Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations.
We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this
35th Annual Advanced Course
Eminent Domain and
Land Valuation Litigation
Live Program | Video Webcast | Video Webcast Segments
Thursday – Saturday, January 25 – 27, 2018
Francis Marion Hotel | Charleston, SC
Do not miss this popular conference! Intended for all eminent domain and land use practitioners, both experienced and those new to the
Here’s the amici brief filed earlier this week in Sammons v. United States, No. 17-795, a case we’ve been following. Here’s the cert petition.
The issue in this case is the same as in two cases already pending in the Supreme Court, the first a patent case argued in December, and the
One word is conspicuously absent from the Federal Circuit’s opinion in Alpine PCS, Inc. v. United States, No. 17-1029 (Jan. 2, 2017): “exhaustion.”
We all know that exhaustion of administrative remedies isn’t usually required before bringing a constitutional takings claim, but make no mistake — despite the absence of the word in the opinion
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.
This photo of the view from the lectern at the start of the day
proves we really were in the room and not distracted by all the distractions
possible in Las Vegas
Here are the materials and cases which I spoke about earlier today at the CLE International Eminent Domain Conference in Las Vegas. I
Remember Brott v. United States, the case we last posted about here (“New Cert Petition: Property Owners Entitled To Jury & Article III Judge In Federal Inverse Cases“)? The Question Presented in that case is whether “the federal government take private property and deny the owner the ability to vindicate his constitutional
If case you were thinking you might have missed a big property case that made its way to the Supreme Court, fear not. All of the above issues were raised in the course of yesterday’s arguments in a patent case.
As the transcript in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC
You should be following along with Clint Schumacher’s Eminent Domain Podcast on your own, but in case you missed this one in your feed, be sure to check out the latest episode, which features U. Virginia Law School prof Molly Brady talking about “damage clauses” in state constitutions.
Tomorrow, Saturday, November 11, 2017, is the 100th anniversary of the death of Hawaii’s last monarch, Liliuokalani. The Honolulu Star-Advertiser has a story about the commemoration events.
But here’s a historical tidbit about her which our readers might find interesting: did you know that after she was deposed, and after Hawaii became a