November 25, 2015 Urban Lawyer

The Way We Were: California Eminent Domain Then & Now

by Gideon Kanner

Gideon Kanner is a Professor of Law Emeritus at Loyola Law School in Los Angeles. He has been professionally active in eminent domain for some fifty years, and is a former co-editor of Nichols on Eminent Domain. This article is based on Prof. Kanner’s remarks at the ALI-CLE program on Eminent Domain and Land Valuation, San Francisco, January 2015, presented in tandem with Michael M. Berger’s similar discussion of his adventures in litigating inverse condemnation cases during the same period. See Michael M. Berger, Strong and Informed Advocacy Can Shape the Law: A Personal Journey, 4 Brigham-Kanner Prop. Rts. J. 1 (August 2015).

I have been in the eminent domain trenches as a practitioner, teacher, and commentator for some fifty years, and as I end my career it seems proper to draw on my experience and reflect on the extent of changes in the practice of eminent domain that I witnessed over the years.

I started practicing law in late 1964 in a firm of two lawyers, so that the whole firm — two lawyers, two secretaries, and the receptionist — went to Christmas lunch in one car. That is the way it was; most condemnation lawyers practiced solo or in small firms. The large downtown firms often referred their eminent domain cases to their specialized colleagues, because practicing eminent domain law was considered déclassé, and eminent domain cases often went to trial, something that was disfavored in those circles.

In California, this was the heyday of freeway construction and the beginning of major urban redevelopment, so we limited our practice to representing property owners in eminent domain cases. But, unlike most lawyers in that legal community (including my employer), I had never represented the government before going into law practice so I had much to learn, not only about the law of eminent domain, but also about its customs and practices which were different than other fields of law.1 I thought at first that in practicing eminent domain law I would be concerned with technical, if not boring, matters of valuation. Boy, was I wrong! Instead of plumbing the mysteries of the Inwood coefficient, I found myself in an atmosphere that more resembled a bare-knuckle fight than legal discourse. Many judges are former government lawyers, so unsurprisingly, courts tend to be understanding of condemnors’ positions, and tend to cut them slack, even when they misbehave. Also, as the California Supreme Court noted, there can be a close relationship between local officials and local judges.2 Working in this atmosphere, government counsel tended to develop an exaggerated idea of their own legal acumen and acted aggressively, secure in the belief that any corrective action from the bench would be either mild or nonexistent.3

My new boss put me to work as an appellate lawyer, which, in addition to writing appellate briefs and arguing in the appellate courts, required me to read a lot of trial transcripts — an activity not unlike a pathologist performing autopsies on dead bodies. This process allows you to learn what can go wrong in trial and how to properly apply all those lofty judicial phrases about fairness, justice, and indemnity.

While I was in law school (starting in the late 1950s and graduating in 1961), eminent domain was barely mentioned (if it was mentioned at all). The mass condemnations that swept the country came after the 1954 United States Supreme Court decision in Berman v. Parker,4 which approved of mass takings for urban redevelopment5 and after the enactment of the Federal Aid Highway Act of 1956,6 which led to the construction of the interstate highway network. Though I knew nothing about the nuts and bolts of eminent domain law and its practices and customs — the kind of stuff that practicing lawyers live by — in my initial reading of the law I was impressed by the many high-minded judicial expressions exhorting due process, fairness, equity, and indemnity. Since the substantive law of eminent domain is based largely on the last clause of the Fifth Amendment, I figured that the frequently uttered judicial references, to both the constitutionally-required payment of “full and perfect [monetary] equivalent” of the taken property, and to placing condemnees in the same position “pecuniarily” as if their property not been taken, had real substance. So I marched off to court full of high-minded notions that I expected to be applied to my clients’ causes. After all, hadn’t the Supreme Court stated that the law of eminent domain was an exercise in “political ethics”?7

When I pressed all that judicial “fairness and justice” rhetoric on the courts, I learned that it was not what it appeared to be and was not to be relied on in the real world. In due time, the California Supreme Court responded to my urgings by pointing out in one of its opinions that I suffered from a “fundamental misunderstanding” of eminent domain law which, in spite of much benign-sounding judicial rhetoric, did not compensate condemnees for all their demonstrable economic losses.8 In contravention of all those benign but insincere judicial platitudes about fairness and indemnity, the court dismissed them as mere “panoramic” judicial expressions of idealism that were not to be taken seriously as legal doctrine.9 Therein lay a valuable lesson: condemnees were at the time decidedly and expressly deemed personae non gratae in California courts. In short order, as I gained more knowledge of eminent domain judge-made law, I realized that three major judicial policy factors stood in the way of my clients’ success in civilizing California law of eminent domain.

First, as far as the right to take was concerned, the California Supreme Court had made it clear that a condemnor’s statutorily required findings of public necessity for a taking10 were altogether nonjusticiable, even when the resolution of public necessity had been procured through “fraud, bad faith, or abuse of discretion.”11 Other jurisdictions hold that a condemnor’s findings of necessity are not subject to judicial review unless a showing of fraud, bad faith, and abuse of discretion is made.12 But, California took the position that they were not subject to judicial review even if procured through fraud, bad faith, or abuse of discretion. And therein lay a message revealing California courts’ attitude toward condemnees’ submissions — something I would have to learn to live with.

The ostensible theory behind courts’ refusal to review public necessity findings is that, by their education and background, judges are not qualified to review — or “second guess” as they sometimes put it — the expert engineering decisions of condemning bodies.13 Being a former engineer, I first thought this sounded reasonable enough. But years later, when environmental litigation came upon the scene, I realized that in environmental review cases, judges had no trouble at all re- viewing and “second guessing” expert opinions of engineers, hydrologists, botanists, zoologists, naturalists, planners, and other experts.14 Their environmental decisions were freely examined, dissected, and, in many cases, disapproved by the same judges who professed an inability to do so in eminent domain cases. Moreover, after 1976 when the California legislature made findings of necessity justiciable and re- viewable in cases of gross abuse of discretion or bribery, California judges had no problems reviewing them.15

Second, when it came to compensation the California Supreme Court had unblushingly confessed that (in spite of the cherished tradition of judicial impartiality) it had a duty to keep condemnation awards down, because, as the justices put it, compensation that was “too liberal” would bring about “an embargo” on the construction of public works in California.16 Why compensation that would indemnify condemnees for their demonstrable economic losses caused by their eviction from their homes and businesses would be “too liberal” in eminent domain cases (even though they were often compensable in other cases) was not explained. And, of course, the court cited no evidence supporting the assertion that providing indemnity for all such demonstrable economic losses would have a seriously negative impact on construction of public works. Indeed, at roughly the same time the California Division of Highways, the state’s largest condemnor, was accumulating annual budget surpluses running into the hundreds of millions of dollars.17 Suffice it to point out here that in 1976 the legislature repealed the Symons rule18 but no “embargo” ensued, but public works construction and urban redevelopment have continued apace.

