Law360 Features Manatt Appellate Co-Chair

Law360 Features Manatt Appellate Co-Chair

"Q&A With Manatt's Michael Berger"

July 1, 2013 - Law360 published an article featuring Manatt's Michael Berger, co-chair of the firm's Appellate Practice, and his work as an appellate lawyer.

In a Q&A session with the publication, Berger reflects on his 45 years as an appellate lawyer. He has argued four cases in the U.S. Supreme Court and has appeared in numerous state and federal appellate courts around the country. When asked what the most challenging case he has worked on would be, he said:

"The most challenging case was First English Evangelical Lutheran Church v. County of Los Angeles in the U.S. Supreme Court. It was my first case before the court, and it dealt with a critical issue in land use regulation and constitutional takings law. The question was whether the Fifth Amendment's guarantee that private property would not be taken for public use without just compensation applied when the taking was accomplished by regulation, rather than some sort of physical invasion. The issue was challenging and critical because government entities and their lawyers stridently denied that the Fifth Amendment provision could be applied to land regulations, regardless of how severely they impacted the ability to use regulated property. Adding to both the difficulty and suspense, it was the fourth time in less than a decade that the court had granted certiorari to consider that precise question. In each of the earlier cases, the court had full briefing and argument on the merits and then concluded (for varying reasons) that each case was not sufficiently 'ripe' for the court to decide. Would the fifth time be the charm, or would it just add to the heap of unripe regulatory taking cases?

"Our position was opposed by a vast array of governmental entities appearing amicus curiae in support of the county. These ranged from cities and counties through environmental and planning organizations and included the solicitor general of the United States. All urged the court to hold that no land use regulation could ever run afoul of the Fifth Amendment. Many of them seriously argued that government could not go on if it had to pay for the confiscatory impacts of its regulations. We were supported by organizations of homebuilders and realtors, as well as a conservative public interest foundation and the American College of Real Estate Lawyers. In other words, the court received arguments from many of the best informed lawyers in this field.

"In the end, the court decided it had finally found a case that was sufficiently ripe to decide the issue. On the merits, the court accepted my argument that regulations are covered by the Fifth Amendment prohibition, the same as physical invasion. The court also concluded that the taking prohibition includes temporary takings as well as permanent ones. The decision ended at least a decade of lower court confusion about the scope and effect of the Fifth Amendment's taking clause. The opinion now appears in numerous Constitutional Law and Land Use Law casebooks."

Read the article here.



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