Author Archives: Gideon

What’s the US Solicitor General Up to in the Knick Case?

If you have been following the demands made on the parties by the US Supreme Court in Knick v. Township of Scott, here is the latest. If you haven’t done so, the quick summary is this: Ms. Knick’s petition for certiorari was granted, the case was briefed and oral arguments were held supposedly on the issue of whether the court should “revisit” (read, overrule) another bit of its wretched past takings handiwork consisting of Williamson County etc. v. Hamilton Bank. That judicial gem held inter alia that for baffling reasons in inverse condemnation cases (claiming “Just Compensation” for uncompensated government takings of property) and no others, the constitutionally aggrieved plaintiff may not sue in federal court, but rather must seek relief in state courts.

This had unanticipated consequences, namely, that if the plaintiff-owner followed Williamson County and sued in state court, the government defendants could remove it to federal court (being as the controversy involved the federal constitution) and then argue that the case should be dismissed because the plaintiff-owner should have sued in state court which of course he did, only to have his case removed by the defendant to federal court. No, we are not making this up. Nor are we making up the fact that many federal judges would then dismiss the case as being in the wrong court, with the result that there was no court where the constitutionally aggrieved property owner could have his case heard.

So the grant of certiorari in the Knick case was widely taken as a signal that SCOTUS had seen the error of its ways and was about to fix things. Then came the oral argument which made it clear that, to put it in printable language, their Lordships were out of it big time; some of them confused direct and inverse condemnation, one wanted to talk about abstention, one let it slip that she was trying to “get around” prior law, and another asked why not “let this sleeping dog lie.” In short, an intellectual disaster area.

Then came a ray of light. Acting on its own motion, the court ordered a reargument and asked for some additional letter-briefs from the parties, which have just been filed, by inter alia the US Solicitor General as amicus curiae who — surprise, surprise — for a change has taken a position favorable to the outcome sought by the plaintiff-owner. WoW!

Now, the parties have filed their respective letter-briefs and the commentariat has shifted into high gear. As regular readers of this blog know, our favorite is Robert Thomas’ blog www.inversecondemnation.com As usual, in this case Mr. Thomas does not disappoint. We won’t duplicate here his efforts, so, particularly if you are a credentialed takings junkie who wants to get into this stuff, we suggest you go to his blog and browse through the last few posts dealing with the Knick intellectual disaster.

But this post was supposed to be about the role of the US Solicitor General who is in the case as amicus curiae, wasn’t it? So here goes. The SG takes the position that the taking of property without contemporaneous compensation does not violate the Fifth Amendment as long as the owner is also provided with “a reasonable, certain, and adequate mechanism to obtain compensation.” However, continues the SG, in the meantime “the property owner is quite literally deprived of the Just Compensation mandated by the Constitution.” So, reasons the SG, that owner should be able to bring an action under Section 1983 in federal court “to vindicate that right.” What right? If the delay between the taking and the payment of compensation is not a violation of the Takings Clause, than what is the deprivation that is the proper basis for a lawsuit in federal court?

We await the denouement of this saga with bated breath. The next oral argument is scheduled for early January, and we may learn more then. Then again, we may not. So here comes our usual advice: Stay tuned.

Ooops, we almost forgot. The original argument too took place before an eight-Justice court, being as Justice Kavanaugh was not yet in the saddle. But he will be during the second oral argument. However, none of the usual crystal ball gazers can tell where he stands on the taking issue. So watch he dispatches from that second argument. It should be interesting.

Bye, bye General Motors Poletown Plant

Remember the Poletown case? Sure you do. That was the infamous decision of a divided Michigan Supreme Court, that permitted the eminent domain taking of the Detroit community of Poletown in order to raze it and turn over its site to General Motors for a new Cadillac plant. The taking displaced an unoffending, diverse community, razing hundreds of homes, businesses and churches, as well as a major hospital, in order to subsidize GM which threatened to build this facility in Ohio, unless Detroit ponied up. It did. This caper cost the taxpayers some $200 million and it spared GM having to pay its full tax share. It was supposed to produce thousands of jobs. But it didn’t. By the time the dispatch about closing this plant came from the Detroit Free Press, there were only 1500 employees at that plant instead the 5000 that were promised.

