Brigham-Kanner Property Rights Conference Makes Its International Debut in Beijing

The 8th Annual Brigham Kanner Property Rights Conference was held at Tsinghua University School of Law in Beijing, China, October 14-15, 2011.

The Eighth Annual Brigham-Kanner Property Rights Conference completed its international debut on October 15, 2011 in China. Legal scholars, jurists, and practitioners from the United States and China converged at Tsinghua University in Beijing to discuss and debate the evolution of property rights on a global scale. The Owners’ Counsel of America is pleased that our Member-attorneys were invited to participate in this prestigious event.

Owners’ Counsel Member, Joseph T. Waldo of Waldo & Lyle, P.C. in Norfolk, Virginia, was on the Conference Planning Committee and moderated three Conference panels. It was his vision to bring the Brigham-Kanner Property Rights Conference, usually held at William & Mary Law School in Williamsburg, Virginia, to an international stage: “The Brigham-Kanner Property Rights Conference is our nation’s only conference that focuses on the interplay of our civil rights to our property rights. This topic is becoming increasingly important worldwide. Because China is in the process of developing new property rights protections, it was the ideal venue for this year’s conference.” One of the major successes of the Conference, he contends, was that it “placed global emphasis on the important role property rights play in our societies and in each person’s individual liberty.”


During the two-day conference, as Chinese scholars discussed the impacts of China’s new, formal recognition of private property rights, Robert Thomas, Owners’ Counsel Hawaii Member, blogged live from Beijing. Thomas, a Director at Damon Key Leong Kupchak Hastert in Honolulu, commented, “…this is a propitious time to have this conference, and have it here.” Following the first panels, he wrote of his surprise that the Chinese panelists were so frank: “My impression was that it was not acceptable to make express criticism of the government, and even that there might be repercussions for doing so. But apparently, the ability of academics, at least, to say what they think, some of them quite critical of existing policies or actions, would be recognizable to western faculty schooled in the tradition of academic independence.”

Panelist and Owners’ Counsel Florida Member, Andrew Brigham of Brigham Moore, LLP in Jacksonville, remarked, “While there continues to exist significant contrasts in the structure of government between the U.S. and China, private property ownership appears to be a cornerstone in China’s recent reforms.” Brigham continued, “China, however, will have to build for itself a paradigm for property rights that is truly Chinese given this time and place in the country’s emergence as a global leader.”

Other Owners’ Counsel eminent domain attorneys who participate in the Beijing Conference included Alan Ackerman (Michigan), James Thompson (Maryland), Leslie Fields (Colorado), and James Burling of the Pacific Legal Foundation. Mr. Ackerman shared the stage with China’s most revered panelist, Ping Jiang, the former president of China’s University of Political Science and Law in a panel that focused upon Justice O’Connor’s property rights decisions. Mr. Thompson and Ms. Fields brought the eminent domain lawyer’s point of view to light in a roundtable discussion entitled “How Practitioners Shape the Law;” while, Mr. Burling discussed the relationship between property rights and the environment.

The 2011 Brigham-Kanner Prize was awarded to retired Supreme Court Justice Sandra Day O’Connor. In light of China’s new and increasing protections of property rights, Justice O’Connor was a fitting choice for this year’s Prize. As China begins to acknowledge and emphasize the importance of property rights, Justice O’Connor may be seen as an exemplar: it is possible for views and opinions on property rights to improve with time. Although Justice O’Connor was unable to be present in China, she graciously accepted the award in absentia with videotaped remarks.



Justice O'connor discussed the United States’ history of property rights protections, China’s emerging laws, and her own property rights decisions. Justice O’Connor concluded her remarks with the hope “that we will all continue to develop mechanisms for preserving rights in property for the benefit of all.”

Conference proceedings and related articles will be included in the inaugural Brigham-Kanner Property Rights Conference Journal, the first volume of which will be published in 2012 by The Property Rights Project of William & Mary Law School. The 2011 Beijing Conference was an exciting and informative conference, heralded by all as a success. The Owners’ Counsel of America enjoyed the pleasure of participating in it and we look forward to attending the 2012 Conference.

Eminent Domain documentary "Battle For Brooklyn" on the "shortlist" for the Oscars

The Academy of Motion Picture Arts and Sciences ("The Academy") announced last week that Battle For Brooklyn has made the "shortlist" of 15 documentary films that will advance in the voting process to be considered for an Academy Award.  This film has certainly come far and received rave reviews since we first viewed it in February at its debut screening during the ALI-ABA Eminent Domain and Land Valuation Litigation course in Coral Gables, FL.

As we wrote this summer before the film opened in New York, Battle for Brooklyn captures a community's seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. It is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community, literally. Read more about Battle For Brooklyn on this blog here, an movie review by fellow blogger Robert Thomas here and his interview with one of the filmmakers here.  Watch the trailer below.



