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CA6: Property Owner Needs To Exhaust State Remedies Before Filing Takings Claim

Check out the U.S. Court of Appeals for the Sixth Circuit's opinion in Howard v. Macomb County, No. 24-1655 (Mar. 28, 2025).

This is one of those post-Tyler cases asking whether the government satisfies the Fifth Amendment after it has taken someone's home equity by satisfying the owner's tax debt and then keeping the excess. Hold on, didn't the unanimous Supreme Court in Tyler say no, that violates the Takings Clause?

Well yes. You remember the "render unto Caesar" thing, and the "bank robber giving back the money" thing. So there's a taking without compensation -- and thus a violation of the Takings Clause -- the moment the government keeps what it is not supposed to keep. But Tyler also referred to an earlier case, Nelson v. City of New York, 352 U.S. 103 (1956), which has been read to get the government off the hook if it has made available a way for the owner to get their property back. 

In Howard, the Sixth Circuit held that because Michigan has adopted a statute whereby owners whose equity has been taken may get that money back, there's no claim for a taking as a matter of law. That's good enough to avoid the violation of the Constitution. It doesn't matter whether the post-taking procedure is clear enough that owners can navigate it, or whether they do. It's there, owners, and it's up to you to go get your money back. 

The Howard opinion doesn't use the word "exhaustion." Nor does it mention administrative remedies. So how can we write in this post's headline that the Sixth Circuit has required home equity theft takings plaintiffs to exhaust administrative remedies, and that they do not have a claim under the Takings Clause until they seek statutory relief, and are denied? In our view, that is exactly what the Sixth Circuit is requiring.

But didn't Knick v. Township of Scott, 588 U.S. 180 (2019) conclude that the cases which seem to say that the availability of post-taking compensation is "too broad" a reading, and that "[s]imply because the property owner was not entitled to injunctive relief at the time of the taking does not mean there was no violation of the Takings Clause at that time[?]" That's how we read Knick, as does the Tenth Circuit in this recent case. 

The Sixth Circuit tried to distinguish Knick by concluding there's no taking if the state makes available a post-taking remedy:

Howard resists this conclusion, first by contending that precedent allows her to recover directly from the county under the Takings Clause as opposed to collecting it under the Michigan law. Under Knick v. Township of Scott, 588 U.S. 180 (2019), as Howard reads it, she has no obligation to satisfy the requirements of the Michigan procedure. Knick, it is true, held that, when a State takes a citizen’s property, she may file a claim for just compensation under 42 U.S.C. § 1983 without exhausting her right to seek compensation under state law. Id. at 191. But unlike the state laws at issue in Knick, Michigan’s procedures for collecting the surplus do not compensate the property owner for a taking. They prevent a taking from happening in the first place. A county that allows property owners to obtain any surplus after a foreclosure and keeps the residual only if the owners do not seek it does not commit a taking. See Nelson, 352 U.S. at 110; see also Tyler, 598 U.S. at 644. Had Howard followed the Act’s procedures for claiming the surplus, only to be denied it, then she could immediately bring a takings claim under § 1983. That is all that Knick guarantees.

Howard separately claims that Knick cut back on Nelson. But, as shown, the two cases address distinct issues. Nelson addressed whether state action caused a taking. Knick addressed the available remedies after a taking occurs. That explains why Knick never mentions Nelson. And it explains why Tyler relied on Nelson in explaining how to determine the existence of a taking. See Tyler, 598 U.S. at 643–45.

Slip op. at 8.

We thought property owners could advance directly to "Go" and bring a federal compensation claim under section 1983 after Knick? That they didn't have to chase state law procedures for obtaining compensation. Or was that only for when there's a judicially-recognized remedy to obtain just compensation, as in Williamson County? Does it make a difference that here, the post-taking compensation state law remedy is statutory? No difference we can discern.

Williamson County is apparently alive and well in the Sixth Circuit. Stay tuned.

Howard v. Macomb County, No. 24-1655 (6th Cir. Mar. 28, 2025)

CA10: Takings Clause Means Never Having To Administratively Ask To Get Your Property Back

Check out the U.S. Court of Appeals for the Tenth Circuit's recent opinion in Knellinger v. Young, No. 23-1018 (Apr. 11, 2025). 

It's worth reading because the court doesn't fall into the common trap of concluding that although an owner need not exhaust administrative remedies before asserting a takings claim, he nonetheless doesn't have "private property" because ... he hasn't exhausted administrative remedies to get his property returned. As the court summed it up:

[The owners] ... argu[e] that they alleged facts sufficient to state a claim that Colorado took their property for public use without just compensation. We agree. Property owners who plausibly allege that Colorado has taken custody of their property under RUUPA, and used it for public purposes, need not file administrative claims with Colorado before they may sue for just compensation. The moment a state takes private property for public use without just compensation, a property owner has an actionable claim under the Takings Clause.

Slip op. at 2.

This is a challenge to Colorado's version of the Uniform Unclaimed Property Act. That's the statute by which the government presumes that "certain property has been abandoned after a period of time defined by statute." Slip op. at 3. Once property is abandoned, whoever holds the property reports and delivers it to the government. The state Treasurer holds the property for the benefit of the owner, and the owner may recover the property by filing an administrative claim, and if that is unsatisfactory, may sue in a Colorado court. 

The Treasurer must take steps to notify the owner by email (how modern) if the Treasurer has the owner's address. But if none, all that is required is posting on the state's unclaimed property website (check it out, maybe you could be a class member).

The plaintiffs here checked the website and noted that Colorado was holding what are fairly small amounts of money (less than $250). Next stop, federal court:

Knellinger and Storey did not file administrative claims, nor did they file a suit in Denver County Court as authorized by RUUPA. Instead, Plaintiffs sued in federal district court. As relevant here, Knellinger and Storey brought a claim under 42 U.S.C. § 1983, alleging that Colorado’s unclaimed property scheme violated the Takings Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. They filed suit against the officials in charge of administering RUUPA: David Young (the Colorado State Treasurer) and Bianca Gardelli (the Director of the Unclaimed Property Division of the Treasury) in their individual and official capacities (collectively, “Defendants”). Knellinger and Storey alleged that Defendants had “taken control of and liquidated” their property and “converted [it] to public use” without “just compensation.” App’x at 34. They sought a monetary remedy of “restitution of the proper value of their property . . . according to the applicable principles of law for reimbursement purposes”—that is, “just compensation.” Id. at 34–35. They also sought to enjoin Defendants from violating the Takings Clause in the future.

Slip op. at 5-6. The complaint also alleged that instead of keeping these funds for the benefits of the owners and segregating the monies, the state put some of the funds to public uses (funding the Colorado State Fair, surely a public use), and commingled some of the funds with the state's general fund. 

The district court dismissed for lack of standing. It concluded that the plaintiffs lack standing because they do not own "private property."

Hang on...didn't the state's website say that the Treasurer was holding on to the plaintiffs' property? Yes, but the plaintiffs had not filed an administrative claim to the money, which is necessary in order to establish their ownership. Slip op. at 7. No private property, means no injury, means no jurisdiction.

The Tenth Circuit reversed. It first noted that the jurisdictional facts are "intertwined with the merits of the case[.]" Slip op. at 9. Here, "the merits question and the jurisdictional question entirely overlap[.]" Slip op. at 10. Thus, the court opted to treat the 12(b)(1) motion as a 12(b)(6) motion to dismiss for failure to state a claim.

On that, the complaint pleaded a plausible takings claim. Write this down:

In short, to make out a Takings Clause claim, a plaintiff must plead that: (1) something was “taken” by the government; (2) it was “property”; (3) it was the plaintiff’s property; and (4) it was taken “for public use, without just compensation.” Plaintiffs pleaded facts sufficient to make plausible each of these elements. Therefore, they sufficiently stated a Takings Clause claim.

Slip op. at 13.

We advise writing this down even though the court's approach should be obvious (it tracks the text of the Fifth Amendment) because many courts don't get this. You have to plead one of the takings theories (e.g., Lucas, Penn Central) in detail to state a takings claim, not just the elements above. We also are keeping this one because it recognizes that the state cannot 100% define or put major limits on the term "private property" (the essential holding of Tyler v. Hennepin County, 598 U.S. 631 (2023)). 

The Tenth Circuit rejected the district court's backdoor exhaustion requirement (the plaintiffs don't have property until Colorado's admin process confirms they have property).

Second, the district court imposed a de facto requirement that a plaintiff must file an administrative claim with Colorado prior to proceeding in federal court. See id. However, under Knick, it is clear that a property owner has no obligation to seek a remedy through state administrative proceedings or through litigation in state court. 588 U.S. at 185. A property owner’s “right to full compensation” is not contingent on “post-taking remedies that may be available.” Id. at 190. Rather, that right vests “when the government takes his property without just compensation.” Id. at 185. That is true even if an administrative proceeding—or state court discovery—could yield additional facts helpful to a federal Takings Clause suit

Slip op. at 15. (footnote omitted).

Not so, held the Tenth Circuit. All reasonable inferences cut in the plaintiffs' favor, and it is reasonable to infer that the names on the website refer to the plaintiffs. Same with the lack of a claim of value: "[n]or is it necessary for Plaintiffs to plead the precise value of the property taken in order to avoid a motion to dismiss. That is a question of precise damages for a much later stage." Slip op. at 16.

We think the Tenth Circuit got it very very right here. The pleadings are not the place to resolve what essentially are factual disputes. Plausibility and Twiqbal and all that, but we still operate under Rule 8's notice pleading standards, and takings plaintiffs do not have to plead their claims or the facts supporting them with particularity. Nor are they reliant on the very process they are challenging to define their "private property" interests.

One remedy note: the Tenth Circuit affirmed the dismissal of the prospective injunctive relief sought because "[i]n this instance, § 1983 provides an adequate basis for [plaintiffs] to obtain just compensation for a taking." Slip op. at 17.

Finally, the court noted an important point:

Of course, if Colorado wishes to avoid defending against § 1983 suits for unclaimed property, it may always decide voluntarily to revise its laws or practices with respect to unclaimed property. For instance, Colorado may implement administrative procedures designed to make just compensation more convenient or timely compared to inverse-condemnation litigation. But the Fifth Amendment describes a right to just compensation, not a right to particular procedures to secure such compensation, so Knellinger and Storey have no ability to force Colorado to compensate property owners through their procedure of choice. In other words, it is the role of our Court to ensure just compensation, not to rewrite a state’s procedures for obtaining it.

Slip op. at 17.

Knellinger v. Young, No. 23-1018 (10th Cir. Apr. 11, 2025)

Challenge To Sham Eminent Domain: The Government Can't Lie About Why It Takes Property

Before we go further, a disclosure: this is one of ours.

Here's the Complaint for Violations of Constitutional and Civil Rights, filed yesterday by the Santoro Family in federal court in Rhode Island. This lawsuit challenges, under the Public Use Clause, a RI town's eminent domaining the family's land for the ostensible purpose of building a new municipal campus. 

Sounds like a "classic" public use, you say? Not so fast. As alleged in the complaint, the actual use, purpose, and necessity for the taking is something else: to stop the Santoros from building 250+ low- to moderate-income housing.

Because this is one of ours, we won't say more. But here's the story, from the Complaint:

1. SCLS Realty, LLC, and Sixty Three Johnston, LLC, family-owned homebuilders whose members are Lucille Santoro, Salvatore Compagnone, Ralph Santoro, and Suzanne Santoro (the plaintiff LLCs are referred to herein jointly as “Santoro Family”), bring this action to vindicate the family’s constitutional and civil rights, threatened by an outrageous abuse of government powers—a sham taking—by the Town of Johnston, Rhode Island (“Town”), and its officials. The Town claims it needs to use eminent domain to build a new municipal campus. But this is false. The real reason it the Town is forcibly depriving the Santoro Family of its land is to stop the building of over 250 desperately needed affordable homes.

2. Rhode Island is deep in what the State’s elected leaders have accurately called an affordable housing crisis. The Town, a suburb of neighboring capital-city Providence, is not immune, and less than eight percent (8%) of housing within its jurisdiction is considered “affordable” for the average Rhode Islander. The Santoro Family recognized this critical need and began planning to build affordable housing on its property. As far back as 2004, the Town’s Comprehensive Community Plan identified the Santoro Family’s property for affordable housing. In October 2024—in accordance with a state statute which required a streamlined approval process for development of low-to-moderate income housing—the Santoro Family began the process of obtaining the Town’s approvals.

3. Instead of embracing the Santoro Family’s use of its private property for affordable housing, the Town’s mayor, Defendant Joseph M. Polisena, Jr. (“Polisena”), publicly vowed to “use all the power of government that I have to stop it.” He stated the Town opposed affordable apartments, but that if the Santoro Family would instead propose building a smaller number of less-affordable suburban-style residences, then, “the town w[ould] roll out the red carpet to glide you through the planning process and see the project to completion.”

4. The Santoro Family refused to buckle under this intimidation and declined to withdraw or alter its plans to build affordable housing. In response, for the non-public purpose of thwarting affordable housing, the Town, in bad faith and with spite and actual animus, exercised eminent domain to force the Santoro Family into a choice: either alter or halt the affordable housing plans, or be deprived of the family’s land by government force.

5. On January 28, 2025, the Town, acting through its town council, officially resolved that the Town “should proceed with eminent domain … for the public purpose of constructing a municipal campus[.]” Prior to vowing to stop the Santoro Family, the Town had never expressed a need for, and had no plans to build, a new municipal campus. The Town’s Comprehensive Community Plan shows no plans for new municipal public buildings. The Town has never held any public discussions or hearings regarding a new municipal campus. It has no building or other actual plans for a new municipal campus. It has not considered other locations or evaluated whether the current location of the Town’s municipal complex is suitable for redevelopment. The Town never formed a municipal public buildings authority under R.I. Gen. L. § 45-50-12(16), a prerequisite to the use of eminent domain to acquire property for municipal public buildings. It has not set aside money or budgeted for a new municipal campus (instead, the Town asserts it will shift money already earmarked for the construction of a new high school to fund this fraudulent exercise of eminent domain).

6. The power of eminent domain is the government’s most potent civil power. It forces property owners who may not want to sell to do so, at a price the owners don’t necessarily agree to. The Constitution and law recognize that such overwhelming government power is readily subject to abuse. Thus, when government paints an eminent domain target on a property owner’s back and asserts the owner’s property is to be seized for what the government claims is a public use or purpose, the courts have an essential role in ensuring that the government’s stated use and purpose is the government’s actual use or purpose. In short, the taking must be actually “for public use,” and not bogus—or a pretext to some secret motive. Both the U.S. and Rhode Island Constitutions bar the Town from concealing or colluding to hide its real reasons for taking the Santoro Property. Eminent domain cannot be employed to stop property owners from using their land in legal ways, under the guise of a public use or purpose. Defendants are abusing the eminent domain power to block affordable housing for low-to-moderate-income families, simply because they don’t want that kind of thing in their town.

Stay tuned.

Complaint for Violations of Constitutional and Civil Rights, SCLS Realty, LLC v. Town of Johnston, RI, No. 25-cv-00088 (D. R.I. Mar. 10, 2025)

Ind App: Eminent Domain Abuse Is [Also] Abuse Of Process

What does a property owner do if she believes that the government's eminent domain lawsuit is abusive? Is the remedy limited to the four corners of the eminent action (i.e., a counterclaim, third-party claim, etc.), or may a landowner institute a separate action which includes a tort claim for abuse of process? 

In Indiana Land Trust #3083 v. Hammond Redevelopment Comm'n, No. 24A-PL-1284 (Jan. 31, 2025), the Indiana Court of Appeals held that because the remedies in an eminent domain case and an abuse of process case are different, the owner may press claims that the "taking was for 'discriminatory private purposes, for private gain, motivated by spite and/or that it is against public purposes[.]'" in a separate abuse of process lawsuit. Slip op. at 5. 

Here's the order of events:

• Redevelopment agency instituted an eminent domain case in state court to take owner's property as part of a redevelopment project.
• In that case, owner counterclaimed and instituted a third-party complaint which included allegations that the taking was abusive.
• The redevelopment agency objected to the third-party complaint on the grounds that "Indiana’s Eminent Domain Act does not permit any pleadings in eminent domain actions outside of the complaint, objections, and written exceptions." Slip op. at 3.
• At some time in this process, the owner filed a separate state court lawsuit against the condemnor, alleging pretty much the same thing as the counterclaim and third-party complaint. The condemnor removed the case to federal court.
• The state trial court dismissed the owner's third-party claim, on the basis that the owner could press these claims in the now-federal lawsuit. 
• But the federal court dismissed the owner's complaint, and the Seventh Circuit affirmed holding, "'[t]he eminent domain action is playing out in Indiana state court[.]'" Slip op. at 5.
• Next, the owner filed another state-court action for, inter alia, abuse of process.
• Redevelopment agency sought dismissal on the grounds that the allegations of abuse of process (which included allegations of a private benefit taking and related) could only be raised in the pending eminent domain action, and the trial court agreed.

The court of appeals reversed. It focused on the nature of an eminent domain action, and the tort of abuse of process, zeroing in on the remedies available in each case. 

Based upon their complaint, Landowners essentially alleged that the eminent domain action was substantively improper, they raised questions of fraud and bad faith, and they alleged that the proceeding was a subterfuge to convey the Property for a private use. Given the procedural posture of this case and the expansive definition of process that includes both procedural and substantive elements and mindful that we view the pleadings in the light most favorable to Landowners and construe every reasonable inference in their favor, we conclude that Landowners raised a question that is a proper subject for judicial review and sufficiently alleged a claim for abuse of process. The trial court erred in granting Defendants’ motion to dismiss.

Slip op. at 22.

