July 2019

No sooner was the ink dry on the Supreme Court’s opinion in Knick v. Township of Scott, than the Court’s decision started to have some effect.

First, the Court granted another pending cert case on takings ripeness and sent back down to the Ninth Circuit for more in light of Knick.

And now this order from the Seventh Circuit in a case that had been argued (listen above, or download here), but held pending Knick. Jensen v. Village of Mount Pleasant, No. 18-2187 (7th Cir. July 3, 2019). 

This was a case where the federal district court had dismissed the owners’ Fifth Amendment claims as unripe under Williamson County. After argument in the Seventh Circuit, the Supreme Court granted cert in Knick, and the Seventh Circuit delayed deciding the case until the Supreme Court decided Knick. 

Shortly after the Supreme Court opinion, the Seventh Circuit…

Continue Reading Knick Already Taking Effect, Even Where It Isn’t Necessary

We were all set to offer our deep analysis of the California Court of Appeal’s recent (published) opinion in Three Aguila, Inc. v. Century Law Group, LLP, No. B289452 (July 2, 2019), when our colleagues at the California Eminent Domain Report blog beat us to it. 

In “Court Decision Serves as Important Reminder on Crafting Lease Condemnation Provisions,” Brad Kuhn writes about a case in which the condemnation clause in a lease provided that the landlord would be entitled to “[a]ll awards for the taking” (subject to the usual/common limitations). 

In California eminent domain cases, businesses may recover goodwill by statute. When the premises were condemned, the landlord invoked the condemnation clause and asserted that it, not the tenant, was entitled to recover the goodwill. Brad writes:

On appeal, the Court held that the property owner was not entitled to compensation for the business’ goodwill. While parties…

Continue Reading Cal App: Business Goodwill “is compensable separate and apart from the parties’ interests in the property taken.”

If you are going to be attending the ABA Annual Meeting in San Francisco next month, here are some of the CLE and other programs of interest to property, land use, and eminent domain types, sponsored by our Section, the State and Local Govt Law Section: 

Thursday, Aug. 8

  • Knick Overrules Williamson County: What Does it Mean for Eminent Domain (in person, or webinar)

    In June 2019, the Supreme Court overruled its Williamson County precedent, which required that property owners, as a practical matter, must bring their Fifth Amendment takings claims against state or local governments in state courts. The Court’s new decision, in Knick v. Township of Scott, allows them to bring their inverse condemnation claims directly in federal court. Their insights into this important decision and its ramifications will be discussed by panelists who pled both sides of this case. Moderator: Steven J. Eagle, Professor Emeritus,

…
Continue Reading Dirt Lawyer CLE At ABA Annual Meeting (San Francisco)

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The flag of the State of Hatu

Williams, a prisoner, thought that Utah prison officials should have paid him interest on his prison account. Acting as his own attorney, he sued under § 1983 for a taking and for a deprivation of due process in federal court, raising claims against the Utah Department of Corrections, several state prison officials in their official capacities, and the bank in which his prison account was housed (and several bank employees). The federal district court dismissed, but not on the Eleventh Amendment grounds you might think.

Williams appealed to the Tenth Circuit, which, in Williams v. Utah Dep’t of Corrections, No. 18-4058 (July 8, 2019), affirmed the dismissal, expressly analyzing the claims under the Eleventh Amendment. 

That provision, as you are aware, establishes a state’s immunity from lawsuits in federal court. Over the years, courts have created exceptions to the general rule that…

Continue Reading 10th Cir: Federal Takings Claim Against State Prison Officials For Withholding Interest Barred By 11th Amendment

Back to Knick for a bit. Our colleague Dwight Merriam has penned a response to a recent op-ed by U.S. Senator Sheldon Whitehouse (D – RI).

The good senator, if you weren’t aware, was also the guy who argued and lost the Palazzolo case all the way back in 2001. Apparently, he’s still sore about that, because in response to Knick, he wrote, “‘Knick’-Picking: Why a Recent Supreme Court Ruling Signals a New Day,” in which he argued that the decision “is a gift for big-money developers and regulated industries.” (Neither Ms. Knick nor Mr. Palazzolo is or were a big-money developer or a regulated industry, in case you were wondering.)

Merriam doesn’t see it the same way as the august senator. In “Senator is Wrong About ‘Knick’ Ruling,” he sets the record straight (originally published at law.com). 

* * * *

Senator Whitehouse…

Continue Reading Guest Post: Senator Is Wrong About Knick Ruling

Here’s the latest cert petition about an issue we’ve been following closely. Givens v. Mountain Valley Pipeline, LLC, No. ___ (July 3, 2019)

As regular readers understand, several federal courts of appeals recently have upheld giving prejudgment possession of property to a private pipeline condemnor once a district has ruled in favor of the pipeline that it qualifies under the three predicates in 15 U.S.C. § 717f(h).

These courts conclude that summary judgment — which recognizes that a private pipeline company with a FERC certificate may exercise eminent domain power under the NGA — is enough to also grant the pipeline possession of the land now, even though the NGA does not delegate the quick take power. In our view, these injunctions grant pipelines a substantive right and are an usurpation of Congress’ power to determine how the delegated eminent domain power gets exercises. The courts, however (with …

Continue Reading New Cert Petition: Private Pipeline’s Preliminary Injunction In Natural Gas Act Taking Created New Substantive Rights

Here’s the first post-Knick property owner victory. That was quick! 

Now before you get too excited, this is a GVR (“grant, vacate, remand”) in which the Court, having decided Knick, granted the pending petition, vacated the judgment by the Ninth Circuit, and “REMANDED for further consideration in light of Knick v. Township of Scott, 588 U. S. ___ (2019).”

In Honchariw v. County of Stanislaus (oral argument video above), the Ninth Circuit concluded that California law provided the property owner an adequate opportunity to raise takings and due process claims in a California court, and therefore his federal takings claim in federal court wasn’t ripe under Williamson County. Honchariw disagreed, and argued that California had not provided an adequate opportunity, that “[t]he deicison below was stone-cold wrong under Williamson,” and that this case “may be a useful sister to the Court’s grant of certiorari in [Knick…

Continue Reading First Post-Knick Cert Grant

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We’ve resisted for as long as we can.

Here’s our take at telling the Williamson County and Knick story, 100% in memes.

Why, you may rightly ask? 

Well, it started with our Knick amicus brief, which included a meme that we thought captured well the injustice of property owners being prohibited by Williamson County from raising their federal constitutional claims in federal court (or anywhere, for that matter).

And then, as these things often do these days, the tail started wagging the dog. Readers didn’t want our cogent and deep analysis, they wanted more Knick memes. And rather than post those willy-nilly, we decided to do ’em all in a single post, and be done with it. 

So here you go. For those of you who dig this stuff, read on. If you think we missed any, or would like to send your own to fill…

Continue Reading Knick, Entirely In Memes

Here’s a question. Domestic partnership hit the skids, ended up in Family Court. That court did what family courts do and divided up the couple’s assets. The partners were not married, so one of the issues was whether they were in a “committed intimate relationship.” Family court held no. Decision appealed, and eventually sent back to the family court to consider whether the parties were in a committed intimate relationship more deeply, and if so, to redistribute the parties’ assets accordingly.

On remand, the family court reached the same conclusion (and the same distribution of assets) as its prior ruling: no committed intimate relationship. But for different reasons than it articulated the first round. This time, the court concluded that it could not constitutionally apply the committed intimate relationship test to this case, because “doing so would violate the parties’ constitutional rights.” One of those rights was the takings clause.

Takings…

Continue Reading It Isn’t A Judicial Taking When A Family Court Orders Equitable Distribution Of Assets