Even if the world were open today, the doors to most Hawaii state, county, and city offices would still be locked. Because Friday, March 29, 2024 7 is the day that Hawaii celebrates Good Friday.
Yes, Good Friday is an an official state-sanctioned holiday in the 808 area code, so we're reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment.
Turns out that we don't really commemorate Good Friday as the crucifixion date, and it is just coincidence that the official State "spring holiday" occurs on the same day. (And this being Hawaii, in the end it's really a public worker union thing like a lot of things.)
Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. [Barista's note: here's a case we argued a couple of years ago in which the difference between a state holiday and a federal holiday made a difference in the way a voter's appeal time was calculated.]
The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions (also known as collective bargaining -- and here it was you thought that elected representatives made laws).
The Establishment Clause, which has been incorporated against the states by the Due Process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called wall of separation between church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance.
The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to ensure that public workers have more days off, not to make sure they were religious:
[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries. Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.
This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since a clearly secular purpose for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.
An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.
The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991). The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t is of no constitutional moment that Hawaii selected a day of traditional Christian worship, rather than a neutral date, for its spring holiday once it identified the need."
The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose:
We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering for holiday status days on which many people choose to be absent from work for religious reasons. That the state legislature was able to accomplish its secular purpose and at the same time accommodate the widespread religious practices of its citizenry is hardly a reason to invalidate the statute.
(citation omitted).
One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion:
The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii's endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone. Because I believe that such a state establishment of religion violates both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.
(Yeah, Lemon is now in the dustbin of legal history, but the new establishment test wouldn't likely change the outcome, would it?)
The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.
So even though you don't physically go shopping these days (mahalo, interwebs), you might go to the beach today or simply want to take it easy. But if you do use that time to go to church -- either in person or virtually -- it is "of no constitutional moment." Because it is plausible, isn't it, that the State had a secular purpose when it officially sanctified "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?"
As the Church Lady would say, "how conveeeeenient."
Check this out: lawprof Ilya Somin has posted "Squatters' Rights Laws Violate the Takings Clause" at Volokh.
His thesis is just as the title suggests, arguing that state statutes that treat trespassers as tenants are government-authorized physical occupations, and thus are takings:
Ideally, state and local governments should make it easy for property owners to swiftly remove squatters, and should subject the trespassers to civil and criminal sanctions. But where they instead facilitate this violation of property rights, the laws that do so violate the Takings Clause of the Fifth Amendment, which requires payment of "just compensation" whenever the government takes "private property."
Professor Somin relies on Cedar Point, and addresses the narrow exception to the general rule from that case that all physical invasions and occupations are takings without regard to the diminution in use or value or the owner's expectations, where the government had enabled the same access as does the "traditional common law."
The common law knows about adverse possession, he writes, where a trespasser may gain a property right, but only after meeting fairly rigorous legal tests, where the owner has actual notice of the possession and its adversity to her property rights. These squatter statutes go much further, because they force property owners unwillingly to become lessors.
In other cases where the courts have upheld regulations and restrictions on an owner's right to recover possession from an actual tenant -- you know, someone with whom the owner actually and expressly agreed, and then transferred the right to exclude to the tenant -- the courts frequently note that "no one is forcing you to become a landlord."
Well here, the owner is being forced to become a landlord.
Professor Somin wraps by noting, "I hope property owners and public interest law firms give serious consideration to bringing takings challenges against these laws. They are not a panacea for the problem. But they could help."
Since we are part of a non-profit, pro bono, public interest law firm as the good professor describes, we shall note here that the welcome mat is out, and if the above-situation is your situation, let us know.
New York state, as you might already know, regulates the rent an owner of residential property may charge to a tenant. Under a statute adopted in 1974, regulation is triggered by a locality's declaration of a housing emergency, and the restrictions extend for the duration of the declared emergency. Most famously -- or infamously -- New York City has declared a housing emergency under the statute since that time, and indeed has considered housing an "emergency" for over a century. The 1974 statute also applied to three other NYC-adjacent counties, but not the entire Empire State.