It looks like a lot turned on "[g]iven the procedural posture of this case," and the trial court's earlier rejection of the owner's attempt to raise similar issues in the condemnation lawsuit. Nonetheless, we think there's a lot there worth understanding, with the bottom line being, yes, you can (and perhaps should) raise these type of objections in a separate claim or suit. 

Indiana Land Trust #3082 v. Hammond Redevelopment Comm'n, No. 24A-PL-1284 (Ind. Ct. App. Jan. 31,

What Lingle Missed: Short Circuit Covers Eminent Domain Pretext

We've long been fans of the Short Circuit podcast, a production of the Institute for Justice's Judicial Engagement project. If you are not subscribed, you should be. It's a great way to keep up on what is going on in the federal courts of appeals (ha, ha, now I get "short circuit"), with keen insight from the IJ team and others. Even us, from time-to-time.

The latest episode is no different. It covers a recent Fourth Circuit case we blogged about, in which the court rejected the property owner's state-law inverse claims but also left some tantalizing crumbs about how to raise a claim that a taking lacks a public use or purpose. We score a mention!

As we wrote:

Now, here's the useful dicta in the case. The court noted that it was not saying that these type of circumstances can never present a claim. It recognized that the pretext situation could be pressed in several ways. First, the owner might have administratively appealed the nuisance determination. Or "he could have brought at timely § 1983 due process claim for an unlawful taking." Slip op. at 16 (citations omitted).

Take that last one and keep it in your file for future deployment.

The SC hosts asked whether the Fourth Circuit was "too clever by half," because it held that either way the owner went he lost (nuisance or public purpose), and that a measure designed to help property owners (Virginia's post-Kelo tightening of the public use rules) was the reason the owner didn't have a remedy here.

And on the question of whether there must be a public use or purpose to support a claim for a regulatory taking or inverse (or, can an owner bring a takings claim if the government action was not for a public use or purpose), an issue the SC hosts noted we "didn't dig down" on.

True, we didn't include our thoughts on that topic in our blog post. But fear not! We do have thoughts on that issue. Way back in 2004, we submitted an amicus brief in Lingle v. Chevron, U.S.A., Inc., that argued that yes, an owner can challenge a government action that is alleged to be a taking even though that action lacks a public use or purpose. As we argued, the Public Use Clause is a limitation on all government power, and therefore serves as a check in both regulatory takings and affirmative takings. As we wrote:

Regulations that fail to “substantially advance legitimate state interests” violate the Public Use requirement of the Fifth Amendment.

This conclusion results from an examination of the text of the Takings Clause itself, which contains two substantive limitations: (1) the taking must be for public use and (2) just compensation must be provided. Dual remedies give effect to these limitations: if an action is not for public use it is void, and if just compensation has not been provided, a property owner may compel payment. Review of what uses are “public,” and what compensation is “just” is reserved for the courts.

The Fifth Amendment limits more than overt exercises of eminent domain. It is a settled element of this Court’s jurisprudence that a regulation – even one branded as “economic” – violates the Takings Clause if it (1) fails to substantially advance legitimate state interests, or (2) deprives an owner of beneficial use of property. Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). This regulatory takings standard’s two-part foundation parallels the Takings Clause’s dual requirements of Public Use and Just Compensation.

The “substantially advance” standard is a test of public use.

This brief sets forth why the “substantially advance” test is a Takings Clause standard and why heightened scrutiny should continue to be utilized to review regulatory actions alleged to violate the Fifth Amendment. Regulatory takings jurisprudence has long recognized the intermediate scrutiny of the substantially advance test requires more than the minimum rationality of due process.

This case presents the Court with the opportunity to clarify that the Public Use Clause limits all government actions impacting private property. Amici urge the Court to reaffirm that unless the government shows that a regulation substantially advances legitimate state interests, it is invalid as an act beyond the limited scope of government’s power, in violation of the Takings Clause.

The Supreme Court as you know, laughed at our argument and held in Lingle that the "substantially advance" test was lodged in the Due Process Clause and not the Fifth Amendment's Takings Clause. But we keep thinking that time will vindicate us!

Check the SC podcast out, this episode and others. And please subscribe!

Brief Amicus Curiae of Charles W. Coupe, et al. in Support of Respondent, Lingle v. Chevron USA, Inc. , No....

Join Us: "Property Rights and The Roberts Court: 2005-2025" (Feb. 27, 2025, UC Berkeley Law School)

Register now and plan on joining us on Thursday, February 27, 2025 at the U.C. Berkeley Law School for a one-day conference: "Property Rights and the Roberts Court: 2005-2025."

Here's the agenda. Here's a description of the program:

For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.

In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.

We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between Richard Epstein, director of the Classical Liberal Institute and law professor at NYU School of Law, and John Groen, executive vice president at PLF.

A catered lunch will be provided.

Register here.

Agenda, Property Rights and the Roberts Court 2005-2025 (Cal Berkeley Law School, Thurs. Feb. 27, 2025)

CA4: Challenge Public Use/Pretext Under Due Process And § 1983, Not Inverse

The facts in D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (Jan. 16, 2025), a recent decision from the U.S. Court of Appeals for the Fourth Circuit, are fairly sympathetic. And the opinion starts off with a tantalizing quote:

In 1761, Massachusetts lawyer James Otis exclaimed “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle.” John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case, in Collected Political Writings of James Otis 12–13 (Richard Samuelson, ed. 2015). American law has embraced that principle since our nation’s founding. U.S. Const. amend. V. But we have also long recognized that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” Mugler v. Kansas, 123 U.S. 623, 665 (1887).

Slip op. at 3.

But still no succor from the court.

While an active-duty sailor was deployed, the city determined his property was uninhabitable. It sent and posted notices, but the mailed notices were returned to sender. A few months later, the city tried again. After returning from deployment, the owner did some maintenance, but didn't directly respond to the city's determination the property was uninhabitable (the record doesn't reveal whether the owner knew of the determination).

And the next year, the Navy deployed the owner again for a short time. Upon his return he "saw a faded notice posted to the house[,]" after which he contacted the city. Slip op. at 6. But that apparently went nowhere, and "[i]n June 2018, the city prepared another notice of violation letter[,]" that gave the owner 30 days to remediate, or else the city would demolish it. Slip op. at 7. No response. At the end of 2018, the city tore down the building.

Three years later, the owner sued for, inter alia, due process, a federal taking, and a Virginia-law inverse condemnation claim. The district court granted the city summary judgment.

The owner appealed to the Fourth Circuit, but limited the issue to to whether the Virginia inverse claim was subject to disputed facts, and abandoned appeal of the federal claims. Slip op. at 10 ("Thus, the only issue before us is whether Fox showed any genuine dispute of material fact related to his Virginia inverse condemnation claim."). In other words, a federal appeals court was going to be weighing in solely on a state law issue, and even then only on the relatively narrow question of whether the owner had pointed to evidence sufficient to meet his minimal burden of production on summary judgment (not persuasion).

That, and the fact that the resulting opinion is published, should give you some clue that any truly interesting insight this was going to produce might lie in the dicta. We'll get to that intriguing dicta in a moment, but first the holding (affirmed).

The court began by noting:

When this collision [the tension between using your property how you like versus the obligation not to use it in a way that harms others] occurs in Virginia, the government has two options. It can abate a public nuisance without paying compensation. Or it can exercise its right of eminent domain based on the public use of blight elimination. In the latter situation, the government may acquire title to the property, but it must pay the owner just compensation.

Slip op. at 3.

The owner claimed that there's a factual dispute regarding whether his property was a nuisance, and that a jury alone can make that determination. The court rejected the argument, first because he had a chance to challenge the city's administrative determination that the property was a nuisance, and he failed to use the city's appeal process to chase that down. The second, and more important reason was that it is not material under Virginia law whether or not the house was a nuisance. The court noted that Virginia caselaw treats nuisance abatement as an exercise of police power exempt from the obligation to provide just compensation. So it it was a nuisance, no inverse liability.

And if it wasn't a nuisance, then the destruction was ultra vires; an essential element of a Virginia inverse claim is proof that the taking was for a public use:

As a result, if Fox is right that the house posed no danger to public health or safety, he’s correct that it is not a nuisance under Virginia law. But for the same reason, it did not constitute blight. See id. § 1-219.1(B). And since eliminating blight is the only potentially applicable public use here, Fox cannot show the “public use” element of an inverse condemnation claim. See AGCS, 800 S.E.2d at 163 (“Inverse condemnation permits recovery only when property is taken or damaged for public use.” (internal quotation omitted)). In sum, whether the house constituted a nuisance is immaterial—Fox’s inverse condemnation claim fails whether the answer is yes or no.

Slip op. at 14-15 (footnotes omitted). 

Next, the court rejected the owner's argument "that a jury must resolve whether the city pretextually stated a purpose of blight elimination or nuisance abatement." Slip op. at 15. The owner had raised vague allegations that the real reason for the demolition of the house was not that it was blighted, but because Norfolk wanted to free up the site for redevelopment. The court held this claim was not supported by any evidence to meet the owner's Rule 56 burden. See slip op. at 17. Game over.

Now, here's the useful dicta in the case. The court noted that it was not saying that these type of circumstances can never present a claim. It recognized that the pretext situation could be pressed in several ways. First, the owner might have administratively appealed the nuisance determination. Or "he could have brought at timely § 1983 due process claim for an unlawful taking." Slip op. at 16 (citations omitted).

Take that last one and keep it in your file for future deployment.

D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (4th Cir. Jan. 16, 2025)

CA3: State-Created Association Is A State Actor With No Private Property Rights

We tend to avoid cases about insurance. Not because they are dull (as you might wrongly imagine). Indeed, there's more excitement in insurance cases than you'd guess. But insurance law and the insurance regulation field needs a certain level of very niche expertise that we don't possess. So normally, we would not have given the U.S. Court of Appeals for the Third Circuit's opinion in Pennsylvania Prof. Liability Joint Underwriting Ass'n v. Gov. of the Commonwealth of Pennsylvania, No. 18-2297 (Dec. 16, 2024) a second glance.

But a case that at first glance seemed about insurance contained lot of "takings" references sprinkled across the many pages of the opinion, so it pinged our radar. And it turns out it was worth a download and review if you keep your expectations in check.

In the end, the court didn't really tell us much about regulatory takings doctrine, even though the district court held that by adopting statutes pursuant to which the Commonwealth of Pennsylvania raided the funds held by the Joint Underwriting Association, it had taken private property. The JUA acts "as a professional liability insurer of last report for high-risk medical providers." Although created by the Commonwealth, the government never funded the it. But the JUA must have been doing something right because "[s]ince its inception, it has amassed through investments a surplus of $300 million."

Well, we know what happens when any entity, public or private, gets too much money: the Crown starts coveting it. Just ask the Knights Templar how their amassing of more money than King Philip worked out for them. In the end, the Crown thinks it has the trump card. Which it often does (except, perhaps, in the United States, where the Constitution bats last, at least in theory). Here, the Commonwealth legislature repeatedly enacted laws to transfer JUA's surplus to the state's general fund.

The JUA sued for, inter alia, a taking. One of the defenses posed by the Commonwealth was (you guessed it): the surplus is not "private property" because the JUA is part of the government. And the government cannot sue itself for a violation of the Constitution. However, as noted above, the district court agreed with the JUA.

The Third Circuit had a slightly different view. It asked whether the JUA a creature of the Commonwealth: "in other words, whether it is a public entity rather than a private one." Slip op. at 7. The court held that the JUA is a public entity. We'll let you read the opinion (all 44 single-spaced pages of it) for the exact reasons why. Here's the court's summary:

In sum, Pennsylvania established the JUA to serve an integral role in the administration of the Commonwealth’s insurance market and, consequently, in the health care market too. In doing so, it imbued the JUA with the coercive power of state government to compel private insurance companies to take specific actions. The JUA’s funds are the result of the Commonwealth’s enforced acquisition of funds to support those goals, and only the Commonwealth has a legally protectable interest in the JUA and its resources. We thus hold that, under Dartmouth College’s guidance, the JUA is a public institution and is without the ability to maintain the constitutional claims it has asserted against the Commonwealth.

Slip op. at 37.

No takings claim.

Even though there's not a lot about takings here, we decided to post it mostly because the decision informs our analysis of those cases where a kinda-sorta-government actor is sued for a taking, but then claims to be a private actor and not a state actor. You know the drill: a utility, or a university, or similar. We've all been there trying to figure out of our defendant engages in "state action" for purposes of the Fourteenth Amendment, or even whether it enjoys Eleventh Amendment immunity from federal lawsuit.

On that, this one might be worth your time skimming, or even reading in detail, if you have the interest.

Pennsylvania Prof. Liability Joint Underwriting Ass'n v. Governor of the Commonwealth of Pennsylvania, No....

CA11: Takings Claim Not Ready Despite Govt's Enforcement Actions

Lake Worth: the "lago" in Mar-a-Lago

You know his name. He's taken on the City of Riviera Beach twice at the U.S. Supreme Court. And won both times. The houseboat that isn't a boat. The government can't shut you out from speaking your mind simply because you irritate them.

That's right, it's Fane Lozman. A "Florida Man" that you can like and admire. And he's back for Round 3.

He owns property that's mostly in (in, not near) Lake Worth. Two-tenths of an acre is uplands, and the rest (7.75 acres) is submerged. As the Eleventh Circuit noted, "[o]nly a sliver of Lozman's property is above water." 

The city, in accordance with the usual approach to land use regulation has a comprehensive plan. That plan designates submerged lands as "Special Preservation Future Land Use," a label which should set off your Lucas bells, because it mostly sounds like no use. Sure enough, that designation originally "preclude[d] any development of Submerged Lands ... to the maximum extent permissible by law."

Perhaps understanding the legal jeopardy which that put the city in, in 2010 it amended the plan to allow some uses. At the time Lozman purchased the property in 2014, the designation at least in theory allowed private residential fishing or viewing platforms and docks, and -- get this -- included a "savings clause" that prohibited the city from denying uses that were "judicially determined vested rights to develop or alter submerged lands." We see what you did there, city. In 2021, the city tweaked the plan a bit more, limiting such vested uses to a one-per-20-acre density.

But that's not the end of the story. Turns out that until after Lozman's 2014 purchase, the underlying zoning did not conform to the restrictive "Special Preservation Land Use" general plan designation. Uh oh. Indeed, the zoning allowed development of single-family homes. That was a great disturbance in the Force, and that sound you hear is the collective voices of municipal lawyers and planners crying out in terror. Eventually the city caught on, and in 2020, when it created a zoning designation that matched the general plan preservation designation.

Lozman was not one to let that slip by:

Lozman says that when he purchased the parcel, he “expected that it could be developed for use as single-family residential lots.” Lozman purchased the property in 2014 for $24,000. But he produced an appraisal valuing the property at $49,833,500 as of October 7, 2020. This valuation depends on Lozman maximizing the property’s “highest and best use”—bulkheading and filling the sub-merged water to create “up to eight one-acre parcels.” The appraisal was also “based on the hypothetical condition that permits could be granted for bulkhead and fill.”

Lozman v. City of Riviera Beach, No. 23-1119, slip op. at 4 (11th Cir. Oct. 16, 2024).

Zoning is king, and it controls what restrictions there are on property uses (right?), so Lozman sued for a Lucas taking in federal court. The district court granted the city summary judgment, but on appeal, the Eleventh Circuit held the case wasn't ripe, under Williamson County's still-surviving "final decision" ripeness rule. You know the drill: before an owner can move forward with a claim that a land use restriction is a taking, the regulating authority must have made a "final decision" about what uses are allowed under the restriction.

While grounded in the entirely rational notion that a court is not able to evaluate whether there's been a taking until it knows what uses an owner can make of property under the challenged restrictions, we know in practice the final decision rule is mostly a finger pointing the way to municipal approval purgatory. Having been incentivized by the Supreme Court to avoid saying "no" with clarity (after all, who wants to be sued for a taking!), while at the same time not wanting to say "yes" (here, for example, the city's restrictions contemplate preservation, not development -- would the city really be ok with seven residences smack dab in the Lago?), the easiest path for the government is to direct the owner into a byzantine maze with no realistic prospect of getting to either a yes or a no. And then hope that the thousand cuts weaken body and soul, and he taps out.

Here, the Eleventh Circuit concluded that Lozman hadn't bothered to ask the city for a development permit, nor the Corps of Engineers for a section 10 dredge-and-fill permit, both of which he would need in order to build up to the use allowed by the zoning. Slip  op. at 6 ("But Lozman has not yet acquired—or applied for—federal or state permits to develop his property."). Easy case, right? No final decision unless the owner asks the city. Or, you don't have to ask if doing so would be futile.

But that isn't all the story. Both the Corps and the State of Florida were (are?) hot on Lozman's tail with enforcement actions. It turns out that he didn't wait for permission, and he built "structures in the Lagoon without authorization in violation of the Rivers and Harbors Act." The State of Florida "instituted a similar action against Lozman in December 2020." Slip op. at 6. In each case, the government agencies obtained rulings preventing Lozman from doing anything.

The Eleventh Circuit disagreed with the district court's granting of summary judgment for the city, holding instead that Lozman did not allege a ripe case, because there's no indication he ever asked the city for permission to develop. The restrictive comprehensive plan were not sufficiently restrictive to show that there's no uses possible (however remote and unrealistic obtaining permission might be). And Lozman had not sought a variance.

The same reasoning applies here. The comprehensive plan alone cannot constitute a final decision on Lozman’s property. That the comprehensive plan includes a material exception permitting development underscores that the plan alone is not a final decision precluding the development of Lozman’s property. Because he has not applied for a permit, variance, or rezoning from Riviera Beach on the application of the comprehensive plan to his property, Lozman has not yet received a final decision on the comprehensive plan’s application to his property.

Slip op. at 9.

