2020

In Hawaii we employ a phrase, “how can?” as a shorthand response when you’re wondering how something can be. It’s easy, short, and more efficient than saying “I’m sorry, I don’t understand how you think you can accomplish this.”

Thus, “how can?” was our first response when the U.S. Department of Health and Human Services’ recently-released agency order establishing a covid response nationwide residential eviction moratorium crossed our desk yesterday. By what authority does the federal government purport to dictate (yes, we’re going to use that word) whether state and local governments (and state courts) allow evictions for not paying rent? We thought that property law was one of those local things?

Just as we were about to dive in, our friend and colleague Tony Della Pelle produced an analysis more cogent than “how can?” In “COVID Eviction Freezes – Who Is Supposed To Pay?,” Tony asks, “Did …

Continue Reading How Can? U.S. DHS: National Eviction Moratorium (Roscoe Filburn Could Not Be Reached For Comment)

Here, the ruling of the Massachusetts Superior Court (Suffolk County) in Matorin v. Commonwealth of Massachusetts, No. 2084CV01334 (Aug. 26, 2020).

The short story is that the court denied the plaintiffs’ motion for a preliminary injunction on the grounds that they were not likely to succeed on the merits of their as-applied regulatory takings challenge to the Commonwealth’s series of moratoria on residential evictions. The moratoria allow the property owners to recover possession after expiration, and the tenants are not freed from the eventual obligation to pay rent.

Skip forward to page 17 for the court’s takings analysis (although it would be a shame to not read the intervening pages, because the opinion also deals with the related separation of powers and access-to-the-courts questions). The court first rejected the argument that the moratoria allowed physical occupations (based on Yee), because it isn’t “permanent,” merely temporary. And (also based…

Continue Reading Mass Super: State’s Temporary Eviction Moratorium Is Not Likely A Taking

News just in: we’ve just received confirmation that the Conference will not be in-person in Scottsdale in January 2021, and we’re going online.

Not a big surprise, but still a bit disappointing, and it’s a shame that the circumstances won’t allow us to meet in-person to talk shop and to renew our friendships like we do every year. 

But rest assured we’re making lemonade out of these lemons, and we’d appreciate everyone holding the dates on your calendars to join your colleagues from across the nation for the online Conference. And no, we’re not going to do two-and-a-half-days remotely, we’re paring down the agenda and will be focusing on hot topics, and great presenters. The remote format has some advantages, and we’re taking advantage of the circumstances to plan a conference more interactive and a bit different than usual.

This will also be a great program for first-time Conference participants.

Continue Reading Breaking: News About The 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 28-29, 2021)

Can there be a more “Kentucky” thing than the Kentucky Derby? We can’t think of one. Today’s case from the U.S. Court of Appeals for the Sixth Circuit, West v. Kentucky Horse Racing Comm’n, No. 19-6333 (Aug. 28, 2020) is about the litigation stemming from the disqualification by the racing stewards of the “horse to cross the finish line first,” the storied “Maximum Security.”

As the opinion recounts, the owners of Maximum Security (we shall call him “MS” for short) thought they had a winner. He did indeed cross the line first. But the jockey of a different horse called “foul,” and after careful review of the tape, the stewards agreed. Don’t throw your stubs away yet, folks!

MS and his owners “were not awarded the Derby Trophy, an approximate $1.5 million purse, and potentially even far greater financial benefits form owning a stallion that won the Derby.” Slip…

Continue Reading Kentucky Derby Umpires Did Not Violate Due Process By Calling Balls And Strikes And DQ’ing The “Winner”

Tiffany Lashment’s “Ag Law in the Field” podcast is one of those you really should follow. Every episode is worthwhile in our opinion. The latest episode is a chat with Texas property owner lawyer Jim Spivey. From the show notes:

Eminent domain is one of the most popular topics we cover. Today, we are focusing on the important issue of compensation when property is being condemned. San Antonio-based attorney, Jim Spivey, joins us to talk us through many helpful concepts related to compensation, and offers important tips to Texas landowners dealing with eminent domain.

Check it out.
Continue Reading New Ag Law In The Field Podcast Ep: Jim Spivey On Eminent Domain & Just Compensation

Ainalea

A short while ago, we featured the cert petition in a case from the Big Island that we’ve been following as various pieces of it went up and down through both the state and federal court systems. See “New (Mike Berger) Cert Petition: ‘This case is the proverbial ‘Exhibit A’ of much that is wrong [with takings law].‘“

Now, after the State of Hawaii waived its right to file a BIO, five briefs of amici curiae (including one in which we played a small part) have been filed in support of the petition, urging the Court to review the Ninth Circuit’s opinion. We wrote about the case in a recent issue of the American Planning Association’s magazine. The short story is that a federal jury concluded that the State of Hawaii Land Use Commission took the owner’s property under both a Lucas and a …

Continue Reading No Shortage Of Amicus Support For Takings Cert Petition (Lucas and Penn Central!)

Property owners sued the State of Ohio Department of Transportation’s Director (in his official capacity) in federal court after ODOT’s highway project resulted in flooding of their land. They raised two claims: the first, a taking under the Fifth (and Fourteenth) Amendments, and the second a claim under 42 U.S.C. § 1983. The relief sought: a declaration that this is a taking along with just compensation, and damages for the section 1983 violation.

If you are thinking “what about the Eleventh Amendment?,” you would be thinking like the U.S. Court of Appeals for the Sixth Circuit. In Ladd v. Marchbanks, No. 19-4136 (Aug. 20, 2020), the appeals court affirmed the district court’s dismissal of the complaint. No federal court lawsuits against a state is the general rule. There are exceptions, of course, most notably when Congress abrogates the states’ immunity, but the Supreme Court has held that section 1983…

Continue Reading Sixth Circuit: You Still Can’t Sue States In Federal Court For Takings, Even After Knick

Reading through the Federal Circuit’s opinion in Christy, Inc. v. United States, No. 19-1738 (Aug. 24, 2020) (a case we’ve been following since its inception; see here for the complaint), doesn’t hold out a lot of hope for something new, because the Federal Circuit already ruled in Golden v. United States, 955 F.3d 981 (Fed. Cir. 2020), that cancellation of a patent via inter partes review is not a taking. That precedent took care of the Christy plaintiffs’ main beef.

But they also alleged that the fees they paid to the PTO for issuance and maintenance of the patent were exactions. They wanted the fees they had paid refunded. Why should we have to pay for what the government eventually held was an invalid patent? No dice, held the court. An “exaction” is for money paid “in contravention of the Constitution, a statute, or a regulation.”…

Continue Reading Fed Cir: No Taking For Invalidating Patent By Inter Partes Review (But You Knew That Already)

In Utah Dep’t of Transportation v. Coalt, Inc., No. 20161063 (Aug. 17, 2020), the Utah Supreme Court dealt with a public use and a just comp issue.

The first is perhaps the more interesting. After a federal court upheld environmentalists’ challenge to the Environmental Impact Statement prepared by UDOT for its Legacy Parkway Project and enjoined highway construction, UDOT and the enviros settled. The settlement called for “additional measures to protect the wetlands and its wildlife inhabitants from the effects of the Parkway.” Slip op. at 6.

One of those measures? Get additional land for the Legacy Nature Preserve. Guess whose property was, as a consequence, now slated for eminent domain? You guessed it: Coalt’s. It objected to the taking, “arguing that UDOT did not have the authority to condemn Parcel 84 because it was not doing so for a transportation purpose or a public use, but to settle…

Continue Reading Utah: As Long As A Taking Is For The Birds, Not The Enviro Plaintiffs, It’s A Public Use