Archive for April, 2012

John Marshall and Oliver Wendell Holmes, Stay Out of Florida!

Monday, April 23rd, 2012

If you have read this blog before you must realize that we hold a childlike belief in the efficacy of the rule of law. We believe with Justice Holmes that legally enforceable property rights and the law’s function of resolving disputes are essential to a civilized society because the legal process takes the place of a fight. And Chief Justice John Marshall observed in Marbury v. Madison that the protection of citizens from lawlesness is the government’s primary function. All this sounds good, but it evidently finds no application in Florida where the government is free to refuse to enforce the law and is free to leave you to your own devices when your property is invaded by defiant trespassers. If you don’t like it, says the court, you better resort to self-help — file a lawsuit against the willful trespassers, or hire rent-a-cops to protect you when your local sheriff (whose salary you pay with your taxes) refuses to do so.

We invite your attention to the blog www.inversecondemnation.com which has alerted us to a strange decision from the U.S. Court of Appeal for the 11th Circuit holding just that. Crystal Dunes Owners Ass’n. v. City of Destin, No. 2011-14595, April 17, 2012 (unpublished).

We can understand how a local law enforcement agency can use its discretion to decide whether to intervene (and if so, how vigorously) in a particular confrontation between citizens, but this is a whole other thing. Here, the plaintiff-property owners alleged that the local Sheriff’s office adopted a blanket policy of not enforcing state trespass laws within 20 feet of the wet sand’s beach edge. We are not sufficiently well informed to take a position on the extent to which the Constitution imposes an obligation on law enforcement personnel to enforce its provisions, though we seem to recall that public officers of all sorts take an oath of office in which they swear that they will protect and defend the Constitution of the United States. And last time we looked, the Constitution and state laws did protect owners of property from invasion by wilfull trespassers acting with the acquiescence of the authorities. In fact, we understand that there are criminal trespass laws on the books that make such invasions a crime. Yes? So it follows that when the cops announce in advance that they won’t enforce a law that protects people’s homes (and the curtilage thereof) from defiant trespassers, they disregard their sworn duty and become complicit in violation of the law. No?

How would you react if the selfsame Sheriff annouced that henceforth he and his deputies will not protect homes from home invasions, or banks from robberies, because Florida citizens have the right to defend their turf and  ”stand their ground,” while banks have armed guards and can take self-help measures to protect themselves? Or, closer to home, what if the trespassers on a private Destin beach happened to belong to a local Klavern, and they gathered on the private beach of an Africal-American homeowner to down a few beers, party a bit, and exercise thei First Amendment rights to protest anti-discrimination laws? And the local Sheriff refused to do anything, telling the complaining homeowners that they better resort to self-help measures like suing the Klan, or reaching for the old fowling piece the better to “stand their ground”? Do you think the court would still buy law enforcement nonfeasance on those facts? Or is it just a matter of which constitutional right is in issue?

All of which reminds us of a line from the old Li’l Abner cartoon strip (click here) in which a character once explained that there are good constitutional rights and bad constitutional rights, and only the former sre actually protected by law. Welcome to the intellectual (and moral) Dogpatch.

Where Do Judges Come From?

Sunday, April 22nd, 2012

In his State of the Judiciary Statement of a year or so ago, the Chief Justice of the United States took note of the grim fact  that only a minority of new federal judges come to the bench from private practice — only 40% to be exact. The other 60% come from the government. Nothing wrong per se with a lawyer  working for the government. But, as we are fond of noting from time to time, there is such a thing as too much of a good thing, and this is one example of it.

We were reminded of such stuff this morning, while perusing the editorial pages of today’s Los Angeles Times — Editorial, Three Solid Judicial Picks, L.A. Times April 22, 2012, at p. A25. In it, the Times endorses three candidates running for open judicial seats in Los Angeles County (which just happens to be the largest  trial court in the nation). Of the three candidates endorsed today by the Times — you guessed it, sports fans — all three are prosecutors. Golly, what a coincidence. And so are their competitors (if you don’t count the one who is described by the Times as a “radio host, punk rock drummer and bass player, and music impressario, as well as an attorney.”

