The TEMPTATIONS THE ULTIMATE COLLECTION (RECORDINGS 1964-75)

1. The TEMPTATIONSTHE ULTIMATECOLLECTION(RECORDINGS 1964-75) REMEMBER CLOCKS FALL BACK SUNDAY 3:00 AM 2:00AM Enjoy Your Extra Hour of Sleep!!

2. 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?

3. Hadacheck v. SebastianDQ100: Introduction (Krypton) 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

4. Hadacheck v. SebastianDQ100: Introduction (Krypton) • (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

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

6. Hadacheck v. SebastianDQ100: Introduction (Krypton) 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. (= HadacheckLitigation)

7. 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

8. 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

9. 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??

10. Hadacheck v. Sebastian URANIUM: DQ101-03 Reasoning; Possible Holdings & Rules

11. Hadacheck v. Sebastian: ReasoningDQ101 (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 SCtfound ordinance not arbitrary/discriminatory • US SCtsaid sufficient evidence supports that finding

12. Hadacheck v. Sebastian: ReasoningDQ101 (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

13. Hadacheck v. Sebastian: ReasoningDQ101 (Uranium) Arbitrariness/Discrimination 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.)

14. Hadacheck v. Sebastian: ReasoningDQ101 (Uranium) Arbitrariness/Discrimination 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!!

15. Hadacheck v. Sebastian: ReasoningDQ102 (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?

16. Hadacheck v. Sebastian: ReasoningDQ102 (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

17. Hadacheck v. Sebastian: ReasoningDQ102 (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?

18. Hadacheck v. Sebastian: ReasoningDQ102 (Uranium) Hadacheck& the Police Power: 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.

19. Hadacheck v. Sebastian: ReasoningDQ102 (Uranium) Hadacheck& the Police Power: Kelso • San Francisco banned operation of rock quarry • Cal. S.Ct. said unconstitutional • Why Distinguishable from Hadacheck ?

20. Hadacheck v. Sebastian: ReasoningDQ102 (Uranium) Hadacheck& the Police Power: Kelso • San Francisco banned operation of rock quarry • Cal. S.Ct. said unconstitutional; distinguishes Hadacheckbecause: • In Kelso, if you can’t quarry, rock is valueless • In Hadacheck, clay still has value; can remove & process elsewhere

21. Hadacheck v. Sebastian: ReasoningDQ102 (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?

22. Hadacheck v. Sebastian: ReasoningDQ102 (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

23. Hadacheck v. Sebastian: ReasoningDQ102 (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.

24. Hadacheck v. Sebastian: ReasoningDQ102 (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)?

25. Hadacheck v. Sebastian: Holding/RulesDQ103 (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?

26. Hadacheck v. Sebastian: Holding/RulesDQ103 (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)

27. Hadacheck v. Sebastian: Holding/RulesDQ103 (Uranium) Other possible rules or principles?

28. Hadacheck v. Sebastian: Holding/RulesDQ103 (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)

29. Hadacheck v. Sebastian: Holding/RulesDQ103 (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

30. Hadacheck v. Sebastian: Holding/RulesDQ103 (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)