Monthly Archives: March 2016

Good Read — A New Law Review Article on the “Ripeness Mess”

Don’t miss a new article by R.S. Radford and Jennifer Fry Thomas, The Accidental Abstention Doctrine, 67 Baylor L. Rev. 567 (2015). If you are a “ripeness mess” maven, the title says it all.

While the authors are being polite as is customary for law review writers,* their point is that the Supremes had no idea what they were doing when they concocted the ripeness doctrine out of the whole cloth, without it ever being raised or briefed by the parties in the Agins case which was presented to the court as a question whether the remedy in regulatory taking cases is “just compensation” like it says in the Fifth Amendment, or merely judicial invalidation of the challenged property regulation as argued by the city of Tiburon. At the time, that issue divided the courts all over the country, but instead of dealing with it honestly, SCOTUS just ducked it. It also bollixed up pertinent Tennessee law on which it relied. But that’s another story.

Moreover, the Agins holding by SCOTUS was contrary to Euclid v. Ambler Realty which held explicitly that no application for a land-use permit need be made before suing in federal court to challenge the validity of zoning. So how did the court solve that little problem? It simply ignored Euclid. And so it goes.

The issue decided by the court came out of the blue, evidently based entirely on a stray — and doctrinally wrong — sentence in the amicus brief of the Solicitor General who knew not whereof he spoke, and relied on a due process, not a taking case, as the U.S. Supreme Court later confessed in the Lingle case.

Do read the Radford-Thomas article. You will be better informed.**

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*      This is an old problem; law review writers want to be polite so they produce incomprehensible verbiage that dances around judicial errors without making clear just how and how badly the court screwed things up. See, Fred Rodell, Goodbye to Law Reviews — Revisited, 48 Va. L. Rev. 279, 280 (1962).

** Full disclosure: Your faithful servant, aided by his student assistant, the late Agnes Mulhearn, did the briefing in the U.S. Supreme Court. He argued the case on behalf of the land owners, Dr. and Mrs. Agins.

A Trip Down Memory Lane

Be on the lookout for the next issue of the Urban Lawyer (Fall 2015) that will carry your faithful servant’s semi-autobiographical article, dealing with his professional activities as an eminent domain lawyer during the past half century. The citation is Gideon Kanner, The Way We Were: California Eminent Domain Then and Now, 47 Urban Lawyer 717 (Fall 2015). We hope you will find it entertaining and possibly informative.

 

 

 

 

A Bit of California Eminent Domain History

Don’t miss an op-ed in today’s LA Times, David K. Randall, Los Angeles Times, March 13, 2016, at p. A27, entitled Is It Possible to Save Paradise? Though badly slanted in favor of the environmentalist point of view — of the what’s-yours-is-ours variety — it does tell the story of May Rindge, the tough-minded 19th century lady who owned Rancho Malibu, stretching along the Pacific coast from Santa Monica to the Ventura county line. Her land was coveted by others, “homesteaders,” as the Times puts it; actually, armed trespassers who sought to invade her land, and whom she repelled using her armed guards.

Eventually, the County of LA sought to put a road through her land and condemned a right of way for it. Ms. Rindge resisted the taking in court on two grounds: lack of public use and lack of statutorily required public necessity. The first defense was based on the argument that since the road came to an abrupt end at the Ventura County line, it was a proverbial road to nowhere and thus not a public use since it couldn’t be used by the public to get anywhere. It didn’t fly. It was enough, held SCOTUS, that the public could drive on that road back and forth and enjoy the view.

AS for public necessity, argued Ms. Rindge, that feature of that road to nowhere rendered it unnecessary and thus violative of the public necessity statute. But she didn’t get to make that argument on the merits because the California public necessity statute also provided that if the resolution was passed by a specified supermajority (as this one was), it was conclusive. The court rejected Ms. Rindge’s argument by upholding California’s right to adopt such a statute without thereby violating Due Process.

Of course, this is a Los Angeles Times story, so you cannot rely on its accuracy on this subject. The LA Times story says that the U.S. Supreme Court ruled  that the public “had the right to access beautiful places.” Of course, the Court said no such thing. It held that the county had the right to acquire a right of way for what is now known as the Pacific Coast Highway, using the power of  eminent domain. Which is to say, if “the public” wanted to enjoy the ride, it would have to pay just compensation for the taking of the right of way.

