2024

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Today’s the day, 191 years ago, when — a mere 5 days after oral arguments — the U.S. Supreme Court issued its (in)famous opinion in Barron ex rel. Tiernan v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833).

Generations of law students study this one in their Con Law classes, and it is mostly known as the case which held that the Bill of Rights limits only the federal government and does not limit the power of states. For the latter, one must look to state constitutions. Barron, of course, was overruled or otherwise neutralized by the Fourteenth Amendment (privileges or immunities clause or the due process clause, take your pick).

But the reason we’re posting our sad birthday wishes today isn’t for that reason, but more because in our estimation, Barron was the first “takings” case considered by the U.S. Supreme Court.

The case was instituted …

Continue Reading Sad 191st Birthday To You, Barron v. Baltimore (Feb. 16, 1833) – The First SCOTUS Takings Case?

Screenshot 2024-02-13 at 06-58-13 Professors' Corner - Legislative Exactions & Sheetz v. Co. of El Dorado

Join us at 12:30pm ET today, Tuesday, February 13, 2024, for the ABA’s Section of Real Property, Trust and Estates’ monthly Professor’s Corner, where we will join exactions experts Prof Tim Mulvaney, Andrew Gowder, and Prof Elizabeth Elia to discuss the Supreme Court arguments, the issues in the case, and what may be down the road.

Here’s the description:

Can legislative action constitute an exaction subject to the Nollan/Dolan/Koontz test? In his concurrence to the Supreme Court’s 2016 denial of certiorari in California BIA v. City of San Jose, Justice Thomas made clear that he was eager to examine this issue. Justice Thomas’s wait is over; the Supreme Court granted certiorari to address this very question during the 2024 session in the case Sheetz v. Co. of El Dorado. Our expert panel will discuss all sides of this extremely interesting case and its implication for takings jurisprudence.Continue Reading Today, 12:30pm ET: Professor’s Corner – Legislative Exactions & Sheetz v. County of El Dorado (ABA RPTE)

Illinois adopted a statute that tweaked public pensions:

On January 1, 2020, Public Act 101-610 became effective and amended, in pertinent part, portions of the pension code to consolidate all applicable local police and firefighter pension fund assets into two statewide pension investment funds, one for police and the other for firefighters. Pursuant to the Act, the local pension funds were required to transfer custody and investment responsibility for their fund assets to the respective statewide funds, which are now tasked with collectively investing and administering the pooled assets. The Act provided a transition period that ended on June 30, 2022, for the transfer of securities, assets, and the investment function from the local funds to the statewide investment funds.

There’s more detail on the statute in the Illinois Supreme Court’s opinion in Arlington Heights Police Pension Fund v. Pritzker, No. 129471 (Jan. 19, 2024), but we’ll leave those…

Continue Reading No State Takings Problem In Amending Public Pension Plan

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The historic Supreme Court of North Carolina.

Here’s the latest in a somewhat strange case we’ve been following about what happens after a court determines that a taking lacks a public use — but the condemnor goes ahead and just seizes the property anyway.

The Town of Apex, North Carolina, sought to take an easement across Rubin’s land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town’s development approvals for his proposed residential subdivisions.

While Rubin’s public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public…

Continue Reading The Public Use Requirement Is Self-Executing: “In a free society, we should not expect that when a court tells the government that a taking is illegal and unconstitutional, that it would just go ahead and seize the property anyway.”

A quick per curiam from the Ohio Supreme Court.

In State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2023-0125 (Ohio Jan. 24, 2024), the court issued a gentle (or maybe not-so-gentle) “benchslap” to the court of appeals. Here’s the scenario.

First of all, recall that Ohio does not recognize a claim for “inverse condemnation” or “regulatory taking.” Instead, if a property owner believes that the government has de facto taken property but has not provided just compensation, the owner seeks a writ of mandamus asking the court to compel the government to institute an eminent domain action (what CJ Roberts calls “an upfront taking”).

