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Call For Academic Papers: "Too Far: Imagining The Future of Regulatory Takings"

Have thoughts about where regulatory takings are (or should be) headed? Here's your chance to get in on the conversation, and to shape the future of the law. Our outfit, the Pacific Legal Foundation, in cooperation with the Antonin Scalia Law School's Journal of Law, Economics, and Policy, are calling for papers on "Imagining the Future of Regulatory Takings." There will be an in-person discussion of these papers at the Law School in October 2024.

Here's the full description:

A century ago, Oliver Wendell Holmes, speaking for the Supreme Court, assured us that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In the ensuing one hundred years, courts have struggled to draw the line defining “too far.” Some still wonder whether such a line should even exist. As Justice Clarence Thomas recently said, “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”

To date, many jurists and scholars have argued that the “too far” line is anything but clear. The regulatory takings doctrine is a hodgepodge of balancing and categorical tests alongside a scattered throng of exceptions, with little guidance on which tests or exceptions apply when, much less how to apply them in a principled and consistent manner. There are the categorical tests of Lucas (“total” takings) and Loretto (“physical” takings) and the amorphous balancing tests like the Penn Central ad hoc regime and the threshold “relevant parcel” test. Then there are vexing and unanswered questions about whether some restrictions on property are simply exempted from a takings analysis: When is a property restriction a “background principle” baked into the meaning of property itself as opposed to a restraint on a recognized property right? When, if ever, does a valid exercise of the police power operate outside of takings constraints? And, to top it all off, we still aren’t settled on how to define “property.” Pacific Legal Foundation seeks papers that offer fresh ideas on how to make “too far” more just, more concrete, and more principled. We welcome proposals that look at this problem from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.

Proposals are due by April 15, 2024, and for accepted works there is a $2500 honorarium and an opportunity to publish your work in the Journal. Certain travel expenses to the Law School also will be covered.

Download the full brochure for all the details, including timeline, and a list of possible topics.

Please consider submitting, and joining us in this fascinating enterprise.

Call for Papers: "Too Far: Imagining the Future of Regulatory Takings"

Too Soon For CA5 To Figure Out Whether City Demolishing Property For Code Violations Is A Taking

In Rhone v. City of Texas City, No. 22-40551 (Feb. 14, 2024), the U.S. Court of Appeals for the Fifth Circuit held that a municipality's conclusion that Rhone's apartment building had not been properly maintained, and a subsequent municipal court demolition order, might be a taking ... or it might not be.

We won't get too far into the facts, except to say that Rhone argued that the city had it out for him, and that the municipal court judge who issued the demolition order was in a contractual relationship with the city by which the judge had to submit for approval all of the court's decisions to the city attorney (the very party pressing the nuisance claims against Rhone). Weird, but apparently a product of Texas law. Short story, according tot the court: "[a]ll of this, facially at least, is a declaration of a lack of independence of judge and city." Slip op. at 12. Yowza!

The district court deemed any pecuniary interest the judge may have had as "de minimis," but the Fifth Circuit noted that "[t]here is evidence that the City Attorney has final authority on what the order on his own petition for abatement would say." Slip op. at 13. Thus, the court ordered a "limited remand" to the district court for a determination of whether the municipal court's demolition order was or was not the product of independent decision-making. If it was, Rhone's constitutional claims would not survive. But "[i]f that premise changes, this opinion will as well." Slip op. at 13. In other words, if the judge's decisions were too tightly controlled by the city -- one of the parties to the very litigation the judge was deciding -- then there might be something there.

The court also rejected the city's argument that the demolition of the building rendered the takings claim moot. "Importantly, demolition of the apartment buildings does not eliminate a takings claims; indeed, it may create one. See Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162, 2167 (2019). This right allows for the property owner to have “some way to obtain compensation after” the government’s unconstitutional actions. Id. at 2168." Slip op. at 7.

So what did the court say about Rhone's takings claim? Jump forward to page 13 for this:

Our limited remand will keep open the issue of whether the Municipal Court’s determination that the property was a nuisance and allowed demolition was not the result of sufficiently independent decision-making. The remainder of the opinion is premised on the Municipal Court’s decision’s being a valid one. If that premise changes, this opinion will as well.

Rhone challenges the district court’s dismissal of his Fifth Amendment takings claim, saying there are fact issues requiring a trial. A property owner may bring a Fifth Amendment takings claim under Section 1983 as soon as the government takes his property without just compensation. Knick, 139 S. Ct. at 2170. Rhone maintains he was subjected to a taking without compensation by the City’s imposing of unnecessary and expensive repair obligations before Rhone would be allowed to use his property; by requiring he keep the property vacant; and by interfering with his efforts to repair, sell, or otherwise address the identified deficiencies in the property. This claim relies on the City’s actions prior to the Municipal Court’s order of abatement that allowed the property’s demolition. Rhone’s legal argument includes that these compliance costs were invalid under the doctrine of unconstitutional conditions. See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013).

Slip op. at 13-14.

The court concluded that what Rhone was pressing was not really an unconstitutional conditions takings claim (because, after all, the city wasn't really forcing him to choose between two rights, but was merely telling him to stop using his property as a nuisance). But the court noted, that "[t]o be fair, Rhone is not disputing that." In short, the essence of his claim is that the city's safety officials who concluded his property was a nuisance should not have been given unreviewable authority to make that determination. See slip op. at 15.

In the end, this doesn't really look all that much like a takings claim after all does it? On that, the opinion sort of wanders away into other civil rights territory, without a clear statement of what happens to the takings claim after remand. Check out pages 15 and 16 if you doubt us. We think the takings claim survives, based on the court's earlier statement that "[i]f that premise [the judge/city relationship] changes, this opinion will as well." Slip op. at 13. But maybe not.

The common law litigation process was all about narrowing, winnowing, and processing claims by forcing them into predefined forms with their own remedies. Did that occur here? Hard to say. 

Rhone v. City of Texas City, No. 22-40551 (5th Cir. Feb. 14, 2024)

"What is Inverse Condemnation?" Join Us In the EDROW Clubhouse, March 6, 5pm, To Find Out (And More)

Save the date (and time): next Wednesday, March 6, 2024, at 5:00 p.m., Eastern Time, as we rejoin our friends and colleagues Patrick McAllister and Beth Smith, as they co-host the Eminent Domain and Right of Way Club.

We'll be joining them to try and answer that question, "What is Inverse Condemnation?" As Patrick and Beth note, "[w]e will find out what it is, how it works and when does it happen....and probably a lot more." Sounds intriguing.

For those of you who may not have participated in one of these sessions before, you may be wondering "what is this 'Clubhouse' thing?" Here's the description, straight from their site:

The Eminent Domain & Right of Way Club is on the Clubhouse Drop in audio app. This Club is geared toward right of way professionals & anyone interested in the acquisition of land rights for infrastructure projects.

