Remember the hulabaloo over the Atlantic Yards project? How it would revive Brooklyn, etc.? The latest dispatch from that front from the New York Times, no less, indicates that it hasn’t been beer and skittles. We will quote from the Times, and let its words speak for themselves,

“[A local] pizzeria sits in the shadow of the $4.9 billion megadevelopment once known as Atlantic Yards, which has promised to deliver thousands of new residents and visitors to the area since it was proposed in 2003. But so far, the biggest change . . . Vanderbilt Avenue merchants have seen is rising rent.”

“The project has been troubled by delays, financial setbacks, lawsuits, and political wrangling. And the opening of the Barclays Center, the centerpiece of the development, in 2012, did not deliver substantial new business to Vanderbilt despite expectations that it would.” Rhonda Kaysen, A Long Wait for New Neighbors on a Brooklyn Street, N.Y. Times, Aug. 31, 2016, at p. B5.

And so it goes. Predictably. As California Court of Appeal Justice, Macklin Fleming  once put it: redevelopment project promoters promise they’ll bake a bigger economic pie, with bigger slices for all. But what they often tend to produce is pie in the sky. Of course, the NY Times does the same by duly reporting that in the sweet bye and bye good things will happen. We will await the event and see how it turns out if we are still around then.

For the full NY Times article go to http://www.nytimes.com/2016/08/31/realestate/merchants-wait-for-the-promise-of-vanderbilt-avenue-and-wait.html?ref=business

Every lawyer we know, and lots of non-lawyers, just love the TV show “Law and Order” — it captured the lawyers’ decision-making process and the flavor of the courtroom very well. It included the doings of both brilliant and wacky judges, like no other TV show ever did, with a generous soupcon of New York thrown in. Perhaps that was because many of its writers (like Roger Wolfson) had an experienced background of working in law that gave it that grounded sense of realism.

But it was mainly because the casting was brilliant, even the best script can’t work if the actors can’t use it to its potential. Our favorite character of all time was the fictional Adam Schiff (actually named Steven Hill) playing the District Attorney of New York City. He was eventually replaced in that role, but none of his replacements succeeded in capturing the flavor, the spirit, or the geschmack that he brought to it. Fred Thompson, one of his replacements and another favorite of ours, came close but his earthy Southern charm (and drawl) somehow did not ring quite right in the context of his role as a successful New York politician/lawyer/legal strategist.

We just learned that Mr. Hill has passed away at the age of 94 — not bad.

We do not claim being a Feinschmecker of acting, but we know a little something about what goes on in courtrooms, and are of the opinion that Mr. Hill entertained us royally, and enriched our professional lives. We are unlikely to see his likes again.

R.I.P. Steve

As promised in our recent post on the California Supreme Court’s Perris v. Stamper case, here is a copy of our recent article on that case’s ruling on the subject of judge vs. jury issues, from the Daily Journal, California’s foremost legal newspaper. It ran on August 19th.

It turns out that on the right to a trial by jury, Americans have had it wrong in understanding the British rule that governs the right to a trial by jury in eminent domain cases, which governs under the Seventh Amendment. But the unsung hero turns out to be the late Lewis Orgel, author of VALUATION UNDER EMINENT DOMAIN (1953) who had it right all along. Here it is:

Daily Journal

August, 19, 2016

Our eminent right to a jury

By Gideon Kanner

California’s late chief justice, Roger Traynor, once wrote that there are notions embedded in the law that have never been cleaned and pressed and might disintegrate if they were. A case in point is a holding embedded in the brand new California Supreme Court decision in City of Perris v. Stamper, 2016 DJDAR 8382 (Aug. 15, 2016). It was one of those complicated decisions with something for everybody that dealt with the issue of when, if at all, the existence of a future land dedication requirement as a condition to development must be considered now in valuing condemned land subject to such a dedication or exaction requirement in the future. This may sound like technical stuff, but it can have a profound impact on the value of the taken land, and is thus of interest to lawyers as well as appraisers.

Much has already been said about this difficult legal problem, and I leave to others the plumbing of its complexities. I focus instead on the court’s prefatory decision holding that this problem is not a jury issue, but must rather be decided by the trial judge because “no such jury right existed in England and the colonies in 1791.”

Unfortunately, this rule is mythical; eminent domain cases were triable to juries in Merry Old England in the 18th century, and therefore the American courts’ belief that they were not, is mistaken. This is important because the Seventh Amendment does not create a right to a trial by jury; it only preserves this right in cases where trial by jury was available at common law at the time the Bill of Rights was written. The Perris case cites a U.S. Supreme Court case as authority, but no British sources which, as it turns out, are to the contrary.