If you don’t believe us, here are the issues presented to and decided by the US Supreme Court (Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923):

“The two fundamental questions involved are whether the uses for which these lands have been taken are public uses authorized by law; and whether the taking was necessary to such uses.”

Nothing about “beautiful places” — the right to take would have been the same if the subject property had been butt-ugly.

Anyway, it’s a great story from the old West and we can see a movie made of it, with Barbra Stanwyck playing May Rindge.

Today, Malibu is a playground of the seriously rich whose pursuit is to keep everybody else out. They personify that grand old poem that goes:

“We thank thee, Lord, for thy good grace, in bringing us to this beautiful place. And now, Dear Lord, show us the way to keep all others far away.”

Our Latest Column — the Trump Candidacy

Los Angeles Daily Journal

March 7, 2016

Along Comes Donald the Conqueror

By Gideon Kanner

Much has been said lately about Donald Trump’s presidential campaign that is rolling on in spite of his aggressively crude, in-your-face political rhetoric. But from his point of view, he is only seizing an opportunity handed to him on a silver platter. You could say that after seething with anger at the excesses of the political establishment for years, and after being repeatedly lied to by politicians (e.g., “read my lips” and “you can keep your doctor”), the people are angered to a point where they no longer listen to the familiar political babble. America is still the place to live, but trouble is brewing.

What is troubling the American people? Let us count the ways:

First, let’s start with money. America is spending itself into insolvency, and the government seems to think that destruction of people’s savings, which undermines the middle class, is a good thing. People are unable to save for their old age, while Social Security bids fair to run out of money before long. At the same time, big banks get interest free money from the Federal Reserve and charge double-digit interest rates on consumer credit card debt. As this goes on, Joe Sixpack is lucky to get 0.02 percent on his bank savings account on which he has to pay taxes at a rate that may be higher than his employer’s. Good ol’ Joe may be a patient man, but do you think he will stand still for that sort of thing indefinitely, or will he turn into an angry Archie Bunker somewhere along the way?

Second, in spite of rosy government statistics, American businesses are still laying off employees in order to replace them with cheaper foreign workers, or moving entire enterprises to other countries, thereby contributing to a gigantic and growing trade deficit. Trump has a point when he rails against the spectacle of foreign folks eating our lunch with impunity. Trade may be good, he says, but cheating at it is not.

Third, our Supreme Court justices, openly chosen for their partisan ideology, at times preempt the democratic process and impose outlandish notions (“emanational penumbras” anyone?) on a free country without any explicit constitutional basis, and without affording its people an opportunity to debate them to reach a consensus on whether they should be accepted as “the law of the land.”

Fourth, we confront an odd situation where, for some reason, even as socialism has been consistently a catastrophic failure all over the world, a significant part of the American population insists that we should embrace it. And so, an avowed septuagenarian Socialist from Brooklyn is piling up votes and has become a contender in a presidential election. Why? Because many people are so pissed off at traditional politicians that they would rather vote for him than for any traditional politicians who just aren’t trusted.

Fifth, American educational institutions have declined to a point where they produce people who think that Winston Churchill was a Civil War general, and even at the college level believe that waving placards and loud repetition of fashionable slogans is tantamount to analysis. Thus, at the elite Yale University you can get into trouble if you want to wear a sombrero to a student party. For this, people have to pay tens of thousands of dollars per year and go into serious debt for life?

Sixth, how could we possibly drift into embracing a foreign policy that fails to differentiate between our friends and our enemies, wastes lives and resources on increasingly pointless wars that make things worse, and pretends that ungovernable tribal savages in remote corners of the world, who have been killing each other for centuries (with particular attention devoted lately to persecuting Christians), can be transformed into civil societies by an abrupt “regime change” brought to them at gun point by the U.S. Marines? “Shores of Tripoli” this isn’t, and even if there are some surprising similarities, at least we didn’t then try to convert the Barbary Pirates to American values; we just kicked ass, persevered and eventually got our hostages back.

