2010

Yoda Appropos of absolutely nothing that are the usual subjects of this blog is this decision and order, issued yesterday by the California Commission on Judicial Performance.

It’s totally off-topic, but a must-read. 

It’s about what happened when a San Diego Superior Court judge decided to use the courtroom as a venue to audition for a “Judge Judy”-ish television reality show. In deciding to impose public censure, the Commission concluded that among other things, the judge scheduled “her more interesting cases on the day of the filming” (p. 1), remarked to a defendant in a criminal case after placing him on probation “‘[w]hat this means is don’t come before the court on another case … ’cause you will definitely be screwed and we don’t offer Vaseline for that”’ (p. 4), and when an attorney asked for time to confer with his client, asked the audience whether “he need to…

Continue Reading Once You Start Down The Dark Path, Forever Will It Dominate Your Destiny. Consume You It Will.

It’s pretty easy to blog about cases in which your side prevails, but not so easy when you don’t. This post is one of the latter instances. In County of Hawaii v. C & J Coupe Family Ltd. P’ship, No. 29887 (Nov. 10, 2010), a unanimous court in an opinon authored by Justice Acoba concluded:

This case is the post-remand sequel to County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Hawaii 352, 198 P.3d 615 (2008) [hereinafter, Coupe I]. In that case, this court reviewed two condemnation actions (Condemnation 1 and Condemnation 2) brought by Plaintiff/Counterclaim Defendant-Appellee County of Hawaii (the County) to condemn property belonging to Defendant/ Counterclaimant-Appellant C&J Coupe Family Limited Partnership in Civ. No. 00-1-0181K and Defendant/Counterclaimant/Cross Claimant-Appellant in Civ. No. 05-1-015K (Coupe). In the instant appeal, we hold that (1) the County’s asserted public purpose for Condemnation 2 was not a…

Continue Reading Hawaii Supreme Court: No Per Se Rule In Pretextual Takings

We use “takings,” “Takings Clause” and “Fifth Amendment rights” as a convenient shorthand for the right of property owners to object or obtain compensation when a government act has so interefered with their rights that it might as well have exercised eminent domain. Every now and then, we need a reminder that the Takings Clause of the U.S. Constitution’s Fifth Amendment is not necessarily the last line of defense for property owners.

Today, in Interstate Companies, Inc v. City of Bloomington, No. A10-481 (Nov. 9, 2010), the Minnesota Court of Appeals provided the nudge. In that case, the court held that the Minnesota Constitution’s takings clause provides “broader protection to property owners than the federal constitution.” Slip op. at 6. The text of Minnesota Constitution is broader than the Fifth Amendment in that it provides that “[p]rivate property shall not be taken, destroyed or damaged for public use without…

Continue Reading Min App: Minnesota Constitution’s Takings Clause Provides Greater Protection For Property Owners

Last week, the U.S. Supreme Court heard oral arguments in United States v. Tohono O’odham Nation, No. 09-846 (cert. granted Apr. 19, 2010), the case involving the scope of the Court of Federal Claims’ subject matter jurisdiction. The transcript of the argument  is posted here, and in a new feature, the Court has also released the audio recording (28mb mp3) in case you want to follow along, or just put in on your podcast list and listen to it on the way to work on Monday. 

Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation.

At the heart of the case is 28 U.S.C. § 1500 which provides:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United …

Continue Reading SCOTUS Oral Argument Recording And Transcript In CFC Jurisdiction Case

Just in: the Texas Supreme Court has issued an opinion in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010). In that case, the court ruled on “whether private beachfront properties on Galveston Island’s West Beach are impressed with a right of public use under Texas law without proof of an easement” when an avulsive event causes dramatic changes to a beach. Slip op. at 2.

The court concluded no, and answered these questions which were certified by the Fifth Circuit:

  • Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?
  • If Texas recognizes such an easement,

…
Continue Reading Texas: Public’s Beachfront Easement Does Not “Roll” With The Vegetation Line

The U.S. Supreme Court has declined to review Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). That’s the case in which the Hawaii Intermediate Court of Appeals concluded that ownership of beachfront property includes only a partial right to accreted land.

The ICA held that held that “Act 73” (codifed here and here), the statute in which the Hawaii legislature redefined accretion as public property was a taking of existing accreted land, but held that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest and not a “vested” right. The Hawaii Supreme Court denied discretionary review.

Under the ICA’s view of “unvested future interests,” the legislature would be free to enact a statute abolishing the right to pass property to one’s heirs at death…

Continue Reading Cert Denied In Hawaii Beach Taking Case

Professor Gideon Kanner has a recurring feature on his eminent domain law blog Gideon’s Trumpet called “Lowball Watch” in which he points out cases in which the condemnor’s offer is below — way below— the eventual compensation awarded to a property owner.

Thus, we’re looking forward to his thoughts on the latest case from the California Court of Appeal (3d District) which held that for purposes of California’s statute awarding attorneys fees to property owners when the condemnor’s offer is “unreasonable,” an offer which is 38.8% of the eventual compensation fixed by the jury is unreasonable as a matter of law. Tracy Joint Unified School Dist. v. Pombo, No. C061239 (Oct. 29, 2010).

California’s eminent domain statutes provide that a property owner is entitled to litigation expenses in defending an eminent domain action if the condemnor’s final pretrial offer of compensation is “unreasonable.” Cal. Code of…

Continue Reading Cal Ct App: Condemnor’s Offer Of 40% Of Compensation Ultimately Awarded Is Per Se Unreasonable

Slough Remember that now-iconic scene in The Fugitive, where Harrison Ford’s character has turned the tables on Tommy Lee Jones, and while holding Jones at gunpoint proclaims, “I didn’t kill my wife!”

Jones’ response — “I don’t care!“ — could just as easily apply to regulatory takings law, especially where a property owner alleges a regulatory action results in a per se taking (either a Lucas interference with all economically beneficial use, or a deprivation of a fundamental aspect of property such as the right to exclude).

In those cases, it generally does not matter what justifications the government may have for the regulation — the only thing relevant is the impact of the regulation on the property. In other words, even a regulatory action that might be a very good idea (from the government’s perspective) results in liability for compensation if it results in a taking…

Continue Reading Wash. App: “I Don’t Care!” – Regulatory Takings Are About Impact, Not Justification

The Institute for Justice, the Cato Institute, and the Beckett Fund for Religious Liberty have weighed in on Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not…

Continue Reading One More Amicus Brief In Columbia Eminent Domain Case: Court Should Clarify “Pretextual Taking”