2015

Here’s a fascinating decision from the Ninth Circuit on our other area of interest, election law. 

Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142 (9th Cir. Nov. 10, 2015) was a challenge to Tucson’s unusual hybrid system of electing the city council. The primary election is a partisan primary, limited to residents of each of the city’s wards. Once elected in these ward-by-ward primaries, the candidates go on to an at-large general election, where everyone in the city is eligible to vote. This system was challenged as violative of equal protection, because it deprives city voters of the ability to vote in the ward-by-ward primaries.

In a 2-1 decision authored by Judge Konzinski, the Ninth Circuit agreed.   

Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142 (9th Cir. Nov. 10, 2015)

Continue Reading Election Law Detour: All Voters Must Be Allowed To Vote In Primary If It’s “Unitary” With General Election

A quick one from the Georgia Court of Appeals. In Fincher Road Investments, LLLP v. City of Canton, No. A15A1290 (Nov. 13, 2015), the court held that a condemnee was entitled to recover attorneys’ fees and costs when the condemnor abandoned a taking, and was entitled to recover just compensation for the temporary cloud which the condemnation placed on the property.

This started as a quick-take, and the City deposited $787,400 with the court, after which the court declared that the City had title. The owner objected to the taking itself, and to the amount of compensation. After the court denied the owner’s petition to set aside the taking, the owner appealed. The court of appeals held the trial court should have considered certain facts about the timing of notice of the condemnation. When the case was remanded, the City told the trial court it no longer wanted the…

Continue Reading Ga App: Property Owner Entitled To Temporary Takings Damages In Addition To Attorneys’ Fees When Condemnor Drops Case

Here’s the recently-published brochure with more details about the ALI-CLE Eminent Domain and Land Valuation LItigation conference, set for Austin in January 2016. 

In the coming days and weeks, we’ll be posting more details about the conference. Our co-planning chairs Joe Waldo, Jack Sperber, and Andrew Brigham have assembled a great agenda, taught by the usual stellar faculty. If eminent domain, appraisal, or land use is your thing, you really should attend. 

33d Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, Jan. 28-30, 2016, Austin, TX

Continue Reading ALI-CLE Eminent Domain And Land Valuation Conference: Full Brochure

Here’s the amicus brief we filed today on behalf of our Owners’ Counsel of America colleagues in Livingston v. Frank, No. 15-470 (cert. petition filed Oct. 9, 2015). That’s the case in which the Florida District Court of Appeal held that the interest generated by quick-take deposits is not the private property of the condemnee, and therefore it is not a taking when the clerk of the court gives 90% of the interest to the condemnor.

Our brief argues that the Florida court rewrote the rules of who owns the deposit in order to save the statute which allows the clerk to give the interest on the deposit to the condemnor. There’s a strong “judicial takings” flavor to the brief, even though we don’t think it’s necessary for the Court to go down that path expressly in order to take the case and reverse.  

Here’s the Summary…

Continue Reading New SCOTUS Amicus Brief: There’s No IOU’s In Eminent Domain – Quick-Take Deposit Belongs To The Property Owner

As we noted here, the government is taking the property belonging to a Nevada family which is immediate adjacent to the infamous super-secret “Area 51” site.

For more details on the story, read “The Unlikely Struggle of The Family Whose Neighbor is Area 51.” It tells the history of the property, the alleged past misdeeds of the government, and the family’s current eminent domain struggles which are now in the valuation phase. It’s a great read.

The most interesting tidbit? The family’s lawyers have demanded a jury trial. In a federal taking.  We all know that you don’t get a jury in a federal condemnation. But why not? The demand for a jury isn’t necessarily a crazy one, as this other case — which also seeks a jury in a federal inverse condemnation action — shows.  

For more, see this story from the Las Vegas Sun.Continue Reading Valuation And “The Area 51” Taking

Those of you who represent property owners on the business end of eminent domain who practice in Florida and the few other states which allow recovery of attorneys’ fees, consider yourselves lucky: the rest of us poor slobs who practice in places where they are not permitted — either as a component of a constitutional command of just compensation, or by legislative grace — are envious.

