42 U.S.C. § 1983 | Civil Rights

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Last week, along with my colleagues Deborah La Fetra and Kady Valois, we filed this cert petition in a case we’ve been following (even before we joined as counsel).

The petition seeks review of the Fifth Circuit’s opinion holding that there’s nothing a federal court can do if a local government does not pay a state-court just compensation judgment for an unreasonably long time. Because we are counsel in the case we won’t go into further detail, but will leave it to you.

Here’s the Question Presented:

A fundamental element of just compensation is “certain payment of the compensation without unreasonable delay.” Bragg v. Weaver, 251 U.S. 57, 62 (1919). In 2013, the Sewerage & Water Board of New Orleans inversely condemned the properties of 70 home and business owners for a flood control project. The property owners obtained state court judgments starting in 2018. Louisiana law…

Continue Reading New Cert Petition (Ours): Can Condemnor Delay Actually Paying Compensation Indefinitely?

JQA

No, not that JQA. (Sorry for the clickbaitey headline.) But who could resist the Fifth Circuit’s per curiam opinion in John Quincy Adams v. Pearl River Valley Water Supply District, No. 21-60749 (July 20, 2022) which held that Mr. Adams, who owned property near a reservoir, could not sue state officials in federal court for injunctive relief for due process violations and takings.

Adams alleged that Mississippi water district officials were violating a state statute by not allowing him to exercise the option to re-acquire property that the water district had condemned decades earlier. His federal court complaint avoided directly asking for money damages because those claims would mean the state officials would have Eleventh Amendment immunity. Instead, “[t]he Adamses requested a declaratory judgment that the District’s sales and leases of property without notice were ongoing constitutional violations and asked the court to fashion whatever injunctive relief it deemed…

Continue Reading John Quincy Adams Loses A Takings Case

In Skatemore, Inc. v. Whitmer, No. 21-2985 (July 19, 2022), the U.S. Court of Appeals for the Sixth Circuit held that neither the Just Compensation Clause, nor the Fourteenth Amendment abrogated the states’ immunity from being sued in federal court for compensation for takings.

This is another one of those cases where — due to Co-19 — businesses forced to close or limit operations by the state (here, Michigan) brought regulatory takings claims in federal court. The claims included takings, and the relief sought was just compensation (no prospective injunction or declaratory judgment). The complaint named state officials (in their official capacities) and state agencies as the defendants. The district court dismissed for lack of jurisdiction and for failure to state a claim. 

The Sixth Circuit affirmed. The court rejected the argument that a state’s Eleventh Amendment immunity from being haled into a federal court without consent does not…

Continue Reading CA6: State Officials Enjoy 11th Amendment Immunity From Just Compensation Claims In Federal Court

Screenshot 2022-07-07 at 13-44-38 The Brigham-Kanner Property Rights Conference

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here – space is limited – fee ranges from free to $195 – a bargain!). And you know that our colleague Jim Burling is this year’s B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here’s the full agenda. The list of speakers is too long to list here but check out these topics:

  • Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
  • Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that’s the panel we’re speaking on)
  • Roundtable: Emerging Issues in Takings and Property Rights Litigation
  • Panel 3: Choosing A Property Regime
  • Panel 4: Property Rights in Times of Scarcity and Crisis

Who can …

Continue Reading Here’s The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

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No smoking in Hatu

A short one from the U.S. District Court in Utah, but worth reading because it highlights one of those unresolved issues: the remedy for a “takings” claim.

Now, you’ve heard the Supreme Court describe just compensation as the “default” remedy for regulatory takings and inverse claims. But it isn’t the only remedy, is it? 

Well, in this Order, the U.S. District Court for the District of Utah seems to think so. At least it is in federal court.

Utah adopted a statute that prohibits tobacco businesses from operating within 1000 feet of a school. Smoke shops sued in federal court for a taking under section 1983 and other things (due process, First Amendment, &c.). The defendant was not the State of Utah because, you know, you can’t sue a state for money in federal court unless it consents. So as in other cases, …

Continue Reading You Can Sue Utah For Compensation In State Court, So No Injunction In Federal Court

A long-ish opinion from the Alabama Supreme Court in Douglas v. Roper, No. 1200503 (June 24, 2022). But a short post because the good stuff is relatively brief.

