California Eminent Domain Report

Today, the California Supreme Court heard oral arguments in the Property Reserve v. Superior Court case.  Today was also the day the Court began showing live webcasts of oral arguments online, so I was able to not only hear the arguments but see the Justices and attorneys in action.  If the Court provides a link to the oral arguments, I will include that in another post.

My initial reaction from the oral arguments - all of the Justices were very engaged in the arguments and the Court hammered both sides pretty soundly.  If I had to pick a winner, I think they went easier on the State.

The Court did seem concerned about activities taking place on properties under the Right of Entry statutes and whether the activities constituted a taking but it also seemed like the State was able to waylay some of those concerns by saying the Right of Entry statutes, as drafted, protect property owners and offer them avenues to obtain compensation for the entry and a jury trial on the amount of damages, if they so choose.

The Court seemed to like the notion that the statutes already provide an expedited eminent domain proceeding because the Justices spent considerable time grappling with the idea of denying owners their rights under Article I, Section 19 of the California Constitution and finding how the Right of Entry statutes are reflective of constitutional rights.  The Chief Justice and Justice Liu asked the million dollar question: What is at stake if agencies cannot get onto properties to complete their precondemnation investigations -- would public projects stop, would they be endlessly delayed, would they cost way more to build, and if we take away this course of action, what happens?

The Petitioners argued that they are not challenging the constitutionality of the Right of Entry statutes, but are merely saying that if an interest in property is obtained by an agency using the statutes, then it is a taking deserving of all of the trappings of an eminent domain case.  The Court seemed skeptical that such a line could be drawn.  At one point, I thought one of the Justices was going to call them on splitting hairs...

The Justices tried to force petitioners to define the line between what constitutes a taking versus a non-compensable entry, but petitioners dodged those traps, for the most part.  The glaring omission in the argument is that there appeared to be no middle ground - if the Court strikes down the Right of Entry statutes (which petitioners say they aren't requesting), and at the same time, we can't expect agencies to go through double-condemnation (one for testing and one for the actual project) to get a project off the ground, what is an agency to do?  The petitioners want the Court to require agencies to acquire an investigatory easement before proceeding with testing but isn't that the exact double-condemnation situation that everyone recognizes creates the problem?

It was definitely interesting, for me, anyway. I can't say with any certainty how the Court will rule on the matter, but based on the oral arguments, the Court is definitely wrestling with the issues.  We should hopefully see a decision within the next 90 days!

As a side note, unfortunately the City of Perris v. Stamper oral arguments were continued and will not take place on May 5.  The hearing is being rescheduled for the late May calendar.  We will let you know the date when it is set by the Court.