PLF Liberty Blog

New Jersey Local Government Steals Private Property

Author: Luke Wake

A couple in New Jersey is turning to their Supreme Court for relief after an appellate decision found that their property had been "taken by inverse condemnation." That legal conclusion flies in the face of established law. Inverse condemnation is a cause of action for an aggrieved landowner against a government when it has taken a property without paying just compensation. As we argued in our recent amicus brief in support of the couple, inverse condemnation is a shield to protect the property owner’s rights, not a tool for the government to use in stealing private property.

Yes, the government literally stole this couple’s property. Even the appellate court concluded that their property was taken "without any semblance of due process." At this point, they can’t build anything on the property whatsoever; they can’t even have vehicular access.

Somehow, despite the government’s failure to institute eminent domain procedures, or to otherwise comply with the requirements of the Fifth Amendment, the appellate court concluded that the government now owns their property. The couple is left with only "bare legal title" - which apparently means they assume all the liabilities of ownership (e.g. taxes) without any of the benefits (i.e. the right to use and enjoy the property, or to exclude others).

The most outrageous thing is that the government is claiming that it has owned the property since 1962, despite the fact that over the past 47 years it has led the couple to believe they were the owners by charging them property taxes and referring to them as the owners in communications. In fact, when the couple first filed suit, asserting a right to access their property, the government admitted they were indeed the owners. But now they have made an about-face - claiming that they took the property years ago and that there is nothing the couple can do about it now.

Hey, whadda ya know?

Author: Timothy Sandefur

This is unintentionally hilarious:

How can we most effectively weaken property rights…?  [F]raming property as bundles of rights and forewarning of limitations weakens perceptions of ownership and decreases resistance to subsequent restrictions….  The potential applications of this research to property theory are numerous. Legislators, judges, and regulatory agencies craft legal measures that respond to, or even capitalize on, strong, pre-existing frames of citizen-owners.

Yep, I’d say that’s about right!

(HT: RSR)

My Chapman talk on Lochner

Author: Timothy Sandefur

I recently spoke to the Federalist Society at Chapman University School of Law (my alma mater) on the subject of Lochner and of constitutional protections for economic liberty in general. I recorded the talk and you can listen to it here. (It's a big file and takes a while to download.)

The "diversity" rationale

Author: Joshua Thompson

Over at The Volokh Conspiracy, Ilya Somin has an interesting post on the justificaiton(s) for race/ethnic preferences at public universities.  He notes how there are two general theories that are held out to justify such preferences: (1) compensatory justice; and (2) promotion of diversity.  He notes how the first justification fails because a number of different ethnicities, that are generally not entitled to preferences, have experienced various forms of discrimination throughout US history.  He mentions Japanese internment as the prime example, but I would add that Chinese, Catholics, and Jews, to name a few, have also experienced various forms of state discrimination in the United States.  If one ethnicity is entitled to preferences based on past state discrimination, then that justification can be used for preferences for a litany of ethnicities.  Indeed, the "compensatory justice" rationale for preferences at public universities was rejected by the Supreme Court in Grutter v. Bollinger.

The second rationale, promotion of diversity, which was accepted by the Court in Grutter, argues that race preferences are "for the sake of ensuring that each ethnic group is represented by a 'critical mass' in the student body sufficient to educate other students about their culture..."  But Professor Somin also points out a critical flaw in this theory.   "'Asians' are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same nation. Treating them all as an undifferentiated mass of “Asian-Americans” is a bit like saying that Norwegians, Italians, and Bulgarians are basically the same because they are 'Europeans.'"

PLF files new Proposition 209 lawsuit directly in California Court of Appeal

Author: Joshua Thompson

PLF filed a lawsuit today against a number of California agencies and officials including Governor Schwarzenegger and Attorney General Brown.  The lawsuit alleges that the recently enacted Assembly Bill 21 (AB 21), grants preferences on the basis of race and sex in public contracting.  You can read PLF's petition here.

AB 21 was signed into law by the Governor on July 28, 2009.  The Bill reauthorized several Public Contract Code provisions that had previously been declared unconstitutional in Monterey Mechanical v. Wilson.  Furthermore, in 1998, then Governor Pete Wilson issued Executive Order W-172-98 forbidding the state from enforcing the unconstitutional preferences in the Public Contract Code.  Further still, in Connerly v. State Personnel Board, the Third District Court of Appeal recognized the unconstitutionality of those statutes, and on remand to the trial court, the trial court issued a writ of mandate forbidding the state from enforcing the unconstitutional provisions of the Public Contract Code.

Despite all this authority against the constitutionality of these Public Contract Code provisions, AB 21 reauthorized them!  With Ward Connerly and American Civil Rights Foundation on board, PLF is challenging this outrageous action.  PLF's lawsuit is of particular note because it was filed directly in the Third District Court of Appeal, the same court that had previously recognized the unconstitutionality of these Public Contract Code provisions.

We will keep you updated as this case moves along.

Atlantic Yards eminent domain case

Author: Timothy Sandefur

Our friend Robert Thomas is liveblogging the oral arguments in New York's important eminent domain case, Goldstein v. New York State Urban Development Corp., over at his blog, inversecondemnation.com. The arguments begin at 2 Eastern, which is about 45 minutes from now.

Update: I will be joining in on the live-blogging.

California: the pyrite state

Author: Timothy Sandefur

...or is it Pirate State? A report issued last month by Sanjay Varshney and Dennis Tootelian, professors at the Cal State Sacramento College of Business Administration, finds that the state's miles of red tape cost Californians $493 billion--that's billion with a b, which is a third of the state's gross product. These business regulations, so labyrinthine that even legal experts admit they cannot really navigate them successfully, aren't just an enormous drain on the state's resources, they're also a particular burden on small businesses and entrepreneurs--people who cannot afford the time and expense necessary to comply. When faced with California's enormous regulatory hurdles, large corporations have the advantage of being able to draw on legal help and political influence...while small businesses, many owned by individuals, are forced to swim for themselves. So much for regulation being the way to curb the influence of big nasty corporations.

As the authors of this study observe, "The total cost of regulation was $134,122.48 per small business in California in 2007, labor income not created or lost was $4,359.55 per small business, indirect business taxes not generated or lost were $57,260.15 per small business, and finally roughly one job lost per small business."

When a state punishes its hardest working citizens, simultaneously rewarding the least productive people, it is only a matter of time before the political, social, and psychological foundations of prosperity are destroyed. We in California are very lucky that we have long been able to afford to impose so many bureaucratic burdens on businesses and still get along pretty well. But that's not a long term strategy for success and prosperity. And, worst of all, it is morally perverse and untenable for political leaders to continue making it easier for Californians to get a welfare check than a paycheck.

More info here, and John and Ken on KFI Los Angeles interviewed the authors of the report.

Thoughts on PLF's delta smelt Commerce Clause challenge

Author: Brandon Middleton

Last week a federal district court in Fresno rejected Pacific Legal Foundation's constitutional challenge to the federal government's devastating delta smelt water restrictions. Even though the delta smelt is a noncommercial species that is found only in California, the court ruled that the U.S. Fish and Wildlife Service may regulate the smelt under the Commerce Clause. According to the court, in enacting the Endangered Species Act, "Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity."

We're obviously disappointed with the decision, but not discouraged. We think the district court applied incorrect legal standards, making its decision ripe for appeal. We also believe that the biodiversity rationale relied upon by the court offers no limit to the power of the federal government.

PLF victory in Proposition 209 challenge

Author: Joshua Thompson

Last week, PLF won an important victory for equality under the law in the case of Smith v. California Health and Human Services Agency.  The case challenged Cal. Health & Safety Code §§ 128330(g) & 128345 under Article I, section 31(a) of the California Constitution (often referred to as Proposition 209), which prohibits discrimination and preferential treatment on the basis of race in the operation of public contracting, public employment, and public education.

The Health and Safety Code created a statutory scheme that awarded scholarships and loan forgiveness on the basis of race to medical, dental, and nursing students who chose to serve in medically underserved areas.  PLF represented James Smith, a white nursing student who was denied a scholarship, despite his willingness to work in a medically underserved area. PLF argued that the statutory scheme violated Proposition 209 on its face, because it granted preferences to students based on the color of their skin.

Judge Rudolph Loncke agreed with PLF in every respect.  His opinion, and the court's judgment, can be found here.   Importantly, the court issued a permanent prohibitory injunction against the California Health and Human Services Agency (among numerous other defendants named in the complaint), restraining them from awarding scholarships on the basis of race.  Moreover, the court struck down and severed the unconstitutional language from the Health & Safety Code.

PLF issued a press release on this important victory today.