Upcoming screenings: (Check battleforbrooklyn.com/screenings for a more up to date list of dates.)

November 22 - Chapel Hill, NC
 6pm at Varsity Theater


January 13, 14, 15, 2012 - Washington, DC
 Dome Theater, Artisphere in Arlington, VA

Friday, January 13th - 8:00 PM
Saturday, January 14th - Matinee with panel discussion TBD - 5:00 PM
Saturday, January 14th - 8:00 PM
Sunday, January 15th - 6:00 PM
All screenings will be followed by Q&A with directors Michael Galinsky and Suki Hawley. A screening of the short film, “The Tragedy of Urban Renewal” by dir. Jim Epstein will precede each screening.

Mississippi voters approve amendment restricting eminent domain

On Tuesday with 73% of Mississippians voting in favor of property rights and limiting the use of eminent domain for private development, Initiative 31 was approved. Since the infamous 2005 U.S. Supreme Court ruling in Kelo v. City of New London, 43 states have passed legislation creating stronger protections for private property owners against the power, and possible abuse, of eminent domain.  Mississippi has now become the 44th state to reject the use of eminent domain for private development.

Initiative 31 amends the Mississippi Constitution to prohibit the state and local governments from taking private property by eminent domain and transferring it to another private party or entity.  The restriction extends for a decade allowing agencies that condemn private property for a public use to transfer or sell it to another owner only after having owned and used the property for a minimum of 10 years. This restriction discourages the transfer of private property from one landowner to another private party for the purpose of “economic development”.

For more on Initiative 31 see our previous post here.  We also recommend reading yesterday's posts by Gideon's Trumpet here and IJ's Castle Coalition here.

Mississippi Ballot Initiative No. 31 on Eminent Domain: "motherhood and apple pie"

Voters in Mississippi are at the polls today to elect a new governor and legislature as well as decide upon a number of measures.  Among them is Initiative 31, a citizen's initiative for a constitutional amendment to prohibit the state and local governments from using the power of eminent domain to condemn private property and transfer it to another private individual or entity for a period of 10 years after acquisition.  Initiative 31 has garnered much media attention and Campaign Insider has called this a "ballot battle to watch."

Since Kelo, Mississippi remains one of only 7 states that has not yet enacted statutory provisions to protect its citizens from private to private property transfers via eminent domain.  Mississippians and their legislators have tried twice in the past to pass eminent domain legislation.  However, outgoing Gov. Haley Barbour (R) vetoed both pieces of legislation. (See our previous posts here, here and here.)

It's no secret that Gov. Barbour opposes Initiate 31.  Barbour has argued that it will diminish the state’s ability to attract private investment and create jobs.  Mississippi’s gubernatorial candidates disagree and have supported Initiative 31.  The Mississippi Farm Bureau and the more than 100,000 voters who signed the petition to put Initiative 31 on the ballot also disagree with Barbour.  Randy Knight, a Mississippi dairy farmer and president of the state Farm Bureau Federation, has argued "Other states have adopted a strong eminent domain law. They're still getting jobs. They're still getting economic development. They're still getting businesses to come set up in their state." (See Fox News report 11/3/11 here.) Further, Initiative 31 would not apply to all eminent domain actions allowing for exemptions for levee facilities, roads, bridges, ports, airports, common carriers, drainage facilities and utilities, or true public uses.
 
Fox News also quoted Leland Speed, the director of Mississippi's Development Authority, "This is a very emotional topic," he said. "It's motherhood and apple pie."

Actually Mr. Speed, it's a Constitutional guarantee and a ballot battle we're definitely watching.

St. Louis property owner retains his 1st Amendment right to protest eminent domain abuse

Property Owner, Jim Roos, pictured here in front of his eminent domain protest "sign."

Photo by The Institute for Justice

Last week the 8th Circuit Court of Appeals upheld a property owner's First Amendment right to protest the abusive eminent domain policies of the City of St. Louis. The case concerns a St. Louis property owner, Jim Roods, who opposed the city’s definition of blight and condemnation of his housing agency's private property for private redevelopment. Roos expressed his opposition by painting a conspicuous and rather large mural in protest on the side of one of the agency's buildings facing the interstate. The mural reads: "End Eminent Domain Abuse."

Of course, the city was not a fan of the mural. As such, Roos was required to either remove it or obtain a permit for it. However, when he attempted to secure the proper permit, the city refused to issue one to him pursuant to the zoning code. Roos appealed to the Board of Adjustment and was again denied. Roos's attorneys at the Institute for Justice filed a suit in state court against the City of St. Louis claiming federal civil rights violations. The city removed the case to federal court.

