Inverse condemnation

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Here’s the cert petition that along with our colleague Steve Jakubowski we’re filing today in Campbell v. United States, No. 19-___, in which we ask the Court to review the Federal Circuit’s ruling that the plaintiffs in a Court of Federal Claims takings case missed the Tucker Act’s statute of limitations (28 U.S.C. § 2501).

This one focuses on the interplay between Williamson County‘s “final decision” ripeness rule and the “case and controversy” injury-in-fact standing requirement, and asks: if the government makes its final decision, but the plaintiff isn’t injured until later, has there been an actionable taking?  

Often, the date on which the government ripens a takings claim by making the final decision to apply the regulation to the plaintiff’s property, and the date on which the plaintiff’s property rights are actually affected are the same. But here, the two key events happened on different dates. The …

Continue Reading New Cert Petition (Ours) Offers A Moment Of Zen: If The Government Makes The Final Decision But The Property Isn’t Yet Actually Injured, Must The Owner Sue For A Taking Now?

Here’s what we’re reading today. Some related to the lockdown, some not:

Continue Reading Linky Friday: What We’re Reading Today

Unlike a sibling federal court in a similar case (see that court’s TRO order below), a Florida court has declined an emergency motion challenging government officials’ coronavirus-related shut-down and stay away orders.

This is the case we’ve been following in which property owners challenge the local government’s order that they stay off beaches. The difference between this and other cases ordering people to keep away from beaches and parks is that in this case, the beaches are alleged to be private. The complaint is posted here. 

Although we do not yet have a written order denying the TRO, the court’s minute order notes, “the Court orally denies the Emergency Motion.” See also “Judge rules against Walton beach property owners who sought exemption from closure order” from the local newspaper, which reported on the hearing:

During the hearing Vinson delved, at times, into the overriding issues that Walton…

Continue Reading No TRO In Private Beach Taking-By-Shutdown Case

This morning, the Supreme Court of Virginia heard oral arguments (by telephone) in a case we’ve been following.

This is an inverse case that asks whether less than a total loss of access to a parcel could be taking — did the owner plead enough to put the issue to a jury — and is the government’s mere invocation of a “police power” rationale to cut off access is enough to insulate it from the payment of compensation.

When Hooked proposed to develop its property, the City of Chesapeake closed Callison Drive, the street adjacent to Hooked’s property after the neighbors complained. This cut off Hooked’s direct access to Callison Drive, even though it still had access from and to its property from a second street.

The trial court dismissed (demurred) Hooked’s inverse condemnation claim, concluding that the City was exercising its police power when it closed the street…

Continue Reading Supreme Court Of Virginia Oral Arguments In Important Inverse Case: Must An Owner Allege Loss Of All Access To Plead A Taking?

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Today, along with our colleague Bill DeVinney, we filed this amicus brief in support of the property owners’ cert petition in a case we’ve been following for a while. 

Yes, this is the case where the Village police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. Homeowner sought compensation for a taking. The Tenth Circuit, however, concluded “no taking” because the police were exercising the police power. And you can’t have a taking where the government is exercising the police power.

Instead of summarizing our brief, how about we just post the Summary of Argument:

This Court should review the Tenth Circuit’s holding that action taken by the government under its police power—as opposed to an exercise of eminent domain—can never trigger a taking under the Fifth Amendment’s Just Compensation Clause. This brief makes two main…

Continue Reading Amicus Brief: Invocation Of “Police Power” Is Not Dispositive In Takings

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To all who joined from Hawaii and across the nation, thank you for doing so. As I mentioned during the webinar, here is the video and links to the cases and other materials I spoke about: 

  • “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon the power granted or reserved.”  Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934).  
  • The King v. Tong Lee: Hawaii Supreme Court upholds restrictions on commercial laundries in Honolulu’s Chinatown deferring to the government’s assertion that doing so was necessary to preserve the public health. 
  • United States v. Pac. R.R., 120 U.S. 227 (1887): during the Civil War, the Union Army blew up railroad bridges “to prevent the advance of the enemy.” No compensation because the destruction of the bridges was a “military necessity.” “The destruction or injury of

…
Continue Reading Video, Materials And Links From Today’s Webinar, “Safety vs. Freedom: Are There Limits to Lockdowns?”