Seventh, American press and broadcast media have become a cheering section, if not a propaganda arm, of the Democratic party, that often resorts to reader deception through omission and commission interwoven with the news. Understandably, they are in a state of decline.

Eighth, we have (a) abandoned the idea of sovereignty and cultural cohesion by disregarding our immigration laws and for base economic and political reasons encouraging a mass migratory invasion across our southern border by millions of foreigners, with whom we are increasingly unable to deal, (b) we are facilitating an inflow of people whose status as potential “sleeper” terrorists is de facto unascertainable, as the folks in San Bernardino learned the hard way, and (c) adding insult to injury, our government insists that people who use or support violence to suppress cultural, religious and ethnic minorities on their own turf, are practitioners of a “religion of peace” whose compatibility with American values we must not question, even as corpses are piling up.

Ninth, our tax laws have grown so complex and convoluted that no one – not even the IRS – can understand and interpret them consistently, with the popular perception of them being that they can be manipulated by clever practitioners to their clients’ unfair advantage, while good ol’ Joe Sixpack has to pay his taxes full-pop, sometimes at a rate higher than his employer.

And last but not least, how could the explicit constitutional mandate limiting takings of private property to “public use” been transmogrified into a process that routinely takes property from some private persons, often occupied by members of the working or middle classes, and in a display of reverse Robin Hoodery transfers it to more favored and certainly wealthier individuals, for the latter’s private gain? The Kelo case has had an astonishing and unanticipated impact on Americans’ understanding of how their government really operates – none of it for the good.

In the meantime, Congress is dysfunctional (how many speakers of the House have we had lately?), and operates as if its first duty were to compromise principle and common sense, and to transfer as much money as possible from the Treasury to the Congressfolks’ respective states and districts. (Remember the $390 million appropriation for a Golden Gate sized “bridge to nowhere” on the godforsaken, sparsely populated Gravina Island in Alaska?). But to accomplish that, the money first has to be transferred from the citizens’ pockets to the Treasury. So is it any wonder that sophisticated corporations that are able to do so, leave this country for foreign tax havens by using “inversion” or just moving their money around.

Now along comes Donald Trump, takes it all in and concludes that the rising popular anger has reached a level where it can serve as accumulated political dynamite that he can set off, and use the released energy to propel himself into the White House. So as far as he is concerned, what’s not to like? And if the country’s political system, dysfunctional to begin with, is further damaged in the process, hey man, that’s how the political cookie crumbles. The democratic form of government may be great stuff, but to be effective and successful, it requires a measure of judgment and the consent of the governed. So when the ruling class and its media friends flim-flam the people for a long enough time, and impose major policy changes on them without their consent, you shouldn’t be surprised when a “man on a white horse” rides out of nowhere and takes charge to the cheers of the multitudes. Just be glad that this time, it’s only Donald Trump. Given the past track record of the Washington establishment, and the pent up popular anger, it could have been worse.

Gideon Kanner is professor of law emeritus at the Loyola Law School.

This article was edited 3/7/16

California, There I Go

Though not often reported by the LA Times, we know that housing costs in California have been driving people out in large numbers, Now, Curbed LA has printed a detailed report on the exodus. Given its economic roots it comes as no surprise to us that it is people with lower incomes who are leaving in droves because they simply cannot afford to live here. Bianca Barragan, High Housing Costs Are Driving Californians Out in Droves, Curbed LA, March 4, 2016.  Click on http://la.curbed.com/2016/3/4/11161626/california-housing-costs-migration. Here is a summary:

“Angelenos and San Franciscans know their housing is insanely expensive, but California on the whole has some of the most expensive housing in the US, and that’s driving many poor and middle-class Californians out, says a new report from Beacon Economics and released by Next 10, a nonprofit group founded by Bay Area venture capitalist F. Noel Perry (via the San Gabriel Valley Tribune). In the years between 2007 and 2014, “625,000 more people moved out of California to other states than moved into California from other states.”

“Beacon says that a closer look at who is leaving California—their income, education, jobs—suggests that expensive housing costs are a far more likely explanation for out-migration than, say, the commonly complained-about taxes, which would be more likely to drive out the rich. Housing costs have been blamed for pushing lower-income people out of the state before, and a companion report from Beacon shows how unrealistically expensive the market has come in California; it now has a severe housing shortage and the second lowest homeownership rates in the country.”

