Monthly Archives: December 2018

A Good Read on Eminent Domain at the Border

For an interesting article about the takings of land for the controversial border fence separating the US from Mexico, check out an article by Pro Publica, entitled THE TAKING. You can find it at:

This article is a tad on the long side for an on-line piece, but it is not lawyer stuff; it is written for the intelligent layman in clear English and provides a lot of information about the law of eminent domain, and about the dark side of government practices in land acquisition. Not a pretty story, but it provides ample support for Lewis Orgel’s observation in his treatise “Valuation Under Eminent Domain” (1953) that eminent domain is “the dark corner of the law.” That it is.

This article, by the way, harks back to the 1960s — 1970s era of law journal articles that were critical of government land acquisition practices  and that revealed abuses of condemnees’ rights and exposed the prevalent undercompensation of condemnees. Some of these abuses were rectified by courts and legislatures, but only some. The law of eminent domain remains basically biased against condemnees, and the US Supreme Court, as well as the California Supreme Court have explicitly conceded that the constitutionally mandated “just compensation” provided for in the Fifth Amendment’s Takings Clause is actually undercompensation. See for example Gideon Kanner, “Fairness and Justice,” or Judicial Bait-and-Switch? 4 Albany Law Review 38 (2011).

Reading this Pro Publica article will be well worth your while if you have any interest in eminent domain.

Run for the Hills! The California Supreme Court Gets Back Into the Regulatory Takings Game

Word reaches us that the California Supreme Court has granted review in a regulatory taking case: Bottini v. County of San Diego. The issue in question is described on David Ettinger’s Cal Supreme Court blog “At the Podium” as follows.

•The court granted review in Bottini v. City of San Diego, where the Fourth District, Division One, Court of Appeal held in a published opinion that San Diego erroneously required environmental review of a single-family-home construction project. The City relied on “historical resources” and “unusual circumstances” provisions in the California Environmental Quality Act. However, the appellate court also upheld the dismissal on summary judgment of the property owners’ constitutional claims under the takings, equal protection, and due process clauses. It was the property owners whose petition for review the court granted. [Update: The Supreme Court apparently isn’t interested in the CEQA issue as much as it is in the takings issue. The case’s issue, as summarized by court staff, is this: “Does the ‘substantially advances’ formula used in Landgate, Inc. v. California Coastal Com’n (1998) 17 Cal.4th 1006 or the Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 test (see Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528) determine whether there has been a regulatory taking under the California Constitution?” . . .]

Ettinger is a partner in the appellate powerhouse law firm of Horvitz & Levy, and runs his blog on the doings of California appellate courts.

We’ll keep our eye on this one. SCOTUS held in the Lingle case that the “substantially advance” test is properly applicable to substantive due process, not to takings cases. So this may well be the California Supreme Court’s effort to bring its own jurisprudence into line with SCOTUS legal doctrine. Or, if we are lucky, it may be a step by the state high court to pause and at least begin bringing some fairness and intellectual order into this misbegotten field of law. Then again, maybe not. So stay tuned and keep in mind Yogi Berra’s wisdom: “Prediction is very difficult. Especially about the future.”

California Choo-Choo (Cont’d.)

It has been a while since we mentioned the increasingly infamous California high speed train that upon completion is supposed to go between Los Angeles and the San Francisco Bay Area at 200 mph. It has been taking a while and in past posts on this blog we mentioned from time to time what was going on. Mostly, it was bad news of delay and rising projected costs. So far only the segment from San Jose and Bakersfield is being worked on and that one alone is now projected to cost some $33 billions — with a “b.”

To get a fuller story of what has gone wrong with this project, check out a City Journal article by Connor Harris, entitled Fast Train to Failure that you can find at:

The principal supporter of this project has been Governor Jerry Brown, but he is leaving office in a few weeks, and it remains to be seen if his successor will pursue this effort with similar zeal. In the meantime the state is spending money like a drunken sailor. Stay tuned.

For an alternative view of the situation, check out CNBC, ( ) which tells us that the projected cost is now $77 billion and that figure “could rise to” $98 billion.

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 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.