1. The TEMPTATIONS THE ULTIMATE COLLECTION (RECORDINGS 1964-75) REMEMBER CLOCKS FALL BACK SUNDAY 3:00 AM  2:00AM Enjoy Your Extra Hour of Sleep!!

2. Hadacheck v. Sebastian DQ100: Introduction (Krypton) Effects of the Challenged Action Government action in Hadacheck: (p.101) L.A. Ordinance banning operation of brickyard in city What limits are placed on the petitioner’s use of his property? What uses of his property are still permissible? What is the harm to the petitioner?

3. Hadacheck v. Sebastian DQ100: Introduction (Krypton) Effects of the Challenged Action What is the harm to the petitioner? Incarceration! Claim re Value: Property worth $800,000 as brickworks Worth $60,000 as anything else NOTE: Courts don’t necessarily accept value claims

4. Hadacheck v. Sebastian DQ100: Introduction (Krypton) (1915) Claim re Property Value (PV): Property worth $800,000 as brickworks Worth $60,000 as anything else Claims re Loss of PV Often Short Term PV Fluctuates Significantly Over Time This was new part of LA; must have increased sharply at some point

5. From John Criste: Brickworks Site Today: West Pico & Crenshaw Blvds., L.A.

6. Hadacheck v. Sebastian DQ100: Introduction (Krypton) Fit Into Demsetz Takings Story? Activity is Brickmaking Externalities: Some dust reaches nearby residents Old Rule: Brickworks Allowed to Operate if There First Change leads to rising externalities? Creates a demand for a change in the law? After the change, people affected by the new law complain that their property rights have been taken. (= Hadacheck Litigation)

7. Hadacheck v. Sebastian Procedural Posture Hadacheck convicted for violating ordinance Files Habeas Petition w California SCt; Loses Appeal to US SCt – Claim that state law violated US Constitution – At time, automatic appeal rather than pet’n for certiorari

8. Hadacheck v. Sebastian Procedural Posture Hadacheck convicted for violating ordinance Files Habeas Petition w California SCt; Loses Appeal to US SCt Status of Allegations in Petition (pp.102-03) – p.103: “substantial traverses” – Cal SCt found otherwise on health etc. – US SCt says these findings supported by evidence

9. LOGISTICS: CLASS #28 Wednesday DF Sessions shifting earlier to 9:00 a.m. to directly follow class. I’ll Adjust Assignment Sheet for Next Week as Necessary After Today (Elective Choice) Group Assignment #3 – Assignment #1: Formatting Penalties on 12/28 – Assignment #2: Formatting Penalties on 14/28 – QUESTIONS??

10. Hadacheck v. Sebastian URANIUM: DQ101-03 Reasoning; Possible Holdings & Rules

11. Hadacheck v. Sebastian: Reasoning DQ101 (Uranium) Discrimination Claim Petitioner Says: – I was singled out; ordinance passed to stop me – Other brickworks in other districts treated differently How did the court deal with this claim? – Cal SCt found ordinance not arbitrary/discriminatory – US SCt said sufficient evidence supports that finding

12. Hadacheck v. Sebastian: Reasoning DQ101 (Uranium) Arbitrariness/Discrimination Claims Made Frequently (Hadacheck, Miller, Penn Central) Hard to Win – Must Be: Explicit Direct Attack on Someone -OR- Very Random Exercise of Govt Power – Rare Example: Eubank (cited in Miller) complete delegation of zoning decision to neighbors with no govt oversight

13. Hadacheck v. Sebastian: Reasoning DQ101 (Uranium) Arbitrariness/Discrimination Claims Made Frequently But Hard to Win Generally OK to draw rough but plausible distinctions – E.g., Between people under/over 21 years old – E.g., Between neighborhoods – E.g., Between types or size of brickworks, etc. – Unless courts have found distinction problematic under Equal Protection Clause or First Amdt (race; religion, etc.)

