Monthly Archives: March 2013

Bye, Bye California — This Time It’s Dairy Farms

A front page story in today’s Los Angeles Times informs us that — as the subheading puts it — “Struggling California dairies consider moving out of state.” Actually, they are doing more than “considerring.” The figures tell the story.

“California has been steadily losing dairies in the last decade. In 2003, more than 2000 dairies operated in California. That figure dropped to 1563 in 2012, according to the California Department of Food and Agriculture.”

Running a dairy farm in California has grown more difficult and more costly. And did we mention the more burdensome California environmental and other regulations?

Bottom line: California dairymen are heading for other states, and the Governor of South Dakota is in town, saying “y’all come” to them. The reason the outmigration of dairy farms is a trickle rather than a river, is that it’s a capital intensive process, and after struggling in California many dairymen don’t have the kind of money such a move requires. Bummer.

Once upon a time Southern California was dotted withn so-called cash-and-carry dairies that kept cows on the premises and sold milk at retail. No more. They were all zoned out of existence or their land was taken by eminent domain — see e.g. Orange County Flood Control Dist. v. Sunny Crest Dairy, 77 Cal.App.3d 742 (1978). Now it’s the turn of the large commercial dairies.

To get the L.A. times story, read Ricardo Lopez, No Longer a Cash Cow, L.A. Times, March 30, 2013, at p. A1 — click here

California Choo-Choo. Again.

The ongoing California Bullet Train mess has entered a new stage. It appears that so many compromises (read, political deals) have been made that the current plan violates the criteria that were included as conditions to the voters’ approval of the deal back in 2008. The problem is that the proposed first segment will fall short of the minimum distance required to have a usable train operation. In the meantime lawsuits are pending to stop the current version of the train, and to enforce the one presented to the voters at the time they were asked to approve (and did approve) it. In short, it’s a mess.

The voters approved a $9 billion bond issue, but to build the first usable rail segment (between Merced and the San Fernando Valley) will require $31 billion, and in the words of the Los Angeles Times, “the state does not have this kind of money in sight.” Got it? And to make matters worse — if that is possible — some of the leaders of the bullet train effort have now evidently come around to opposing it in its present form. It’s all there in black and white, and if you have an interest in this mess, read Ralph Vartabedian, High-Speed Rail’s Strongest Backers Have Concerns, L.A. Times. March 27, 2013, at p. AA1. Click here,0,6470905.story

Quotable Quote

Our readers surely know that we often admire the work of Robert Thomas, who runs the blog out of Hawaii. He has outdone himself again, with today’s piece dealing with the German expression Zugzwang, as follows.

“No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. “Zugzwang,” for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.

“That’s what many property owners’ lawyers feel like when that regulatory takings case walks though their doors and they are asked “do we file now or later, and in which court?” You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. [See the wretched Estate of Hage case]. Wait, and you will be facing an argument that the statute of limitations has run. Zugzwang. Same goes for which court, state or federal. File in federal court and you’re up against Williamson County and ripeness and the argument that the taking “without just compensation” has not yet even occurred because you haven’t been denied compensation by a state court. File in state court, and when you get to federal court on your federal claims, you will be deemed to have unwillingly litigated them. Zugzwang.”

To which one might add those priceless cases in which a judge holds that the owner’s taking claim is simultaneously too early and too late. No, we are not kidding. Wish we were.

High Speed Train. Continued?

We caught a news program last evening on cable news (CNN?) on the progress, or more accurately, the lack thereof, of the high speed train project on a national basis.

Bottom line: In California a billion dollars has been spent, but not a single spadeful of dirt has been moved. Res ipsa loquitur. We’d love to see the results of a competent audit.

Up in Washington State $800,000,000 (that’s eight hundred million, in case you lost count of the zeros) has been actually spent on a “high speed rail” but all it produced so far is a reduction of 10 minutes in the railroad trip from Seattle to Portland, using the existing railroad. Local officials did not appear very eager to charge on with any “bullet trains.”

Stay tuned.

Justice Stanley Mosk Was a Cool Dude

We are in the process of wading through a biography entitled JUSTICE STANLEY MOSK, A LIFE AT THE CENTER OF CALIFORNIA POLITICS AND JUSTICE (2013), by Jacqueline R. Braitman and Gerald F. Uelmen, and we have good news and bad news. The good news is that the book provides much insight into Stanley Mosk’s personal and political life. The bad news is that when it comes to his legal accomplishments, the authors do him an injustice by concentrating only on his involvement in politically correct subjects: such as the death penalty, affirmative action, and similar stuff dear to the liberals’ hearts.