More important, rationally conceived and competently executed public works generate net public benefits — including economic benefits — which is why they are being created. This is particularly so in the case of urban redevelopment where the subject property, once in the hands of the condemnor or the ultimate redeveloper-user, is put to a higher and better use than in the presumably “blighted” condition it was in while in the hands of the condemnee-owner. Thus, at the end of the process the public winds up enjoying a net benefit. Judicial lamentations forecasting a reduction of the public coffers to a state of Carthaginian ruin if property owners were to be paid in full for all their demonstrable economic losses brought about by the taking of their property are economically unsound. For example, federal takings for Tennessee Valley Authority (TVA) dams produced enormous profits for the TVA, making it the largest electrical utility in the country.19 Major electrical energy users also reaped a windfall when they became able to buy power from the TVA for fifty percent of prevailing rates.20 Adding insult to injury, the TVA never performed promised remedial work, or made promised payment to owners of some 100,000 acres of land it took from a local county.21 Yet, the United States Supreme Court remained worried about the tension between construction of public works and payment of genuinely just compensation to people whose land was taken in the process.22 The history of eminent domain in California is a history of frequently attempted, and often achieved, under- compensation of condemnees.23

Third, in Bacich v. Board of Control the court made it explicitly clear that in formulating the decisional law of eminent domain (i.e., in deciding first impression cases) it was guided not so much by doctrinal principles as it was by making policy choices.24 Given the court’s history of lack of hospitality to condemnees’ causes, it was clear to me that those judicial policy decisions were, to say the least, unlikely to be favorable to my clients’ submissions. You can find any number of California cases intoning the Symons lament about the dreaded “embargo” on public works, but no cases in which our courts lamented the plight of displaced and undercompensated property owners; offering judicial sympathy was as good as it ever got.25 In short, to the extent I planned to influence California law for the better, as I was exhorted to do in law school, I had my work cut out for me.

In time it became clear to me that those lofty judicial phrases about fairness and indemnity were more in the nature of judicial window dressing (or, as the court preferred to put it, “panoramic” expressions of judicial idealism rather than black-letter law). The real California judicial policy tended to be harsh. Until this day, prevailing eminent domain law of compensability knowingly shortchanges condemnees,26 largely on the basis of unsubstantiated judicial fears that providing genuinely just compensation that would recompense property owners for all their demonstrable economic losses27 would be too expensive. This was in stark contrast with then-developing tort law, where the same judges were increasingly open-handed to plaintiffs even when doing so imposed economic burdens on government defendants. Thus, in Johnson v. State28 the California Supreme Court opted for a tort law rule favoring liberal compensation against the government, stressing that its policy choice would discourage government functionaries from acting illegally. But in Agins v. Tiburon,29 an inverse condemnation case, the court executed an about-face and opined that a similar policy in takings cases would inhibit government functionaries and keep them from experimenting with novel regulatory ideas. Why the court would want to favor a policy of liberal compensation cutting against the government in tort cases, but take a contrary position when it came to property owners seeking constitutionally-mandated compensation for their economic losses in eminent domain cases, the court never explained. That divergence in judicial views remains unsubstantiated.30

What makes this distinction particularly unpalatable is that in tort actions the defendant is called upon to pay the judgment to the harmed plaintiff, but receives nothing in return. In eminent domain, on the other hand, the condemnor does not actually make a net payment, because, particularly in total takings, in exchange for its money the condemnor receives a quid pro quo so that in many cases it pays nothing (except for transactional costs) — it only exchanges one asset (money) for another one (land at its judicially determined fair market value) so that its total assets remain basically unchanged. In other words, the British have it semantically right when they call eminent domain “compulsory purchase” — theoretically, the condemnee sells and the condemnor buys and (assuming a fair valuation process) neither one is worse off, they only exchange assets of equal value with one another. But in tort cases, not only do plaintiffs receive damages deemed noncompensable in eminent domain, but they also may recover damages multiple times under the collateral source rule — anathema in the law of eminent domain.31

These concerns about policies favoring the condemnor are not mere speculation on my part. In a noteworthy example, California’s Chief Justice Roger Traynor went so far as to express a fear in his dissenting opinion in Bacich v. Board of Control that judicial inclusion of severance damages in compensation for substantial impairment of access in partial takings could result in the stoppage of all freeway construction in the entire state and leave California with only the two then-existing freeways: The Arroyo Seco Parkway in Pasadena and a freeway in San Rafael in northern California.32 But as is now incontestable, this was a judicial “parade of horribles” — the California freeway network grew to be measured in the thousands of miles. When the construction of freeways in California was eventually slowed and in some cases stopped, that was a deliberate policy decision by then-Governor Jerry Brown in a misguided effort to force Californians out of their cars and into public transportation.33 But, since public transportation was largely nonexistent, this whimsical policy change only added to traffic gridlock.34 Another reason for the slowed construction was that many local populations simply rebelled and protested construction of freeways in their communities (San Francisco and South Pasadena being foremost examples).35

In addition to the unwarranted hostility to condemnees at the appellate level, things could get pretty sticky in trial courts as well. There, as I experienced a number of times, judges tended to display impatience with condemnees’ claims, particularly if they raised novel issues or deviated from the ordinary pedestrian question of fair market value of the taken property gauged by comparable sales. Also, discovery was frequently abused by condemnors. In the 1960s, they often responded to discovery orders by providing condemnees with doctored appraisal reports — known in the business as “bare bones” reports that ostensibly complied with discovery orders but in reality withheld information that would then be sprung by condemnors’ counsel and appraisers as a surprise in trial, after the condemnees rested their case-in-chief.36 It was not until 1968 that a California appellate court (following the lead of the United States Court of Appeals for the Ninth Circuit in United States v. Meyer37) stressed the importance of discovery in valuation cases, and held that this practice was improper and prejudicial.38 Still, in spite of the Morris holding, the practice persisted for several years until the California appellate courts made it clear that they meant business, and the practice eventually ceased.39

Discovery provided other means of harassing condemnees. In Swartzman v. Superior Court a California court of appeal held, without any doctrinal basis, that a condemnee could not engage in routine, statutory discovery until after the parties had completed their appraisals and exchanged their respective appraisal reports (which was in the nature of closing the barn door after the horse was gone, since discovery can be necessary for the completion of a proper appraisal report).40 Swartzman gave the hapless condemnees a scant fifty-nine days to hire an appraiser, prepare a proper appraisal report that met court-imposed standards, exchange it with the condemnor, and be ready for trial;41 all that had to be done without the benefit of reasonable time to conduct discovery of their own, and despite the fact that, in those days, condemnees had the burden of proof on valuation. Ironically, this holding was based on the court’s notion of “mutuality.”42

Los Angeles City Attorney, Roger Arnebergh, disclosed in an article published by The Southwestern Legal Foundation in 196843 that condemnors’ practice of exchanging incomplete or “bare bones” appraisal reports was common — although in fairness, to the best of my knowledge, it was not followed by Arnebergh’s office.