Well, in 2019 the legislature changed that, and "allowed municipalities statewide to opt in to the rent adjustment scheme created by the [1974 Emergency statute] upon a declaration of emergency due to a housing vacancy rate of 5% or less[.]"
In 2019, Kingston was thwarted when it determined its vacancy rate was 6.7% -- too high to invoke emergency powers. But then Co-19 came, and voila! the rate dropped below the magic 5%. Soon thereafter, the city adopted a resolution declaring a housing emergency, and invoked its powers under the 1974 statute to regulate rent on building containing six or more rental units.
The statute requires the formation of a Board to administer the law and determine the rents in the regulated units. The city did so, and the Board came up with this:
On November 9, 2022, following a series of public meetings and hearings, the Board voted to adopt an annual rent adjustment guideline and a fair market rent guideline for the properties subject to the emergency declaration. The fair market rent guideline provided that a tenant could file a fair market rent appeal with respondent Division of Housing and Community Renewal (hereinafter DHCR) to seek a refund if his or her rent increased by more than 16% between January 1, 2019 and July 30, 2022; the adjustment guideline, in turn, required that rent charged for one- and two-year leases commencing between August 1, 2022 and September 30, 2023 be reduced by 15% from the base rate.
Read that again. Max rent increase of 16% over base rate between 2019 and 2022. Check. And then a 15% rent reduction from base rate between 2022 and 2023.Who knew that with inflation and the cost of seemingly everything rising, that rent in Kingston is getting cheaper. Like magic!
An association of property owners sued. They challenged the city's claim that the 5% threshold was met, and also whether the city had the authority to lower existing rents. The Supreme Court (this is New York, so "Supreme Court" means a trial court, dun dun), concluded that indeed, the city had met the very low legal bar for showing that as a matter of fact, Kingston was experiencing a vacancy rate below 5%, but also that the city lacked the authority under the 1974 statute to lower rents. Both sides appealed.
In Hudson Valley Property Owners Ass'n Inc. v. City of Kingston, No. CV-23-0327 (Mar. 21, 2024), the Appellate Division did the city a solid: it affirmed the declaration of emergency, but on the city's appeal, reversed and concluded that nothing in the term "adjustment" of rent in the 1975 statute did not mean only an upwards adjustment of rent, but could include lowering rents.
We're not going to get into the first issue too deeply, which the court viewed as a factual challenge. Yes, the studies and other data supporting the finding the 5% threshold was satisfied might be a bit off here and there, but as we know, the courts generally don't hold the government to very high standards in this area (or anywhere else in NY law), because the city was acting in good faith. Or at least there was no proof it wasn't. Slip op. at 6. The flaws the property owners pointed to were "perceived" and not actual flaws, and the resulting studies were "adequate." And as we know, that's enough to satisfy a court when the government is involved.
On the more interesting issue of whether "adjustment" means only an upwards adjustment of rent, the court had this to say:
Nothing in the applicable statutory language explicitly requires that the Board adjust the rent upward rather than downward as petitioners claim, and petitioners' argument as to why such a requirement should be implied is less than compelling.
Slip op. at 7. That's it. Exactly why that is so, the court does not really explain.
And a blanket downwards "adjustment" was just fine, and no individualized determinations were necessary: if you don't like how this works on your property, property owner, you can appeal.
As we've always thought, facial claims are tough. But find a situation in which a downwards adjustment (or even an inadequate upwards adjustment) forces a property owner to operate in the red (and the owner has the resources, financial and emotional, to push it), or where an owner who wants to exit the rental market and is prohibited from doing so by the law, and you've likely got a different case.
The Chief Justice calling the case for oral arguments.
Who knew?
(And in case you are wondering, yes -- we're joking.)]]>
Here's our latest, this cert petition, another one asking whether a property owner's regulatory takings claim is ripe for judicial review.
This is one of ours, so we won't be commenting in depth other than to say that it doesn't seem like you should have to seek permission under Futurelaw in order to ripen a claim.