Although in the second half of the twentieth century, eminent domain controversies, both direct and inverse, have been major topics of litigation in California, as well as countrywide, and produced over two dozen cases decided by the California Supreme Court while Justice Mosk was a member of it, you’d be hard put to find a mention any of them in this book. Evidently, that would be “politically incorrect.”

I always found Justice Mosk to be an interesting person. Though a fully credentialed Democrat of the liberal persuasion, he was not like the hard-left types who today call themselves liberals but are about as illiberal as they can get, hewing unyieldingly to an agenda of “political correctness” that often victimizes the very people it purports to favor — like lower middle-class, and lower class condemnees who get bulldozed in these cases with little or no compensation  but receive from California courts nothing but sympathy (see County of L.A. v. Ortiz, 6 Cal.3d 141 (1971) — one of Justice Mosk’s lesser opi). The authors dwell on substantive topics like, for example, affirmative action, same-sex marriage, and the death penalty, all of which they evidently consider to be the raison d’etre for the existence of courts, and never mind all that yucky property stuff, except of course when it comes to their own property.

We are sorely tempted to take a detailed shot at all this, but apart from space limitations,  the point of this post is to deal primarily with eminent domain which is something that is not to be found in this book. Still,  while on the Court, Justice Stanley Mosk was a giant in the field, notably direct condemnation, which he dominated  like no other California judge that we can think of. You name an eminent domain topic, and he wrote a leading, significant opinion or opinions on it. True, it was an altogether different Stanley Mosk when it came to regulatory takings which were decidedly not his cup of tea. But hey man, in this imperfect world sometimes you have to settle for a half a loaf. And his inverse condemnation opinion in Klopping v. City of Whittier (8 Cal.3d 39 (1972)) certainly was a masterpiece.

We have a special, personal feel for his exertions because your faithful servant appeared as counsel in six cases that yielded Mosk opinions on the merits, plus another six, as amicus curiae, on one side or the other. So whatever you may want to say about our perceptions of Justice Mosk’s efforts, we certainly had ample opportunity to observe him in action, and to make a sound judgment — even if you substantively disagree with us.

Moreover, Mosk wrote more truly significant, precedent-making opinions in eminent domain cases than any other California appellate judge we can think of. You don’t believe us? Then take a look at Nestle v. Santa Monica (1972), denying immunity for nuisance to California airports; Klopping v. Whittier (1972), establishing inverse condemnation liability for unreasonable government precondemnation conduct that blights land targeted for condemnation, in an effort to lower values, as well as Southern Cal. Edison Co. v. Bourgerie  (1973), establishing eminent domain compensability of covenants running with the land. These were doctrinal achievements of the first rank. Any one of them would have made for a career capstone of a judge’s career, but Mosk authored three of them.

Then there were the Mosk dissents. In People v. Superior Court (Rodoni) (1968) Mosk authored a tart dissent in which he wondered whether the majority opinion (approving the taking of over 50 acres of land, where the state plans required only 5 acres) heralded the premature arrival of Big Brother. He was proven right when the California Little Hoover Commission later investigated the state’s excess land acquisition program and  discovered that far from saving the state money (as claimed by the Division of Highways), it was a rathole into which the State had sunk some $100 million to acquire land it could neither use nor sell.

To say nothing of Mosk’s dissents in White (1980)  and Belair (1988) in which he took the property owners’ side on grounds of simple justice. In White the County took the owners’ land, paid compensation, and then imposed an assessment on them in the same amount — what Justice Mosk aptly called paying them and then picking their pockets. In Belair a flood protection levee failed at some 30% of its design capacity, but the majority departed from the settled no-fault standard of inverse condemnation law and demanded (after the fact, and without giving the owners an opportunity to brief the point)  that the washed-out land owners were required to demonstrate “unreasonable” action by the Flood Control District before they could recover. But wasn’t the levee design that failed at a mere 30% of its design capacity plenty unreasonable enough? Or at least a clear case of res ipsa loquitur?

In short, though uneven at times, Mosk could display a sense of justice in a field replete with injustices, and did not hesitate to tackle conventional legal wisdom when it appeared that the demands of justice so required.

Finally, we have a personal feeling for Justice Mosk’s willingness to recognize legal merit in a lawyer’s position, even when he might not have been in agreement with that lawyer’s arguments. In our case, see 24 Loy. L. Rev. at 516, where he flattered the living daylights out of your faithful servant, even as he recognized that we could at times be a bit sharp-tongued toward their Lordships’ effusions. That may be true, but perhaps he recognized that we hold judges in high esteem and therefore hold them to high standards of performance. But all that did not keep Justice Mosk from chewing us out good and proper during the oral argument in the San Diego v. Neumann case (6 Cal.4th 1 (1994)). On the other hand, in that oral argument case he was also pretty hard on Justice Ron George, so at least we can say that we were in good company. And oh yes, we won that case 4 to 3 (Justice Mosk dissenting) which is a lot better than the alternative.

