A Question We Wish Hadn’t Been Asked

On October 2nd, our friend and fellow blogmeister, Robert Thomas, gave us a preview of the coming oral argument in Knick v. Township of Scott in which he posed the following question: Just How Badly Can SCOTUS Screw up Takings Law?

The oral arguments in Knick took place yesterday, and we now have an answer of sorts. There is no limit. Example: when the court granted cert, it did so on the question of whether the Williamson County case should be reconsidered to eliminate the requirement that the aggrieved land owner whose land has been taken without compensation, may not sue in federal court for this constitutional violation, but must instead sue in state court to “ripen” the case, 42 USC Sec 1943 to the contrary notwithstanding. So we started reading the transcript of the Knick oral argument, and what did we find? For openers, a question from the bench having to do with abstention which is in no way connected to the question presented, and which was dealt with by the court in Allegheny County v. Frank Mashuda Co. some time ago — a fact the questioner was obviously not acquainted with. Naturally, abstention was never raised or briefed below in the Knick case. And so it goes.

If you want to read the transcript in all its gory glory, go to https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-647_aplb.pdf (copy and paste this link in your browser)

There you will find such gems as Justice Breyer’s question asking whether SCOTUS should “let this sleeping dog lie,” overlooking the principle that the core function of the supreme court is to decide legal “sleeping dogs,” not perpetuate them. Besides, the owner’s counsel disposed of that idea by pointing out that Williamson County was not a sleeping dog but rather a wild dog running through the country. Still, in spite of our pessimism (of which more presently) we must rein in our feeling of impending doom and await the decision. For in spite of the court’s all too obvious misunderstanding of procedure in takings cases there is some likelihood that something in Williamson County will be overruled. And if that happens that would be progress — a step in the right direction. So let’s stay tuned. And pray.

Oh, and about that pessimism of ours, we were influenced years ago by the line of the late Bert Burgoyne, a great condemnation lawyer in Detroit, who once observed in our presence that “The problem with this field of law is that liberal judges don’t believe in private property, and conservative judges don’t believe in making the government pay.” As time goes on, we find the unpleasant truth embedded in that line to be more and more obvious. But even that neither explains nor justifies the intellectual and moral mess the courts have made of things law. Along with our co-author Michael M Berger, we just completed a law review article available in manuscript form on SSRN, entitled, The Nasty Brutish and Short Life of Agins v. City of Tiburon. We show there how SCOTUS so screwed up its opinion in Agins that it had to overrule it, not once but twice, thus suggesting that in this field of law, SCOTUS has a reverse Midas touch: just about everything it touches in this field turns to intellectual crap.

So read that transcript, and make up your own mind.

California Choo-Choo (Cont’d.)

We haven’t had much to say lately about California’s abuilding “bullet train” that in the sweet bye and bye will connect Los Angeles (and Orange County) with San Francisco. Now here is a dispatch from the LA Times, bringing us up to date on what’s going on. Worth a read.

http://www.latimes.com/local/california/la-me-lopez-bullet-train-20180930-story.html# (copy and paste in your browser)

Bottom line: the folks in the northeast San Fernando Valley, along the train’s proposed path are furious. They shouted down the railroad types at a recent “town hall” style meeting, and in the inimitable phrasing of LA Times columnist Steve Lopez, if tomatoes had been available they would have been flying. Whether that railroad project will ever be completed, and if so, when remains questionable.

Ideas Have Consequences . . .

They do indeed, as so well illustrated by the ongoing Judge Kavanaugh confirmation kerfuffle. Since we cannot say it any better, here is a quote from Heather McDonald’s article in the City Journal:

“The sexual revolution declared that the traditional restraints on the male libido—norms of male chivalry and gentlemanliness and of female modesty and prudence—were patriarchal and oppressive. Men should stop protecting women and putting them on a pedestal. Males and females were assumed to desire easy sex with equal fervor, and to be able to walk away from a one-night stand with equal complacency. With regard to students, adults should remain nonjudgmental and as far out of the picture as possible. Chaperones were relegated to the relic pile, as fusty as a mothballed corset. Starting in the 1970s, affluent parents often absented themselves from their teenager’s parties, leaving the house liquor cabinet unattended. Popular culture became hyper-sexualized.