Who are these migrants? “[T]he majority of out migration can be attributed to residents who earn less than $30,000,” Beacon says, and a huge chunk of those people leaving—192,700 over the seven-year period—are in “lower-skilled, lower-paying” fields, meaning something like food preparation, transportation, or office administration—jobs that are pretty essential to any state.

 

 

Eminent Domain: “Dark Corner of the Law” No More

Back in 1953, Lewis Orgel, author of the well regarded, two-volume treatise Valuation Under Eminent Domain, called eminent domain “the dark corner of the law.” And so it was. Outside of government, there were few eminent domain lawyers representing property owners, and not much interest in the subject. Even later, in the 1960s, when the number of eminent domain cases soared as the government took lots of property for highways and urban redevelopment, condemnation lawyers were pretty much a small fraternity, usually practicing solo or in small offices in large urban areas. But then things started to change. First came the tidal wave of takings for the Interstate Highway network , and for urban redevelopment. Then came controversies over inverse condemnation — especially of the regulatory takings variety. Takings law became a widely debated, controversial topic.

Then, in 2005 came the Kelo case, and all hell broke loose on the subject of the right to take, as the lay  American public began to understand that in the hands of judges, the Fifth Amendment phrase “public use,” limiting takings, didn’t mean “public use” and provided no protection against takings for manifestly private uses like malls and privately owned car factories. Rather, said Justice John Paul Stevens in his infamous 5 to 4 Supreme Court Kelo decision, “public use” meant “public purpose” which can mean anything the condemnor prognosticates, whether it happens or not.

If you are reading this post, you probably know what happened next. People came to realize that their homes were now fair game. They could now be taken from them in order to increase the local municipality’s cash flow and presumably, by a trickle down process benefit the private business community. But it didn’t happen. After destroying an unoffending lower middle-class community in New London, Connecticut, the prognosticated Kelo project was never built, and the local and state governments blew over $100 million for nothing — now, over 10 years after the Supreme Court decision, the subject land  is still sitting empty and unproductive.

But one consequence of the Kelo case has been the raised public consciousness of the eminent domain process and its abuses. Pipeline companies, for example, have discovered that these days they have small civil wars on their hands when they try to lay pipelines across farm land.

The latest is the emerging debate over eminent domain in the current presidential campaign. Donald Trump thinks that eminent is wonderful, while others disagree and are infuriated by that statement. In short, eminent domain has become a big-time issue in the presidential campaign. Now, we get word from  Florida, that the Conservative Solutions PAC is distributing large, 8 1/2 by 11 color flyers printed on heavy card stock, charging Trump with being wrong on his eminent domain position. (A tip of our hat to Prof. Frank Schnidman of Florida Atlantic University for this information). Will it make a difference? We have no idea. But the fact that eminent domain is being debated in this fashion on this lofty level demonstrates that we have come a long way from the days when folks were in doubt as to how to spell  “eminent.”

We are not sure whether the emergence of this topic as presidential campaign fodder is a good or bad thing. But as they say in Hollywood, “Say what you want about me, as long as you spell my name correctly.” So in case any of you folks are in doubt, it’s “eminent,” not “imminent.” Although, come to think about it, there are cases where eminent domain is imminent, and if delayed long enough, it can lead to litigation in which owners demand (and sometimes get) compensation for the unreasonable dealy. See Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation,  48 Notre Dame L. Rev.765 (1973). It’s a good read, folks even if it, like good wine, has done some aging. But it received a national prize from the Appraisal Institute (then the AIREA), so it can’t be all bad.

California Choo-Choo (cont’d.)

The California High Speed Rail Authority has come up with a whole new plan for the LA to San Francisco “bullet train.” The new plan “acknowledges the complications involved in crossing the [Southern California] mountains,” moves that part of the job to its end, and — surprise, surprise! — the plan “is unclear on how the segment from the Central Valley to Los Angeles will be paid for.” See Ralph Vartabedian, Slow Going for Bullet Train, L.A. Times, March 4, 2016, at p. B1.