Author Archives: Gideon

Taking the Preakness Horse Race by Eminent Domain?

Here we go again, folks. The city of Baltimore, evidently unchastened by its unsuccessful attempt of a couple of decades ago to take the Colts NFL franchise, is trying to take the Preakness horse race (and the rights thereto) by eminent domain. If that strikes you as absurd, join the club. But absurd as it may sound, there is a precedent of sorts for this attempt to abuse the power of eminent domain. A few years back, the city of Oakland, California, tried to take the NFL franchise of the Oakland Raiders in order to prevent them from moving to Los Angeles. We wrote about it at the time. The California Supreme Court held that doing so met the “public use” constitutional limitation on the power of eminent contained in the Fifth Amendment. But eventually, California courts came to their senses and held that “public use” or not, the taking was impermissible because it would be a violation of, of all things, the Interstate Commerce Clause of the Constitution.

So, after providing lots of employment to a bunch of lawyers (including inter alia  your faithful servant) the Raiders moved to Los Angeles. But it didn’t work out — after a while the Raiders moved back to Oakland thus demonstrating that the market, not the folks in city hall, has the last word when it comes to running a successful NFL team. See Gideon Kanner, Revisiting Baltimore’s Failed Hail Mary, LA Daily Journal, April 2, 2009, at p. 6.

Baltimore also talked a good game about taking the Pimlico/Preakness horse race back in 2009. See Gideon Kanner, Maryland’s Bad Track Record, LA Daily Journal, April 17, 2009, at p, 6. But that effort went nowhere.

Now Baltimore is trying it again. You can get the detailed legal story on the Volokh Conspiracy of March 26th, 2019, wherein Professor Ilya Somin goes into the legalities (or illegalities of the matter, as the case may be) in some detail. We recommend that you read his piece if you have an interest in this fershluggeneh field of law.

What puzzles us is that in all these cases the avowed purpose of the attempted taking was to prevent the Raiders (and Colts) from moving out of town. But no one, to the best of our recollection, based the opposition to these attempted takings on the constitutional right to travel. Though the law is plain that Americans have every right to move across the fruited plain as they wish, no one, to the best of our recollection raised that legal point as a defense to the taking of the Raiders NFL franchise in order to keep them in Oakland, even though the city was candid about its desire to prevent the Raiders from moving to Los Angeles. Which is academic because the Raiders won on another theory. But who knows, maybe that defense will be raised now.

So stay tuned and see how it all turns out.

Honolulu Choo-Choo

No sooner did the California planned “bullet train” between the San Francisco bay area and points  south meet its demise at the hands of our new Governor, that word reaches us of an even greater planning, engineering, environmental and fiscal disaster. This one comes to us from   Hawaii. If you have any interest at all in the construction of public works and the acquisition of land for them, you must read the front-page story in today’s Wall Street Journal. See Dan Frosch and Paul Overberg, Rail Line Runs into Trouble in Paradise, March, 23-24, 2019, p. A1.

It’s a story that defies our efforts to sum it up concisely, but fortunately, the authors have done it for us, so we will have to be content with just quoting the pertinent part of the Wall Street Journal article, starting on the front page:

“Among the cascade of problems Honolulu pushed ahead before fully planning the project, and nearly 100 contracts had to be reworked, causing delays. The city began construction before fully checking Native Hawaiian burial grounds, and a judge halted  the project for over a year. Planners built too close to power lines, so Honolulu must shell out hundreds of million of dollars to move them.

“Dogged by such blunders, the project has seen its price tag soar to more than $9 billion from about $5 billion. The cost overruns are among the largest that transportation experts say they’ve ever seen. The cost has led to an extra excise tax on businesses, which can affect the price of goods and services, and it has hit tourists through an expanded hotel tax.

“The federal government has suspended payment of its share of the budget. And a recent state audit said officials misled the public about the train line’s shaky finances.

“A federal grand jury is now looking into the project. Last month, the municipal body overseeing it received three subpoenas from the U.S. Attorney for Hawaii, demanding files on consultant contracts, correspondence with agencies, relocation payments and other records. Federal officials haven’t disclosed the focus of the sweeping probe.

“Honolulu elevated rail line shows how badly municipalities can stumble in tackling giant infrastructure project, especially when they are powered by political urgency. . . .”  *  *  *  “Others wonder how well will a commuter line befits island life, since stations won’t be within easy walk of celebrated destinations  such bas Waikiki Beach and Diamond Head park.”


We could go on and on, but we won’t. Suffice it to note (in addition to the above missteps) that “steel cables inside precast concrete sections that form the trackbed will be monitored for20 years because some failed during construction.” (emphasis added). You don’t need an engineering degree to reflect of this one.

Once upon a time America was noted and admired for its engineering prowess in designing and building massive infrastructure projects. This was done with primitive 19th century technology and largely with the power of human muscles. But now, it would appear, we can’t even install steel-cable reinforced  concrete structures without them failing even as they are being installed.

