The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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O'Brien v. Deutsche Bank National Trust Co.

Court: US Court of Appeals for the First Circuit

Docket: 19-1143

Opinion Date: January 17, 2020

Judge: Stahl

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

The First Circuit affirmed the district court's dismissal of Plaintiff's claims alleging that Defendants violated the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A, and the Massachusetts Fair Debt Collection Practices Act, Mass. Gen. Laws ch. 93, 49, holding that both counts were time-barred. Plaintiff filed her complaint against the current holder of a mortgage on her property and the servicer of the mortgage loan, alleging that the loan was predatory because at its inception the lender knew or should have known that Plaintiff would not be able to repay it. Defendants removed the case to federal district court and then moved to dismiss the complaint. The district court dismissed the chapter 93A count as time-barred and the second count on the ground that chapter 93, 49 does not provide private right of action. The First Circuit affirmed the dismissal of both counts, albeit on different grounds, holding that both the chapter 93A claim and the chapter 93, 49 claims were time-barred.

Hill v. Warsewa

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-1025

Opinion Date: January 23, 2020

Judge: Paul Joseph Kelly, Jr.

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

Plaintiff-Appellant Roger Hill appealed a district court's dismissal of his complaint for failure to state a claim (Fed. R. Civ. P. 12(b)(6)) -- specifically for lack of prudential standing. Hill was a fly fisherman who preferred to fish at a favorite spot in the Arkansas River. Defendants-Appellees Mark Everett Warsewa and Linda Joseph (Landowners) contended they owned the Arkansas riverbed up to its centerline at the spot at which Hill preferred to fish. Hill contended this segment of the river was navigable for title at the time Colorado was admitted to the United States and that title to the riverbed consequently vested in the state at admission under Article IV of the Constitution and the Equal Footing Doctrine. According to Hill, the state holds this title in trust for the public, subject to an easement for public uses such as fishing. Defendant-Appellee State of Colorado agreed with the Landowner-Appellees that this segment of the river was non-navigable for title at statehood and was privately owned. The district court found that Hill lacked prudential standing because he asserted a generalized grievance and rested his claims on the rights of the state. The Tenth Circuit reversed. Hill alleged he had a specific, legally protected right to fish resulting from alleged facts and law. "The other parties and amici may ultimately be correct that Colorado law does not actually afford Mr. Hill the right to fish that he asserts, even if he can prove navigability as a factual matter. But in this regard 'far-fetchedness is a question to be determined on the merits.'" The Court assumed Hill’s claim had “legal validity” and concluded that he asserted his own rights, not those of Colorado, for prudential standing purposes.

Sabal Trail Transmission, LLC v. 3.921 Acres of Land in Lake County Florida

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-11836

Opinion Date: January 22, 2020

Judge: Jill Pryor

Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law

Sabal Trail brought a condemnation action to acquire permanent and temporary easements that would allow it to build and operate a portion of the pipeline on property owned by Sunderman Groves. The jury awarded Sunderman Groves $309,500 as compensation for the easements, and the district court entered a final judgment providing that as part of the compensation award, Sunderman Groves was entitled to recover its attorney's fees and costs in an amount to be set by the court. The Eleventh Circuit held that the district court did not abuse its discretion in allowing Sunderman Groves to testify about the value of the property and the court lacked jurisdiction to review whether Sunderman Groves was entitled to attorney's fees and costs. Accordingly, the court affirmed in part and dismissed in part.