AWMS thought this was the case and sought a writ to compel Mertz, an official with the state Department of Natural Resources, to take and pay. The court of appeals entered summary judgment for Mertz, but the Ohio Supreme Court held…

Continue Reading Ohio: We Really Meant It When We Remanded For Weighing Of Evidence – Appeals Court Had No Business Dismissing

Screenshot 2024-02-05 at 12-23-56 Missed Opportunities in State Takings Challenges to Pandemic-Era Restrictions

Thank you to the Brennan Center for Justice at NYU Law School’s State Court Report (#statecourtreport) for publishing our piece “Missed Opportunities in State Takings Challenges to Pandemic-Era Restrictions.” The title gives a hint about what this is about: how state and local government’s reaction to Co-19 spurred challenges not only under the U.S. Constitution, but under state constitutions. We give examples of — and comment on — missed opportunities and out-and-out errors in several approaches.

Here are the opening paragraphs:

Responding to the Covid-19 pandemic, the federal government and many state and local governments imposed a variety of restrictions on individuals and businesses. The Centers for Disease Control and Prevention, for example, purported to suspend the ability of property owners to evict nonpaying tenants — a move the U.S. Supreme Court rejected as beyond the agency’s power. State and local governments adopted similar eviction moratoria, and many directed…

Continue Reading New Article: Missed Opportunities in State Takings Challenges to Pandemic-Era Restrictions (Brennan Center’s State Court Report)

PXL_20240201_150817859.PANOOur annual “proof of life” photo –
Yes, this is New Orleans,
but nearly 300 of us are in the room
to talk eminent domain and property rights shop

A fantastic turnout at the ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

Some numbers:

  • Eleven. The number of attendees from a single firm, Frederikson & Byron. We think that is some kind of record.  Impressive!
  • Nine. The number of law students who joined us of their own initiative to learn about eminent domain and takings, and to network.
  • Five. The number of members of the legal academy who are on the faculty. Our programs have a good mix of theory and practice.
  • Three. Attendees who are sporting bow ties.
  • Forty-one. The number of these conferences we’ve had so far. And going strong.

Wish you were here.Continue Reading 2024 ALI-CLE Eminent Domain & Land Valuation Litigation Conference, New Orleans

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As the title of this post notes, we are underway with the 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, in New Orleans. 

But the magic doesn’t just happen on its own. It takes a lot of hard set-up work by the ALI-CLE staff to make #EminentDomain2024 a great event. Here’s some of what goes on beforehand.

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The “before” view of the Big Room

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In the rear with the (AV – webcast) gear

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Getting closer…

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We’re not all work…just outside the conference roomContinue Reading We’re Underway With The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, New Orleans

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If you dream such dreams as this photo, read on.

My law firm, Pacific Legal Foundation, is on the hunt for lawyer to join our Property Rights group (yours truly is the Director of Property Rights Litigation, so you will be working with me and the other takings and con law mavens in our practice). Here’s the full description of the spot:

You: An entrepreneurial freedom fighter with a passion for property rights litigation. You work with more senior-level attorneys to find and win cutting-edge property rights cases in trial and appellate across the country. You work as a part of a collaborative team, but are also self-motivated and able to work independently with minimal supervision. You are eager to learn, relentless, and a focused lawyer.

Them: Bureaucrats, city councils, mayors, governors, and federal agencies stripping Americans of their rights every day. There’s a lot of government overreach out there…

Continue Reading Dig Property Rights? Join Our Firm As A Courtroom Property Rights Lawyer

A quick one from the South Carolina Supreme Court.

In Applied Building Sciences, Inc. v. South Carolina Dep’t of Commerce, No. 28184 (Jan. 17, 2024), the court held that the $50,000 cap on relocation benefits provided to ABS by South Carolina’s version of the Relocation Act was enough, and did not deprive ABS of just compensation.   

Applied Building Sciences was a tenant in a building taken by the South Carolina Division of Railways, and was listed as an “Other Condemnee” in the eminent domain action. The taking forced it to relocate its business, which triggered its right to seek relocation benefits. South Carolina offers those displaced up to $50,000 in benefits, even if the taking isn’t federally funded (and thus not covered by the federal URA). 

ABS thought the cap was unconstitutional and asked for $560k in expenses, and raised an inverse condemnation claim. The Department said no…

Continue Reading South Carolina’s Relocation Act Benefits Are Not “Just Compensation”