Nor a rezoning (on this one, we have real heartburn because a property owner can never be required to seek legislation in order to ripen a takings claim).

The court also rejected -- as most courts do -- the claim that seeking permission was futile. There are always possibilities, and courts are all too willing to accept a municipal claim that if only an owner would do it right, we might approve some use. Even here, where the feds and the state are coming after Lozman when he made uses of the property well short of what the zoning would allow. Anyone actually think any government would let him do anything? 

The Eleventh Circuit may have made short work of his case. And if there's a bright side of life part of the decision is that it reversed the district court's adverse decision on merits, and dismissed his takings claim without prejudice.

And if I were a betting man, I wouldn't count Mr. Lozman out just yet.

Lozman v. City of Riviera Beach, No. 23-11119 (11th Cir. Oct. 16, 2024)

Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don't Miss Out!)

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

• Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
• Slow Take: Possession, Rent, Relocation, and Offset
• The Jury's View: How Jurors See Your Case
• From Penn Coal to Penn Central: How to Prove "Too Far"
• Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
• Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
• Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
• Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
• "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures

And more. Check out the complete agenda here. Registration information here. 

We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.

Don't miss out: we have had record attendance in recent years, so hold your space now.

Come, join us!

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)

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)

New Cert Petition: When State Law Bars Owner From Challenging A Taking, Can Federal Court Abstain?

Here's the latest takings cert petition. This one seeks review of the Seventh Circuit's affirming the district court's sua sponte abstaining from considering a property owner's challenge to a Wisconsin municipality's exercise of eminent domain.

The court concluded that federal courts could -- but shouldn't -- consider the owner's public use challenge because there were ongoing parallel state proceedings (this this case, an eminent domain case in a Wisconsin court). That alone doesn't seem terribly controversial.

But as the petition points out, there was not actually a "parallel" state court proceeding here, because Wisconsin law apparently doesn't permit an owner to challenge public use in the proceeding the Village filed. As the Petition puts it:

The Seventh Circuit Court of Appeals’ particularly broad approach to the Colorado River doctrine stands out among the circuits. In the case at hand, the court of appeals expanded the doctrine even further by effectively overruling the requirement of parallel proceedings. It was clear legally that the state and federal proceedings were not parallel, yet the district court still dismissed the case. In reviewing the district court’s decision, the Seventh Circuit admitted that the two cases presented different issues and that regardless of how the state case was decided, the public use claim would go unanswered, however, the Seventh Circuit still concluded that the two cases were “parallel.”

Pet. at 7.

Ah, we get it: parallel doesn't mean, you know, exactly parallel.

What happened was that the Village took one position on whether the taking was supported by a public use or purpose, and the time for challenging that position lapsed under Wisconsin procedures. You understand that often, property owners are required by condemnation procedures to immediately challenge public use or necessity, and are subject to very short statutes of repose after which you lose the claim. Well here, that apparently occurred...but later and just before the valuation trial was set to commence, the Village said or did something that revealed its hand: the real reason for the taking was not a public use or benefit.

Too late to raise the new issue in state court, the owners filed a section 1983 claim in federal court. The district court on its own abstained, and as we noted above, the Seventh Circuit affirmed, even though it expressly acknowledged that the case didn't squarely fit into the Colorado River abstention doctrine (or any other). This was just a case the federal court shouldn't decide:

That said, the federal and state litigation present different issues. In state court, Antosh and Lashley spent two years contesting the amount of compensation owed for the taking. In federal court, they urge that the taking has been illegitimate all along, because the Village seized their property for a private use under the guise of a public one. So the two suits are not perfectly symmetrical: regardless of how the dust settles in state court, their public use takings claim in federal court will go unanswered.

This lopsidedness, however, is not fatal to a finding that the actions are parallel.

Here is the Question Presented:

Whether the court of appeals erred in affirming the district court, when the Village of Mount Pleasant admitted that it had used eminent domain to take private property for a private purpose (the Foxconn Project), and the district court applied the Colorado River doctrine sua sponte even though the state proceedings were not parallel because the state proceedings were statutorily barred from addressing the Petitioners’ Fifth Amendment public-use claim as well as other constitutional issues.

Two comments.

First, after the Supreme Court decided Knick and re-opened the federal courthouse doors that Williamson County had wrongfully slammed closed for three decades, we wrote that we didn't think that was the end of the story, because government wasn't going to go quietly into that good night and, you know, just sit there and allow property owners to press their claims in federal court.

We also thought that federal courts were not going to warmly embrace their role as civil rights forums, but would maintain the hoary trope that this land usey stuff was beneath their dignity (after all, we're not super zoning boards of appeals, are we?).

This petition is the latest chapter. We filed one in a roughly similar case not too long ago. Maybe this latest one will get more traction.

Second, we take a bit of issue with the way the lower courts characterized the property owners' approach, effectively blaming the owners for not acting sooner (how, exactly could they have challenged public use when the Village said its purpose was "A," and only after the deadline to challenge lapsed said it was "B"?), and subtly and not-so-subtly chastising the owners for doing this at the last minute.

To us, this goes back to Justice Thomas and his thought that if a federal court has jurisdiction, it darn well has the obligation to exercise it. The hands-off approach the federal court took here does not easily fit into any of the existing (and limited, as we understand them) doctrines of abstention, when concerns about comity, respect, and "Our Federalism" counsel a federal court to hold off on its Article III duties for now. Also, are not property owners who are scrapping to hold on to their property against the sovereign's nearly unassailable power entitled to do anything and everything they can to make it happen? We'd think so, even thought courts and condemnors call this bad faith and being greedy. Why should an owner have to "respect" the state court, when she is fighting for her property, and is there an obligation to favor judicial efficiency over her fundamental rights? We find the federal courts' framing of the narrative here to be quite offensive.

Stay tuned here, or follow along on the Court's docket.

Petition for a Writ of Certiorari, Antosh v. Vill. of Mount Pleasant, No. 24-186 (U.S. Aug. 21, 2024)

Back To School For Dirt Law @ William & Mary, Season VII

Yes, the mysterious ducks remain -- and seem to have multiplied.

It's that time of the year again. Fall's-a-coming, and that means that starting today, we're back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:

• Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
• Land Use Controls (an especially hot topic at the moment)

The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law -- it's really interesting, and a good place to make your way in the practice, and law students recognize that.

We don't use $400 casebooks in either class.

Time to jack back into the (takings and land use) Matrix.

New Article: "The Ends of Means-Ends Scrutiny"

Here's an article worth reading, just posted to SSRN, Procaccini, The End of Means-End Scrutiny (July 29, 2024).

For your takings and individual liberty nerds, please focus on pages 36-38 (showing how takings analysis is not accomplished by the usual means-ends scrutiny), pages 40-42 (social and economic liberties), and pages 43-44 (searches and seizure).

Why move from means-ends scrutiny to more robust judicial review? Zero in on pages 50-52 ("Transforming Rights from Mediated Interests to Uncompromising Trumps"). We're thinking the author concludes this move is a bad thing, but we're not so sure it is.

Here's the Abstract:

It is black letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, this Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and tradition tests, the transformation of equality doctrines, and the embrace of formalist rules to govern constitutional law.

This Article provides a complete and interconnected critique of the numerous doctrinal transformations that together comprise the larger constitutional revolution of ending means-end scrutiny. It tracks how this upheaval now touches nearly every fundamental right and important federal power. But not in exactly the same way. Rather, the Court has selectively abandoned means-end scrutiny to benefit the same subset of authorities, rights, and groups. In particular, the end of means-end scrutiny has reoriented the landscape of constitutional law to weaken federal authority, strengthen protection for libertarian as opposed to egalitarian rights, and benefit private power and dominant political, economic, and social groups.
The upshot of this patterned end of means-end scrutiny is a foundational change not just to the prevailing methodology of constitutional adjudication but also to the very nature of constitutional rights and judicial review. By eliminating consideration of governmental means and ends from the construction of rights, the Court has crafted a new form of judicial review that is court-centric, formalist, and dominance-reinforcing. The Article tracks and critiques this doctrinal and theoretical transformation, connecting it to the most salient debates in constitutional law today and exposing the deep and troubling consequences of the seismic--and yet largely silent--collapse of means-end scrutiny.

Whether you agree or disagree with the author's premise, it is worth checking out.

New Cert Petition: Does The Obligation To Provide Just Compensation Waive Sovereign Immunity?

Because the latest takings cert petition is one of ours (our colleagues Dave Breemer and Deb La Fetra are counsel for the petitioner), we won't be commenting all that much on it.

Except to say that this is the latest in a series of cases where the obligation to provide just compensation for takings butts up against a state government's claim that it cannot be sued in federal court unless it agrees to be sued. We wrote up the Seventh Circuit's opinion below here ("Coming And Going: Eleventh Amendment Trumps Fifth Amendment - States Must Consent To Be Sued In Federal Court, Even For Just Compensation")

Here are the Questions Presented:

1. Whether a state’s constitutional obligation to pay just compensation when taking property waives its sovereign immunity from a claim seeking damages for an unconstitutional taking?

2. Whether a property owner may sue state officials in their personal capacity under 42 U.S.C. § 1983 for a violation of the Takings Clause, as the First Circuit holds, or whether such a personal capacity suit is barred, as the Seventh and Sixth Circuits hold?

Dust off your Federal Courts hornbooks and follow along here, or check out the Court's docket.

Petition for Writ of Certiorari, Gerlach v. Rokita, No. 24-21 (U.S July 9, 2024)

New Article: "Original Understanding of 'Background Principles' in Cedar Point Nursery v. Hassid"

Worth reading: a student-authored piece in the latest issue of the Harvard Journal of Law & Public Policy, "Original Understanding of 'Background Principles' in Cedar Point Nursery v. Hassid."

From the Introduction:

But in Cedar Point, when considering a regulation that authorized union organizers to enter certain businesses, the Court held that even a temporary physical occupation was a per se taking requiring compensation.

The Court’s shift to a per se rule is significant because it means a landowner can receive “just compensation” without satisfying Penn Central’s high bar required for regulatory takings. For governments, the Cedar Point holding could pose a heavy financial burden if they must compensate landowners for temporary intrusions authorized under existing regulations. Due to this imposing financial burden, some have suggested that Cedar Point threatens existing civil rights regimes, which at first blush resemble the labor rights regulation at issue in Cedar Point.

But Cedar Point also recognized three exceptions to its per se rule, one of which is particularly expansive: “longstanding background restrictions on property rights.” Writing for the majority, Chief Justice Roberts defined this exception as “background limitations [that] encompass traditional common law privileges to access private property.” The opinion listed several examples, including entering private land for public or private necessity or to enforce criminal law. For governments, these background principles could alleviate otherwise staggering financial liability due to the Cedar Point rule.

...

This Note argues that these principles are part of the original meaning of the Fifth Amendment, and then offers an originalist framework for deriving them. The Framers viewed provisions like the Takings Clause as “declaring” existing law that the American people already recognized as enforceable. When viewing the Takings Clause this way—as declarative of “general law”—it becomes apparent that the methodology of Cedar Point reflects the original understanding of the Fifth Amendment. In addition to confirming Cedar Point’s originalist pedigree, general law also informs the framework for how originalists can divine these background principles.

Check it out.

The Verified Complaint In Equity: The Declaration Of Independence, v.248

It's not quite "Yes Virginia..." but here is our annual Independence Day missive on the legal angle on the Declaration. This may have special significance as the nation is in the process of reexamining many of our assumptions and history. But though the Founders may have been flawed individuals -- as we all are -- there's really no question about the ideas they captured, and, thankfully, put down on for posterity.

---------------------------------------------------------------------------------------

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.).

Nonetheless, as we celebrate our independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally as a legal pleading, and is the product of careful legal thinking.

So lawyers can't be all that bad, right?

As convincingly argued by historian Peter Charles Hoffer in his book The Law's Conscience: Equitable Constitutionalism in America (1990), the structure and style of the Declaration follows a form familiar to most modern lawyers: a complaint initiating a lawsuit.

There's the introduction and "whereas" section (why we're doing this); the bill of particulars (28 specific factual charges against George III); the Prayer for Relief (severing the colonies' political bonds to Great Britain); and finally, the verification (John Hancock and others signing and "mutually pledg[ing] to each other our lives, our fortunes and our sacred honor."). And here you thought Rule 11 was a tough standard.

As Professor Hoffer notes, Jefferson was an equity lawyer, and the Declaration advances a familiar equitable breach of trust theory, asserting that George III was a trustee for the colonies and therefore owed them fiduciary duties, and that his failure to protect them from the capriciousness of Parliament -- where the colonists had no representation -- was a breach of the trust for which equity provided the remedy of independence.

However, since equity derived its power from an appeal to the Crown's fairness, it seemed inconsistent for the colonists to seek relief for a breach of the King's fiduciary duties from the King himself. So Jefferson and his drafting team employed the then-still radical legal theory that sovereign equitable power derived from the people, and that the Continental Congress, as representatives of the people, could impose the remedy of independence.

Thus, the Declaration is much more than stirring political prose, and may not have been possible without the work and deep thinking by a bunch of lawyers.

So while you're enjoying the hot dogs, fireworks and sunshine this Fourth of July, please thank a lawyer.

We can happily return to lawyer jokes on July 5th.

It's not quite "Yes Virginia..." but here is our annual Independence Day missive on the legal angle on the Declaration. This may have special significance as the nation is in the process of reexamining many of our assumptions and history. But though the Founders may have been flawed individuals -- as we all are -- there's really no question about the ideas they captured, and, thankfully, put down on for posterity.

---------------------------------------------------------------------------------------

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.).

Nonetheless, as we celebrate our independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally as a legal pleading, and is the product of careful legal thinking.

So lawyers can't be all that bad, right?

As convincingly argued by historian Peter Charles Hoffer in his book The Law's Conscience: Equitable Constitutionalism in America (1990), the structure and style of the Declaration follows a form familiar to most modern lawyers: a complaint initiating a lawsuit.

There's the introduction and "whereas" section (why we're doing this); the bill of particulars (28 specific factual charges against George III); the Prayer for Relief (severing the colonies' political bonds to Great Britain); and finally, the verification (John Hancock and others signing and "mutually pledg[ing] to each other our lives, our fortunes and our sacred honor."). And here you thought Rule 11 was a tough standard.

As Professor Hoffer notes, Jefferson was an equity lawyer, and the Declaration advances a familiar equitable breach of trust theory, asserting that George III was a trustee for the colonies and therefore owed them fiduciary duties, and that his failure to protect them from the capriciousness of Parliament -- where the colonists had no representation -- was a breach of the trust for which equity provided the remedy of independence.

However, since equity derived its power from an appeal to the Crown's fairness, it seemed inconsistent for the colonists to seek relief for a breach of the King's fiduciary duties from the King himself. So Jefferson and his drafting team employed the then-still radical legal theory that sovereign equitable power derived from the people, and that the Continental Congress, as representatives of the people, could impose the remedy of independence.

Thus, the Declaration is much more than stirring political prose, and may not have been possible without the work and deep thinking by a bunch of lawyers.

So while you're enjoying the hot dogs, fireworks and sunshine this Fourth of July, please thank a lawyer.

We can happily return to lawyer jokes on July 5th.

Argument Preview: Is Gov't Imposed "Church Purposes" Deed Restriction Void?

Today at 10am Hawaii Time (1pm PT/4pm ET), the Hawaii Supreme Court will hear oral arguments in a case asking whether a 1922 deed restriction imposed by the Territory of Hawaii on a land patent conveying fee simple title to a private owner, subject to the land always being used for "church purposes" (i.e., a fee simple determinable) void under either the Hawaii Constitution's Establishment Clause, the U.S. Constitution's Establishment Clause, or a Hawaii statute declaring that "[e]very provision in ... a written instrument relating to real property that purports to forbid or restrict the conveyance ... to individuals because of .. religion" is void? 

Here's how the Judiciary's web site describes the case:

In 1922, the Territory of Hawai‘i sold property to Heber J. Grant, trustee for the Church of Jesus Christ of Latter-Day Saints, pursuant to a Land Patent.  The Land Patent contained a restriction requiring the property be used “for Church purposes only” and a reversionary interest to the Territory if the property is “used for other than Church purposes” (Deed Restriction).

Plaintiffs-Appellants Hilo Bay Marina, LLC and Keaukaha Ministry LLC (Petitioners) are the current owners of the property.  Petitioners sued Defendants-Appellees State of Hawai‘i and Board of Land and Natural Resources, State of Hawai‘i (State) in the Circuit Court of the Third Circuit (Circuit Court) asserting the Deed Restriction is void under Hawai‘i Revised Statutes (HRS) § 515-6(b), it violates article I, section 4 and article VII, section 4 of the Hawai‘i Constitution, and it violates the Establishment Clause of the First Amendment to the United States Constitution.

The parties filed cross-motions for summary judgment and the Circuit Court granted summary judgment for the State.  Petitioners appealed and the appeal was transferred to this Court.

Petitioners assert the Circuit Court erred by concluding:

(1) The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning;

(2) HRS § 515-6(b) does not void the deed restriction;

(3) the deed restriction does not violate article I, section 4 of the Hawai‘i Constitution for the same reasons that it does not violate the Establishment Clause of the First Amendment to the United States Constitution, and even if article I, section 4 of the Hawai‘i Constitution is not coextensive with the Establishment Clause in the United States Constitution, the deed restriction passes constitutional muster under Lemon v. Kurtzman, 403 U.S. 602 (1971);[**] and

(4) the deed restriction does not violate the Establishment Clause in the United States Constitution. 

[**Hawaii still applies the Lemon test for establishment cases under the Hawaii Constitution.]

