Pope Francis’s Statement Endorsing Same-Sex Civil Unions Undermines the Moral Legitimacy and Legal Arguments in Fulton v. City of Philadelphia

DAVID S. KEMP, CHARLES E. BINKLEY

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

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Stigma and the Oral Argument in Fulton v. City of Philadelphia

LESLIE C. GRIFFIN

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

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State of Rhode Island v. Shell Oil Products Co., LLC

Court: US Court of Appeals for the First Circuit

Docket: 19-1818

Opinion Date: October 29, 2020

Judge: Ojetta Rogeriee Thompson

Areas of Law: Energy, Oil & Gas Law, Environmental Law, Real Estate & Property Law

The First Circuit affirmed the order of the federal district court allowing Rhode Island's motion to return to state court its state court complaint against several oil and gas companies for damage caused by fossil fuels, holding that the allegations in Rhode Island's complaint did not give rise to federal-officer jurisdiction. In 2018, faced with rising sea levels and other property damage from extreme weather events caused by climate change, Rhode Island sued, in state court, several oil and gas companies for damage caused by fossil fuels while those companies misled the public about their products' true risks. The oil companies removed the case to federal district court. Rhode Island moved for the case to be remanded to state court. The district court granted the motion and ordered the case remanded to state court. The First Circuit affirmed, holding that the district court did not err in finding that there was no subject matter jurisdiction under the federal-officer removal statute.

Wells Fargo Bank, N.A. v. Mahogany Meadows Avenue Trust

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-17320

Opinion Date: November 5, 2020

Judge: Eric D. Miller

Areas of Law: Constitutional Law, Real Estate & Property Law

Nevada Revised Statutes section 116.3116 gives a homeowners association (HOA) a superpriority lien on properties within the association for certain unpaid assessments. By foreclosing on a property, an HOA can extinguish other liens, including a first deed of trust held by a mortgage lender. The Ninth Circuit held that this scheme does not effect an uncompensated taking of property or violates the Due Process Clause. The Ninth Circuit affirmed the district court's dismissal, based on failure to state a claim, of Wells Fargo's quiet title action against the purchaser of real property at a foreclosure sale, an HOA, and the HOA's agent. In this case, because the enactment of section 116.3116 predated the creation of Wells Fargo's lien on the property, Wells Fargo cannot establish that it suffered an uncompensated taking. The panel also agreed with the district court's conclusion that Wells Fargo received constitutionally adequate notice of the foreclosure sale. Finally, the panel held that the district court did not abuse its discretion by denying Wells Fargo's motion for reconsideration under Federal Rule of Civil Procedure 59(e), because Wells Fargo failed to raise its arguments earlier where the evidence on which it relied was theoretically available when it filed its first response to the motion to dismiss.

Hoffman v. Young

Court: California Courts of Appeal

Docket: B292539(Second Appellate District)

Opinion Date: October 30, 2020

Judge: Kenneth R. Yegan

Areas of Law: Personal Injury, Real Estate & Property Law

Where, as here, a child of the landowner is living with the landowner on the landowner's property and the landowner has consented to this living arrangement, the child's express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of Civil Code section 846, subdivision (d)(3), unless the landowner has prohibited the child from extending the invitation. Appellant filed suit against her friend and his parents after she was injured while riding her motorcycle on the parents' motocross track. The jury found that the parents had no liability for the collision or the allegedly negligent medical care provided to appellant after the collision. The court held that the friend's express invitation to appellant stripped his parents of the immunity that would otherwise have been provided to them by the recreational use immunity defense under section 846. In this case, the trial court erroneously instructed the jury that the express invitation exception to the immunity defense applies only if one of the friend's parents, i.e., the actual landowner, expressly invited appellant onto the property. The court held that the erroneous instruction was prejudicial to appellant. Furthermore, the trial court erroneously instructed the jury that the express invitation must be for a recreational purpose. The court reversed as to the general negligence and premises liability causes of action. The court affirmed in all other respects.

Saunders v. KDFBS, LLC

Court: Connecticut Supreme Court

Docket: SC20182

Opinion Date: November 17, 2020

Judge: Andrew J. McDonald

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the order of the Appellate Court summarily dismissing Defendants' appeal challenging the priority of Plaintiff's mortgage over Defendants' mortgage for want of a final judgment, holding that a determination of the priority of mortgages can be challenged in an appeal from the judgment of foreclosure by sale, before the foreclosure sale has taken place, when the priority of the foreclosing plaintiff's mortgage is in dispute. Plaintiff sought a judgment of foreclosure on certain real property and a declaratory judgment that his mortgage had priority over an alleged mortgage on the property held by Defendants. The Appellate Court dismissed the appeal for want of a final judgment. The Supreme Court reversed, holding that the judgment of foreclosure by sale was a final judgment that manifestly met the requirements of Practice Book 61-2.

