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21st Brigham-Kanner Property Rights Conference Report

Here's the full report from David Morrill about the 21st Brigham-Kanner Property Rights Conference earlier this month. Pictured above: Professor James Stern (responsible for the overall planning of the B-K Conference), this year's Prizewinner Professor Lee Fennell (U. Chicago Law School), and Andrew Brigham, St. Augustine, Florida - property rights lawyer extraordinaire).

Here are what Prof. Fennell had to say:

Upon accepting the Property Rights Prize, Fennell said that spending time in myriad places through the years piqued her interest in how property can work better for complex systems like large and interconnected cities and ecosystems. In the process, she tried to learn more about what sorts of interconnectedness matter most for humans and other animals, and what forms of adaptability and property forms can best serve needs going forward.

“We can’t make any headway on property as an institutional response to interdependent systems without practicing interdependence ourselves, getting together and sharing knowledge and ideas,” Fennell said. “And I can’t imagine any better place to do that than at this conference, which throws together a bunch of people who can’t get property out of their systems.”

Fennell said she was “incredibly honored, amazed, and delighted” to be receiving the Brigham-Kanner Prize. “It’s an astonishing privilege to be joining the ranks of all of the esteemed past winners and all of the esteemed future winners of this wonderful award, and I am so grateful to be celebrating with all of you in this incredibly old room.”

The week also included several student-oriented programs, including visits to our two classes (Land Use, and Eminent Domain and Property Rights) by property law practitioners from across the country, to discuss a variety of topics with students, including careers in property law, pathways to practice, and public service vs private practice.

Kady Valois (Pacific Legal Foundation, FL),
Randy Smith (Smith & Fawer, LA),
and Elizabeth Sockwell (W&M Law JD 2023)
(Miller Miller & Canby, MD) discuss "Pathways to Practice"

Jeremy Hopkins (Cranfill Sumner, NC) speaks to our Eminent Domain
class about how and why he chose property rights lawyering
as a career, and how students can enter that profession
if they have similar desires.

Steve Davis, who is now a public-interest lawyer (PLF),
but who also has a varied background in public service (AUSA),
private practice (True North Law), and as legislative counsel,
speaks about the differences between these pathways in the profession.

Xijia Yuan (Troutman Pepper, VA) (and a former student of ours)
discussed with our Land Use class the excitement of
being a transactional real estate attorney. There are multiple
paths in Dirt Law, and lawyers are not limited to courtroom advocacy.

Heather Cunningham (Owners' Counsel of America, ID), speaks about
her time in a smaller, rural private firm, and her current role
as Executive Director of a non-profit.

Andrew Brigham (Brigham Property Rights Law Firm, FL) chats with
Land Use students about ways to enter the Dirt Law Bar, and why he
loves a property law practice.

We're thankful that real, live, practicing lawyers (including two W&M Law
alums (Brett Tensfeld, JD 2016), and Xijia Yuan (JD 2022) took the time
to come our classes to talk about what its really like in the Dirt Law trenches.

New Just Comp Cert Petition: Is $0 Just Compensation Constitutional?

Here's a recently-filed cert petition which raises two questions about the constitutional calculation of just compensation.

Here are the Questions Presented:

A county unquestionably used real property that denied access to private property and allowed the private property owner to restore the denied access at the owner’s own expense, without county reimburse- ment. Although at trial a jury awarded substantial damages, the appellate court would eventually reduce damage to zero. The questions presented are:

1. When the government undisputedly takes a real property right, does a court have an independent duty to ensure that just compensation is more than $0?

2. Where there is a temporary taking of property rights, is it required under the Fifth Amendment to measure just compensation using the rental value of the property for the time it is taken?

Follow along on the Court's docket here.

Petition for a Writ of Certiorari, CBS MN Properties, LLC v. County of Hennepin, No. 24-331 (U.S. Sep. 24,...

Too Far: Imagining the Future of Regulatory Takings (Friday, Oct. 4, 2024)

There's still time to join us next Friday, October 4, 2024, at the Antonin Scalia Law School (George Mason University) for the symposium "Too Far: Imagining the Future of Regulatory Takings."