Here are the briefs (a reminder that this case was fast-tracked to the Supreme Court by transfer from the court of appeals, so the Opening and Answering Briefs were filed in the appeals court before transfer, while the Reply was filed after, and thus has a slightly different caption:

• Property owner's Opening Brief
• State of Hawaii's Answering Brief
• Property owner's Reply Brief

The case is worth following. Check it out.

Juneteenth Reminder: Emancipation Had Its Roots In The Property-Based "Contraband" Legal Theory

Today is a good day to remember that legal emancipation had its roots in the "contraband" property theory. Here's a post from a few years ago where we visited what we called "The Birthplace of a More Perfect Union" (Fort Monroe, Virginia).

The contraband property theory was itself very imperfect, and a compromise theory driven by practicality and politics. But it was a legal theory that laid the foundation for a general acceptance of emancipation, and led inexorably to the Emancipation Proclamation, and the Thirteenth, Fourteenth, and Fifteenth Amendments. 

A good reminder that property law and property rights are not primarily about land, or dirt, or "development," but about freedom and human rights.

Games Government Play: Ninth Circuit Doesn't Buy Attempt To Moot Constitutional Challenge To Co-19 Vaccination Policy By Sandbagging And Withdrawing

Games people play
Night or day they're just not matchin'
What they should do
Keeps me feelin' blue
Been down too long
Right, wrong, I just can't stop it

This one isn't about takings, but is nonetheless a must-read.

In Health Freedom Defense Fund, Inc. v. Carvalho, No. 22-55908 (June 7, 2024), a panel of the U.S. Court of Appeals for the Ninth Circuit (yes, the Ninth Circuit!) held that the litigation was not moot even though the government had revised the challenged regulation. The Ninth Circuit also vacated and remanded the District Court's dismissal of the challenge to the Los Angeles Unified School District's requirement that its employees be vaccinated 

The sequence of facts is important. Check out the shell game shenanigans that LAUSD went through, after which it told the courts with a straight face that this was just routine and not it playing litigation games:

• LAUSD required all employees to have or get the Co-19 vaccination, and was silent about any exceptions.
• The plaintiffs sued, arguing that mandatory vaccinations are unconstitutional.
• The next day, LAUSD issued a "clarifying memorandum" that said that employees who didn't want to get the vaccine could get tested. Thus, it argued, we're not imposing a mandatory vaccine.
• LAUSD sought dismissal - the complaint was either unripe or moot.
• District Court agreed and dismissed for ripeness ("because that policy was changed before it was ever enforced, the dispute remained unripe").
• After dismissal, LAUSD "reversed course again two weeks later[,]" to eliminate the testing option.
• A second lawsuit followed. This time the plaintiffs also alleged that the vaccine is not really a vaccine as that term has been commonly used, meaning something to prevent transmission. Instead, they alleged, the Co-19 was merely a treatment, not a preventative.
• LAUSD sought judgment on the pleadings, which the District Court granted. It relied on Jacobson and rational basis review. As long as there's a conceivable public purpose all's ok. And here it is conceivable that the mandatory vaccine policy would help the public health.
• Next stop, Ninth Circuit. After its answering brief "vigorously defended" the vaccine mandate without making any suggestion that the mandate might be revoked, the court heard oral arguments, with LAUSD confirming during argument that the policy was "still in place."
• After the arguments, however, LAUSD's lawyer (at least according to a declaration submitted by plaintiffs' counsel) said to him "What are you going to do when we rescind the mandate?" Slip op. at 11.
• Same day: LAUSD began the process to rescind, and less than two weeks later, LAUSD "voted to rescind the Policy[.]" But it still kept its options open, and cautioned that if the situation required a return to the vaccine requirement, "LAUSD would reconsider the Policy."
• LAUSD then asked the Ninth Circuit to dismiss, arguing that the complaint was moot: after all we reversed the policy, right?

The Ninth Circuit concluded that the case was not moot: LAUSD's actions came after the litigation was instituted, and did not fall under the "voluntary cessation" exception to mootness. In most cases, the defendant stopping the challenged conduct on its own does not moot a case, unless it is "reasonably clear that the challenged practice will not happen again," and that "any effects of the alleged violation must be permanently reversed." Slip op. at 13.

Here, the Ninth Circuit held, "LAUSD's pattern of withdrawing and then reinstating its vaccination policies is enough to keep this case alive." Id. The pattern here was that "[t]wice LAUSD has withdrawing its policy only after facing some litigation risk[,]" after which it returned "to its old ways." Slip op. at 14. The court characterized this as a "willingness to tactically manipulate the federal courts[,]" rendering "LAUSD's timing ... suspect." Id.

This conclusion was driven by a practical and common sense view of the government's  pattern of strategic litigation behavior (we'd call it "sandbagging"), and not by simply accepting its arguments about what it was up to:

Given the detailed procedural history summarized earlier, the record at least supports a strong inference that LAUSD waited to see how the oral argument in this court proceeded before determining whether to maintain the Policy or to go forward with a pre-prepared repeal option. LAUSD appears to have twice sought to manipulate the federal courts to avoid an adverse ruling on this issue. Moreover, the Board expressly reserved the option to again consider imposing a vaccine mandate. This confirms that LAUSD has not carried its heavy burden to show that there is no reasonable possibility that it will again revert to imposing a similar policy.

Id.

On the merits, the panel rejected Jacobson's "direct" application, concluding that Jacobson only governs when the government requires a vaccine, which is an inoculation to prevent the spread of a disease. This distinction is critical:

The district court relied on Jacobson to hold that the Policy was rooted in a legitimate government interest. Reilly, 2022 WL 5442479, at *5−6. But Jacobson does not directly control based on Plaintiffs’ allegations. In Jacobson, the Supreme Court balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease. 197 U.S. at 38. The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.” Id. at 31–32. Because of this, the Court concluded that the State’s interest superseded Jacobson’s liberty interest, and the vaccine requirement was constitutional. Id.

Plaintiffs argue that a “traditional vaccine” must provide immunity and prevent transmission, meaning that it must “prevent the spread” of COVID-19. Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient. And Plaintiffs claim that something that only does the latter, but not the former, is like a medical treatment, not a “traditional” vaccine. This interpretation distinguishes Jacobson, thus presenting a different government interest.

Putting that aside, the district court held that, even if it is true that the vaccine does not “prevent the spread,” Jacobson still dictates that the vaccine mandate challenged here is subject to, and survives, the rational basis test. The district court reasoned that “Jacobson does not require that a vaccine have the specific purpose of preventing disease.” Reilly, 2022 WL 5442479, at *5 (emphasis in original). It acknowledged Plaintiffs’ allegations that the vaccine did not “prevent transmission or contraction of COVID-19.” Id. at *6. But it declared that “these features of the vaccine further the purpose of protecting LAUSD students and employees from COVID-19,” and thus “the Policy survives rational basis review.” Id.

This misapplies Jacobson. Jacobson held that mandatory vaccinations were rationally related to “preventing the spread” of smallpox. 197 U.S. at 30[.]

Slip op. at 17-18. 

In short, "government's power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others" is not the same as "forced medical treatment" claimed to protect the recipient. Slip op. at 18. The property analogy is that you don't have a property right to use your property in a way that injures someone else's property, but it isn't a nuisance to make a use that is harmful to your property interests. That's your right.

This is a correct (narrow) reading of Jacobson, a case which, in our opinion, has been widely over-read (esp during the Co-19 lockdowns) to conclude that your life, liberty, and property could be curtailed as long as the government claims to be acting generally for the public health, and if taken to the logical extreme, in the public interest. That, in our view, is the limited exception swallowing the rule. But most courts have bought the argument. 

Before you get too excited about this, remember that this was up on appeal from a 12(b)(6) dismissal, so the complaint's factual allegations -- including, critically, the allegation that the Co-19 vaccine does not prevent the spread and only relieves symptoms -- are going to be subject to proof as the case progresses after remand. See slip op. at 19 ("We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true.").

A few thoughts for how this opinion might be useful for you takings mavens:

• Trial courts have no business evaluating the veracity of the factual allegations in the complaint, and Twiqbal doesn't change that by allowing a court to be skeptical under the guise of plausibility and act as a gatekeeper to screen the government from what the court views as claims that are unlikely to be proven. Yet we dirt lawyers know that in takings cases, trial courts do it all the time. Whether it is balancing the Penn Central factors at the pleadings stage, or the court apparently concluding that it doesn't buy the pleaded facts, courts are happy to bounce takings complaints at the pleadings stages. This opinion offers a better model.
• Courts often just take the government at its word. "Our law is ____." "Our procedures require ______." And the plaintiff's response that "what the government says its law is isn't really what its law says ... here, read it yourselves, Your Honors," and "the court is the expert on what the law requires, not the government" often fall on deaf ears. (It's also intellectually lazy, but you didn't hear that from us.) We see this most frequently in takings ripeness cases where the plaintiff says the government has taken a solid position about what uses are and are not allowed on the property, but then the government responds by asserting either that the plaintiff didn't follow the proper procedure to seek permission, or that the process isn't done just yet and the government has room to change its mind. There, courts frequently defer to whatever the government says the law or its own procedures require or even allow. Again, this case is a better model, with the court taking an active hand in evaluating for itself, and reaching its own conclusions about what the government did, and what the government's procedures are. 
• We often hear that when dealing with its constituents, government has an obligation to "turn square corners." But this case, in our experience, illustrates the reality. Government very often has its own interests in mind and zealously and aggressively scorched-earths it. It should not take the level of bad faith on exhibit in this case to convince a court that the government is more interested in playing games than it is a fair treatment of its constituents. For more, check our our colleague Deb LaFetra's recent Daily Journal piece, "Encouraging government lawyers to engage in the worst legal shenanigans" ("Playing games with people's constitutional rights is unworthy of our government, and their counsel.").

Be sure to check it out.

With both of the judges in the two-judge panel majority writing concurring opinions, and with a strong dissent, we don't anticipate that the panel opinion is going to be the final word in this one. Stay tuned.

Health Freedom Defense Fund, Inc. v. Carvalho, No. 22-55908 (9th Cir. June 7, 2024)

Unpublished Wednesday: Eviction Moratorium Taking, Excessive Fines Taking, And 1983 Zoning Statutes Of Limitations

Here are three federal circuit opinions, all unpublished. None of them worthy of a stand-alone post, but also not to be overlooked entirely.

• GHP Management Corp. v. City of Los Angeles, No. 23-55013 (9th Cir. May 31, 2024): Lessors "failed to state a claim for a Fifth Amendment per se physical taking[,]" in their challenge to LA's eviction moratorium. You know why: you waived your right to exclude by renting your properties, so the government prohibiting you from getting breaching tenants out is merely a regulation of the landlord/tenant relationship. Yee.
  
• Innova Investment Group, LLC v. Village of Key Biscayne, No. 21-11877 (11th Cir. May 29, 2024): After the Village tagged Innova with a NOV and $4k fine for not obtaining an interior demolition permit and Innova failed to correct the violations within the 60-day deadline, the Village imposed $4k per day fines and "aggregate penalties of $924,000 and it has claimed more than $1.2 million in interest for each day the penalties have gone unpaid." Six years later, Innova sued, asserting the Village violated the Excessive Fines Clause. And yes, there's a takings claim as well. The Eleventh Circuit affirmed the district court's dismissal because the claim should have been brought long ago. Florida has a four year statute of limitations, which means that the section 1983 claim needed to be brought within four years of November 2012, when Innova "should have known how much money it would owe the village[.]" 
  
• Handsome, Inc. v. Town of Monroe, No. 23-711 (2d Cir. May 29, 2024): landowner needed a special use permit to construct industrial buildings, which was granted subject to several conditions. After the owner and the Town went back-and-forth in hearings and permit denials and grants-with-conditions, Handsome's state court lawsuit ended up in the Connecticut Supreme Court which held that Handsome did not have standing because it lost title to the property during the course of the case. Another state court action alleging Due Process and Equal Protection claims followed, after which the Town removed the case to federal court. The Second Circuit summarily affirmed the District Court's grant of summary judgment in the Town's favor, primarily because the claims were time barred. The court rejected Handsome's claim that these were continuing violations. The court also rejected the substantive due process claim, because (you guessed it) Handsome didn't have a property interest in a permit because it wasn't entitled under state law to a permit.

Check 'em out.

Devillier v. Texas (Part II): After Rope-a-Dope By Texas, Unanimous SCOTUS Saves The State Immunity Issue For Later

Note: this is the second of our posts on the U.S. Supreme Court's recent decision in Devillier v. Texas. The first -- which tries to put the weird post-opinion controversy over which party "won" at the Supreme Court into its proper perspective -- is here.

In this post we'll cover the case's facts, the odd procedural path that Texas dragged everyone through (only ultimately abandon a key position once at the Supreme Court), and what the Court actually decided, if anything.

The State Flooding Private Property is a Taking Under Everyone's Constitutions

After the Texas DOT flooded his property as part of a freeway project by creating a dam that caused rainwater to collect on his land, Devillier and other landowners sued the State of Texas for a taking, aka inverse condemnation.

The state flooding someone's property is one of those "classic" cases which are considered takings, triggering the obligation to provide compensation to the owner, even where the government has not formally instituted eminent domain. 

But Texas didn't acknowledge its obligation to provide compensation, so Devillier sued Texas for a de facto taking seeking just compensation under both the U.S. and Texas Constitutions.

Devillier Sued Texas For Federal Compensation in Texas's Own Courts

Devillier sued in a Texas court. Importantly, he did not seek redress for his federal compensation rights under a statute, but asserted his right to just compensation directly under the U.S. Constitution. He did not (because he could not) bring this federal constitutional claim pursuant to the commonly-employed procedural vehicle for raising such claims, a post-Civil War civil rights statute 42 U.S.C. § 1983. There, Congress created a cause of action subjecting "any person" who violates someone's federal rights "under color of state law" to liability for legal and equitable remedies.

We often see section 1983 employed in takings cases seeking Fifth Amendment just compensation, but only when the government alleged to be doing the taking is a local (municipal) government. Why? Because the Supreme Court has held that states themselves and their officials are not "persons" covered by the statute.

So if you want to sue a state for just compensation because it has taken your property, you can't use section 1983, and must look elsewhere for the authority to do so.

Devillier: I Don't Need Texas's Preclearance to Sue Texas for Federal Just Compensation (in a Texas Court)

In most cases, before you can sue the government for money it must consent to be subject to lawsuits. Sovereign immunity, grounded in notions that the Crown can do no wrong, seems like both a very un-American concept, and very anachronistic. But in American law, the doctrine is very robust. One question in takings law has plagued the lower courts: does a property owner need the government to waive sovereign immunity before an owner can sue for compensation for a taking?

Devillier thought he didn't need seek permission from either Congress or Texas to sue for just compensation. Government doesn't have the power to take property without providing compensation, and every right has a remedy doesn't it? Or as it is often phrased, a waiver of sovereign immunity isn't necessary to sue for just compensation.

Why so, if a waiver is needed in nearly every other area of law? Because the text of the Fifth Amendment (which is a limitation on the states via the Fourteenth Amendment) lays out the remedy: "nor shall private property be taken for public use, without just compensation." Thus, the U.S. Constitution itself provides him all the authority a property owner needs to bring a claim for compensation if the government has taken property.

He also asserted that the Supreme Court has long described the Just Compensation Clause as "self-executing," which in his view (and the view of many others, us included) means that the Fifth Amendment of its own force and authority allows owners whose property has been taken to sue for just compensation.

That, Devillier argued, means that if Texas had taken private property for public use but hadn't acknowledged its obligation to provide compensation, he could sue for compensation whether or not Texas had consented. Especially in one of Texas's own courts.

Texas's Two-Step: Removal to Federal Court

Before the state trial court got to that question, however, Texas (somewhat unusually) removed the case to federal court. Recall that in certain cases filed in state courts, the defendant has the final choice of forum (state or federal court). If a case could have been brought in federal court in the first instance -- in other words, there is federal jurisdiction over the claim the plaintiff asserts, but the plaintiff has chosen to bring the claim in state court -- the defendant may "remove" it to federal court. Texas did so, alleging federal question jurisdiction.

Check out the Master Complaint filed in federal court. Scroll down to page 25, and Count 2, paragraph 78, for how Devillier pleaded the federal takings claim:

In addition to, and in the alternative to, their claim under the Texas Constitution, Plaintiffs seek recovery for the State’s permanent and/or temporary taking of their real and personal property without paying just compensation in violation of the Takings Clause of the Fifth Amendment of the U.S. Constitution, a self-executing constitutional provision applicable to the State through the Fourteenth Amendment of the U.S. Constitution.

District Court: Just Compensation Clause is Self-Executing

After it removed the case to federal court, Texas asked to dismiss Devillier's case. Here's how the Magistrate Judge described Texas's request:

In its motion to dismiss, the State argues that Plaintiffs’ federal inverse condemnation claim should be dismissed for a number of independent reasons. First, the State contends that Plaintiffs’ federal takings claim cannot be brought directly under the Fifth Amendment, but rather must be brought under 42 U.S.C. § 1983. According to the State, this dooms Plaintiffs’ federal takings claim because § 1983 claims cannot be brought against a state actor. Second, the State argues that Plaintiffs’ federal claims are barred by the applicable statute of limitations. Third, the State insists that Plaintiffs have failed to properly plead a valid federal inverse condemnation claim.

Pet. App. 12a.

The Magistrate recommended denial of Texas's motion. The U.S. District Court agreed, concluding that the Just Compensation Clause is self-executing and thus Devillier had all the permission he needed.

Fifth Circuit: No Cause of Action, No Jurisdiction

But when Texas appealed to the Fifth Circuit, that court held that the federal courts lacked jurisdiction to hear Devillier's federal claim for compensation because property owners like Devillier who claim to have suffered a taking at the hands of a state government do not have a "right of action for takings claims against a state[.]"

