Monthly Archives: January 2019

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.