“The results were not pretty: the male libido, free to act as boorishly as it wanted; females getting drunk to reduce their innate sexual inhibitions, unprotected by any default assumptions against casual premarital sex. Whether a 17-year-old Brett Kavanaugh took advantage of this putative sexual liberation, many other teenagers have, and in so doing, merely followed the new script for sexual relations.

“Those derided Victorian values of chivalric paternalism are now being reimported covertly on college campuses, however, where male students are deemed responsible for female well-being during drunken hook-ups, even if the male and female student are both equally inebriated. The #MeToo movement is going further, turning a drunken pat on the butt in a suburban kitchen into a criminal offense and a squeeze on the knee under a dinner table grounds for banishment. A panelist on The View complained that the “white men” on the Senate Judiciary Committee were “not protecting women.” One might have thought that the committee’s role was to protect the constitutional balance of power.”

To which one should add that if women are to be treated as men’s equals, why are they in need of such male protection? These days, they serve as police officers, combat troops, firefighters, Air Force fighter pilots, etc., so why do they require paternalistic oversight that shields them from life’s adversities and male misbehavior in their chosen occupations? Ironically, in all those battles for women’s equality in the military, opponents of male-female troop integration argued unsuccessfully that this was a bad idea because male soldiers would tend to be protective of their female comrades-in-arms, thus reducing their own effectiveness as warriors. But now, all of a sudden, we are told from on high that women, after all, are the weaker sex in need of male protection not just in combat, but at college parties. Sounds like Orwellian double think to us.

Equally important, if such new male protectiveness is where it’s at these days, why don’t the male Senators rise to the occasion, don their knightly armor and provide such chivalrous protection? Cat got their tongues? Evidently. Thus it took a woman — the inimitable Heather McDonald — to lay it all out and to remind us that social mores are adopted for a reason, and that we discard them at our peril. So we better learn how to think long and hard before we get rid of them just “because it feels good” at the moment.

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As is our habit, every now and then we depart from our usual topics to comment on important matters of broader interest. And this topic surely falls into that category.

NY Times: Constitution? What Constitution?

Check out a long piece in the Sunday NY Times by a lady named Nellie Bowles, Sue at Your Own Risk, 9-2-18, Business Section, p. 2. It’s about the kerfuffle in California — where else? — that pits the state against a high-tech multi-billionaire named Vinod Khosla. His misfortune stems from the fact that he bought a 53-acre beachfront parcel, and — silly man that he is — he thought that this entitled him to all the indicia and prerogatives of land ownership. But hey man, this is California where private land ownership (particularly of beachfront land) though not quite a crime, is not something that is entitled to the law’s protection either.

Long story short, the land’s previous owner kept the land closed to the public but had maintained a gated fence surrounding the property. The gate would be opened now and then, allowing members of the public to enter and park for a fee. Mr. Khosla wasn’t interested in such an arrangement, so he closed and locked the gate. Anywhere else that would be the end of the story. But like we said, this is California, man. So local dudes calling themselves the Surfrider Foundation took umbrage and demanded that Khosla keep that gate open for their convenient access to the beach. So this being California, quick as a bunny the State Lands Commission asked the legislature for funds wherewith to acquire an access easement to the sea across Khosla’s land. Also, the California Coastal Commission took the position that locking that gate was “development” which Khosla could not engage in without a Commission permit. No, we are not making this up.

California courts (which have never seen a government beach seizure they didn’t like) upheld the Commission’s contention, and the California Supreme Court denied review. Mr. Khosla then petitioned the US Supreme Court for a writ of certiorari seeking reversal of the California courts’ ruling, thus restoring Khosla’s rights in the subject property, being as the state never paid for them. SCOTUS, however, has been sitting on that petition, and went home for its summer break without either granting or denying Khosla’s plea. So we’ll have to wait until some time after the first Monday in October to learn whether California will have to comply with the Fifth Amendment’s “just compensation” clause, or whther SCOTUS will permit it to go on its merry way of flipping off that provision of the US Constitution.