Another gimmick used by condemnors was to engage in a practice known as “lowballing” or “sandbagging,” which is still used occasionally. Using a quick-take procedure, the condemnor would obtain an ex parte order for immediate possession of the subject property (obtained by a deposit based on an affidavit of its appraiser), thus displacing the owners before trial, before their actual just compensation could be finally determined. In the usual case, the displaced owners had no alternative but to withdraw the deposit, and use it to obtain replacement property. Then, when the case went to valuation trial, the condemnor would bring in a ringer: a new appraiser who opined to a lower value, thereby putting the owners in jeopardy of having to repay some of the money they had withdrawn and spent on replacement property, and then using that possibility in an effort to extort a favorable settlement.44

I also discovered in short order that egregious courtroom misconduct of condemnors’ counsel was a recurring problem that nonetheless was rarely, if ever, interdicted by trial courts or even the Courts of Appeal.45 The most egregious case of misconduct in an eminent domain case known to me occurred in Florida. In United States v. 320 Acres of Land, condemnor’s counsel arranged with a compliant United States district judge to have judgment against scores of unrepresented condemnees entered without trial and without notice.46

Perhaps more important than these blatantly unfair trial court rulings was the judicial attitude underlying them. There were many times when I found myself treated by California judges with visible impatience toward my submissions, or even toward me personally for having the temerity to demand justice for my clients. While the judicial atmosphere in California improved during the time when Chief Justice Donald Wright presided over the California Supreme Court (1970 - 1977), things changed again after Chief Justice Wright was replaced by Rose Elizabeth Bird whose tenure as Chief Justice (1977 - 1987) was marred by a high degree of controversy over judicial partisanship (notably, but not exclusively, in death penalty cases) that eventually led to a severe popular backlash and to California voters’ denying her an extension of her term (along with two other Justices) in the 1986 election.47

Why was the law of eminent domain so hostile to property owners? My impression is that it was largely the result of judges being willing to compromise impartiality in favor of a vague feeling of solidarity with the government, of which they are a part, and a sense of duty to defend the public coffers from condemnees.48 It was also an extension of judges’ attitudes of the nineteenth century when railroad takings were rife with abuses of condemnees, usually unsophisticated farmers. To readers who are interested in that period, I recommend pertinent parts of John Sherman’s memoirs49 which describe the conduct of often corrupt nineteenth century railroads whose abusive practices were well documented. These practices typically included misrepresentations of the economic benefits that railroads would bring to the area, and using such conjectured general benefits as an offset to market value of the taken land so that after the offsets condemnees received little or nothing.50 These companies enjoyed a period of laissez faire in the courts which, believing railroad construction to be important to the country’s development, tended to accommodate them by imposing rules of limited compensation, some of which survive until this day. How the conceded importance of railroads or other public works justified the shortchanging of property owners in the paths of those projects has never been explained. Why not exact the full cost of public works from their beneficiaries rather than the victims? The United States has hardly been an impoverished country whose ability to construct public works was marginal, and even during the Great Depression the country constructed major public works that are used and admired to this day: the TVA and Hoover Dam being noteworthy examples.

Also, early railroad takings of land were largely in the form of easements across strips of vacant, rural farmland so they resulted in comparatively low levels of severance damages.51 They did, however, cause damage to farmers’ remaining land when sparks from wood- burning locomotives set haystacks and structures on fire. But the most important distinction between then and now has been that the scope of nineteenth century railroad rights-of-way takings were nothing like modern, large-scale takings for urban freeways and redevelopment projects. These projects tear down large swaths of cities, displacing hundreds of thousands of people in the process, and inflict serious, widespread economic and social harm.52

In fairness to the courts, this evolution is not solely attributable to judicial partiality. When it comes to doctrinal changes, courts tend to follow precedent, and even when social conditions render the precedent outdated they need prodding from counsel. But, condemnees’ lawyers, at least when I came on the scene in the mid-1960s, were remiss in failing to press the ethical aspects of their clients’ causes on the legislature and the courts. They rarely sought rectification of the unfairness of eminent domain compensability law, or demanded that the courts infuse their empty “fairness and justice” rhetoric with some substance. On the other hand, counsel’s reluctance to challenge these practices was understandable since trial judges were loath to provide relief in such situations and tended to respond with hostility when urged to take corrective action. The judges usually hid behind precedent, which, paradoxically, they deemed subject to change in tort law in order to keep in tune with social changes.53

The California eminent domain culture, as recently as the 1950s, (on both sides of the bench) tended to accept without effective complaint the empty judicial platitudes about “fairness and justice” that the courts offered while actually shortchanging condemnees. Interestingly, in those days scholarly commentary tended to favor the plight of displaced and undercompensated condemnees, which was in keeping with the traditional liberal sympathy for the underdog.54 Today, after academia took a sharp turn into the ideological left,55 academic commentators can be relied on to produce scholarship that is critical of any developments in the law that tend to improve condemnees’ position.56 The farcical aspect of this situation is that while generally critical of “big corporations,” these commentators studiously ignore the fact that the use of the power of eminent domain often confers enormous, widespread, financial benefits on affluent populations and on some of the country’s largest household-name corporations.57 At times, these benefits have included outright financial subsidies running into the millions of dollars paid to highly successful companies.58

Perhaps the seeming indifference of the condemnation bar to the plight of their clients when I entered the practice of eminent domain law in the mid-1960s was due to the fact that most — in fact, almost all — condemnation attorneys in private practice in California were former government lawyers. While I largely found them to be accomplished technicians who knew “the law” such as it was, they lacked the intense motivation that we often see exhibited by lawyers in private practice who seek changes in the law on behalf of their clients in the realms of criminal law (notably in death penalty cases), and in non-property related civil rights and abortion cases, as well as in race and gender relations controversies. Changes in tort law that were successfully sought by the rising plaintiffs’ bar are now history. Judicial hospitality (or the lack thereof ) to adjudication of certain kinds of cases but not others is not unusual. In the context of land-use law, it is common to see federal courts freely adjudicate controversies in all sorts of cases involving constitutional issues arising from land-use regulations, notably First Amendment issues in cases involving “adult entertainment” venues. Yet, at the same time federal judges tend to disparage similar adjudications in cases in which constitutionally-based claims of regulatory takings arise, purporting to be disinclined to function as “zoning muftis.”59

It seems obvious, at least to me, that property owners who have axiomatically done nothing wrong but who are dragged into court as defendants in eminent domain cases because their property winds up in the path of a public project should receive fair treatment, or at the very least minimal due process of law that is afforded to other litigants. But they often do not.60 Why they should be subject to incomplete compensation and unfair procedures (that are deemed intolerable in other areas of the law61), and why economic losses inflicted on them are deemed to be “noncompensable” even when they are demonstrable and readily calculable has likewise not been explained.62 Shouldn’t they be entitled to basic fairness rather than the “thinly disguised contempt” they tend to face?

