Monthly Archives: January 2019

Beware the Good, Grey, Centrist Judge

        If there is such a thing as a good, grey Republican who purports to be a centrist Judge sticking to precedent but also embracing an occasional incremental changes in the law in the best common-law tradition, that would have been Justice Lewis Powell. He made a name for himself before ascending the woolsack when still in private practice. He wrote a famous – or infamous, if you are of the leftist persuasion — memorandum, outlining what had increasingly gone wrong with the way America was drifting.

Since he viewed the work of “activist” judges as a part of that drift, he devoted a part of his “Powell memorandum” to their work: “American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” It would therefore seem only natural that upon being appointed to the US Supreme Court, Justice Powell would emerge as a voice advancing the court’s conservative positions. Right? Wrong!

The way things turned out, Justice Lewis Powell’s contributions to SCOTUS’ jurisprudence became the mighty pillars of liberal/activist jurisprudence that still support what has become the foundations of modern judicial radicalism.

If you don’t believe me, let’s try a concise stroll through some of those cases. In no particular order:

Agins v. City of Tiburon. Everybody who is into the takings/ripeness mess knows that one; if nothing else this case (though at first affirmed on other grounds) turned out to be so badly decided by the California Supreme Court that SCOTUS eventually had overrule it in First English etc. Church v. County of Los Angeles. Why? Because the California Supreme Court had wrongly decided the core issue presented by Agins – Is the “just compensation” specified in the Fifth Amendment’s Taking Clause payable in regulatory as well as physical takings of private property? The Califrnia courts said “no,” but the correct answer was “yes.” And as if that were not enough, later SCOTUS had to overrule its own Agins holding again in Lingle v. Chevron because its own Agins opinion had been decided on an entirely wrong doctrinal basis – though a taking case, SCOTUS had analyzed it as if it were a substantive due process case. And so Agins had to be overruled not once but twice.

Now, the takings/ripeness mess is before the Court again (in the wretched Knick case that so far has been argued twice, with no indication that their Lordships are on top of the issues created by their own earlier decisions and by Justice Powell’s original “ripeness” excursion).

Bakke v. Regents. That one, as you surely must recall, was the seed from which grew the “affirmative cation” litigational mess that is still a mess and still with us. Why? Though its black letter ruling held that reverse discrimination on the basis of race is unconstitutional, colleges – said the court — could consider race as a “plus” factor in deciding whether to admit a member of a minority race in preference to a white applicant. Needless to say, with a gigantic loophole like that, universities were able to cheat and admit minority applicants in preference to better qualified white ones, leading later to several more racial preference cases with diverse results. And even as I write, Harvard is being sued by a group of Asian applicants who rightly complain that black candidates are given preference in admissions.

If you want to read what I believe is the best commentary on Bakke, do read William Kai-Sheng Wang, The Devil Visits Justice Powell, Los Angeles Lawyer, July 1979, at p. 34. It’s short, insightful and witty – what more could you want?

Then there is good ol’ Roe v. Wade which legalized abortion and thereby launched the equivalent of a low-level civil war that still remains unresolved and – whether you agree with it or not — has poisoned American politics so that no candidates for public office in America can avoid entanglement in vicious controversies over whether they are “pro-life” or “pro-choice,” even though such controversies tend to obscure debate over grave topics like national defense, the economy, foreign policy, and other important aspects of sovereign governance. The New York Times, for example, is still going on about it — see:

So who wrote those opinions that have so destabilized America and have led to the prevailing poisonous public discourse that has driven most good people out of politics? It was Justice Lewis Powell (except for Roe in which he concurred, thus providing the crucial fifth vote to it).

Now tell me about how good centrist-conservative folks like Justice Powell are good for America. Ha! With conservatives like that, who needs radicals?

Second Knick Argument — Such as It Was

As is so often the case, we recommend that our readers who are really into takings law, read today’s Robert Thomas’ blog for its report on today’s oral argument in Knick v. Township of Scott which — if we may paraphrase Laurel & Hardy — was another fine mess their Lordships have gotten themselves into. Do read it.

This was the second oral argument in this case. At least this time around  Justice Kavanaugh was in the saddle but Justice Ginsburg was off the bench, recuperating from her recent cancer surgery). She will read the transcript and participate in the decision. Good luck, Your Honor.

For Mr. Thomas’ take see

As Yogi Berra put it, prediction is very difficult, especially about the future. Nonetheless we hazard a modest prognostication that the Owner, Ms. Knick, will carry the day 5 to 4 — although what form her victory will take is another story. On that one it’s a case of round and round she goes, and where she stops nobody knows.