Gamerberg v. 3000 E. 11th Street, LLC

Court: California Courts of Appeal

Docket: B290755(Second Appellate District)

Opinion Date: January 21, 2020

Judge: Dennis M. Perluss

Areas of Law: Real Estate & Property Law

The LLC, the successor in interest to the first landowner, appealed from the judgment upholding the unrecorded parking affidavit as an irrevocable license in favor of plaintiff, the successor in interest to the second property owner. The LLC claimed that the trial court erred as a matter of law by upholding the parking affidavit even though there was no actual or constructive notice of the parking affidavit when the property was purchased. The Court of Appeal held that an irrevocable license is not binding on a subsequent purchaser who takes without notice. The court held that Noronha v. Stewart, (1988) 199 Cal.App.3d 485, does not accurately characterize the assignability of an irrevocable license; to the extent an irrevocable license functions as an easement, it must be recorded to bind subsequent purchasers without actual notice; and, in this case, the Los Angeles Department of Building and Safety's failure to require recording of the 1950 parking affidavit and its present belief the parking affidavit was binding on subsequent purchasers are irrelevant.

Hedayatzadeh v. City of Del Mar

Court: California Courts of Appeal

Docket: D074690(Fourth Appellate District)

Opinion Date: January 22, 2020

Judge: Joan Irion

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

Farid Hedayatzadeh (Hedayatzadeh) appealed following the trial court's summary judgment in favor of the City of Del Mar (the City) in his lawsuit arising out of the death of his 19-year-old son, who was struck by a train on an oceanfront bluff in Del Mar on property owned by North County Transit District (NCTD). Specifically, Hedayatzadeh argued the trial court erred in granting summary judgment on his single cause of action alleging a dangerous condition of public property based primarily on the City's failure to erect any barriers to prevent pedestrians from accessing NCTD's train tracks. On the night at issue, Javad Hedayatzadeh and his friends walked around the guardrail at the end of 13th Street, down an unimproved dirt embankment, and crossed the train tracks. The group then walked northbound on the west side of the tracks to a spot where they sat and smoked marijuana. They knew they were trespassing on NCTD property. At various points along the railroad right-of-way, NCTD has installed signs stating "No Trespassing," "Danger" and "Railroad Property." Javad noticed a freight train coming from the south and told his friends that he was going to use his phone to take a video "selfie" of himself next to the train. As Javad was near the train tracks taking the selfie, he was struck by the train and killed. After filing an unsuccessful claim under the Government Claims Act, Javad's father, Hedayatzadeh, filed this lawsuit against the City, NCTD, and BNSF Railway Company, which allegedly operated the freight train. The Court of Appeal concluded that, as a matter of law, the City's property at the end of 13th Street did not constitute a dangerous condition of public property even though the City did not take action to prevent pedestrians from accessing the train tracks on NCTD's adjacent right-of-way by walking around the guardrail at the end of the street.

Williams v. 21st Mortgage Corp.

Court: California Courts of Appeal

Docket: A153307(First Appellate District)

Opinion Date: January 22, 2020

Judge: Tucher

Areas of Law: Banking, Consumer Law, Contracts, Real Estate & Property Law

Plaintiff alleges she bought her Richmond home in 1973, refinanced her mortgage in 2005, and unsuccessfully applied for a loan modification in 2015. Plaintiff was not allowed to make payments in the interim and owed $20,000 in arrears. Plaintiff sought Chapter 13 bankruptcy relief. She was required to make monthly payments to cover her pre-petition mortgage arrears plus her regular monthly mortgage payments. Plaintiff failed to make her regular October 2016 mortgage payment. Defendant sought relief from the automatic bankruptcy stay. The bankruptcy court approved an agreement that she would pay the October and November payments over a period beginning in January 2017. Plaintiff claims defendant violated that agreement, that her attempts to make those payments failed, and that she was unable to contact the defendant’s “single point of contact” for foreclosure avoidance (Civil Code 2923.7) Defendant obtained relief from the bankruptcy stay and would not accept the January 2017 payment. At the time of the bankruptcy sale, plaintiff’s home was worth approximately $550,000; defendant sold the home for $403,000. The court of appeal reversed the dismissal of plaintiff’s claim that she should have been able to avoid foreclosure by tendering the amount in default (Civ. Code 2924c) and that it was unlawful for defendant also to demand payment on amounts subject to a confirmed bankruptcy plan and reversed the dismissal of the section 2923.7 claim but upheld the dismissal of breach of contract, negligence, and elder abuse claims.

