The TEMPTATIONS THE ULTIMATE COLLECTION (RECORDINGS 1964-75)

The TEMPTATIONSTHE ULTIMATE COLLECTION

(RECORDINGS 1964-75)

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Hadacheck v. SebastianDQ100: Introduction (Krypton)

Effects of the Challenged Action •Government action in Hadacheck: (p.101) L.A. Ordinance banning operation of brickyard in city• What limits are placed on the

petitioner’s use of his property? • What uses of his property are still

permissible? • What is the harm to the petitioner?


Effects of the Challenged Action •What is the harm to the petitioner? • Incarceration!• Claim re Value: • Property worth $800,000 as brickworks• Worth $60,000 as anything else• NOTE: Courts don’t necessarily accept value claims


• (1915) Claim re Property Value (PV): • Property worth $800,000 as

brickworks• Worth $60,000 as anything else

• Claims re Loss of PV Often Short Term• PV Fluctuates Significantly Over Time• This was new part of LA; must have

increased sharply at some point

From John Criste: Brickworks Site Today: West Pico & Crenshaw Blvds., L.A.


Fit Into Demsetz Takings Story?•Activity is Brickmaking• Externalities: Some dust reaches nearby residents• Old Rule: Brickworks Allowed to Operate if There First

•Change leads to rising externalities?•Creates a demand for a change in the law?•After the change, people affected by the new law complain that their property rights have been taken. (= Hadacheck Litigation)

Hadacheck v. SebastianProcedural Posture

• Hadacheck convicted for violating ordinance

• Files Habeas Petition w California SCt; Loses

• Appeal to US SCt – Claim that state law violated US

Constitution– At time, automatic appeal rather than

pet’n for certiorari

Hadacheck v. SebastianProcedural Posture

• Hadacheck convicted for violating ordinance

• Files Habeas Petition w California SCt; Loses

• Appeal to US SCt

• Status of Allegations in Petition (pp.102-03) – p.103: “substantial traverses”– Cal SCt found otherwise on health etc.– US SCt says these findings supported by

evidence

LOGISTICS: CLASS #28• Wednesday DF Sessions shifting earlier to

9:00 a.m. to directly follow class. • I’ll Adjust Assignment Sheet for Next Week

as Necessary After Today (Elective Choice)• Group Assignment #3– Assignment #1: Formatting Penalties on 12/28– Assignment #2: Formatting Penalties on 14/28

–QUESTIONS??

Hadacheck v. Sebastian

URANIUM: DQ101-03 Reasoning; Possible

Holdings & Rules

Hadacheck v. Sebastian: Reasoning

DQ101 (Uranium)Discrimination Claim

•Petitioner Says: – I was singled out; ordinance passed to stop me– Other brickworks in other districts treated differently

•How did the court deal with this claim? – Cal SCt found ordinance not arbitrary/discriminatory– US SCt said sufficient evidence supports that finding


DQ101 (Uranium)Arbitrariness/Discrimination

Claims•Made Frequently (Hadacheck, Miller, Penn Central)•Hard to Win– Must Be:• Explicit Direct Attack on Someone -OR-• Very Random Exercise of Govt Power

– Rare Example: Eubank (cited in Miller) complete delegation of zoning decision to neighbors with no govt oversight



Claims•Made Frequently But Hard to Win•Generally OK to draw rough but plausible distinctions– E.g., Between people under/over 21 years old

– E.g., Between neighborhoods

– E.g., Between types or size of brickworks, etc.

– Unless courts have found distinction problematic under Equal Protection Clause or First Amdt (race; religion, etc.)



Claims•Made Frequently But Hard to Win

•Generally OK to draw rough but plausible distinctions

•I won’t (intentionally) make arbitrariness a serious issue on final; don’t spend time on it!!


DQ102 (Uranium)Hadacheck & the Police Power (p.104)•“[O]ne of most essential powers of government—one that is the least limitable.” (p.104)•“A vested interest cannot be asserted against it because of conditions once obtaining.”

