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The Supreme Courthas ruled on an important test first posed by Justice William Brennan nearly 40 years ago about property rights, as Justice Anthony Kennedy sided with the Court's four liberal Justices on Friday.

In 1978, Brennan wrote for a 6-3 majority in the Penn Central v. New York City case that redefined property rights under the Fifth Amendments Takings Clause and also served as a foundation for historic preservation programs at a local level.

The current case in front of the Court, Murr v. Wisconsin, didn't involve a glamorous property such as Grand Central Station, the subject of Brennans opinion. Instead, the dispute was about a vacant vacation property, and if the parcel was part of a combined lot, or a parcel on its own.

On Friday, the majority 5-3 opinion written by Kennedy sided with the state of Wisconsin in the dispute, saying the test devised by Brennan was properly applied by the state, but that the courts also needed to include more than just Brennan's test in deciding similar disputes.

"The governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land," Kennedy said. "Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. ...Courts must instead define the parcel in a manner that reflects reasonable expectations about the property."

Chief Justice John Roberts wrote the dissent. "State law defines the boundaries of distinct parcels of land, and those boundaries should determine the 'private property' at issue in regulatory takings cases. Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account," he said.

The Murr family has owned two riverfront lots since the 1960s; one of the lots contained a vacation cottage; the other lot wasnt developed. One lot was in the parents name while the other was in the name of a company owned by the family. The two lots were jointly conveyed to four of their children in 1994 and 1995.

In 2004, when the children began to explore selling the empty lot to pay for improvements in the cottage, they found out that a zoning law established in 1975 barred the children from selling the empty lot separate from the cottage because two adjoining lots were now owned by one entity. The zoning law also prohibited the development of the empty lot because it didnt meet minimum size requirements for an independent lot.

The dispute in front of the Supreme Court involved a concept called a parcel as a whole. In 1978, Brennan fashioned that test as part of the Penn Central decision.

A New York City commission prohibited the Penn Central Railroad from redeveloping Grand Central Station after two plans substantially changed the buildings historic look above the building. Penn Central sued, claiming it should receive full compensation for the air rights about Grand Central Station.

Brennan and the majority disagreed, saying the commissions decision wasnt a taking under the Fifth Amendment and that the railroad still could derive a reasonable economic return from the buildings use. The decision established a four-part test to determine if a property holder should receive just compensation under the Fifth Amendment if a government policy or action results in a taking of their property.

One of the four parts was called the parcel of a whole. Brennan said that this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a wholehere, the city tax block designated as the landmark site. In that context, the Court said the Grand Central building and the air space above it was one property in terms of the Fifth Amendments Takings Clause.

The Murr familys lawyerscited another landmark Supreme Court decision, Lucas v. South Carolina Coastal Council (1992), to support their claim that they should be able to sell the property or seek compensation from the government.

The Lucas decision said that the denial of all economic use of a property by a government regulation was a taking under the Fifth Amendment and required just compensation. The Wisconsin government has argued that the properties should be considered as a whole in the takings analysis, citing the Penn Central decision. The state appeals court ruled against the Murr family and the family filed an appeal with the Supreme Court, which was accepted in January 2016.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Fifth Amendment, Supreme Court

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Supreme Court decides Takings Clause case as term winds down - Constitution Daily (blog)

Former Pennsylvania Attorney General Kathleen G. Kane, free on bail while she appeals her perjury conviction, invoked her Fifth Amendment right not to testify this week in a court hearing in which an accused Pittsburgh killer is challenging wiretap evidence against him.

In a complicated pretrial legal fight, Price Montgomery, an alleged drug dealer charged with fatally shooting a witness, is seeking to exploit a feud between Kane and one of her top deputies that broke out in 2014, at the same time the Attorney Generals Office had tapped Montgomerys cellphone.

Kane went on a vacation to Haiti at that time, and because of the feud had refused to sign routine paperwork authorizing deputy Adrian King to make key decisions in her absence. Nonetheless, King approved the wiretap, using an autopen to add Kanes signature to the document; the recorded conversations allegedly implicate Montgomery.

Now, Montgomery and his codefendants want the wiretap evidence barred on grounds that the tap was approved without proper legal authority.

The hearing showed howKanes tumultuous tenure as attorney general continues to have a ripple effect, almost a year after she stepped down.