Which brings us to the nub of this article. Why wasn’t any of Justice Mosk’s virtuosity in eminent domain law  and his influence on that field so much as mentioned in the Braitman-Mosk book? Beats us.

We close with recalling the last thing Justice Mosk said to us. He concluded his last personal letter with the sentence “You are cool.” You too, Stanley.  Imperfect perhaps, but cool.


Where’d All that Endangered Species Savin’ Money Go?

You remember those times when government types admonish us that “we as a society” must sacrifice for the sake of the planet, its environment, and above all endangered species which must be preserved for enjoyment by posterity, don’t you?

It now turns out that money collected for that noble purpose by the taxman has been spent on . . . Are you ready? Click here 

This post was revised (by changing its title) on 3/9/13


There’s a War of Words in Hawai’i

Don’t look now, folks but the Hawaiians are at it tooth and nail. Our old friend Professor David Callies of the University of Hawaii published an article in which he took critical note of the Hawai’i Supreme Court’s record of . . . Well, there is no wholly polite way of putting it, so we may as well say it plainly: Callies makes the point that in the 1993 – 2010 period, the Hawai’i Supreme Court displayed an unseemly degree of bias by ruling in favor of environmentalists 80% of the time. Since those are hard figures, one would think that there couldn’t be much dispute about this — a case ends one way or another; you win or you lose, so it shouldn’t be a big deal to count affirmances and reversals and toting up the wins and losses of each side in environmental/land-use cases. Right? Not according to them Sandwich Islanders. You might think that being the happy, barefoot folks they are, they shouldn’t have too much trouble counting, resorting if necessary to toes as well as fingers. But it turns out that things in Alohaland aren’t that simple. This is the place where the local supreme court took the position that western concepts of property law such as exclusivity “is not universally applicable in Hawaii,” and never mind  what the U.S. Supreme Court held in the Kaiser Aetna case (in case you don’t remember, it said that the right to exclude is fundamental and constiturionally protected.

Professor Callies charges that the “Moon court” has “strained to apply general and often vague goals pursued by select interest groups and factions regardless of statutory law to the contrary.” That, in turn has affected the “availability of housing that is available at any but the most astronomical levels.” And these are the people who back in the 1980s went whining to the U.S. Supreme Court in the Midkiff case, kvetching about the high cost of Hawai’i housing which, after getting their way in court, they goosed upward so that within a few years it doubled.

Our other Hawai’ian friend, Robert H. Thomas who runs the  blog reports that the environmentalists reponded not so much by challenging Professor Callies’ figures and factual conclusions, but by an ad hominem attack on him. And so it goes. You can find a link to Professor Callies’ reply in the same Thomas blog post (dated Marh 7, 2013). Check it out.

What all those Hawai’ians may not know is that we Californians are way ahead of them. We went through this sort of crap back in the late 1970s (California is usually ahead of everybody when it comes to bizarre government stuff). Michael M. Berger, a well known and distinguished appellate lawyer in this field, wrote an article entitled You Can’t Win Them All — Or Can you? 54 Cal. St. Bar Jour. 16 (No. 1) (1979), in which he demonstrated that the California Coastal Commission, by far the most draconian land regulatory body in California, that often tended to confuse the state police power with the power of a police state, has been winning in court to an astonishing degree. Our own view is that the Commission was (and for all we know still is) run by the Marx Brothers — Karl and Groucho. There is lots of printed material on the Commission, its arrogance, and its rulings, so for now you’ll have to take our word for it. But do check it out. Suffice it to say, that in the Nollan case the U.S. Supreme Court charged the Commission with out-and-out extortion, and the California courts with following a rule no other state did, because with the California courts’ approval, the Commission had ruled that if Mr. Nollan rebuilt an old, decrepit beachfront bungalow, that act would erect a “psychological” barrier and somehow would cause the drivers on the nearby Pacific Coast Highway to lose their understanding that the Pacific Ocean was out there to the west. So to remedy that imminent environmental horror, the Commission demanded that the Nollan family “dedicate” their back yard (up to the seawall) as a public easement.

But let’s not digress. Back to the Bergrer article. In it Mr. Berger demonsrated that in the formative years of the California Coastal Act, the Commission had a winning record as an appellant before the California courts of — are you ready? — 88.9%. Quoth Mr. Berger:

“Examine that last statistic slowly. Taste it, as you roll it around on your tongue. Try to say it with a straight face. Nearly nine times out of ten, the Coastal Commission succeeds in reversing a trial judge. . . . “

If you don’t happen to practice appellate law, check with some folks who do, and you’ll learn that an appellate lawyer who has a reversal rate of 50% in civil appeals — if you could find one — would be considered a magician. Yet the Commission guys, mostly young and with limited experience were batting almost 900. Possible? By our lights, no. Not unless someone was placing a fat thumb on the scales of justice. You can take it from there.