Co-produced by our outfit (Pacific Legal Foundation) and the Journal of Law, Economics & Policy, the symposium will feature the most cutting-edge legal academics and courtroom practitioners discussing what is on the horizon in regulatory takings. Here's the description of the program (full agenda and presenter list below):

A century ago, Supreme Court Justice Oliver Wendell Holmes cautioned government that if property regulations went “too far,” they would be “recognized as a taking.” Flash forward to today, where governments are constantly trying to push the limits while the courts struggle to define what exactly “too far” means.   

Join Pacific Legal Foundation and George Mason University’s Journal of Law, Economics, and Policy for a day-long symposium featuring presentations on property rights and the future of regulatory takings.  

Come interact with property rights scholars and enjoy a lunch featuring our keynote speaker, the Honorable Janice Rogers Brown. The symposium will conclude with a reception, where attendees will have the perfect opportunity to network with fellow lawyers working to rein in property regulations.

Registration is free. Come, join us!

Agenda, "Too Far: Imagining the Future of Regulatory Takings" (Oct. 4, 2024)

Unringing The Bell: NC Supreme Court Arguments - What Happens If A Taking Lacks A Public Use, But They Take It Anyway?

Here's the latest in a case we've been following (and in which we filed an amicus brief in favor of the property owner).

Yesterday, the North Carolina Supreme Court heard oral arguments in Town of Apex v. Rubin. Here's a link to the recording (YouTube prevents us from embedding it, sorry).

This is a somewhat unusual case. The Town of Apex 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 North Carolina Supreme Court granted review.

Check out the arguments. As one Justice pointed out, this is a case of how to "unring the bell." What remedies are available, if any? The Town acknowledges that for every wrong there must be a remedy, but argues that the legislature provided a remedy (injunction) but Rubin did not avail herself of that remedy, so any negative consequences are on her. Rubin, on the other hand, argues that when there's a violation of constitutional rights, there must be a remedy.

As our amicus brief argued, we believe the court in the eminent domain action has all the power it needs to enforce constitutional rights.

Now we wait.

New Ep, Eminent Domain Podcast: Lawprof Ilya Somin

Heads up: the second episode of the rebooted Eminent Domain Podcast is live, with host Bobby Debelak and guest law professor Ilya Somin. Here's the description of this ep:

Professor Ilya Somin of George Mason University and the Cato Institute discusses his work in drafting amicus papers in the Kelo case, working with Jane Jacobs, writing a book on Kelo (The Grasping Hand) a decade after the decision, and his current work on the costs of exclusionary zoning. Throughout, Bobby and Prof. Somin discuss the common ground that otherwise-differing philosophies find in property law.

We're not going to post up every new episode (you really should subscribe and get notifications yourself), but we figured while the podcast was getting its sea legs back it couldn't hurt to remind you. Check it out.

Comity Of Errors: CA11 Chooses Nondisruption Of State's Administrative Process Over Constitutional Right To Compensation

In Turner v. Jordan, No. 22-13159 (Sep. 17, 2024), the U.S. Court of Appeals for the Eleventh Circuit held that even though the federal courts have jurisdiction over Turner's takings claim, the court nonetheless has the discretion to choose to wash its hands of the case in order to protect a state's administrative procedures.

This is one of those home equity takings cases, with the twist here being that Turner claims that because Florida officials failed to account for his homestead exemption, his property sold for half of what it should have at a property tax foreclosure sale. He alleged that with the exemption, the sale would have netted him some equity to which he was entitled. The district court dismissed for comity reasons, and the Eleventh Circuit affirmed.

Of course, the opinion pays lip service to the more-often-in-the-breach-than-in-the-observance principle that "federal courts have a 'virtually unflagging obligation ... to exercise the jurisdiction given them.'" Slip op. at 18 (quoting Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)). That duty may be "unflagging," but not really: federal courts should take a "hands-off" approach to cases that may implicate a state's tax administration. We wouldn't want to disrupt state tax administration now, would we?