Bottom line: property owners have a vested interest in excess money generated from a tax sale of their property, and the Alabama legislature cannot prohibit the owners from claiming that excess equity.

Quick background: the legislature enacted a statute that required property owners who had their properties sold to satisfy tax debts first have redeemed the property before they could claim the excess funds, if any, from the sale. This had the effect of permitting the government in many cases to keep that excess (i.e., the property’s equity), as a little something extra — what our New Orleans friends might call lagniappe. Property owners objected, arguing that retroactively applying the statute would be a taking.

There’s a lot to…

Continue Reading Alabama: Government Can’t Keep The Change After A Tax Sale

We’ve been meaning to post the U.S. Court of Appeals for the Sixth Circuit’s opinion in Barber v. Charter Twp of Springfield, No. 20-2298 (Apr. 11, 2022) for a while because it emphasizes an important point about “final decision” ripeness, and the sometimes ridiculous arguments made to support an argument that a takings claim isn’t ripe.

In many situations a takings claim is backwards looking, and seeks compensation or some other remedy for something the government has already done. You flooded my property, or your project encroached on my land, or you designated my property for future acquisition and prevented me from using it in the interim are good examples. But not always. Sometimes takings claims are forward looking. Your regulations require me to allow a cable TV company to install a box on my building’s roof, or you are threatening to open my private marina…

Continue Reading CA6: Dammed If You Do – Takings Claim Is Ripe When Govt Decides To Physically Invade And You Don’t Need To Wait ‘Til It Actually Invades

Its deja vu all over again: like it did just a short while back, in Lafave v. City of New Orleans, No. 21-30358 (June 1, 2022), the U.S. Court of Appeals for the Fifth Circuit once again has rejected a takings claims “based on the city’s failure to honor a judgment of the Louisiana state courts.” Slip op. at 1.

Unlike the previous case, here the judgment being dishonored was not for just compensation, but a state court order that “call[ed] for the return of personal property acquired by the government unlawfully.” Id.

Here’s the story. New Orleans likes traffic cameras, and “used mail to collect fines for traffic violations captured by street cameras.” A class action lawsuit challenged the scheme, and eventually a Louisiana court determined the city lacked the authority to designate the Department of Public Works (and not the police department) as the enforcement authority.

Continue Reading The Keepings Clause: CA5 (Again) Throws Up Its Hands When Local Gov Refuses To Pay Back Money It Owes

Here’s one we’ve been following since its inception, even before we joined the law firm that represents the property owner. (And because our Pacific Legal Foundation colleagues are repping the plaintiffs in this one, we won’t be commenting in-depth.)

You may remember that in Gunderson v. Indiana, 90 N.E.3d 171 (Ind. 2018), the Indiana Supreme Court concluded that the public owns the land up to the ordinary high water mark on Lake Michigan, and had done so all the way back to statehood in 1816. Problem is, according to some lakefront property owners, “undisputed local, state, and federal acknowledgement over the years” was otherwise – the law said that lakefront land was was private, not public, down to the ordinary low water mark. Thus, the plaintiffs alleged, “the Gunderson judgment changed the law of the State of Indiana, as recognized by prior Indiana court precedent as well…

Continue Reading CA7: Like Other Circuits, We’re Going To Dodge The Judicial Takings Question

Here’s a pretty rare one: a trial court entering summary judgment on liability in favor of the property owner in a takings case. Yes, you read that right.

And to top it off, this ruling comes in a case in which the taking alleged was a police invasion and destruction of a home for the valid public purpose of apprehending a holed-up criminal, a brand of claim that has not met with a whole lot of success. See, for example, this case from the Tenth Circuit, and this case from the Supreme Court of South Carolina.

In this order, the U.S. District Court for the Eastern District of Texas held the City of McKinney liable for a physical taking. The entire order is worth reading, but here are some of the highlights.

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Continue Reading District Court: City Liable For Physical Taking For Destroying Home While Apprehending A Criminal