In short, it is a smartphone-only app, that connects participants to an audio-only chat room, where you informally hang out and listen to Pat and Beth speak with a guest, followed by a moderated open-mic (again, audio) chat room. Having participated before, we can say it is a very informal, friendly, and collegial venue to learn and discuss things. No pressure, no big whoop. It's just talk.

Come give it a try!

Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we're always ready to go. You know that. But this year's version -- the 41st -- was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn't an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here's a photo essay of some of the Conference highlights.

And if you missed out, the webcast was recorded and is available for viewing. Or, better yet, hold on your calendar January 30 through February 1, 2025 for the 42d Conference, to be held at the Westin Bayside San Diego.

Excitement this way...

The view from the podium.
Say "hello" to our opening plenary session in wide-angle.

Prepping the space.
The finished stage that Conference attendees
see isn't how the room starts off.
It takes a lot of work by the ALI-CLE staff
to get the place camera-ready.

The live webcasting of the sessions also takes a lot of
set-up and a ton of equipment. This is just some of it. 

Here's more. 

The badges were arranged on the table with care...

...in trust that our faculty and registrants would soon be there.

No conference would be complete without swag.
Here is but a sampling.

As always, a huge thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.


The Conference site was right on the routes of several parades.
It was difficult to keep focusing on severance damages and larger parcel
when the music and excitement was just outside.
But we tried.


The opening plenary session -- on the U.S. Supreme Court's
big takings case -- got us off to a solid start.


Thanks to Christina Martin and Steve Silva for speaking
on Tyler v Hennepin County.

The view from the podium as Amy Boulris speaks about the most
significant eminent domain decisions of 2023.

The speakers are a mix of practicing lawyers, judges, other eminent domain
professionals, and legal academics. Here, two property scholars --
Timothy Harris and Jessica Asbridge --
discuss how state property law and state courts
can drive the constitutional issues.

Kinnon Williams, Esq. and Christina Thoreson, SR-WA, MAI, CRE 
present on "Valuation of Wasting Assets."

Lawprof Emilio Longoria and attorney Tony Francois
on "What Condemnation Lawyers Need to Understand
About the Clean Water Act After Sackett"
(hint: it goes to highest and best use).

Matthew Ackerman, Marianna Baggett, and Kenneth Haywood
on "The Pitfalls of Objectively Measured Just Compensation:
When Market Value Isn't Enough."

It was not all work and no play.
Again, a big thanks to our generous sponsors.

Our speakers take questions, of course.
We solicit them the old-fashioned way (thanks, James Masterman).

William and Mary Law School Professor
Emerita Lynda Butler (and her former student, North Carolina's
Jeremy Hopkins" discuss property rights in an age of coastal retreat.

Luis Gallardo-Rivera, Dana Berliner, and (off-camera)
Sophia Holley on "Proving and Defending Pretext,
Public Use, and Necessity."

James Masterman and Martye Kendrick on "Preparing Your Witness
to Overcome Obstacles to Highest and Best Use."

Jeff McCoy, Robert McNamara, and Kristen Renfro on
"Getting to Federal Court and Staying There:
Navigating Procedural Mazes in Federal Takings Claims."

Sean Metherell and Nathan Farris zero in on
"How to Win a Future Highest and Best Use Claim: Proving Reasonable
Probability of Rezoning and Other Issues."

Michael Berger is Watching You:
SCOTUS Property Rights Maven Michael Berger zooms in with his
annual "Regulatory Takings Update."

We always hold a spot for Jim Burling on Saturday.
Why? Because his tours-de-force always are interesting
and put people in seats, even on a Saturday morning.

More Big Michael.
Here, sharing his memories of Professor Gideon Kanner.

See you in San Diego!
January 30 - February 1, 2025
Westin San Diego Bayside

DC App: $350k Loss In Value Due To Home's Historic Designation Not A Penn Central Taking

The DC Court of Appeals' (note: not the U.S. Court of Appeals for the D.C. Circuit) opinion in Gordon v. District of Columbia, No. 20-CV-0568 (Feb. 15, 2024), presents a good cross-section of property rights issues. Not a good outcome on property rights issues, mind you.

If nothing else, be sure to check out the outrageous facts in the case. They will make your toes curl. 

The Gordon brothers own a home in the District, in the Forest Hills area. They didn't want to be owners of this home, and instead wanted to sell it. Consequently, they took some of the usual steps one takes when one wants to sell a home - they retained a real estate agent, authorized certain entries for looky-looks (but did not ok free access or open house showings), and the like.

This aroused the ire of some of the area's residents, who were "[c]oncerned that the property was being sold as a development opportunity" and did what people like this do: they nominated the home for historic landmark designation.

One of these buttinskys even went so far as to retain her own real estate agent (who is also the president of the Forest Hills Neighborhood Alliance) so she could pose as an interested buyer and obtain access to the inside of the house for an intel-gathering view. Believing that Ms. Buttinsky was a genuine potential buyer, the Gordons allowed unaccompanied access to her and her real estate agent. A second pretextual access also occurred during which an official with the District's Historic Preservation Office, the agency tasked with designating properties as historic landmarks, and several "friends and colleagues" -- accompanied the interloper for what the official termed a "site visit." Slip op. at 3.

Next thing you know, Ms. Buttinsky informed the Gordons' real estate agent that she was preparing an application to designate the property as a historical landmark. Then, "[o]n May 11, 2015, the Forest Hills Neighborhood Alliance submitted a petition, drafted partly by Ms. Berk, nominating the Gordon house to be designated a historic landmark. Around this same time, Ms. Berk was awarded a lifetime achievement award by the [Historic Preservation Review Board]." Slip op. at 6.

After even more questionable shenanigans (read pages 6-8 of the opinion for some astounding details), the Board approved designation of the Gordons' house as a historical landmark. Did the approval have an effect? You bet, an immediate one:

Before the designation, the Gordons had received an offer to purchase their home for $1.55 million dollars, but that offer was withdrawn the day after the Historic Preservation designation. The same buyers later made the Gordons another offer for $1.2 million dollars; they cited the landmark designation as the reason for their reduced offer.

Slip op. at 8.

Lawsuit followed. Claims included takings (natch), due process, and search-and-seizure violations. The trial court dismissed some of the claims for failure to state a claim, and granted the District summary judgment on the remainder of the claims. Next, the Gordons appealed to the DC Court of Appeals.

The Gordons asserted that the historic preservation official's entry into their home violated the Fourth Amendment and was a trespass. The trial court rejected the claim because it was Ms. Buttinsky who let the official on the premises, and the official asserted she believed Ms. Buttinsky had apparent authority to do so. And this wasn't an investigation into a crime. Concluding that there was no violation of "clearly established" law, the trial court dismissed. Qualified immunity strikes again.

The appeals court held that it didn't matter why the official entered the property, only that she did. Next, the court seemed to be heading toward rejecting the District's argument that it couldn't be liable unless the official violated some clearly established prohibition. In other words, some court must have already said that this kind of behavior was illegal. The court noted that no other court had done so in this precise situation, but that "this court spoke to the issue of apparent authority over property with sufficient specificity" in a 2023 case, such that the officials are now on notice that this kind of conduct is illegal. Slip op. at 18.