The Question Presented (and the petition itself) set out the issues, and our take on them:
The City of South Burlington, Vermont, established “Habitat Blocks” where all development is banned to preserve open space. It enacted an “interim” land use ordinance that restricted development between 2018 and 2022 while it contemplated the location of its Habitat Blocks. During that period 835 Hinesburg Road, LLC, submitted a development proposal for the construction of commercial and light industrial buildings on its 113.8-acre parcel of undeveloped land, which complied with all elements of the interim ordinance. The City formally rejected the plan as intruding partially into potential future Habitat Blocks. 835 Hinesburg filed a federal lawsuit claiming the City’s rejection effected an unconstitutional taking without compensation. The district court dismissed the takings claim as unripe because 835 Hinesburg did not submit a second development proposal under subsequently adopted regulations that included the Habitat Blocks. The Second Circuit affirmed.The question presented is:Whether a takings claim is ripe when a city makes a final decision under existing ordinances denying a land use permit, or whether a property owner is required to submit subsequent development proposals for consideration under future or later-adopted regulations to ripen the claim?
Follow along here, or on the Court's docket.
Check this out. Friend and colleague Steve Davis has authored "Eminent Domain, the Fifth Amendment Takings Clause, and the Rule of Law," 88 Social Education J. 1 (2024).
As summarized on the Federal Takings blog:
]]>Steve explains the rights guaranteed by the Fifth Amendment to the Constitution and focuses on its critically-important (but lesser-known and appreciated) right to compensation when the government takes its citizens’ private property for public use. The article offers a primer on eminent domain history and abuse, from the application of the Takings Clause to the states to the Kelo decision. Steve goes on to present current, real-life issues before the Supreme Court that affect every-day Americans and explains their background and importance.The article concludes, “the Fifth Amendment’s essential constraints on the government’s extraordinary and easily-abused power of eminent domain remains as important today as it has over centuries—truly a fundamental piece of our understanding about the rule of law.”
Social Education is published by the National Council for the Social Studies, which “is the largest professional association in the country devoted solely to social studies education,” according to its website. “NCSS serves as an umbrella organization for elementary, secondary, and college teachers of history, civics, geography, economics, political science, sociology, psychology, anthropology, and law-related education.”
Check it out. Well worth a read, even for you experienced ones.
You can spend all your time making money.
You can spend all your love making time.
If it all fell to pieces tomorrow, would you still be mine?
Count me as very surprised, and a bit saddened, when earlier this week my inbox pinged with notification that the latest episode of Clint Schumacher's Eminent Domain Podcast had dropped. And instead of it being a session with a lawyer, legal scholar, appraiser, property owner, right of way agent, or other fascinating guest, I learned the Episode 128 was to be the final edition. Or as Clint puts it, the "Farewell Episode."
For the past several years, I got used to twice a month receiving notification that Clint had posted a new episode. I'd click though to the bumper music and that familiar intro:
Welcome to the Eminent Domain Podcast with your host Clint Schumacher of Dawson & Sodd LLP. This is the discussion forum for the eminent domain community. Join us as we seek insight from industry thought leaders and experts. We'll follow the latest news in the eminent domain world: cases, projects, laws, and policies through the voices of the people who are shaping how we apply the Fifth Amendment!
I knew that I was in for a half-hour or more of dirt law goodness. (Thankfully, Clint is leaving up the full 128 episode catalog, so we can continue to access it.)
And, of course, a bit of levity: Clint's "cross examination" feature -- where he asked the guest some "fun and quick-hitting questions that are designed to let our listeners get to know the guest a little bit better." Things like "if you could leave any message on a billboard for 30 days, what would it be?," or "if you could bring back one fashion trend, what would it be?" or "what books or podcasts do you recommend?" I always liked that part of the program.
As much as I am going to miss the Eminent Domain Podcast being a regular feature on my calendar, I understand the kind of day-in-and-day-out effort that producing the podcast took. Time, energy, and putting your heart into it. Finding and booking guests, preparing for interviews, editing and making the guests sound really, really good (I can attest to this personally, thank you Clint). And when one episode was ready, doing it all over again. All for no monetary reward, and while continuing to carry on a robust courtroom calendar representing clients. Let me say one final time how much I appreciated Clint doing this for all of us who find this stuff fascinating.
