Monthly Archives: May 2014

Ripeness, as In “Ripeness Mess” Revisited

If you are not one of those unfortunates whose professional activities require them to litigate the issue of whether an inverse condemnation controversy is “ripe” for court adjudication, maybe you should skip this post and go have a nice cup of coffee at Starbucks. But maybe not; it’s your call.

The issue of ripeness — or the “ripeness mess” as it is usually called — has been vexing litigants and courts ever since Justice Powell concocted it out of thin air in Agins v. Tiburon back in 1980. There, the court held out of the blue (neither party raised it), without any briefing, and without citation of any pertinent authority, that a regulatory inverse condemnation case is not ripe for federal court litigation unless the constitutionally aggrieved plaintiff-property owner inter alia first seeks a building permit and then sues in state court for just compensation, disregarding the fact that Euclid v. Ambler held expressly to the contrary; i.e., that no application for a permit was required before suing in federal court on a federal constitutional issue. Euclid went without mention in Agins, even though it was called to the court’s attention explicitly.

But you ain’t seen nothin’ yet. In the Williamson County case SCOTUS added some more procedural obstacles to a property owner’s taking claims, notably seeking a variance and the need to litigate such claims first in state courts.  But the problem is that  federal courts (including SCOTUS) also hold that a state court’s denial of compensation is res judicata in federal court, even if its decision is contrary to controlling federal constitutional law. Thus, there is no court, state or federal, that will hear a property owner’s federal constitutional or Sec. 1983-based claim of uncompensated taking on the merits. The owner is either too early (his case is unripe), or too late (it’s barred by res judicata). There are even federal cases — believe it or not — holding that the owner’s claim was both too early and too late. Honest. We couldn’t make that up if we tried.

Now, along comes Michael M. Berger, as knowledgeable a lawyer in this field as you can find, with a concise law review article, The Ripeness Game: Why Are We Still Forced to Play?, 30 Touro L. Rev.297 (2014) that reviews this sorry intellectual mess and notes  that SCOTUS pulled up its socks partially when it held that the Williamson County lack-of-ripeness rule is not jurisdictional, but only prudential, so presumably federal courts, on grounds of judicial economy, or whatever may pop into their Lordships’ heads,  may hear the federal cause of action on the merits if they so choose. Which only a very, very few of them do.

So the bottom line of it all is that Berger’s article provides a concise summary of “the ripeness mess” and its development, and describes that “prudential” loophole that allows a federal judges, should they be so inclined, to deal with the complaining owner’s taking claim on the merits. But they don’t have to, so it’s only a matter of judicial whim.

Excuse us for asking, but you call it law?

Mr. Berger, however, is an optimist (30 Touro L. Rev. at 318) and he expresses the hope that SCOTUS “can finally cut through the mare’s nest that ripeness has become.” It sure can, but will it? We, on the other hand, are a congenital pessimist so we are not holding our breath on that one. We will be lucky if the court continues to nibble around the edges of this problem as it has in the last two terms. What we think SCOTUS has done is that, lacking the votes and the courage to settle the law by upholding the “just compensation” provision of the Fifth Amendment, it pays lip service to the Taking Clause, but enforces it only rarely if at all. Which encourages regulatory government entities to ignore the Just Compensation Clause of the Constitution and to abuse the rights of property owners. Still, we hope that Mr. Berger is right and that there is pony in there someplace. Stay tuned.















Play Nice, Children. Don’t Fight.

Guess what? After a quarter-century or so of sitting on its hands, the California Supreme Court finally acknowledged a nasty problem of prevailing misconduct among lawyers, and has added to the oath of office that must be taken by all new lawyers, the requirement that they will try to conduct themselves “at all times with dignity, courtesy, and integrity.”

Does that mean that professional discipline will be imposed on California lawyers who engage in nasty professional practices that were described by TIME magazine about a quarter-century ago as:

“Bad-boy lawyers file fribbling motions, spill brewed decaf on transcripts, arrive 20 minutes late for all meetings and harass opposing counsel with volumes of paper on Christmas Eve. They obfuscate, they procrastinate, they infuriate — all in the name of zealous advocacy. They behave so badly that a federal judge in Oklahoma in a recent order wishfully consigned two lawyers to hell.” David A. Kaplan and Ginny Carroll, How Is Your Lawyer’s Left Jab? Newsweek, Feb. 26, 1990, at p. 70.