What makes this particular NY Times dispatch interesting is that in spite of its length (about two broadside newspaper pages) it never mentions the Constitution, nor any takings cases decided by SCOTUS in the recent past. Like Kaiser Aetna, for example, which is directly on point (holding that the government may not order private land owners to open their property to the public, without paying just compensation. We recommend you read that article yourself and check us out. The way the Times describes this controversy sounds like a private quarrel between some local, beach-loving surfer dudes, and a wicked, greedy land owner who has the temerity to think that his ownership of land (on which he pays taxes) is protected by law, or that he has the right to exclude strangers from it, and that the Constitution (as well as the California Civil Code) grant him the right to exclude third-party strangers from his land.

So as we are fond of saying, stay tuned and keep your eye on the calendar to see if, come that first Monday in October, constitutional rights will be restored to California land owners.

Lowball Watch — Pennsylvania

The York Daily Report brings the dispatch that the Pennsylvania Supreme Court has refused to review the judgment in the taking of the old, vacant York jail building. The Board of Viewers — that’s Pennsylvania talk for commissioners — awarded $65,000, plus $4000 in attorneys fees. But when the case went to trial, the jury awarded $1,250,000, with interest running at the rate of $188 per day.

Dylan Segelbaum, York RDA AppearsStuck With 1.25 Million Bill for Old Jail After Court Refused hear Appeal, York Deily Report, Aug. 16, 2018.
https://www.ydr.com/story/news/local/2018/08/16/pennsylvania-supreme-court-declines-hear-appeal-old-york-county-prison-eminent-domain-case/1006457002/

Awaiting the First Monday in October

Not much serious news in eminent domain except for the usual dull roar of more or less routine cases coming down now and then. But the US Supreme Court is sitting on two biggies. First, it has granted certiorari in the Knick case where briefs have been filed and nothing will happen until the after first Monday in October when the Supreme Court comes back from its annual recess and hears oral arguments. We are still watching in disbelief — pleasantly so for a change — as the US Solicitor General has filed an amicus brief on the Petitioner-Property Owner’s side, suggesting that SCOTUS dump the absurd Williamson County rule that requires property owners, unlike any other litigants, to refrain from suing in federal courts when their property is taken without the Just Compensation explicitly required by the Fifth Amendment.

So stay tuned folks. It shouldn’t be much longer, and we hope that it won’t turn out to be some sort of “October Surprise,” what with one Supreme Court seat vacant and no realistic hope of it being filled expeditiously.

The other case, the one in which a land owner’s petition for certiorari has been pending for some time is the California Martin’s Beach case where California courts — who else? — have decreed that the owner of a parcel of oceanfront land must open his property to the general public so its members can disport themselves on the beach, without payment of just compensation for this uncompensated imposition of a public access easement in open defiance of the SCOTUS decision in the Kaiser-Aetna case, holding that the right to exclude strangers from one’s land is the most important property right. This one has been sitting up there for a while so it’s fair to surmise that at least it isn’t being treated as a routine case so far.

So as we are fond of saying, stay tuned on that one too.

Happy Fourth of July!

Today is the start of the Fourth of July weekend, the time to set aside our differences — if only for a day or so — and to celebrate our good fortune in having been blessed by a life in this wonderful country that has bestowed upon us freedom, opportunity and prosperity that is not enjoyed anywhere else on earth, and that remains a magnet for freedom-seeking people all over the world. So whether you go to the beach, celebrate with a backyard barbecue, get together with family and friends, or just take day of rest at home, do pause, give these thing some thought and be grateful.

And pay no attention to the fools at the New York Times who are pitching the silly notion that the Fourth of July should be a day of protest. Nonsense!

So have a great weekend, but pause to appreciate your good fortune in living here.

