of .. religion” is void? 

Here’s how the Judiciary’s web site describes the case:

In 1922, the Territory of Hawai‘i sold property to Heber J. Grant, trustee for the Church of Jesus Christ of Latter-Day Saints, pursuant to a Land Patent.  The Land Patent contained a restriction requiring…

Continue Reading Argument Preview: Is Gov’t Imposed “Church Purposes” Deed Restriction Void?

Today is a good day to remember that legal emancipation had its roots in the “contraband” property theory. Here’s a post from a few years ago where we visited what we called “The Birthplace of a More Perfect Union” (Fort Monroe, Virginia).

The contraband property theory was itself very imperfect, and a compromise theory driven by practicality and politics. But it was a legal theory that laid the foundation for a general acceptance of emancipation, and led inexorably to the Emancipation Proclamation, and the Thirteenth, Fourteenth, and Fifteenth Amendments. 

A good reminder that property law and property rights are not primarily about land, or dirt, or “development,” but about freedom and human rights.

Continue Reading Juneteenth Reminder: Emancipation Had Its Roots In The Property-Based “Contraband” Legal Theory