If you consult American eminent domain treatises, all you get is confusion. “Nichols on Eminent Domain,” Section 4.105 (Lexis/Nexis 2002) had it for years that there were no juries in British eminent domain cases. Its more recent editions contain a lengthy, confusing discussion that gets involved with sovereign immunity and such, but avoids a clear cut statement of the rule and its British basis. But the other authoritative eminent domain treatise, Orgel, “Valuation Under Eminent Domain,” Vol.2, Section 25, pp. 268-271 (Michie Co. 1953), states with no equivocation that that trial by jury was used in British eminent domain cases until 1919 when it was abolished by Parliament. Neither treatise cites any British sources supporting its position. Older editions of Nichols tried but failed. Nichols used to make a passing reference to Blackstone’s Commentaries, but cited the wrong part of Blackstone’s treatise (2 Blackstone 259), that says nothing that remotely bears on the subject. However, at 3 Blackstone 258-259, we learn that the “inquest of office” said by the old Nichols text to be the old British non-jury proceeding to acquire land, had nothing to do with eminent domain. It was a medieval procedure used to ascertain the king’s entitlement to land in cases of escheat, treason, intestacy, forfeiture and the like. More important, Blackstone makes clear that even these proceedings were triable to juries, except in cases of forfeiture for treason. “For it is a part of the liberties of England, and greatly for the safety of the subjects, that the king may not enter upon or seize any man’s possession upon bare surmises without the intervention of a jury.” (Emphasis added).

You need not take my word for any of this. You can skip the confusing ancient stuff that few people understand (as our courts have done) and consult the horse’s mouth in the form of the modern British Court of Appeal opinion in De Keyser’s Royal Hotel Ltd. v. The King (1919). There, their Lordships review pertinent legal history (1708 to 1798), and with the concurrence of all parties, including the British attorney general, conclude that “in default of agreement with the owners the true value [of the taken property] is to be ascertained by a jury.” So much for denying jury trials in English eminent domain cases.

British history also fails to support the belief that inverse condemnation cases were only the flip side of eminent domain, as American conventional wisdom has it. Indeed, if they were like British eminent domain cases, then on that logic alone they had to be triable to juries. But what about the notion that inverse condemnation is some newfangled American constitutional proceeding unknown to the common law, and that the government was shielded from it by sovereign immunity? Not really.

Until the mid-19th century most British eminent domain cases were filed by private “promoters” who, in each case, were authorized by Parliament to take private property for roads, railroads, canals, etc., upon payment of compensation to the taken land’s owners. But when promoters failed to pay or the parties could not agree on a price, British property owners could sue in tort using a writ of trespass, to recover damages. See the discussion in the De Keyser’s case. Like all other common law actions, these were triable to juries.

That is also the view of Professor Keith Davies, the leading authority on British eminent domain law (or “compulsory purchase” as the Brits put it), and the author of the foremost British treatise on the subject. Davies clarified things for us Colonials when he appeared as a guest lecturer and presented a paper titled “The Jury in Eminent Domain,” at the ALI-ABA Course on Eminent Domain and Land Valuation Litigation in 2001, relying inter alia on Baron de Bode’s Case (1845). This case dispenses with the sovereign immunity myth, by concluding with a court order that that a jury be convened and try Baron de Bode’s claim against the Queen of England wherever she then may be in the realm. In short, the notion that cases of determining compensation for takings of private property were not tried to juries in England is mistaken, and this is as true of direct as of inverse condemnation cases.

It is a bedrock constitutional principle and a part of the civic ethos of our country, that trial by jury is enshrined in the Bill of Rights for good reason: It is treasured as a fundamental guarantee of Americans’ freedoms that interposes the judgment of the community as a shield between the citizen and government excesses. Why then, when it comes to eminent domain, trial by jury is suddenly disfavored by judges as if some sort of pesky impediment to good governance, is obscure. The purpose of the Bill of Rights was to protect the people from the government, not the other way around, and juries provide that protection in eminent domain cases as well as in others, as correctly noted by Justice William Douglas in U.S. v. Reynolds, 397 U.S.14, 23-24 (1970).

Obviously, it is a tall order to ask the courts to reconsider a rule, even an erroneous one, that they have been repeating for over two centuries. But it seems to me that the intellectual integrity of the law, and a candid acknowledgment of historical truth are too important to let this legal dog lie. _____________________________________________________________

Gideon Kanner is Professor of Law Emeritus at the Loyola Law School in Los Angeles. He is former editor of Just Compensation, a monthly periodical on the law of eminent domain, and was a regular columnist on takings law for the National Law Journal. He was a visiting Professor at the University of Aberdeen, and a guest lecturer in several British universities, as well as a speaker and a recipient of a British Academy scholarship at the International Colloquium on Expropriation Law held in 1990 at Oxford University.

.

Once again, we depart from our usual topics to take note of a noteworthy anniversary that few people know about.