Lowball Watch — Indiana

The Cherokee Tribune reports a jury award over twice the city’s offer. The subject property was commercial, improved with a glass shop. The city offered $160,000. City’s appraisers opined to a value of $145,000. The jury verdict was $305,000, plus interest. The court also awarded the owners attorney fees in the amount of $26,000. Devin Zimmerman, Jury Awards Kokomo Glass Shop $305,000 in Eminent Domain, Cherokee Tribune, March 18, 2019.

https://www.tribuneledgernews.com/extra/news/jury-awards-kokomo-glass-shop-in-eminent-domain-case/article_ec41a607-2068-5d40-b885-7755e7e3b02b.html

Lowball Watch — Texas

Businesswire.com (Feb.25, 209) reports that a jury in Houston rejected the state DOT’s $3.2 million valuation for a partial taking of a 4-acre parcel of land for a highway, leaving a 9-acre remainder in the owner’s hands. The jury followed closely the owner’s appraisal and awarded $12.2 Million. The award was roughly four times the state’s evidence.

See Eminent Domain Lawsuit Results in $12.2 Million Jury Award to Property Owner, Reports Deal Sikes, Feb. 25, 2018 at https://www.businesswire.com/news/home/20190225005849/en/Eminent-Domain-Lawsuit-Results-12.2-Million-Jury

Lowball Watch — Louisiana

The New Orleans Advocate of February 22, 2019 reports an end to the nine-year legal battle between St. Bernard Parish and the privately owned Violet Dock port facility. The Parish offered $14 million, but after a fight over the right to take (which the Parish won) and two trials, the Louisiana Supreme Court affirmed an award of $34 million (an addition of $16 million. The owners will also be entitled to interest and attorneys’ fees — stand by for those. https://www.theadvocate.com/new_orleans/news/article_2b102fb8-36c5-11e9-8925-531fb534fa36.html

See Ramon Antonio Vargas, St. Bernard Parish Can Keep Seized Riverside Facility, But at More Than Twice the Cost, New Orleans Advocate, Feb. 22, 2019.

[Editor’s note: In Louisiana, “parish” means “county.”]

Bye-Bye California Choo-Choo

The LA Times brings us the news that our newly elected governor Gavin Newsom has put the kibosh on his predecessor’s pet project, the ambitious 200 mph “bullet train” that would eventually run between San Diego and the San Francisco Bay area. The currently abuilding rail segment between Bakersfield and Merced is to be completed, but that will be it. At least for now. The Times cites “the project’s persistent cost overruns, mismanagement and delays” as factors that make the high speed train line unviable. It “will have to be reassessed.” Phil Willow and Taryn Luna, Gov. Gavin Newsom Pledges to Scale Back High-Speed Rail and Twin-Tunnels Projects in State of the State Speech, LA Times, Feb. 12, 2018.

Over the years, we have been critical of the efforts to build this “bullet” train because after its announcement, and after snookering the voters into approving what turned out to be a grossly inadequate bond issue, the project became mired in local politics over route selection — politicians wanted their locales to be served by the new train, while lots of their constituents did not, citing noise and safety concerns.

Also, along with this announcement stopping the “bullet train” fiasco, the new governor let it be known that he would scale down another one of his predecessor’s grandiose project — twin tunnels under the Sacramento delta, that would carry water from the wet part of northern California to the parched south. Only one tunnel is now to be built instead of two.

For additional commentary on cancellation of the LA to Bay Area misbegotten “bullet train” see the article by Joel Kotkin and co-author, appearing in the City Journal go to

https://www.city-journal.org/high-speed-rail-projects?utm_source=City+Journal+Update&utm_campaign=726b9b76c1-EMAIL_CAMPAIGN_2019_02_13_11_43&utm_medium=email&utm_term=0_6c08930f2b-726b9b76c1-109498985

Follow up. Coming on the heels of the semi-demise of California’s “bullet train” comes the news that the feds who have been feeding this fiscal disaster, want their money back. The are cancelling some $929 million in federal grants, and are about to demand that California repay the $2.5 billion that the feds have already forked over. Californians don’t like the idea of this claw-back. Looks like the makings of another intergovernmental donnybrook that is bound to wind up in the courts. Stay tuned.

 

No Springtime for Hitler in Austria, or, How Do you Say “Lowball” in German?

The New York Times brings the dispatch that the Austrian government took the house in Braunau am Inn in which Adolph Hitler was born, after years of unsuccessful negotiations with its owner. The government used a compulsory purchase order and awarded the owner the equivalent of $350,000 for the three-story apartment building. The owner sued to prevent the taking, but lost. She then sued for additional compensation in the District Court in Ried im Innkreis, which awarded the equivalent of $1.7 million, which was the exact amount claimed by the owner and testified to by her appraiser, and almost five times the amount of the government offer.

The purpose of the taking was to prevent the building from falling into the hands of neo-Nazis who might use it to celebrate Hitler’s memory. The actual future use of the taken building is unclear at this time. We gather from the Times write-up that the answer to this question is something of a hot potato as far as the Austrian government is concerned: Preserve it and risk being accused of perpetuating Hitler’s memory, or raze it and be accused of tampering with Austrian history.