D'Allessandro v. Lennar Hingham Holdings, LLC

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12891

Opinion Date: November 3, 2020

Judge: Barbara A. Lenk

Areas of Law: Construction Law, Real Estate & Property Law

In this case, the Supreme Judicial Court responded to a certified question posed by a judge in a federal district court concerning the application of the six-year statute of repose in Mass. Gen. Laws ch. 260, 2B to claims regarding alleged defects in the design and construction of the common areas of a multi-building, multi-phase condominium. The Supreme Judicial Court answered (1) regardless of how many phases of the development there may be or how many buildings are within each phase, where a condominium development is comprised of multiple buildings each building constitutes a discrete improvement for purposes of Mass. Gen. Laws ch. 260, 2B such that the opening of each individual building to its intended use or the substantial completion of the individual building and the taking of possession for occupancy by the owner triggers the statute of repose under section 2B with respect to the common areas and limited common areas of that building; and (2) where a particular improvement is integral to, and intended to serve, multiple buildings the statute of repose begins to run when that discrete improvement is substantially complete and open to its intended use.

K & J Investments, LLC v. Flathead County

Court: Montana Supreme Court

Citation: 2020 MT 277

Opinion Date: November 4, 2020

Judge: Beth Baker

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law

The Supreme Court affirmed the judgment of the district court dismissing K&J Investments, LLC's petition and complaint for judicial review, rescission, and unjust enrichment against the Flathead County Board of Commissioners and Flathead County Treasurer, holding that the district court properly dismissed all claims for want of jurisdiction. K&J, an investment company, purchased a tax sale certificate from Flathead County for the property at issue for $1,512. K&J later filed an application for refund and abatement due to alleged erroneous property assessments. The Flathead County Board of Commissioners denied the application. K&J filed a petition for judicial review seeking to reverse the Commissioners' denial of tax refund and abatement and including a complaint for rescission of the tax sale certificate and seeking relief for all taxes paid under a theory of unjust enrichment. The district court dismissed the petition and complaint, ruling that it lacked subject matter jurisdiction because K&J did not follow the required process for seeking reassessment and exhausting administrative remedies. The Supreme Court affirmed, holding that Mont. Code Ann. 15-16-604 did not grant the district court authority to consider K&J's claims.

JPMorgan Chase Bank, National Ass'n v. SFR Investments Pool 1, LLC

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 68

Opinion Date: October 29, 2020

Judge: Stiglich

Areas of Law: Banking, Real Estate & Property Law

The Supreme Court reversed the district court's order granting summary judgment in favor of Defendant in this foreclosure action, holding that the loan servicer timely commenced the action after the foreclosure sale and sufficiently demonstrated that a regulated entity under the Federal Housing Finance Agency's (FHFA) conservatorship owned the loan. Defendant purchased property at a foreclosure sale. Plaintiff JPMorgan Chase Bank filed a complaint seeking a declaration that the first deed of trust survived the sale and for quiet title. Plaintiff offered evidence that it was servicing the loan on behalf of Freddie Mac, which had previously been placed into an FHFA conservatorship and that the first deed of trust therefore survived under the Federal Foreclosure Bar. Applying a three-year limitations period, the district court entered summary judgment for Defendant, concluding that the foreclosure sale extinguished the deed of trust. The Supreme Court reversed, holding (1) the claims underlying the action are best described as sounding in contract for purposes of the House and Economic Recovery Act statute of limitations, which provides for a six-year statute of limitations; and (2) the Federal Foreclosure Bar prevented the foreclosure sale from extinguishing gate first deed of trust, and therefore, Defendant took the property subject to that deed of trust.

Arell v. Palmer

Court: New Hampshire Supreme Court

Docket: 2019-0553

Opinion Date: October 30, 2020

Judge: Donovan

Areas of Law: Civil Procedure, Real Estate & Property Law

Defendants Henry Palmer and Janis Monty-Palmer appealed a superior court order that granted summary judgment in favor of plaintiffs Richard Arell, Jr. and Natalie Allard-Arell. In their petition for declaratory judgment and injunctive relief, the Arells asserted that the Palmers’ temporary easement to use a well on the Arells’ property required the Palmers to develop their own water source. The trial court ordered the Palmers to investigate the cost and feasibility of developing a well on their own property, and, if possible and reasonable, to install a well within three years. Because the clear and unambiguous language of the Palmers’ deed did not support the trial court’s decision, the New Hampshire Supreme Court reversed and remanded.

Powers v. Turner County Board of Adjustment

Court: South Dakota Supreme Court

Citation: 2020 S.D. 60

Opinion Date: November 4, 2020

Judge: Devaney

Areas of Law: Civil Procedure, Real Estate & Property Law

The Supreme Court reversed the decision of the circuit court dismissing Petitioners' appeal from the decision of the Turner County Board of Adjustment approving an application for the construction and operation of a concentrated animal feeding operation (CAFO) on the grounds that Petitioners lacked standing, holding that the circuit court erred in dismissing the appeal for an inadequate showing of standing. After the Board voted unanimously to approve the CAFO application Petitioners, who owned land near the proposed CAFO, petitioned the circuit court for a writ of certiorari. The circuit court concluded that Petitioners lacked standing because they failed to present sufficient facts demonstrating a unique and personal injury compared to Turner County taxpayers in general. The Supreme Court reversed, holding that Petitioners set forth sufficient specific facts showing a personal and pecuniary loss not suffered by taxpayers in general.