Here's the first of two cases we're going to post today, both with the same theme -- what was the government thinking?
The facts in Irwin v. City of Minot, No. 20140217 (Mar. 24, 2015), are similar to cases we've covered before, the government's claim that it took property during the course of an emergency as a function of its police power, and therefore it cannot be liable for a taking (see this post -- about a fire -- and this post -- shoreline protection -- for examples). In this case is was flooding.
The City did the right thing to combat the flood. It hired contractors who used clay from nearby privately-owned parcels to build dikes. They contracted with the Irwins' neighbors to remove 20,000 cubic yards of their clay, for which the city paid $.65 per yard. But for some reason, they didn't bother asking the Irwins: "The City did not contract, obtain permission, or pay compensation to the Irwins for removal of the clay from their property." Slip op. at 1. The Irwins brought an inverse condemnation suit to recover compensation.
Rather than just paying them and moving on, the City dug in its heels. Not only did it refuse to compensate the Irwins, it actually argued it was prohibited from paying them as a matter of law, because the taking of the clay was an exercise of its police power. So we're not just stiffing you because we want to, we have to. Not mentioned in this argument was the fact that the City had no problem paying the Irwins' neighbors, which presumably was also an exercise of the police power.
Inexplicably, the trial court granted the City summary judgment. Fortunately, however, the North Dakota Supreme Court disagreed. The analysis section of the opinion is very short. The standard under N.D. law is whether the emergency presented an "imminent danger" giving rise to an "actual necessity" to take the property (like in this recent decision from the Federal Circuit, which the Irwin court relied upon), and in one sentence, the court concluded that there were disputed facts. Which meant no summary judgment:
We review the evidence in the light most favorable to the party opposing the motion, and a question of fact exists as to whether the imminent danger facing the City gave rise to an actual necessity to take the Irwins’ property.
Slip op. at 4. The court sent it back down.
So if the Irwins show that there really wasn't an imminent danger, they get compensated. A good result, we suppose, but also not quite satisfying, for should your right to compensation turn on whether your private property needs to be pressed into public service right now, or if the City maybe could have waited a bit? The imminence of the danger should only be a question of whether the government should ask you first, or whether it has to take now, with payment to follow. The whole "imminent danger" doctrine as a measure of liability doesn't wholly compute for us.
Nor to the one justice who concurred, who had a bit more to say:
Perhaps in a genuine emergency, prior court-related action may not be possible. But even if that is the case, does it follow that because it is not possible to comply with all of a constitutional provision, government does not need to comply with any of the constitutional provision?Usually, the emergency takings doctrine is applied to property that must be taken because of its location in a case of flooding or fire. Here, clay was needed and could have been taken from many locations, but it was taken from the plaintiff’s property. Does it make sense that the one property owner should have to bear the entire burden? If the city needed lumber because of the emergency, could it just have gone and taken lumber from one lumber yard without paying? Could the City have decided to get the lumber by randomly tearing down someone’s house and then refusing to compensate the owner? Does it matter that the City went outside the city to seize the clay?
Slip op. at 5 (Sandstrom, J., concurring).
Spot on, Your Honor. But we also have to repeat the question we asked at the start of this post -- why didn't the City just pay the Irwins? There was no question that it took their private property, the use was public, and perhaps most importantly, the City had no problem paying their neighbors. Was it just a matter of defending the lawsuit to the hilt, and not wanting to give any quarter?