Be sure to listen to this final episode. It's Clint going solo -- no guest -- and offering his thanks and saying his goodbyes. Generous and gracious as always, Clint runs down some statistics, does a bit of reminiscing, and shares a "behind the music" never-told-before story. A little reminder of what we're going to miss.
All alone at the end of the evening.
when the bright lights have faded to blue.
I was thinking about a woman who might have
loved me, and I never knew.
You know I've always been a dreamer,
spent my life running round.
And it's so hard to change,
can't seem to settle down.
But the dreams I've seen lately
keep on turning out and burning out
and turning out the same.
So put me on a highway,
and show me a sign.
And take it to the limit one more time.
You can spend all your time making money.
You can spend all your love making time.
If it all fell to pieces tomorrow,
would you still be mine?
When you're looking for your freedom,
and nobody seems to care.
And you can't find the door,
(can't find it anywhere).
When there's nothing to believe in.
Still you're coming back,
you're running back,
you're coming back for more.
So put me on a highway,
and show me a sign
And take it to the limit one more time.
Zip. Zilch. Zero. Nil. Nada. Squat. Bupkis.
Here's the latest in a case we've been following for a long, long time (see here and here, for example).
In Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. CAAP-19-0000776 (Mar. 18, 2024), the Hawaii Intermediate Court of Appeals confirmed that a state statute declaring certain accreted littoral land to be public property was a temporary regulatory taking of littoral owners' rights (the common law says that accreted littoral lands belong to the private owner), but that the just compensation the State owes to these owners is a big fat zero.
This case goes back to a statute the Hawaii Legislature adopted in 2003, which made certain land accreted on littoral private property public land. As the court put it, "[i]t effectively made land accreted to the Beach Lots after May 20, 2003, public land not owned by [the adjacent littoral owners]." Slip op. at 3.
Sounds like a taking, and sure enough a lawsuit followed, claiming that the ipse dixiting of accreted land was a taking because it represented a change in the common law under which the adjacent owners would own the accreted land. Nine years later, the legislature "changed the law by terminating the taking effectuated by [the statute]." Slip op. at 9.
The trial court dismissed the takings claim, but the Court of Appeals held that the statute worked an uncompensated taking of the land accreted before the effective date of the statute. (The court rejected a claim that the statute also confiscated future accreted land, but that is another story.) The appeals court sent the case back for a a ruling on whether these plaintiffs own land that qualified, and if so, the valuation of the accreted land.
After a bench trial, the trial court concluded that there was a temporary (nine year) taking, not a permanent one. The parties stipulated that just compensation was to be measured by the "fair rental value of the accreted land" as of the effective date of the statute, subject to the governmental and private restrictions that burdened the land. Slip op. at 5. The trial court concluded that just compensation is $0.
The court of appeals affirmed, and made short work of the owners' argument. It based its conclusion entirely on the appellate standard of review:
Beach Lot Owners' evidence of fair rental value was based on the testimony of Stephany Sofos. The circuit court "did not find Ms. Sofos to be a credible witness" and gave "no weight to her testimony." "It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of evidence; this is the province of the trier of fact." Fisher v. Fisher, 111 Hawaii 41, 46, 137 P.3d 355, 360 (2006) (citation omitted).The circuit court instead credited the testimony of Craig Leong, a licensed real estate appraiser who holds the MAI designation.
Slip op. at 11-12 (footnote omitted).
The State's appraiser concluded there was no rental value because the size of the accretions were "irregular" and of "narrow widths," and subject to regulations and restrictions. Slip op. at 12.
