August 2009

Happy Birthday to us: we uploaded our first posts on this blog three years ago this day. In lawblog years, that’s quite a while.

If you can’t already tell by the nearly 900 posts during this time, we enjoy doing this. Even even though it’s a lot of work, it’s rewarding. Mostly because of the readers, subscribers, and contributors whom this blog has allowed us to meet and get to know over the years.

Finally, we wouldn’t be much without our fellow-travelers — those other law bloggers who, like us, make the time to share thoughts about the legal issues of the day. Here’s a partial list:

…
Continue Reading Entering Our Fourth Year

What we’re reading today:

  • “Setting boundaries for property rights” — an opinion piece in the National Law Journal by our friend Timothy Sandefur about the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Highlight: “There must be some limit on the power of state courts to redefineproperty rights. The Supreme Court long ago limited their power tochange other laws in ways that infringe on constitutional freedoms.Southern judges often used cunning interpretations of state law tosilence civil rights protesters, only to be reversed by the high court.In one case, after a group of activists was convicted of trespass afterholding a sit-in, the justices overruled the conviction on the groundthat the South Carolina Supreme Court had ‘unforeseeably andretroactively expanded [the statute] by judicial construction,’ inviolation of due process.”

…
Continue Reading Sunday Round-Up

In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing andhandbilling by union members violated the state constitution’s freespeech clause, and therefore impermissibly interfered with protectedunion activity. We summarized the Ninth Circuit’s decision here.

The shopping center owner has filed a cert petition asking the Court to review these Questions Presented:

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), this Court held that states may require private shopping malls to grant third parties access to the malls’ common areas for purposes of engaging in certain expressive activity. The third-party activity at issue in PruneYard – solicitation of signatures on a political petition – was in support of a cause that the mall did not oppose and that did not conflict with the mall’s commercial interests. The present case raises the following questions, unanswered by PruneYard:

1. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s property rights under the Fifth Amendment where the activity – here, urging patrons to boycott the mall and its stores – conflicts with the mall’s commercial interests?

2. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s First Amendment free speech rights where the expressive activity is in support of a cause opposed by the mall?

The case is now titled Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009). The case’s docket entry is here.

Continue Reading New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

In a case that’s highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine’s requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.

The not-for-profit hospital sought a declaration that Maine’s “free care laws” effected a taking because “Maine’s free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute.” Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient.

Continue Reading First Circuit: Requiring Hospital To Provide “Free” Medical Services Not A Taking

The New York Times‘ Greenwire blog posts Property Rights Groups Assemble Support in Regulatory Takings Case, about amici support in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

Property rights groups are lining up in support of private waterfront landowners in Florida at the center of a case that the Supreme Court will hear later this year.

Twelve groups, including the National Association of Home Builders and the Cato Institute, have filed friend-of-the-court briefs in Stop the Beach Renourishment v. Florida, which turns on whether Florida’s Supreme Court violated the Constitution’s regulatory takings clause when it upheld a plan to create a state-owned public beach between private waterfront land and the Gulf of Mexico.

. . .

Stop the Beach Renourishment will be the first taking case to come before Chief Justice John Roberts and Associate Justices…

Continue Reading NY Times On Property Owner Amici In Beachfront Takings Case

In yesterday’s New York Daily News, Dana Berliner of the Institute for Justice — the good folks who brought us Kelo — published “End eminent domain abuse: N.Y.’s highest court should rule against Bruce Ratner.” The latest Atlantic Yards case, Goldstein v. New York State Urban Dev. Corp., which is currently being briefed in the New York Court of Appeals prompts the op-ed:

It has been more than a generation since the state’s highest court has interpreted the New York Constitution’s provision that property may be taken only for “public use.” It’s time for the court to take a long, hard look – before more damage is done.

The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent…

Continue Reading Op-Ed On Eminent Domain Abuse At NY’s Atlantic Yards

The recording of the oral argument in Dupree v. Hiraga, No 29464 has been posted. It is available here (caution, massive 34mb mp3 download). (Oral arguments in Hawaii’s appellate courts are not reduced to a written transcript, and the electronic recordings are the only record of arguments.)

The appeal concerns whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. More details about the case, including the briefs of the parties, are posted here. Disclosure: my Damon Key colleagues and I represent the Lanai voterwho successfully challenged the residency of the councilperson.  Continue Reading HAWSCT Oral Argument Recording In Voter Registration Residency Appeal

Confirming that Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009) is shaping up to be one of the most interesting cases in the Supreme Court’s term, even more amici briefs are coming in supporting the petitioner/property owners.

In an earlier post, we noted that eight briefs have been filed, and now are posting four more:

Continue Reading Even More Amici Supporting The Property Owners In Beach Takings Case

In an expansive opinion in Township of Readington v. Solberg Aviation Co., No. A-3083-07T3 (Aug. 19, 2009), the Appellate Division of the New Jersey Superior Court determined that a municipality abused its condemnation power when it attempted to take property to thwart the expansion of a nearby airport. 

The facts are set forth in detail in the opinion and will not be repeated here, but the most interesting portion of the opinion deals with the property owner’s claim of pretext. It argued that the condemnation was “at least substantially motivated, by the desire of Township officials to limit airport expansion and to prevent [Solberg-Hunterdon Airport] from becoming a jetport.” Slip op. at 35.

The Township did not dispute the contention, but argued the motivations of individual officials are not relevant in determining the public use or purpose of a taking. Under New Jersey law, a court will not overturn a decision to use eminent domain “in the absence of an affirmative showing of fraud, bad faith or manifest abuse.” Township of West Orange v. 769 Assocs.,LLC, 800 A.2d 86, 90 (N.J. 2002). A condemnation may be set aside when the “real purpose” is other than the “stated purpose.” See Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102 (N.J. Super. 1998).

The court examined the objective factors surrounding the adoption of the condemnation ordinance, and concluded they “impugned its validity.” Slip op. at 38. First, it was unlikely to achieve its stated purpose. The taking was purportedly for

open space and farmland preservation[,] land for recreational uses, conservation of natural resources, wetlands protection, water quality protection, preservation of critical wildlife habitat, historic preservation, airport preservation, and preservation of community character.

Slip op. at 39. However, “[r]eports prepared by the Township’s experts indicate that the airport is in poor physical condition and has limited prospects for future economic success.” Id. The court compared expert reports which questioned the viability of the airport. See id. at 40-42. The court also looked at the context of the condemnation to conclude the real purpose of the taking was to control airport operations, and that much of the area was already open space. See slip op. at 43-45.

The fact that the condemnation of development rights to the airport will not achieve its stated purposes indicates that the true purpose of the condemnation was to secure a greater measure of land use authority over the airport than the Township currently enjoys. Further, objective evidence suggests that the condemnation was initiated to secure Township control over airport operations. These are improper purposes in that they subvert the Commissioner’s ultimate authority over aeronautical facilities.

Slip op. at 44. The court concluded the Township abused its power of eminent domain “to avoid the limitations on municipal zoning power imposed by State airport statutes and regulations,” and “is not within the police powers delegated to the municipalities by the Legislature.” Id. at 48. The full opinion is worth a read.

Continue Reading NJ Appeals Ct: Eminent Domain Pretext Determined Objectively, By Context

More briefs have been filed in support of the Petitioner/property owner in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

We posted the brief of the Cato Institute, Pacific Legal Foundation and NFIB here.

The petitioner’s merits brief is posted here.  More information on the case on our resource page.Continue Reading Amici Briefs Supporting The Property Owners In Beach Takings Case