Superior Advocacy in Action

We just came across a weird little item for which we thank Rick Rayl of the Nossaman blog, that reminds us of a wonderful courtroom war story we just have to share with our readers. Quoting from Mr. Kuhn’s blog:

“The City of Loma Linda, like so many California cities, used to have a redevelopment agency.  That redevelopment agency acquired property and embarked on various efforts to, well, redevelop things.  When Governor Brown eliminated California’s redevelopment agencies, many projects were left in mid-stream.

“In the case of Loma Linda, the redevelopment agency purchased some property, erected a fence, and cut off another property’s access to the public street.  It seems like a pretty simple takings case, and the owner sued.  But then Governor Brown’s legislation intervened, and things got weird.

“The redevelopment agency was no longer a viable defendant in the takings case, because it no longer existed.  And the City claimed it was not a viable defendant, because it hadn’t engaged in the conduct that resulted in the taking.”

Fortunately, reports Mr. Rayl,  the trial court rejected that city argument, but the city has appealed and the appeal is pending. Don’t laugh, man. This is California so it’s possible that the Court of Appeal will buy the city’s ridiculous argument. Stay tuned on that one.

We tell you this story because years ago, we were involved in a similar absurdity. The venue was the Mammoth Lakes area, and your faithful servant was privileged to represent the property owner along with the one and only Hillel Chodos, the foremost commercial litigator. What happened was that the county in which the property was located, hassled the property owner and kept him from developing his land, giving rise to an inverse condemnation claim. This was in the olden days before the Supreme Court handed down the Williamson County abomination, under which property owners are no longer entitled to have their claims of constitutional violation tried in federal court. So we filed our action in federal court. But while our case was pending, the city of Mammoth Lakes came into being and its territory included the subject property. So it took the position that, not being the entity that imposed the unconstitutional regulation, it was not responsible for its removal, that being the responsibility of the county which imposed it before it lost jurisdiction over the area. The county, on the other hand, argued that since it no longer had any authority over the subject area (that having shifted to the newly created city), there was nothing it could do.

All this municipal law folderol was not the sort of thing that is litigated every day, so it was new to Larry Karlton, the federal  judge to whom the case had been assigned. Unsurprisingly, he ordered briefing of this issue. The law, as you can imagine was cut and dried — not even California could be so weird as to create an abeyance of governance, under which no one would have authority to govern city territory. That would be akin to what the late legal guru, Bernie Witkin used to call “that most unthinkable of all feudal calamities: abeyance of seizin;” i.e., abeyance of governance. So your faithful servant, ever obedient to their Lordships’ needs and wishes, volunteered to do the briefing, when Mr. Chodos rose and said, “Your Honor, of course we will brief the matter, as you wish, but perhaps I can say a few words to put this issue in its proper light.” And he did:

“This is an action under the Civil Rights Act, Your Honor, so please imagine with me that we are back in the 19th century when Congress just enacted this statute. Imagine further that a wicked southern sheriff has dragged out a black prisoner from the county jail and proposes to lynch him by hanging him from a tree in front of the local court house. So the prisoner’s hands are tied, he is put on a horse, and a noose is placed around his neck. At this point, you ride up, Your Honor, and say: ‘Stop that! I am a federal judge and I order you to cut this man down!’ But the sheriff says: ‘While we were talking, Your Honor, the courthouse clock struck noon, and at that point  this area became the incorporated town of Lynchville, so I no longer have any authority here. You’ll have to talk to the town Marshall.’ So you turn to the Marshall and say: ‘Cut that man down!’ To which the Marshall replies: ‘Why me? I didn’t put him up.’ ”

“So what do we do  now, your Honor? Just let the poor man  hang there?”

At this point it was all over. Not another word needed to be said, or written, and even the bad guys’ lawyers all but conceded the point. Oh sure, we still filed our brief, but it was unnecessary. The point had been made (in case you want to know, the new government entity — in this case the city — takes over all functions and duties of the previous one; i.e., the County. And that, folks, was a display of superior courtroom advocacy.

To get back to the present, we await the outcome of the appeal of the case reported by Mr. Kuhn.

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