This principle applies with obvious clarity to the facts presented here and compels the conclusion that the nature of Ms. Warner’s access to the Gordon home was clearly limited to her role as a real estate agent, not a preservationist. It was therefore unreasonable for Ms. Williams to believe that Ms. Warner had the apparent authority to consent to her entry into the Gordon home for an HPO site visit. Ms. Williams was aware that Ms. Warner was “not the listing agent,” but instead a “sympathetic” agent “who want[ed] to save” the Gordon home, and she was aware that Ms. Berk had arranged the tour not because she was considering buying the home, but because she was “strategizing its rescue” and wanted to take photos for the historic nomination application.

Slip op. at 19.

Things seemed to be looking the Gordons' way. But then the court held that this 2023 case was decided after the official had entered the Gordon property, and thus it was not clearly established at the time she did so that it was wrong. Thus, the court concluded, she is entitled to immunity. We'll get you next time!

But what about the District's liability for its employee's illegal entry? Nope there as well. The complaint didn't allege that there was some official District policy to do this and that omission was fatal. The only claim the court allowed to go forward was the common law trespass claim against the official. The court rejected the trial court's conclusion that the official was entitled to qualified immunity, holding instead that QI "does not shield government officials from liability for common law torts, like a claim of trespass." Slip op. at 26.

Now on to the takings claim. As noted above, the complaint alleged that the designation of the Gordon home as a landmark resulted in a loss of the value of the property of $350,000, as evidenced by that lost sale and new lower offer. The trial court dismissed because the complaint did not plead anything about alternative economic uses of the property. (In other words, the complaint didn't allege that every other possible use of the property was not economically beneficial.)

But wait, the owners argued, we're arguing "that the court erred by . . . applying what they construe to be a categorical rule for assessing the occurrence of a total taking, rather than the multi-factor inquiry for partial takings[.]" Slip op. at 33. No deal, held the appeals court. To press a Penn Central claim, you must allege that there are no other alternative uses that are economically beneficial. Slip op. a 34.

Indeed, the court expressly considered both the fact that the Gordons had alleged the historic designation of their home reduced its value by $350,000, and the fact that they still had an offer to purchase the home, albeit at a reduced price—$1.2 million as opposed to $1.5. million. Lastly, we note that the Gordons have failed to explain what factor under the fact-specific Penn Central test the Superior Court should have considered but did not that would have made a difference in the court’s analysis. For all of these reasons, we affirm the court’s determination that the Gordons failed to allege facts sufficient to support a takings claim.

Slip op. at 35.

So there is is. What looks to us like outrageous government conduct mostly gets a pass.

And the Penn Central pleadings trap continues it yeoman's work keeping takings claims from being determined on the merits. 

Gordon v. District of Columbia, No. 20-CV-0568 (D.C. App. Feb. 15, 2024)

2024 Distinguished Gifford Property Lecture - Professor Carol N. Brown (Richmond Law) (March 12, 2024, U. Hawaii Law School)

Join us and our Land Use class, in-person on the campus of the University of Hawaii Law School (or online via Zoom, where it will be livestreamed), as Richmond Law lawprof Carol Brown delivers the 2024 Distinguished Gifford Lecture in Real Property, on March 24, 2024, at 4:40 p.m. Hawaii Time in the Cades Schutte classroom.

Her talk is titled "Affordable Housing A to Z" and is very timely. More details on this flyer.

Made possible by the generosity of one of Hawaii's premiere dirt law firms, Carlsmith Ball, LLP.

Space is limited, so please RSVP here.

2024 Distinguished Gifford Property Lecture - Professor Carol N. Brown (Richmond Law) (March 12, 2024, U. H...

SCOTUS Denies Review To Remaining Rent Control Takings Petitions: "Important and pressing question" (Just Not In This Case)

Yesterday, the other shoe dropped. In this order the U.S. Supreme Court denied review to a case that we've long been following, which challenged aspects of New York's draconian rent control laws as a taking, 74 Pinehurst v. New York.

We say the "other shoe" because ever since the Court denied review months ago to other challenges to rent control (yet kept relisting Pinehurst, which was always among the two strongest of the multiple challenges), it appeared this round of petitions was doomed, and the Court was holding off denying review, to allow one or more Justices to write something. To us, it was unlikely that the Court would deny some of the petitions outright, while at the same time agreeing to take up the issue in another case. Grant-and-hold seemed the most likely scenario there. Absent that, we didn't expect these last two to be granted. 

So count us as not surprised. But as some have noted, there might be a silver lining in this last disappointment. Justice Thomas, while agreeing with the Court to deny review in Pinehurst, wrote a short statement in which he offered his thoughts. It isn't long, and you should read it:

Here's the entire thing:

Petitioners are owners of small and midsize apartment buildings who challenge New York City’s rent stabilization laws. Among other things, they argue that New York City’s regulations grant tenants and their successors an indefinite, infinitely renewable lease terminable only for reasons outside of the landlord’s control. Petitioners argue that they have suffered a per se taking as a result. The constitutionality of regimes like New York City’s is an important and pressing question. There are roughly one million rental apartments affected in New York City alone. See Pet. for Cert. in No. 22–1130, p. 1; Brief in Opposition for City of New York et al. in No. 22–1130, p. 4. And, the Courts of Appeals have taken different approaches: The Second Circuit rejected petitioners’ takings claims at the pleading stage, but at least one other Court of Appeals has accepted similar claims. Compare 59 F. 4th 557 (CA2 2023) (case below), with Heights Apartments, LLC v. Walz, 30 F. 4th 720 (CA8 2022).

The pleadings in these petitioners’ cases, however, would complicate our review. The petitioners’ complaints primarily contain generalized allegations about their circumstances and injuries. But, to evaluate their as-applied challenges, we must consider whether specific New York City regulations prevent petitioners from evicting actual tenants for particular reasons. Similarly, petitioners’ facial challenges require a clear understanding of how New York City regulations coordinate to completely bar landlords from evicting tenants. The pleadings do not facilitate such an understanding. However, in an appropriate future case,we should grant certiorari to address this important question.

So what to make of this. A roadmap for a future case as some have suggested? The holding out of false hope and an invitation to more failed challenges to New York's scheme, and a way of slow-walking the continued validity of rent and vacancy controls as others have claimed? Or maybe a clue to stop focusing on New York for takings and other challenges to rent control because it is too complex and too ingrained in the social fabric?

We're not entirely sure. Probably could never be sure, unless we could arrange a meeting with Justice Thomas and ask him a few questions, and that ain't likely to happen.

But here's how we're taking it.

First, we are taking it at face value. Justice Thomas said that it's a good issue, teed up and ready, and there's even a lower court split. That's usually the promised land for SCOTUS review. But, he noted, the way this case was pleaded made it an unworthy vehicle. Get that, lawyers: the way the complaint was pleaded. Pleaded! It it just us, or are property rights cases fertile grounds for Field Code special pleading, giving us a sense of what medieval writ practice must have been like? It seems we need to plead these claims with a specificity not required in other matters, well beyond the notice pleading our Civil Procedure professors told us was the standard.