Eventually, things changed in California because of several factors. First, in 1952 the California legislature had had enough of wholesale mistreatment of people and directed the California Law Revision Commission to study and revise the law of eminent domain in order to make it fairer.63 This was a major bipartisan recognition of the unsatisfactory state of California eminent domain law that courts created but failed to rectify as times and conditions changed. But as it turned out, the Commission dragged its feet for twenty-four years before it came up with a recommendation for a revised Eminent Domain Law. The legislature adopted it in 1976,64 but only after rejecting the Commission’s first cut, and requiring the Commission to revise its initial recommendations in order to liberalize the notice and hearing rights of condemnees during the adoption process of condemnation resolutions.

The revised California Eminent Domain Law made some overdue changes,65 such as providing for compensability of lost business goodwill,66 deleting prior law that placed the burden of proof on the condemnee,67 providing for recovery of litigation expenses (including attorneys and appraisers fees) where condemnors’ pretrial offers are unreasonably low,68 and repealing the wretched Symons rule.69

I served as a consultant on eminent domain and inverse condemnation for the Commission at that time, so I got to attend all Commission deliberations and all legislative committee hearings. I found it interesting that I was appointed as a consultant only after the Commissioners realized that, though they had the benefit of input from scores of government lawyers who attended every meeting, I was the only person who faithfully appeared at their public deliberations and offered a condemnees’ perspective for their consideration. This role enabled me to explain, in depth, the extent to which the law of eminent domain disfavored the legitimate interests of condemnees. But, the good news was that I also got to witness the negative reactions of Commissioners, and later legislators, confronting unfair treatment of condemnees. I found it fascinating that a significant amount of the Commission’s deliberations was concerned with drafting statutory changes so as to provide minimal opportunities for judges to misinterpret them.

Also, under prod of the federal Uniform Relocation Assistance Act, California adopted several statutory changes providing for relocation benefits.70 This legislation provided limited compensation for moving expenses and for some previously noncompensable items, such as some business losses (limited to $10,000).71 To a large extent this re- location legislation was a “paper tiger” because, though it purported to establish benign policies and added some new benefits to displaced property owners, it forbade property owners to sue to enforce their rights under the Act. Instead, it relegated them to an administrative process that was subject to judicial review.72 And of course, negative judicial attitudes did not abruptly change overnight.

One other factor that was also indirectly influential in prodding the California legal establishment into liberalizing its eminent domain law was the effect of congressional hearings in the 1960s, which preceded the congressional drafting of the Uniform Relocation Assistance Act73 as well as studies leading to the promulgation of the ill-fated Uniform Eminent Domain Act (which, after its drafting by the Uniform Code Commissioners, was unsuccessful when it came to being adopted by the states). These hearings provided a grim expose´ of abuses of condemnees at that time, revealing that offers were routinely made below the condemnors’ own appraisals.74

California trial courts found nothing wrong with these ongoing abuses of condemnees. The law’s application and implementation was thus a far cry from the “fairness and equity” judicial platitudes found in court opinions. However, the California culture of eminent domain and the state’s black-letter law — as opposed to regulatory inverse condemnation — did undergo improvement. By degrees, judges began to realize that condemnees were not outright pariahs, but had some rights that would be considered and enforced by the California Supreme Court. I believe this was due to the fact that in eminent domain cases (as opposed to inverse condemnation), liability was conceded and courtroom controversies centered on “how much” rather than on “whether.”

These changes in decisional laws and in judicial attitudes came about largely because of the influence of the late California Supreme Court Associate Justice, Stanley Mosk.75 In a short period of time Justice Mosk authored over a half dozen opinions in eminent domain cases in which I represented the condemnees. They included Southern California Edison, Co. v. Bourgerie76 (overruling prior law and making covenants running with the land compensable), County of San Diego v. Miller77 (overruling prior law and making unexercised options compensable), and culminated with Klopping v. City of Whittier78 (overruling prior law and establishing property owners’ right to sue for just compensation in cases where condemnors’ pre-condemnation delays or other unreasonable conduct impacted negatively on the value of the subject properties).79 Then there was City of San Diego v. Neumann80 (first impression case holding that in determining unity of use in partial takings, appraisers could consider unity of highest and best use, not necessarily unity of present use). In that case Justice Mosk actually wrote a long, fiery dissent favoring the government. During the preceding decade, however, Mosk had authored several forceful and acerbic dissents on behalf of condemnees, such as in People ex rel. Department of Public Works v. Superior Court (Rodoni)81 (where he wondered if the court’s majority opinion was ushering in the reign of Big Brother ahead of schedule), in White v. County of San Diego82 (where he accused the county of picking the condemnees’ pockets), and in Belair v. Riverside County Flood Control District83 (where he argued that denial of inverse condemnation liability for physical damage inflicted on land owners was “archaic” when a levee failed at only thirty percent of its design capacity).

Some California courts of appeal were also influenced by the new judicial attitude. In People v. Lynbar, Inc.84 the court rejected the so-called “undivided fee rule,” an absurd judicial concoction under which appraisers are forced to assume, in defiance of reality, that in cases where there are divided interests in the subject property (e.g., landlords and tenants) the subject property is to be valued as if these parties did not exist, and all interests in it were held by one party. Eventually, California Supreme Court Justice Otto Kaus also rejected this practice in the ad valorem tax valuation context because its application would lead to an “absurdity.”85 Also notable was Milstein v. Security Pacific National Bank,86 in which the court of appeal held that the familiar “good faith and fair dealing” principle of contract law also applied in eminent domain cases, so that a mortgage holder could enforce the provision in the mortgage giving him all the proceeds of a partial condemnation action, only to the extent his security interest was impaired.

Not only did those cases improve California’s black-letter law as far as condemnees were concerned, but they also helped to effect a change in the attitude of the judiciary. They brought the law of eminent domain out of the dark ages of the nineteenth century, civilized it, and made it clear to judges that improved judicial treatment of condemnees was called for.

