Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

VIKRAM DAVID AMAR

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.

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Metropolitan Omaha Property Owners Ass'n v. City of Omaha, Nebraska

Court: US Court of Appeals for the Eighth Circuit

Dockets: 20-1006, 20-1851

Opinion Date: March 15, 2021

Judge: William Duane Benton

Areas of Law: Civil Rights, Constitutional Law, Landlord - Tenant, Real Estate & Property Law

Plaintiffs filed suit against the City, alleging that the Rental Property Registration and Inspection Ordinance violated their constitutional rights, breached their consent decree with the City, and violated the Fair Housing Act. The Ordinance implemented uniform residential rental property registration, and a regular inspection program that is phased in accordance with the history of code violations on each property, requiring all rental properties in the City to register with the Permits and Inspections Division before leasing to tenants. The district court denied a preliminary injunction and dismissed plaintiffs' claims. The Eighth Circuit affirmed, concluding that the Ordinance does not violate Metro Omaha's constitutional rights to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments. Applying the Nebraska Supreme Court's rules of construction, the court concluded that the plain text of the Ordinance does not authorize warrantless inspections of properties if consent is withheld. Furthermore, pre-compliance review before inspections does not apply here where inspections are permitted only if there is consent, a warrant, or court order. Finally, by withholding consent, property owners are not subject to criminal liability or prohibited from renting their property. The court also concluded that the Ordinance is not unconstitutionally vague in violation of the Fifth Amendment. The court explained that the Ordinance provides adequate notice of the proscribed conduct and does not lend itself to arbitrary enforcement. The court further concluded that Metro Omaha fails to plausibly plead a breach of the consent decree, and that the Ordinance does not violate the Fair Housing Act.

Ahtna, Inc. v. Alaska, Department of Transportation & Public Facilities, et al.

Court: Alaska Supreme Court

Docket: S-17496

Opinion Date: March 12, 2021

Judge: Carney

Areas of Law: Civil Procedure, Government & Administrative Law, Native American Law, Real Estate & Property Law, Zoning, Planning & Land Use

The State of Alaska claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation, Ahtna, Inc. Ahtna sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope. After years of litigation and motion practice the superior court issued two partial summary judgment orders: (1) holding as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land; and (2) holding as a matter of law that the right of way was limited to ingress and egress. To these orders, the Alaska Supreme Court concluded the superior court did not err, therefore affirming both grants of partial summary judgment.

Boshernitsan v. Bach

Court: California Courts of Appeal

Docket: A159532(First Appellate District)

Opinion Date: March 12, 2021

Judge: Jim Humes

Areas of Law: Landlord - Tenant, Real Estate & Property Law

Appellants filed an unlawful detainer action against the tenants, seeking to evict them under a provision of San Francisco's rent control ordinance that allows a "landlord" to evict renters from a unit to make the unit available for a close relative of the landlord (the family move-in provision), Rent Ordinance, section 37.9(a)(8)(ii). The Court of Appeal concluded that, in sustaining the demurrer, the trial court correctly ruled that a trust is not a "natural person." However, the trial court was mistaken in assuming that appellants' trust is the landlord. The court explained that, as a matter of law, only trustees—not trusts—can hold legal title to property. The court held that natural persons who are acting as trustees of a revocable living trust and are also the trust's settlors and beneficiaries qualify as a "landlord" under the family move-in provision. Therefore, the court reversed the trial court's judgment in favor of the tenants, because appellants are not barred from seeking to evict the tenants under that provision. The court remanded with directions to enter a new order overruling the demurrer.

Felkay v. City of Santa Barbara

Court: California Courts of Appeal

Docket: B304964(Second Appellate District)

Opinion Date: March 18, 2021

Judge: Tangeman

Areas of Law: Real Estate & Property Law, Zoning, Planning & Land Use

Before seeking damages for a governmental taking of property through inverse condemnation, the property owner must generally submit more than one proposal to the permitting authority seeking zoning variances or reducing environmental impacts to the extent necessary to allow at least some economically beneficial or productive use of the property. In this case, the Court of Appeal held that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance. The court affirmed the trial court's judgment and fee award in this inverse condemnation action. In this case, the trustee submitted plans to build an ocean-front residential property, but the planning commission rejected the development permit. The court concluded that substantial evidence established that the city would not permit any development below the 127-foot elevation, and that the limited area above that elevation was unbuildable. Therefore, submission of an additional application would have been futile. Furthermore, substantial evidence establishes that it would have been futile to submit modified plans because the agency's decision was certain to be adverse. Finally, the court rejected the city's contention that the trustee failed to litigate his writ petition to conclusion because he did not argue the Public Resources Code section 30010 claim in those proceedings.

Cham et al. v. ECI Management Corp. et al.