The result of such judicial attitude was pretty much the same as in Hawai’i. Before long, California housing was the priciest in the continental United States, in spite of Justice William P. Clark’s prescient warning in his 1978 Agins dissent, that the court’s attitude would lead to an economic climate in California that would produce a cleavage between the rich and others, in which good housing would de facto cease to be available in California to ordinary people, and would become the turf of the rich. Judicial attitudes do not go unnoticed, and before long that is just what happened. As Richard Babcock, the nation’s late dean of the land-use bar put it, in California the courts have elevated government arrogance to an art form. Only they did it ahead of Hawai’i. So these days, homes in Kailua (on the windward side, traditionally the part of Oahu more modestly priced than Kahala or Diamond Head) go for a median price of over a million dollars.

Bottom line: What is going on here is that the enviro folks are pressig on with their decades-old campaign to destroy or at least delegitimate property rights in America. They’ve got theirs, and screw you. What they want is the system that was tried (and failed) in England, in which property rights in land do not really exist except to the extent they are created ad hoc by the government issuing some sort of permit to put it to new uses. Old, existing uses would be OK. And if you think that this statement is itself an ad hominem slam, do read Gladwin Hill, Authority to Develop Land Is Termed a Public Right, N.Y. Times, May 20, 1973. You’ll get the picture.

So the fight goes on, except that property owners — the schmucks! — too often don’t realize they are in one, whereas the “progressive” enviro types never forget that.

Where’d All That Redevelopment Money Go? (Cont’d.)

You’ll love this one, Folks. Remember when the California legislature abolished redevelopment. Sure you do; that much is histotry. But the question is what happened to all the money the redevelopment agencies had? In theory it was supposed to go to successor agencies. Sounds good. In theory.

It now turns out that the City of San Bernardino (which is in bankruptcy) had another idea, according to the Los Angeles Times. The Times tells us that a report just issued by State Controller John Chiang reports that “San Bernardino illegally moved nearly $110 million to a non-profit under the city’s control and is holding onto another $420.5 million,” for a cool total of $530.5 mil. San Bernardino: City Accused of Keeping Millions, L.A. Times, March8, 2013, at p. AA5.

Now get this: the LA times article (more like a short squib) concludes:

“A message left for city officials was not immediately returned, but in response to a November draft of report, then-city manager Andrea Travis Miller said the allegations were false.”

We can’t wait to see how it all turnes out. In the meantime, where is that cottonpickin’ money?

The New York Times Rediscovers Detroit

Detroit is all in the news on account the announcement of Michigan’s Governor that he is proceeding with the appointment of a manager to take over the city and its finances which, as you know if you have been reading our posts on that subject, is rapidly reaching the end of the line and going down the tubes financially. The New York Times has jumped in into the fray today with no less than a front-page, above-the-fold story by Monica Davey, A Private Boom Amid Detroit ‘s Public Blight, N.Y. Times, March 5, 2013, at p. A1, about — are you ready? — a boom, yessiree, a boom — in Detroit. Click here. We don’t mean to be too harsh on Ms Davey because our understanding is that authors of newspaper articles do not write the headlines, so the authorship of some of the nonsense found in headlines is not necessarily reflected in the text of the articles. Or in reality.

Still, the Times article is a masterpiece of . . . er, we don’t know of what, but it has to be an achievement of some sort. See for yourself by checking out that article. For example, did you know that Ms. Rachel Lutz opened a clothing shop in Detroit, that is so popular that she has opened another. This makes the front page of the New York Times?

It’s only when you get to the end (after the jump, on p. A18) that you discover that things in Detroit are not only not booming but are more like a disaster, with insolvency right around the corner. Those optimistic moneyed types who are said to be moving into Detroit are largely vultures out to pick up some dirt-cheap real estate in the still-breathing parts of Detroit, for pennies on the dollar. The “misery . . . brought out newcomers: 0ut-of-town investors who learned of properties for sale at prices unimaginable in other cities, and young entrepreneurs, artists and musicians who said they valued Detroit, in part, for its grit and its seemingly wide open spaces, the very elements that had made some people flee.” To say nothing of dirt-cheap crash pads. Our advice to those folks is: be careful what you wish for, fellows — you may get it because (a) Detroiters are still continuing to flee the city, and (b) you need to reflect on why they have been fleeing for decades. Oh sure, some of these folks may make a buck there, but would you want to live there? Send your kids to school there?

Anyway, stay tuned — this is bound to be a spectacle.