I had the good fortune of being the condemnees’ counsel on appeal in most of the cases discussed above, so I am in a position to appreciate what they accomplished in terms of effecting not only a wholesome change in black-letter law but also positive changes in judicial attitudes.87 But, a word of caution is in order for those who would continue this effort. As I said above, this is not an endeavor for the faint of heart or short of wind. It took decades of hard work and an in-depth study of the field. But, it was worth it. Our society rightly sets great importance in secure and enforceable property rights because, in Professor James Ely’s memorable phrasing, they are the “guardian of all other rights.”88 And contrary to political rhetoric, reliably enforceable property rights are of great importance to the lower middle-class and even to the poor, because they protect what little these people have from an overreaching government. The rich take care of their own interests no matter who is in power, particularly in cases of unwholesome public-private alliances. So it behooves us as good citizens to strive to improve the law’s operation in ways that respect property ownership at all levels of wealth, as well as other civil rights. American property owners, and indeed the judicial system, deserve better than a legal regime that rests on judicial repetition of insincere platitudes in place of enforceable legal principles that people who seek vindication of their constitutional rights can rely on.

But, things were and still are quite different in California law of regulatory takings. Much has been written on that subject, but the best, even if the most acerbic, assessment of it was provided by Richard Babcock, late dean of the nation’s land-use bar, who wrote, “What can one say about California courts other than one has to be a madman to challenge a government regulation in that bizarre jurisdiction.”89 As far as regulatory inverse condemnation is concerned, this situation still prevails in California courts and I see little or no progress on the near horizon, unless and until the United States Supreme Court starts taking Californians’ rights in land seriously and applies the same scrutiny to California state cases as it has recently displayed in taking cases that came to it from federal courts. That, however, is a battle for another day, that given my age, I will have to leave to others.

Today, the bench is largely composed of former government lawyers90 (mostly former prosecutors) who often lack both the in-depth knowledge of eminent domain law and an understanding of the plight of condemnees that was to be found in the output of the “Wright court” in the late 1960s and early 1970s. To the extent the work of the California Law Revision Commission inspired judicial reconsideration of prior law, it too effected changes that eliminated some cruel and irrational injustices that had reflected poorly on the California legal system. Today, practicing eminent domain law in California remains something less than beer and skittles,91 but on balance our eminent domain law has been improved during my time at the bar. To that extent our judiciary deserves credit along with the legislature.

My conclusion is that for all the injustices and anomalies of eminent domain, the law has improved over the years, and I — along with Michael M. Berger who concentrated on inverse condemnation law alongside me as my partner, co-counsel, and co-author — am grateful for having been able to play a role in helping to achieve a measure of progress in California law that ultimately reached the level of the United States Supreme Court.92

