42 U.S.C. § 1983 | Civil Rights

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Goodtobeking You may remember Mel Brooks’ History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims “it’s good to be the King!” each time he takes advantage of one of his subjects.

Well, it turns out that it really is good.

In Sable v. Myers, No. 07-6286 (10th Cir. Apr. 24, 2009), the U.S. Court of Appeals held that city councilpersons are absolutely immune from claims they used the domain power to take the property of an owner as retaliation for his having successfully brought a quiet title action against the city. 

Mr. Sable’s property was immediately north of the city’s public works facility.  His predecessor in title had adversely possessed from the city a portion of a former city street on the southern boundary of the property, and this “strip” was fenced in along with Sable’s main parcel. …

Continue Reading It Is Good To Be The King: Councilmembers Personally Immune From Charges Of Retaliatory Eminent Domain Abuse

As we noted in this post, the recent U.S. Court of Appeals for the Fifth Circuit decision in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009) is garnering a lot of commentary for the dissenting judge’s opening ad hominem and the majority’s terse response.  Earlier, we summarized the substantive issues in the case, which involve the Fourth Amendment’s seizure requirements in a takings-esque fact pattern — which are, ultimately, more interesting that this distraction — but wanted to comment briefly.

The case involves a Texas property owner — but (quelle horreur!) a resident of California — who seeks to prevent Texas officials from enforcing a Texas statute regulating beachfront ownership because it would either take her property without just compensation, or is an unconstitutional seizure (or both).  The Fifth Circuit affirmed the dismissal of her takings claim as unripe for federal review under Williamson County…

Continue Reading The Nerve Of Those Californians, Vindicating Federal Constitutional Rights In Texas Federal Courts!

If you are wondering why your calls to State and County offices go unanswered tomorrow, it is because it is Good Friday, a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. 

The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays — among many other things — a product of what the statute calls “joint decision-making” process between the government and the government employee unions, also known as collective bargaining.

The Establishment Clause, which has been incorporated against the states by the due process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called separation church and state), and in…

Continue Reading Hawaii’s Good Friday Holiday: It’s Like Thanksgiving And Christmas

Some interesting reports filtering across my screen today:

  • Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, “Regulatory Takings and the Fourteenth Amendment.”  On that subject, check out “No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights” by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

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Continue Reading Land Use Round-Up

A collection of interesting reports on land use and zoning topics:

  • Mission residents reject American Apparel (San Francisco Chronicle) – “Congratulations to the residents of Valencia Street. After a rowdy and sometimes misleading campaign, they managed to stop American Apparel – a socially conscious, popular, American-run clothing store – from moving into one of the street’s vacant storefronts….It’s another through-the-looking-glass moment in San Francisco. They love the product but hate the store solely because there are about 260 of them worldwide. That means it’s a chain and unwelcome under any circumstances.”

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Continue Reading Zoning And Land Use Round-Up

The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition seeks review of the California Court of Appeal’s opinion reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008), available here.

The issues presented in the case involve the Penn Central ad-hoc test for regulatory takings, and the “final determination” prong of the Williamson County ripeness rule. The Reply brief argues:

The Brief in Opposition is liberally salted with Respondent California Coastal Commission’s assertions of what it refers to as the “facts” (e.g., pp. 5, 11) as well as disparagement of the presentation in the Petition as having “no evidence” (e.g., pp. 7, 11) behind it.

The Brief in opposition thus highlights the problem that call for…

Continue Reading Reply In Support Of Petition In Pratt v. Cal. Coastal Comm’n – Penn Central And Williamson County

The California Coastal Commission has filed its Brief in Opposition to the cert petition in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here).  The California Court of Appeal’s opinion, reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) is available here). 

The issues presented involve the Penn Central ad-hoc test for regulatory takings, and the “final determination” prong of the Williamson County ripeness rule.

We filed an amicus brief in the case, available here. The cert petition and the other amici briefs supporting it are posted here.Continue Reading California Coastal Commission’s Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)

In 2008, we continued to castigate the Williamson County ripeness rules, culminating in December when we filed an amicus brief urging the Supreme Court to take a harder look at how the “final determination” aspect of the rule is being applied. The rule has two parts.

First, the state-litigation rule requires a regulatory takings plaintiff to pursue — and lose — their claim in state court before asserting their federal constitutional claims in federal court. In San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) four Justices agreed Williamson County produces absurd results and denies federalcourt review of federal constitutional rights, and argued that in an “appropriate case,” the Court should reconsider Williamson County. At least two cert petitions were filed suggesting they were the appropriate case. See Braun v. Ann Arbor Charter Township, No. 08-250 (cert. denied Dec. 1, 2008), and…

Continue Reading 2008 Land Use In Review: Ripeness Games In Regulatory Takings

In a development that began in November 2007 (2005 actually, if the starting point is seen as the U.S. Supreme Court’s decision in Lingle v. Chevron, U.S.A., Inc., 544 U.S 528 (2005)), the Ninth Circuit finally ditched Armendariz v. Penman,75 F.3d 1311 (9th Cir. 1996) (en banc), and recognized that property owners are not limited to regulatory takings claims when challenging land use regulation, and the government can violate substantive due process as well.  In 2008, the Ninth Circuit issued a number of decisions in which it recognized that Armendariz‘s forced election of a regulatory takings remedy has been truly overruled. 

Rather than plow through multiple posts, it would be easier to just download a recently published article I wrote on the subject, collecting all the cases, The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases (31 Zoning and Planning Law Report (Thomson | West…

Continue Reading 2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process

Zplr_p1 The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here.

From the introduction:

Substantive due process asserted as a claim for relief has a whiff of danger about it. After all, a plaintiff claiming a violation of substantive due process is asking a court to override the judgment of the political branches and invalidate an ordinance, statute, or an administrative determination because the action is somehow illegitimate. After the demise of Lochner, courts are understandably reluctant to be seen as second-guessing the policy choices made by the elected branches of government, and a suggestion that a court is “Lochnering”—legislating from the bench by invalidating economic regulations based on a judge’s contrary economic or social beliefs—can be the equivalent of judicial kryptonite.

In…

Continue Reading New Article: The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases