PROPERTY D SLIDES NATIONAL BATTERY DAY CELBRATING MY PARTNER IN CRIME

Thursday Feb 18 Music to Accompany Kelo: Jason Mraz, Mr. A-Z (2005) Lunch Today: Meet on NOON Campa * Connor * Iles Jude * San Roman Vaccaro * Widdowson Reminder: Badlands Critique of Rev. Prob. 2B Due 10 a.m.

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards State Public Use Standards Poletown Test: Review Problem 2B Hatchcock Test: Review Problem 2C Hatchcock Test: Review Problem 2C Kelo & Beyond

Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) VH is a run-down neighborhood in city of Kirkland. Almost all the buildings in VH contain functioning businesses and residences BUT highest rate of prostitution and drug-related crime in the city. City would like to open a drug rehab center in VH, but cannot afford to do so. Between DF Sessions, David runs chain of pvt drug rehab centers. D tried unsuccessfully for several years to buy land in VH to open a center.

Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) D proposed that city use EmDom to buy an appropriate lot in VH: Then resell lot to D (at fair market value) D would use lot to open one of his rehab centers. He suggested six possible sites (twelve square city blocks each). The city agreed to the proposal; chose the suggested site … furthest from any school and that had the highest crime rate. Discuss Application of Hatchcock Criteria to These Facts

Critique of Review Problem 2C (Everglades) See General Bottom of Assignment Sheet Paragraphs 1 & 2: Address Arguments Favoring the Landowners (involving any of the three “Situations”) Paragraphs 3 & 4: Address Arguments Favoring the City (involving any of the three “Situations”) Paragraph 5: Your Choice Written Submission Due by Saturday Noon me if Qs

Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Public Necessity: Type of Project is important/vital & only way to do project is through EmDom?

Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Accountability: Private entity remains responsible to public for its use?

Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Selection: Particular parcel(s) chosen based on facts of independent public significance?

Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) Review Problem 2C Acadia (Plaintiffs/Landowners) v. Badlands (Defendant/City) 1.Public Necessity: Type of Project is important/vital & only way to do project is through Eminent Domain? 2.Accountability: Private entity remains responsible to public for its use 3.Selection: Particular parcel(s) chosen based on facts of independent public significance. Strongest “Situation” for City? [I’ll Leave for You]

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Kelo Dissents & Merrill Kelo Dissents & Merrill Review Problems Setting Up Rev. Problem 2G for Tuesday Rev. Problem 2D

OLYMPIC: DQs EEL GLACIER

Kelo Dissents: DQ2.15 (Olympic) OCR Dissent joined by RNQ SCA THS Justice O’Connor wrote the majority opinion in Midkiff. In her dissent in Kelo, how does she distinguish Midkiff from Kelo?

Kelo Dissents: DQ2.15 (Olympic) OCR Dissent joined by RNQ SCA THS Justice O’Connor wrote the majority opinion in Midkiff. How does she distinguish that case in her dissent in Kelo? Govt Purpose/ Public Benefit… Was Purchase Itself in Midkiff (& Berman). Was Resulting Private Ownership in Kelo. Convincing? NOTE: OCR Test implicitly is Hatchcock Situation #3

Kelo Dissents: DQ2.15 (Olympic) OCR Dissent joined by RNQ SCA THS (P183) If economic development counts as a public use, “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory ….” How would majority likely respond?

Kelo Dissents: DQ2.16 (Olympic) THS Dissent Dissenting alone (pretty common) Rests on his sense of original understanding (probably correct but see delegation examples in Note 7 (P189)) Would adopt rule: Gov’t Must Own -OR- Public Must Have Right to Use Probably includes privately owned railroads, public utilities, stadiums (See OCR Dissent, which THS joined)

Kelo Dissents: DQ2.16 (Olympic) THS Dissent Would adopt rule : Govt Must Own -OR- Public Must Have A Right to Use Rests on his sense of original understanding Similar to Wash. State’s approach in City of Seattle Strengths of that approach? Weaknesses of that approach?

Kelo Dissents: DQ2.16 (Olympic) Why does Justice Thomas believe that the interests of poorer citizens and people of color are particularly threatened by the majority’s approach? Convincing?

Kelo Dissents: DQ2.16 (Olympic) (P184) THS refers to Carolene Products FN4 “discrete & insular minorities” Suggests less deference appropriate Not clear how he would apply in practice To get Heightened Scrutiny because of these concerns, normally would need very strong evidence of discriminatory purpose by govt (hard to do generally & even more so where big economic benefit ) Qs on Kelo Dissents?