The owners couldn't believe that beachfront property in one of the most desirable residential areas in Honolulu is utterly worthless: "Beach Lot Owners argued that 'depriving [them] of oceanfront property in Maunalua Bay for 9 years cannot possibly be valued at $0.'" Slip op. at 10. Indeed isn't it intuitive that ownership of even a small and irregularly-shaped portion of beach -- even for a temporary period, and even if open to public access as the plaintiffs stipulated -- could be worth something? Especially, as the plaintiffs claimed, as a buffer to the homes built on the adjacent residential lots (what the opinion calls the "Home Lots").1
Problem is, the plaintiffs making those claims "do not own any Home Lots." Slip op. at 11. Ouch.
Having noted that the trial court made a determination that the plaintiffs' appraiser offered incredible testimony (what that testimony was, and what value the appraiser assigned to the accreted lands we don't know because the opinion does not tell us), and that the government's appraiser was credible, the court of appeals held the factual conclusion of zero just compensation was not clearly erroneous because there was some evidence in the record to support it. Game, set match.
Also: no nominal damages because the plaintiffs, having scored no just compensation, "did not sustain a 'technical injury due to a violation of some legal right[.]'" Slip op. at 13. In the court's view, they were not injured at all.
Finally, the court rejected the argument that the plaintiffs should have been at least awarded attorneys' fees under the private attorney general doctrine. Read pages 14-20 if you care why (we don't, sorry).
--------------------------------------------
1. This intuition comes from the "Inversecondemnation on Valuation" treatise by the way. You won't find a copy of this august work in your law library, sadly. In the end, the trial court found the in-court testimony of expert valuation witnesses a lot more persuasive than your author's intuition, which, standing alone, is worth doodly-squat in a court of law (as we know).
Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. CAAP-19-0000776 (Haw. App. Mar. 18, 2024)
]]>If you've been around us long enough, you know that we're big into the notion of "generational handoff" and doing what we can to make sure that students and others who are building their careers realize that dirt law and related topics are very good areas in which to find your way.
Well, here's the latest -- a free webinar from the American Planning Association's Planning and Law Division:
Second in a series of webinars aiming to answer student questions about career paths in the planning and law field, this webinar focuses on individuals working, or interested in working, in developing the built environment. Developers, as the main constructors of the built environment, must be familiar with urban conditions and the legal requirements that govern building on or redeveloping land. In-house counsel for development firms help their clients navigate through legal matters related to developing the built environment. Join us for a 90-minute discussion with four expert panelists, covering topics that include possible career paths in the private sphere, changes in the planning and law field over the years, and the experience and skills needed to enter the field, all with a focus on developers and in-house counsel. This webinar is for students, young professionals, and anyone who is interested in learning more about where a degree in planning, law, or both can take you in the private sphere.
Details:
Date: Wednesday, March 27, 2024
Time: 10:30 a.m. - 12:00 noon EDT
Cost: Free
Registration: https://www.planning.org/events/eventsingle/9286709/Speakers:
Kyle McClammer
General Counsel of The Garrett CompaniesRicqui Brager, AICP
Planner with the Regional Planning & Environmental Center (RPEC) of the U.S. Army Corps of Engineers, Fort Worth DistrictLeona Hammill
Leona Hammill joined NewQuest Properties in 2015 and has served as General Counsel since 2021Brodie Smith
Brodie Smith is a project manager for Thrive Home Builders in Denver, Colorado
Register and attend!
In Brinkmann v. Town of Southold, No. 22-2722 (Mar. 13, 2024), the U.S. Court of Appeals for the Second Circuit addressed a longstanding issue left unresolved by the Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005): is it enough that a condemnor's professed use qualifies as a public use, or may a property owner nonetheless challenge a taking on the grounds that the real reason for the taking is not a public use?
Yes, the "pretext" issue is back!
The facts of the case are pretty straightforward. The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared (you know the drill): a store like this would result in too much additional traffic (traffic study said no), special permits and impact studies are needed (the owners began to comply), a moratorium on building permits in a one-mile radius, "despite the county government's finding that the moratorium lacked supportive evidence' (oops). Slip op. at 3. Even a failed attempt by the Town to buy the property itself before the Brinkmanns closed their purchase.