Court: Supreme Court of Georgia

Docket: S20G0601

Opinion Date: March 15, 2021

Judge: Warren

Areas of Law: Civil Procedure, Personal Injury, Real Estate & Property Law

Plaintiffs, the surviving spouse of Franklin Callens and the administrator of his estate, sued defendants, the owner and manager of an apartment complex where Callens was killed during an armed robbery. Plaintiffs alleged that Defendants were negligent in failing adequately to secure their premises from criminal activity. Defendants prevailed at trial, and Plaintiffs appealed, contending, in relevant part, that the trial court erred in giving a jury instruction on the law applicable to “licensees” in premises liability cases. The Court of Appeals affirmed the trial court's judgment on that issue. The Georgia Supreme Court granted certiorari review on the issue of whether the trial court erred in charging the jury on what duty a landowner owed a licensee, when there was evidence showing that plaintiffs' decedent was a guest of a lawful tenant of the landowner. The Supreme Court found the trial court did not err in charging the jury, and therefore affirmed the appellate and trial courts.

Concord v. Water Department of Littleton

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12947

Opinion Date: March 11, 2021

Judge: Cypher

Areas of Law: Environmental Law, Real Estate & Property Law

The Supreme Judicial Court held that should Littleton, Acton, or both towns choose to exercise their rights to take the waters of Nagog Pond and apply for a permit under the Water Management Act (WMA), Mass. Gen. Laws ch. 21G, a special act passed by the Legislature in 1884 - St. 1884, c. 201 (1884 act) - the WMA will not provide the towns with a priority right over Concord's registration. The 1884 act granted Concord the right to use Nagog Pond, located in Littleton and Acton, as a public water supply. The act, however, provided that Littleton, Acton, or both could take the pond waters and that their water needs "shall be first supplied." Because Concord had exercised its rights under the 1884 act but Littleton and Acton had not exercised their rights, at issue was whether those rights still existed after the passage of the WMA. The Supreme Court held (1) the WMA impliedly repealed the provision in the 1884 act that provided that the needs of the residents of Littleton and Acton "shall be first supplied"; but (2) the WMA did not impliedly repeal the provisions of the 1884 act that granted Concord the right to "take and hold" the Nagog Pond waters.

Sullivan v. Five Acres Realty Trust

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12934

Opinion Date: March 12, 2021

Judge: Cypher

Areas of Law: Real Estate & Property Law

The Supreme Judicial Court affirmed in part and vacated in part the judgment of the superior court granting summary judgment to Defendants on some of Plaintiffs' claims and granting judgment for Plaintiffs on their implied warranty of habitability and Mass. Gen. Laws ch. 93A claims, holding that Defendants' motion for directed verdict or motion for judgment notwithstanding the verdict should have been allowed on the chapter 93A and warranty of habitability claims. After Plaintiffs purchased a piece of real property from Defendants they discovered various defects in the property. They brought this action against Defendants. The superior court granted summary judgment for Defendants on Plaintiffs' fraud and misrepresentation and defective and deficient renovation work claims. After a trial, the jury found in favor of Plaintiffs on the warranty of habitability and chapter 93A claims. The Supreme Judicial Court vacated the judgment in part, holding that Defendants' motions for a directed verdict or judgment notwithstanding the verdict should have been allowed on the chapter 93A and warranty of habitability claims.

Williams v. City of Batesville

Court: Supreme Court of Mississippi

Citation: 2019-CA-01300-SCT

Opinion Date: March 18, 2021

Judge: Beam

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law

Sherry Williams sued the City of Batesville, Mississippi for negligence in maintaining its sewer system after her home and property were flooded by raw sewage. The circuit court granted the City’s summary-judgment motion, finding the City immune from suit. After review, the Mississippi Supreme Court determined that because Williams could possibly prove a set of facts under the MTCA for actions by the City that were not exempt from immunity, therefore the circuit court erred in dismissing the claims of basic negligence. Furthermore, the Court held the trial court erred by granting judgment in favor of the City as to the Williams' inverse-condemnation claim. The matter was remanded for further proceedings.

Ralph v. McLaughlin

Court: South Carolina Supreme Court

Docket: 28015

Opinion Date: March 17, 2021

Judge: Per Curiam

Areas of Law: Civil Procedure, Real Estate & Property Law

This action involves a dispute stemming from the removal of a drainage pipe running across neighboring properties. The pipe was part of an easement originally owned by the Seabrook Island Property Owners Association (SIPOA) and was intended to carry away stormwater from a road within the community, with a pipe running through the backyard portions of seven contiguous lots. Over the years, the pipe degraded and began draining standing water from the backyards of those seven lots. Nearly twenty years later, SIPOA installed a new drainage system for the road. At a property owner's request, SIPOA formally abandoned the easement, though the old, degraded pipe remained in place. Petitioners Paul and Susan McLaughlin later purchased one of the seven lots containing the old drainage pipe (Lot 22). After years of meetings and consultation with SIPOA and their neighbors, Petitioners removed the pipe and built a new house over the area in which the pipe was previously located. Respondents Richard and Eugenia Ralph owned the parcel next door to Petitioners (Lot 23). Following removal of the old pipe, Respondents claimed their backyard flooding became worse that it already was and sued Petitioners. A jury awarded Respondents $1,000 in "nominal" damages, and they appealed. The Court of Appeals reversed and remanded for a new trial on damages alone. The South Carolina Supreme Court reversed, finding the trial court did not err in any respect, thus reversing the appellate court's decision.