14. Hadacheck v. Sebastian: Reasoning DQ101 (Uranium) Arbitrariness/Discrimination Claims Made Frequently But Hard to Win Generally OK to draw rough but plausible distinctions I won’t (intentionally) make arbitrariness a serious issue on final; don’t spend time on it!!

15. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power (p.104) “[O]ne of most essential powers of government—one that is the least limitable.” (p.104) “A vested interest cannot be asserted against it because of conditions once obtaining.” – MEANS?

16. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power (p.104) “A vested interest cannot be asserted against it because of conditions once obtaining.” Compare “Coming to the Nuisance” – Defense for Private Nuisance – Not defense for Public Nuisance

17. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Reinman Little Rock bans livery stables – Related to Change from Horses to Cars – Similar Facts Alleged re Loss of Property Value – US SCt says OK under Police Power Why does Petitioner in Hadacheck say L.A. Ordinance Distinguishable?

18. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Reinman Little Rock bans livery stables; US Sct says OK Petitioner: L.A. Ordinance Distinguishable b/c Brick- works Tied to Particular Location (Clay Pits) But Court Responds: Not Impossible to Run Business Elsewhere Reliance on Reinman suggests that under Police Power, OK to severely reduce value by eliminating current use.

19. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Kelso San Francisco banned operation of rock quarry Cal. S.Ct. said unconstitutional Why Distinguishable from Hadacheck ?

20. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Kelso San Francisco banned operation of rock quarry Cal. S.Ct. said unconstitutional; distinguishes Hadacheck because: – In Kelso, if you can’t quarry, rock is valueless – In Hadacheck, clay still has value; can remove & process elsewhere

21. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between – Limit on use of land; and – Complete elimination of value US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning?

22. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning? – Explicitly reserves Q in last paragraph of opinion – Does note clay still is available & has value

23. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value Distinction raises important recurring Q: In deciding if value remains, do you look at: – All property owned by claimant (quarry + rock) – Particular property most directly effected (just rock) – Still value left in quarry, but not in rock.

24. Hadacheck v. Sebastian: Reasoning DQ102 (Uranium) Hadacheck & the Police Power: Kelso Important recurring Q: In deciding if value remains (or amount of value lost), what portion of claimant’s property do you look at? We’ll call this the “denominator” question: – What do you use as denominator in fraction showing how much property is lost (or is left)?

25. Hadacheck v. Sebastian: Holding/Rules DQ103 (Uranium) What rules or principles can you derive from Hadacheck to use in future cases? Start with very broad holding: Any exercise of police power is Constitutional if not arbitrary. Narrower Versions?

26. Hadacheck v. Sebastian: Holding/Rules DQ103 (Uranium) Exercise of police power Constitutional if not arbitrary. – Exercise of police power Constitutional if not arbitrary and related to human health & safety – Exercise of police power Constitutional if not arbitrary and related to substantial concerns re human health & safety – Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance/ harmful use of land – Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance in residential neighborhood. (Burns B2)

27. Hadacheck v. Sebastian: Holding/Rules DQ103 (Uranium) Other possible rules or principles?

28. Hadacheck v. Sebastian: Holding/Rules DQ103 (Uranium) Some possible rules or principles: Prohibiting existing use not automatically unconstitutional Large decrease in property value not automatically unconstitutional Maybe: Unconstitutional if all value removed Private interests must yield to progress & good of community (cf. Shack)

29. Hadacheck v. Sebastian: Holding/Rules DQ103 (Uranium) Apply rules/principles from Hadacheck to “Airspace Solution” Exercise of police power Constitutional if not arbitrary. – Exercise of police power Constitutional if not arbitrary and related to human health & safety – Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land – Maybe: Unconstitutional if all value removed

30. Hadacheck v. Sebastian: Holding/Rules DQ103 (Uranium) Apply Hadacheck to “Airspace Solution”? Airspace Solution OK under broader readings of reach of police power. If Kelso rule applies, raises “Denominator Question”: Do We Look At: – All of Hammonds’s Property (Tiny % Lost) – Only at Underground Reservoirs (100% Lost)