When all those didn't succeed in stopping the development, the Town began proceedings to forcibly acquire the land by eminent domain. What for, you ask? A public park. More precisely, a "passive use park." What's that, you ask? It isn't what you might think make a typical public park. Things like public facilities, art installations, walking trails, recreational and entertainment spots and stuff. No, this was to have none of those things, it was to be "a park with no significant facilities or improvements," also known as a big open, empty field.
Next step was a federal court section 1983 action by the Brinkmanns, "alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment." Slip op. at 4. The Town may have claimed that the taking was for a "classic" public use (a public park, even if it is a "passive use park"), but the Town's actual reason, the Brinkmanns alleged, was what we call a "spite taking" -- the Town didn't like the use we're making or going to make of our property, so decided to take it from us. This was the real motivation to take our property, and that's not a public use, according to the complaint. The district court wasn't having any of it, and dismissed for failure to state a claim.
A divided panel of the Second Circuit affirmed. This "pretext" thing you allege, property owner, is merely a "passing reference." Slip op. at 6 (quoting Goldstein v. Pataki, 516 F.3d 50, 61 (2d Cir. 2008)). And we all know that when the legislature has declared that a certain use or interest is a public one, the courts have no role because "the public interest has been declared in terms well-nigh conclusive." Slip op. at 7 (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)). Taking property by eminent domain is just legislation, property owners, so go make your fight in the political process. Don't bother the courts.
"There can be no dispute that a public park, even an unimproved one, is a public use." Slip op. at 8. The court distinguished between pretext for private benefit, and pretext for some use that isn't public:
While in some cases there may be plausible allegations that the exercise of eminent domain supposedly for a park had been pretext for an intention to use taken property for a different--and private--purpose, Plaintiffs’ complaint does not allege that the Town meant to confer any such private benefit or intends to use the property for anything other than a public park.
Id.
The majority focused on the complaint's assertion that the Town's supervisor stated, "I will never allow anything to be built on this property." Id. In the majority's view, that statement revealed that the Town's motivation was just fine, because it didn't matter that the taking was for spite, as long as it wasn't for a private use or purpose. As the opinion put it, "Plaintiffs have not pointed to any Town purpose that violates the Takings Clause." Id.
In short (and this is our characterization, not the court's), the Fifth Amendment contains a Public Use Clause, not a "Good Motivation Clause." Or if you want an even shorter story: rational basis review.
There's no "purity of motives" requirement, nor any real way to figure out why "[d]ifferent legislators may vote for a single measure with different goals[,]" the majority concluded. Slip op. at 11. The Town may have "bad reasons for doing good things." Id. This is an objective test, not a subjective one, and all that matters is what the Town did, not what it or its officials might have thought.
The majority rejected other cases that might seem to have gone in a different direction -- including this one from Colorado and this case from Pennsylvania -- that are about these type of "bad faith" takings. The court distinguished each case, concluding they were based on state constitutions, state statutes that allow a more searching judicial inquiry into motive, or regulatory takings doctrine.
The majority also snarked at the dissenting judge's assertion that the "passive use park" (what the dissent labeled a "fake park") was pretty good evidence of improper motive:
So long as public land is open to the air and to the people, it is a park; and that, of all things, cannot be faked. The author of the dissent may come to 12500 Main Road, Mattituck, NY, and he may walk the park, breathe its air, or spread his picnic upon it. There is nothing Fake about it.
Slip op. at 24-25.
The majority's big vibe was that if the Town says it wants the land for a park, then who cares if the Town might have other reasons? That's a rabbit hole where the majority has a long way to fall before reaching the bottom. For that bottom, you need look no further that California's Bruce's Beach, where the taking was for a public park, even though the real motivation was to deprive the African-American owners of the property. A classic "spite taking," if we're talking "classic" takings. The Brinkmann majority was quick to point out, however, that racially discriminatory takings are no good) because a taking must be otherwise in accordance with law before the courts apply rational basis review. To which we ask why is that only an Equal Protection problem and not also a Public Use problem?
The dissenting opinion by Judge Menashi focused on the mechanics of delving into bad faith takings. There's a lot there, so we're going to cover the dissenting opinion in a separate post.
