Second Knick Argument — Such as It Was

As is so often the case, we recommend that our readers who are really into takings law, read today’s Robert Thomas’ blog www.inversecondemnation.com for its report on today’s oral argument in Knick v. Township of Scott which — if we may paraphrase Laurel & Hardy — was another fine mess their Lordships have gotten themselves into. Do read it.

This was the second oral argument in this case. At least this time around  Justice Kavanaugh was in the saddle but Justice Ginsburg was off the bench, recuperating from her recent cancer surgery). She will read the transcript and participate in the decision. Good luck, Your Honor.

For Mr. Thomas’ take see https://www.inversecondemnation.com/inversecondemnation/2019/01/knick-argument-redux-no-clear-consensus-emerged-chief-justice-the-lynchpin.html#disqus_thread

As Yogi Berra put it, prediction is very difficult, especially about the future. Nonetheless we hazard a modest prognostication that the Owner, Ms. Knick, will carry the day 5 to 4 — although what form her victory will take is another story. On that one it’s a case of round and round she goes, and where she stops nobody knows.

It does seem reasonable to surmise that the “ripeness mess” started by the Williamson County case, and made worse by the San Remo Hotel and Chicago Surgeons cases will undergo some modification for the better. Even Justice Kagan whose heart is on the government’s side, allowed as how the existing rule that requires the aggrieved owner to sue in state court, but is then — hocus, pocus — removed to federal court and told there that he should have been in state court, is not long for this world. Rightly so.

We still can’t quite figure out what the Federal Solicitor General wants the court to do, but he says at least nominally, that he is on the owner’s side. Let us be grateful for small favors.

The performance of Justice Breyer was unbelievable. He peppered the owner’s counsel with convoluted questions, but when that unfortunate fellow tried to answer, interrupted him and babbled on. We won’t be surprised if some diligent fellow does a word count and discovers that Justice Breyer consumed more time with his inane questions than the unfortunate owner’s lawyer was permitted to answer.

Justices Alito and Gorsuch at least were clear, in accepting Ms. Knick’s arguments. The Chief? We’re not quite sure. Justice Thomas was silent as he usually is during oral arguments, so we’ll have to wait on that one.

So there is nothing to do now but wait. Stay tuned, and as you do that you may want to amuse yourself with commentaries which are certain to make their appearance.

FOLLOW UP: One thing was easy to predict immediately. Commentaries on the second Knick oral arguments are pouring out. The ever reliable Robert Thomas has so far provided us with over a half-dozen of them. So if you are a real takings junkie, especially one with an interest in the Knick mess, have at it. Go to https://www.inversecondemnation.com/inversecondemnation/2019/01/knick-post-argument-round-up.html#disqus_thread

Good luck! And remember to keep a drink at your elbow. You’ll need it.

And oh yes, after reading Mr. Thomas’ post we are persuaded that he is on to something in speculating that Justice Breyer may not have been playing it straight, but was rather trying to “run the clock” so as to unfairly limit Ms. Knick’s lawyer’s allocated argument time. If not that, do tell us what you think Breyer was up to. Whether he is for or against a lawyer’s position, it seems to us to be only fair — and compliance with due process — for a judge to give an arguing lawyer a decent opportunity to make his point without being constantly interrupted and hectored from the bench. Frederick Bernays Wiener, the author of the highly regarded treatise BRIEFING AND ARGUING FEDERAL APPEALS observed that an oral argument should be a respectful conversation between court and counsel. In our opinion, Justice Breyer’s performance  was anything but that.


Lowball Watch — New Jersey

Word reaches us from New Jersey that the Township of Bloomfield which had earlier deposited $400,000 for the taking of the old railroad station in Bloomfield (and later increased its offer to $440,00) just got hit with a jury verdict of $1.1 million. There was an award in an earlier trial (reversed on appeal) that resulted in a verdict of $2.9 million. So this was the verdict on retrial. Though lower than the first jury verdict, the $1.1 award was over three times the township’s offer.