See https://www.freep.com/story/money/business/john-gallagher/2018/11/26/gm-detroit-hamtramck-plant-closing/2114067002/ (cut and paste this link in your browser).

And of course, as you may remember, eventually GM filed for bankruptcy in the 2008 Great Recession anyway and defaulted on a bunch of bonds held by individual investors trying to save for their old age. In a case of too little and too late, in due course the Michigan Supreme Court came to its senses and overruled the Poletown case in Wayne County v. Hathcock.

And so Detroit joins the list of similar venues in which much was promised but little or nothing delivered after wasting fortunes in public funds and grossly undercompensating the displaced condemnee-owners of land in the path of such projects.

FULL DISCLOSURE: Your faithful servant, along with the late Bert Burgoyne of Detroit, and Toby Brigham the lion of Miami, were counsel in that case, representing the Sisters of Mercy, owners of that taken hospital.

Happy Thanksgiving!

In spite of all the kvetching and bitching, it’s time to pause and give thanks for our good fortune in having been granted the privilege of living in America. So enjoy your festive food, and do your shopping if you are strong enough to handle it, but as you do all that find time to give thanks.

The Knick Case — Big News from the Big Court

Calling all takings junkies!

The US Supreme Court has ordered re-argument in Knick v. Township of Scott, and ordered the parties to file additional short letter-briefs by the end of November. Our colleague, Robert Thomas has put the Court’s full order in his blog www.inversecondemnation.com. So if you have an interest in regulatory takings, get over to that blog and get it straight from the horse’s mouth. We recommend you do so, because the re-argument order goes into some detail as to what information the Court wants. Mr. Thomas provides a helpful explanation and commentary.

We presume that this time Justice Kavanaugh will participate in the re-argument, so the court will be up to full strength in the re-argument. For a copy of the full court order restoring The Knick case to the calendar go to https://www.supremecourt.gov/orders/courtorders/110218zr_bpm1.pdf

Lowball Watch — Texas

PRNewswire.com reports that when the State Of Texas took some 9500 square feet of land out of an auto salvage operation, it offered the owners $65,000. However, after trial, a Bell County jury brought in a verdict of $500,000. The taking involved moving of the owners’ driveway, which caused safety problems and accidents.

State of Texas v. Skyway Holdings LLC, No. 0015-04-083, filed in the Bell County Court of Law No. 3.

https://www.prnewswire.com/news-releases/owners-of-texas-business-win-500-000-jury-verdict-in-eminent-domain-dispute-300740408.html

A Question We Wish Hadn’t Been Asked

On October 2nd, our friend and fellow blogmeister, Robert Thomas, gave us a preview of the coming oral argument in Knick v. Township of Scott in which he posed the following question: Just How Badly Can SCOTUS Screw up Takings Law?

The oral arguments in Knick took place yesterday, and we now have an answer of sorts. There is no limit. Example: when the court granted cert, it did so on the question of whether the Williamson County case should be reconsidered to eliminate the requirement that the aggrieved land owner whose land has been taken without compensation, may not sue in federal court for this constitutional violation, but must instead sue in state court to “ripen” the case, 42 USC Sec 1983 to the contrary notwithstanding. So we started reading the transcript of the Knick oral argument, and what did we find? For openers, a question from the bench having to do with abstention which is in no way connected to the question presented, and which was dealt with by the court in Allegheny County v. Frank Mashuda Co. some time ago — a fact the questioner was obviously not acquainted with. Naturally, abstention was never raised or briefed below in the Knick case. And so it goes.