For the Times story go to https://www.nytimes.com/2019/02/07/world/europe/hitler-austria-house.html   It contains a picture of the subject property.

Afterthought. A well informed colleague has called our attention to a New Jersey case that echoes this one. No, no Hitler involvement in that one, but New Jersey courts have approved the taking of private property ostensibly for open space (even though the township had no plans  to put  the property to recreational uses after its taking). In other words, the New Jersey taking was  for the purpose of preventing a developer/land-owner from constructing perfectly legal homes because they would be “affordable to upper income families” but not serve the “public interest” of lower priced “assisted living facilities” or multifamily housing rather than one-family homes. Which inspires us to ask: if that is the law of New Jersey, then what the hell is the purpose of zoning laws which permits the construction of detached single-family homes, if the courts can by their subjective say-so require that those laws be ignored for the avowed purpose of judges engaging in subjective social engineering?

See Mt. Laurel Township v. MiPro Homes, 878 A.2d 38 (2006, N.J. App. Div.) affirmed 910 A.2d 617 (2008, N.J.).

Beware the Good, Grey, Centrist Judge

        If there is such a thing as a good, grey Republican who purports to be a centrist Judge sticking to precedent but also embracing an occasional incremental changes in the law in the best common-law tradition, that would have been Justice Lewis Powell. He made a name for himself before ascending the woolsack when still in private practice. He wrote a famous – or infamous, if you are of the leftist persuasion — memorandum, outlining what had increasingly gone wrong with the way America was drifting.

Since he viewed the work of “activist” judges as a part of that drift, he devoted a part of his “Powell memorandum” to their work: “American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” It would therefore seem only natural that upon being appointed to the US Supreme Court, Justice Powell would emerge as a voice advancing the court’s conservative positions. Right? Wrong!

The way things turned out, Justice Lewis Powell’s contributions to SCOTUS’ jurisprudence became the mighty pillars of liberal/activist jurisprudence that still support what has become the foundations of modern judicial radicalism.

If you don’t believe me, let’s try a concise stroll through some of those cases. In no particular order:

Agins v. City of Tiburon. Everybody who is into the takings/ripeness mess knows that one; if nothing else this case (though at first affirmed on other grounds) turned out to be so badly decided by the California Supreme Court that SCOTUS eventually had overrule it in First English etc. Church v. County of Los Angeles. Why? Because the California Supreme Court had wrongly decided the core issue presented by Agins – Is the “just compensation” specified in the Fifth Amendment’s Taking Clause payable in regulatory as well as physical takings of private property? The Califrnia courts said “no,” but the correct answer was “yes.” And as if that were not enough, later SCOTUS had to overrule its own Agins holding again in Lingle v. Chevron because its own Agins opinion had been decided on an entirely wrong doctrinal basis – though a taking case, SCOTUS had analyzed it as if it were a substantive due process case. And so Agins had to be overruled not once but twice.

Now, the takings/ripeness mess is before the Court again (in the wretched Knick case that so far has been argued twice, with no indication that their Lordships are on top of the issues created by their own earlier decisions and by Justice Powell’s original “ripeness” excursion).

Bakke v. Regents. That one, as you surely must recall, was the seed from which grew the “affirmative cation” litigational mess that is still a mess and still with us. Why? Though its black letter ruling held that reverse discrimination on the basis of race is unconstitutional, colleges – said the court — could consider race as a “plus” factor in deciding whether to admit a member of a minority race in preference to a white applicant. Needless to say, with a gigantic loophole like that, universities were able to cheat and admit minority applicants in preference to better qualified white ones, leading later to several more racial preference cases with diverse results. And even as I write, Harvard is being sued by a group of Asian applicants who rightly complain that black candidates are given preference in admissions.

If you want to read what I believe is the best commentary on Bakke, do read William Kai-Sheng Wang, The Devil Visits Justice Powell, Los Angeles Lawyer, July 1979, at p. 34. It’s short, insightful and witty – what more could you want?

Then there is good ol’ Roe v. Wade which legalized abortion and thereby launched the equivalent of a low-level civil war that still remains unresolved and – whether you agree with it or not — has poisoned American politics so that no candidates for public office in America can avoid entanglement in vicious controversies over whether they are “pro-life” or “pro-choice,” even though such controversies tend to obscure debate over grave topics like national defense, the economy, foreign policy, and other important aspects of sovereign governance. The New York Times, for example, is still going on about it — see: https://www.nytimes.com/2019/01/21/opinion/roe-wade-abortion.html?em_pos=small&emc=edit_ty_20190122&nl=opinion-today&nl_art=1&nlid=59608749emc%3Dedit_ty_20190122&ref=headline&te=1

So who wrote those opinions that have so destabilized America and have led to the prevailing poisonous public discourse that has driven most good people out of politics? It was Justice Lewis Powell (except for Roe in which he concurred, thus providing the crucial fifth vote to it).

Now tell me about how good centrist-conservative folks like Justice Powell are good for America. Ha! With conservatives like that, who needs radicals?

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.