Yes, Turner raised a federal civil rights claim, which is "entitled to be adjudicated in the federal courts." Slip op. at 18. And you don't need to exhaust section 1983 claims, or takings claims, as we recall. But that rule mostly doesn't apply when state remedies are "plain, adequate, and complete." Slip op. at 19. Although the court concluded this case presents a "close call," it nonetheless held that Florida's administrative tax scheme qualifies. See pages 19-20 of the opinion for the details of the three factors that go into this calculus. The first two factors were a wash: one cutting in Turner's favor, the other in favor of comity.

The first factor is whether the issue involves "commercial matters" or "fundamental rights." The court correctly (in our view) concludes that this is a case involving fundamental civil rights. Slip op. at 20. The second factor was "trickier" according to the court, but cut in favor of comity: the court concluded that Turner was objecting to his own tax situation, because he is objecting to the way his taxes were collected. Slip op. at 22.

The factor that cut strongly in favor of comity according to the court, was the third: are Florida courts better positioned than the federal courts to correct the violation?

For Turner to prevail on his due process claims it would re-quire a conclusion that the County failed to provide sufficient notice of the sale process under Florida Statutes sections 197.502(4)(a), 197.522, and potentially 197.512(1). For Turner to prevail on his claims under the Takings Clause, a federal court must determine, at least, that the County impermissibly applied the opening bid requirement under Florida Statutes § 197.502(6).

Turner’s requested remedies, and their implicated interpretations of those state-law provisions, “may be far from what the [Florida] Legislature would have willed.” Id. at 429. And state courts “have greater leeway to avoid constitutional holdings by adopting ‘narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests.’” Id. at 428 n.7 (quoting Moore v. Sims, 442 U.S. 415, 429–30 (1979)). That is what would happen if the Florida courts side with the County’s interpretation of the state statutes.

Slip op. at 23-24.

And then there's the Tax Injunction Act, which "precludes relief that would diminish state revenues[.]" Slip op. at 24. And here, "Turner's interpretation of [the Florida tax statute] could diminish state revenues. After all, his property didn’t sell until it was listed for a second time with a lower opening bid amount." Id.

In the end, the court concluded that granting Turner the relief he seeks "would risk disrupting Florida's tax administration." Slip op. at 25.

Of course, Turner challenges the County’s application of Florida statutes as to his property, rather than the facial validity of the statutes. Still, “a judicial determination of official liability for the acts complained of, even though necessarily based upon a finding of bad faith, would have an undeniable chilling effect upon the actions of all County officers governed by the same practicalities . . . .” Fair Assessment, 454 U.S. at 115. If the County’s administration of tax deed sales in situations like Turner’s “is indeed unconstitutional, surely the [Florida] courts are better positioned to determine—unless and until the [Florida] Legislature weighs in—how to comply with the mandate of” procedural due process, the First Amendment, and the Takings Clause.

Slip op. at 26.

Hold on. "Surely the Florida courts are better positioned" how to comply with the U.S. Constitution's requirements? Really?

One Judge -- Judge Newsom -- wasn't having it. He dissented, respectfully, "but I'm not going to make a big stink about it." Dissent at 1. He agreed that this was a close call, but would have come out the other way, and "would allow Turner's suit to proceed." Id.

As an initial matter, I’m suspicious of court-concocted abstention rules that, in substance if not form,1 deprive federal courts of jurisdiction that the Constitution expressly authorizes and that Congress has expressly vested. I agree with Chief Justice Marshall, who explained more than two centuries ago that federal courts “have no more right to decline to exercise the jurisdiction which is given, than to usurp that which is not given”—both, he said, are “treason to the [C]onstitution.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). At the very least, I agree with the Supreme Court’s more recent (if slightly less uncompromising) admonition that “‘[a]bstention rarely should be invoked, because federal courts have a virtually unflagging obligation . . . to exercise the jurisdiction given them.” Maj. Op. at 18 (quoting Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)). In any event, all here seem to agree that abstention—pursuant to the “comity doctrine” or other-wise—“is the exception, not the rule.” Colorado River Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).

Dissent at 1-2. Check out the entirety of his dissent for Judge Newsom's analysis. Dissent at 7 ("Bottom line: It’s reasonably clear to me that the local authorities misapplied Florida law when they sold Turner’s property for pennies on the dollar. Deciding Turner’s case—which alleges that they did so for unconstitutional reasons and in an unconstitutional manner—wouldn’t call into question Florida’s property-tax scheme or his individual tax liability, nor would it require any real guesswork about the meaning or application of state law.").

