There is a bit of a foo-foo going on line about a new Missouri case, St. Louis Cnty v River Bend Estates Homeowners’ Ass’n, in which that state’s supreme court upheld and applied a statute providing that condemnees whose family has owned the subject property for at least 150 years are to be paid a bonus, over and above fair market value. So what could be wrong with that, you ask. Haven’t the courts, including SCOTUS been hocking us for a century or so that they (the courts, that is) only decide the constitutional minimum that forms the constitutionally required “just compensation,” and that it is up to the legislature to be more generous than that, if it is so inclined. So if you think that the judicially-set constitutional minimum is too penurious, say the courts, you should go supplicate the legislature to change the law. But when you do that and the legislature responds favorably, you can count on some city hall type to march into court and utter some absurd semblance of an argument to the effect that when the legislature did this — i.e., did what the courts said it could do, it acted unconstitutionally.
SCOTUS dealt with that intellectual crap way back in the 1920s in the Joslin Mfg Co. case in which it explained that when a court sets compensability rules, it only sets the constitutional minimum, i.e., the floor, not the ceiling of compensation, and the legislature is free to legislate a level of compensation that is higher than that minimum. So you’d think that people who can read would know that. But no, in over 40 years of eminent domain practice we don’t recall any condemnors’ lawyers who would admit to knowing that rule. Yet they have the chutzpa to also argue in court that if the property owners don’t like the prevailing, judicially-created rules of compensability, they should take their plea to the legislature.
We were once involved in a case in which, after the California legislature made business goodwill compensable by statute in 1976, our opposing city attorney filed a petition in the court of appeal, seeking a writ of mandate, in which he had the chutzpa to argue that the statute was unconstitutional because it was — are you ready? — a “gift of public funds.” Needless to say, it didn’t fly and the city screamed bloody murder when it was asked to pay court costs after it lost. That was some 37 years ago, but some of these guys keep flogging that dead horse.
Bottom line: This is not just a rule of eminent domain law; it’s a generally applicable rule of constitutional law applicable in all cases. Thus, as any criminal practitioner knows (or ought to know) state courts are free to formulate procedural or substantive rules of criminal law that are more liberal to the accused than are federal constitutional rules. Why would a rule favoring bad-guy criminals not also favor good-guy citizens who haven’s done anything wrong and are not even accused of doing it. Shouldn’t they be treated with the same degree of fairness?
Mind you, we have nothing against a lawyer standing up and candidly arguing that the court ought to change judge-made law in favor of his client, or strike down a rule as unconstitutional. We have done it a number of times, sometimes even successfully. But arguing to the court that the law is what it plainly isn’t, is a whole other thing.