In March 2010, the federal district court judge ruled that the mural is not art, violates the city's sign code and must be removed. The city's sign ordinance requires signage to be no larger than 30 square feet in this zoning district. Mr. Roos's anti-eminent domain mural is reported to be more than 360 square feet. (See our previous post here.) The district court also concluded that the city's sign ordinance was “content neutral,” despite "content-based" exceptions for "national, state, religious, fraternal, professional and civic symbols or crests". The Eighth Circuit reversed, finding that the ordinance is not "content neutral" and therefore must be reviewed with strict judicial scrutiny: “[T]he zoning code’s definition of ‘sign’ is impermissibly content-based because ‘the message conveyed determines whether the speech is subject to the restriction.’”

"This is a victory not just for Jim Roos' right to protest eminent domain abuse, but for the right of every American to stand up to government whenever it abuses its power," says Michael Bindas, an attorney with the Institute for Justice, which represented Roos. "This case shows how interconnected our constitutional rights are—how vibrant free speech protections are essential to the preservation of our other rights and liberties, including property rights."

For more about the case see:

• the Institute for Justice here
• inversecondemnation.com here
• Reason.com here
• the Volokh Conspiracy here

New Cert Petition filed with SCOTUS: Post Kelo when is condemnation pretextual?

On July 14, 2011, our colleagues* at Damon Key Leong Kupchak Hastert in Honolulu, Hawaii filed a cert petition (see below) asking the U.S. Supreme Court to review the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (Haw. 2010). In this case the County of Hawaii sought to seize by eminent domain the private property of the Coupe and Richards families for the purpose of constructing a 5.5-mile highway to bypass part of the congested Mamalahoa Highway. Hawaii's highest court upheld the taking on The Island of Hawaii (aka "the Big Island") holding that the asserted public use (a highway bypass) was not a pretext for a primarily private benefit received by the developer of a luxury residential project, the Hokulia project.

[*Disclosure: OCA Hawaii Member, Robert Thomas, is one of the Damon Key attorneys who has represented the Coupe and Richards Family in this litigation and in this request to the Supreme Court.]

Because he said it so well and because of his personal familiarity with this case, we will borrow what Robert has written on his inversecondemnation.com blog here outlining the opportunity that this petition for certiorari offers with respect to clarification of pretext in eminent domain.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that "unusual" exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan; (2) the factual context reveals suspect motivations such as a contractual restraint on sovereign powers; (3) the taking benefits a particular private party selected beforehand; or (4) private benefits outweigh incidental public benefits.

Governments and property owners will benefit from the establishment of clear standards, because condemning authorities will understand that when they utilize eminent domain in a neutral, transparent, and well-considered process, the result will be entitled to judicial deference, and property owners will be assured that in the absence of these indicators of pretext, the need to surrender their property for the greater good is genuine. While any single indicator is enough to trigger reversal of the presumption of validity, this case has all four.

The Question Presented in the petition follows:

The Hawaii Supreme Court held that a one-to-one transfer of property to a private developer by eminent domain, instituted outside the confines of an integrated development plan, and while the condemnor was threatened by breach of a contract in which it promised to condemn the land for the developer, was not subject to a presumption of invalidity or even heightened scrutiny under the Fifth Amendment's Public Use Clause. The court concluded that even when "a contract that delegates a county’s eminent domain powers raises well founded concerns that a private purpose is afoot" under Kelo v. City of New London, 545 U.S. 469 (2005), it is the property owner’s burden to prove by "clear and palpable" evidence the asserted reason for taking property is "manifestly wrong."

Since Kelo, the lower courts have been unable to settle on consistent or clear standards for when the public purpose supporting an exercise of eminent domain is pretextual, or in what situations the "risk of undetected impermissible favoritism" is such that a presumption of invalidity or a heightened standard of review is warranted. Id. at 493 (Kennedy, J., concurring). The question presented is:

What category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?

Additional background relating to this case is available on inversecondemnation.com here and here. See also Hawaii Legal News and the Star Bulletin.


Petition for a Writ of Certiorari, C&J Coupe Family Ltd Pship v County of Hawaii (filed 7/14/2011)

A personal invitation from Dean Douglas to attend the Brigham-Kanner Property Rights Conference in Beijing

What: The 8th Annual Brigham-Kanner Property Rights Conference
Where: Tsinghua University School of Law, Beijing, China
When: October 14 & 15, 2011
Who: Property rights legal scholars, students, eminent domain/condemnation and property rights lawyers, judges, related professionals and anyone interested in the advancement of property rights and comparative legal theories surrounding real property rights
Keynote Speaker: Justice Sandra Day O'Connor

Visit the conference website for additional details or see our previous posts here and here.