Kane, who has kept a low profile since her conviction, took the stand briefly Tuesday in federal court in Pittsburgh only to decline to answer questions, according to several courtroom observers. King had testified the day before, saying that Kane approved the wiretap in a call from the airport as she left for her trip. King provided cellphone records and his notes from the call to back up his account.

King was a key witness against Kane in her criminal case. The former attorney general took note of that in explaining why she took the Fifth.

I know how this works: I say one thing. Adrian King says another. I get charged with perjury, Kane told federal prosecutors a few days before the hearing, according to defense attorney Michael DeRiso, who represents one of Montgomerys codefendants. He said prosecutors had shared notes of Kanes remarks with them.

Kane could not be reached for comment; a call to her home this week went unanswered.

Kanes lawyer for the hearing, Thomas J. Farrell, refused to say whether he was her lawyer. Federal prosecutors also declined comment. U.S. District Judge Mark R., Hornak will rule on the suppression motion in the fall.

Montgomery, 36, is charged with the Aug. 22, 2014, killing of Tina Crawford, 34, also of Pittsburgh, who was shot 10 times at her home as she was leaving to talk with federal prosecutors. Her mother was wounded in the same attack.

Two months before the shootings, Montgomery had been arrested on drug-dealing charges after police seized 1,500 bricks of heroin, more than $100,000, and 16 handguns, shotguns, and rifles in a raid.

Though the wiretap was placed by the Attorney Generals Office, federal prosecutors are pursuing the case. DeRiso said that knocking out the wiretap evidence would undermine the drug charges, but was uncertain about its impact on the charge involving the killing of the witness.

In legal papers defending Kanes right to invoke her constitutional right against self-incrimination, Farrell noted that even innocent people may cite the Fifth Amendment so as not to provide any information to authorities.

He also noted that Kanes conflict with King was explored during the 2016 trial in Montgomery County that ended with her conviction on perjury and obstruction charges.

A jury found that she lied under oath in denying that she had unlawfully leaked confidential investigative material to a newspaper in a bid to embarrass a political enemy. King, now a lawyer in Philadelphia, was a key prosecution witness, testifying that he had warned Kane not to leak material. His relationship with Kane grew chilly after he provided that advice.

Kane was sentenced to serve 10 to 23 months in jail. She has appealed her conviction to Superior Court.

Published: June 23, 2017 5:38 PM EDT

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Former AG Kane takes Fifth in wiretap case - Philly.com - Philly.com

Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Courts contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.

Friday, inMurr v. Wisconsin, Thomas suggested that the court shouldreconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the courts doctrine and the original meaning of the Fifth Amendments takings clause. He wrote:

I join THE CHIEF JUSTICEs dissent because it correctly applies this Courts regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a general rule that if regulation goes too far it will be recognized as a taking. But we have since observed that, prior to Mahon, it was generally thought that the Takings Clause reached only a direct appropriation of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a practical ouster of [the owners] possession, Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaports paper:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amars theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitutions original meaning does not apply to state regulatory takings.

Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).

If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure and constitutionally sound foundation.

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Should regulatory takings doctrine be reconsidered from the ground up? - Washington Post

SAN FRANCISCO (CN) Despite multiple orders directing Uber to hand over evidence in a trade secrets brawl with Google spinoff Waymo involving driverless car technology, attorneys for both companies were back in court Friday debating which documents Uber must share.

U.S. Magistrate Judge Jacqueline Scott Corley handed Uber its first discovery victory Friday, ruling that the ride-hailing giant does not have to produce communications with its attorneys at Morrison and Foerster, which are listed on a privilege log it gave Waymo in March.

Corley didnt buy Waymos argument that even if the communications are privileged, they must be produced under the crime-fraud exception.

I do not find that the crime-fraud exception applies, so Im not going to order those documents which are just between Uber and MoFo [Morrison & Foerster] be produced, Corley said.

The crime-fraud exception states that communications are not privileged when a client consults an attorney for advice on furthering a crime.

Waymo sued Uber and its driverless car company, Otto, in February, claiming its former engineer, Anthony Levandowski, stole 14,000 confidential files from Waymo related to its self-driving car technology. Waymo accused Uber of using those files to set up Otto, which Uber quickly acquired. Waymo did not name Levandowski as a defendant.