August 17th almost slipped by us unnoticed, but we caught it [almost] in time. What about that date? It’s the birthday of Polish King Jan Sobieski who was born on that date in 1629, and to whom we owe a big time debt of gratitude.

For it was King Sobieski and his army who rode to the rescue of Vienna then being besieged by the Turkish army that was making good progress, and was well along in capturing central Europe, advancing from the south. It’s a great story that you should know about. In the end, in 1683, Polish cavalry, notably the famous heavy hussars charged down the slopes of Mount Kahlenberg outside of Vienna and to borrow General Patton’s line, went through the Turkish army like crap through a goose, saving Vienna and the rest of Europe from Turkish conquest.

It’s good to remember that event for two reasons. First, if it hadn’t been for it, Europe (and probably your ancestors) would be speaking Turkish and attending Mosques instead of your favorite place of worship. Second, among the booty captured from the Turks by the victorious Poles, was a quantity of funny looking green grain that the Poles thought was camel fodder and were about to burn. But one of them, formerly a Turkish slave, knew what it was – it was unroasted coffee. The rest is history. He got ahold of it, roasted it and started the first coffee house in Vienna.

Here is one of those hussars, in full battle drag, including those famous metal-and-feather wings bolted to their armor back plates, that made a fearsome noise at full gallop and struck fear into the enemy’s hearts.

So let’s raise a toast to Good King Jan and let’s hear it loud and clear — Sto lat, sto lat, niech zyje, zyje nam.

And, of course, if you follow this advice, by all means toast King Jan with genuine Polish, rye vodka named after him. Na zdrowie!

Big news of sorts from the California Supreme Court, in the form of the new (8/15/16) 31-page opinion of the California Supreme Court, in City of Perris v. Stamper, Docket No. S213468, opinion by Liu, J., dealing at length with the problem of how to value property now, when it is subject to a dedication requirement in the future, when the property is sought to be developed. The problem is that the dedication requirement is subject to constitutional limitations laid down by the U.S. Supreme Court in the Nollan and Dollan cases. So how can you tell now how the dedication requirement will be applied in the future? Not exactly everyday fare, even for condemnation lawyers and appraisers. Still, when the problem arises it has to be dealt with.

Condemnors have argued that the part of the subject property that is subject to dedication should not be valued for its highest and best use, because when attempted to be so used it would have to be dedicated. Property owners, on the other hand, argue that all that would be, if at all, in the sweet bye and bye, and should not be considered now, and there may be no clear way of deciding now whether the dedication requirement will meet the strictures of Nollan and Dolan in the future. If you want to get into all that, you should read Nollan and Dolan, as well as this judicial gem. In short, it’s a mess that in the hands of different judged is certain to lead to diverse  (and even contradictory opinions). But it is bound to keep condemnation lawyers and appraisers gainfully employed.

Ah, but not so fast. Who says that this is  a decision to be made by judges rather than juries? The California Supreme Court, says so, relying on U.S. v. Reynolds, 397 U.S. 14, 18 (1970) — Stamper Slip opinion at p. 12. So what’s the problem? The problem is that this judicial statement is wrong. It is based on the idea that the 7th Amendment does not create a right to trial by jury — it only preserves the right to such trials as they existed when the constitution was adopted. So no jury trial in the late 18th century common law, no right to a jury trial now. Makes a fellow want to ask why we fought the revolution if we are to continue being stuck with old British stuff.

But actually, it appears that our courts are wrong; eminent domain (or “compulsory purchase” cases over there) were tried to juries in Merry Old England. But our courts don’t cite British sources.

We will be posting presently a short piece that explains all that old stuff, and if you believe the British Court of Appeals rather that American Courts you will be enlightened. In the meantime, check out Lewis Orgel, VALUATION UNDER EMINENT DOMAIN, Vol. 2, Sec. 25, pp. 268-271 (1953) for the straight poop.

More to come. Stand by.

Word from the prestigious Volokh Conspiracy blog is that:

The Supreme Court voted 5-to-3 today to grant a stay of a lower court ruling that would have allowed a transgender high school student in Virginia to use the bathroom that corresponds with the student’s gender identity. Justice Stephen G. Breyer joined Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. in voting to grant the stay, noting that he was voting to grant the stay as a “courtesy” in order to preserve the status quo. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented from the stay, without opinion.”

We look forward to the airing of the Justices’ diverse views of this “important” issue that is dividing the country. We take it that the originalists on the court will engage in a spirited debate as to whether the Founding Fathers intended to allow Thomas Jefferson to go wee-wee in Mrs. Washington’s outhouse, or whether the founding proponents of the “living constitution” didn’t care who went where, saying “Oh, piss on it.”

But we can’t help wondering what would happen today if some person of evident but questionable masculinity were to barge in into the powder room of Ruth, Sonia and Elena, do his business and split, leaving the toilet seat up. Capital punishment anyone?

We await the court’s decision with bated breath.