2012

Today is the first 90 minutes of the epic three-day appellate arguments in the “Obamacare” Supreme Court cases. No doubt, coverage of the arguments will suck all the air out of the punditry room, and leave little space for discussion of anything else.

As it should be. Whatever the outcome, these arguments are going to be legendary, the pinnacle of appellate practice: the Super Bowl, the World Series, the World Cup, the Daytona 500, all rolled up into one. Who could not be fascinated.

Rather than compete for your attention with talk of takings, eminent domain, the fallacy of Williamson County, and the usual topics of this blog, we thought we’d take the low road instead.

Exhibit “A” is the complaint in Helmburg v. Alpha Tau Omega Fraternity, Inc., No. 12-C-57 (filed Jan. 23, 2012). It’s a case that reminds us of that bane of first year…

Continue Reading In Other News On Obamacare Monday

ALI-ABAIn case you missed attending in person back in January, the annual eminent domain law conference (ALI-ABA’s Eminent Domain and Land Valuation Litigation) is now available on CD, mp3, and DVD here.

I was on the faculty, and along with Professor David Callies presented a session on The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases. In addition to our session, there were presentations on such topics as Redevelopment in California, how to talk to juries about Just Compensation, Landlord and Tenant Issues in Eminent Domain, the latest in Highest and Best Use. And more.

Get your yearly CLE fix, including ethics credits, all for a great price. You can also purchase individual sessions,Continue Reading ALI-ABA Eminent Domain Conference 2012 Now On DVD & CD

Here’s the latest chapter in the Skyland Shopping Center saga that has given us Franco v. National Capital Revitalization Comm’n, 930 A.2d 160 (D.C. 2007) and several other reported opinions (DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. District of Columbia, 3 A.3d 300 (D.C. 2010); Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam); and Oh v. National Capital Revitalization Corp., 7 A.3d 997 (D.C. 2010)).

The latest opinion from the D.C. Court of Appeals, Franco v. District of Columbia, No. 11-CV-734 (Mar. 15, 2012), is the appeal after remand of the 2007 Franco decision, which recognized that property owners may object to a taking on the grounds that the proffered public use is really a pretext hiding private benefit.

We…

Continue Reading D.C. App Again Weighs In On Kelo And Pretext

Here’s what folks are saying about yesterday’s 9-0 Supreme Court decision in Sackett v. EPA, No. 10-1062 (Mar. 21, 2012):

Continue Reading Sackett Round Up

Today’s commentary is by our colleage Thor Hearne, who regularly represents property owners in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. He recently joined us on the faculty of the ALI-ABA eminent domain program in San Diego, and spoke at the 2011 Brigham-Kanner Property Rights Conference in Beijing. He’s familiar to our readers who have followed his success in “rails to trails” cases in the CFC. Thor reports on the latest developments in those cases below.

Thor recently posted this summary, noting that the U.S. Department of Justice had lost a series of 16 Trails Act cases in a row during the past 12 months, and now updates us with the most recent decision, this time from the Indiana Supreme Court, Howard v. United States, No. 94S00-1106-CQ-333 (Mar. 20, 2012), a case in which the state court answered a question certified…

Continue Reading Guest Post: The DOJ And The Definition Of Insanity

Here is the Reply Brief in Harmon v. Kimmel, No. 11-496 (filed Mar. 20, 2012), the case in which a Manhattan property owner is challenging New York’s rent control law as unconstitutional:

Respondents confuse the issues with their scattershot assertions that rent stabilization concerns merely “landlord tenant relations,” “economic regulation,” “price controls” and “economic liberties,” and is just a matter of political and legislative policy. They disregard controlling precedent of this Court and seemingly concede that the Court of Appeals was mistaken. They also each acknowledge the existence of the “different case” standard set forth in Yee v. City of Escondido, 503 U.S. 519, 528 (1992). However, despite having argued otherwise to this Court and to the Court of Appeals in prior litigation, the State now argues that rent stabilization does not present the elements of the “different case” standard. The conflcts with decisions of this Court and…

Continue Reading Petitioner’s Reply Brief In New York Rent Control Case: “Permanent dispossession is nine-tenths of this law”

Update 2: more commentary here.

Update 1: Two quotes worth noting:

“Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA decision that their land contained navigable waters of the United States ‘having never seen a ship or other vessel cross their yard.”” Oh Justice Scalia: you complete me. (via the WaPo)

Justice Alito (mirroring his oral argument question): “The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if…

Continue Reading Unanimous SCOTUS: Property Owners Entitled To Judicial Review Of EPA “Compliance Order”

Court-appointed appraisers awarded $7.5 million for the taking of property once used as a  shopping mall, but being used as an office park at the time of the taking. The property owner challenged the award, and at trial sought to exclude tax appeal documents from two years earlier, in which it estimated the value of four of the five buildings taken as $2,650,000. The owner asserted the tax appeal was not relevant because it did not involve the entire property taken, and besides, it only filed the appeal to force the government to abide by its plan which was supposed to freeze property taxes (but it didn’t). The government argued that the appeal was admissible as an admission against interest. The trial court admitted the evidence, and the jury came back with a verdict of $6.95 million.

On appeal, the Kansas Supreme Court affirmed. In Kansas City Mall Assoc., Inc. …

Continue Reading Kansas: Owner’s Claims In Property Tax Appeal Are Admissible In Later Eminent Domain Action

On Thursday, we attended oral arguments in the Hawaii Supreme Court in a case that should be of particular interest to all you appellate procedure wonks.

A few days before expiration of the filing date for the notice of appeal, the parties stipulated to a two week extension of time. The trial court approved and ordered the stipulation. Problem is, the only authorized way for the parties to obtain an extension of time in a civil case before expiration of the notice of appeal deadline is to get a court “upon a showing of good cause” to order the extension. See Haw. R. App. P. 4(a)(4)(A). However, the parties’ stipulation and the court’s order did not contain these magic words.

The Intermediate Court of Appeals dismissed the appeal for lack of jurisdiction because the notice of appeal was not timely filed, because there was a stipulation and not a…

Continue Reading Can Appellants Rely On Trial Court’s Erroneous Order Granting Extra Time To Appeal?

The city takes property for a bike trail. It deposited estimated compensation in court, and sought and obtained immediate possession. The owner disputed whether the city had the power to take his land, but the trial court rejected these arguments. The owner filed an interlocutory appeal on the public use and necessity issues. The city moved to dismiss for lack of appellate jurisdiction: the valuation phase of the trial was not finished, so there was no final judgment and it was too early to appeal. 

The Arkansas Supreme Court agreed. Thomas v. City of Fayetteville, No. 11-930 (Mar. 15, 2012). Because the issue of compensation remained for the trial court to determine, the judgment allowing the taking was not final. Piecemeal appeals are generally not favored, and the court refused to adopt the property owner’s call for an exception because disallowing the appeal would “divest him of a substantial…

Continue Reading Arkansas: Public Use Determinations Not Immediately Appealable