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.

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.

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

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

For the views of other informed observers on what transpired yesterday, check out the www.inversecondemnation.com blog and the scotusblog:

www.inversecondemnation.com

Argument analysis: Weighing federal court access for local takings plaintiffs

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.

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.

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.

________________________________________________________________________________
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.