The subject property was 0.62 of an acre, and improved with the old station. The owner intended to leave the old station undisturbed and improve the rest of the parcel with a mix of residential and commercial uses, under a plan that was consistent with existing zoning.

See “Town’s got to pay for land it seized — $1.1M more than it wanted to.” https://www.nj.com/essex/2019/01/towns-got-to-pay-for-land-it-seized-11m-more-than-it-wanted-to.html

Let’s Not Do It and Say We Did

The law of eminent domain has been the subject of many negative comments over the years, but inspirations for more criticisms never cease coming. Check out, for example, Prout v. Cal DOT, 2018 Cal App unpub. LEXIS 8523. It’s discussed in detail in Brad Kuhn’s blog on California Eminent Domain. Check it out if you want to see how the court pulled a rabbit out of DOT’s empty hat.

Prout, an unpublished case, holds that where the government required a dedication (exaction) as a permit issuance condition, its failure to accept the dedication when it was duly offered (but invoking the dedication requirement only when, 20 years later, when it decided to take some of the owner’s land for a highway improvement), was hunky dory, even though — to make this stew more piquant — the dedication requirement was illegal to begin with because there was no nexus between it and the owner’s private project. When the owner then objected to DOT’s belated attempt to use of the dedication requirement (because it was never accepted) the California Court of Appeal ruled against him. But what about the law’s acceptance requirement? Picky, picky, held the court. Even though the law requires acceptance of the dedication offer, and here there was none, the acceptance was deemed performed, not by anything DOT did, but “by implication” when the owner went ahead with his project.   

We have no intention of parsing the whole Prout megillah — we leave that to a maven like Mr. Kuhn. But however sliced, this is still a head shaker. The government got to enjoy the benefit of a dedication acceptance, even though there was none, and the dedication requirement was substantively illegal. As far as we can tell, the court did not explain what purpose the dedication offer cum acceptance serves when its absence makes no difference.

A Good Read on Eminent Domain at the Border

For an interesting article about the takings of land for the controversial border fence separating the US from Mexico, check out an article by Pro Publica, entitled THE TAKING. You can find it at:

https://features.propublica.org/eminent-domain-and-the-wall/the-taking-texas-government-property-seizure/

This article is a tad on the long side for an on-line piece, but it is not lawyer stuff; it is written for the intelligent layman in clear English and provides a lot of information about the law of eminent domain, and about the dark side of government practices in land acquisition. Not a pretty story, but it provides ample support for Lewis Orgel’s observation in his treatise “Valuation Under Eminent Domain” (1953) that eminent domain is “the dark corner of the law.” That it is.

This article, by the way, harks back to the 1960s — 1970s era of law journal articles that were critical of government land acquisition practices  and that revealed abuses of condemnees’ rights and exposed the prevalent undercompensation of condemnees. Some of these abuses were rectified by courts and legislatures, but only some. The law of eminent domain remains basically biased against condemnees, and the US Supreme Court, as well as the California Supreme Court have explicitly conceded that the constitutionally mandated “just compensation” provided for in the Fifth Amendment’s Takings Clause is actually undercompensation. See for example Gideon Kanner, “Fairness and Justice,” or Judicial Bait-and-Switch? 4 Albany Law Review 38 (2011).


Reading this Pro Publica article will be well worth your while if you have any interest in eminent domain.

Run for the Hills! The California Supreme Court Gets Back Into the Regulatory Takings Game

Word reaches us that the California Supreme Court has granted review in a regulatory taking case: Bottini v. County of San Diego. The issue in question is described on David Ettinger’s Cal Supreme Court blog “At the Podium” as follows.