Stay tuned, something tells us this case isn't over yet.
Brinkmann v. Town of Southold, No. 22-2722 (2d Cir. Mar. 13, 2024)
When it comes to property rights, we're most often focused on takings, compensation, and due process. But as you all know, the concept of property rights encompasses a whole lot more.
Our colleague, lawprof Jessica Asbridge, has posted on SSRN an article that is forthcoming in the Virginia Law Review, "Fines, Forfeitures, and Federalism," in which she delves into the question of how the Excessive Fines Clause applies to state and local forfeitures and fines. To resolve the federalism concerns she identifies, the article argues that courts "should look to the exactions doctrine under the Takings Clause."
Count us as intrigued.
Here's the Abstract:
Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question.Check it out. Download your copy on SSRN here.The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment—such as prison—because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.
To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that discretionary state and local fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.
You'll want to check out the U.S. Court of Appeals' opinion in Gerlach v. Rokita, No. 23-1792 (Mar. 6, 2024), even though it mostly retraces grounds already tread by other courts.
The takings claim was based on the actions of Indiana government officials who didn't give the interest earned on unclaimed funds to the owner of those funds. The court got the property owner coming and going: it held the claim for declaratory and injunctive relief was moot, and also that the claim for just compensation could not be pursued in federal court (Eleventh Amendment). In short, no claim at all.
First, some background. After a specified period of inaction, Indiana takes custody of things like unclaimed wages, unclaimed insurance proceeds, and uncashed public entity checks. These funds go into a special account, and owners may make claims to recover their property. Any excess in this account over what is returned to claiming owners goes into an abandoned property fund. From time to time, the state Treasurer transfers those funds to the state general fund. But after a successful lawsuit challenging this practice, the state began paying interest on property held in the fund, as long as the property was collecting interest prior to the state taking custody. Later, the courts held that all reclaimed property is entitled to interest, whether or not it was interest-bearing before the state got it.
Back to our case. Gerlach reclaimed dormant property valued at $100.93 and Indiana dutifully gave it back to her. But it did not also include interest. Federal court takings lawsuit followed, which asserted a right to declaratory and injunctive relief against the state Treasurer and a right to just compensation.
The officials sought dismissal. The declaratory and injunctive relief was moot because the state adopted a policy at or after the time the plaintiff filed the lawsuit under which the state would provide interest on all held property. Affirmed: by the time the case reached the Seventh Circuit, the Indiana Legislature had adopted a statute to the same effect.
The claim for just compensation crashed on familiar shoals, the Eleventh Amendment. The Seventh Circuit first noted that her claim was based directly on the Takings Clause, and that she asserted she could do so because the requirement to provide compensation is self-executing. The court sidestepped this issue, noting that the Devillier case, argued but not yet decided by the Supreme Court, will likely resolve this question.
That question didn't really matter, because the Eleventh Amendment "disposes of Gerlach's claim."
Indiana enjoys “the privilege of the sovereign not to be sued without its consent.” Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 520 (7th Cir. 2021) (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253 (2011)). The Eleventh Amendment prohibits suits against a state in federal court, whether by its own citizens or citizens of another state. U.S. Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). That protection extends to state employees sued in their official capacities. See Lewis v. Clarke, 581 U.S. 155, 162 (2017) (“In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.”).
Slip op. at 7.
What about that exception to the immunity, when state courts are not available? "We are not persuaded," held the Seventh Circuit, because "Indiana courts are open to hear Gerlach's claim for compensation." Slip op. at 8.
This one joins other courts which have gone the same way. It also adds to our sense that after Knick when we predicted that the Supreme Court's opening back up the federal courthouse doors wasn't the end of the procedural gamesmanship, but merely the opening of a new chapter? And that it was time to dust off your old Federal Courts hornbook, because things like the Eleventh Amendment, Rooker/Feldman, abstention, and similar, were going to spring up as the way to avoid the merits of takings claims? That's we're going to be experiencing Williamson County, Phase 2? Here you go.