American Savings Bank, F.S.B. v. Chan

Court: Supreme Court of Hawaii

Docket: SCWC-15-0000309

Opinion Date: January 21, 2020

Judge: Sabrina S. McKenna

Areas of Law: Real Estate & Property Law

In this foreclosure dispute, the Supreme Court affirmed the judgment of the intermediate court of appeals (ICA) affirming the circuit court's determination of lien priority between the Villages of Kapolei Association's (Association) lien and the Hawai'i Housing Finance and Development Corporation's (HHFDC) competing lien and the valuation of HHFDC's senior lien, holding that the ICA did not err. Specifically, the Court held (1) the ICA did not err by affirming the circuit court's alleged retroactive application of Haw. Rev. Stat. 201H-47 to rule that the HHFDC's lien was senior and superior to the Association's liens; (2) the ICA did not err in determining the appraisal process applied; and (3) the ICA did not err by holding that HHFDC had standing to enforce a shared appreciation or equity agreement between another party and HHFDC's predecessor in interest.

In re Tax Appeal of Kaheawa Wind Power, LLC v. County of Maui

Court: Supreme Court of Hawaii

Docket: SCAP-17-0000816

Opinion Date: January 21, 2020

Judge: Mark E. Recktenwald

Areas of Law: Constitutional Law, Energy, Oil & Gas Law, Real Estate & Property Law

In this taxation dispute between the County of Maui and Appellees, which leased land on the island of Maui to operate their wind farms, the Supreme Court upheld the Tax Appeals Court's (TAC) final judgment in favor of Appellees, holding that the TAC properly held that the County exceeded its constitutional authority by amending Maui County Code 3.48.005 to expand its definition of "real property" to include "personal property." The County included the value of Appellees' wind turbine in their real property tax assessments and redefined the term "real property" within section 3.48.005 of the MCC to include wind turbines for that purpose. The TAC concluded that the County exceeded its authority under Haw. Const. art. VIII, 3 because the delegates to the 1978 Constitutional Convention did not intend to grant counties the power to redefine "real property." The Supreme Court affirmed, holding that the County exceeded its constitutional power when it amended MCC 6.48.005 to redefine "real property."

Town of Gorham v. Duchaine

Court: Maine Supreme Judicial Court

Citation: 2020 ME 7

Opinion Date: January 21, 2020

Judge: Joseph Jabar

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

The Supreme Judicial Court vacated the order of the district court granting the Town of Gorham's motion to enforce a consent decree entered earlier in a land-use dispute, holding that there was not a proper record to support the trial court's findings. The Town filed a land-use enforcement claim in the district court charging Defendants with violations of the Gorham Land Use and Development Code. The parties settled the dispute by agreeing to terms set forth in a consent decree, and the trial court ordered the consent decree to be entered as a judgment. The Town then filed a motion to enforce the consent decree, alleging noncompliance on the part of Defendants. The court granted the Town's motion. The Supreme Judicial Court vacated the judgment below, holding that the court order was not supported by competent evidence in the record.

Magliacane v. City of Gardner

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12736

Opinion Date: January 22, 2020

Judge: Ralph D. Gants

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

The Supreme Judicial Court vacated the judgment of the superior court dismissing Plaintiff's putative class action suit alleging that the City of Gardner and its private water supply contractors were negligent and grossly negligent and created a nuisance in knowingly supplying corrosive water to the City's residents, holding that the superior court judge erred in dismissing the complaint for lack of timely presentment. In allowing the City's motion to dismiss the judge concluded that Plaintiff failed to make timely presentment as required by the Tort Claims Act, Mass. Gen. Laws ch. 258, 4. The Supreme Judicial Court vacated the dismissal, holding (1) the Act covers all claims brought against a city, even claims arising from the city's sale of water to its residents; and (2) the trial judge erred in dismissing Plaintiff's complaint for lack of timely presentment.

