2015

1.  Don’t repeatedly refer to your private poll as an “election” and limit it to “voters” of only a certain race. Real “voters” who are excluded from your election .. I mean poll might get the wrong idea, like it’s an election or something.  

2.  Don’t use public money to fund said election … “poll,” even indirectly. Washing public money through a government agency to a nonprofit might give people who don’t understand these things the wrong idea. Those fools might still consider it public money even though it is once-removed from official agency funding of your poll. Plus, it just looks bad, man.

3.  Don’t go on and on about how this election is to select “candidates” to be “delegates” to a “constitutional convention,” when this is really like a Moose Lodge vote and a wholly private affair, and none of anyone else’s damn business. …

Continue Reading Tips From An Election Lawyer For Setting Up Private Racially-Exclusive Elections, er … “Opinion Polls”

The Mississippi Highway Commission wanted to build a road. That road was on wetlands, so it needed a permit from the U.S. Army Corps of Engineers. In order to convince the Corps to issue the permit, the Commission offered up 1,300 acres of land as wetlands mitigation. Problem was, these 1,300 acres didn’t belong to the state, but were owned by Ward Gulfport. The Corps issued the permit, conditioned on the Commission acquiring the land from Gulfport.

Understandably, Gulfport wasn’t happy. It had its own plans for what it wanted to do with its land, and those plans — which included its own application for a wetlands permit — went out the window, including (allegedly) some sales that fell through. So Gulfport brought a takings claim in state court, and challenged the permit in federal court. The federal court agreed with Gulfport’s arguments and vacated the permit.

The state court…

Continue Reading Intent Matters: DOT Offering Someone Else’s Property To The Corps of Engineers So DOT Can Get A Permit May Be A Taking, Even If Temporary

We all know the old rule that “interest follows principal,” which means that when a deposit on account is private property, so is the interest which that deposit earns. 

Not according to the Florida Court of Appeals, however. In a 2014 decision, that court held that interest earned on quick-take deposits was not the private property of the owner whose land was taken, and thus the government could keep 90% of the money. After the Florida Supreme Court denied review, a cert petition was filed, asking the U.S. Supreme Court for review.  

Tampa needed land, and filed quick-take actions. It deposited the funds which it estimated to be just compensation with the court clerk. That transferred title from the owner to the City. The parties negotiated a settlement, and agreed that the settlement amount was “full compensation” for the taking. Problem was, the owner didn’t know that the …

Continue Reading New Cert Petition: Interest Earned On Quick-Take Deposit Is Property, Gov’t Can’t Keep 90%

In General Commercial Properties, Inc. v. Florida Dep’t of Transportation, No. 4D14-0699 (Fla. Dist. App. Oct. 14, 2015), the court held that a statute which requires the trial court to use the “first written offer” by the condemnor made prior to the initiation of the eminent domain case as the benchmark when it is calculating attorneys’ fees, does not mean that the DOT is stuck with a very early offer it made under the “Early Acquisition Program.”

Under this program, the DOT made early offers to owners for properties it wanted to acquire. There was no obligation on the part of the owners to sell. As the court phrased it, it was an “arms-length negotiation[]” with no eminent domain threat. (Yeah, right.) This was supposedly outside the usual eminent domain-related acquisition program, and if the owner said no thank you, there was nothing the DOT could have done. So in…

Continue Reading Fla App: Offer Early, Offer Often – Early Precondemnation Offer Does Not Trigger Attorneys’ Fee Statute

Here’s the amici brief we filed today in California Building Industry Ass’n v. City of San Jose, No. 15-330 (Oct. 16, 2015).

That’s the case in which the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

CBIA filed a cert petition, and our brief (filed on behalf of the National Federation of Independent Business Small Business Legal Center and the Owners’ Counsel of America) agrees that the Court should review this case. We argue that even though …

Continue Reading Amici Brief In SCOTUS Affordable Housing Case: Prohibiting Homebuilders From Selling At Fair Market Value For 55 Years Is A Taking

bears

If you are an appellant, you know it isn’t going to be a good day when the opinion in your case starts out like this:

“What a long, strange trip it’s been.”1 And, it doesn’t seem to be over due to the continued meanderings of the cause before us and the arguments posed by appellant and his counsel.

———-

1. “Truckin’” by the Grateful Dead.

Slip op. at 1. 

It didn’t get any better than that, and the fact that this was an appeal by a guy who pled guilty of the crime of delivering a controlled substance, after which he was convicted, may have had something to do with the court’s treatment.

A Texas statute allowed the trial court to assess court costs — in this case $2,000 — to a defendant who defers adjudication of guilt and he claimed that this was a taking. According to the court, this issue…

Continue Reading The Grateful Court: Making A Criminal Defendant Pay Court Costs Is A Tax, Not A Taking

Here are some upcoming events in which you may be interested, in chronological order:

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Continue Reading Upcoming Events And CLE’s – Appellate, RLUIPA, Sharing Economy, And More

ALI-CLE-2016-masthead

Here’s the full agenda for the 2016 Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, January 28-30, 2016, in Austin, Texas. 

Together with our friend and colleague Joe Waldo, we think we’re put together a pretty good program that covers a lot of ground. This is the first time the conference has been to Austin, and we’re starting off with a talk by Austin Mayor Steve Adler, who in his former life was an eminent domain lawyer. Other highlights:

  • Professor Ilya Somin will speak about his recently-published book in a segment entitled “The Impact of Kelo and the Limits of Eminent Domain.”
  • “Pipelines and Energy Corridors: Valuation Perspectives of Condemnors and Condemnees” with the lawyers on the front lines of one of the hottest topics in eminent domain law nationwide.
  • Retired Minnesota Supreme Court Justice Paul H. Anderson will give us his tips

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Continue Reading It’s Here – 2016 ALI-CLE Eminent Domain Conference: Complete Agenda, Faculty, Registration Information

Here’s the Brief in Opposition in the case which asks whether takings claims against the federal government — which we described as subject to a “jurisdictional ambush” due to the old Tucker Act Shuffle — are subject to the rule of 28 U.S.C. § 1500 set out in the Tohono O’odham case. 

If that’s a lot to digest in one sentence, here’s the slightly longer story. The core issue is one we’ve dealt with extensively before, and which the Supreme Court dodged in in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), namely, whether § 1500’s jurisdictional bar operates in takings claims, which are required to be split between the CFC and the district courts (aka the “Tucker Act Shuffle”). We filed an amicus brief in Tohono O’odham, arguing that the statute cannot be read to deprive takings plaintiffs of their right to secure just compensation, when they…

Continue Reading BIO In Tucker Act Jurisdictional Ambush Case: Takings Claims Subject To § 1500’s Rules