The other day the Times endorsed three other judicial candidates, two of whom are also prosecutors while the third one’s pre-judicial experience involved the running of a bagel shop. No, we are not making this up folks.

So far, this is depressingly familiar stuff – a dog-bites-man story. After all, man, this is California. But glory be, a few tiny cracks are beginning to appear in the Times’ thus far unshakable committment to filling the local bench with former prosecutors and other government lawyers. This time the Times grudgingly concedes that ”the court is in desperate need of experienced generalists.” No kidding.  As the Times also notes, the Los Angeles Superior Court consists of 450 judges who, in addition to criminal matters hear  ”complex commercial lawsuits, landlord-tenant disputes, . . ., divorce and child custody disputes, conservatorship and guardianships, adoptions and foster care matters, traffic cases and plenty more besides.” To say nothing of eminent domain cases.

So the question asks itself: how much do many of these former prosecutors who have been spending their careers putting bad guys in the calaboose,  know about the finer points of all these civil matters? For some reason the word bobkes comes to mind. Indeed, it has come to our attention that a course in insurance law will be offered to sitting local judges because even moderately sophisticated knowledge of insurance — which is the life’s blood of the tort system — is not something that is within the ken of many former prosecutors.

Mind you, we don’t believe that former service as government counsel should disqualify an otherwise capable lawyer from becoming a judge, any more than a career in private practice should do so. But it’s a matter of degree and of  balance. And there’s the rub.

So it remains to be seen if the Los Angeles Times will now follow up on its misgivings about courts staffed by government lawyers and raise its editorial voice in favor of a more balanced bench. After all, the Times and the folks for whom it speaks, are all for “diversity.” So maybe it won’t be too much of a stretch for them to enlist, however reluctantly, in an effort  to support a bench that is more diverse in terms of its professional background, not just its gender and ethnicity. Do you think that is possible? We wonder about that, but who knows? So let’s just stay tuned and see.

Finally, we are not oblivious to the disincentives to judicial service that keep many private practitioners from seeking judicial appointments. First, there is the matter of economics — a good private practitioner who mounts the woolsack tends to take a huge cut in pay. Second, the process of seeking an appointment can be demeaning. In the case of the heavy hitters of the profession, it can be a case of “who needs it”? And finally, the day to day doings of a judge can get pretty intellectually dreary. Who wants to spend his or her life listening to mediocre, ill prepared and inarticulate lawyers who all too often make up a large chunk of day-in, day-out litigators? To say nothing of reading their written output.

Still, the job has to be done and in a society that relies on a rule of law, it has to be done well.  When Ronald Reagan was Governor, we are told, he relied on an informal committee that identified prospective candidates with promising judicial potential, and then did its best to persuade them to accept a judicial appointment. Will that work today when a good lawyer’s income is measured in multiple six or seven figures? Who knows? But it seems to us that it ought to be tried because today’s increasingly bureaucratized bench does not bode well for the perceived excellence and impartiality of our judicial system, which is indispensable to the courts’ stature.

An “Urban Legend ” of Urban Planning Bites the Dust

Wednesday, April 18th, 2012

The notion that inner city neighborhoods lack proper grocery stores (that sell wholesome produce), so the poor folks who live there have no choice but to survive on “fast food” which is nutritionally dreadful and causes obesity, has by now become one of those in incontestable Great Truths. It ain’t so. It’s an “urban legend.” Check out Gina Kolata’s front-page story, Studies Question the Pairing of Food Deserts and Obesity, N.Y. Times, April 18, 2012, at p. A1. It turns out that this particular Great Truth, isn’t any kind of truth in spite of the fact that the First Lady, Michelle Obama, contributed to it by deploring the supposed fact that in center city, ”if people want to buy a head of lettuce or salad or some fruit for their kids’ lunch, they have to take two or three buses, maybe pay for a taxicab, in order to do it.” But it ain’t so. You can get basically any type of food in the cities.

