Here's the latest complaint asserting that a state governor's business shut-down order (under which certain businesses are deemed "essential," while others not) is a taking, inter alia, that joins a growing list of similar lawsuits (see here, here, here, here, here and here).
This one is by licensed beauty professionals and has a slightly different flavor than other similar complaints, because the plaintiffs are alleging a specific property right in their licenses, raising the question of whether a state-granted or state-recognized license is a property interest that needs to be condemned if the government prohibits the licensee from actually using it. The plaintiffs argue a Lucas taking:
113. The regulatory actions taken by the Defendants have resulted in Plaintiffs being deprived of all economically beneficial or productive use of their property including, without limitation, their licenses, their leased property, and their business property, and further resulted in the involuntary closing of their businesses, ultimately making them worse than worthless, in that they have to pay license fees, rent, property maintenance, and related expenses for property they are barred by law from using. The California Supreme Court has found that “While the police power is very broad in concept, it is not without restrictions in relation to the taking of damaging of property. When it passes beyond proper bounds in its invasion of property rights, it in effect comes within the purview of the law of eminent domain and its exercise requires compensation.” House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384 (1944). (Emphasis added).
Complaint at 33-34. The plaintiffs also allege a Penn Central taking, although the complaint makes a distinction between what it calls a "complete and total regulatory and physical taking," and a "partial" taking under Penn Central. See Complaint at 34. They also assert a taking under the California Constitution.
For the taking, the plaintiffs also seek an injunction, not an award of just compensation, claiming they "have no adequate remedy at law." Id.
Will this one fare any better than the other complaints, due to the different property claimed to have been taken? What about Tahoe-Sierra and the purportedly temporary nature of the taking? All those issues and more. We wrote up our thoughts in this piece ("Evaluating Emergency Takings: Flattening The Economic Curve") , identifying what we think are the touchpoints in the takings analysis.
Complaint for Injunctive and Declaratory Relief, Prof. Beauty Federation of California v. Newsom, No. 2:20-cv-04275 (C.D. Cal. May 12, 2020)