Well, with that rant out of the way, let's assume that Justice Thomas is right, and there's a way to draft a complaint to actually, you know, state a claim that a rent or vacancy control is a taking. His as-applied scenario suggests a case that has gone through the eviction-court wringer. Get ready to exhaust, property owners! This sounds like Justice Thomas is suggesting that before a takings claim would be ready, the complaint must plead facts to show who, how, and why the lessor has tried to get a tenant out, but the rent/vacancy control regulations have prevented that. The "particular reasons" he notes seem like the big ones: failure to pay rent, being a danger to other occupants, destroying the property. We often hear lessors say "going through the eviction process is futile, and a waste of time and money, when all I want it to either get the rent flowing again, or the premises returned to me so I can fix it back up and re-rent it." Maybe so, but apparently Justice Thomas believes that a legal challenge to tenant regulations is not going to be ready unless and until you go through the process and come up empty.

Second, we thought the Pinehurst complaint did a pretty good job of cutting through the complex fog that is New York's rent regulations, if that is even possible given its byzantine structure and requirements. But apparently not enough for a "clear understanding of how New York City regulations coordinate to completely bar landlords from evicting tenants." If those pleadings were not enough, what could be? Maybe here, Justice Thomas is suggesting that we look outside of New York for the case. New York may have the most well-known and (in)famous scheme, but it isn't by far the only such scheme in the nation. Identify the relevant issues (physical occupations, re-writing of the lessor/lessee contracts, and turning private rental stock into what is effectively public housing), and look beyond the Hudson for cases.

So what to make of all this? On one hand, the Court's denial is not all that surprising since the weight of statistics is never favorable, and from a practical standpoint, the Court might be reluctant to wade into an issue that would certainly draw political fire, however it ruled. Rent control is so woven into the fabric of New York, it often seems politically impossible to unweave it. On the other hand, the entire notion of rent and vacancy controls -- which started as a temporary emergency measure designed to deal with the flood of returning doughboys from the battlefields of WWI Europe, but has morphed over the past century into a private subsidy that insulates certain protected occupants from market forces -- is ripe for a recoking. Subsidizing tenants may be a public benefit, but if so, shouldn't the entire public bear the freight?

In today's parlance, this is not "sustainable," and someone is going to be left standing when the music eventually stops. The Court will have to face it, one day. Just not today.

That being said, the final word is this: we're ready to follow Justice Thomas's roadmap. If you may have a case, give us a call.

Statement of Justice Thomas respecting the denials of certiorari, 74 Pinehurst, LLC v. New York, No. 23-113...

Presentation of the Owners' Counsel of America Crystal Eagle to Professor Emerita Lynda L. Butler of the William & Mary Law School (Feb. 3, 2024)

Professor Lynda L. Butler

[Barista's note: this is the text of our introduction of William and Mary Law School Professor Lynda L. Butler during the Owners' Counsel of America presentation of the Crystal Eagle award earlier this month in New Orleans.]

* * * *

For over four decades, Professor Lynda Butler of the William and Mary Law School has been at the forefront—raising the national and international recognition and standing of property rights.

Her academic and scholarly accomplishments and accolades are long—much too long to be repeated here. Her expertise includes many of the topics that are so important to us: Eminent Domain and Takings; Environmental Law; Land Use and Zoning; Water Law; Property Law. And, of course, she is a student of the Constitution.   

She has mentored generations of lawyers now spread across the country, including OCA members and affiliates right here in this room. Her scholarly publications—again, too numerous to mention tonight—include some of the most influential legal scholarship on these subject. 

So I do not need to go further into details about her accomplishments. And frankly, those accomplishments are not the most important reason why we—the Owners’ Counsel of America—are presenting her with the 2024 Crystal Eagle. Rather, it is something less able to be included on list of professional accomplishments. But in our view, much more essential.

For in addition to her classroom teaching and prolific legal scholarship since 1979, she has for the past decade-plus served as Director of William & Mary’s Property Rights Project, which “promotes the exchange of ideas between scholars and members of the property rights bar through lectures, an annual conference, and publications.”

That rather general description belies the actual importance of her role. As Director, Professor Butler has served as the Editor of the Brigham-Kanner Property Rights Journal, the Faculty Member on the Brigham-Kanner Conference Committee (which selects the awardee of the William and Mary Property Rights Prize), and—most critically, she has been the leader and driving force behind the Brigham-Kanner Property Rights Conference, held every year in the fall.

The Brigham-Kanner Conference brings together members of the bar, bench, and the legal academy to explore the theory and practice of property rights law. At heart, this Conference asks the very questions we as members of OCA ask every day of our professional lives: what is this thing we call “property,” and why is it important? We might think we know the answer to that—because it’s right there in the Constitution! You and I have what they today called the “lived experience” to understand why property rights are at the heart of civil rights.

But not content with that genuine—but incomplete—approach, the Project and the Conference—under Professor Butler’s steady leadership—has delved deeper into why the essential notion of private property ownership is fundamental to human flourishing and human dignity. Property, after all is one of those things that divides us from the animals; what makes us human.

At the Conference, the Project recognizes the outstanding contributions of individuals to the field of property law—especially eminent domain and property rights law—with the annual Brigham-Kanner Property Rights Prize. The conference takes place at William & Mary Law School, but under her leadership has also traveled to international venues such as Beijing, China, and The Hague, in the Netherlands. The old saying is that “It took Nixon to go to China,” and we can now add that “It took Lynda Butler to take a conference on property rights to the socialist People’s Republic of China.” Heavens me. Doing so has spread the word about the importance of property rights.

Under Professor Butler’s steady leadership, and compassionate—but firm—guiding hand (she had to deal with Joe Waldo, after all!), the Conference has grown in size, importance, and prestige. She has, though her commitment—leavened with a heavy dose of daily drive—transformed it into the premiere property rights-focused academic conference in the nation (and as noted above, indeed the world), while also ensuring that the practical applications of property rights never takes a backseat to the ivory tower. She understands what we in this room know: that the professors may pump up the tires, but we, the practicing bar, pedal the bike!

And let’s think about that for a moment. Those of us who are already members of the choir may not need to hear the property rights preacher. But make no mistake—the general direction of the legal academy and legal education were not—and are not—trending our way. Several prominent law schools treat the role of property as a diminishing one and have shunted it to an elective. So I am not overstating when I declare that Professor Butler was swimming upstream—and against a pretty strong current.  

But as direct consequence of Lynda’s drive and determination, the cause of property rights has gained heightened legitimacy and acceptance in the legal academy. Speaking slots at the Conference are treasured plums. And the Brigham-Kanner Prize? Just look the names of the luminaries on that list, giants in property rights scholarship and practice: Jim Ely, Richard Epstein, Mike Berger, Thomas Merrill, Richard Pipes, Hernando de Soto, Henry Smith, and Jim Burling, to name a few. And yes, even Justice Sandra O’Connor. True, she started her Supreme Court career with Midkiff, but her last judicial opinion? Her magnificent dissent in Kelo v. New London. As they say in golf, “It’s not how you drive, it’s how you arrive.” And I can’t help thinking that a large part of Justice O’Connor’s epiphany was due to the renewed focus on the central role property rights plays in human happiness.