Scherich v. Wheeling Creek Watershed Protection & Flood Prevention Commission

Court: Supreme Court of Appeals of West Virginia

Docket: 19-1065

Opinion Date: March 15, 2021

Judge: Armstead

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Supreme Court reversed the order of the circuit court dismissing the underlying eminent domain action, holding that the sua sponte dismissal of this action without notice and an opportunity to be heard required reversal of the circuit court's order. In 1990, Respondent, the Wheeling Creek Watershed Protection and Flood Prevention Commission, filed a condemnation proceeding against Petitioners' property. In 1991, Respondent received right of entry and Petitioners received Respondent's statement of just compensation. The matter lay dormant until 2018 when Petitioners filed a motion for further proceedings to determine just compensation. The circuit court (1) concluded that estoppel, laches, and applicable statutes of limitation or repose prevented Petitioners from resurrecting the matter; and (2) sua sponte found that Petitioners' withdrawal of Respondent's estimate of just compensation without further proceedings until now was sufficient proof of accord and satisfaction. The Supreme Court reversed, holding (1) the circuit court erred by failing to notify the parties of its intent to dispose of the matter and provide them a meaningful opportunity to respond and be heard; and (2) none of the doctrines espoused by the circuit court to preclude further prosecution prevented Petitioners from resurrecting this matter.

W. Va. Department of Environmental Protection v. Dotson

Court: Supreme Court of Appeals of West Virginia

Docket: 20-0063

Opinion Date: March 16, 2021

Judge: Wooton

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the order of the circuit court denying the West Virginia Department of Environmental Protection's (DEP) motion for summary judgment on qualified immunity grounds, holding that the DEP was entitled to qualified immunity. Plaintiffs suffered damages to personal and real property as a result of severe flooding of Bull Creek in McDowell County. Plaintiffs filed suit against Twin Star Mining, Inc. and the DEP, claiming negligence. The DEP moved for dismissal on the basis of qualified immunity and the public duty doctrine. The circuit court denied the motion. The Supreme Court reversed, holding that the circuit court erred in denying the DEP's motion for summary judgment on the basis of qualified immunity.

2 Crooked Creek, LLC v. Cass Cty. Treas.

Court: Michigan Supreme Court

Docket: 159856

Opinion Date: March 16, 2021

Judge: Brian K. Zahra

Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Tax Law

2 Crooked Creek, LLC (2CC) and Russian Ferro Alloys, Inc. (RFA) filed an action against the Cass County Treasurer, seeking to recover monetary damages under the Michigan General Property Tax Act (the GPTA) in connection with defendant’s foreclosure of certain property. In 2010, 2CC purchased property for development, but failed to pay the 2011 real-property taxes and, in 2013, forfeited the property to defendant. From January through May 2013, defendant’s agent, Title Check, LLC, mailed via first-class and certified mail a series of notices to the address listed in the deed. The certified mail was returned as “Unclaimed—Unable to Forward,” but the first-class mail was not returned. Meanwhile, 2CC constructed a home on the property, obtaining a mortgage for the construction from RFA. A land examiner working for Title Check visited the property; determined it to be occupied; and being unable to personally meet with any occupant, posted notice of the show-cause hearing and judicial-foreclosure hearing on a window next to the front door of the newly constructed home. Title Check continued its notice efforts through the rest of 2013 and into 2014, mailing various notices as well as publishing notice in a local newspaper for three consecutive weeks. After no one appeared on 2CC’s behalf at the show-cause hearing or the 2014 judicial-foreclosure hearing, the Cass Circuit Court entered the judgment of foreclosure. The property was not redeemed by the March 31, 2014 deadline, and fee simple title vested with defendant. 2CC learned of the foreclosure a few weeks later. In July 2014, 2CC moved to set aside the foreclosure judgment on due-process grounds. These efforts failed because the circuit court concluded defendant’s combined efforts of mailing, posting, and publishing notice under the GPTA provided 2CC with notice sufficient to satisfy due process. In an unpublished per curiam opinion, the Court of Appeals affirmed. 2CC moved to set aside the foreclosure judgment, filing a separate action in the Court of Claims for monetary damages under MCL 211.78l(1), alleging it had not received any notice required under the GPTA. After a bench trial at the Court of Claims and at the close of 2CC’s proofs, the court granted an involuntary dismissal in favor of defendant, holding, in relevant part, that 2CC had received at least constructive notice of the foreclosure proceedings when the land examiner posted notice on the home. 2CC appealed as of right, and the Court of Appeals also affirmed. Finding no reversible error, the Michigan Supreme Court affirmed too.