Village Lofts at St. Anthony Falls Ass'n v. Housing Partners III-Lofts, LLC

Court: Minnesota Supreme Court

Docket: A18-0256

Opinion Date: January 15, 2020

Judge: Thissen

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed in part and reversed in part the decision of the court of appeals affirming the district court's dismissal of Village Lofts at St. Anthony Falls' common-law claims and statutory warranty claims, holding that, for statute of repose purposes, a single warranty date applies to an entire condominium claim and that the two buildings in this case that compromised a condominium building were separate improvements to real property. In dismissing Village Lofts' claims, the district court concluded that the claims were barred by the statutes of repose in Minn. Stat. 541.051. The Supreme Court affirmed in part and reversed in part, holding (1) in determining how the statute of repose operates for claims of breach of the statutory warranties in Minn. Stat. ch. 327A, a single warranty date applies to each unit within a condominium building; and (2) the two buildings that compromised the condominium development at issue in this case constituted two separate improvements to real property for purposes of applying the repose period in Minn. Stat. 541.051 to defective and unsafe condition claims.

Gustafson v. Poitra, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 9

Opinion Date: January 23, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Landlord - Tenant, Native American Law, Real Estate & Property Law

Linus and Raymond Poitra appeal the district court judgment of eviction. The Poitras argue the district court erred by exercising jurisdiction over this matter, and by sending a North Dakota law enforcement officer onto the reservation to evict tribal members from property within the Turtle Mountain Reservation. The North Dakota Supreme Court determined the Poitras did not meet their burden under either "Montana" exception, and did not explain how a district court was divested of subject matter jurisdiction to grant a judgment of eviction. The district court judgment was therefore affirmed.

Hauer v. Zerr, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 16

Opinion Date: January 23, 2020

Judge: Jensen

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

Craig Hauer appealed the dismissal of complaint seeking reformation of a deed to secure hunting access to property he had conveyed to Kurt and Lois Zerr. In 2013, Hauer sold land to the Zerrs. The parties’ contract and deed both include language reflecting the parties’ intent to allow Hauer to reserve hunting access to the land. Hauer accessed the land to hunt pursuant to the reservation until the Zerrs, believing the reservation to be unenforceable pursuant to N.D.C.C. 47- 05-17, denied Hauer access to the property. Hauer initiated this action seeking to reform the deed to reflect the parties’ intent to allow Hauer access to the property. The North Dakota Supreme Court concluded the district court correctly dismissed Hauer’s complaint seeking reformation of the deed and affirmed the district court.

McDougall, et al. v. AgCountry Farm Credit Services, PCA, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 6

Opinion Date: January 23, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Business Law, Consumer Law, Real Estate & Property Law

Michael and Bonita McDougall appealed a judgment dismissing their deceit and unjust enrichment claims against AgCountry Farm Credit Services, PCA and granting summary judgment in favor of AgCountry on its claims to enforce assignment of rents and to foreclose a mortgage. The North Dakota Supreme Court concluded the district court erred by concluding the McDougalls’ deceit claim was precluded by the statute of frauds. Therefore the Court reversef the judgment as to the deceit and unjust enrichment claims, affirmed judgment on the remaining claims, and remanded.

