42 U.S.C. § 1983 | Civil Rights

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As we noted here, property owners sued the New York governor asserting that one of his emergency measures to respond to the coronavirus crisis (a suspension of eviction proceedings) is a taking.

Yesterday, the District Court denied the plaintiffs’ motion for summary judgment, and entered summary judgment in favor of the governor. Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment, Elmsford Apt. Assocs., LLC v. Cuomo, No. 20-cv-4062 (CM) (June 29, 2020).

No physical take (see Yee: you invited the tenants in, owners). And no regulatory taking either because — you guessed correctly — this is “temporary” and Tahoe-Sierra. When this is all done, no-harm, no-foul. And not a Lucas taking because the restrictions left the owners with some use and value, so this is a Penn Central analysis. And you can guess where the Penn Central analysis leads, no?…

Continue Reading SDNY: No Taking For NY’s Eviction Moratorium (It’s Temporary, And You Invited Them In Landlords)


Here’s the recording of last month’s Federalist Society’s Environmental Law & Property Rights Practice Group teleforum, “Just Compensation: A Suggestion or a Requirement?“

Can states unilaterally decide not to pay takings judgments? Some states think so. Louisiana and Florida have laws that say no takings judgment can be paid unless money is specially appropriated to do so—and then they never get around to appropriating the money to pay. These laws are currently being challenged in the Fifth Circuit and the Florida Supreme Court. Please join us for an interesting discussion of this litigation.

Featuring:

Robert McNamara, Senior Attorney, Institute for Justice

Daniel Woislaw, Attorney, Pacific Legal Foundation

Stream above, or download it here.Continue Reading What If Govt Is Obligated To Pay … But Doesn’t? Podcast: “Just Compensation: A Suggestion or a Requirement?”

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The Supreme Court today declined to review a Tenth Circuit decision that held a municipality could not be liable for a taking when its police officers pretty much destroyed a house in the course of dislodging a suspect who had holed up there. 

Along with our colleague Bill DeVinney, we filed an amicus brief in support of the homeowner, arguing that an invocation of “police power” isn’t the only question in these kind of cases, and the government’s assertion that it destroyed property for a police power purpose is but one of the factors a court considers when an owner asserts the destruction resulted in a taking. Police power may be a compelling factor militating against compensation. But it should never be the sole factor, as the Tenth Circuit concluded.

We had hoped that the Court would take notice of this case because after after the petition was filed, the…

Continue Reading Cert Denied In Police Power Takings Case (Lech v. Greenwood Village)

We’ve posted a lot of complaints lately (the lawsuit kind, not the “can I see the manager” kind), mostly coronavirus-related. All involving in one way or another a takings claim. See here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling.

This latest complaint does not challenge a government’s response to COVID, but instead might be even more “ripped from the headlines.” Read on!

As you may be aware, a neighborhood in Seattle, Washington has been blocked off and declared a no-go zone for certain folks. Most recently labeled “CHOP” (Capitol Hill Occupying Protest) after the first naming action went badly and someone realized that the acronym for “Capitol Hill Autonomous Zone” was CHAZ, “[p]eople can now freely walk in the area, which has been covered …

Continue Reading Complaint: City’s Abandonment Of CHOP/CHAZ Neighborhood Is A Taking

Note: please join us today, Tuesday, June, 23, 2020 (12 noon Hawaii Time) for a (free!) webinar. We’ll analyze the latest on “Lockdowns, testing and tracking: Are they all really legal?”

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There have been quite a few lawsuits filed nationwide challenging the various shut-down and “essential”/”nonessential” distinctions being made. So many that we can’t keep track of all of them, only the complaints that allege takings. See here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling.

So far, two lawsuits have been filed challenging the Hawaii Governor’s corornavirus-related orders (neither alleges a taking, but we’re following along because … 808). See here and here for the complaints.

Here’s the latest:

1. In the first case filed (For Our Rights v. Ige), …

Continue Reading Mark Your Calendars: Hearings Set For Two Challenges To Hawaii Gov’s Lockdown Orders

Here’s the recording of last week’s program we did for the King Kamehameha V Judiciary History Center, “Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic.”

Links to the cases and other materials we referred to in the presentation are posted here.

Tomorrow, we’ll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by the Grassroot Institute of Hawaii, “Lockdowns, testing and tracking: Are they all really legal?“

Jeffrey Portnoy and Robert Thomas will talk about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas will consider whether businesses destroyed or…

Continue Reading Judiciary History Center Program Recording: “Constitutional Law Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic”

104481738_2170057539806372_2938554143515873721_nphoto: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger’s tour-de-force article, “The Nasty, Brutish, and Short Life of Agins v. City of Tiburon.” It also includes my articles on Murr, “Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?”

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

Continue Reading Available Now: 2020 Zoning and Planning Law Handbook (Green Book)

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Update: our thoughts on the Hawaii-law claims in this article, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020).

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Here’s the second complaint filed in the U.S. District Court for the District of Hawaii challenging the governor’s coronnavirus shut down orders. Back in March, the governor issued a proclamation declaring an emergency, and since then has issued nine “supplemental” declarations, re-upping the end date which is now the end of July). Here’s the first complaint (in that case, the plaintiffs dropped their request for a TRO, and the court has scheduled a hearing on a motion for preliminary injunction for June 26, 2020).

There’s a Fifth Amendment claim (sorry, not a takings claim, but a right to travel), as well as a host of federal constitutional claims (due process, equal protection, section …

Continue Reading New (Hawaii) Complaint: Coronavirus Orders Violate Right To Travel, Equal Protection, Due Process (And More)

Here’s the latest complaint challenging coronavirus-related orders (in this case, the City of Los Angeles’ rent payment and eviction moratoria) as a taking.

More here from the LA Times: “Landlord group sues city of L.A. over coronavirus anti-eviction protections.”

You should probably read the entire document, as it is drafted well. But it is long (48 pages – it even has a Table of Contents and a Table of Authorities), so here are the key parts of the Introduction in case you don’t have time to digest the whole complaint:

1. In the wake of the novel coronavirus, Defendants City of Los Angeles, City Council of the City of Los Angeles, and Mayor Eric Garcetti (collectively “City” or “Defendants”) hastily instituted a series of ordinances which prohibit lessors and landlords, such as Plaintiff’s members, from exercising their contractual remedies where tenants refuse to pay rent on the…

Continue Reading New Fed Ct Complaint: Coronavirus Rent Freeze And Eviction Moratorium Is A Taking

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Next Wednesday, June 17, 2020, at 5:30pm Hawaii Time, we’ll be speaking for the King Kamehameha V Judiciary History Center about “Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic.”

This is a one-hour program, open to the public, where we will take a dive into Hawaii’s emergency preparedness and response laws, how Hawaii’s courts have treated emergencies, plagues, pandemics, and quarantines in the past (we have a long history there), and respond to (moderated) audience questions.

Space limited to 100 attendees, although it will be recorded and posted on the Center’s YouTube channel. Here’s the program description:

The King Kamehameha V Judiciary History Center invites you to join our live webinar with attorney Robert H. Thomas as he shares his expertise about constitutional rights and civil liberties during the COVID-19 pandemic. He will share lessons from Hawaiʻi’s history of public health laws during…

Continue Reading Upcoming Judiciary History Center Program: “Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic” – Wed., June 17, 2020, 5:30pm HST