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  1. For example, in Los Angeles County, which had a large volume of eminent domain cases, we had a separate, specialized Superior Court Department staffed by a judge and later a court commissioner that handled all eminent domain pretrial matters; we had two pretrial conferences, rather than one, and we did little discovery because we were required to exchange court-approved appraisal reports with our opponents before trial, which, as a local practitioner put it, served as “poor man’s discovery.” That also meant that all the pretrial matters in our cases were decided by the same judge. Also, in valuation trials the defendant-owner put on valuation evidence first and, until 1976, bore the burden of proof.
  2. See Garrett v. Superior Court, 520 P.2d 968, 970 (Cal. 1974) (en banc).
  3. See, e.g., Martinez v. State, 189 Cal. Rptr.3d 325 (Cal. Ct. App. 2015) (chastising government trial counsel’s persistent misconduct, and referring her name to the State Bar of California for disciplinary action). Note, however, that even in this egregious case in which, among other things, government trial counsel brazenly violated in limine rulings and intimated to the jury that the injured plaintiff was a Nazi, the trial court took no corrective action when its rulings were consistently flouted.
  4. 348 U.S. 26 (1954).
  5. Id. at 34-36. If you have an interest in the background of the Berman case—the granddaddy of modern right-to-take eminent domain cases—I recommend Amy Lavine, Urban Renewal and the Story of Berman v. Parker, 42 URB. LAW. 423 (2010). It should also be noted that the New York Times reported recently that the Berman redevelopment project in Southwest Washington DC has been a “crushing failure,” and is being completely redone. Eugene L. Meyer, Contrite Over Failed Urban Renewal, Washington D.C. Refreshes a Waterfront, N.Y. TIMES (Nov. 18, 2014), http://www.nytimes.com/2014/11/19/realestate/commercial/washington-dc-refreshes-a-waterfront.html?_r=1.
  6. Federal-Aid Highway Act of 1956, 70 Stat. 374 (1956).
  7. United States v. Cors, 337 U.S. 325, 332 (1949).
  8. See Cmty. Redevelopment Agency v. Abrams, 543 P.2d 905 (Cal. 1975) (en banc). The court held that an elderly, infirm owner of a pharmacy serving the inner city neighborhood of Watts for a quarter century was not entitled to compensation for his lost business goodwill when his premises (which could not be relocated) were taken, his established customers were scattered to the four winds by a redevelopment project which took the entire neighborhood, and, under California regulations, his stock of perfectly good prescription drugs had to be destroyed. For a fuller exploration of the discontinuity between noble-sounding judicial rhetoric in eminent domain litigation and conceded courtroom reality, see Gideon Kanner, “Fairness and Equity,” or Judicial Bait-And-Switch, 4 ALB. GOV’T. L. REV. 38 (2011). See also D. Michael Risinger, Direct Damages: The Lost Key to Constitutional Just Compensation When Business Premises are Condemned, 15 SETON HALL L. REV. 483 (1985). For commentary on the Abrams case, see RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 53-54 (Harvard Univ. Press 1985).
  9. Abrams, 543 P.2d at 922 n.9.
  10. CAL. CIV. PROC. CODE § 1241(b) (1976), repealed and replaced by, CAL. CIV. PROC. CODE § 1245.330 (2015) (establishing that necessity must be shown and approved by the appropriate entity prior to a taking).
  11. People ex rel Dep’t of Pub. Works v. Chevalier, 340 P.2d 598, 603 (Cal. 1959) (en banc).
  12. E.g., Winkel v. Miller, 205 P.3d 688, 693 (Kan. 2009).
  13. For an extensive judicial discussion of the justification for such limited judicial review of necessity in eminent domain cases, see City of Chicago v. St. John’s United Church, 935 N.E.2d 1158, 1171 (Ill. App. Ct. 2010).
  14. See, e.g., PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 732 (Ind. Ct. App. 2004).
  15. See Redevelopment Agency v. Norm’s Slauson, 219 Cal. Rptr. 365 (Cal. Ct. App. 1985) (denying right to take on grounds of lack of public necessity).
  16. People ex rel. Dep’t of Pub. Works v. Symons, 357 P.2d 451, 455 (Cal. 1960).
  17. See Gideon Kanner, Condemnation Blight: Just How Just is Just Compensation, 48NOTRE DAME L. REV. 765, 786 n.101 (1973) [hereinafter Condemnation Blight] for a collection of budgetary statistics of the California Division of Highways (now California Department of Transportation, or CalTrans) during the late 1960s.
  18. See CAL. CIV. PROC. CODE § 1263.420(b) (2015). See discussion infra note 69 (explaining the Symons rule).
  19. TENNESSEE VALLEY AUTHORITY, About TVA, https://www.tva.com/About-TVA (last visited Oct. 8, 2015).
  20. See JANE JACOBS, CITIES AND THE WEALTH OF NATIONS: PRINCIPLES OF ECONOMIC LIFE 116 (1984).
  21. Felicity Beringer, Decades Later, Simmering Debate on a Road Heats Up, N.Y. TIMES, Feb.21, 2006, at A12.
  22. U.S. ex rel. TVA v. Powelson, 319 U.S. 266, 280 (1943). The Court referred to a “conflict” between the public’s interest in public works and the principle of indemnity to the condemnees. Id. But, there is no such conflict. First, there is no “indemnity” in eminent domain, condemnees are routinely undercompensated. Second, the public interest is served both economically and civically when the Constitution is followed and actual just compensation is provided in takings of private property for worthwhile public works. Third, in many cases the value of the taken land increases when it is put to a higher and better use.
  23. For a collection of major eminent domain cases in which compensation awards and settlement agreements vastly exceeded government offers, see Gideon Kanner, “[Un]equal Justice Under Law”: The Invidiously Disparate Treatment of American Property Owners in Taking Cases, 40 LOY. L.A. L. REV. 1065, 1146-48 (2007) [hereinafter [Un]equal Justice]. For collected references to other wasteful state land acquisitions, see id. at 1112 n.174.
  24. 144 P.2d 818, 823 (Cal. 1943). See Robert Kratovil & Frank J. Harrison, Jr., Eminent Domain—Policy and Concept, 42 CAL. L. REV. 596, 599 (1954) (“These policy factors, although at times discussed by the courts, are usually left undisclosed or concealed behind a veil of concept.”).
  25. See Cnty. of L.A. v. Ortiz, 490 P.2d 1142, 1147 n.8 (Cal. 1971). The court held that condemnees, who at the time bore the burden of proof, were not entitled to recover appraisal fees even though the cost of litigation consumed most of their home equities, leaving them without their properties and without the constitutionally promised “just compensation.” Id. Doing so, said the court, would be a legislative, not a judicial, prerogative. Id. However, the absence of a pertinent controlling statute did not keep the same court from awarding litigation expenses in Serrano v. Priest, 569 P.2d 1303 (Cal. 1977) to an evidently more “politically correct” litigant who successfully challenged California’s system of funding public schools through property taxes.
  26. United States v. Norwood, Inc., 602 F.3d 830, 834 (7th Cir. 2010) ( Judge Posner stated that “just compensation is less than full compensation.”), see Thomas W. Merrill, Incomplete Compensation for Takings, 11 N.Y.U. ENVTL. L. J. 110, 111 (2002).
  27. Much current academic commentary on eminent domain contains assertions that some damages in eminent domain are of a personal, idiosyncratic nature and therefore are nontransferable and noncompensable. But, in my half-century of practice in this field I never had any clients who demanded sentimental value for their property. I limit my critical assessment of eminent domain law to denial of compensation for economic, not emotional, losses that (a) are ascertainable by conventional valuation methods, and (b) are readily paid in other cases—business losses being a prime example of this disparity. Thus, in Johnson v. State, 447 P.2d 352, 358 (Cal. 1968), a tort case, the California Supreme Court discussed at length, and ultimately rejected, the applicability of the so-called “dampen the ardor” policy disfavoring government (and government functionaries’) liability, and concluded that “the danger that public employees will be insufficiently zealous in their official duties does not serve as a basis for immunity in California.” Nonetheless, in the field of eminent domain, California case law is replete with judicially voiced apprehensions of fiscal doom if condemnees were to be actually indemnified for all their economic losses caused by the taking of their land. Id.