We understand that to force a property owner to bear its own fees and costs to recover just compensation — compensation which the condemnor should have offered in the first place — effectively denies just compensation, and allows a condemnor to get away with an inadequate offer simply because it may make little economic sense for the property owner to fight back with a lawyer. Each dollar spent on attorneys is a dollar less the owner gets for her property.   

But even if…

Continue Reading Florida: When Govt Excessively Litigates An Eminent Domain Case, “Full Compensation” Requires Payment Of Attorneys Fees

“Waikiki” means a lot of things to a lot of people. With its wall-to-wall high rises, it could be Las Vegas-by-the-Sea. Or the site of the most famous beach in Hawaii, if not the world. A place where impossibly tony shops and kitsch exist side-by-side. Where the “Hawaiian” bric-a-brac is imported from the Phillipines and China, and the beach sand is reputed to be Australian. A place to go, and a place to escape from. 

But whatever Waikiki might be, one thing is certain: it no longer has just two hotels as it once did, nor is it a sleepy agricultural backwater. It is the economic engine that drives Hawaii’s tourist economy, and the visitor destination, where one-third of our tourists end up. Even with these contradictions — or perhaps because of them — the ordinance which controls development within the Waikiki Special District requires consideration…

Continue Reading What Does “Waikiki” Mean? – Variances, Safety Valves, And A “Hawaiian Sense Of Place”

Mark your calendars for next Thursday, November 5, 2015, at 4:30pm at the University of Hawaii Law School Moot Courtroom for the annual Gifford Lecture in Real Property, sponsored by our colleagues at Carlsmith Ball. 

This year, the lecture is by Columbia Lawprof Thomas W. Merrill (also a recent Brigham-Kanner Property Rights prizewinner), and he will talk about “The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications.”

The postcard is below, so come on up to the law school and take advantage of having a legal scholar of great renown in town. 

2015 Gifford Lecture – Professor Thomas Merrill

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Continue Reading Thursday, November 5, 2015, U.H. Law School: Lawprof Thomas Merrill To Speak About Property And Public Trust

In Dimare Fresh, Inc. v. United States, No. 15-5006 (Oct. 28, 2015), the Federal Circuit held that the FDA wasn’t liable for a taking when it issued an incorrect food safety warning that hurt the tomato market, because it was just a warning and didn’t come with coercive action like a quarantine or a recall. In other words, just sayin.

The FDA thought that certain types of tomatoes from certain growing areas might be responsible for a salmonella outbreak. So it “went loud,” which in today’s internet-fueled media environment meant that over the course of the next few days, it issued two press releases, the first which identified the type of tomatoes it believed were involved (“raw red plum, red Roma, or round red” — a pretty wide net), and a second which let certain geographic areas off the hook. The FDA also briefed the media, narrowing the suspected…

Continue Reading Just Sayin: No Taking For FDA Salmonella Warning Which Killed Tomato Sales

We’ve had the Kansas Supreme Court’s opinion in Kansas City Power & Light Co. v. Strong, No. 110573 (Aug. 28, 2015) in the hopper for a while, but never quite got around to posting it. Something else always seemed to take precedence, and it’s just one of those decisions that doesn’t really reach out and grab you. [Unless you focus on the difference between the court-appointed appraisers’ valuation ($96,465) and that of the jury ($1,922,559). Lowball watch! material, but that’s not why we’re posting it.]

The opinion analyzes the condemnor’s three arguments that the trial court should have kept from the jury evidence offered by the property owners. Kansas has a statute which sets out the “formula” (the court’s words, not ours) for how valuation is calculated in a partial taking. The court notes it is a “simple” formula: the “before” value of the property less the value…

Continue Reading Kansas: We’re Pretty Much Not Going To Second-Guess The Jury When It Comes To Compensation