Today’s Federal Circuit opinion in Golden v. United States, No. 19-2134 (Apr. 10, 2020) is the latest in the post-Oil States cases involving the alleged taking of patents.

Golden asserted three theories:  

The complaint alleges the takings occurred by virtue of: (1) the government’s use, manufacture, development, and disclosure of the subject matter “outlined” in the claims and specifications of Golden’s patents; (2) the cancellation of certain patent claims during the [inter partes review] initiated by the government; and, (3) certain actions by the Claims Court and the Federal Circuit in the Lead Case.

Slip op. at 6.

The Federal Circuit rejected each of these theories.

First, the court held that an allegation that the feds infringed on Golden’s patents was a tort claim, not takings. Slip op. at 10 (citing Schillinger v. United States, 155 U.S. 163, 168-69 (1894) (infringement claim “is one sounding …

Continue Reading Fed Cir: Patent Infringement Claim Is A Tort, Not A Taking (Nor Is Inter Partes Review)

Untitled Extract Pages

Here’s yet another complaint alleging that a virus-related order is a taking, this time with an interesting twist (other complaints here, here and here).

The twist is that the plaintiff/property owners (who include former Arkansas governor Mike Huckabee) assert that they are being prevented from using their own residential property. The complaint asserts that sheriffs and code enforcement officers have trespassed on the owners’ private beaches by “patrolling,” and that the officers “have physically prevented Plaintiffs from being able to use or even set foot in their own backyards.” Complaint at 11.

The complaint seeks a declaratory judgment, an injunction, and just compensation. They also assert due process and search-and-seizure claims, that the emergency orders were preempted by other orders allowing the plaintiffs’ uses, and a claim under the Florida Constitution for breach of the right of privacy.

Will there be more of these? Bien sûr.

Complaint…

Continue Reading Private Beach Owners: Closing All Beaches Is A Physical Taking

Here’s the latest complaint challenging the virus-related business shut down orders springing up nationwide. (Other lawsuits are posted here and here.)  

This one alleges a host of constitutional violations (and defamation!) after the Connecticut governor banned large gatherings and ordered all restaurants and bars to close, and the New Haven mayor publicly “highlighted” the plaintiff — a lounge — as a noncompliant business.

Relevant for our purposes here, buried in the complaint is a takings claim:

Count Eleven – Violation of Constitutional Rights of The Right To Receive Compensation For A Taking of Property as to Defendant Ned Lamont

73. Paragraphs 1 through 22 and 58 through 72 of the Complaint are incorporated herein.

74. Lamont’s order limiting the activities of businesses and deciding which businesses can remain open based on their purposes regulates the use of private property to such a degree that it effectively deprives the Plaintiffs of…

Continue Reading Another Takings Challenge To Business Shut Down Order

Here’s a short one from the Florida District Court of Appeal where the background might be more relevant to today’s circumstances than the court’s actual holding about which party bears the burden of proof on valuation (and goes first at trial). 

First, the decision. In Florida Dep’t of Agriculture v. Mahon, No. 5D19-3102 (Apr. 9, 2020), the court held that in during the valuation phase (which comes after the trial judge determined there was a taking), the government bears the burden of proof and makes its presentation to the jury first. The court rejected the Department’s argument that, hey, in an inverse condemnation case the property owner is the plaintiff, and the usual rule in every other civil case is that plaintiffs go first. Making us go first here would deprive the Department of due process!   

Not so, held the court of appeal, government goes first in an…

Continue Reading Fla App: In Valuation Phase Of Inverse Case, Condemnor Has Burden Of Proof