Texas, the court concluded, "recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking; nothing in this description of Texas law is intended to replace its role as the sole determinant of Texas state law."

The Fifth Circuit concluded that the case belonged in Texas state courts (where Devillier had originally brought it, remember) and sent the case back to the federal trial court with instructions to bounce it out of federal court, and "return this case to the state courts."

Texas To Supreme Court: Devillier Is Required To Vindicate His Federal Constitutional Rights in a Texas Court Under Texas Law

Devillier asked the U.S. Supreme Court to review this Question Presented:

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

Once at the Supreme Court, Texas continued to argue that you may possess a constitutional right -- and a self-executing remedy -- but that's not enough because you also need a cause of action. What that means is you need to have some ability to bring a lawsuit to enforce your rights and obtain a remedy, and for that you must have some sort of government authorization to use the courts.

But Texas seemed to subtly change its tack. It now claimed to be a champion of property rights! It opened its arguments with this astonishing claim (we say astonishing because it was Texas which had removed Devillier's lawsuit from a Texas court to the federal courts and then sought to dismiss it, a very cynical and wasteful tactic and hardly the kind of thing you'd think a property rights champion would do):

MR. NIELSON: Mr. Chief Justice, and may it please the Court.

The Court will be hard-pressed to find any government more committed to property than Texas. The Texas constitution is more protective than the federal Constitution, and Texas courts under a Texas cause of action adjudicate takings claims under both constitutions.

This appeal thus isn't about substantive rights. All Petitioners had to do was use Texas's cause of action.

Tr. at 38-39 (emphasis added).

Rope-a-Dope

Hold on, "all Petitioners had to do was use Texas's cause of action?" Didn't we just say that Devillier filed his lawsuit in a Texas court? Yes, he brought a Texas claim for compensation under the authority of Texas law. And a federal claim for compensation under the authority of federal law (the U.S. Constitution) in a Texas court. Wasn't that enough?

No. Texas claimed that suing for a federal remedy in a Texas court was only a half-measure. Instead, it asserted that Texas law recognized a property owner's ability to sue Texas for federal compensation, so Devillier needed to make clear in his complaint that he was bringing his federal constitutional claim under the authority of Texas law (and Devillier merely bringing his federal claim in a Texas court was not enough to make that clear). If Devillier had only pleaded clearly that he was asserting his federal claim under state procedure, then Texas would have welcomed his federal claim!

Or so it said. It wasn't at all clear that this had been Texas's position all along, and from our perspective it reeked of a late-breaking strategic concession to keep the court from deciding the Question Presented. After all, if Texas had made the position it took in Supreme Court clear when the case was in the lower courts, then everyone could have avoided the sturm und drang for the past several years, and the parties' and the Court's time would not have been wasted.   

There were some encouraging signs during the arguments that the Court was skeptical. Several of the Justices, for example, taking Texas to task for shifting the lawsuit from one where Texas argued it could be sued (state court), to one where it argued it couldn't (federal court) -- and then arguing that Devillier could have brought his claim in a Texas court. But like all SCOTUS oral arguments, the Devillier arguments concluded without a decision. All we could do was wait.

Did the Court Actually Decide Anything Other Than Which Party Won the Appeal? (Hint: No)

Last week, we were rewarded with a decision that didn't really decide much of anything. Make no mistake: Devillier definitively won the Supreme Court phase of the case. The Court vacated the dismissal of his case, and sent it back down for more, including explicit directions to allow Devillier to include in his complaint the magic words that Texas claimed were missing. But did the Court decide the Question Presented (does an owner who seeks just compensation for a taking need the legislature to recognize a cause of action)?

No, the unanimous Court said it accepted Texas's oral argument concession that Devillier has always possessed a cause of action to sue for federal compensation because Texas recognizes inverse condemnation under state law. As a consequence the Court concluded there was nothing for it to decide.

The opinion acknowledged that it continues to be a good question whether a property owner needs the government's permission in order to sue for just compensation for a taking. But because Texas (finally) admitted that Devillier does have a procedural vehicle by which he may seek to vindicate his right to compensation, that issue is a no-go here:

Texas state law provides a cause of action by which property owners may seek just compensation against the State. As Texas explained at oral argument, its state-law inverse condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. And although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured this Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one. This case therefore does not present the circumstance in which a property owner has no cause of action to seek just compensation.

Slip op.at 6-7.

Instead, the Court said that it would wait for a case in which it can be satisfied "of the premise that there is no cause of action." Slip op. at 6. The Court vacated the Fifth Circuit's judgment and remanded the case "for further proceedings consistent with this opinion." Slip op. at 7.

The Supreme Court phase of the case thus ended disappointingly: it's satisfying that Devillier has his win and can continue the fight; but we have no answer from the Supreme Court on the still-open question. What if a state doesn't recognize a state cause of action to raise a federal compensation claim, can a property owner still sue for compensation? 

SCOTUS: "[T]he absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action."

There are some hints in the decision (dicta), although it is too soon in our thinking to tell what those hints eventually might mean. There are a lot of questions remaining.

        1.  Future cases?

For example, the Court noted that the question of whether the Constitution itself provides a cause of action for compensation "do[es] not arise when property owners have other ways to seek just compensation." Slip op. at 6. And the "other ways" here is a state law cause of action in state court. Does that mean that if a state recognizes an inverse condemnation cause of action like Texas, then there isn't a claim directly under the Takings Clause for compensation?

No, the Fifth Amendment itself may recognize a cause of action, irrespective of state law and section 1983. The opinion recognized that "[t]he absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action." Slip op. at 6. It's just that, like here, the issue will never come up in a case where a state recognizes a process under its own law for a property owner to seek federal compensation. That question will only be answerable in a narrow band of cases where a state does not recognize an inverse condemnation cause of action at all, or if it does, limits the remedy to state constitutional law.

Are there states whose law like that? Yes, we can think of a few. (Stay tuned for more on that.)

        2.  Williamson County Revived?

Next, doesn't the Court's rule in Devillier -- that if state law recognizes a cause of action for federal compensation, then a property owner can use the state's procedures to vindicate her rights when a state is the defendant -- revive the "state procedures" requirement from Williamson County?

Sort of looks like the same requirement, but no. Before the Court overruled the state procedures requirement in Knick v. Township of Scott, it required property owners to chase state procedures for compensation before coming to federal court on a takings claim. That rule applied to all takings claims, against both state and municipal defendants. Devillier only applies when a state is the defendant, and says if a state recognizes a way to prosecute a claim for federal compensation, then property owners need to use that process to vindicate their federal rights. That way, the Court can avoid the broader questions these issue present -- such as whether a property owner can sue a State in federal court for compensation -- until the right vehicle is presented.

        3.  So What Does "Self-Executing" Mean? 

The Court didn't really clarify what "self-executing" means. At the very least, it means that property owners must have a cause of action for federal just compensation in some court. If a local or municipal government takes your property, you already have a section 1983 cause of action which can be prosecuted in federal court (federal question jurisdiction) or in state court (concurrent jurisdiction). If a State takes your property and state law, like Texas, recognizes a cause of action that "provides a vehicle for takings claims based on both the [State] Constitution and the Takings Clause[,]" slip op. at 7, then go to state court. But if a State takes property without paying, but does not recognize a federal cause of action to vindicate that right, then the property owner may go to [court to be determined]...

        4.  No More Takings Games?

By declining to consider the Question Presented, and instead holding that Devillier's original claim and his choice of forum are to be respected, the Supreme Court seems to have concluded that the last few years of federal court litigation caused by Texas’s removal and failure to make its position clear were utterly needless, and that Texas should have just let Devillier proceed with his original choice to sue in a Texas court.

The "removal game" (where owners file for compensation in state courts, only to see the government remove the case to federal court and seek dismissal), a tactic the Court has viewed skeptically before, is now quite clearly not at all favored by the Justices. This opinion seems very much like a pushback on the tactics Texas deployed here.

Summing Up

We don’t think that Devillier moved the needle very much at all on the substantive question the Court declined to answer: does the Just Compensation Clause recognize the right of property owners to seek compensation of its own force? That question, and the even larger issue of sovereign immunity, are still very much in play.

As a U.S. Senate report noted once, "'Sovereign immunity or the infallibility of the Crown, so to speak, became embedded in the common law of England and so came into our American law,' but 'this principle is not appropriate where the courts are established … to serve the people.'"

Devillier v. Texas, No. 22-913 (U.S. Apr. 16, 2023)

In Devillier v. Texas, The Winner Takes It All (Part I)

The winner takes it all
The loser's standing small
Beside the victory
That's her destiny

Note: this is the first of a short series of posts on the U.S. Supreme Court's recent decision in Devillier v. Texas.

In Part II, we'll cover the case, the procedural path that Texas dragged everyone through, only to abandon it at the Supreme  Court), and what the Court actually decided, if anything,

Three Common Questions for Lawyers

In the classroom, I often ask students to use their intuition to guess the three most common questions that lawyers almost always get from potential clients. Put yourself in a client's shoes: what would you want to know?

The students mostly get it right. "What's this going to cost?" Check. "How long will this take?" Check. And perhaps most obviously, "What are my chances of winning?"

That last question -- am I going to win? -- is perhaps the most common. And when they ask, I'm thinking that that most clients don't have an overly nuanced approach to what it means to "win" a case: I get what I want; I keep on fighting; I recover just compensation; I get vindication from the justice system; I lose but get my day in court, even.

It doesn't seem all that difficult to figure out what a "win" looks like, does it?

Deviller v. Texas II: the Afterfight

So you might think that after the U.S. Supreme Court issued a unanimous opinion in Devillier v. Texas (that's 9-0 if anyone is counting), a property rights case we've been following, you'd be able to figure out which party "won" in the Court.

Nope. It turns out that like the post-Oscar afterparties, there's a weird post-opinion afterfight going on between Devillier's lawyers and the Texas Attorney General. Before the ink (ok, toner) was seemingly dry on the opinion, a dispute broke out on social media over who "won" the Supreme Court case after the AG issued a press release and tweeted about what he claimed is Texas's big win:

Texas: We're down for the big win!

Devillier: Not so fast, pard. 

So Who "Won?" (Hint: Devillier)

We really don't want to get bogged down in secondary dispute who won a unanimous Supreme Court decision. After all, the more interesting question in many Supreme Court cases is what the decision means to a wider scope of players than just the parties to the case, and not which litigant can legitimately claim to have won a phase of the litigation.

Besides, we don't think it's that hard to figure out who prevailed. Prior to the Supreme Court rendering its decision, Devillier was facing legal oblivion: the Fifth Circuit had dismissed his lawsuit. As in gone. Bye bye. Get outta here. The Supreme Court undid that (vacated the lower court judgment, in technical terms), and sent the case back down the federal court chain for further proceedings. It may even end up eventually back in state court right where Devillier started. In short, Devillier is back from the brink as if the last few years never happened, and gets to continue his legal pursuit of Texas for just compensation. That sure looks like a "win."

And Devillier's lawsuit will continue mostly in the in way he set it up; yes, it is in federal court (at least for the time being), and not a Texas court where Devillier originally brought it, but (a) if it stays in federal court maybe the federal forum will be more favorable so he might be in an even better position than where he started; (b) the case might eventually go back to state court, which is literally Square 1 for this lawsuit; and (c) the Supreme Court ordered the lower federal courts to allow Devillier to amend his complaint to make it clear he is asserting his federal right to just compensation (but, kinda weirdly, pursuant to a Texas cause of action), a procedure Texas belatedly but ultimately conceded in the Supreme Court, something it had not earlier (more on that later). We'd call that a Devillier "win" also. And any time a property owner can convince all nine Supreme Court Justices reject a government's denial of its obligation to provide just compensation when it has taken property, that seems like a good thing.  

Spin City?

If so, then how could Texas with a straight face claim this was a big win?

On one hand, it could be written off as the very cynical product of political spin. Elected AG's are known as "Aspiring Governors" for a reason. On the other, could Texas legitimately claim that it got what it wanted from the Supreme Court, and that's a "win?" For that, you have to start viewing the litigation like a lawyer and not a normal person. Especially as a lawyer for a defendant. In those cases, it often it isn't about the final outcome of the case as much as it is about damage control, minimizing your losses.

Or (as we suspect here) seeing how long you can slow-walk a procedural strategy and hope the other side eventually bleeds out and gives up, broke and exhausted. And if the owner somehow holds on through years of the procedural nonsense you throw at him, you can then offer up a late-breaking concession and ask the reviewing court to avoid the issue. Legal rope-a-dope.

Maybe the Supreme Court being convinced to not decide in this case (but to save it for the future) whether the Fifth Amendment itself allows owners to sue for compensation when a state takes their property, was enough for Texas to claim a "win."

Our bottom line is this: the more important question than which party won the Supreme Court phase of the litigation was did the Court actually decide anything beyond which party won the Supreme Court phase of the litigation? If so, then what? And what does the Devillier case mean for the future, if anything? So let's shuck this "who won" distraction and focus on what is important, if anything, about the Supreme Court's decision.

* * * *

In our next post, we'll cover the case, the weird procedural path that Texas dragged everyone through (only ultimately to say "nevermind" in the Supreme Court), and what the Court actually decided, if anything.

Devillier v. Texas, No. 22-913 (U.S. Apr. 16, 2023)

Today Is Hawaii's Secular Good Friday Holiday - What's Up With That?

Even if the world were open today, the doors to most Hawaii state, county, and city offices would still be locked. Because Friday, March 29, 2024 is the day that Hawaii celebrates Good Friday.

Yes, Good Friday is an an official state-sanctioned holiday in the 808 area code, so we're reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don't really commemorate Good Friday as the crucifixion date, and it is just coincidence that the official State "spring holiday" occurs on the same day. (And this being Hawaii, in the end it's really a public worker union thing like a lot of things.)

Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. [Barista's note: here's a case we argued a couple of years ago in which the difference between a state holiday and a federal holiday made a difference in the way a voter's appeal time was calculated.] 

The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions (also known as collective bargaining -- and here it was you thought that elected representatives made laws).

The Establishment Clause, which has been incorporated against the states by the Due Process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called wall of separation between church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance.

The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to ensure that public workers have more days off, not to make sure they were religious: 

[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries. Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.

This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since  a clearly secular purpose  for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.

An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.

The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991). The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t is of no constitutional moment that Hawaii selected a day of traditional Christian worship, rather than a neutral date, for its spring holiday once it identified the need."

The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose: 

We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering for holiday status days on which many people choose to be absent from work for religious reasons. That the state legislature was able to accomplish its secular purpose and at the same time accommodate the widespread religious practices of its citizenry is hardly a reason to invalidate the statute.

(citation omitted).

One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion: 

The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii's endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone. Because I believe that such a state establishment of religion violates both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.

(Yeah, Lemon is now in the dustbin of legal history, but the new establishment test wouldn't likely change the outcome, would it?)

The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.

So even though you don't physically go shopping these days (mahalo, interwebs), you might go to the beach today or simply want to take it easy. But if you do use that time to go to church -- either in person or virtually -- it is "of no constitutional moment." Because it is plausible, isn't it, that the State had a secular purpose when it officially sanctified "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?" 

As the Church Lady would say, "how conveeeeenient."

It's OK To Do Good Things For Bad Reasons: CA2 On Spite Takings - As Long As Taking Is For A Public Use, The Real Reason Is Irrelevant

In Brinkmann v. Town of Southold, No. 22-2722 (Mar. 13, 2024), the U.S. Court of Appeals for the Second Circuit addressed a longstanding issue left unresolved by the Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005): is it enough that a condemnor's professed use qualifies as a public use, or may a property owner nonetheless challenge a taking on the grounds that the real reason for the taking is not a public use?

Yes, the "pretext" issue is back!

The facts of the case are pretty straightforward. The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared (you know the drill): a store like this would result in too much additional traffic (traffic study said no), special permits and impact studies are needed (the owners began to comply), a moratorium on building permits in a one-mile radius, "despite the county government's finding that the moratorium lacked supportive evidence' (oops). Slip op. at 3. Even a failed attempt by the Town to buy the property itself before the Brinkmanns closed their purchase.

When all those didn't succeed in stopping the development, the Town began proceedings to forcibly acquire the land by eminent domain. What for, you ask? A public park. More precisely, a "passive use park." What's that, you ask? It isn't what you might think make a typical public park. Things like public facilities, art installations, walking trails, recreational and entertainment spots and stuff. No, this was to have none of those things, it was to be "a park with no significant facilities or improvements," also known as a big open, empty field. 

Next step was a federal court section 1983 action by the Brinkmanns, "alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment." Slip op. at 4. The Town may have claimed that the taking was for a "classic" public use (a public park, even if it is a "passive use park"), but the Town's actual reason, the Brinkmanns alleged, was what we call a "spite taking" -- the Town didn't like the use we're making or going to make of our property, so decided to take it from us. This was the real motivation to take our property, and that's not a public use, according to the complaint. The district court wasn't having any of it, and dismissed for failure to state a claim.

A divided panel of the Second Circuit affirmed. This "pretext" thing you allege, property owner, is merely a "passing reference." Slip op. at 6 (quoting Goldstein v. Pataki, 516 F.3d 50, 61 (2d Cir. 2008)). And we all know that when the legislature has declared that a certain use or interest is a public one, the courts have no role because "the public interest has been declared in terms well-nigh conclusive." Slip op. at 7 (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)). Taking property by eminent domain is just legislation, property owners, so go make your fight in the political process. Don't bother the courts.

"There can be no dispute that a public park, even an unimproved one, is a public use." Slip op. at 8. The court distinguished between pretext for private benefit, and pretext for some use that isn't public:

While in some cases there may be plausible allegations that the exercise of eminent domain supposedly for a park had been pretext for an intention to use taken property for a different--and private--purpose, Plaintiffs’ complaint does not allege that the Town meant to confer any such private benefit or intends to use the property for anything other than a public park.