And it isn’t too hard to connect those dots to the Conference, and to Lynda. Trust me when I say that the Brigham-Kanner Property Rights Prize is highly coveted. Legal scholars want their names on that plaque, a recognition within the legal academy of the importance of property rights.

And having known Professor Butler for many years and working with her very closely in the past seven years, I can confirm that she accomplishes all of above with enviable collegiality, an openness to new ideas, and keen insight. She even trusted me—a nontenured visitor—to take over her beloved land use class upon her retirement from teaching. That was one of the moments in my life when I knew I had “made it.” Not one to reflexively take a side on any issue, Professor Butler thinks critically, analyzes the questions, and reaches her own conclusions. And even after her retirement, I will always hear the Brigham-Kanner Property Rights Prize announcement in her distinct voice and timbre. She has been the literal academic voice of property rights, and will now continue on as the virtual voice.

Her long-term vision—indeed courage—are highly worthy of our recognition and appreciation. We, the guardians of the “guardian of every other right”—the members and affiliates of the Owners Counsel of America—owe her a debt of gratitude. That is why she was nominated for the Crystal Eagle by no less than seven OCA members, including some of her former students.

Friends and colleagues, tonight we honor Professor Lynda L. Butler with our 2024 Crystal Eagle. She will be an excellent awardee and continue to be an ambassador for property rights and will bring great credit to us, and to the cause of civil rights. She has been—and will continue to be—a leading advocate recognizing the importance of property rights to the rule of law, and as a necessary foundation for human flourishing.

Everyone, please rise and join us as we ask Lynda to step forward and join me at the podium.

This Crystal Eagle is presented to

Lynda L. Butler

by Owners' Counsel of America

In recognition of your courage, long-term vision, and steady leadership
of William & Mary Law School’s Property Rights Project,
your dedicated work to elevate the civil right of private property
ownership, and your decades long mentorship of the next generation
of property rights lawyers.

Peace Out: CA9 OK's Pre-Enforcement Challenge To Rent Control Statute

Check out the U.S. Court of Appeals' opinion in Peace Ranch, LLC v. Bonta, No. 22-16063 (Feb. 13, 2024), where the court concluded that the owner of a mobilehome park could bring a federal court challenge to a California statute, even before the state applied the statute and enforced it.

There's a mobilehome park in Southern California -- Rancho La Paz -- that straddles the line between two separate municipalities, Anaheim and Fullerton. When the owner of the park upped the rent, the municipalities undertook efforts to impose a form of rent control. But those efforts ultimately failed.

Not to be outdone, the state representative from the area pushed for, and got adopted a state statute that seems curiously tailored to cover only Rancho La Paz: certain "qualified" mobilehome parks can only raise the rent a certain amount. The definition of a "qualified" park in the statute is limited to those parks which are within two or more incorporated cites. Gee, what a coincidence!

The owners sued in federal court, alleging a host of constitutional violations, including takings. The district court dismissed, concluding that the statute does not apply to Rancho La Paz because it is not a "qualified" mobilehome park. Hold on, how so? Turns out that the owner of the park alleges that it is not a single park split between two municipalities, but that it is instead two separate parks -- one in Anaheim and one in Fullerton. But what was important, the owner asserted, was that the State believes that the property is a single park that is a "qualified" park and therefore subject to the state's rent controlled statute. The court concluded that it was going to accept the owner's pleaded facts as true, and thus held that there was no "realistic danger of sustaining an injury" by the state's enforcement. 

The owner tried to amend around this, emphasizing that its injury was due to the state wrongly believing that Rancho La Paz is subject to the statute. But to no avail, and the district court dismissed with prejudice. In short, because the owner continued to maintain that it was not covered by the statute, it could only sue if and when the state moved to actually enforce the law. Until then, no claim.

The Ninth Circuit reversed. It focused on the question as one of pre-enforcement standing. Can a plaintiff bring an action challenging a law when the government has not yet formally applied that law to the plaintiff? As the court noted:

Pre-enforcement injury is a special subset of injury-in-fact. Typically, plaintiffs must allege an injury at the time of filing. For pre-enforcement plaintiffs, the injury is the  anticipated enforcement of the challenged statute in the future. One need not violate a criminal law and risk prosecution in order to challenge the law’s constitutionality.

Slip op. at 8.

The entire opinion is worth your time to read. But here's some highlights. First, a plaintiff "need not plan to break the law." Slip op. at 11. Second, the court noted that resolving a standing question does not require "mini litigation of the claims." The court must take as true the allegations in the complaint. Slip op. at 12. Third, the Ranch's conduct need not be definitively within the statutory proscription, merely "arguably" covered. The court noted:

In an effort to preserve future arguments, both parties dance around whether Rancho La Paz is a single mobilehome park straddling two cities or two mobilehome parks, one in each city. Hedging its bets, Peace Ranch alternatively claims that it is a single park (and thus is subject to AB 978) or two parks (and thus escapes the confines of AB 978). The amended complaint describes Rancho La Paz as a “park straddl[ing] two cities” and also alleges that “Peace Ranch believes [Rancho La Paz] is actually two separate parks (one in Anaheim and the other in Fullerton).” In its opening brief, Peace Ranch explains that these allegations “preserve an alternative argument for a future enforcement or other proceeding.” For its part, Peace Ranch is clear on one point—it wants to raise the rents.

The Attorney General maintains that Peace Ranch’s allegation of two parks destroys its standing. There can be, the argument goes, no pre-enforcement standing if the statute does not apply to Peace Ranch.

Slip op. at 13.

As the court notes, there's a logical trap there. The owner ultimately argues that it isn't covered by the statute, but claiming that is the very thing that the state pointed to as saying "ah hah, no standing." Addressing this, the court noted that there's no need to resolve this question at this stage -- for indeed, this is the core merits question:

We can avoid this pickle—an inquiry that seems to unavoidably tangle standing with the merits. One purpose of pre-enforcement standing is to ensure that no law is practically unchallengeable. The risk of being sued by the state will deter many plaintiffs from testing their luck. Thus, the relevant question is whether Peace Ranch plausibly alleged that it refrained from raising rents because of the Attorney General’s interpretation of AB 978.

Slip op. at 14.

Read that again: "plausibly alleged."

That, the court held, coupled with the "substantial threat of enforcement" is enough. Has the government disavowed enforcement? If not, that should be enough. Slip op. at 15. "Here, the Attorney General not only refuses to disavow its intent to enforce but also admits that the law targets Peach Ranch." Id.

This case reminds us of another recent Ninth Circuit decision, Iten v. County of Los Angeles, where the issue was not presented as one of pre-enforcement standing, but plain-old standing.