If you want to read the transcript in all its gory glory, go to https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-647_aplb.pdf (you can copy and paste this link in your browser)

There you will find such gems as Justice Breyer’s question asking whether SCOTUS should “let this sleeping dog lie,” overlooking the principle that the core function of the supreme court is to decide legal “sleeping dogs,” not perpetuate them. Besides, the owner’s counsel disposed of that idea by pointing out that Williamson County was not a sleeping dog but rather a wild dog running through the country. Still, in spite of our pessimism (of which more presently) we must rein in our feeling of impending doom and await the decision. For in spite of the court’s all too obvious misunderstanding of procedure in takings cases there is some likelihood that something in Williamson County will be overruled. And if that happens that would be progress — a step in the right direction. So let’s stay tuned. And pray.

Oh, and about that pessimism of ours, we were influenced years ago by the line of the late Bert Burgoyne, a great condemnation lawyer in Detroit, who once observed in our presence that “The problem with this field of law is that liberal judges don’t believe in private property, and conservative judges don’t believe in making the government pay.” As time goes on, we find the unpleasant truth embedded in that line to be more and more obvious. But even that neither explains nor justifies the intellectual and moral mess the courts have made of things law. Along with our co-author Michael M Berger, we just completed a law review article available in manuscript form on SSRN, entitled, The Nasty Brutish and Short Life of Agins v. City of Tiburon. We show there how SCOTUS so screwed up its opinion in Agins that it had to overrule it, not once but twice, thus suggesting that in this field of law, SCOTUS has a reverse Midas touch: just about everything it touches in this field turns to intellectual crap.

So read that transcript, and make up your own mind.

California Choo-Choo (Cont’d.)

We haven’t had much to say lately about California’s abuilding “bullet train” that in the sweet bye and bye will connect Los Angeles (and Orange County) with San Francisco. Now here is a dispatch from the LA Times, bringing us up to date on what’s going on. Worth a read.

http://www.latimes.com/local/california/la-me-lopez-bullet-train-20180930-story.html# (copy and paste in your browser)

Bottom line: the folks in the northeast San Fernando Valley, along the train’s proposed path are furious. They shouted down the railroad types at a recent “town hall” style meeting, and in the inimitable phrasing of LA Times columnist Steve Lopez, if tomatoes had been available they would have been flying. Whether that railroad project will ever be completed, and if so, when remains questionable.

Ideas Have Consequences . . .

They do indeed, as so well illustrated by the ongoing Judge Kavanaugh confirmation kerfuffle. Since we cannot say it any better, here is a quote from Heather McDonald’s article in the City Journal:

“The sexual revolution declared that the traditional restraints on the male libido—norms of male chivalry and gentlemanliness and of female modesty and prudence—were patriarchal and oppressive. Men should stop protecting women and putting them on a pedestal. Males and females were assumed to desire easy sex with equal fervor, and to be able to walk away from a one-night stand with equal complacency. With regard to students, adults should remain nonjudgmental and as far out of the picture as possible. Chaperones were relegated to the relic pile, as fusty as a mothballed corset. Starting in the 1970s, affluent parents often absented themselves from their teenager’s parties, leaving the house liquor cabinet unattended. Popular culture became hyper-sexualized.

“The results were not pretty: the male libido, free to act as boorishly as it wanted; females getting drunk to reduce their innate sexual inhibitions, unprotected by any default assumptions against casual premarital sex. Whether a 17-year-old Brett Kavanaugh took advantage of this putative sexual liberation, many other teenagers have, and in so doing, merely followed the new script for sexual relations.

“Those derided Victorian values of chivalric paternalism are now being reimported covertly on college campuses, however, where male students are deemed responsible for female well-being during drunken hook-ups, even if the male and female student are both equally inebriated. The #MeToo movement is going further, turning a drunken pat on the butt in a suburban kitchen into a criminal offense and a squeeze on the knee under a dinner table grounds for banishment. A panelist on The View complained that the “white men” on the Senate Judiciary Committee were “not protecting women.” One might have thought that the committee’s role was to protect the constitutional balance of power.”