Id.

The majority focused on the complaint's assertion that the Town's supervisor stated, "I will never allow anything to be built on this property." Id. In the majority's view, that statement revealed that the Town's motivation was just fine, because it didn't matter that the taking was for spite, as long as it wasn't for a private use or purpose. As the opinion put it, "Plaintiffs have not pointed to any Town purpose that violates the Takings Clause." Id.

In short (and this is our characterization, not the court's), the Fifth Amendment contains a Public Use Clause, not a "Good Motivation Clause." Or if you want an even shorter story: rational basis review.

There's no "purity of motives" requirement, nor any real way to figure out why "[d]ifferent legislators may vote for a single measure with different goals[,]" the majority concluded.  Slip op. at 11. The Town may have "bad reasons for doing good things." Id. This is an objective test, not a subjective one, and all that matters is what the Town did, not what it or its officials might have thought.

The majority rejected other cases that might seem to have gone in a different direction -- including this one from Colorado and this case from Pennsylvania -- that are about these type of "bad faith" takings. The court distinguished each case, concluding they were based on state constitutions, state statutes that allow a more searching judicial inquiry into motive, or regulatory takings doctrine.

The majority also snarked at the dissenting judge's assertion that the "passive use park" (what the dissent labeled a "fake park") was pretty good evidence of improper motive:

So long as public land is open to the air and to the people, it is a park; and that, of all things, cannot be faked. The author of the dissent may come to 12500 Main Road, Mattituck, NY, and he may walk the park, breathe its air, or spread his picnic upon it. There is nothing Fake about it.

Slip op. at 24-25.

The majority's big vibe was that if the Town says it wants the land for a park, then who cares if the Town might have other reasons? That's a rabbit hole where the majority has a long way to fall before reaching the bottom. For that bottom, you need look no further that California's Bruce's Beach, where the taking was for a public park, even though the real motivation was to deprive the African-American owners of the property. A classic "spite taking," if we're talking "classic" takings. The Brinkmann majority was quick to point out, however, that racially discriminatory takings are no good) because a taking must be otherwise in accordance with law before the courts apply rational basis review. To which we ask why is that only an Equal Protection problem and not also a Public Use problem?

The dissenting opinion by Judge Menashi focused on the mechanics of delving into bad faith takings. There's a lot there, so we're going to cover the dissenting opinion in a separate post.

Stay tuned, something tells us this case isn't over yet.

Brinkmann v. Town of Southold, No. 22-2722 (2d Cir. Mar. 13, 2024)

Coming And Going: Eleventh Amendment Trumps Fifth Amendment - States Must Consent To Be Sued In Federal Court, Even For Just Compensation

You'll want to check out the U.S. Court of Appeals' opinion in Gerlach v. Rokita, No. 23-1792 (Mar. 6, 2024), even though it mostly retraces grounds already tread by other courts.

The takings claim was based on the actions of Indiana government officials who didn't give the interest earned on unclaimed funds to the owner of those funds. The court got the property owner coming and going: it held the claim for declaratory and injunctive relief was moot, and also that the claim for just compensation could not be pursued in federal court (Eleventh Amendment). In short, no claim at all.

First, some background. After a specified period of inaction, Indiana takes custody of things like unclaimed wages, unclaimed insurance proceeds, and uncashed public entity checks. These funds go into a special account, and owners may make claims to recover their property. Any excess in this account over what is returned to claiming owners goes into an abandoned property fund. From time to time, the state Treasurer transfers those funds to the state general fund. But after a successful lawsuit challenging this practice, the state began paying interest on property held in the fund, as long as the property was collecting interest prior to the state taking custody. Later, the courts held that all reclaimed property is entitled to interest, whether or not it was interest-bearing before the state got it.

Back to our case. Gerlach reclaimed dormant property valued at $100.93 and Indiana dutifully gave it back to her. But it did not also include interest. Federal court takings lawsuit followed, which asserted a right to declaratory and injunctive relief against the state Treasurer and a right to just compensation.  

The officials sought dismissal. The declaratory and injunctive relief was moot because the state adopted a policy at or after the time the plaintiff filed the lawsuit under which the state would provide interest on all held property. Affirmed: by the time the case reached the Seventh Circuit, the Indiana Legislature had adopted a statute to the same effect.

The claim for just compensation crashed on familiar shoals, the Eleventh Amendment. The Seventh Circuit first noted that her claim was based directly on the Takings Clause, and that she asserted she could do so because the requirement to provide compensation is self-executing. The court sidestepped this issue, noting that the Devillier case, argued but not yet decided by the Supreme Court, will likely resolve this question.

That question didn't really matter, because the Eleventh Amendment "disposes of Gerlach's claim."

Indiana enjoys “the privilege of the sovereign not to be sued without its consent.” Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 520 (7th Cir. 2021) (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253 (2011)). The Eleventh Amendment prohibits suits against a state in federal court, whether by its own citizens or citizens of another state. U.S. Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). That protection extends to state employees sued in their official capacities. See Lewis v. Clarke, 581 U.S. 155, 162 (2017) (“In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.”).

Slip op. at 7.

What about that exception to the immunity, when state courts are not available? "We are not persuaded," held the Seventh Circuit, because "Indiana courts are open to hear Gerlach's claim for compensation." Slip op. at 8.

This one joins other courts which have gone the same way. It also adds to our sense that after Knick when we predicted that the Supreme Court's opening back up the federal courthouse doors wasn't the end of the procedural gamesmanship, but merely the opening of a new chapter? And that it was time to dust off your old Federal Courts hornbook, because things like the Eleventh Amendment, Rooker/Feldman, abstention, and similar, were going to spring up as the way to avoid the merits of takings claims? That's we're going to be experiencing Williamson County, Phase 2? Here you go.

Stay tuned.

Gerlach v. Rokita, No 23-1792 (7th Cir. Mar. 6, 2024)

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)

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)

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)

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)

Dig Property Rights? Join Our Firm As A Courtroom Property Rights Lawyer

If you dream such dreams as this photo, read on.

My law firm, Pacific Legal Foundation, is on the hunt for lawyer to join our Property Rights group (yours truly is the Director of Property Rights Litigation, so you will be working with me and the other takings and con law mavens in our practice). Here's the full description of the spot:

You: An entrepreneurial freedom fighter with a passion for property rights litigation. You work with more senior-level attorneys to find and win cutting-edge property rights cases in trial and appellate across the country. You work as a part of a collaborative team, but are also self-motivated and able to work independently with minimal supervision. You are eager to learn, relentless, and a focused lawyer.

Them: Bureaucrats, city councils, mayors, governors, and federal agencies stripping Americans of their rights every day. There’s a lot of government overreach out there, and it’s backed by seemingly endless resources. But fortunately, like all lumbering giants, abusive government is most vulnerable when countered by individuals who act strategically and nimbly, take calculated risks, have each other’s backs, and are confident in, and passionate for, the cause—the very sort of property rights swashbucklers we employ in spades here at PLF.

Us: We fight back. Pacific Legal Foundation is the nation’s first and most successful public interest law firm dedicated to vindicating individual liberty and protecting the fundamental right to property as the “guardian of every other right.” PLF has an unmatched record in the United States Supreme Court, with 17 victories in the Court. We also are actively litigating more than a hundred cases in trial and appellate courtrooms across the nation.

We are a next-generation public interest law firm. What does “next-generation” mean for a legal nonprofit? It means we aren’t interested in doing the same thing as everyone else. We aspire to be the best player in a constantly changing game.

Here’s what you get to do in this role:

You will be a courtroom lawyer in PLF’s Property Rights Practice Group. From Nollan to Koontz to Knick to Cedar Point Nursery to Tyler, PLF’s property rights litigation is unparalleled. You will help find and win the next important Supreme Court property rights case, becoming recognized as a nationwide leader on property rights litigation. Occasionally, You will have opportunities to speak at conferences or with the media about your cases or important property rights issues.

You will be a key contributor to PLF’s property rights practice group. You will work in teams with junior and senior attorneys, growing in your expertise and knowledge and elevating the team’s efforts to defend property rights. You will have the latitude to think big and the resources to execute. At PLF, you will be at the forefront of shaping property rights for all Americans.

In a nutshell, we’re seeking someone passionate about liberty and property rights, someone who is magnanimous, and someone who is a bold and relentless freedom fighter.

Getting down to brass tacks, your specific job duties likely will include:

• Winning property rights cases! Finding, developing, and litigating important property rights cases.
• Working with other attorneys to develop and litigate PLF’s property rights cases to protect the constitutional rights of Americans.

Qualifications

• 1-3 years of litigation or judicial clerkship experience
• Passion to litigate property rights cases
• A deep understanding of the moral and constitutional basis for property rights is a huge plus
• A track record of successful legal work
• Outstanding interpersonal communication skills
• A knowledge of, and passion for, the ideas of freedom and individual liberty
• The ability and willingness to travel approximately 10% to 15%

General Information

Pacific Legal Foundation identifies and litigates important legal issues to set landmark precedents that benefit Americans nationwide. Using strategic and principled litigation, communications, and research, we battle for freedom in the nation’s courts and the court of public opinion.

As a national nonprofit organization, PLF has brick-and-mortar offices in Sacramento, California; Arlington, Virginia; and Palm Beach Gardens, Florida, although approximately half of the staff work from home offices across the country. You can work physically in any of our offices or request to work virtually. This position is particularly suited for a lawyer who would like to be in one of our offices, or who is a focused and relentless self-starter eager to take advantage of our cross-country virtual office environment by proactively collaborating and communicating with colleagues, clients, and other professionals.

This is a full-time, permanent position. PLF is committed to recruiting and retaining the highest-quality talent available nationwide, and we offer a total compensation package that includes a competitive salary, medical and dental insurance, and employer-paid retirement savings. We take work-life balance seriously through our generous paid leave and flextime policies. We have a flexible, collaborative, positive, and collegial work environment. We take pride in investing in your future and encourage internal advancement. PLF is the place for someone principled, tenacious, and determined to succeed in positively shaping the future of our country and restoring real limits on government power. Join us.

To Apply

Qualified candidates should submit the following application material:

• Your resume or C.V., including your experience in the liberty movement and relevant professional experience.
• A cover letter explaining why PLF is the place for you, why you want to fight for liberty, and what distinguishes you from typical applicants; your letter should detail your courtroom experience, including any experience in trial preparation and civil discovery.
• A recent writing sample, no longer than 10 pages, that demonstrates your analytical and advocacy skills.

More here, including a link to submit your application packet.

If you fit the bill, here's your chance to join us.

Devillier v. Texas Argument Preview: Do Courts Need Congress' Permission To Enforce The Right To Just Compensation?

"No need to ask, he's a smooth operator..."

On Tuesday, January 16, 2024, the Supreme Court will hear arguments in a case we've  been following closely because it involves the fundamental limitation on the sovereign power to take private property. In our system, the sovereign indeed has the power to take private property against the will of the owner, but only if the taking is accompanied by just compensation.

Before we go on, a disclosure: we filed an amicus brief supporting Devillier's arguments, so we've have an obvious bias. Special kudos to our law firm colleagues -- and self-executing Just Compensation mavens -- Deb La Fetra and Kady Valois for this brief.

Texas Flooded Devillier's Property

Here are the facts in Devillier v. Texas. As part of a road project, the Texas Department of Transportation caused Devillier's property to flood. The state flooding someone's property is one of those "classic" cases what are deemed to be takings, triggering the obligation to provide compensation to the owner. But Texas didn't do so, so Devillier sued Texas in a Texas court for inverse condemnation, seeking just compensation under the U.S. and Texas Constitutions. Importantly, Devillier did not seek redress under any statute, but asserted that his right to just compensation directly under the U.S. Constitution.

Removed! Texas Avoided Its Own Courts

The presence of a federal claim in state court meant that as the defendant, Texas had the choice to remove the case to federal court (a choice it alone could make). Which it did. Texas then asked the federal court to dismiss the lawsuit, arguing that absent some legislative authorization to obtain redress from the State, that the court could not consider Devillier's claim.

Devillier responded that the U.S. Supreme Court has long held that the Just Compensation requirement in the U.S. Constitution is "self-executing," meaning that by its own force the Takings Clause recognizes a civil claim for its breach (and the Fourteenth Amendment expressly applies that requirement to States and their instrumentalities (such as TDOT).

Fifth Circuit: No Cause of Action For Compensation

The Fifth Circuit disagreed with Devillier, and held that federal courts "lack jurisdiction" because "the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right to action for takings against a state[.]"

Congress has provided a cause of action (42 U.S.C. § 1983) to sue "persons" who, under color of state, violate someone's constitutional rights (including taking property without compensation), but it is settled law that the states themselves are not "persons," and there's no dispute that Congress has never adopted a similar statute applicable to states. No cause of action against the State of Texas means no ability to bring a lawsuit against the State of Texas; Devillier's case dismissed.

The Question Presented

After some unusual appellate procedures (sua sponte denial of en banc review after the cert petition was filed), the Supreme Court granted review, limited to this Question Presented:

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

So what should we be looking for on Tuesday morning?

Calder, Barron, and Sovereignty

At heart, we think Devillier goes to the notion of the American concept of "sovereignty," and our vision of what constitutional rights mean. Despite the Ninth Amendment, we tend to treat the listing of rights in the Bill of Rights as a somewhat exclusive expression of the rights we possess. And we also tend to treat the text of the Bill of Rights as defining our rights, rather than as limitations on government power (sovereignty).

As Professor William Davenport Mercer discussed in his book Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty (2017), this may well be a result of the U.S. Supreme Court's decision in Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). That case is mostly remembered as the one which held that the Bill of Rights limits only the federal sovereign power, and if property owners wanted to assert a claim for compensation against Baltimore, they could not point to the Fifth Amendment, but must instead look to compensation requirements in their state constitution. Barron's holding, of course, was neutered by the Fourteenth Amendment and officially put to rest by the later Chicago Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226 (1897). But in Professor Davenport's estimation,even though Barron is no longer good law, the general vibe of the decision -- that constitutional rights are defined by the text of the constitution -- has lived on. Maybe Devillier will be an opportunity to check the pulse of the Justices on where they stand on this.

After all, the idea that the two limitations spelled out in the Fifth Amendment and its state law counterparts are not merely admonitions to the sovereign to "don't do that" (i.e., take property without a public use or without paying compensation), but rather the notion that We the People never delegated to our governments the power to take property without a public use or without providing just compensation. If so, then you can enforce the right without needing the permission of the sovereign. This might have been best expressed by Justice Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798):

A law that punished a citizen for an innocent action, or in other words for an act which when done was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; It may declare new crimes and establish rules of conduct for all its citizens in future cases; it may command what is right and prohibit what is wrong, but it cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.

Id. at 388.

If Texas never had the power to take property without compensation, then doesn't it follow that Devillier does not need the permission of Congress (or Texas) to enforce that right? 

What Else to Look For on Tuesday

Other things to look for on Tuesday as you listen along:

• Incremental, QP-centric arguments. Look for the Justices viewing the issue narrowly, trying to keep the decision in the case framed within the Question Presented. Like they seemed to do in the recently-argued Sheetz case. The Court has taken a very incremental approach in takings cases, and we're thinking that if the Court wants to answer the QP -- and no more, yet -- things could go very well for Devillier. Short story: do you need a legislative cause of action to file a claim for compensation for a taking? No. End of (this) story. 
• Been there, done that. Relatedly, there's a strong argument that the Court has already made it clear that the just compensation requirement is "self-executing," meaning that if it takes property, the government must provide compensation; and if it does not, nothing more is needed for the owner to ask a court to order the government to provide it. If so, then decisions like Chicago, Burlington and First English resolve the QP, and we're done. To us, the vibe of First English (if not its express holding) has always been that no state can deny it has the obligation to provide compensation when it takes property. If the Court wasn't saying this in First English, then what was it getting at?
• History and tradition. This is a property rights case, so you know there's likely to be a lot of history talk. You may want to brush off your copy of the Court's recent decision in PennEast, which held that the State of New Jersey was not immune from an exercise of federal eminent domain power because history shows that by ratifying the Constitution, the states consented to having their property taken by the federal government, and the preexisting notion that eminent domain is, as Grotius put it, eminent. 
• CFC mavens, rejoice. If there's buy-in to the notion that the Tucker Act does not create a cause of action, but is merely a jurisdictional statute assigning claims for money against the federal government to the Court of Federal Claims, then Devillier is along the path to success. After all, the federal courts have been entertaining and deciding takings claims seeking compensation for decades.
• Restraining the temptation to go large. One might be tempted in this case to go big, because after Knick, the lower courts seem to be throwing up all sorts of procedural and technical hurdles to property owners seeking compensation for takings in federal court. But we think that this is likely something the Court will want to avoid. The facts in this one are very narrowly drawn, and don't raise a lot of the interesting and unresolved issues that are plaguing the lower courts. Save those issues for those cases, not this one.
• Keeping the judicial powder dry. Thus, if the Court answers the QP, it can leave for later resolution better cases with more developed factual records and arguments. A case in which a property owner sues a State for just compensation in federal court (and not one where the State is the party which invoked federal jurisdiction), for example. Such a case would directly raise the issue the Court need not address here: does the Eleventh Amendment change anything?
• Limiting principles. The term "Bivens" isn't exactly popular at the Court these days. If it looks like a majority is going Devillier's way, look for arguments distinguishing the right to compensation from other constitutional rights. If takings require money as a remedy, then why not the same, for example, for a violation of the Speech Clause? Hint: the distinction is right there in the text of the Fifth Amendment, which not only expresses limitations on sovereign power (no takings without public use and no takings without compensation), but also informs courts in terms that courts understand what remedy is available (compensation). Takings are sui generis.
• Game-playing. The Court has been rightly skeptical when it looks like the government is being too-clever-by-half, especially in property cases. The San Remo preclusion trap, the ripeness "Catch-22," ripeness as exhaustion-by-another-name, and states manipulating property law.
• Chicken Little. There have been some arguments here -- as in nearly every property rights case -- that a ruling in favor of the property owner will result in a flood of litigation, and the inability of the government to go on as usual. The Court has -- in nearly every case in which this argument is made -- rejected that claim. By design, a limitation on sovereign power cannot be too burdensome: if the constable must abide by the Constitution, so must the DOT.
• You say "tomato." Do you pronounce the property owner's name as "de-vill-ey-er" or "day-vill-e-ay," or some other way? As in Key-lo or Keh-low, Dow-behrr or Dau-bert, or May-hon or Mannnn? (Either way, if we were arguing on Tuesday, we'd say it exactly the way the Chief Justice pronounces it.)

