March 2020

EX A

Here’s the cert petition that we’ve been eagerly waiting to drop in a case we’ve been following (and which gathered a lot of public — and academic — attention and outrage). 

Yes, this is the case where the Village police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. Homeowner sought compensation for a taking. The Tenth Circuit, however, concluded “no taking” because the police were exercising the police power. And you can’t have a taking where the government is exercising the police power.

We were not terribly surprised by the ruling as grossly unfair as it is, because it is pretty typical: customs agents inspect and seize your laptop at the border to check it out but destroy the data on the hard drive? no taking; DEA holds your legal prescription drugs as evidence against…

Continue Reading New IJ Cert Petition: Purposely Destroying Your House Could Be A Taking, Even If Govt Was Exercising Its Police Power

As we noted recently, our spring William and Mary Law course is taking a look at the role of property rights in the debates about the ratification of the U.S. Constitution and the political atmosphere from the founding to the Civil War. Being able to studying these subject in Williamsburg is even better, because we’re right in the center of where some of the most important historical events occurred.

But wait, you say, the ratification debates took place in Philadelphia, not peninsular Virginia, so what gives? Our view is that the unsettled question of whether the U.S. Constitution is a pro- or anti- slavery document was not resolved in law until the Civil War, and that the factual debate continues to this day. And the critical events that set the ball in motion took place right down the road from the law school.

First, Point Comfort, the location…

Continue Reading “And although they may be poor, not a man shall be a slave” – A Brief Visit To The Birthplace Of A More Perfect Union

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Make what you will of this 205-paragraph, 114 page (including 128 footnotes) Complaint, filed yesterday by the Acting Corporation Counsel for the City and County of Honolulu and a battery of outside lawyers against gasoline producers, alleging that they are responsible to pay the costs of sea-level rise and other symptoms of what the complaint calls the “climate crisis.”  

It’s a challenging read, but the fun part is in the claims for relief (fast forward to page 99), which include (for you property mavens) nuisance, private nuisance, and trespass (by flooding), as well as affirmative and negligent failure to warn of the dangers of fossil fuel products. 

Will this lawsuit go anywhere? Is a big municipal payday in the cards? Will it get to a local jury? Your guess is as good as ours. But we’ll be following along, for sure.  

Complaint, City and County of Honolulu v. Sunoco …

Continue Reading Complaint: Honolulu Sues Gas Companies (For Nuisance) To Recover The Cost Of Sea-Level Rise

Here’s the video of the OA held this morning (March 10, 2020) in a case we’ve been following, about the statute of limitations governing inverse claims. Maryland Reclamation Association filed an regulatory takings claim in 2013, and eventually the jury awarded a whopping $45 million in just compensation and interest. Hartford County asserted the claim was barred by the three-year statute of limitations, and the claim accrued in 2007 when the Board of Appeals administratively denied MRA’s variance request. 

The Maryland Court of Special Appeals concluded that “An inverse condemnation claim ‘accrues when the affected party knew or should have known of the unlawful action and its probable effect.'” Okay, the County responded, MRA discovered the County’s conduct in 2007 when the Board denied the variances. In response, MRA asserted that the taking must become “permanent or stabilized,” and that didn’t occur until the court of appeals affirmed the…

Continue Reading Maryland Court Of Appeals Considers Statutes Of Limitations In Inverse Condemnation: Do Appeals Toll Time?

Here are the final cert-stage briefs in a case we’ve been following for what seems to be a long time.

We say that because we represented the property owner the last time it was up before SCOTUS, when we came tantalizingly close to making the cut. 

After the Court denied review, the property owner sued the Commission in federal court, asserting that being undercompensated in state court was itself a violation of the U.S. Constitution.

The district court dismissed the case, followed by the Fifth Circuit affirming in Bay Point Properties, Inc. v. Mississippi Trans. Comm’n, 937 F.3d 454 (5th Cir. 2019). The Fifth Circuit held that a property owner who asserted that it was not fully compensated in state court inverse condemnation case, could not then sue the state DOT in federal court for the difference. The reason wasn’t based on the substance of the allegations…

Continue Reading Final Cert-Stage Briefs In Case Asking: Does The Self-Executing Just Compensation Clause Abrogate A State’s 11th Amendment Immunity?

