Archive for the ‘Cases & Reports’ Category
Texas voters will decide in November whether Article I, Section 17, of the Texas Constitution — the “takings clause” that sets forth government’s power of eminent domain – will be amended. Proposition 11 tightens the reins on government’s ability to acquire private property for public use upon payment of just compensation.
The origins of Proposition 11 date to 2005, when the U.S. Supreme Court ruled in Kelo v. City of New London, Conn., that condemning property for purely economic development purposes was constitutional. More surprisingly, the court ruled government could rightly delegate its eminent domain power to private entities. Justice Sandra Day O’Connor’s succinctly summed up public opinion, stating, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.”
Texas legislators countered the ruling by adding the Limitations on Use of Eminent Domain statute to the Texas Government Code. The statute holds, in part, that a governmental or private entity may not take private property through the use of eminent domain if the taking: (i) confers a private benefit on a particular private party; (ii) is for a public use that is merely a pretext to confer a private benefit on a particular private party; or (iii) is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society. Voter approval of Proposition 11 would put these concepts in the Texas Constitution.
While most takings legitimately benefit the public — widening congested roadways, developing mass-transit rail facilities, building schools for expanding populations, improving detention to reduce flooding — a sporadic wrangling over what constitutes a public use may still remain if Proposition 11 is approved. For example, government will continue to have eminent domain power over blighted areas, but the definition of blighted remains ambiguous. Also not addressed by Proposition 11 are important elements of eminent domain actions, including the manner in which government acquires property and the debate concerning those elements of market value loss that constitute just compensation.
Senate Bill 18, which was not voted on by the House of Representatives, sets forth numerous landowner-leaning provisions dealing with the manner in which government acquires private property. Among other provisions are more strict guidelines concerning good faith negotiations criteria; the creation of a “Truth in Condemnation Procedures Act” that stiffens procedures relating to bona fide offers; and a tightly defined buyback provision. No doubt these issues will be the subject of spirited future debates.
I recently moved from the Upper Peninsula of Michigan, which is known for its harsh, icy winters. It’s safe to assume that Michigan law has plenty of previous cases concerning slip and fall cases on icy surfaces. The Supreme Court of Texas recently “granted cert” to hear a case concerning such falls. The question before the court is “Which standard of liability should govern TX slip and falls on icy surfaces?” The Texas Supreme Court has the option of two rules:
The Massachusetts Rule
“The Massachusetts Rule generally requires the pedestrian to look out for his own safety while walking on ice.”
The Connecticut Rule
“The Connecticut Rule places the burden on the premises owner to clear ice and snow from the property.”
Scott and White Hospital Memorial Hospital v. Fair (Petition for Review)PDF
Whichever way the court decides, I swore by this product in icy conditions.
I wonder if I’ll be able to snowboard in Texas anytime soon…
Source
An important case in online video sharing was decided last week. In Universal Media Group v. Veoh Networks (PDF) the federal judge dismissed the case on the grounds that he believed Veoh Network Inc, a popular video sharing website, fell under safe harbor clauses within the DMCA. The Digital Millennium Copyright Act is the act that protects copyrights in the online realm. An Electronica Frontier Foundation spokesperson felt that this case would also apply to YouTube in that their terms of services and procedures are similar.
This case allows video sharing sites to fend off liability for copyright infringement from it’s users given they use a rather low standard of procedures in handling reported infringing use. The case seems to acquiesce that works may be ‘performed’ and the sharing sites don’t need to ‘pre-check’ the videos before it displays them. This burden on video sites to remove infringing works strikes a balance between IP rights and video dissemination. While it’s still a considerable financial burden on sharing sites the costs aren’t as bad as facing copyright litigation.
What discussion of online videos and applicable law would be complete without an embedded High-Def video?
Texas voters approved three constitutional amendments that will help reform the property appraisal process, making the system fairer for property owners. Voters also passed a proposition that will strengthen protections against a government entity unfairly taking private land or homesteads through eminent domain.
Proposition 2 will ensure that property-tax appraisals value a residence homestead as a home, not at its “highest and best use.”
Proposition 3 creates uniform standards across the state for appraisal methods.
Proposition 5 enables appraisal districts in two adjoining counties to combine resources for a single review board.
Proposition 11 strengthens eminent domain protections, barring government entities from taking private property for private development or for purely economic reasons.
The WSJ reported that Homeowners claimed a victory in New Jersey where a nationwide grassroots effort to stop government abuse of eminent domain power since the misguided decision in Kelo v. City of New London.
“Under that standard, as Sandra Day O’Connor wrote in her dissent in Kelo v. City of New London, any Motel 6 can be knocked down for a Ritz-Carlton. In the Long Branch case, the contracts even ceded the city’s power of eminent domain to the developers, giving private businesses the ability to tell the city when it should confiscate private property. Such flagrant abuse of public power for private purposes troubles most voters. In the wake of Kelo, some 43 states have reformed eminent domain laws to ensure they couldn’t become a tool used casually against local homeowners on behalf of private interests. New Jersey is one of seven states that did nothing. The Garden State’s courts have been more active, however. In 2007, the New Jersey Supreme Court ruled that to qualify for blight, an area must be a detriment to the health, safety and welfare of its residents. Subsequent rulings have adopted this more robust protection of private property, including for the homeowners of Long Branch.”