Forgive our pessimism but we don’t think so.

Back then, the problems of what became known as “Rambo litigation” became a hot topic among lawyers, but truth to tell, nothing was done about it by judges. We have written about it at length, and we recommend that you dig out our article and read it — Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 Loyola L.A. Law Rev. 81 (1991). It will tell you the whole story, and explain why lawyers’ misconduct — like misconduct of people in all walks of life — has little to do with their innate lack of goodness vel non. No, it has to do with what determines the conduct of all people at all times: the actors’ assessment of the balance between incentives and disincentives that face them as they contemplate a course of conduct. And in dealing with human [mis]behavior the disincentives play an important role. That is why we have criminal laws and why misconduct in civil matters carries sanctions in the form of damages, fines, or in the case of a regulated profession like law, professional sanctions that can range from public reprimands all the way to disbarment.

But as all lawyers who have spent some time in courtrooms know, judges are not much interested in enforcing rules of professional conduct, much less standards of behavioral decency and basic civility. Often, they fail to admonish the bad guys, or prattle on about expecting both sides — gotta be impartial you know — to toe the line even when only one has transgressed. In a way, it is easy to refrain from blaming them. Judges are busy folks, and they understand how easy it is to have an admonition directed at a lawyer’s conduct degenerate into a time-consuming foofaraw that takes up scarce judicial time and tends to delay adjudication. So the sumbitch of an opponent of yours is in the habit of serving motions on his opponents by fax, after hours, at the last minute, feels safe in doing so. Or, like a certain late but unnamed well-known lawyer around here, who had the habit of just not showing up for duly noticed depositions? What should the judge do about such stuff? Oh sure, there is the draconian sanction of striking the offending document. But that can affect or determine the outcome of the litigation, and if His Honor does that, what about the innocent client of the misbehaving lawyer who neither knows nor cares whether his moving papers were served on his opponent’s lawyer by mail,  fax or carrier pigeon?

Still, judges must rise above these difficulties because the problem of endemic lawyer misconduct erodes popular respect for the courts as places where justice is administered, and gives rise to widespread understanding among lawyers that misconduct is OK when the stakes justify it and where the prospects of sanctions are slim. Each judge is like a captain of a ship with regard to his or her courtroom, and as such responsible for what goes on in it.

Bottom line: Any way you slice it, the solution to the lawyer misconduct problem lies in the hands of judges. Either they enforce the rules and standards of conduct, or they don’t. And if they don’t, it doesn’t much matter what language they place in the court rules. A law that is not enforced is no law at all. Our 40+ years’ experience as a litigator has taught us that misconduct of counsel can be de facto favored by judges, no matter what platitudes they espouse. How? Check out the law governing misconduct of trial counsel and you will see. The way the decisional law is structured, the misbehaving lawyer has all the litigational advantages; he need not do anything to rectify the litigational mess he creates. It is his opponent (who is not guilty of misconduct), who has to “make a record” by objecting, requesting judicial admonitions to the jury, and pursuing useless  procedural ceremonies. While this goes on, his “bad guy” opponent just gets to sit there enjoying the fruits of his misconduct. See e.g.,  Horn v. Atchison, Topeka & Santa Fe Rwy. Co., 61 Cal.2d 602 (1964), and  Sabella v. Southern Pac. Co., 70 Cal.2d 311 (1969). And if the judge gives the admonition requested by the aggrieved lawyer, the misconduct is deemed cured and non-prejudicial even if the admonition is something less than effective. So experienced lawyers often don’t bother with going through the time-consuming and distracting ceremony, and take their chances before juries, hoping that the merits of their case will be persuasive. The professional behavioral standards are thus lowered and institutionalized.

Still, hope springs eternal. Let’s hope that the new rules are (a) fairly enforced, and (b) effective, and that the Horn and Sabella cases are overruled by the California Supreme Court one of these days. However, your faithful but pessimistic servant is not inclined to pop any Champaigne bottles just yet. Give us a call in a few years and we’ll see then how those new rules are working.

