We are disappointed in the recent decision by the Wisconsin Supreme Court upholding a pre-condemnation jurisdictional offer made by the Wisconsin Department of Transportation (DOT) to a property owner that deviated substantially from the Department’s own appraisal which, under Wisconsin law, is required to form the basis of the offer. As three Supreme Court Justices (including the Chief Justice) correctly pointed out in their strong dissent, the jurisdictional offer was not based upon the appraisal that DOT had provided the owner, but rather on DOT’s own internal administrative review. An important factor in the case was the difference between DOT’s appraisal of $133,400 and the jurisdictional offer of $403,200, resulting in a 202% increase in value. OCA filed an Amicus Brief in this important case which can be viewed here. 

OCA recently filed an Amicus Brief on behalf of  Christus Church in the state of Wisconsin. The brief addresses important issues arising out of a pre-litigation “jurisdictional” offer made to the Church by the Wisconsin Department of Transportation that contained compensation for severance damages to the Church’s remaining property caused by highway proximity, even though the Department’s underlying appraisal found that there were no severance damages. OCA’s Amicus Brief specifically addresses the applicable standard when construing eminent domain statutes; the proper statutory construction of the Wisconsin statutes at issue; the extraordinary power of eminent domain and why special rules are needed to level the playing field between condemnors and condemnees; the importance of properly ascertaining and determining severance damages in a partial taking case in order to reach overall just compensation; and the duty of the condemnor to make proper and supportable pre-litigation offers, particularly when they become the basis of later determinations, such as whether the landowner should be reimbursed attorney fees incurred in defending the eminent domain case. To view a copy of OCA’s Amicus Brief, click here.

In a majority opinion authored by Chief Justice Shirley Abrahamson, the Supreme Court concluded that no compensation can be just compensation.

Following last week’s conference, the U.S. Supreme Court this morning issued an order denying certiorari review in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010) SCOTUS online docket here.

A few days ago the U.S. Supreme Court in this order declined to issue a writ of certiorari to review the Ninth Circuit’s decision in Bridge Aina Lea, LLC v. Hawaii Land Use Comm’n, No. 20-54, a case in which a federal court jury concluded the property owner suffered both a Lucas and Penn Central taking, but the Ninth Circuit reversed, concluding that no reasonable jury could have found a taking. This is a missed opportunity for our highest court to provide much needed guidance in an area of the law that desperately needs clarity. One positive outcome from the court’s dodge is the dissenting opinion from Justice Thomas, in which he writes that “it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.” Murr v. Wisconsin, 582 U.S. ___, ___ (2017) (dissenting opinion) (slip op., at 1). For a fuller discussion of the case, court and dissenting opinion, please read OCA Member Robert Thomas’ Inverse Condemnation Blog.

Best Lawyers, the oldest peer-review publication in the legal profession, has named 26 Owners’ Counsel of America members in its 27th Edition for 2021 in recognition of their Eminent Domain and Condemnation expertise and practices. The list includes George Autry (North Carolina), Stephanie Autry (North Carolina), Keith Babcock (South Carolina), Joshua Baker (Virginia), Michael Berger (California), Dana Berliner (Institute for Justice), William Blake (Nebraska), Amy Brigham Boulris (Florida), Andrew Brigham (Florida), Ed Burg (California), James Burling (Pacific Legal Foundation), Ivy Cadle (Georgia), Brandee Caswell (Colorado), Robert Denlow (Missouri), Darius Dynkowski (Michigan), Paul Henry (Missouri), Warren Herlong (Alabama), Dan Manning (Iowa), Alan Marcuvitz (Wisconsin), James Masterman (Massachusetts), Charles McFarland (Texas), Tom Olson (New Jersey), J. Casey Pipes (Alabama), Mark D. Savin (Minnesota), Jack Sperber (Colorado), and Bradley Stout (Kansas).  In addition, eight OCA members were also named “Lawyer of the Year” for 2021. They include:  Michael M. Berger (California), Ed Burg (California), Dan Manning (Iowa), Alan Marcuvitz (Wisconsin), J. Casey Pipes (Alabama), Mark D. Savin (Minnesota), Jack Sperber (Colorado), and Bradley Stout (Kansas). The “Lawyer of the Year” honor is unique, as only one lawyer in each legal specialty and in each designated metropolitan market is recognized for this honor. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Lawyers are not allowed to pay a fee to be listed; therefore, inclusion in The Best Lawyers in America is considered a singular honor. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive […]

Several members of Owners’ Counsel of America will be speaking at the 14th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia on October 12-13, 2017. The Conference is honoring University of Hawaii Law School Professor David Callies (the 2015 Recipient of OCA’s Crystal Eagle award), for his lifetime of work, both scholarly and practical, advancing the right of private property. Please join us for this exciting event.

On January 15, 2016, the Supreme Court of the United States announced that it will hear the regulatory takings case of Murr v. Wisconsin, No. 15-214, an appeal out of the Wisconsin Court of Appeals. Wisconsin’s intermediate court ruled that a property owner’s separate but adjacent parcels should be considered as a single property for purposes of determining if an uncompensated taking has occurred, despite the fact that doing so substantially deprived the owner of the value of one of the independent parcels. Owners’ Counsel of America (OCA) and The Cato Institute (Cato) are asking the Supreme Court to reach a different conclusion.  

The Daily Reporter (Milwaukee, WI) posted an article June 22 by Sean Ryan detailing the VFW eminent domain case refused for review by the U. S. Supreme Court (see our previous post here). Mr. Ryan’s article ‘You can’t fight city hall’: VFW loses eminent domain battle outlines the history of the case – a near decade long battle waged by the VFW Post 2874 against the Milwaukee Redevelopment Authority over just compensation for the Post’s valuable long-term leasehold.

The Respondent’s brief in opposition and Petitioner’s reply in support of the Petition for Writ of Certiorari in the Wisconsin eminent domain case, City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010), have been filed with the U.S. Supreme Court. The matter has been distributed and is calendared for conference on June 17, 2010. (SCOTUS Docket No 09-1204.)