We think you know which way we come out on this one, no?

Turner v. Jordan, No. 2022-13159 (11th Cir. Sep. 17, 2024)

Va App: It Doesn't Take Much To Allege Public Use In Inverse Condemnation

On the surface, the Virginia Court of Appeals' opinion in Town of Iron Gate v. Simpson, No. 1588-23-3 (Sep. 17, 2024) deals with a straightforward issue in a straightforward way: the property owner's inverse complaint adequately alleged that the Town's flooding of her property was for a public use, and thus properly survived the Town's demurrer.

As the Virginia Supreme Court has held, one of the elements of pleading a legally-adequate inverse condemnation complaint for flooding is an allegation that the flooding was for some public use. The court of appeals rejected the Town's argument that Simpson failed to allege public use, holding that the complaint's allegation that the Town "used her 'property as a 'makeshift storage site for excess stormwater,' which was accomoplished for the public use of maintaining and operating the Town's stormwater system[,]'" was certainly good enough:

She alleged that the Town “purposefully uses, operates, and maintains a stormwater system in a manner that directs storm water onto [her] property” and “purposefully declined to resolve the issues or to discontinue use of the [p]ipe, and has continued to intermittently direct stormwater through the [p]ipe for the public use of stormwater drainage, despite being fully-informed that the action will result in flooding to [her] property.” She alleged that the pipe was “part of the Town’s stormwater control system,” which was used to “direct, transport, and control the flow of stormwater,” that the Town had “full knowledge of the issues with the [p]ipe” dating back to 2011 when it “fitted a ‘boot’ on the pipe . . . to prevent leakage, but the repair was ineffective,” that the prior owner “informed the Town repeatedly of the problem,” that the Town “purposefully declined to resolve the issues or to discontinue use of the [p]ipe,” and that the Town admitted the problem “should have been dealt with a long time ago,” yet continued to use the pipe.

Slip op. at 10. Seems pretty obvious to us, too.

But we urge you to read the entire opinion (it isn't that long, a mere 18 pages) to get an understanding of how the Town acted here. If you are like us, you will come away from it thinking "what gives?" The picture the opinion paints isn't a good one: the government appeared to be obstreperous, and intent on making the conduct of the litigation hell for the property owner, despite the just compensation here being only $37,586. A significant amount for sure, but not worth going to war over.

Yet to us, that it what is appears the Town did. It claimed the trial judge was biased. Its questioning of the owner's appraiser was riddled with inappropriate questions based on facts not in evidence (that the Town tried to mitigation). The Town seemed to blame the owner for the problem by trying to create a narrative that the owner didn't give the Town time to fix the issue; the Town claimed to be ever-so-ready to fix it, but didn't do so and apparently never has. Read the opinion for more.

As a result, the Town got whacked for $206,785 in fees and costs, more than five times the amount of compensation. Forest and trees, anyone?

Congratulations to friend and colleague Joshua Baker for the win.

Town of Iron Gate v. Simpson, No. 1588-23-3 (Va. Ct. App. Sep. 17, 2024)

The Real "Prime Directive" - Happy Constitution Day 2024

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk's reading of the Preamble. 

KIRK: This was not written for chiefs.Hear me! Hear this! Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance in quite this way. Look at these three words written larger than the rest, with a special pride never written before or since. Tall words proudly saying We the People.

That which you call "Ee'd Plebnista" was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people! Down the centuries, you have slurred the meaning of the words:

"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution."

These words and the words that follow were not written only for the Yangs, but for the Kohms as well!

He might be from Iowa, but that guy who plays him is from north of the border, so our kudos to a Canadian for the best dramatic rendition of our founding document.

So does this make Kirk an textualist, a living constitutionalist, or an original-public-meaning guy? Here's a hint, from the script:

SPOCK: Does our involvement here also constitute a violation of the Prime Directive?

KIRK: We merely showed them the... meaning of what they were fighting for. Liberty and freedom have to be more than just words. Gentlemen, the fighting is over here. I suggest we leave them to discover their history... and their liberty.