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At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleagues, New York’s Jon Houghton and Hawaii’s Dave Day presented a very informative program on litigating regulatory takings cases. Jon is a property owner-side lawyer, while Dave is a Deputy Attorney General who represents the State of Hawaii in such cases. So it was a practical and balanced presentation.

Well, Jon and Dave are taking (pun intended) it to the next level. On Friday, April 24, 2020 at 2-3pm Eastern Time, they will be presenting “Strategies for Litigating Regulatory Taking Cases” in a webinar produced by ALI-CLE. This isn’t simply a repeat of their Nashville program, but they will be exploring in more detail the practicalities of building and defending these difficult cases. 

Here’s the description of the program:

The U.S. Constitution provides that private property may not be taken for public use

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Continue Reading Mark Your Calendars (Friday, Apr 24, 2020): ALI-CLE Webinar – Strategies for Litigating Regulatory Taking Cases

Here’s the latest in a case we’ve been following.

No. 52 Maryland Reclamation Associates, Inc. v. Harford County, Maryland

Issues – Constitutional Law – 1) Does a takings claim under the Maryland Constitution accrue at the time of a stayed administrative decision or at the time of a final judicial decision affirming that result? 2) May a regulatory taking become permanent and stabilized before a court of proper jurisdiction determines the validity of the regulation effecting the taking? 3) Should Petitioner’s takings claim be dismissed based on Petitioner’s failure to raise this constitutional issue in any administrative proceeding? 4) Did the decision of the Harford County Board of Appeals prohibiting a proposed use of Petitioner’s land to protect the public constitute a taking for which compensation is due? 5) Does the jury’s damages award as compensation for an unconstitutional taking contravene Maryland law when the damages are not the fair…

Continue Reading Upcoming Arguments In Maryland Takings Case – 10am ET, Tuesday, March 10, 2020

You recall that a short while ago, in Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018), the Supreme Court held that patents are a form of “public property” (more like a government-created entitlement), and thus Congress can withhold the usual Article III tribunal and a jury when the validity of that property is challenged. The majority held that “inter partes review,” under which the Patent and Trademark Office administratively reconsiders (and may cancel) previously-issued patents, does not run afoul of the Constitution because a patent is a “public right,” and therefore more like a grant of a franchise than classic common law property.

Although the Court validated inter partes review, it left open the question of whether a patent owner who has her patent (in thousands of cases, these patents were issued before inter partes review was adopted) invalidated via…

Continue Reading New Cert Petition: Are Patents “Property” Protected By The Takings Clause (Is Inter Partes Review A Taking)?

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We just completed a fun hour-long talk with the students in the William and Mary Law School’s American Constitution Society, the Native American Law Society, and the Society on Environmental and Animal Law about the various pipeline cases that are ongoing nationwide. (If our tech worked, we shall post the audio recording in a future post.)

The theme of our talk was that these cases are an excellent illustration of the need for lawyers to think outside their usual lanes when it comes to addressing and solving their clients’ problems, because they present a smorgasbord of legal issues that range from property and eminent domain law, to administrative law, constitutional law, state and local government law, environmental law, federal courts, and civil procedure. 

The lawyers who are litigating these cases have done a good job of not being bound by convention and thinking creatively. They are thankfully analyzing the cases…

Continue Reading Cases And Materials From Today’s WM Law ACS Talk: “Pipelines at the Intersection of Environmental, Administrative, and Property Law: How Divergent Interests Joined Forces To Challenge Big Energy”

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Update: here’s a report (video included!) about our spring “field trip” to what arguably is the birthplace of a “more perfect union” (which just happens to be right down the road from William and Mary Law School).

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This semester, we’re teaching a short course at William and Mary Law School (and yes, thanks to a willing administration and student body, we will be back in the fall for the “big” Eminent Domain and Property Rights course). 

The title of the spring class is “No Property in Man: Slavery and Antislavery at the Nation’s Founding,” and the focus of the course is the book by Princeton historian Sean Wilentz from which we filched our title. Professor Wilentz’s book is a recounting of the debates surrounding the ratification of the U.S. Constitution and the political atmosphere from the founding until the Civil War.

When we read it last year…

Continue Reading William & Mary Spring Course: “No Property in Man” – Slavery And Property Rights