The Illegal Alien Mess at the Border

As is our wont, we depart here from our usual practice of commenting on eminent domain and land use events, to comment on what’s going on in the news about the — Oh my God! — unprecedented but wicked, wicked practice of separating children from their parents when the latter are detained after crossing the border illegally, and charged with violating laws that control entering the US. In fact, such lamentations are BS — the treatment of those illegal aliens is no different than the treatment of domestic criminal defendants and their children. See Shaila Dewan, Young Children Taken From Their Parents: It Doesn’t Just Happen to Immigrants, NY Times, 6/23/18, at p. A14.

The story roiling the country has been that when those who enter the US illegally with children are separated from them when they are arrested, that is an act of gratuitous cruelty. Particularly when the children, poor babies, are left to the tender mercies of juvenile authorities, social welfare departments and foster homes. But we haven’t seen any protesters volunteering to take those children into their own homes. The fact is, however, that in spite of the turmoil there is nothing new, unusual or cruel about it. It has always been a routine practice in criminal cases, for the simple reason that you can’t imprison young children and you can’t give incarcerated law breakers a free pass just because they have young children. In the words of Ivar Lacis, a criminal defense lawyer, in a letter to the editor in the Wall Street Journal of 6/23-24/18:

“It is not uncommon for criminal defendants to bring their minor children to court with them for bail hearings, revocation of bail hearings, and revocation of bail hearings. . . . ” In such situations when the defendant is denied bail and is taken into custody by definition he is separated from his children, i.e., the children do not accompany him to prison, so if someone like a family member is not present tom take charge of the kids, they are taken in by a state social service agency. And illegally entering the US, says the writer, is by definition a crime. And so, continues Lacis:
“As an attorney I don’t understand the current outrage. [In such cases] parents have been separated, are being separated, and will continue to be separated from the minor children by the criminal justice system. Why should there be an exception for noncitizens who have been arrested for the crime of illegally entering the U.S.?”

Moreover, it turns out that in order to accommodate and house the hordes of illegal aliens crossing the border, the government is preparing to build temporary housing and “tent cities” for those illegal aliens. See Philip Elliot and W.J. Hennigan, “Navy Document Shows Plan to Erect ‘Austere’ Detention Camps” in the Florida Panhandle near Mobile, Alabama, at Navy Outlying Field Wolf in Orange Beach, Alabama, and nearby Navy Outlying Field Silverhill.”

So there you have it, folks. Tens of thousands of homeless Americans — many through no fault of their own — have been reduced to living in their cars, in the streets, under bridges, and in public parks, having to fend for themselves under horrible conditions, while alien Central Americans who willfully enter the country illegally, are being accommodated with new housing built for them. That housing, it says here, may be “austere” and we have no doubt that it is, but it is one hell of a lot better than living in the street, surrounded by unsanitary trash which — believe it or not — may not be removed by court order because, say the courts, though it contains such odious stuff as garbage, dead rats and human feces, removing it would interfere with the homeless folks property rights in their stuff.

And the hypocrites who are out there screaming over the “outrage” supposedly inflicted on the illegal aliens and their children, are not being heard from when it comes to the same practice of separating adult detainees from their minor children in domestic criminal matters. Are aliens privileged? Is there an exemption from the duty to obey the law for them?

Here in California you can’t build enough housing to accommodate ordinary people, much less the homeless, and the rents for apartments are rising out of sight, but the government is building housing for illegal aliens swarming over the order in violation of immigration laws. Are these people nuts? And the same goes for the people who have created this nightmare, while professing to be sympathetic to the plight of the homeless.

US Solicitor General’s Office Is Born Again

We haven’t yet gone through the US amicus curiae brief just filed by the federal government in the Knick case, but we have seen it and its bottom line is a suggestion to the Supreme Court that it vacate the lower court decision and eliminate from the law the requirement of having to first litigate takings claims in state court. This would eliminate the previous lower courts’ holdings that doing so amounts to the state court judgment becoming res judicata or issue preclusion, thus preventing the aggrieved property owners whose property has been taken without compensation from ever having their federal constitutional claims adjudicated in any court — state or federal.

This is a departure from the federal government’s usual pro-regulator position in these cases.

We can’t wait to see how the “police power hawks” will react to this development. Bottom line: the stakes of the Knick case have just gone up significantly.