Gideon Kanner and Michael Berger are two of the country’s most prominent practitioners in appeals and eminent domain law. They have a forthcoming article (“The Nasty, Brutish and Short Life of Agins v. City of Tiburon”) in The Urban Lawyer on Agins v. City of Tiburon, a case that had a significant (“infamous,” the authors would likely say) role in both California and U.S. Supreme Court jurisprudence regarding the proper remedy for government regulations that constitute uncompensated takings of private property.
The article discusses “the mad, mad, mad litigational world begat by the California Supreme Court’s erroneous decision in Agins I,” which the U.S. Supreme Court later (belatedly, the authors claim) abrogated. (Agins v. City of Tiburon (1979) 23 Cal.3d 605, affirmed on procedural grounds in Agins v. City of Tiburon (1980) 447 U.S. 255, abrogated on the merits by First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987) 482 U.S. 304.) In Agins, the article says, “the California Supreme Court had set out on some sort of anti-property rights holy war and decided to abolish the doctrine of regulatory takings, in outright defiance of the U.S. Supreme Court’s existing takings law.” Kanner and Berger argue that, as far as takings law is concerned, “California’s judiciary was in open intellectual rebellion [decades ago] and it remains so to this day.”
The article also notes that the U.S. Supreme Court is reevaluating the issue of ripeness in regulatory takings cases — the ground on which the California Supreme Court’s Agins decision was originally affirmed. The pending case is Knick v. Township of Scott, in which SCOTUS has scheduled re-argument after supplemental briefing.