Latest 4 Cases This Week: Fenn v. City of Truth or Consequences (10th Cir.), Breland v. City of Fairhope (Ala.), San Joaquin Regional Transit ...

American Law’s Worst Moment—2020

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains why the police murder of George Floyd was the worst moment of 2020 in American law. Professor Sarat proposes that we remember the event and that date—May 25—as “infamous,” a word reserved for rare and atrocious events like the bombing of Pearl Harbor, in an attempt to capture the brutality and inhumanity of the act.

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Fenn v. City of Truth or Consequences

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2201

Opinion Date: December 29, 2020

Judge: Timothy M. Tymkovich

Areas of Law: Civil Procedure, Civil Rights, Government & Administrative Law, Zoning, Planning & Land Use

The City of Truth or Consequences converted a community center for senior citizens into a visitor center operated by Spaceport America. A local resident, Ron Fenn, unhappy with this change, publicly protested his opposition over a period of several years. Some of his protests were inside the building and included offensive behavior and unauthorized uses of the facility. Several tenants in the building, including Spaceport Director Daniel Hicks, complained to local law enforcement about Fenn’s behavior and presence at the Center. He was issued three no trespass notices pursuant to New Mexico law over that time. Finally, in June 2017, Fenn was arrested and charged with trespass. The charges were later dismissed. Fenn sued, asserting: (1) a 42 U.S.C. 1983 civil rights claim for First Amendment retaliation against Hicks, arresting officer Michael Apodaca, and Police Chief Lee Alirez; (2) a section 1983 claim for malicious prosecution against Apodaca and Alirez; (3) claims against the City for supervisory liability and under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); (4) a section 1983 claim for supervisory liability against Alirez; and (5) a state law claim for malicious abuse of process against Apodaca and Alirez. The district court rejected Fenn’s claims on qualified immunity grounds, and the Tenth Circuit affirmed: the individual defendants were entitled to qualified immunity because no constitutional violation occurred. "And, in the absence of a constitutional violation by Apodaca or Alirez, there is no basis for the Monell and supervisory claims. Finally, the district court correctly dismissed Fenn’s state law claim for malicious abuse of process."

Breland v. City of Fairhope

Court: Supreme Court of Alabama

Docket: 1180492

Opinion Date: December 31, 2020

Judge: Mitchell

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

Charles K. Breland, Jr., purchased land in Baldwin County, Alabama to build a housing subdivision. The subdivision he planned to construct required filling about 10.5 acres of wetlands, which the City of Fairhope and Baldwin County opposed. Breland and Breland Corporation (collectively, Breland) sued Fairhope, claiming that they had a vested right to fill the wetlands, that Fairhope's ordinances could not prevent them from filling the wetlands, that Fairhope had acted negligently regarding Breland's application for a land- disturbance permit, and that Breland's criminal citation for beginning work without a permit should have been expunged. The trial court rejected their claims following a nonjury trial. Breland appealed the trial court's judgment. The Alabama Supreme Court concluded Breland did not establish Fairhope's ordinances were invalid or that it had obtained a vested right to fill the wetlands on the property. Further, the Breland parties' argument that Breland's citation should have been expunged was premised on the notion that he was not obligated to comply with Fairhope's ordinances in existence at the time of his citation. Because the Supreme Court rejected that premise, the Breland parties' request for expungement was moot. And because this matter was not reversed or remanded for further proceedings and there was no other apparent remedy at this stage, the Breland parties' claim that the trial court erred by allowing The Battles Wharf/Point Clear Protective Association to intervene was moot.

San Joaquin Regional Transit Dist. v. Superior Court

Court: California Courts of Appeal

Docket: C084755(Third Appellate District)

Opinion Date: December 28, 2020

Judge: Vance W. Raye

Areas of Law: Business Law, Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

Beginning in 2005, petitioner San Joaquin Regional Transit District (District) began discussing with real parties in interest DSS-2731 Myrtle LLC and Sardee Industries, Inc. (collectively, "Sardee") the possible acquisition through negotiated purchase or eminent domain of a two-acre parcel in Stockton on which Sardee operated a manufacturing facility. Correspondence regarding appraisal of the property and Sardee’s rights in eminent domain took place in 2008, but efforts to negotiate a purchase ultimately failed, leading to the filing of an eminent domain complaint in 2010. In April 2011 a stipulated order of possession gave legal possession of the parcel to District with a right of Sardee to occupy a portion of the property as it explored options for a new facility, to wind down its operations and move elsewhere. Sardee undertook to move its Stockton operations to its facility in Lisle, Illinois, which it upgraded to handle ongoing work from its Stockton plant. Under the stipulated order Sardee could occupy the property without charge until March 2012 and until June 30, 2012, by payment of rent. By March 2012 most of its equipment and operations had been relocated; in April 2012 the District abandoned its condemnation action. Following dismissal of the action, Sardee sought damages under Code of Civil Procedure section 1268.620, which permitted an award of damages “after the defendant moves from property in compliance with an order or agreement for possession or in reasonable contemplation of its taking.” District argued the costs involved in closing down Sardee’s Stockton facility and moving all but the items remaining for shipment in March could not be recovered. The trial court disagreed with this all-or-nothing interpretation of the statutory language and concluded Sardee should have been permitted to present its damage claim to a jury, whereupon District filed its petition for writ of mandate, prohibition or other appropriate relief, and sought a stay of the damages trial. The Court of Appeal concurred with the trial court that sufficient evidence supported the court’s finding that Sardee had moved from the property, supporting application of section 1268.620. The District's petition was denied.

Moreschi v. Village of Williams Bay

Court: Wisconsin Supreme Court

Docket: 2018AP000283

Opinion Date: December 30, 2020

Judge: Dallet

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Supreme Court affirmed the decision of a local zoning court of appeals approving homeowners' variance request, holding that, pursuant to Wis. Stat. 62.23(7)(e)10., certiorari review of the board's decision is triggered when a written copy of the decision is filed in the board's office. The homeowners in this case petitioned the Village of Williams Bay Extraterritorial Zoning Board of Appeals for a variance request. The Board unanimously approved the variance. Plaintiff, the homeowners' neighbor, filed for a writ of certiorari within thirty days after the Board orally voted to grant the variance but before the Board issued and filed a written copy of its decision. The circuit court affirmed the Board's decision. The court of appeals affirmed. At issue on appeal was whether the court of appeals properly determined what constitutes the "triggering event" for purposes of appealing the Board's decision on a writ of certiorari. The Supreme Court affirmed, holding (1) an aggrieved party's right to certiorari review is triggered when a written copy of a zoning board of appeals' decision is filed in the office of the board; (2) the Board's written decision and approved minutes were properly included in the certiorari record; and (3) the Board acted under the correct theory of law.