What's Not at Issue

Here are some issues we think are not presented:

• Eleventh Amendment. This should not be an issue here, because Texas forfeited any immunity that it might have otherwise enjoyed under the Eleventh Amendment by removing the lawsuit from its own courts to a federal court. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah.”). And if we want to get very technical, the Court has already said that the Eleventh Amendment mirrors plain-old sovereign immunity, and that the sovereign can only be sued it (a) it consents, or (b) the "plan of the convention" reflects the understanding that by ratifying the Constitution, the states gave up that sovereign immunity (again, check out the Court's recent decision in PennEast for more). If so, maybe Texas' removal of the case settled the Question Presented. 
• MAGA. The question of the meaning of "self-executing" is also raised in the Trump v. Anderson case which the Supreme Court is considering on an expedited basis. That's the one where the ex-president is challenging the Colorado Supreme Court's ruling that he can be DQ'd from the Colorado ballot because section 3 of the Fourteenth Amendment renders him ineligible. One of the arguments in the case focuses on is that section 5 of the Fourteenth Amendment, which provides that "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article," means that Congress must first adopt enabling legislation before someone can be barred from running. While an interesting and unsettled question, as noted above we think that Just Compensation stands apart because Devillier is arguing that just compensation is self-executing, and not as in the Trump case, that the Fourteenth Amendment is necessarily self-executing.

See you on Tuesday!

Brief Amicus Curiae of Pacific Legal Foundation, Nat. Fed. of Ind. Bus. Small Bus. Legal Center, Inc., and...

2023 Year-End Clean Up

As 2023 comes to a close, here are a few of the decisions that we wanted to blog about, but didn't have the time.

• Bruce v. Ogden City Corp., No. 22-4114 (10th Cir. Dec. 1, 2023): city demolishing a building that was damaged by fire was not a Lucas taking because the owner still has use of the land (even though the building is gone). And no Penn Central taking because... Penn Central.
  
• Moriarity v. Indiana, No. 22A-PL-2899 (Ind. Ct. App. Nov. 15, 2023): State ordering removal of illegal dam was not a taking under U.S. or Indiana Constitution. The owners don't have a property right to build an illegal dam. Thus, the "background principles" exception to Lucas rules the day. And no Penn Central taking because the owners never had any investment-backed expectations they could build this dam.
• Lafayette Bollinger Dev., LLC v. Town of Moraga, No. A163636 (Cal. Ct. App. July 19, 2023): No Penn Central taking because city might have allowed a smaller project.
  
• Estancias de Cerro Mar, Inc. v. Puerto Rico Aqueduct and Sewer Auth., No. 20-1644 (D.P.R. Nov. 17, 2023): the complaint plausibly alleged a categorical regulatory taking, and did not need to be pleaded under Penn Central. The complaint alleged that the plaintiff possessed a private property interest, and that the Authority's actions took that interest.
• Moskovic v. City of New Buffalo, No. 23-1165 (6th Cir. Dec. 14, 2023): city's moratorium on short-term vacation rental permits, and eventual permanent ban was not a taking or a deprivation of substantive due process because property owners have no protected interest under Michigan law in renting their properties. 
• First Floor Living LLC v. City of Cleveland, No. 22-3216 (6th Cir. Sep. 28, 2023): even though the plaintiff purchased the property to rehabilitate and redevelop it, the city declared them public nuisances and ordered their destruction. The district court correctly entered summary judgment in the city's favor on the plaintiff's due process claim because the owner received sufficient notice.
• 835 Hinesburg Road, LLC v. City of South Burlington, No. 23-218 (2d Cir. Nov. 8, 2023): takings claim not ripe when city applied restrictions that it intended to adopt and denied owner's preliminary development application [disclosure: this case is one of ours].
• In re City of New York (Coney Island Plan - Stage I), No. 517650/2016 (Kings County, N.Y. Nov. 1, 2023): compensation for city's taking of mostly-vacant land to be measured by the "three unities" test. The zoning in place at the time of the taking was part of "the project," so the pre project zoning is used to measure the value of the taking.

On to 2024!

"Super-Zoning Board" No More - CA2 Busts The "Land Use Is Local" Trope: Town ZBA Doing Nothing On Variance Application Ripened Constitutional Claim

You remember that longstanding trope: that matters of land use are "local" issues, and thus in civil rights claims involving a state or local government interfering with the right of property federal courts should avoid adjudication until the government has had every chance to do the right thing (even where it is patently obvious that it has no intention of doing so)? This trope most often shows up as a part of a ripeness dismissal, where the court says "too soon," because, well, if given enough time and opportunity, the government might render adjudication unnecessary.

Well, in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, No. 22-1741 (Dec. 8, 2023), the U.S. Court of Appeals for the Second Circuit held a land use case ripe, and in the process blew up this overripe trope. Whoa!

But before you takings mavens get too excited, this is a RLUIPA claim. But that doesn't mean the applicable principles are not relevant. Indeed, this one is worth reading because the court navigates the rocky shoals of Article III ripeness in land use cases, and concluded that "federal courts have an obligation to adjudicate cases that invoke our jurisdiction, and we do not close our doors to litigants properly seeking federal review simply because their grievances touch on local zoning matters.: Slip op. at 17.

Before you get too excited again, this warning: the qualifiers "properly" and "simply" carry a lot of the work here, and the court doesn't conclude that if you make a constitutional challenge to a zoning or land use decision, your case is ripe and you are heading straight to the front of the line.

Here are the quick facts. The Academy wanted to build an Orthodox Jewish school. It entered into a purchase agreement to buy some land and lined up financing. It alleged that in response, "segments of the local community" formed to oppose the school, with one Town supervisor announcing "the the Town would 'strongly enforce' applicable zoning and building-code regulations of the property." Slip op. at 7.

Next up: a lot of the typical maneuvering during the zoning approval process, including the Town's fire inspector kiboshing a building permit application on the basis that the property lacked the minimum frontage required, and that a building permit could not be issued until the school obtained a variance from that requirement. Slip op. at 9-10. The school appealed to the Zoning Board of Appeals, asserting that the school met the frontage requirement. In response, the inspector asserted that the appeal papers were incomplete because the school had not submitted a property survey in support.

Survey? Where does it say we need a survey (said the school)? It claimed that "nothing in the Town Code or ZBA rules required such a survey, and the requirement served no practical purpose." Slip op. at 10. [Barista's note: this is typical, and local planning officials often reject applications and claim they cannot be processed because they are not complete, and when pressed about where the requirement to submit the allegedly "missing" information comes from have no answer or merely say "this is how we do things here - everyone knows that."]

But the school played ball and made and submitted a survey.

[But o]nce the survey had been completed, on May 7, [the school] requested a hearing date for its appeal to the ZBA. However, the ZBA failed to respond to this request, and the project came to a standstill. Subsequently, Investors Bank revoked its commitment to provide financing.

Id.

The ZBA's do-nothing approach continued, even in the face of the school pressing it repeatedly, at one point pointing out the failure of the financing as a reason it was considering the application revoked. Slip op. at 11. Then, to add insult to injury, {o]n October 3, the Town announced that it was purchasing the property for itself." Slip op. at 11-12.

Next up, federal court section 1983 and RLUIPA lawsuit. The district court dismissed; the federal claims were not ripe because -- you guessed it -- the ZBA had not yet decided. Slip op. at 13 ("the Zoning Board of Appeals, the municipal entity responsible for the administration of the zoning laws, never issued a final decision on the merits of [the school]'s application"). The claim was not ready, and thus failed the "case and controversy" requirement of Article III.

The Second Circuit reversed. As noted above, the court rejected the Town's argument that this, at heart, was a local zoning matter and that federal judges should therefore butt out. In holding the claims ripe, the court noted Pakdel's dictum that the ripeness requirement is "relatively modest" and that nothing more than "de facto" finality is needed. Slip op. at 18.

Applying those rules, the court concluded that the ZBA "reached a decision that was sufficiently final for ripeness purposes." Id. By "choosing not to adjudicate [the school]'s appeal[,]' the ZBA made a de facto decision. The complaint also plausibly alleged that the ZBA "declined to respond to at least five letters urging it to schedule a hearing." Id. And to cap it off, a Town official (its lawyer) "wrote to [the school] that the ZBA 'will not entertain any appeal by [the school] with respect to the [property].'" Id. 

"This letter made the ZBA's position pellucid[.]" Slip op. at 19. Dismissal reversed, and case remanded for more on the merits.

That is all well and good, but we issue a caution in cases like this, where the government has done some pretty outrageous things: it shouldn't take this much to get a court to agree that a case is ripe. As the Supreme Court reminded in Pakdel, this is a relatively modest requirement with only de facto finality required. Just because cases  like this one in which the government is going way overboard are well-within the ripeness requirement, does not mean that "lesser" government foot-dragging is okay.

Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, No. 22-1741 (2d Cir. Dec. 8, 2023)

"The courts don't need Congress's permission to enforce the self-executing constitutional right to just compensation."

"No need to ask, he's a smooth operator..."

Here's the amicus brief we just filed in a case we've (obviously) been paying close attention to.

This is Devillier v. Texas, the case in which the Supreme Court is considering what does the it mean when it describes the Just Compensation Clause as "self-executing?" Do you need statutory authorization in order to bring a takings or just compensation claim, or can you sue directly under the Constitution? Does it matter that Congress has adopted a statute which authorizes damages suits against local governments ("persons"), but has not expressly done so against states qua states?

We say no and our brief explains why.

Note that there's no Eleventh Amendment issue here, because Devillier filed his federal claims in a Texas court, and it was the State of Texas that removed it to federal court (thus forfeiting any 11A claim, because the State chose the federal forum).

We won't go into a lot of detail here, because you can read it yourself (or you can read our post on the cert grant). Here's the Summary of Argument from our brief:

The courts don’t need Congress’s permission to enforce the self-executing constitutional right to just compensation. A civil right is self-executing “if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” Davis v. Burke, 179 U.S. 399, 403 (1900). Compensation for a taking is just such a right. The plain text of the Fifth Amendment itself supplies the rule for how the right is protected, and how it is enforced: takings of private property require compensation. This Court has said so—many times. See, e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (the Just Compensation Clause “of its own force furnish[es] a basis for a court to award money damages against the government.”); Knick, 139 S.Ct. at 2172 (citing First English as holding that a “property owner acquires an irrevocable right to just compensation immediately upon a taking”).

Congress may enforce the Fourteenth Amendment by creating causes of action and remedies. U.S. Const. amend. XIV, § 5 (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”). Because the Fourteenth Amendment’s plain text applies to the states as states, Congress could create a statutory cause of action for deprivations of life, liberty, or property by a state. U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of … property, without due process of law”). But Congress need not have done so for Richard Devillier to seek compensation from Texas for a taking, because the Fifth Amendment itself specifies the remedy, and the absence of legislation does not prohibit courts from enforcing the self-executing constitutional right to just compensation.

Statutory authorization may be necessary for other civil rights claimants to sue, but not Just Compensation claimants, because with one possible exception, no right listed in the Bill of Rights other than the right to Just Compensation is self-executing. That Congress created a general civil cause of action for “persons” claiming deprivations of “rights, privileges, or immunities secured by the Constitution and laws”—Civil Rights Act of 1871, 42 U.S.C. § 1983—is of no moment here. For example, Congress has never legislatively established a cause of action for just compensation against the federal government, and owners whose property is alleged to have been taken seek compensation directly under the Constitution. The Tucker Act does not create a cause of action for compensation or money damages; it only assigns jurisdiction over constitutionally based takings claims to the Court of Federal Claims and the Federal Circuit. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded … upon the Constitution”). In federal takings, the self-executing Just Compensation Clause recognizes the right and provides the remedy. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 126 (1974). If the lack of a statutory cause of action does not stand in the way of holding the federal government to the Just Compensation Clause’s requirements, it similarly does not stand in the way of the same claim against a state. Our constitutional order cannot countenance neutering a right and remedy expressly recognized by the text of the Constitution, on the grounds that Congress has not acted.

The Fifth Circuit acknowledged Texas’ obligation to comply with the Fifth and Fourteenth Amendment’s plain requirements. But by divorcing liability from the constitutionally mandated remedy, the court below engaged in a clever, but not compelling, Texas two-step. First, the Fifth Circuit acknowledged that states cannot effect uncompensated takings. Yet the court concluded that Congress must affirmatively provide a statutory remedy before property owners may pursue compensation claims against a state—even in the state’s own courts. Petitioners sued Texas in a Texas court, alleging that the state’s deliberate flooding of their land effected a taking requiring compensation under the Fifth and Fourteenth Amendments. Texas eliminated any possible Eleventh Amendment issues that may have been lurking by removing the case to federal court. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah.”) (citation omitted). By requiring that Congress first recognize a cause of action for just compensation, the Fifth Circuit ensured that Devillier’s federal civil rights cannot be enforced in any court.

This Court should reaffirm that the Just Compensation Clause is self-executing and hold that property owners need not rely on a statutory cause of action where compensation is mandated by the Fifth and Fourteenth Amendments. The Constitution itself provides the cause of action, rendering the need for a statute unnecessary.

Our colleagues at the Institute for Justice (who represent the petitioner) filed the merits brief earlier in the week (well worth your time reading it, by the way, and bravo to them for identifying this case and bringing it to the Court's attention).

Special shout-out to our law firm colleagues (and self-executing Just Compensation mavens) Deb La Fetra and Kady Valois for this brief.

Stay tuned here, or follow along on the Court's docket.

Brief Amicus Curiae of Pacific Legal Foundation, Nat. Fed. of Ind. Bus. Small Bus. Legal Center, Inc., and...

New Podcast: The Cedar Point Takings Case (From The Guy Who Argued Cedar Point)

Check this out, our law firm colleague Joshua Thompson talks about regulatory takings, and his big Supreme Court victory in Cedar Point Nursery.

If you are reading this blog, you already know what that means. Regulatory takings. Bundle of sticks. Penn Central (bleh), and right to exclude. Here's the description of the program:

In this thought-provoking episode, Bob Stetson and Joshua Thompson, Director of Equality and Opportunity Litigation at the Pacific Legal Foundation, discuss the landmark case of Cedar Point Nursery vs. Hassid and explore the intricate balance between private property rights and public interests. What constitutes a 'taking' and how far government regulations can go in the name of the public good?

Stream it above, or listen on Spotify here.

(Our own thoughts on the Cedar Point case here.)

Program Recording: "Erasing the Black Spot" - Virginia's Use Of Eminent Domain To Take Minority Property

"Erasing the Black Spot" from WHRO on Vimeo.

As we first noted here, Hampton University and WHRO recently produced a live program on "Erasing the Black Spot - How Virginia Universities Have Disrupted Black Neighborhoods." We couldn't make it in person, but watched the live-stream.

Now, as we hoped, the recorded program has been published. Stream it above, or watch here on Vimeo. Here's the description:

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the second half of the 20th century, the rapid growth of public universities across Virginia uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership.

In a new panel discussion, VCIJ at WHRO journalists share their findings and stories from the residents who were displaced.

Well worth your time.

Here's The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Here's the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte - Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew longstanding ones – in a welcoming environment and amongst others who share the same passion for this area of the law.

Please check it out. Over the next couple of weeks we shall bring you details of the various programs.

If you have joined us in the past, you know what a worthwhile conference this is. If this will be your first time, welcome; we hope that you will become a long-term colleague.

Register now, and reserve your spot. In the past few years, we've sold out the hotel block and the Conference seats. So don't miss out!

2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference Brochure, Feb. 1-3, 2024, New Orleans,...

New Takings Ripeness Cert Petition (Ours): One Variance, Two Variance, Three Variance...More?

Here's a takings cert petition, filed yesterday.

Because this is one of ours, we're not going to comment much beyond reposting the Question Presented, and to let you know this one is about how the "relatively modest" requirement that the government have taken some "definitive position" about what uses are allowed and what uses are not on a claimant's property -- as the Court noted in Pakdel, a "de facto" decision is enough. Yes, prudential ripeness.

Question Presented:

Matthew Haney sought to build a home on a small undeveloped island in Popponesset Bay, Massachusetts, zoned by the Town of Mashpee exclusively for single-family residential use. But building a home requires a variance from the Town’s setback and frontage requirements. Haney twice sought this variance, and twice the Town rejected his requests. The Town’s unqualified position that Haney could not obtain the necessary variance to build his home satisfies the usual indicators that a takings claim is justiciable. Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 736–37 (1997) (development plan plus one request for a variance ripens a takings claim). But when Haney sought just compensation in federal court, the First Circuit held the case does not present a ripe controversy because the Town suggested it may grant a third application for a variance if Haney first secured permission from the State of Massachusetts to build a steel bridge to the island.

The question presented is:

Can the government evade adjudication of constitutional takings claims on prudential ripeness grounds—after it has twice definitively denied necessary variances—by indicating that it may consider a third variance request if the property owner first obtains an additional permit from a different government agency?

