Takings By The Judiciary

By: Michael M. Berger
– Daily Journal

In his latest Daily Journal column, Manatt Appellate Senior Counsel Michael Berger discussed a case alleging the California Supreme Court engaged in an unconstitutional private property taking in its decision in Romero v. Shih.

The case surrounds a Sierra Madre property owner’s dispute with his neighbor over lot boundaries that ultimately went to the California Supreme Court, which held that the neighbor would receive exclusive easement to a portion of the lot despite the owner’s continued responsibility to pay taxes on the entire property. With exclusion from and no compensation for parts of the lot, the property owner filed a cert petition with the U.S. Supreme Court claiming the California Supreme Court had violated the owner’s 5th Amendment protections. The property owner’s petition seeks to build on previous court decisions establishing that a judicial action is unconstitutional if it results in the forfeiture of a property right that would normally be considered a taking if done by the legislative or executive branches. Berger explains how the petitioner in Romero v. Shih argued that the California Supreme Court radically changed the law when it granted the neighboring property an exclusive easement.  

“In so doing, the state Supreme Court had taken a slice through the owner’s entire bundle of property rights, specifically including the rights of possession, control, exclusion, enjoyment, and disposition,” Berger wrote. “If true, the property owner may get his chance to prove those invasions at trial.” 

Daily Journal subscribers can read the full article here.



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