Beam me down, Scotty!

Guns N' Encloses: While Figuring Out Gun "Sensitive Places," CA9 Backhandedly Upholds The Right To Exclude

The gunfight at the OK Corral is about all we know
about bearing arms in public places.

There's a lot going on in the U.S. Court of Appeals for the Ninth Circuit's opinion in Wolford v. Lopez, No. 23-4356 (Sep. 6, 2024), and none of it is about takings, at least directly. And the case involves a Second Amendment challenge to Hawaii and California's restrictions on where a bearer of arms can bear those arms, a topic that is beyond our full understanding as mere mortals.

So why are we covering it? Well, glad you asked. This one is peripherally about property rights and because of the posture of the case avoids what we think is the biggest issue from a property rights viewpoint. The bulk of the case analyzes the state's ability to restrict carrying weapons in public places like beaches, parks, and other public venues. But one part of the case delves into whether the state may regulate private property owners' right to say "Keep Out!" or "Gun Owners Welcome!" to those who are strapped up. So count us interested!

The challenge here came only from the arms-bearers (and not property owners), and thus the only issues the court was presented with involved whether the state regulating whether arms-bearers may do so on private property violates the Second Amendment, not the Fifth Amendment rights of the owners. Property owners were not parties to the case, apparently. But depending on how the issue of carrying on private property breaks, these restrictions may also unduly limit the property owner's ability to control who may access their property and under what circumstances. Private property rights are "adjacent" to the actual issues, but that's enough for us.

Here's that part of the story. A Hawaii statute law presumptively bans third parties carrying firearms on private property unless the owner allows it, either by posting a sign or by expressly saying okay. California takes a slightly different approach by also barring non-owners from carrying guns onto private property, but allowing it only if the owner has posted a conspicuous sign consenting to third parties bringing weapons on the premises. 

The plaintiffs -- holders of concealed carry licenses -- sued and sought a preliminary injunction:

In both the Hawaii case and the California cases, the district courts held that Plaintiffs are likely to succeed on their challenges to the respective bans on the carry of firearms on private property held open to the public unless the owner or operator consents. Haw. Rev. Stat § 134-9.5(a); Cal. Penal Code § 26230(a)(26). Although the state statutes are similar, they differ in one key respect. Hawaii’s law allows a property owner to consent orally, in writing, or by posting appropriate signage on site. Haw. Rev. Stat. § 134-9.5(b). California’s law, by contrast, allows a property owner to consent only by “clearly and conspicuously post[ing] a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.” Cal. Penal Code § 26230(a)(26).

Slip op. at 61 (footnote omitted).

The bulk of the opinion analyzes the rights of the plaintiffs to keep and bear arms in public places such as those, so unless you are a Second Amendment maven, you can safely skip ahead to portion of the opinion where the court considers the Second Amendment validity of regulating the carrying of weapons on private property open to the public:

We conclude, then, that the Nation has an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property.

...

Hawaii’s modern law falls well within the historical tradition. The law prohibits the carrying of firearms onto private property unless the owner has posted signs, otherwise has given written consent, or has given oral consent. We therefore conclude that Plaintiffs in the Hawaii case are unlikely to succeed on the merits.

But we conclude that California’s law falls outside the historical tradition. As noted at the outset of this section, California prohibits the carry of firearms on private property only if the owner has consented in one specific way: posting signs of a particular size. We find no historical support for that stringent limitation. Although two of the laws mentioned above required a person to obtain consent in writing, all of the other laws allowed a person to obtain consent in any manner. None of the laws forbade a person from obtaining permission only by convincing the owner to post signs of a specific size. Nor do modern circumstances appear to justify California’s imposing a much more stringent consent requirement; ordinary signs existed in 1791, in 1868, and today.

Slip op. at 67-68.

We view the issue more from the owner's perspective, and not as one primarily as a Second Amendment question. But also much more simply: the choice of whether to allow carrying a piece on one's property that may otherwise be open to the public should be the owner's. The no shirt, no shoes vibe. Yes, we are definitely down with the notion that Second Amendment rights are not second-class constitutional rights. Nor are Fifth Amendment rights.