  28. Id.
  29. 598 P.2d 25, 30 (Cal. 1979), abrogated by First English Evangelical Church v. Cnty. of L.A., 482 U.S. 304 (1987).
  30. I know of only one case (from New Mexico) in which an appellate court acknowledged the prevailing disparity between the measure of compensation for the same kinds of losses in tort and eminent domain cases, but refused to treat both alike. See Primetime Hospitality, Inc. v. City of Albuquerque, 168 P.3d 1087, 1092, 1097 (N.M. Ct. App. 2007).
  31. Helfend v. S. Cal. Rapid Transit Dist., 465 P.2d 61, 69 (Cal. 1970) (explaining that the reason courts allow multiple recoveries under the collateral source rule is to enable successful tort plaintiffs to pay their lawyers out of their damages, but still retain the full amount of their judicial awards—and then some. “The collateral source rule partially serves to compensate for the attorney’s share and does not actually render ‘double recovery’ for the plaintiff.”). Compare Cnty. of L.A., 490 P.2d at 1147, in which the same court asserted that by being denied litigation expenses condemnees are no worse off than plaintiffs in tort cases who have to sue for their compensation.
  32. 144 P.2d 818, 839 (Cal. 1943). Note, however, that when a defendant’s lawyer makes similar arguments in a tort case, advancing the defendant’s impecunious condition as a reason for awarding low damages, such is judicially deemed reversible misconduct of counsel. Hoffman v. Brandt, 421 P.2d 425, 429 (Cal. 1966).
  33. See Tom McClintock, Self-Inflicted Gridlock, CAL. POLITICAL REV., May/June 2004, at 13, 13-14.
  34. See id. Note that the author of that article was Lieutenant Governor of California and was therefore in a position to have an insight into such matters.
  35. See [Un]equal Justice, supra note 23, at 1118-19 n.213.
  36. See Regents of Univ. of Cal. v. Morris, 72 Cal. Rptr. 406, 413-16 (Cal. Ct. App. 1968).
  37. 398 F.2d 66, 72-73 (9th Cir. 1968).
  38. Morris, supra note 36, at 645.
  39. Note, however, that as recently as 1984, sixteen years after Morris, condemnors were still trying to play that game. City of Fresno v. Harrison, 201 Cal. Rptr. 219, 300-01 (Cal. Ct. App. 1984).
  40. 41 Cal. Rptr. 721, 725-26 (Cal. Ct. App. 1964).
  41. Id. at 724-25.
  42. For the origins of the Los Angeles pretrial system requiring an exchange of appraisal reports by the parties, see Gideon Kanner, Sic Transit Gloria: The Rise and Fall of Mutuality of Discovery in California Eminent Domain Litigation, 6 LOY. L.A. L. REV. 447 (1973).
  43. Roger Arnebergh, Trial Tactics from the Standpoint of the Condemnor, in PROCEEDINGS OF THE EIGHTH INSTITUTE ON EMINENT DOMAIN 1, 6 (Sw. Legal Found. ed., 1968).
  44. The Virginia Supreme Court recently considered this practice, and held it impermissible. Ramsey v. Comm’r. of Highways, 770 S.E.2d 487 (Va. 2015). But unlike Virginia, California courts never found anything wrong with this practice.
  45. See, e.g., Garden Grove Sch. Dist. v. Hendler, 403 P.2d 721 (Cal. 1965) (condemnor’s counsel engaged in extensive misconduct by making unfounded, outside-the-record personal charges against condemnees, their counsel, and their appraisers); City of L.A. v. Decker, 132 Cal. Rptr. 188 (Cal. Ct. App. 1977) (condemnor’s counsel falsely told the jury that there was a surplus of parking in the area when in fact there was a parking shortage as formally found by the City’s own environmental impact statement). See generally, Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 LOY. L.A. L. REV. 81 (1991).
  46. 605 F.2d 762, 779 n.22 (5th Cir. 1979); see also City of Passaic v. Shennett, 915 A.2d 1092 (N.J. Super. Ct. App. Div. 2007) (failure to give condemnee notice of condemnation action); Schroeder v. City of N.Y., 371 U.S. 208, 210 (1962) (giving “notice” by posting paper flyers on trees in remote parts of a rural county).
  47. Maura Dolan, Rose Bird’s Quest for Obscurity: Voted Out in 1986 After a Firestorm of Controversy, the Former Chief Justice of California is Portrayed by Some as a Struggling Recluse. Friends Say She Does Not See Herself as a Tragic Figure., N.Y. TIMES (Nov. 15, 1995), http://articles.latimes.com/1995-11-15/news/mn-3456_1_rose-bird.
  48. See People v. Superior Court, 436 P.2d 342 (Cal. 1968). The court allowed an excess taking of over fifty acres of land, where the project called for a half-acre to be used for a freeway right of way. The majority accepted the condemnor’s absurd argument that this would save the state money. In fact, as demonstrated later by an investigation of the State Little Hoover Commission, the state’s excess land property program was a waste of effort and money that left the state with $100 million in land holdings it could neither use nor sell. COMMISSION ON CALIFORNIA STATE GOVERNMENT AND ECONOMY, PRELIMINARY FINDINGS OF THE SUBCOMMITTEE ON CALIFORNIA DIVISION OF HIGHWAYS EXCESS RIGHT OF WAY (1972); see also William Endicott, Handling of State Freeway Land Hit, L.A. TIMES, Jan. 12, 1972, at A1 (“Report Charges Mismanagement of $100 Million”).
  49. JOHN SHERMAN, RECOLLECTIONS OF FORTY YEARS IN THE HOUSE, SENATE AND CABINET (Greenwood Press, Vol. 1 1895) (describing land condemnation practices in the pre-Civil War period); see also James W. Ely, Jr., The Historical Context of Just Compensation, THE PRACTICAL REAL ESTATE LAWYER, May 2014, at 9 (2014); Harry Scheiber, Private Property, “Takings,” and The Rights of the Public in American Law 1790–1860 (Oct. 14, 1976) (on file with the author); Harry Scheiber, The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts, in PERSPECTIVES IN AMERICAN HISTORY 327 (Bernard Bailyn & Donald Fleming eds., 1971); William C. Bryant, Eminent Domain—Its Use and Misuse, 39 U. CINC L. REV. 259 (1970).
  50. See SHERMAN, supra note 49.
  51. See Comment, Eminent Domain Valuations in an Age of Redevelopment: Incidental Losses, 67 YALE L. J. 61, 65 (1957) [hereinafter Eminent Domain Valuations].
  52. Sonya Bekoff Molho & Gideon Kanner, Urban Renewal: Laissez-Faire for the Poor, Welfare for the Rich, 8 PAC. L. J. 627, 640-647 (1977).
  53. Kriegler v. Eichler Homes, Inc., 74 Cal. Rptr. 749, 752 (Cal. Ct. App. 1969).
  54. E.g., Charles Martin Sevilla, Asphalt Through the Model Cities: A Study of Highways and the Urban Poor, 49URB. LAW. 297 (1971-1972); Michael R. Klein, Eminent Domain: Judicial Response to the Human Disruption, 43 URB. LAW. 1, 34 (1969) (characterizing judicial concerns over overcompensation as “fearful guesstimates”).
  55. From the 1950s until at least the ‘90s, academia frequently criticized the courts for their anti-condemnee judgments and often called for judicial and legislative reforms. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (Harvard Univ. Press 1985) (arguing that our conception of takings is wrong and just compensation is not occuring); MARTIN ANDERSON, FEDERAL BULLDOZER (1967) (providing a statistical case against the use of eminent domain for urban renewal); Curtis Berger & Patrick Rohan, The Nassau County Study: An Empirical Look into the Practices of Condemnation, 67 COLUM. L. REV. 430 (1967) (The authors conducted an empirical study of Nassau County, New York’s condemnation practices and determined that gross undercompensation was common practice.); Michael V. McIntire, “Necessity” in Condemnation Cases—Who Speaks for the People?, 22 HASTINGS L.J. 561 (1971) (asserting that a longer, more thoughtful, and more objective analysis needs to be undergone before taking private land for public purposes); Allison Dunham, Griggs v. Allegheny County Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 SUP. CT. REV. 63 (1962) (urging the legislature to act in order to remedy the injustices created by the judiciary in regards to just compensation); Eminent Domain Valuations, supra note 51 (criticizing the present system of compensation in eminent domain); D. Michael Risinger, Direct Damages: The Lost Key to Constitutional Just Compensation when Business Premises are Involved, 15 SETON HALL L. REV. 483 (1985) (demonstrating the inadequacy of “just compensation”).