•The court granted review in Bottini v. City of San Diego, where the Fourth District, Division One, Court of Appeal held in a published opinion that San Diego erroneously required environmental review of a single-family-home construction project. The City relied on “historical resources” and “unusual circumstances” provisions in the California Environmental Quality Act. However, the appellate court also upheld the dismissal on summary judgment of the property owners’ constitutional claims under the takings, equal protection, and due process clauses. It was the property owners whose petition for review the court granted. [Update: The Supreme Court apparently isn’t interested in the CEQA issue as much as it is in the takings issue. The case’s issue, as summarized by court staff, is this: “Does the ‘substantially advances’ formula used in Landgate, Inc. v. California Coastal Com’n (1998) 17 Cal.4th 1006 or the Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 test (see Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528) determine whether there has been a regulatory taking under the California Constitution?” . . .]

Ettinger is a partner in the appellate powerhouse law firm of Horvitz & Levy, and runs his blog on the doings of California appellate courts.

We’ll keep our eye on this one. SCOTUS held in the Lingle case that the “substantially advance” test is properly applicable to substantive due process, not to takings cases. So this may well be the California Supreme Court’s effort to bring its own jurisprudence into line with SCOTUS legal doctrine. Or, if we are lucky, it may be a step by the state high court to pause and at least begin bringing some fairness and intellectual order into this misbegotten field of law. Then again, maybe not. So stay tuned and keep in mind Yogi Berra’s wisdom: “Prediction is very difficult. Especially about the future.”

California Choo-Choo (Cont’d.)

It has been a while since we mentioned the increasingly infamous California high speed train that upon completion is supposed to go between Los Angeles and the San Francisco Bay Area at 200 mph. It has been taking a while and in past posts on this blog we mentioned from time to time what was going on. Mostly, it was bad news of delay and rising projected costs. So far only the segment from San Jose and Bakersfield is being worked on and that one alone is now projected to cost some $33 billions — with a “b.”

To get a fuller story of what has gone wrong with this project, check out a City Journal article by Connor Harris, entitled Fast Train to Failure that you can find at:

https://www.city-journal.org/californias-high-speed-rail-project?utm_source=City+Journal+Update&utm_campaign=97cd86f533-EMAIL_CAMPAIGN_2018_12_05_12_08&utm_medium=email&utm_term=0_6c08930f2b-97cd86f533-109498985

The principal supporter of this project has been Governor Jerry Brown, but he is leaving office in a few weeks, and it remains to be seen if his successor will pursue this effort with similar zeal. In the meantime the state is spending money like a drunken sailor. Stay tuned.

For an alternative view of the situation, check out CNBC, ( https://www.cnbc.com/2018/03/12/californias-77-billion-high-speed-rail-project-is-in-trouble.html ) which tells us that the projected cost is now $77 billion and that figure “could rise to” $98 billion.

What’s the US Solicitor General Up to in the Knick Case?

If you have been following the demands made on the parties by the US Supreme Court in Knick v. Township of Scott, here is the latest. If you haven’t done so, the quick summary is this: Ms. Knick’s petition for certiorari was granted, the case was briefed and oral arguments were held supposedly on the issue of whether the court should “revisit” (read, overrule) another bit of its wretched past takings handiwork consisting of Williamson County etc. v. Hamilton Bank. That judicial gem held inter alia that for baffling reasons in inverse condemnation cases (claiming “Just Compensation” for uncompensated government takings of property) and no others, the constitutionally aggrieved plaintiff may not sue in federal court, but rather must seek relief in state courts.

This had unanticipated consequences, namely, that if the plaintiff-owner followed Williamson County and sued in state court, the government defendants could remove it to federal court (being as the controversy involved the federal constitution) and then argue that the case should be dismissed because the plaintiff-owner should have sued in state court which of course he did, only to have his case removed by the defendant to federal court. No, we are not making this up. Nor are we making up the fact that many federal judges would then dismiss the case as being in the wrong court, with the result that there was no court where the constitutionally aggrieved property owner could have his case heard.

So the grant of certiorari in the Knick case was widely taken as a signal that SCOTUS had seen the error of its ways and was about to fix things. Then came the oral argument which made it clear that, to put it in printable language, their Lordships were out of it big time; some of them confused direct and inverse condemnation, one wanted to talk about abstention, one let it slip that she was trying to “get around” prior law, and another asked why not “let this sleeping dog lie.” In short, an intellectual disaster area.