Janet Auxier and the City of Hesperia

Author: Timothy Sandefur

Tomorrow morning, I’ll be arguing in a southern California trial court on behalf of Janet Auxier, a businesswoman in the desert community of Hesperia, about an hour east of Los Angeles. She owns a business called The Rock Yard, that sells decorative rock and gravel. She bought the property back in 2003; before she owned it, it was used as a business that stored and sold drywall. She never wanted to build anything on the property, and never applied for a building permit or anything like it.

Nevertheless, the city’s bureaucrats saw Janet Auxier as an opportunity. You see, the business sits in a desert area with no adjacent properties, and the roads are unimproved and in poor condition. The politicians would like to see the area improved, and they decided to make Auxier pay for those improvements. So they ordered her to prepare a “Site Plan” for her property—and, as part of her Site Plan, to pay to renovate three new sections of roadway, and provide sidewalks, streetlights, traffic lights, street signs and striping, a water main, a fire hydrant, landscaping...and various other improvements which would cost some $200,000.

All of this despite the fact that Auxier didn’t seek to construct anything on the property!

Back in 1987, PLF won a U.S. Supreme Court case called Nollan v. California Coastal Commission, in which the Court said that local officials can require property owners to give up certain things—to pay fees or to construct things—in exchange for building permits, so long as those things relate in some way to the effect that the person’s construction would have on the general public. In other words, if you’re going to construct something that will have an impact on local roads or on public facilities, the government can require you to make up for those impacts by providing the general public with something in exchange.

What the government can not do is exploit your building permit application as an opportunity to get you to pay for whatever the government feels like demanding from you. In the Nollan case, when a family sought a permit to construct a second story on their house, the government demanded that they give up an easement across their yard—something totally unrelated to the second story on the house. The Supreme Court called this an “out and out plan of extortion.”

Janet Auxier’s case is even more extreme, because she never sought to build anything on her property in the first place! She simply bought an existing business property and wanted to continue using it as a business property. Yet the city is forcing her to pay for $200,000 worth of local improvements in exchange for a permit to...well, a permit that doesn’t do anything at all.

Read more about the case here.

Upcoming appearances

Author: Timothy Sandefur

I’ll be speaking on Monday at Southwestern University School of Law in Los Angeles, and on Tuesday at Chapman University in Orange County (at noon) and the University of La Verne law school (at 5pm).

The Endangered Species Act and the importance of Sean Hannity

Author: Brandon Middleton

Judging by the reaction of some environmentalists, you might think that Sean Hannity's visit to the Central Valley last month was the beginning of the end. According to Patriot Daily, Hannity's appearance was simply an attempt to "scare and divide Americans." To Dan Bacher (via Aquafornia), the thousands that attended Hannity's Fox News segment were nothing more than paid-off "astroturfers," while David Fiderer similarly suggested that they were just a bunch of "teabagging flunkies."  Nevermind that the crowd actually consisted of families, small business owners, and concerned citizens, in addition to the farmers and workers that were there because there really isn't anywhere else to go at this point.

Clearly, Hannity touched a nerve. But why all the disdain for his bringing to light a crisis of which few outside the Valley are aware?

I think it has to do with the fact that Hannity had the audacity to take on the sacred cow that is the Endangered Species Act. The ESA is an incredibly powerful statute, and yet few Americans would ever question its merit because, after all, who could be against protection for endangered species?

The nation as a whole rarely gets to see the true colors of the ESA, so when someone like Sean Hannity speaks up and takes on the cause of the Central Valley, it gets labeled as a

right wing campaign to intimidate [environmental groups] from speaking up in support of environmental protection or the public good.  They may spend millions of dollars on impressive media campaigns and only tell one side of the story, but they won't stop us from exercising our First Amendment rights and from protecting the environment and fishing and farming jobs that depend on environmental laws.

And so, apparently, the American public has been overwhelmed with the message that the Endangered Species Act is inherently flawed and is fully aware of the draconian consequences of this law.

I beg to differ.  For those who live east of the Rocky Mountains, ask yourself when is the last time you heard someone challenge or oppose the Endangered Species Act. If you can remember an impressive media campaign that really led you to wonder whether the ESA is a sound law, I suspect you will be part of a very small minority.

If there is a story that has too often been neglected, it is this: the Endangered Species Act is a law that puts species ahead of people (don't take my word for it; read the Supreme Court's 1978 decision, TVA v. Hill, which declared that the ESA requires species protection "whatever the cost") and is made worse by overzealous and unnecessary federal enforcement, as in the case of the delta smelt.