Two New Good Reads You Shouldn’t Miss

We began the week by coming across two excellent articles that should be of interest to the faithful readers of this blog.

First, we recommend an article by Law and History Professor Emeritus James W. Ely, Jr., of Vanderbilt University Law School, entitled “Just Compensation” Does Not Necessarily Mean “Fair Compensation,” The Practical Real Estate Lawyer, May 2014, at p. 9. A good read, that.

Professor Ely takes a historian’s look at the evolution of the concept of “just compensation” in American law of eminent domain. We can’t help noting our pleasure in reading this piece because Professor Ely, a heavy hitter in his fields, if ever there was one, is “singing our song.” See Gideon Kanner, “Fairness and Equity” or Judicial Bait and Switch? It’s Time to Reform the Law of “Just Compensation,”  4 Albany Gov’t. L. Rev. 38. He begins by noting the natural law origins of the just compensation clause, and contrasts it with the modern judicial twaddle (our choice of words, not his) undercutting the recompense payable to people displaced by eminent domain.

He gets a brownie point in our book for taking explicit note of the fact that the uncompensated losses inflicted on condemnees involve actual economic losses, not just loss of emotional, idiosyncratic values that most professors who write on this subject in law reviews tend to focus on, thereby undercutting the point. If your great-grandpa acquired the subject land by less than politically correct means from Indians way back when, that may be a source of subjective value to you. But denying compensation for that increment of value is not as grating on our moral values as denying compensation for present, objectively determinable elements of value and incidental losses inflicted on condemnees. Those losses (notably business losses) are measurable by conventional valuation techniques, and indeed business losses (notably the loss of business goodwill which can be a valuable, marketable asset) are valuable property that is bought and sold in the market, and readily compensated for outside the field of eminent domain. Business losses are a perfect example of the undercompensation problem, but by no means the only one. We recommend an oldie but goodie on that point,  Eminent Domain Valuations in An Age of Redevelopment: Incidental Losses 67 Yale L. Jour. 61 (1957).

One of Prof. Ely’s points (and ours) is that just compensation should be measured by the loss to the owner, not the gain to the taker. It should indemnify the owners for all their demonstrable economic losses. And indeed, the U.S. Supreme Court made loss-to-the-owner the explicit standard as a matter of principle  in United States v. General Motors. But when it comes to actually awarding compensation, the courts fall short of this standard.

We could go on like this for a while but we won’t. Better you should spend your time reading Professor Ely’s article. It may or may not make a better man of you, but it sure will make you a better lawyer.


Second, we recommend two short pieces in the planners’ blog, both by Michael Lewyn, Assistant Professor at Touro Law Center. The first one is The Theory Behind NIMBYism,, March 12, 2014 and the other is  The Theory of NIMBYism, Part 2,  May 5, 2014,

Both are short, and written in a readable style that gets to the heart of things. And what is that? Prof. Lewyn points out correctly, that allowing NIMBYism to control zoning is a form of promoting a cartel, whereby neighbors — for all the fancy talk about “property values” and all that other good stuff — are merely looking out for their own  economic interest at the expense of community values, and in the long run cause housing prices to soar beyond the reach of the middle class — which is exactly what is happening tight now.



Old L.A. Chinatown, Requiescat in Pace

Around Los Angeles these days there is some celebratoty/anticipatory  foo-foo going on, involving the rapidly approaching 75th anniversary of the opening of the Union Station in downtown LA. It’s a neat building — a kind of modern (but not the weird modern of today) with a touch of Hispanic Old West. At least that’s how we would characterize it. Of course, the L.A. Times architectural good taste maven, characterizes it as — are you ready? — “a retrograde but winning blend of Spanish Colonial Revival, Mediterranean, Moorish and Art Deco styles.” Whew! Pivotal Hub of L.A. Life, L.A. Times, May 3, 2014, at p. 1A.

We like the place, and use it now and then to catch a train north to Santa Barbara, or south to San Diego. To digress for a moment, we recommend that you take those train trips. The southbound one takes you along the Orange County California Coast and provides vistas of the beach. The train goes right through the large Marine Corps base, Camp Pendleton. There you can sometimes catch a glimpse of the Marines practicing to storm the beaches. The northbound train also takes you along the coast and at one point goes right through the Vandenberg Air Force Base where, if you’re lucky, you may catch a glimpse of space vehicles sitting in their launch towers, getting ready to go. A good show that, as the British might put it.