We view the Ninth Circuit's decision here as (generally) consistent with that vibe, especially the notion that the owner's consent cannot be limited to only a state-defined category (signs only as in California, and not also oral or written consent as in Hawaii -- as the court put it, "Sure, you may carry your musket on my property, but only this week and only one musket."). Slip op. at 68.

The big property rights issue may arise more readily in other Circuits, where state law and policy go in the other, more pro-gun direction than blue Hawaii and California. What if, for example, a pro-gun state statute mandated that property owners allow arms-bearing on their property, even if the owner would prefer otherwise? That would definitely raise our takings hackles.

Wolford v. Lopez, No. 23-4356 (9th Cir. Sep. 6, 2024)

21st Brigham-Kanner Property Rights Conference Now Underway

The 21st Brigham-Kanner Property Rights Conference is underway at the William and Mary Law School. We have a series of student-oriented programs (co-sponsored by the Office of Careers Service),

Tomorrow, lawprof Lee Anne Fennell of the University of Chicago Law School will be presented the Brigham-Kanner Property Rights Prize for her work on "how property rights are structured and imagined, and the implications that different possibilities hold for the allocation of resources and the way societies are organized. She has cast these issues in terms like 'slices' versus 'lumps,' 'unbounded' homes, 'half-torts,' and 'streaming property.'"

On Friday, there's a series of presentations on the impact of Professor's Fennell's work and other hot topics in dirt law. Full agenda here or below.

We are fortunate enough to be the referee -- uh, "moderator" -- for the group discussing what we see as the hottest issue in the field: housing. The title of our program is "Property Rights and Housing in Crisis," and features some of the deep thinkers on this topic:

Shelter is a fundamental human need, and housing is a major component of the U.S. economy. Home ownership has been considered a cornerstone institution of civic life, closely linked with the American dream. Over the last 50 years, median house prices in the U.S. have more than doubled in real terms, significantly outpacing wage growth, and more recently, the residential rents have also substantially outpaced inflation and wages, prompting declarations of a housing crisis. This panel will examine issues connected with the present state of housing in the United States and the role property rights can and should play when it comes to housing.

Professor Fennell will be joining a pantheon of the biggest names in dirt law academia and practice.This is the Super Bowl of property law as we've said before.

If you are not joining us this year, please consider it for the future. You will not be disappointed.

2024 Schedule for Brigham-Kanner Property Rights Conference

New Article: "The Benefits of the Fourth Amendment's Property-Rights Baseline"

Regular readers know that in addition to our focus on Fifth Amendment property rights, we're also looking at the Fourth Amendment as a vehicle that protects and promotes property rights.

In that vein, here's a forthcoming article that is worth reading,"The Benefits of the Fourth Amendment's Property-Rights Baseline," by lawprof Nicholas Alden Kahn-Fogel.

Here's the Abstract:

Since 2012, Fourth Amendment claimants have had two alternative doctrinal tests available to establish that government investigative activity constitutes a Fourth Amendment search implicating their rights. First, if the government physically intrudes onto a person, house, paper, or effect to gather information, its conduct is a search, even if the claimant had no reasonable expectation of privacy against the government intrusion. The Court has referred to this directive as the "property-rights baseline." Second, even in the absence of a physical intrusion onto a constitutionally protected area, if government surveillance infringes a person's reasonable expectation of privacy, such surveillance is also a search. I have previously argued that expansive property frameworks proposed by Justice Gorsuch and by some scholars are likely to resemble the privacy rubric for Fourth Amendment interpretation, both in the results they would produce and with regard to the subjectivity and unpredictability often attributed to the privacy model. However, contrary to recent scholarly claims, the narrower physical intrusion test is a valuable supplement to the privacy framework; it will often lead to different results than the privacy standard and will frequently lead to clearer analysis, more predictable results, and broader protection against government surveillance than was the case under the exclusively privacy-based regime that preceded the Court's endorsement of the property-rights baseline.

Check it out.

Court To Phoenix: Clean Up Your Act!

A frequent vibe in cases where a member of the public asks a court to compel a local government to do something about an undesired land use (i.e., "the city should stop my neighbor from illegally renting their property," or "the police should remove the pop-up unlicensed food stand on the sidewalk in front of my restaurant") is that zoning enforcement is often viewed by courts as a discretionary municipal function or a question about allocation of enforcement resources -- and therefore the judiciary takes a hands-off approach.