To which one should add that if women are to be treated as men’s equals, why are they in need of such male protection? These days, they serve as police officers, combat troops, firefighters, Air Force fighter pilots, etc., so why do they require paternalistic oversight that shields them from life’s adversities and male misbehavior in their chosen occupations? Ironically, in all those battles for women’s equality in the military, opponents of male-female troop integration argued unsuccessfully that this was a bad idea because male soldiers would tend to be protective of their female comrades-in-arms, thus reducing their own effectiveness as warriors. But now, all of a sudden, we are told from on high that women, after all, are the weaker sex in need of male protection not just in combat, but at college parties. Sounds like Orwellian double think to us.

Equally important, if such new male protectiveness is where it’s at these days, why don’t the male Senators rise to the occasion, don their knightly armor and provide such chivalrous protection? Cat got their tongues? Evidently. Thus it took a woman — the inimitable Heather McDonald — to lay it all out and to remind us that social mores are adopted for a reason, and that we discard them at our peril. So we better learn how to think long and hard before we get rid of them just “because it feels good” at the moment.

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As is our habit, every now and then we depart from our usual topics to comment on important matters of broader interest. And this topic surely falls into that category.

NY Times: Constitution? What Constitution?

Check out a long piece in the Sunday NY Times by a lady named Nellie Bowles, Sue at Your Own Risk, 9-2-18, Business Section, p. 2. It’s about the kerfuffle in California — where else? — that pits the state against a high-tech multi-billionaire named Vinod Khosla. His misfortune stems from the fact that he bought a 53-acre beachfront parcel, and — silly man that he is — he thought that this entitled him to all the indicia and prerogatives of land ownership. But hey man, this is California where private land ownership (particularly of beachfront land) though not quite a crime, is not something that is entitled to the law’s protection either.

Long story short, the land’s previous owner kept the land closed to the public but had maintained a gated fence surrounding the property. The gate would be opened now and then, allowing members of the public to enter and park for a fee. Mr. Khosla wasn’t interested in such an arrangement, so he closed and locked the gate. Anywhere else that would be the end of the story. But like we said, this is California, man. So local dudes calling themselves the Surfrider Foundation took umbrage and demanded that Khosla keep that gate open for their convenient access to the beach. So this being California, quick as a bunny the State Lands Commission asked the legislature for funds wherewith to acquire an access easement to the sea across Khosla’s land. Also, the California Coastal Commission took the position that locking that gate was “development” which Khosla could not engage in without a Commission permit. No, we are not making this up.

California courts (which have never seen a government beach seizure they didn’t like) upheld the Commission’s contention, and the California Supreme Court denied review. Mr. Khosla then petitioned the US Supreme Court for a writ of certiorari seeking reversal of the California courts’ ruling, thus restoring Khosla’s rights in the subject property, being as the state never paid for them. SCOTUS, however, has been sitting on that petition, and went home for its summer break without either granting or denying Khosla’s plea. So we’ll have to wait until some time after the first Monday in October to learn whether California will have to comply with the Fifth Amendment’s “just compensation” clause, or whther SCOTUS will permit it to go on its merry way of flipping off that provision of the US Constitution.

What makes this particular NY Times dispatch interesting is that in spite of its length (about two broadside newspaper pages) it never mentions the Constitution, nor any takings cases decided by SCOTUS in the recent past. Like Kaiser Aetna, for example, which is directly on point (holding that the government may not order private land owners to open their property to the public, without paying just compensation. We recommend you read that article yourself and check us out. The way the Times describes this controversy sounds like a private quarrel between some local, beach-loving surfer dudes, and a wicked, greedy land owner who has the temerity to think that his ownership of land (on which he pays taxes) is protected by law, or that he has the right to exclude strangers from it, and that the Constitution (as well as the California Civil Code) grant him the right to exclude third-party strangers from his land.

So as we are fond of saying, stay tuned and keep your eye on the calendar to see if, come that first Monday in October, constitutional rights will be restored to California land owners.