Like love, takings claims can often be found in some very unusual places. And (like love) unfortunately, those claims are not always successful.
When we think of "takings," things like eminent domain condemning land, inverse condemnation (of land) by flood waters, and cases like that spring to mind first. Even when regulatory takings are involved, the conventional view at least starts with claims about land, and although the Supreme Court hasn't come out and said it, the argument has been made that the takings and exaction/unconstitutional conditions doctrines are reserved for claims involving land.
But not always so.
Here are three recent decisions where property rights and takings came up in situations you might not have expected.
Takings and Labor Law
The first is from the U.S. Court of Appeals for the Seventh Circuit. In Sweeney v. Pence, No. 13-1264 (7th Cir. Sep. 2, 2014), the court held that Wisconsin's Right to Work Act, which prohibits unions from requiring membership (among other things), was not a taking.
The opinion is mostly whether federal labor law preempts the Act (it doesn't), but the court devoted a section of the opinion, starting on page 20 to rejecting the plaintiffs takings claim on several bases, the most interesting is the "givings" argument:
we believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table.
Slip op. at 21. Welcome to the Takings Bar, you labor lawyers.
One judge dissented, arguing that the Act is a taking because it transfers property from those who pay union dues to "free riders" (those who benefit from the union collective bargaining and other union services, but who under the Act will pay no fees). The property involved is not the dues money, but a "complusory provision of services." Dissent at 38. Interesting.
A hat tip to our colleagues Ron Kramer and Dwight Merriam for sending this our way.
Takings and Estate Planning
The second case is Bounds v. Superior Court, No. B254505 (Cal. App. Sep. 3, 2014). In that case, the California Court of Appeal concluded that, the words of David Tate's Estate, Trust, Conservatorship & Elder Law Blog:
on a demurrer to a cause of action for alleged financial elder abuse under the California Elder Abuse and Dependent Adult Civil Protection Act, for a “taking” of property to have occurred it is sufficient for the Complaint to allege that an elder had entered into an unconsummated agreement which, in effect, significantly impaired the value of the elder’s property although title to the property did not occur. The elder had been deprived of a property right by means of an agreement because although title to the real property did not change hands escrow instructions had been signed which significantly impaired the value of the property owned by the Trust.
Welcome to the Takings Bar, you estate planning lawyers.
"Don't smoke em if you got em"
Our final nontraditional takings case of the day is Big John's Billiards, Inc. v. Nebraska, No. S-13-803 (Neb. Aug. 29, 2014), a case from the Nebraska Supreme Court. There, the court held that the Nebraska Clean Indoor Air Act, which prohibits indoor smoking in most places, but exempts certain establishments, is not a taking. The plaintiff argued it had a property right in "its ability to operate a premises that allowed smoking," a claim which the court rejected because the right was not "vested" because the ability to allow smoking was a mere expectation:
Simply stated, there is no vested right at issue here. The only “right” Big John’s had to allow its customers to smoke was created by statute—the prior version of the Act, under which smoking in billiards parlors was regulated but not prohibited. That Act created nothing more than a mere expectation based upon continuance of the existing law and did not create a vested right. There was no regulatory taking here as a matter of law.
Slip op. at 955.
We now return you to regular programming.
Sweeney v. Pence, No. 13-1264 (7th Cir. Sep. 2, 2014)
Bounds v. Superior Court, No. B2545-5 (Cal. App. Sep. 3, 2014)
Big John's Billiards, Inc. v. State of Nebraska, No. S-13-803 (Neb. Aug. 29, 2014)