That vibe, however, did not carry the day when the Arizona Court of Appeals tackled Brown v. City of Phoenix, No. CV23-0273 (Aug. 27, 2024). In that case, the court upheld a trial court's preliminary injunction ordering Phoenix to do something about the notorious "zone" that the trial court determined was a public nuisance "created or maintained" by the city.

We won't go into great detail here, but recommend you check out the opinion. It offers a pretty decent roadmap for aggrieved plaintiffs to avoid the usual judicial hands-off vibe. One of the key parts of the decision in our view is the conclusion that the city can be held responsible for what other people do:

¶23 To the extent the City presses this argument for property it owns and controls in the Zone, the argument fails. The City properly may be held responsible both for a public nuisance, and to abate a public nuisance, on land it owns and controls. In requiring such abatement, the superior court properly relied on Phoenix v. Johnson, 51 Ariz. 115 (1938). Applying Arizona’s common law, Johnson addressed a sewer system the City built and installed that the City then failed to operate properly, resulting in the emission of foul odors. 51 Ariz. at 120. In addressing resulting claims, the court approved a jury instruction allowing the City to be held liable for failing to manage its sewer system, thereby causing a public nuisance. Id. at 130. That same analysis applies here.

¶24 “[O]ne who owns land and fails to act to abate a [public] nuisance originating on that land” can be held liable under a public nuisance theory. Bischofshausen v. Pinal-Gila Ctys. Air Quality Control Dist., 138 Ariz. 109, 112 (App. 1983) (citing RESTATEMENT (SECOND) OF TORTS §§ 824, 838-840 (Am. Law. Inst. 1979)). Though not expressly stated in the permanent injunction, the parties acknowledged at oral argument in this court that the “public property” reference in the permanent injunction is limited to public property the City owns and controls and does not apply to public property owned and controlled by another public entity or property owned by private individuals or entities.

Slip op. at 8-9.

Worth reading.

Brown v. City of Phoenix, No. CV23-0273 (Az. Ct. App. Aug. 27, 2024)

CA9: No Taking For Charging School Fees, Because Idaho's "Free Common Schools" Clause Does Not Create Private Property Interest

We don't see any free public education here.

Some old-school property "sticks" analysis from the U.S. Court of Appeals for the Ninth Circuit in Zeven v. Jones, No. 23-35438 (Aug. 23, 2024), worth checking out.

The Idaho Constitution has a "free common schools" clause:

The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho to establish and maintain a general, uniform and thorough system of public, free common schools.

Idaho Const. art. IX, § 1.

According to some parents, the term "free" means that school districts cannot charge fees for "certain educational and extracurricular opportunities." In one case, the fees ranged from $4 for locker use, to a $32 optional fee to cover the cost of purchased items for a "health occupations" store. In another, the fees ranged from $15 to $300.

According to the plaintiffs, charging these fees violated their due process rights, and were a taking of private property without compensation. The district court granted the schools summary judgment, and the Ninth Circuit affirmed.

The court concluded that the "free common schools" provision in the state constitution does not create any private property rights that are protected by the Takings Clause. To qualify for takings protections, a property right must be (in the court's words) "vested" and a private right, which is determined by a somewhat circular analysis: a right is vested if it cannot be removed or modified without compensation. Slip op. at 22. 

Because that doesn't really help, you might want to pay attention to this passage, where the court relies on certain "core" notions. Dust off those Real Property treastises and your Blackstone:

A claimed property interest can rise to the level of a vested private property right if it concerns “a ‘core’ notion of constitutionally protected property into which state regulation simply may not intrude without prompting Takings Clause scrutiny.” Ward v. Ryan, 623 F.3d 807, 812 (9th Cir. 2010) (quoting Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1200 (9th Cir. 1998)). “Property’s core meaning is determined by reference to traditional background principles of property law.” Id. (internal quotation marks and citation omitted).

Tangible objects such as real and personal property fall within property’s core meaning. The Supreme Court has also extended Takings Clause protection to “the group of rights inhering in the citizen’s relation to the physical thing, [such] as the right to possess, use and dispose of it.”