Quoth RAND Corporation’s Roland Sturm, a lead author of one of the recent studies looking into this problem, that was puublished in The American Journal of Preventive Medicine : “Maybe we should call it a food swamp rather than a desert.” So maybe the produce available in those places may not be of the best quality, and maybe you wouldn’t bypass Gelson’s and go there when setting out to shop for fresh arugula or dragon fruit, but there is plenty of good ol’ garden variety produce to be had there — you should pardon the pun — without taking taxis and multiple busses.

As the Times notes, even in an urban dump like Camden, New Jersey, the center city is served by three stores “with abundant produce.” So why don’t the local kids eat wholesome salads? Because, we are told by the Times, they buy “empanadas, sodas and  candy.” The Times even runs a photo (on p. A3) showing the produce department in a Camden grocery store, with veggies piled ceiling-high. So it’s a matter of preference, not availability.

So what’s the moral here? In nutrition, as in other areas of life, you have to exercise free will to provide benefits to yourself, and no amount of preaching is likely to be a substitute for the exercise of free will by the kids and their parents. For the record, we are not in favor of America becoming a nation of lardbutts but if there is to be a change in American eating habits it won’t come about by the high and the mighty fostering “urban legends” about “food deserts” and the like.

This particular “urban legend” like others has a healthy dollop of wishful thinking to it. If only those kids would eat fruits and salads instead of empanadas, . . . Yeah. And if only urban renewal worked. . . And if only those suburban dwellers would follow the preaching of enviro-planners, sell their cars, and move from their McMansions into environmentally desirable city apartments. . . . But they don’t. Why not? Because in a free country that’s an individual decision and if they don’t want to they don’t have to.

Follow up. For another dispatch on this subject see Jacob Sullum, The Mirage of Blooming “Food Deserts,” Reason.com, April 18, 2012.

Did You Say “Public Use”? – Chavez Ravine Again

Tuesday, April 17th, 2012

Unless you are from another planet you must have heard by now that (a) the Los Angeles Dodgers (formerly the Brooklyn Dodgers) filed for bankruptcy, and (b) as a result the team was sold to a consortium of investors who paid an astonishing $2.15 billion (with a “b”) for it. Why astonishing? Because, if the high-finance mavens are to be believed, the likely revenues from a major league baseball team are highly unlikely to provide a proper return on that kind of investment. But the buyers of the Dodger franchise are no dummies, and they did pay $2,150,000,000. Why? What’s the catch?

A front-page story in this morning’s Los Angeles Times provides a clue. Roger Vincent and Ken Bensinger, Chavez Ravine’s Wealth of Land in Play, L.A. Times, April 17, 2012, at p. A1. Though nothing is official or even firm, the story is that the new owners are planning a major development on land surrounding Dodger Stadium  — it includes some 300 acres of vacant land. They may even tear down Dodger Stadium and move it to a downtown location, particularly if the ongoing effort to build a major NFL stadium in downtown Los Angeles fails.

So why is all this of interest to eminent domain mavens? Because it brings to mind the wretched and dishonest history of Dodger Stadium which was built on land taken by eminent domain for — are you ready? — low-cost housing. It never happened. The taking displaced an old working class Mexican community whose members owned homes in the area and were paid about $10,000 for each, without interest, though they were incontestably entitled to it. Eventually, the City of Los Angeles gave Chavez Ravine to the Dodgers to induce them to move to L.A. from Brooklyn, and the rest is history.

All of which goes to show — if any additional showing were needed — that eminent domain as practiced today is often  a dishonest process that in the name of “public use” subsidizes well-connected redevelopers and other land nabobs, while simultaneously displacing and undercompensating indigenous populations located in the targeted areas. And make no mistake, we are not opposed to eminent domain per se like some libertarians. In the real world takings of private property are inevitable, which is why the law of most states requires the presence of public necessity for the exercise of eminent domain. But that is legal requirement that courts largely gloss over or ignore altogether.

During the oral argument in the Kelo case, Justice Kennedy observed that perhaps condemnees’ compensation should reflect the upside value potential of the taken land when it is to be used for private gain in the redevelopment context. Not a bad idea, although we haven’t heard much about it since.