Our question is this: why doesn't the court's approach here also rule the day when it comes to whether a regulatory takings claim is ripe? Remember that in many regulatory takings claims, the government claims it has not made a "final decision" applying its land use restrictions to the plaintiff's property. We might allow you to build, the government frequently claims. You have to ask us -- and keep asking us -- before any court can say that our actions are a taking.

To us, the court's analysis here -- looking at the facts as alleged in the complaint, the government's disavowal, vel non, of enforcement, and a clear line between pleadings and the ultimate merits question -- should be more widely applied.

Peace Ranch, LLC v. Bonta, No. 22-16063 (9th Cir. Feb. 13, 2024)

Sad 191st Birthday To You, Barron v. Baltimore (Feb. 16, 1833) - The First SCOTUS Takings Case?

Today's the day, 191 years ago, when -- a mere 5 days after oral arguments -- the U.S. Supreme Court issued its (in)famous opinion in Barron ex rel. Tiernan v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833).

Generations of law students study this one in their Con Law classes, and it is mostly known as the case which held that the Bill of Rights limits only the federal government and does not limit the power of states. For the latter, one must look to state constitutions. Barron, of course, was overruled or otherwise neutralized by the Fourteenth Amendment (privileges or immunities clause or the due process clause, take your pick).

But the reason we're posting our sad birthday wishes today isn't for that reason, but more because in our estimation, Barron was the first "takings" case considered by the U.S. Supreme Court.

The case was instituted by the owners of a mostly-prosperous wharf on Baltimore Harbor against the City of Baltimore. The municipality had undertaken street upgrades and improvements on one of the city's several hills nearby, which resulted in increased runoff into the harbor and the eventual silting up of the plaintiffs' wharf. And guess what happens when a wharf loses its access to the water? Well, it's not really a wharf any longer, is it.

Next up, a claim against the city for what today we'd call an inverse condemnation or maybe a takings claim. Your actions, Baltimore, destroyed the use and value of our property, a wharf. As the claim worked its way up the judicial food chain, it morphed from a more common-law vibe to a constitutional question: did the Fifth Amendment require that the city provide just compensation if indeed its actions effectively had taken the plaintiffs' property?

As the opinion put it:

The plaintiff in error contends that it comes within that clause in the fifth amendment to the constitution, which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favour of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States.

Barron, 32 U.S. at 247.

Remember, this was a time when no one really knew whether the limitations on government in the Bill of Rights was something that was supposed to apply to all governments, state and federal, or were only intended to limit the federal government (as in, say, the First Amendment, where the phrasing was "Congress shall make no law...").

As we know, it turned out badly for the property owner plaintiffs. Sorry, Chief Justice Marshall held (in the final opinion in his long career), the Bill of Rights only limits the federal government. If you want protection from your state (or local) governments, you can look to your state constitutions. Relying on no cited authority whatsoever, in the Chief's words:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.

Id. The Chief relied on a maxim of statutory construction, concluding that if the ratifiers of the amendments wanted them to apply to the states, they would have said so. 

In light of Mr. Justice Marshall's track record on the Court of being a pretty hard-core "national" guy (his more famous rulings, after all, were all about the power of the Constitution to forge a strong, continent-wide national government, in which the states had their places), you might have been a bit surprised that he was a poodle when it came to bringing states to heel when it came to individual rights. So what gives, JM?

For some answers -- and a great backstory of the case and some its more famous personalities such as Roger Taney, Esq. -- you could not do better than Professor William Davenport Mercer's "Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty" (U. Okla. Press 2017). Professor Davenport details the case, and the arguments. But also sees the decision in the larger context and asks the vital question: why did the Court rule the way it did?

We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed.

Id. at 250-251.

Here's the book's description:

The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore’s rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig’s wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city’s actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court’s decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century.

Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron’s claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered.

In explaining how the Court came to reject a multisourced view of human liberties—a position seemingly inconsistent with its previous decisions—William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall’s view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer’s work makes clear, is among the Jacksonian era’s significant democratic reforms and marks the emergence of a distinctly American constitutionalism.

We read it a while ago, and do recommend it. It is a real-eye opener. 

And over the past 191 years, history has not been kind to Barron. The Civil War was the end-product of Barron's vibe, one might say. And the Fourteenth Amendment expressly recognized that indeed, states are limited by the Constitution, and that our civil liberties and freedoms are not only acknowledged in state constitutions.

If there was any doubt, the takings aspects of Barron ended up in history's dustbin with the Chicago Burlington case, which held that indeed, states and their instrumentalities are bound by the Fifth Amendment's requirement of just compensation. And whatever might have been left of Barron was finally left fully behind in Pennsylvania Coal.

So happy... er sad birthday, Barron v. Baltimore!

Barron ex rel. Tiernan v. Mayor and City Council of Baltimore, 32 U.S. 243 (Feb. 16, 1833)

Today, 12:30pm ET: Professor's Corner - Legislative Exactions & Sheetz v. County of El Dorado (ABA RPTE)

Join us at 12:30pm ET today, Tuesday, February 13, 2024, for the ABA's Section of Real Property, Trust and Estates' monthly Professor's Corner, where we will join exactions experts Prof Tim Mulvaney, Andrew Gowder, and Prof Elizabeth Elia to discuss the Supreme Court arguments, the issues in the case, and what may be down the road.

Here's the description:

Can legislative action constitute an exaction subject to the Nollan/Dolan/Koontz test? In his concurrence to the Supreme Court's 2016 denial of certiorari in California BIA v. City of San Jose, Justice Thomas made clear that he was eager to examine this issue. Justice Thomas's wait is over; the Supreme Court granted certiorari to address this very question during the 2024 session in the case Sheetz v. Co. of El Dorado. Our expert panel will discuss all sides of this extremely interesting case and its implication for takings jurisprudence.

Free, but you gotta register. Join us!

No State Takings Problem In Amending Public Pension Plan

Illinois adopted a statute that tweaked public pensions:

On January 1, 2020, Public Act 101-610 became effective and amended, in pertinent part, portions of the pension code to consolidate all applicable local police and firefighter pension fund assets into two statewide pension investment funds, one for police and the other for firefighters. Pursuant to the Act, the local pension funds were required to transfer custody and investment responsibility for their fund assets to the respective statewide funds, which are now tasked with collectively investing and administering the pooled assets. The Act provided a transition period that ended on June 30, 2022, for the transfer of securities, assets, and the investment function from the local funds to the statewide investment funds.

There's more detail on the statute in the Illinois Supreme Court's opinion in Arlington Heights Police Pension Fund v. Pritzker, No. 129471 (Jan. 19, 2024), but we'll leave those details to you. Suffice it to say that the public unions did not appreciate these amendments, and sued in an Illinois court, alleging (inter alia) that these tweaks resulted in an Illinois-law taking. Oh, there were other claims, but you know we're going to focus on the takings stuff.

