Great Dissent!

If you are a “ripeness” maven who is into the incredible intellectual, doctrinal and moral mess that is the law of ripeness in inverse taking cases, do read the brand new dissenting opinion of Justices Thomas and Kennedy in Arrigoni Enterprises v. Durham, No. 15-631,  578 U.S. ___ (2016) that came down today along with, alas, an order denying certiorari.

Go to http://www.supremecourt.gov/opinions/15pdf/15-631_19m1.pdf  and see for yourself.

What this order and dissent demonstrate to us is that the ripeness mess is not a case of the Supreme Court failiure to understand the problem as we supposed in the past from time to time. It is now clear that no intelligent, English speaking person can possibly read the expository part of this dissent and still suppose that this court-created morass of Kafkaesque procedures, rampant conflicts of decision and outright judicial refusal to deal with an important constitutional issue that affects a fundamental constitutional right has been created inadvertently.

We are supposed to respect the courts because of the importance of their function. But respect has to be earned, and it is difficult to respect the prevailing “ripeness mess.”

Note that the dissent cites with approval a law journal article by Michael Berger and your faithful servant. We are flattered, but that does not change the fact that the law involved here is a mess.

Follow up. For a concise summary of the Thomas-Kennedy dissent, see the analysis of our fellow blogger Robert Thomas on www.inversecondemnation.com

Lowball Watch — Louisiana

Word reaches us that in an eminent domain taking of a parking lot by Louisiana State University for a Medical Center, the offer was $172,000, but after trial the court awarded a total of over $500.000, including attorneys fees, business losses, and future lost profits. The Louisiana Court of Appeal affirmed, and the state Supreme Court denied review, thus making the trial court judgment final. Interest on the award (at 5%) is yet to be calculated.

In an unusual twist, the court also awarded damages for mental anguish suffered by the owner during the ten days of pre-expropriation trespass during which the condemnor removed personal property from the subject property, and cleared and graded the land.

Keep in mind, however, that under the unique provision of the Louisiana Constitution, a condemnee is entitle not just to the fair market value of his land and improvements, but to all damages, “to the full extent of his loss.”

California Choo-Choo (Cont’d.)

Be still, my heart!

An editorial in today’s Los Angeles Times slams the management of our coming “bullet train” because of its planners’ change of plans — another one — under which the first segment of the planned San Francisco to Los Angels, and a bit beyond, bullet train would be built in Northern California while the more difficult segment of the route over the Tehachapi Mountains and on to Los Angeles would come later. “But left unsaid in the  draft 2016 business plan is how exactly the [railroad] authority will get the money to build the bullet train to Southern California.” So the first segment of the bullet train would go only from San Jose to the Central Valley . . .”and the rail line would peter out in some farmland near Shafter, about 20 miles south of Bakersfield.”

“[T]he plan does not explain how the authority will come up with the estimated $43.5 billion needed to construct the rail line from the Central Valley to Los Angeles and ultimately Anaheim, which it has planned to do by 2029.”

For the whole LA Times piece, see Editorial, Who Is Going to Pay for the Bullet Train to L.A., Los Angeles Times, April 17, 2016.

http://www.latimes.com/opinion/editorials/la-ed-0417-high-speed-rail-20160418-story. html

By the way; have you ever been to the farmland 20 miles south of Bakersfield? No? It’s the proverbial middle of nowhere. So take our advice and spare yourself the cost and effort of getting there.

 

Why Doesn’t the Judge Give that Defendant Frequent Flyer Miles?

We depart once again from our usual topics of eminent domain and land use, to share this gem with our readers. Today’s LA Times reports that a Mexican gentleman has been arrested and evidently sentenced to five years in prison. The Times article discloses that the miscreant in question had been caught escorting illegal aliens into the US 23 times in the last 17 years. No, we are not making this up; it’s sitting right here in front of your faithful servant in living black and white. See Teri Figueroa, Migrant Smuggler Gets Prison Term, L.A. Times, March 29, 2016, at p. B3. Evidently each time he was deported he turned around and came back, with a clutch of illegal aliens whom he guided through the border. Last time, says the Times, his charges complained that he robbed them before bringing them to the Promised Land

According to our calculator, that comes to one round trip 1.35 times a year. It would be appropriate, it seems to us, if at the end of each such deportation court proceeding the defendant were to say to the Judge “Thank you your Honor. See you next year.”

We tried to be funny, but it isn’t working. This is way beyond self-parody and goes a long way toward explaining why America is in trouble, and why Donald Trump’s calls for draconian border controls are finding resonance with so many people, and why he has done as well as he has in the polls.

California Choo-Choo (Cont’d.)

We offer this quote without comment, from today’s Los Angeles Times:

“[T]he agency could not identify the source of money to complete the entire Los Angeles-to-San Francisco system. That leaves a $43.5-billion gap in the business plan, scheduled for approval later this month.” Ralph Vartabedian, Senators Share Their Doubts About Bullet Train Financing With Rail Officials, L.A. Times, April 5, 2016.

For the entire LA Times article, go to http://www.latimes.com/local/politics/la-me-train-funding-doubts-20160405-story.html

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.**

________________________________-

*      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.