So the bottom line is that first, the Dodgers got a multi-million dollar windfall, and now it looks like they and their new partners stand to make billions (if nothing else, to recover their investment), while Manuel Arechiga and the low-income Mexican homeowners who were his neighbors and who once lived in Chavez Ravine, got $10 grand each, plus a display of not-so-thinly-veiled contempt for their constitutional rights by the California courts.

 

Another Redevelopment Project Down the Tubes

Saturday, April 14th, 2012

Back in 2009 we blogged about the California case of Redevelopment Agency of Sand Diego v. Mesdaq, 154 Cal.Rptr.3d 372. There, the trial court awarded $7,785,131.83 for the taking of a lounge, on the agency’s deposit of $3,091,000. The California Court of Appeal reversed (its holding was later overruled, which is another story). What caught our attention was that after the reversal the case settled for $7,800,000, about the same as the reversed verdict. Why? We don’t know. See Jeanette Steele, Deal Reached in Year-Long Eminent Domain Case, San Diego Union, January 17, 2008, at p. A1 – click here.

We now learn from LIBERTY & LAW, April 2012,  Vol.21, Issue 2, at pp. 6-7,  a publication of the Institute for Justice, that the redevelopment project for which the Mesdaq property was taken (ostensibly for a Marriott hotel), went belly up and the subject property is now a parking lot.

Your tax money at work.

High Speed Railroad (Cont’d.)

Friday, April 13th, 2012
We just came across a summary of the status of the California high speed railroad project, posted on line by a prominent local law firm, which neatly sums up how California voters have been snookered. Here it is:
“Compared with what voters approved in 2008, the new outline doubles the price tag to at
least $68 billion, delays the start of service nearly a decade to 2029, slashes
expected rider counts, increases fares, shortens the route and reduces train
service.”

Eminent Domain Reform In Virginia — It’s Up to the Voters Now

Thursday, April 12th, 2012

A dispatch from Virginia indicates that Governor McDonnell has signed legislation that will place a state constitutional amendment limiting the power of eminent domain on the ballot. Carten Cordell, VA Eminent Domain Bill to be on November Ballot, Virginia Statehouse News, April 9, 2012. Click here.  The amendment forbids the use of eminent domain for Kelo-style takings of property for “economic redevelopment,” and provides for compensation for loss of profits suffered by business owners when land on which their businesses are located is taken by eminent domain.

Which seems reasonable to us. After all the Founders — who included a bunch of Virginians — operated on the outspoken premise that only that government is legitimate that operates with the consent of the governed.

“Paying For the Change” in Oklahoma

Wednesday, April 11th, 2012

It was Justice Holmes who observed in his famous Pennsylvania Coal Co. opinion that the government is entitled to acquire private property to improve the public condition, but is not entitled to do so by taking constitutional shortcuts and not paying for the change. An article in The Tulsa World presents us with a case in point. There, in Rogers County, Oklahoma, a mining company set out to engage in lawful mining on land located outside of town. But the city fathers didn’t like it so they annexed the subject property to the city and prevented the company from mining. So the company sued. Note well that its lawsuit sought a declaration that the annexation was unlawful. But the courts must have denied that remedy. Rhett Morgan, Rogers County Seeks One-Third-Cent Tax Hike to Pay $22 Million Judgment to a Mining Company, Tulsa World, April 11, 2012 – click here.

The news story does not explain how it happened, but evidently the company was denied specific relief and was relegated to having to seek damages instead, in an inverse comndemnation action. Actually, that was consistent with settled law holding that when it appears that a taking of private property has occurred, the aggrieved owner is not entitled to a specific remedy like the return of his property or an injunction against the taking — his constitutionally guaranteed “just compensation” then becomes his sole remedy. The U.S. Supreme Court so held in Hurley v. Kincaid, back in the early 1930s, where Justice Brandeis explained (a) that injunctive relief is available only when the [monetary] remedy at law is inadequate (whereas in taking cases the constitution specifies a monetary remedy), and (b) that it would be bad policy for the courts to tell the executive branch of government what it may or may not do, and then meddle in executive branch activities by supervising compliance with the injunction, when the constitution specifies a monetary remedy.