The plaintiffs argued:

Plaintiffs’ complaint alleged that the Act diminishes and impairs their pension benefits because, (1) prior to the Act, the local funds could “exclusively manage and control their investment expenditures and income”; (2) their “voting power and thereby an effective say in the selection of investment managers, investments, risks, rates of return, costs and expenses” was diluted by the participation of members of other local funds; and (3) the local funds must bear the costs associated with the Act’s transition process, including repayment of any IFA transition loans.

Slip op. at 4.

The trial court didn't buy it because the Illinois takings clause only governs real property (really!), and thus the plaintiffs had no takings clause property at stake. The appellate court agreed on the result (if not the reasoning), holding that "because plaintiffs have no property right in any particular assets or level of funding and are entitled only to present or future payments from the funds, they could not establish the private property requirement for their takings claim." Slip op. at 5.

The Illinois Supreme Court also agreed. Skip forward to page 10 to get to the takings stuff. Thankfully, the court didn't adopt the trial court's reasoning that property only includes real property. Instead, the court held that the plaintiffs have no property right in the source of funding for their pensions:

As the appellate court correctly concluded, the Act does not take any of plaintiffs’ private property. As participants in a defined benefit plan, they have a right to receive their promised benefits but do not somehow have a private property right in the source of funding for those payments. Plaintiffs claim that the Act requires them to fully transfer ownership of their private property, comprising the securities and other fund assets. The Act does not operate in that manner. It simply changes the control and management of the local funds’ assets from one government-created pension fund to another type of government-created pension fund. As defendants assert, although plaintiffs have a constitutional right to receive the benefit payments promised to them, which the Act does not change, they do not have a property right to any particular level of assets used to pay those benefits or in the way those assets are held or invested.

¶ 37 Plaintiffs have failed to identify any property right under Illinois law that is affected by the 2020 amendment to the Pension Code. It is undisputed that the Act does not impact the pension payments that plaintiffs are entitled to receive. Additionally, as defendants recognize, plaintiffs’ takings claim must also fail because even if they had a property right in the local funds’ assets, which they do not, the Act would not constitute a taking of that property for the government’s use. The Act simply changes how local fund assets are managed and invested without affecting the ultimate use of those assets to pay the benefits of local fund members.

Slip op. at 10-11.

And you know what "no property" means - no taking.

Arlington Heights Police Pension Fund v. Pritzker, No. 129471 (Ill. Jan. 19, 2024)

The Public Use Requirement Is Self-Executing: "In a free society, we should not expect that when a court tells the government that a taking is illegal and unconstitutional, that it would just go ahead and seize the property anyway."

The historic Supreme Court of North Carolina.

Here's the latest in a somewhat strange case we've been following about what happens after a court determines that a taking lacks a public use -- but the condemnor goes ahead and just seizes the property anyway.

The Town of Apex, North Carolina, sought to take an easement across Rubin's land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town's development approvals for his proposed residential subdivisions.

While Rubin's public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public use requirement. (We say "public use requirement" because Rubin's objections were both under the U.S. Constitution's Public Use Clause, as well as the North Carolina Constitution, which, as you may recall, does not contain an express takings clause. But North Carolina has long recognized that the public use and just compensation limitations on eminent domain power govern, under the N.C. Constitution's "Law of the Land" Clause.) More details in our earlier post on the case.

So here's the situation: the Town is now illegally occupying Rubin's property. Now what? The Town argued it was fait accompli -- all you can do is sue us for just compensation in an inverse action. Or maybe you can sue us in a common law tort trespass action to get us off your property by way of separately seeking a writ of ejectment, or an injunction. (Rubin hadn't done either of these.) She argued that she didn't need to do that, and the court in the eminent domain action had all it needed to order the Town to get off her land.

In Town of Apex v. Rubin, No. COA20-403 (May 4, 2021), the North Carolina Court of Appeals was horrified by the Town's actions. The three-judge panel held, "[t]his is not the law, nor can it be consistent with our Federal and State Constitutions[,]" "[t]he Town’s argument is not supported by the facts or the law[,]" and "the public purpose requirement serves as a shield to protect the landowner from government intrusion rather than as a sword to cut away private property rights," and accepting the Town's arguments would, "open the door to numerous constitutional harms[.]" 

All good, right? See ya later, Town of Apex?

Not so fast. The court also concluded that although the Town grossly exceeded its powers and violated Rubin's rights, Rubin had not sought the proper remedy, and in order to get the Town off her property, she needs to sue it in trespass (and win):

The question remains whether the trial court correctly concluded that the Judgment precluded mandatory injunctive relief. We hold that the trial court erred in this respect. While Ms. Rubin is not entitled to post-judgment mandatory injunctive relief in the direct condemnation action, she may bring a trespass claim against the Town in pursuit of the mandatory injunctive relief she seeks. We therefore vacate the trial court’s orders insofar as they preclude the availability of mandatory injunctive relief, but we ultimately affirm the trial court’s denial of Ms. Rubin’s motion to enforce the Judgment.

Slip op. at 31.

Neither party was happy with that outcome. The Town sought discretionary review in the N.C. Supreme Court, while Rubin conditionally cross-petitioned. The North Carolina Supreme Court granted both petitions.

This morning, the North Carolina Supreme Court allowed our motion to file this amicus brief in support of Rubin. Because this is (now) a case we're participating in, we won't go into much detail. But here's how the brief summarizes the case:

In a free society, we should not expect that when a court tells the government that a taking is illegal and unconstitutional, that it would just go ahead and seize the property anyway. Yet that is exactly what the Town of Apex did. Having been told it was acting unconstitutionally, it did not do the right thing and stand down. Instead, its only response to the court’s lawful order that the taking lacked a public use was to occupy Ms. Rubin’s land, and then claim it was too late for Ms. Rubin or the court to do anything about it. This isn’t the rule of law, but predatory government conduct that a court has the power to address even in the absence of the property owner’s trespass claim.  

This case is an opportunity to reaffirm a foundational principle of limited government: the sovereign power of eminent domain does not extend to taking private property for private use, and the Town’s attempt to do so was utterly void—not merely voidable. Neither North Carolina’s Law of the Land Clause, nor the U.S. Constitution’s Public Use Clause, is so toothless that it permits the Town to purposely violate Ms. Rubin’s property rights, with the court powerless to do anything unless and until she pursues and wins a common law trespass claim.

Underlying the Court of Appeals decision is the incorrect assumption that the Town’s invasion and occupation of Ms. Rubin’s land was a run-of-the-mill tort, redressable solely by a separate trespass action. But exercising the sovereign power of eminent domain to seize property—especially after the courts have held that the taking is not appropriate—is not merely a civil wrong, but the government acting well outside its constitutionally delegated powers. This principle goes back to the foundation of this nation. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89 (1798) (“It is against all reason and justice for a people to entrust a legislature with such powers [to take property for another’s private use], and therefore it cannot be presumed that it has done it.”). Put another way, in addition to recognizing a property owner’s individual civil right to keep and use their property unless a taking is for public use, the public use requirement acknowledges an inherent limitation on sovereign power: takings for private benefit are simply beyond the power of government. In other words, the public use requirement is self-executing and does not merely give rise to a cause of action in trespass. As such, the courts of North Carolina, like any other, inherently have the power to enforce it.