  56. See, e.g., Abraham Bell & Gideon Parchomovsky, The Uselessness of Public Use, 106 COLUM. L. REV. 1412 (2006) (arguing that the criticisms of the Supreme Court decision in Kelo v. City of New London, 545 U.S. 469 (2005) are ill conceived and misguided); John Echeverria, The Triumph of Justice Stevens and the Principle of Generality, 7 VT. J. ENVTL. L. 22 (2006) (praising the leadership of Justice Stevens in recent Supreme Court takings decisions favoring condemnors): Steve Calandrillo, Eminent Domain Economics: Should “Just Compensation” be Abolished, and Would “Takings Insurance” Work Instead?, 64 OHIO ST. L.J. 451 (2003) (advocating for the abolishment of state provided just compensation and instead implementing a takings insurance system).
  57. For a prime example, see the notorious Poletown case in which a divided Michigan Supreme Court approved the taking of some 200 acres of land in Detroit, displacing a sound community in order to raze it and convey its site to General Motors for a new Cadillac plant. Poletown Neighborhood Council v. Detroit, 304 N.W.2d 455 (Mich. 1981).
  58. See Jim Dwyer, Companies We Keep and Pay For, N.Y. TIMES (May 16, 2010), http://www.nytimes.com/2010/05/16/nyregion/16about.html. The article lists large numbers of household-name companies that are the recipients of huge monetary subsidies from the City of New York. For example, “hundreds of millions of dollars in public money [has been given] to help the Yankees and the Mets build stadiums.” Id.
  59. Steven Eagle, Penn Central and Its Reluctant Muftis, 66 BAYLOR L. REV. 1 (2004). For a summary of the disparate treatment metered out by federal courts to land owners raising regulatory taking issues, see Michael M. Berger & Gideon Kanner, Shell Game! You Can’t Get There From Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 URB. LAW. 671, 690-692 (2004).
  60. See United States v. Dow, 357 U.S. 17 (1958) (explaining that the government may take property inter alia by physical seizure unaccompanied by due process); Stringer v. United States, 471 F.2d 381, 384 (5th Cir. 1973) (stating in haec verba that the government may simply seize private property without any process, due or otherwise, and say to its [former] owner, “Sue me.”).
  61. Compare the mandatory due process regime judicially extended to convicted drug dealers when their property becomes incontestably subject to forfeiture laws. See United States v. Good Real Property, 510 U.S. 43 (1993).
  62. As Circuit Judge Richard Posner put it recently, “The fact [is] that ‘just compensation’ tends systematically to undercompensate the owners of property taken by eminent domain.” United States v. Norwood, 602 F.3d 830, 834 (7th Cir. 2010). The Wall Street Journal has characterized the treatment of condemnees editorially as “kleptocracy.” Editorial, Eminent Thievery, WALL ST. J., Jan. 17, 2001, at A26.
  63. I served as a consultant to the California Law Revision Commission from the late 1960s on; during that time the new, revised law of eminent domain was being drafted and finalized. See CALIFORNIA LAW REVISION COMMISSION, THE EMINENT DOMAIN LAW 1009-1056 (Dec. 1975).
  64. See CAL. CIV. PROC. CODE §§ 1230.010–1274.17 (2015).
  65. John D. Miller, Recent Developments in the Eminent Domain Field, 40 APPRAISAL J. 286, 287-88 (1972) (describing the California Law Revision Commission’s work on eminent domain law reform by a Commission member).
  66. CAL. CIV. PROC. CODE § 1263.510 (2015).
  67. § 1260.210(b).
  68. § 1250.410.
  69. § 1263.420(b). The repealed Symons rule provided that even concededly suffered and readily calculable severance damages would not be paid unless the public project—in the case of highways, the actual travelled lanes—was built on land taken from the severance-damages-seeking property owner; takings for the right of way were not deemed sufficient to trigger an award of severance damages, even though the takings’ impact on the remainder’s utility and value was the same in both cases. Perversely, when the shoe was on the other foot and courts were determining special benefits (whereby to reduce “just compensation”), the public project’s physical location did not matter. As a colleague put it, this was a case of “Heads, I win. Tails, you lose.”
  70. 42 U.S.C. §§ 4601-4655 (2015).
  71. Id.
  72. Id.
  73. See Uniform Relocation Assistance and Land Acquisition Policy: Hearings on H.R. 386 and related bills Before the H. Comm. on Pub. Works, 90th Cong. (1968).
  74. See, e.g., Berger & Rohan, supra note 55, at 450 (revealing “searing” mistreatment of condemnees); see also, Eminent Domain Valuations, supra note 51.
  75. See Gideon Kanner, Justice Stanley Mosk, Cool Guy, GIDEON’S TRUMPET (Mar. 28, 2013), http://gideonstrumpet.info/?p=5084
  76. 507 P.2d 964 (Cal. 1973) (en banc).
  77. 532 P.2d 139 (Cal. 1975) (en banc).
  78. 500 P.2d 1345 (Cal. 1972) (en banc).
  79. See Condemnation Blight, supra note 17.
  80. 863 P.2d 725 (Cal. 1993) (en banc).
  81. 436 P.2d 342 (Cal. 1968).
  82. 608 P.2d 728 (Cal. 1980).
  83. 764 P.2d 1070 (Cal. 1988).
  84. 62 Cal. Rptr. 320, 325-26 (Cal. Ct. App. 1967).
  85. Clayton v. Cnty. of L.A., 102 Cal. Rptr. 687, 691 n.6 (Cal. Ct. App. 1972). For a fuller discussion of that valuation problem, see Gideon Kanner, And Now, For a Word From the Sponsor: People v. Lynbar, Inc. Revisited, 5 U.S.F.L. REV. 39 (1970).
  86. 103 Cal. Rptr. 16, 18-19 (Cal. Ct. App. 1972).
  87. I should mention that not all those attitude changes on the part of judges were positive. Some judges took umbrage at being so frequently reversed or overruled by the California Supreme Court, and vented their displeasure at this turn of events. Still, as all practicing lawyers know, a supreme court victory is the hardest coin in the realm of lawyering, so I endured such occasional displays of judicial displeasure in the knowledge that I had advanced the state of the law and provided a service to my clients. As I was taught in law school, one does not become a lawyer in order to win popularity contests.
  88. JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT 26 (Oxford Univ. ed., 1992).
  89. RICHARD F. BABCOCK & CHARLES L. SIEMON, THE ZONING GAME REVISITED 257 (1985).
  90. In a recent State of the Judiciary statement, the Chief Justice of the United States Supreme Court complained—and rightly so—that these days only forty percent of new federal judges come from private practice. WILLIAM H. REHNQUIST, 2001 YEAREND REPORT ON THE FEDERAL JUDICIARY, SUPREME COURT OF THE UNITED STATES ( Jan. 1, 2002), available at http://www.supremecourt.gov/publicinfo/year-end/2001year-endreport.aspx. More recently, Chief Justice Roberts echoed these concerns in his 2007 State of the Judiciary statement. See Linda Greenhouse, Chief Justice Advocates Higher Pay for the Judiciary, N.Y. TIMES ( Jan. 1, 2007), http://www.nytimes.com/2007/01/01/us/01scotus.html. My reading of California legal newspapers confirms that irrespective of which party is in power, the great majority of newly appointed state judges are former government counsel, with former private practitioners few and far between.
  91. See Anthony Parrille, The Challenges of Inverse Condemnation Litigation, 23 L.A. LAWYER 30 (2000).
  92. Michael M. Berger has written about that chapter in our lives (Berger, supra note *), but as for me, I suggest that to gain an insight into the effect of our collaboration over the years, and its impact on the law, you compare Agins v. City of Tiburon, 447 U.S. 255 (1980) (holding against my clients on lack-of-ripeness grounds), with First English Evangelical Lutheran Church v. Cnty. of L.A., 482 U.S. 304 (1987) (vindicating my position and holding (in Mike’s clients’ favor) on the grounds that the California Supreme Court’s substantive holding in Agins was simply wrong). In turn, the United States Supreme Court’s Agins decision was later overruled in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005).