Taking Clause and Retroactive Legislation

Question 1

Fifth Amendment taking clause generally

Answer 1

The Fifth Amendment provides that private property may only be taken
- for public use, and
- the government must pay just compensation

Not a source of power for taking, but a limitation

Question 2

Definition of a taking

Answer 2

Whether governmental action is a taking that requires payment or merely a regulation that does not require compensation

A taking will be found if there is
- a confiscation of a person’s property, or
- a permanent or regular physical occupation of a person’s property by the government

Question 3

Temporary occupations

Answer 3

Temporary occupations by the government may also be a taking depending on factors, like
- degree of invasion
- the duration
- the government’s intention
- the foreseeability of the result
- the character of the property
- the interference with the use of the property

Exceptions
- development
- emergency

Question 4

Development exception

Answer 4

Municipalities often attempt to condition building or development permits on a landowner’s
- conveying title to part of the property to the government, or
- granting the public an easement to access the property

These are a taking unless
- the government can show there is an essential nexus between the condition and the proposed development (condition relates to a legitimate government interest), and
- the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer

Question 5

Emergency exception

Answer 5

A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, like a war

Question 6

Denial of all economic value in the land

Answer 6

If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable

Question 7

Temporary denials of all economic use

Answer 7

Temporarily denying an owner of all economic use of property does not constitute a per se taking

The court will carefully examine and weigh all the relevant circumstances to determine whether fairness and justice requires just compensation
- planners’ good faith
- the reasonable expectations of the owners
- the length of the delay
- the delay’s actually effect on the value of the property

Question 8

Decreasing economic value

Answer 8

Generally, regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the property

Balance test - court will consider
- the government interests sought to be promoted
- the diminution in value to the owner, and
- whether the regulation substantially interferes with distinct, investment-backed expectations of the owner

Question 9

Public use limitation

Answer 9

If the government’s action is rationally related to a legitimate public purpose, the public use requirement is satisfied

Authorized takings by private enterprises are included if they work to the public advantage

Question 10

Measuring just compensation

Answer 10

Measured by the fair market value of the property taken at the time of the taking and it’s based on the loss to the owner

Increases in value to the owner’s remaining property as a result of the taking are not considered

Question 11

Inverse condemnation

Answer 11

When the gov acts under power of eminent domain to take property for public use, condemn the property and pay

When taken without condemnation proceedings, landowner can bring an action for inverse condemnation

If determines that the action amounted to a taking, gov will be required to either
- pay property owner just compensation, or
- terminate the regulation and pay damages that occurred while the regulation was in effect

Question 12

Contract clause generally - retroactive legislation

Answer 12

The contract clause limits the ability of state and local governments to enact laws that retroactively impair contract rights

Does not affect contracts not yet made

Not applicable to federal government but flagrant contract impairment would violate the fifth amendment due process

Question 13

Private contracts

Answer 13

Legislation that substantially impairs an existing private contract is invalid unless the legislation
- serves an important and legitimate public interest, and
- is a reasonable and narrowly tailored means of promoting that interest

Question 14

Public contracts

Answer 14

Heightened scrutiny because of potential self dealing

Legislation that impairs a contract to which the state is a party is tested by the same basic test as private contracts, but the legislation will receive heightened scrutiny
- especially if the legislation reduces the contractual burden on the state

Question 15

Ex post facto law generally

Answer 15

Neither state nor federal government can pass this - law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purposes of punishing a person for some past activity

Similarly prohibits courts from retroactively interpreting criminal laws in an unexpected and indefensible way

Applies only to criminal cases

Question 16

When a statute retroactively alters a law in a substantially prejudicial manner

Answer 16

A statute retroactively alters a law in a substantially prejudicial manner if it
- makes criminal an act that was innocent when done
- imposes a greater punishment for an act than was imposed for the act when it was done, or
- reduces the evidence required to convict a person of a crime from what was required when the act was committed

Question 17

Bills of attainder

Answer 17

Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial

Both federal and state are prohibited from passing them

Question 18

Due process considerations and retroactive legislation

Answer 18

If a retroactive law does not violate the contracts, ex post facto, or bill of attainder clauses, must still pass under due process clause

If the retroactive law does not substantially burden a fundamental right, it only needs to be rationally related to a legitimate government interest