Other Approaches: DQ2.17 (Olympic) Professor Merrill’s Approach (Note 5 P188) Use of EmDom Must Be Necessary to Accomplish Project Hatchcock Situation #1, Applied to ALL EmDom (Not Just Cases Where Private Party Gets Land) Might be met in cases like Kelo where you need to assemble a very large parcel Fact Q in case like Poletown BUT Mich SCt thinks not met either in Poletown or in Hatchcock itself (1300 acres)

Other Approaches: DQ2.17 (Olympic) Professor Merrill’s Approach (Note 5 P196) Use of EmDom Must Be Necessary to Accomplish Project What are some strengths and weakness of this approach compared to those used by the cases in this chapter?

Review Problem 2G Tomorrow On test, you could choose any two plausible rules to defend in your two opinions. For clarity Friday, we’ll look do the following (be ready for both sides): ACADIA: Pros & Cons of Hatchcock Public Necessity Test ACADIA: Pros & Cons of Hatchcock Public Necessity Test BADLANDS: Pros & Cons of Hatchcock AccountabilityTest BADLANDS: Pros & Cons of Hatchcock AccountabilityTest EVERGLADES: Pros & Cons of Hatchcock Selection Test EVERGLADES: Pros & Cons of Hatchcock Selection Test SEQUOIA: Pros & Cons of Pure Rational Basis Generally SEQUOIA: Pros & Cons of Pure Rational Basis Generally

Review Problem 2G Tomorrow Keep in Mind: Cases treat government as equivalent to public for purposes of Public Use tests Cases do not consider extent of harm to owners whose land will be purchased or value to public of uses lost You can use facts of particular case as an example to illustrate a particular argument for or against a rule. Useful to try to address arguments raised by “lower courts.” Qs on Review Problem 2G?

Ch. 2: EmDom & Public Use What I Expect From You (1) Know & Can Apply Tests Federal Rational Basis Kelo MAJ/CCR Factors re Possible Higher Scrutiny Possible State Tests Poletown Tests (still used by other states) Hatchcock (Third Situation = O’Connor Dissent in Kelo) Use by Public Thomas Dissent in Kelo (Use by Public relevant in Washington & elsewhere)

Ch. 2: EmDom & Public Use What I Expect From You (2) Understand Relation betw State & Federal Tests Federal Tests Always Apply; Usually Easy to Meet If Lawyering Q: Might Check relevant Circuit/District for Interpretations of Kelo State Law Also Governs State & Local Govts Many States Have Stricter Tests If Lawyering Q, Check for Applicable Law (3) Arguments re Which Test is Best (Opinion/Dissent) Could ask you to choose a rule for a State (like Rev Prob 2F) Could ask you to revisit federal test (like Rev Prob 2G)

Past, Present & Future: Property Rights & Time

Time Three Ways Chapter 4: Estates & Future Interests Division of Interests in Land by Time  Some Leftover Ideas from Early Renaissance England Chapter 6: Landlord-Tenant Law Rules re Simple Division of Rights into Present and Future Most Common Current Version of Divisions from Chapter 4 Chapter 3: Adverse Possession Operation of Statute of Limitations to Trespass Claims  Property Rights Lost & Gained Through Passage of Time

CHAPTER 3: ADVERSE POSSESSION THE PREMIERE EVENT

Adverse Possession: Overview Connections to Rest of Course Type of Involuntary Transfer of Property Rights Like Shack & JMB & Eminent Domain Loss of Property Rights for Policy Reasons About Relationship of Property & Time Like Chapters 4 and 6 Here: Losing Property Rights Via Passage of Time

Adverse Possession: Overview Nature/Essence of Adverse Possession (AP) Arises from Statutes of Limitations (SoL) Length of State Statutes Varies (5-30 years) If don’t act to stop trespasser quickly enough, can forfeit right to do so Operates differently than other SoL Running of SoL Doesn’t Completely Bar Recovery for Original Owner (OO) Must meet detailed requirements to invoke SoL Generally Disfavored (e.g., NY & Fla need Clear & Convincing Evid.) BUT Result if OO loses is legal transfer of title

Adverse Possession: Overview Nature/Essence of Adverse Possession (AP) Can Get Title by “Possessing” Otherwise Unused Land for Length of Statute of Limitations “Possession” v. Ownership: AP Doctrine largely about how much & what kind of possession is necessary to transfer ownership.) Several Elements: Requirements beyond passage of time basically to ensure that Adverse Possessor (APor) sufficiently possessing Original Owner (OO) not really possessing

Adverse Possession: Overview Lawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element “Elements” v. “Factors” Because each Element is required, assume not redundant AP Elements: Mostly Similar from State to State Often Mix of Statutory Language & Common Law Development

Adverse Possession: Overview Lawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element Attys Use Cases Initially to Determine Meaning of Elements Read Multiple Relevant Cases to Flesh Out Each Individual Element Generally Don’t Examine Whole Cases Until Late in Process We’ll Approach Materials in This Unit This Way You’ll read through all cases initially to get sense of (by next Monday) In class, we’ll work on one element at a time, referencing all 5 cases as relevant (one panel per element).