Long story short, at trial the jury awarded $12.5 million. With interest accruing at the rate of 5.25%, the interest tab, as of this writing hovers around $7,089,041.10, and is accruing at $3180 per day. Oklahoma appellate courts affirmed, so the city must pay, and it is now trying to increase its sales tax to raise the money with which to pay off the judgment.

There is a moral in here some place, and we are sure you can figure out what it is. If not, here is some more help from Justice Holmes: the public, like anyone else, is only entitled to what it pays for. Or if you prefer: There ain’t no such thing as a free lunch.

Wish We Had Said That — California Housing Again

Sunday, April 8th, 2012

“It’s no secret that California’s regulatory and tax climate is driving business investment to other states. California’s high cost of living also is driving people away. Since 2000 more than 1.6 million people have fled, and my own research as well as that of others points to high housing prices as the principal factor.”

That’s a quote from Wendell Cox, California Makes War on Suburbia, Wall St. Jour., April 7, 2012, at p. A12.

What caught our eye is Mr. Cox’s reference to the work of Dartmouth land economist William A. Fischel who wrote as far back as the 1990s, demonstrating that California’s outlandish housing costs were the result of la-la land’s regulatory climate which Prof. Fischel showed to be the cause of the rapid and unconscionable increase in home prices. You should read his book, particularly chapter 6 which is devoted to California, and which painstakingly demonstrates that all cost factors in California home construction (land availability, labor costs, etc.) were not all that different from other places. That’s William A. Fischel, REGULATORY TAKINGS: LAW, ECONOMICS AND POLICY (1998 Harvard U. Press). What was different in California was the cost of regulation which limited construction of housing, particularly in areas where people, particularly people who could afford to buy homes, wanted to live.

Also, the California courts’ supine acquiescence in whatever local regulators did, irrespective of its consistency with the Constitution, didn’t help things. Significantly, it was California Supreme Court Justice William P. Clark, who in 1979 presciently observed in his dissent in Agins v. Tiburon, that at the rate California Courts were going, they were facilitating the creation of an economic climate in which the state’s population would be divided into housing haves and have-nots, with desirable living areas reserved for the former.

As for the California “bubble,”  please don’t tell us about the fools or crooks who, working hand in glove with dishonest lenders and mortgage “bundlers” bought (or at least they thought they bought) faux-grandiose homes in the boondocks for sky-high prices they could not afford. Once you put aside those folks and the inevitable calamity their folly produced, what you get is a California housing market that is still unaffordable to too many people. We sympathize with those who were victimized by the practices that led to the “bubble,” but in the words of a sage, “You can’t cheat an honest man,” Nor, we should add, a sensible one. Sorry about that, folks, but that’s the way it is.

Our own, personal insight into these matters was influenced by two sources. As it happens we are visiting North Carolina at the moment, a place where housing prices as compared to California leave one astonished. In the better suburbs of Charlotte where we happen to be, $600,000 buys you a 3500 sq.ft., four or five bedroom, three-bath, three-car garage, brick veneer home, sitting on at least a half acre of land in an upscale suburb, like Weddington for example (renowned for the quality of its schools). You can lop off a couple of hundred grand from those prices if you settle for a lesser but still very nice suburb like Waxhaw, whereas back home in California, in the middle to lower-middle class city of Burbank, where we make our home, $600,000 will get you a 60-year old 1500 sq. ft. home with two-bedrooms, one bathroom, and a detached garage, in a neighborhood where you actually may want to live.

The other thing that caused us to reflect on this stuff, took place a few years ago. A developer of our acquaintance decided to build some low-cost housing (over here that meant a quarter million dollars a pop) in an unfashionable part of San Diego County near the Mexican border. He was informed by the county that the exaction payments alone would come to $25,000, or ten percent of the projected selling price. You can take it from there.

