July 2011

Synchronicity. Serendipity. Yin and Yang. Sometimes things just seem to work out.

Exhibit A: No sooner do we post a case about when inverse condemnation cases are filed too late (see Federal Circuit On The Metaphysics Of Takings Claim Accrual), what comes across our desk? A case about when inverse condemnation cases are filed too soon, of course. In Pembroke Center, LLC v. Fla. Dep’t of Transportation, No. 4D10-1737 (June 29, 2011), the District Court of Appeal (4th District) held that a declaratory judgment action initiated by a property owner was ripe, and that more was needed to determine whether an inverse condemnation action was ready for review.

The DOT has plans to widen the road next to the plaintiff’s shopping center, but the widening “was put on hold due to economic circumstances, but its website indicted the project will resume once funding is…

Continue Reading Florida Court Of Appeals Brings Balance To The Force: A Project That Isn’t Quite “Shovel Ready” May Be Ripe For Review

upFrom Oregon Live comes the report that a Portland attorney who was fighting to keep his office building (a converted Victorian), from being taken, has prevailed.

After a years-long fight in which Randal Acker, a commercial litigation lawyer, vowed to “do eminent domain law for the next two years to save the house” if necessary, the other side relented and allowed him to keep the house in place and decided to build the Portland State Dormitory around it.

Noting the resemblance of the home to the house in the Pixar animated film Up, the lawyer recently had 400 helium filled balloons affixed to its chimney, just like in the film.

Wish we could have been there.

Turns out this did not devolve into a typical eminent domain fight and that positions did not harden, but that reasonable minds prevailed:

Construction on the $90 million College Station [dormatory] started in…

Continue Reading Portland Lawyer Fighting To Keep His Property Goes “Up”

Here’s an interesting court of appeal decision about the intersection of technology and direct democracy from the epicenter of citizen lawmaking, California.

In Ni v. Slocum, No. A128721 (June 30, 2011), the court held that a voter using his smartphone to put his “electronic signature” on a petition does not qualify as “personally affixing” his signature to an initiative petition as required by California statute. The initiative in this case was to legalize marijuana.

Examining the language of the statute, the court concluded that “personal” means by the voter’s own hand and that both sides agreed that an e-signature qualifies, but that “affix” is subject to several possible meanings. Thus, because the statutory term is subject to multiple interpretations, the court looked at the legislature’s intent, noting that when it first adopted the “affix” requirement it obviously did not anticipate signing a petition by smartphone: “When the Legislature first…

Continue Reading Cal Ct App: No iSign For You!

Update: Civil Beat published a version of this post here.

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.). Still, 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…

Continue Reading The Verified Complaint In Equity: The Declaration Of Independence