Briggs, et al v. Southwestern Energy

Court: Supreme Court of Pennsylvania

Docket: 63 MAP 2018

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

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

At issue was whether the rule of capture immunized an energy developer from liability in trespass, where the developer used hydraulic fracturing on the property it owned or leased, and such activities allowed it to obtain oil or gas that migrated from beneath the surface of another person’s land. Plaintiffs’ property was adjacent to a tract of land leased by Appellant Southwestern Energy Production Company for natural gas extraction. Plaintiffs alleged that Southwestern “has and continues to extract natural gas from under the land of the Plaintiffs,” and that such extraction was “willful, unlawful, outrageous and in complete conscious disregard of the rights and title of the Plaintiffs in said land and the natural gas thereunder.” Southwestern alleged that Plaintiffs’ claims were barred by, inter alia, the rule of capture, and sought declaratory relief confirming its immunity from liability. The court of common pleas court granted Southwestern’s motion for summary judgment, denied Plaintiffs’ motion for partial summary judgment, and denied the motion to compel as moot. The court agreed with Southwestern’s position that the rule of capture applied in the circumstances and, as such, Plaintiffs could not recover under theories of trespass or conversion even if some of the gas harvested by Southwestern had drained from under Plaintiffs’ property. The Superior Court reversed, holding that hydraulic fracturing could give rise to liability in trespass, particularly if subsurface fractures ... crossed boundary lines. The Pennsylvania Supreme Court rejected the concept that the rule of capture was inapplicable to drilling and hydraulic fracturing that occurred entirely within the developer’s property solely because drainage was the direct or indirect result of hydraulic fracturing. Nevertheless, the Supreme Court found the Superior Court panel’s opinion "to suffer from multiple infirmities," reversed and remanded with directions.

Conley v. Crown Realty, LLC

Court: Rhode Island Supreme Court

Docket: 19-66

Opinion Date: January 17, 2020

Judge: Francis X. Flaherty

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the decree of the superior court foreclosing Crown Realty LLC's right of redemption to real property that was the subject of a 2017 tax sale, holding that that the superior court justice properly entered a decree forever barring Crown Realty's right of redemption. Crown Realty was the owner of real property that was sold to Plaintiff at a tax sale conducted by the Town of North Providence. Plaintiff failed a petition to foreclose the right of redemption, citing a failure to any interested party to redeem the property. The justice determined that Crown Realty's right of redemption was barred. One week later, a final decree was entered foreclosing the right of Crown Realty to redeem the property. The Supreme Court affirmed, holding (1) Crown Realty's request that an exception to Conley v. Fontaine, 138 A.3d 756 (R.I. 2016), be applied in this case was misplaced; and (2) no implied-in-fact contract existed between the parties.

Carmody v. Lake County Board Of Commissioners

Court: South Dakota Supreme Court

Citation: 2020 S.D. 3

Opinion Date: January 22, 2020

Judge: Kern

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

The Supreme Court affirmed the decision of the Lake County Board of Commissioners, sitting as the Lake County Drainage Board (Board), approving the application for permits filed by Steven Carmody and Edward Becker to install drain tile on their respective properties in Lake County, holding that the circuit court did not err when it affirmed the Board's decision to issue the drainage permits. James Carmody objected to both permits and appealed the Board's approval of the permits to the circuit court. The circuit court applied the abuse of discretion standard of review and affirmed the Board's approval of the drainage permits. The Supreme Court affirmed, holding that the circuit court (1) applied the correct standard of review and burden of proof to Carmody's appeal of the drainage permits; and (2) did not abuse its discretion when it affirmed the Board's decision to issue the drainage permits.

Portsmouth 2175 Elmhurst, LLC v. City of Portsmouth

Court: Supreme Court of Virginia

Docket: 181439

Opinion Date: January 23, 2020

Judge: McCullough

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the judgment of the trial court upholding Taxpayer's real estate assessments for the years 2013, 2014 and 2015 for a property located in the City of Portsmouth and the attorney's fees charged to Taxpayer to collect the assessments, holding that the trial court did not err or abuse its discretion. Specifically, the Court held (1) Va. Code 58.1-3984(B) establishes the method for challenging real property assessments; (2) Taxpayer failed to establish that the assessment for the property deriving from a mass appraisal did not conform to generally accepted appraisal practices, procedures, rules and standards or applicable state law relating to valuation of property; and (3) the trial court acted within its discretion in concluding that the attorney's fees were reasonable.