Today we learned Judge Audlin dismissed the regulatory taking case Shands v City of Marathon on a Statute of Limitations defense. Shands involves an offshore island that was the subject of confiscatory regulations enacted in 1986. The City's counsel knows better. In City of Key West v. Berg (1995), Mr. Burke took Shands' position and prevailed.
To prevent judicial invalidation of its 1986 regulations, the County adopted an "escape clause" and called it a "beneficial use determination." A landowner cannot sue for a taking until he or she applies for a BUD and is unsuccessful. This "ripeness" process was established by the Supreme Court in Williamson County v. Hamilton Bank (1985), and Shands Plaintiffs requested a BUD, got turned down, and sued Marathon for Just Compensation.
We have two cases pending against Marathon that are in the same posture as Shands; Beyer and McCole. I bet they will be summarily dismissed, as they are before the same judge. I suspect he will dismiss at least two other pending "taking" cases before 2007 ends. Six taking cases thrown out in the judge's first year on the bench! I will also bet that at least five of the six dismissals will be reversed; very possibly all six. There appears to be a bias here that would reasonably cause most "taking" plaintiffs to move for his disqualification.
[Shortened 10/17/07 by JSM.]
Friday, October 12, 2007
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2 comments:
How does the judicial disqualification get started?
Litigation against government is not for the faint of heart. The County and the State have a lot at stake and are pouring millions of dollars into defending our clients' claims. In the long run they will lose; but they hope to wear down our clients before that happens. All of our clients have seen the market value of their property go to zero (or whatever government wants to pay), and they have nothing to lose by hanging in there.
We are not earning millions of dollars in fees, and would not be putting in thousands of hours on these cases, if we did not believe in our clients' cases. At least three of our clients passed away in the past year. I expect others will live out their lives before their case ends. But our clients can leave their estate to their grandchildren. The question you should have asked is: how long will their lawyers live?
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