That is why commentators like Sean Hannity and Michelle Malkin are so important.  Without their spotlights on the Valley and the Endangered Species Act, how else would this crisis get the national attention it deserves?

Voters evict pro-eminent domain government in Arnold, Mo.!

Author: Timothy Sandefur

Voters in Arnold, Missouri, have thrown out of office the mayor and city council members who were behind the plan to seize PLF client Homer Tourkakis’ business and give the land to a private developer.

(left to right: PLF clients Julie and Homer Tourkakis pose with PLF attorney Timothy Sandefur and Homer's father Homer Sr., in front of the Missouri Supreme Court)

You’ll remember that, almost two years ago, Dr. Tourkakis’ dentist office, which overlooked a busy highway in the St. Louis suburb, lost his fight to defend his private property. I represented him in the Missouri Supreme Court, where we argued that Missouri law did not allow smaller towns—called “third class” cities in Missouri—to take private property for these kinds of redevelopment projects. The Missouri Supreme Court, however, ruled against him. As I explain in this article, recently published by our friends at the Show Me Institute, that decision expanded the power of eminent domain to allow any city, no matter how small, to seize private homes and businesses and give the land to developers that politicians want to favor.

City officials weren’t satisfied to win their effort to steal the property. They even issued an official statement attacking Homer Tourkakis for having the temerity to defend his rights in court. You can read about that shameful episode here.

Sadly, the Missouri Supreme Court’s decision was the end of the line for Dr. Tourkakis’ property. But he’s a resilient man—one of the many really amazing people I’ve been lucky enough to get to know in this job—and he’s opened a new dentist office, that he calls Eminent Dental.

Meanwhile, voters have fought back. Knowing that their property could very well be next, they took to the ballot box, and evicted the mayor and city council members who promoted the eminent domain plan. This is similar to the case of Wright Gore, who managed to protect his family business from bureaucrats in Freeport, Texas, who had dreams of building a shopping center on his land. Voters in that city also tossed out the pro-condemnation bureaucrats. And voters in Riviera Beach, Florida, also tossed out city officials who tried to seize private property for development in direct violation of state law. (PLF represented those property owners, also.)

While it’s gratifying to see voters acting to defend themselves in this way, there’s a down side to these things, also. The reason for having constitutional protections for private property rights is that by protecting our property in the Constitution means we don’t have to spend our time and money running political campaigns to throw out abusive politicians. If you have to run a political campaign to convince bureaucrats to respect your private property, then what you have isn’t really a property right at all—it’s a permission, or a privilege, that only exists as long as politicians decide not to take it away. That’s not what the Constitution is supposed to be about.

As the U.S. Supreme Court once said,

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Homer Tourkakis can rest vindicated today, as can Wright Gore and the residents of Riviera Beach. But real protection for private property rights requires that our courts enforce our constitution’s guarantees for private property rights—and that means stopping these kinds of eminent domain abuse.

(More information on the Tourkakis case here.)

Delta smelt update: oral argument recap

Author: Brandon Middleton

Last week in Fresno, a federal district court heard oral arguments concerning issues related to the U.S. Fish and Wildlife Service's delta smelt biological opinion. One important matter heard by the court was Pacific Legal Foundation's constitutional cause of action -- given that the delta smelt is found only in California and has no commercial value, we don't believe that the federal government may use its interstate commerce power to impose any sort of delta smelt regulations.

Unfortunately, the court tentatively declined to adopt our argument.  We will have to wait for the court's final decision before determining whether an appeal to the Ninth Circuit is appropriate.

The court did offer some good news, however. It declared that the Fish and Wildlife Service failed to comply with the National Environmental Policy Act when it issued the harmful delta smelt biological opinion. Although this ruling is also tentative, it demonstrated that the court is aware of the "catastrophic effects" of the biological opinion.

We'll again have to wait for further determinations to see how exactly this ruling will help the Central Valley. But there's no question that Friday's hearing, as the Fresno Bee put it, provided "an encouraging legal win for farmers."

PLF Property Rights Forum - October 9, 2009

Please make plans to join PLF and CPR for a unique Issues Forum luncheon focusing on the protection of private property rights in Tampa, FL. Attendees will receive an update on the status of property rights at the state and federal level from respected legal and political advocates and have an opportunity to learn more about the work being done to protect and defend these important Constitutional rights.