And please don’t tell us that the “bubble” has burst in California. Sure, prices have gone down significantly. But you need to ask yourself, down from what? In our neighborhood, that means that a nice but no-big-deal two-bedroom townhouse (that sold new in the $20,000s in the 1960s, and that hit a high of over $600,000 when the “bubble” was fully inflated), now goes for around $400,000. That’s a steep decline from the “bubble” days, but still a lot of money for what you get, and a burden on today’s ordinary home buyers because wages are not that much higher in California than elsewhere. Buyers were willing to overextend themslves by buying pricy housing when values were going up and one’s equity kept growing. But when paying that kind of money means getting merely a place to live with a good chance of an equity decline, that’s a whole other thing.

Besides, under current tax laws, if you are middle aged and you bought a place like that in the 1980s (for somewhere between $100,000 and $150,000) that means you can still sell it and cash out a quarter-million dollar equity, move to another state where you can buy a similar dwelling free and clear, and still stash six figures tax-free for your retirement. Economically, that’s a no-brainer incentive to moving for a lot of people, and a lot of Californians have concluded just that.

What is particularly significant and worrisome, is that the middle-aged couples cashing out their swollen home equities and leaving California are being joined by young people who are moving out because they simply cannot afford housing costs in the Golden State. We find it remarkable how many of our aging contemporaries’ children have moved out of California — emulating us when we did the same decades ago when we left the East Coast for the opportunities, the climate and the inexpensive housing offered by the Golden State.

As Yogi Berra put it, “Prediction is very difficult, especially about the future,” so we will refrain from prognosticating. You can do that for yourself just as well.

Update. It would appear that Mr. Cox’s article hit a home run. It inspired a “response” from Josh Stephens, in the April 10, 2012, post of the California Planning & Development Report – click here. Why quotation marks? Because Mr. Stephens throws a hissy fit in responding (or more accurately, trying to respond to Mr. Cox’s critique of California), but it’s mostly an ad hominem diatribe directed at Mr. Cox. We have no intention of going there, but if you must do it, ask yourself this question: If Cox is as wrong as Stephens says he is, why are Californian’s leaving the erstwhile Golden State in droves? Maybe you can get Mr. Stephens to answer that one.

High Speed Railroad (Cont’d.)

Thursday, April 5th, 2012

When we started keeping track of the ups and downs (mostly downs) of the proposed California high-speed rail that, if built, would run between San Diego and San Francisco in a couple of hours, twelve times each day in each diretion, we had no idea that we were sticking our little harpoon into a big whale. But foreseen or not, the doings of that high-speed railroad have now gone beyond the ridiculous — you just couldn’t make it up if you tried.

The March 31st issue of the Sacramento Bee brings the news that, faced with the growing anger of California voters who were snookered into approving a $9 billion bond issue for this railroad whose estimated cost jumped first to $43 billion, and then to $98.5 billion, the folks in Sacramento are retreating. Now we are told that the projected cost has been reduced by $30 billion. How? Our technical background is in rocket engineering, not railroads, but even so we don’t know how you can reduce the cost of a massive project like a railroad by nearly one-third and still come up with something like what was intended in the beginning. But here it is in black and white: Our Governor Jerry “Moonbeam” Brown has told reporters that, by golly, he spent “several hours” on the changes this week. There, that should do it. Dan Smith and David Siders, Gov. Jerry Brown to Change High-Speed Rail Plan, Lower Cost by $30 Billion, Sacramento Bee, March 31, 2012 – click on http://www.sacbee.com/2012/03/31/4380423/gov-jerry-brown-to-change-high.html

At this point we stopped reading this stuff and are trying to brace ourselves for the next absurdity. Bear with us. We need to recover before plunging into it again.

In the meantime, California is approaching insolvency.

Afterthought: If the first $2.3 billion batch of railroad bonds is actually authorized to be issued and sold by April 12th, like it says in the paper, then (a) what will be the rate of interest payable by those bonds, and (b) what will be the source of the money used for those interest payments?

Correction. The original plans called for 12 trains per hour, not per day, in each direction.


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