–MEANS?


DQ102 (Uranium)Hadacheck & the Police Power (p.104)•“A vested interest cannot be asserted against it because of conditions once obtaining.” •Compare “Coming to the Nuisance” –Defense for Private Nuisance–Not defense for Public Nuisance


DQ102 (Uranium)Hadacheck & the Police Power:

Reinman•Little Rock bans livery stables– Related to Change from Horses to Cars – Similar Facts Alleged re Loss of Property

Value– US SCt says OK under Police Power

•Why does Petitioner in Hadacheck say L.A. Ordinance Distinguishable?



Reinman•Little Rock bans livery stables; US Sct says OK•Petitioner: L.A. Ordinance Distinguishable b/c Brick-works Tied to Particular Location (Clay Pits)•But Court Responds: Not Impossible to Run Business Elsewhere•Reliance on Reinman suggests that under Police Power, OK to severely reduce value by eliminating current use.



Kelso•San Francisco banned operation of rock quarry•Cal. S.Ct. said unconstitutional•Why Distinguishable from Hadacheck ?


DQ102 (Uranium)Hadacheck & the Police Power: Kelso•San Francisco banned operation of rock quarry•Cal. S.Ct. said unconstitutional; distinguishes Hadacheck because:– In Kelso, if you can’t quarry, rock is valueless– In Hadacheck, clay still has value; can

remove & process elsewhere


DQ102 (Uranium)Hadacheck & the Police Power: Kelso•Cal. S.Ct. draws distinction between – Limit on use of land; and – Complete elimination of value

•US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning?


DQ102 (Uranium)Hadacheck & the Police Power: Kelso•Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value•US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning?– Explicitly reserves Q in last paragraph of

opinion– Does note clay still is available & has

value


DQ102 (Uranium)Hadacheck & the Police Power: Kelso

•Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value•Distinction raises important recurring Q: In deciding if value remains, do you look at:– All property owned by claimant (quarry +

rock)– Particular property most directly effected

(just rock)– Still value left in quarry, but not in rock.


DQ102 (Uranium)Hadacheck & the Police Power: Kelso•Important recurring Q: In deciding if value remains (or amount of value lost), what portion of claimant’s property do you look at?•We’ll call this the “denominator” question: –What do you use as denominator in

fraction showing how much property is lost (or is left)?

Hadacheck v. Sebastian: Holding/Rules

DQ103 (Uranium)What rules or principles can you derive from Hadacheck to use in future cases? •Start with very broad holding: Any exercise of police power is Constitutional if not arbitrary.

•Narrower Versions?


DQ103 (Uranium)• Exercise of police power Constitutional if not

arbitrary.– Exercise of police power Constitutional if not

arbitrary and related to human health & safety– Exercise of police power Constitutional if not

arbitrary and related to substantial concerns re human health & safety

– Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance/ harmful use of land

– Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance in residential neighborhood. (Burns B2)


DQ103 (Uranium)

Other possible rules or principles?


DQ103 (Uranium)Some possible rules or principles:•Prohibiting existing use not automatically unconstitutional•Large decrease in property value not automatically unconstitutional•Maybe: Unconstitutional if all value removed•Private interests must yield to progress & good of community (cf. Shack)


DQ103 (Uranium)Apply rules/principles from Hadacheck

to “Airspace Solution”•Exercise of police power Constitutional if not arbitrary.– Exercise of police power Constitutional if

not arbitrary and related to human health & safety

– Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land

–Maybe: Unconstitutional if all value removed


DQ103 (Uranium)Apply Hadacheck to “Airspace

Solution”?•Airspace Solution OK under broader readings of reach of police power.•If Kelso rule applies, raises “Denominator Question”: Do We Look At: – All of Hammonds’s Property (Tiny % Lost)–Only at Underground Reservoirs (100%

Lost)

The TEMPTATIONS THE ULTIMATE COLLECTION (RECORDINGS 1964-75)

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