Slip op. at 23-24.

Public education is not one of those things that fits "within this bundle of property rights." This is public education, and thus, "[t]he very manner in which public education is provided precludes Appellants from having a private interest in it because what constitutes public education (and therefore what constitutes free public education) can be changed by public entities as a matter of Constitutional right in Idaho." Slip op. at 24.

The opinion also contrasted "private property" as used in the Fifth Amendment with plain-old "property" as used in the Due Process Clause. The latter, the court held, protects a broader range of interests, including government-granted entitlements. Slip op. at 21-22.

There's also some "law of the case" discussion by the court, rejecting the plaintiffs' argument that one trial judge is bound by an earlier trial judge's interlocutory rulings. You know the answer to that one (our rule of thumb: until final judgment, everything is interlocutory and subject to change).

Zeyen v. Jones, No. 23-35438 (9th Cir. Aug. 23, 2024)

Michigan, Over Dissent, Declines To Hear Co-19 Shutdown Takings Case

In this Order, the Michigan Supreme Court declined to consider a case which challenges the Michigan governor's Co-19 shutdown executive orders, which, in the words of the dissenting Justices, reached "nearly every aspect of life in our state."

There have been a lot of cases asserting that Co-19 shutdowns are takings, with most (but not all) of them crashing and burning, including this one. Here, the plaintiffs -- a class of owners whose businesses suffered devastating losses as a result of the shutdown orders -- sought just compensation for the regulatory taking. They alleged both types of takings, categorical and ad hoc (Penn Central). They also asserted claims under the Michigan Constitution (a trend we approve!).

We recommend you take a dive into the Statement of the two Justices who dissented. They would have taken up the case because "the majority leaves unresolved novel and important questions regarding federal and state takings jurisprudence." What are those novel and important questions? Glad you asked:

Can the temporary impairment of business operations be a categorical taking if there are no reasonable alternative uses of the business property during the period in which its intended and normal use is prohibited? And, if not, can the prohibition of the normal business operations nonetheless constitute a taking under the multifactor test established by the United States Supreme Court and employed by our courts? Because neither that Court nor this one has given significant guidance on the actual application of the test, and because this case is an appropriate case in which to provide clarity in this area of the law, I would take the opportunity to do so. Plaintiff, on behalf of a putative class, has raised plausible claims that the government took its property without just compensation, and genuine issues of material fact exist regarding its claims. Further factual development would aid in the proper resolution of these questions that should eventually be answered, such that summary disposition prior to the close of discovery was inappropriate. I would reverse the Court of Appeals and remand to the trial court to allow discovery to continue in this case.

Dissent at 1-2.

The Justices undertake what we view as very valid criticisms of the way the Michigan Court of Appeals analyzed the the claims. On that, some humblebragging (and what else is the internet good for but a good humblebrag?): the Justices apparently appreciated the article we published on "emergency takings," Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm & Mary Bill of Rights J. 1145 (2021)), which contains our own criticisms of the way that many courts approach these type of claims generally, and specifically how they apply the ad hoc Penn Central test. 

More on the story here:

• Michigan Supreme Court won’t hear appeals on COVID-19-related compensation lawsuits
• Mich. Supreme Court sides with state in COVID-19 shutdown cases
• Mich. Supreme Court Shuts Down COVID Closure Suits

Stay tuned.

Order, The Gym 24/7 Fitness, LLC v. Michigan, No. 164557 (Mich. Aug. 30, 2024)

The Eminent Domain Podcast Is Back!

As we hinted at a couple of weeks ago, we have some good -- nay, great -- news: the Eminent Domain Podcast, retired earlier this year by its originator Clint Schumacher, is back with a new host and a slightly new title: "Come and Take It: The Eminent Domain Podcast."

Bobby Debelak has stepped into the host's chair. As you might be able to tell from the new title, Bobby is also a Texas lawyer.

Here's the first episode, where Client figuratively hands the baton to Bobby. If you haven't already subscribed to the feed, now's the time so you don't miss an episode. Available on all pod feeds, so be sure to get subscribed.

Are you as excited about this as we are?