It does seem reasonable to surmise that the “ripeness mess” started by the Williamson County case, and made worse by the San Remo Hotel and Chicago Surgeons cases will undergo some modification for the better. Even Justice Kagan whose heart is on the government’s side, allowed as how the existing rule that requires the aggrieved owner to sue in state court, but is then — hocus, pocus — removed to federal court and told there that he should have been in state court, is not long for this world. Rightly so.

We still can’t quite figure out what the Federal Solicitor General wants the court to do, but he says at least nominally, that he is on the owner’s side. Let us be grateful for small favors.

The performance of Justice Breyer was unbelievable. He peppered the owner’s counsel with convoluted questions, but when that unfortunate fellow tried to answer, interrupted him and babbled on. We won’t be surprised if some diligent fellow does a word count and discovers that Justice Breyer consumed more time with his inane questions than the unfortunate owner’s lawyer was permitted to answer.

Justices Alito and Gorsuch at least were clear, in accepting Ms. Knick’s arguments. The Chief? We’re not quite sure. Justice Thomas was silent as he usually is during oral arguments, so we’ll have to wait on that one.

So there is nothing to do now but wait. Stay tuned, and as you do that you may want to amuse yourself with commentaries which are certain to make their appearance.

FOLLOW UP: One thing was easy to predict immediately. Commentaries on the second Knick oral arguments are pouring out. The ever reliable Robert Thomas has so far provided us with over a half-dozen of them. So if you are a real takings junkie, especially one with an interest in the Knick mess, have at it. Go to

Good luck! And remember to keep a drink at your elbow. You’ll need it.

And oh yes, after reading Mr. Thomas’ post we are persuaded that he is on to something in speculating that Justice Breyer may not have been playing it straight, but was rather trying to “run the clock” so as to unfairly limit Ms. Knick’s lawyer’s allocated argument time. If not that, do tell us what you think Breyer was up to. Whether he is for or against a lawyer’s position, it seems to us to be only fair — and compliance with due process — for a judge to give an arguing lawyer a decent opportunity to make his point without being constantly interrupted and hectored from the bench. Frederick Bernays Wiener, the author of the highly regarded treatise BRIEFING AND ARGUING FEDERAL APPEALS observed that an oral argument should be a respectful conversation between court and counsel. In our opinion, Justice Breyer’s performance  was anything but that.

Lowball Watch — New Jersey

Word reaches us from New Jersey that the Township of Bloomfield which had earlier deposited $400,000 for the taking of the old railroad station in Bloomfield (and later increased its offer to $440,00) just got hit with a jury verdict of $1.1 million. There was an award in an earlier trial (reversed on appeal) that resulted in a verdict of $2.9 million. So this was the verdict on retrial. Though lower than the first jury verdict, the $1.1 award was over three times the township’s offer.

The subject property was 0.62 of an acre, and improved with the old station. The owner intended to leave the old station undisturbed and improve the rest of the parcel with a mix of residential and commercial uses, under a plan that was consistent with existing zoning.

See “Town’s got to pay for land it seized — $1.1M more than it wanted to.”

Let’s Not Do It and Say We Did

The law of eminent domain has been the subject of many negative comments over the years, but inspirations for more criticisms never cease coming. Check out, for example, Prout v. Cal DOT, 2018 Cal App unpub. LEXIS 8523. It’s discussed in detail in Brad Kuhn’s blog on California Eminent Domain. Check it out if you want to see how the court pulled a rabbit out of DOT’s empty hat.

Prout, an unpublished case, holds that where the government required a dedication (exaction) as a permit issuance condition, its failure to accept the dedication when it was duly offered (but invoking the dedication requirement only when, 20 years later, when it decided to take some of the owner’s land for a highway improvement), was hunky dory, even though — to make this stew more piquant — the dedication requirement was illegal to begin with because there was no nexus between it and the owner’s private project. When the owner then objected to DOT’s belated attempt to use of the dedication requirement (because it was never accepted) the California Court of Appeal ruled against him. But what about the law’s acceptance requirement? Picky, picky, held the court. Even though the law requires acceptance of the dedication offer, and here there was none, the acceptance was deemed performed, not by anything DOT did, but “by implication” when the owner went ahead with his project.   

We have no intention of parsing the whole Prout megillah — we leave that to a maven like Mr. Kuhn. But however sliced, this is still a head shaker. The government got to enjoy the benefit of a dedication acceptance, even though there was none, and the dedication requirement was substantively illegal. As far as we can tell, the court did not explain what purpose the dedication offer cum acceptance serves when its absence makes no difference.