Then came a ray of light. Acting on its own motion, the court ordered a reargument and asked for some additional letter-briefs from the parties, which have just been filed, by inter alia the US Solicitor General as amicus curiae who — surprise, surprise — for a change has taken a position favorable to the outcome sought by the plaintiff-owner. WoW!

Now, the parties have filed their respective letter-briefs and the commentariat has shifted into high gear. As regular readers of this blog know, our favorite is Robert Thomas’ blog www.inversecondemnation.com As usual, in this case Mr. Thomas does not disappoint. We won’t duplicate here his efforts, so, particularly if you are a credentialed takings junkie who wants to get into this stuff, we suggest you go to his blog and browse through the last few posts dealing with the Knick intellectual disaster.

But this post was supposed to be about the role of the US Solicitor General who is in the case as amicus curiae, wasn’t it? So here goes. The SG takes the position that the taking of property without contemporaneous compensation does not violate the Fifth Amendment as long as the owner is also provided with “a reasonable, certain, and adequate mechanism to obtain compensation.” However, continues the SG, in the meantime “the property owner is quite literally deprived of the Just Compensation mandated by the Constitution.” So, reasons the SG, that owner should be able to bring an action under Section 1983 in federal court “to vindicate that right.” What right? If the delay between the taking and the payment of compensation is not a violation of the Takings Clause, than what is the deprivation that is the proper basis for a lawsuit in federal court?

We await the denouement of this saga with bated breath. The next oral argument is scheduled for early January, and we may learn more then. Then again, we may not. So here comes our usual advice: Stay tuned.

Ooops, we almost forgot. The original argument too took place before an eight-Justice court, being as Justice Kavanaugh was not yet in the saddle. But he will be during the second oral argument. However, none of the usual crystal ball gazers can tell where he stands on the taking issue. So watch he dispatches from that second argument. It should be interesting.

Bye, bye General Motors Poletown Plant

Remember the Poletown case? Sure you do. That was the infamous decision of a divided Michigan Supreme Court, that permitted the eminent domain taking of the Detroit community of Poletown in order to raze it and turn over its site to General Motors for a new Cadillac plant. The taking displaced an unoffending, diverse community, razing hundreds of homes, businesses and churches, as well as a major hospital, in order to subsidize GM which threatened to build this facility in Ohio, unless Detroit ponied up. It did. This caper cost the taxpayers some $200 million and it spared GM having to pay its full tax share. It was supposed to produce thousands of jobs. But it didn’t. By the time the dispatch about closing this plant came from the Detroit Free Press, there were only 1500 employees at that plant instead the 5000 that were promised.

See https://www.freep.com/story/money/business/john-gallagher/2018/11/26/gm-detroit-hamtramck-plant-closing/2114067002/ (cut and paste this link in your browser).

And of course, as you may remember, eventually GM filed for bankruptcy in the 2008 Great Recession anyway and defaulted on a bunch of bonds held by individual investors trying to save for their old age. In a case of too little and too late, in due course the Michigan Supreme Court came to its senses and overruled the Poletown case in Wayne County v. Hathcock.

And so Detroit joins the list of similar venues in which much was promised but little or nothing delivered after wasting fortunes in public funds and grossly undercompensating the displaced condemnee-owners of land in the path of such projects.

FULL DISCLOSURE: Your faithful servant, along with the late Bert Burgoyne of Detroit, and Toby Brigham the lion of Miami, were counsel in that case, representing the Sisters of Mercy, owners of that taken hospital.

Happy Thanksgiving!

In spite of all the kvetching and bitching, it’s time to pause and give thanks for our good fortune in having been granted the privilege of living in America. So enjoy your festive food, and do your shopping if you are strong enough to handle it, but as you do all that find time to give thanks.