Stay tuned.
Gerlach v. Rokita, No 23-1792 (7th Cir. Mar. 6, 2024)
Texans: now is a good time to register for the 23d Annual Texas Eminent Domain Superconference, April 25-26, 2024, at the Austin Country Club in Austin.
We spoke at the Conference last year and in other editions, and can report that it is excellent. Check out the faculty and agenda, and then register and reserve your spot.
Be sure to check out this interview ("Rent Control Is a ‘New York Tragedy’") on Hamodia, with law Professor Richard Epstein.
As you might expect, the interview is full of insights and bon mots. There's even a reference to the judicial takings case, Stop the Beach Renourishment. And a lot of things that just make you shake your head because anyone who had done a modicum of thinking on the rent and vacancy control issue can tell there's no real "exit strategy" by the governments who impose it, and that when the music stops -- as it must, eventually -- someone is going to be left standing up without a chair. It is not, at least as practiced in New York, "sustainable" (in today's parlance).
And when you go to the New York courts, it’s a death trap. They’re all consistently pro-government in these cases. You try moving it to federal court, and you get a very liberal panel. And so the whole thing turns out to be bottled up. You look at the situation in the City Council, and you can wait a long time before the drought will be over. So essentially all the current avenues seem to be over. There’s no state constitutional challenge that’s going to be viable, no federal constitutional challenge that’s going to be viable, there’s going to be no state Capitol override of what is taking place in the city. And the city itself doesn’t want to move. So something has got to give.What gives is the population: People who cannot find housing in the city at a sensible price march off to places where it doesn’t take you a year and a day to get the first step of a building permit. So off they go to Tennessee, Florida, Texas, South Carolina, Alabama. New York has lost more people in absolute terms than even California, which is no wonderful place. But everybody in power in New York seems to be oblivious to what’s going on, because they don’t take the exit option seriously. And it is going to ruin this city.
Unfortunately, there are a lot of criticisms, but not a lot of suggestions for pathways out of the problem. But nonetheless, please read the entire interview. Well worth your time.]]>
Have thoughts about where regulatory takings are (or should be) headed? Here's your chance to get in on the conversation, and to shape the future of the law. Our outfit, the Pacific Legal Foundation, in cooperation with the Antonin Scalia Law School's Journal of Law, Economics, and Policy, are calling for papers on "Imagining the Future of Regulatory Takings." There will be an in-person discussion of these papers at the Law School in October 2024.
Here's the full description:
A century ago, Oliver Wendell Holmes, speaking for the Supreme Court, assured us that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In the ensuing one hundred years, courts have struggled to draw the line defining “too far.” Some still wonder whether such a line should even exist. As Justice Clarence Thomas recently said, “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”To date, many jurists and scholars have argued that the “too far” line is anything but clear. The regulatory takings doctrine is a hodgepodge of balancing and categorical tests alongside a scattered throng of exceptions, with little guidance on which tests or exceptions apply when, much less how to apply them in a principled and consistent manner. There are the categorical tests of Lucas (“total” takings) and Loretto (“physical” takings) and the amorphous balancing tests like the Penn Central ad hoc regime and the threshold “relevant parcel” test. Then there are vexing and unanswered questions about whether some restrictions on property are simply exempted from a takings analysis: When is a property restriction a “background principle” baked into the meaning of property itself as opposed to a restraint on a recognized property right? When, if ever, does a valid exercise of the police power operate outside of takings constraints? And, to top it all off, we still aren’t settled on how to define “property.” Pacific Legal Foundation seeks papers that offer fresh ideas on how to make “too far” more just, more concrete, and more principled. We welcome proposals that look at this problem from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.
Proposals are due by April 15, 2024, and for accepted works there is a $2500 honorarium and an opportunity to publish your work in the Journal. Certain travel expenses to the Law School also will be covered.
Download the full brochure for all the details, including timeline, and a list of possible topics.
Please consider submitting, and joining us in this fascinating enterprise.
Call for Papers: "Too Far: Imagining the Future of Regulatory Takings"
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