Thus, once the court in the eminent domain action determined that the Town’s attempt to take Ms. Rubin’s property for private benefit was an illegitimate exercise of governmental power, she need have done nothing more. As a party which acted unconstitutionally and in derogation of fundamental property rights, the Town—and not the innocent property owner—bore the risk when the Town installed the sewer line. The Town thus also bears the affirmative burden to remove it when its gamble that it could install the sewer line, contrary to the court’s order, went bad.

More on the case from Mitch Kokai (John Locke Foundation): "Apex sewer pipe fight sends clear message about property rights."

We'll bring you more as things progress.

Brief of Amicus Curiae Pacific Legal Foundation, Town of Apex v. Rubin, No. 206PA21 (N.C. Feb. 8, 2024)

Ohio: We Really Meant It When We Remanded For Weighing Of Evidence - Appeals Court Had No Business Dismissing

A quick per curiam from the Ohio Supreme Court.

In State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2023-0125 (Ohio Jan. 24, 2024), the court issued a gentle (or maybe not-so-gentle) "benchslap" to the court of appeals. Here's the scenario.

First of all, recall that Ohio does not recognize a claim for "inverse condemnation" or "regulatory taking." Instead, if a property owner believes that the government has de facto taken property but has not provided just compensation, the owner seeks a writ of mandamus asking the court to compel the government to institute an eminent domain action (what CJ Roberts calls "an upfront taking").

AWMS thought this was the case and sought a writ to compel Mertz, an official with the state Department of Natural Resources, to take and pay. The court of appeals entered summary judgment for Mertz, but the Ohio Supreme Court held that the case should be tried. "In an earlier appeal, we reversed the court of appeals’ grant of summary judgment in favor of the state and remanded the case to the court of appeals with directions to weigh the parties’ evidence relating to AWMS’s total-takings and partial-takings claims." Slip op. at 1.

On remand, the court of appeals held a nine-day trial. [Sidebar: it is interesting that in Ohio, a three-judge panel of the court of appeals conducts trials.] So far, so good. But at the close of the evidence, "the court of appeals again ruled in favor of the state and denied the writ. This time, the court of appeals held that AWMS did not have a cognizable property interest for purposes of a takings analysis." Id. It denied the writ. Foiled again!

AWMS sought Ohio Supreme Court review, and requested oral argument.

The court said no (to the request for oral argument, that is). We don't need to hear more to conclude that the court of appeals wasn't listening to us when we said to WEIGH THE PARTIES' EVIDENCE. "[T]he court of appeals failed to follow our remand order and violated the law-of-the-case doctrine by sua sponte revisiting the issue whether AWMS possessed a cognizable property interest for Takings Clause purposes." Slip op. at 6.

The Supreme Court didn't seem that happy with the appeals court:

It is axiomatic that an inferior court lacks jurisdiction to depart from a superior court’s mandate. State ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 104, 647 N.E.2d 792 (1995). In AWMS, we reversed the court of appeals’ grant of summary judgment to the state and remanded the case specifically for the purpose of conducting the proper takings analysis. In this regard, we did not leave the court of appeals’ task open-ended. Rather, we specified that the court of appeals “must weigh the parties’ evidence relating to AWMS’s total-takings claim” and “must weigh the parties’ evidence in accordance with this opinion and balance all three Penn Cent.[, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631] factors to determine whether AWMS suffered a partial taking.” (Emphasis added.) AWMS at ¶ 88-89.

{¶ 20} The court of appeals did not follow our instructions. Instead, after a trial and posttrial briefing, the court of appeals sua sponte ordered the parties to file supplemental briefs on the threshold issue of whether AWMS has a cognizable property interest that is compensable under the Takings Clause.

Slip op. at 7.

The court didn't really deal with the court of appeals' legal conclusion (AWMS has no property interest) other than to say "we already decided that." Slip op. at 11 ("it is the law of the case that AWMS possesses a cognizable property interest in the leasehold right").

Although this opinion is really more about law of the case than about takings, there's a good lesson here. The Ohio Supreme Court saw this case as one about facts (as most Penn Central takings claims inherently are). Having so concluded -- and apparently treating this takings claim like any other civil claim, and not one subject to judges imposing their own views of the law -- the court rebuked the court of appeals for not understanding that these are factbound claims, not generally resolved by law.

"Ad hoc factual inquiry" rules the day!

State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2023-0125 (Ohio Jan. 24, 2024)

New Article: Missed Opportunities in State Takings Challenges to Pandemic-Era Restrictions (Brennan Center's State Court Report)

Thank you to the Brennan Center for Justice at NYU Law School's State Court Report (#statecourtreport) for publishing our piece "Missed Opportunities in State Takings Challenges to Pandemic-Era Restrictions." The title gives a hint about what this is about: how state and local government's reaction to Co-19 spurred challenges not only under the U.S. Constitution, but under state constitutions. We give examples of -- and comment on -- missed opportunities and out-and-out errors in several approaches.

Here are the opening paragraphs:

Responding to the Covid-19 pandemic, the federal government and many state and local governments imposed a variety of restrictions on individuals and businesses. The Centers for Disease Control and Prevention, for example, purported to suspend the ability of property owners to evict nonpaying tenants — a move the U.S. Supreme Court rejected as beyond the agency’s power. State and local governments adopted similar eviction moratoria, and many directed businesses to close or curtail operations. Litigation followed.

Much of that litigation focused on the federal Fifth Amendment’s requirement that the government provide just compensation when it takes private property for public use. Property and business owners have generally been unsuccessful in pressing federal takings claims for Covid-19 restrictions. But it is established that the rights acknowledged by the U.S. Constitution are merely a floor, not a ceiling. This notion recognizes that states may freely offer a higher level of protection of rights under their own laws or more severely restrict the state’s powers (or both). And many state constitutions go further, guaranteeing compensation when property is damaged. 

We also take a quick look at a still-pending case in Michigan, with the hope that the Michigan Supreme Court does not fall into these same traps.

We'd appreciate it if you were to read the entire piece -- it's short, we promise!

2024 ALI-CLE Eminent Domain & Land Valuation Litigation Conference, New Orleans

Our annual "proof of life" photo -
Yes, this is New Orleans,
but nearly 300 of us are in the room
to talk eminent domain and property rights shop

A fantastic turnout at the ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

Some numbers:

• Eleven. The number of attendees from a single firm, Frederikson & Byron. We think that is some kind of record.  Impressive!
• Nine. The number of law students who joined us of their own initiative to learn about eminent domain and takings, and to network.
• Five. The number of members of the legal academy who are on the faculty. Our programs have a good mix of theory and practice.
• Three. Attendees who are sporting bow ties.
• Forty-one. The number of these conferences we've had so far. And going strong.

Wish you were here.