A special shout-out to our law firm colleagues Jeremy Talcott and Deb La Fetra, who carried the load on this one.

Now we wait.

Petition for Writ of Certiorari, Haney v. Town of Mashpee, No. 23-____ (U.S. Nov. 1, 2023)

Links And Materials From "Inverse Condemnation & Paying for Disasters"

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, "Inverse Condemnation & Paying for Disasters."

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

• Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine
• Cal Supreme Court: Stop Saying Inverse Condemnation Is "Strict Liability"
• MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit
• Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?
• Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires
• Shelley Saxer, Paying for Disasters, 68 Kan. L. Rev. 413 (2020)
• Inverse Condemnation And Wildfires

To those of you who were able to join us -- mahalo!

Wed Oct 19 6pm ET - "'Erasing the Black Spot' - How Virginia Universities Have Disrupted Black Neighborhoods" (Hampton University)

If you happen to be in the Hampton Roads neighborhood later this week, you may want to consider paying a visit to Hampton University for what looks like an intriguing program:

Exclusive Event: 'Erasing the Black Spot' - Oct. 19

 

The Virginia Center for Investigative Journalism at WHRO and ProPublica Present “Erasing the Black Spot” - How Virginia Universities have Disrupted Black Neighborhoods

October 19, 6 p.m.
Robert P. Scripps Auditorium
Scripps Howard School of Journalism and Communications, Hampton University
200 William R. Harvey Way
Hampton, VA 23669
Register to attend

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the second half of the 20th century, the rapid growth of public universities across Virginia uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership.

In a new panel discussion, VCIJ at WHRO journalists share their findings and stories from the residents who were displaced.

Our friend and colleague Joshua Baker (Waldo & Lyle, Norfolk, Virginia) is among the speakers.

More details here. We hope you can check it out. 

Fifth Circuit Kicks Down The SWAT Takings Door (And Boots The Issue Upstairs)

Here's the latest in a case and an issue we've been following.

Recall that the U.S. District Court for the Eastern District of Texas concluded that the City of McKinney, Texas was liable for the taking of Vicki Baker's home, after city police officers destroyed a large part of it while apprehending a suspect who had taken refuge therein. The court awarded just compensation and the city appealed.

Now, the other shoe drops: in Baker v. City of McKinney, No. 22-40644 (Oct. 11, 2023), the U.S. Court of Appeals for the Fifth Circuit reversed, concluding that because the invasion was necessary and a justified use of the city's police powers, it does not owe compensation.

We've been down this path before, so we won't go over it in detail (recall that the Tenth Circuit reached the same conclusion and the subsequent cert petition was denied by the Supreme Court). Our thoughts about the issue are in the amicus brief we filed in that case, in which we argued that an invocation of police power or necessity isn't dispositive or outcome-determinative. 

The Fifth Circuit has now joined the Tenth:

We conclude that, as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons. Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.

Slip op. at 2.

The Fifth Circuit takes a slightly more nuanced view, rejecting the city's invitation to hold that any substantial police power reason would be enough to avoid the obligation to provide compensation. Instead, "the mere fact that Baker's property has been damaged or destroyed pursuant to the City's police power cannot decide this case." Slip op. at 8. So the government isn't categorically exempt. (Silver linings and all that.)

But the opinion also concluded that the worm doesn't turn in the property owner's direction either: "[w]hat Baker needs, in other words, is historical or contemporary authority that involves facts closer to those at bar and where the petitioner succeeded under the Takings Clause." Slip op. at 11. And apparently, there is "historically oriented legal scholarship" that shows that the "'necessity' or 'emergency' privilege has existed in Takings Clause jurisprudence since the Founding." Slip op. at 12. [Barista's note: our own contribution to the legal scholarship was somehow overlooked by the court - the nerve!]

Read the court's journey through the history for more. See slip op. at 12-17.

The bottom line: if the invasion by Five-O was necessary, then no taking. And here, Baker acknowledges that "it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons." Slip op. at 17.

But that's not the right question in these type of cases, is it? After all, the central question isn't necessity, but of cost spreading. The court acknowledged that the core vibe of takings is the Armstrong principle:

[T]he Supreme Court has often stated that “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960), quoted in Tyler, 598 U.S. at 647. This statement’s relevance to Baker, who is faultless but must “alone” bear the burdens of a misfortune that might have befallen anyone, is manifest.

Slip op. at 18. In short, although it acknowledges that Baker alone is bearing the cost for a public good, the Fifth Circuit washes its hands of the most important question: is it just and fair that this is so? To the Fifth Circuit, history says yes.

And this leads to the opinion ending on what appears to be another silver lining, the Fifth Circuit seemingly inviting a cert petition asking what it views as the only court capable of making that call:

As a lower court, however, it is not for us to decide that fairness and justice trump historical precedent, particularly Supreme Court precedent, where it has long recognized a necessity exception that excludes those like Baker from the protection of the Fifth Amendment’s Takings Clause. Such a decision would be for the Supreme Court alone.

Id.

Will one be forthcoming? We sure wouldn't bet against it.

Baker v. City of McKinney, No. 22-40644 (5th Cir. Oct. 11, 2023)

Supreme Court Property Rights Round-Up

Here's what we're reading about the Supreme Court's property rights docket -- some good, some disappointing -- this day.

• Niina Farah, "Supreme Court flooding case could ripple across the energy sector" (E & E News / Energywire) - About the Devillier case (which we summarized here), in which we were quoted: "The Supreme Court decision to hear the Devillier case comes after a concerted effort in recent years to convince the court to address procedural maneuvers that have made it challenging for property owners to bring their claims to court, said Robert Thomas, director of property rights litigation at the Pacific Legal Foundation. The nonprofit is among the groups that has asked the court to address takings cases and has lent its support for the property owners in Devillier in a 'friend of the court' brief. 'There’s a lot of gamesmanship going on trying to avoid getting to the actual core question — is compensation owed for the take?' Thomas told E&E News. 'You will see local governments, and often the federal government, interposing these procedural defenses to move the chess pieces around.' This case is an example of how court procedure is being used to stymie damage claims from property owners, he added.
• Bob Egelko, "U.S. Supreme Court agrees to decide legality of fees charged to California homebuilders" (San Francisco Chronicle) - About the Sheetz case (which we summarized here), "Christopher Elmendorf, a UC Davis law professor who has written extensively about housing issues, said a ruling in Sheetz’s favor could also allow challenges to 'inclusionary zoning' rules in San Francisco and other communities, which require new developments to contain a certain percentage of affordable-housing units. That might encourage more housing construction in the short run, he said, but it probably wouldn’t have a major impact on the housing shortage in California.
• Suzannah Cavanaugh & Kathrun Brenzel, "Supreme Court didn't save landlords. now what?" (TheRealDeal) - About the Court's denial of one of the three petitions challenging New York's draconian amendments to its rent control law (there are two other cert petitions, both of which were relisted; see here and here).
• Andria Cheng, "Supreme Court Denies Challenge to New York's Rent Regulation Law" (CoStar News) - More on the rent control petition denial.

Let's hope there's more good property rights news from SCOTUS to report soon.

 

Cert Granted #1 - You Don't Need The Government's Permission To Obtain Just Compensation, Do You?

"I'll take 'Words I Like to See' for $800, Alex."

In this Order, the U.S. Supreme Court agreed to hear two important property rights cases (are there any other kind?). Both are cases we've been following -- and indeed are now playing a part in.

The first is Devillier v. Texas (the second is Sheetz v. El Dorado County which we've posted about here).

After what can only be described as a weird Fifth Circuit panel opinion, followed by an even more unusual post-cert petition en banc denial (complete with concurrals and dissentals), the Supreme Court granted the cert petition.

The Question Presented:

In First English Evangelical Lutheran Church v. County of Los Angeles, this Court recognized that the Fifth Amendment’s Takings Clause was “self-executing” and that “[s]tatutory recognition was not necessary” for claims for just compensation because they “are grounded in the Constitution itself[.]” 482 U.S. 304, 315 (1987). Since First English, several state courts of last resort have held that the self-executing nature of the Takings Clause requires them to entertain claims directly under the Clause without the need for statutory authorization. Two federal Circuits, the Fifth and the Ninth, disagree and have held that claims for just compensation are only available if they are legislatively authorized. The question presented is:

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

In short, you don't need an authorizing or jurisdictional statute such as section 1983, do you?.

As the amicus brief which we filed along with our law firm colleagues Deb LaFetra and Kady Valois noted, we think the answer is pretty plain (no, you don't):

Consequently, because neither Congress nor a state legislature need agree to pay compensation, they do not need to adopt an implementing statute—and no waiver of sovereign immunity is necessary—for a plaintiff to invoke the judiciary’s authority to enforce the Constitution and impose a remedy. That is, if Congress repealed Section 1983 tomorrow, the constitutional mandate for just compensation remains. Or as this Court has put it, the Just Compensation Clause “of its own force” “furnish[es] a basis for a court to award money damages against the government[.]” First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (quotation omitted).

Br. at 3.

This case is another in a long string of cases in which the Supreme Court is presented with the opportunity to rein in governments and stop the procedural game-playing. Whether it is telling property owners that they must chase approvals via a certain process only to later claim the process was not an official procedure so was meaningless. Or whether filing a state court eminent domain action so that it can ask the federal court to abstain from considering a landowner's already-filed regulatory takings lawsuit. Or asserting a statute of limitations is "jurisdictional," and therefore it doesn't matter that the government lulled the property owner into not objecting to his property being invaded by the public.The decisions in Knick and Pakdel were very obvious signals that the Court was exhausted (pun intended) with these type of exhausting games.

But the message apparently has only filtered down to the lower courts in fits and starts.

Take for example, the case now before the bench. The property owner took what might be considered an uncontroversial path: it sued the State of Texas for inverse condemnation, seeking just compensation for an allegedly State-caused flooding of the plaintiff's property. Nothing too wild about that. The plaintiff brought suit in the courts of the State of Texas. Again, nothing earth-shattering there, either.

But the State of Texas removed the case to federal court. That should set off your game-playing radar, since you'd think that Texas might prefer its own courts, and its own procedures, and its own jury pools. So why would Texas remove the case to federal court? It appears the only real reason was to make the following procedural gambit.

Once in federal court, Texas sought dismissal of the lawsuit. On what basis you ask? After all, any Eleventh Amendment immunity Texas might have enjoyed was waived when Texas itself invoked federal jurisdiction. But get this: Texas argued that the only way that the property owner could sue Texas for just compensation in federal court is if there is an enabling statute or some statute or authorization for a plaintiff to seek compensation. You need a vehicle, plaintiff. Well, what about the Just Compensation Clause itself, responded the property owner? Doesn't that say that if you take property government, that you must provide compensation?

Not enough argued Texas (and the district court and the Fifth Circuit agreed). You need more. The usual vehicle by which property owners seek just compensation for non-federal takings is section 1983, and here (Texas argued), that vehicle isn't available because it only applies to "persons," but the State of Texas isn't a person as that term is used in the statute. Only local governments and their officers are section 1983 persons. And lacking any other authorization to sue for just compensation for the alleged flood taking, the federal court could not consider the claim.

So where, under the State of Texas' theory, can a property owner go to raise these claims? Beats us. After all, if the owner goes straight to federal court seeking just compensation from a state, the state need only invoke its Eleventh Amendment immunity to get it dismissed. But if the owner goes the state court as the plaintiff did here, all that the state defendant need do is remove the case to federal court to make it magically disappear also. Wow.

Can you really have a right -- especially a right expressly set out in the Constitution itself -- that has no remedy and thus must rely on the government's consent? Not in our view.

And not just ours. It has been a fundamental principle that a "right" means there's a remedy, both on this side of the Atlantic and the other. As Justice Marshall put it in Marbury: ""The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." He didn't make that up. Lord Blackstone also noted, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded."

So there you go. There it is. Finally. Follow the case here, or on the Court's docket here.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioners, Devillier v. State of Texas, No....

CA9: Property Owner Has Standing To Challenge Commercial Eviction Moratorium Under Contracts Clause

This is one of ours -- argued by our Pacific Legal Foundation colleague Kady Valois -- so we won't be offering any commentary.

But we just have to post the U.S. Court of Appeals' opinion in Iten v. County of Los Angeles, No. 22-55480 (Aug. 30, 2023), because it discusses two significant issues, and sets out a roadmap for how to successfully plead a Contracts Clause claim.

First, standing. The court held that a commercial property owner -- a retired auto mechanic who leased his premises to an auto repair shop -- has Article III standing to challenge the County's commercial eviction moratorium which prevented the owner from evicting the tenant when it stopped paying rent but did not vacate. The court distinguished the standing requirement of "demonstrating injury in fact" from the question of whether the plaintiff has actually been injured. The first is a pleading requirement and turns on the nature of the claim, while the latter is a factual question for the trier-of-fact. Slip op. at 10-12. That is an important distinction that many frequently forget. We've all been in cases where the merits question gets bootstrapped into a question of whether the plaintiff is injured.

Second, to see whether Iten met the pleading requirement, the opinion goes into the nature of a claim under the Contracts Clause, noting it "was the most litigated constitutional provision in the nineteenth century." Slip op. at 13. But as we know, the Contracts Clause later fell out of favor with the courts, and "[s]trict application of the Contracts Clause ended in the Minnesota Moratorium case." Slip op. at 15. The Ninth Circuit continued:

The modern approach to the Contract Clause now considers not only whether the law impairs the obligation of the contract, but asks how “substantial” that impairment is and whether the state law is an “appropriate” and “reasonable” use of state police power. See Sveen v. Melin, 138 S. Ct. 1815, 1821–22 (2018) (quoting Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–12 (1983)). Although, post-Blaisdell, a Contracts Clause claim analysis requires additional inquiries, the merits of a Contracts Clause claim has always started with whether or not there is a change in a law (an “obligation”) that has impaired the original agreement of the parties.

Id.

Next, the court noted that "mortgage moratoria were, from the beginning, at the heart of the Contracts Clause. A law affecting or changing the terms the parties previously agreed to is the quintessential example of what the Contracts Clause was designed to prohibit." Id. This means that Iten, who is prohibited from evicting his non-paying commercial tenant because the County's prohibition, has standing to challenge the County's (alleged) realignment of the agreement between him and the tenant.

The court rejected the district court's rationale that despite the legal prohibition, Iten might have tried to evict the nonpaying tenant. The moratorium requires nonpaying tenants who wish to invoke the ordinance's protection to inform an owner, but the tenant here did not. Thus, the district court reasoned, Iten could have evicted for nonpayment of rent. The Ninth Circuit had a different view:

To show injury and causation for standing purposes, Iten need not allege that he would have been able to evict his Tenant “but for” the Moratorium. Nor need he show that his Tenant qualifies for the affirmative defense provided by the Moratorium. Rather, Iten need only allege that the Moratorium imposed additional rights, remedies, conditions, or procedures that impair the obligations to which he and his Tenant had contracted. Iten has made that showing here. He has alleged that Los Angeles County changed the framework for his lease with his Tenant by creating an additional affirmative defense for the Tenant, enacting a year-long forbearance period for unpaid rent, prohibiting Iten from charging late fees or interest, and adding civil and criminal penalties beyond those previously provided under California landlord-tenant law. Furthermore, the value of a commercial property is often tied to the value of its leases. Iten alleged that the Moratorium “undercut the economic value and security of [his commercial leases].” Thus, so long as the Moratorium was in effect, the economic value of Iten’s property, as influenced by the value and strength of the leases of that property, was diminished, and “[a] specific, concrete, and particularized allegation of a reduction in the value of property owned by the plaintiff is sufficient to demonstrate injury-in-fact at the pleading stage.” Barnum Timber Co. v. EPA, 633 F.3d 894, 898 (9th Cir. 2011).

Slip op. at 17-18.

The Ninth Circuit also rejected the conclusion that Iten "would have prevailed" in a state court eviction action, instead holding that "it was improper to speculate how a California court would have responded to an eviction action brought by Iten." Slip op. at 19.

The essence of the Contracts Clause claim is that the owner "is protesting the fact that he even has to run the gauntlet of additional procedures that were not in place when the Tenant signed the lease." Slip op. at 20. The court cautioned against "conflat[ing] constitutional injury with contractual impairment," and set out a roadmap for how to plead these claims (at least in the Ninth Circuit):

For purposes of standing, Iten alleged facts sufficient to state a claim that he suffered an injury traceable to the Moratorium for purposes of standing: He alleged that he was a commercial landlord living in Los Angeles County; that both he and the Tenant believed that the Moratorium applied to their lease agreement; and that the Moratorium altered the terms of his contract with his Tenant. Iten alleged that the Moratorium limited the legal procedures he may take to evict his Tenant for nonpayment of rent; that it prevented him from charging late fees or interest, which his lease otherwise allows him to do; and that it imposed additional penalties that chilled his ability to test the viability of eviction. In sum, Iten, at least for purposes of filing a complaint, has alleged that the obligations of his contract had been “taken away or materially lessened.”

Slip op. at 24.

Our congratulations to our colleague Kady for the win!

Iten v. County of Los Angeles, No. 22-55480 (9th Cir. Aug. 30, 2023)

Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don't miss out.

The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here's the 2023 Program:

• Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights
• Roundtable: Emerging Issues
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights (or the extent to which interests in property are or should be constitutionally protected)

Details here.

For more on the Conference, see our report from the 2022 Conference (more here as well).

Come, join us!

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted

Two years ago, Owners' Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here's the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

If you are a law student with an interest in applying for this scholarship or know of someone who may be, please contact Leslie Fields, Executive Director of OCA at [email protected] or 303-806-5155. Applications are due by October 3, 2023. 

More here, from OCA.

Toby Prince Brigham OCA Scholarship Brochure (2023)