But as we Angelenos get ready to celebrate the Union  Station’s anniversary, little is being said about the events that preceded and accompanied its creation. Today’s L.A. Times says nothing about them. Union Station was built on the site of the Old Los Angeles Chinatown. This was in the 1930s, when all condemnees were badly treated as a matter of course, so you can imagine how bad it was for the Chinese who in those bad old days were legally disabled from owning property in California. They were lessees and tenants which meant that they often  got no compensation  at all because their leases, if any, were usually at market rents and thus had no bonus value. Month-to-month tenants didn’t own any compensable property interest, so they got nothing, because as we need not remind you, in those days there was no relocation assistance. That meant that the “just compensation” due those folks was zilch.

There was a long lead-up time to the taking of Old Chinatown, so in anticipation of the taking, landlords did not do much maintenance, and the area experienced what today we would call precondemnation blight that must have lowered values. In those days the courts had not yet ruled that condemnors may not take advantage of depressed “market” values that come about in anticipation of coming eminent domain acquisitions, and then acquire the affected land at the lowered prices. Hey man, said the California courts, market value is market value, and it’s not our business to inquire how it came to be so low.

“On the fateful day of May 19, 1931, a California Supreme Court decision was upheld approving land condemnations and the construction of the new Union Station upon the site of Old Chinatown. Two years were to slip by before an acceptable Chinese relocation proposal was accepted by the City.”

If you want to read up a bit about this history, click here . That’s where the above quote comes from. That, in a manner of speaking, was the civic good news. The bad news, which is to say, the realistic news, stripped of the civic PR foo-foo, went like this:

“In 1933, the City forcibly evicted the residents and razed ‘Old Chinatown’ to build Union Station, which then resulted in the 1938 relocation of the Chinese to “New Chinatown”, which today we know as Central and West Plazas in the heart of Chinatown’s historic core.” Click here

Nothing about compensation.


Lowball Watch — Oregon

Word reaches us from Oregon that the Beaverton School District wound up with a $6.7 million verdict against it, on its offer of $1.8 million, for a 15-acre tract of land it took for a school site. See Beaverton School District eminent domain trial ends with $6.7 million verdict, click on .

The jury deliberated for 10 hours. The jury verdict was 9 to 3. “In addition to the $6.7 million for the 15 acres, the district must cover legal fees for both sides, which could be hefty.” No further details are given.

Koontz Triumphant Again

We must be getting old. We were distracted by the Sterling/Clippers fiasco to such an extent that we missed the April 30th opinion of the Florida Court of Appeal (on remand). It upheld the taking claim of Coy Koontz, that has received a lot of attention when the U.S. Supreme Court ruled in his favor, reversing the Florida Supreme Court’s decision denying him compensation for the exaction/taking before issuing him a permit. The exaction in question involved land located offsite from his project that was arguably within the Nollan-Dolan rule forbidding exactions lacking a nexus to the harm brought about by the private project being created on the subject property.

The case is St. Johns River Water Dist. v. Coontz, Fla. Ct. App., Docket No. 5D06-1116, reaffirming the appellate court’s earlier ruling (that was reversed by the Florida Supreme Court). Griffin, J., dissented. You can find the opinion on line and there is a link to it on the Pacific Legal Foundation Liberty Blog, the Pacific Legal Foundations being the winning lawyers who in our book are now entitled to some serious bragging rights.

By the way, we learn from this opinion that the Koontz controversy has been the subject of four — count ’em, four — previous reported appellate decisions, this being the fifth one, that may yet be joined by No. 6 because we think its a snap that the Water District will seek further review in the Florida Supreme Court. Which gives rise to a question or two. You call this law? Aren’t those Florida Judges ashamed of themselves  for subjecting a citizen whose constitutional rights were violated to this kind of economically ruinous intellectual torture that goes back to before 1998 (that’s 16 years ago, folks). All this to decide what is after all a simple legal issue: is the exactions doctrine applicable to money as well as to land, and does it meet the nexus requirement when it is sought to be applied offsite to the private project, as well as onsite?