The following month, Uber gave Waymo a privilege log that contained a due-diligence report, which it had commissioned to evaluate the Otto acquisition. Stroz Friedberg, the investigation firm that prepared the report, purportedly saw the stolen files during its review. Fearing criminal prosecution, Levandowski invoked his Fifth Amendment rights. This allowed him to avoid testifying at his deposition about the report and also prohibited Uber from giving Waymo a revised privilege log with more information about it, including whether Levandowski had any of the documents Stroz Friedberg reviewed.

U.S. District Judge William Alsup, who is overseeing the case, denied Levandowskis Fifth Amendment motion, writing in a May 15 order that Levandowki had likely concealed troves of self-incriminating evidence by trying to invoke the Fifth Amendment.

Waymo still wants the due-diligence report, but Uber insisted that it was protected by work-product and attorney-client privilege. Corley, however, ruledearlier this month that Uber must produce it, and Alsup affirmed the decision this week.

Fighting now for the communications on Ubers privilege log between Uber and its lawyers, which may relate to the due-diligence report, Waymo attorney Charles Verhoeven made his case Friday about the crime-fraud exception.

If you are aware that someone has stolen files and you come into possession of these stolen files, it is a crime to continue to conceal that from the competitor and work with the person, in this case Mr. Levandowski, who has taken the Fifth, to continue to destroy that evidence or maintain it in some confidential way, he said.

Bolstering that argument is a Wednesday filing by Waymo telling the court that Uber admitted that Levandowski told Uber CEO Travis Kalanick more than a year ago that he had five discs containing information from Google, and that Kalanick told him not to bring the information to Uber. Shortly after, Levandowski told Uber that he had destroyed the discs.

Ive reviewed in-camera the due-diligence report, and I dont find that, Corley replied. What the due-diligence report is about, I found, in order to evaluate acquiring Otto, they were doing an investigation into Mr. Levandowski, including whether they had taken any documents and to create a record should any indemnification obligation arise. Thats not crime-fraud. There is no evidence they consulted MoFo [Morrison & Foerster] in order to receive stolen property. The communications have to be in furtherance of that scheme.

Uber attorney Martha Goodman told Corley that an exhaustive search of Ubers servers for the files hasnt turned them up.

All of the evidence [shows] that Uber does not possess these files, she said. In fact, all of the evidence shows that Uber is doing all it can to make Levandowski return anything that belongs to Google.

Uber fired Levandowski last month for refusing to cooperate with its internal investigation into the files.

Verhoeven countered that Morrison & Foerster has admitted that it has the files. And in a brief, Waymo contends that the firm has been sitting on some of the stolen files for over a year.

Corley remained unconvinced, telling Verhoeven that there is an inference to be drawn that Morrison & Foerster received the files along with the due-diligence report while reviewing the Otto acquisition.

You cant prove by the preponderance of the evidence that that is receipt of stolen property, she said, before reminding Verhoeven that Waymo will still get the due-diligence report.

Although Alsup has ordered Uber to turn over the report, he stayed his ruling until June 30 so Uber and Levandowski can appeal his decision.

Uber still faces an uphill battle over producing evidence. The company failed to meet a May 31 deadline to make Levandowski return the files, prompting Waymo to move earlier this week for an order to show cause why Uber should not be held in contempt for missing the deadline.

A hearing on that motion is set for July 27.

Verhoeven is with Quinn Emanuel Urquhart & Sullivan in San Francisco, and Goodman is with Boies Schiller Flexner in Washington.

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Uber Can Witthold Attorney Files in Driverless Car Discovery - Courthouse News Service

Uber admitted that it hired a former Google employee despite being warned that he possessed sensitive documents from the Silicon Valley giant, adding a new twist to a court battle over trade secrets.

Waymo, the self-driving car developer created by Alphabets (GOOGL) Google, has accused Uber of using stolen trade secrets in its own software that would serve as the backbone of autonomous vehicles. Uber has denied the charges. However, the ride-sharing company fired Anthony Levandowski, the ex-Google engineer and Uber executive, for failing to cooperate with an internal investigation.

Waymos lawsuit maintains that Uber then transplanted the intellectual property allegedly stolen by Levandowski into its own fleet of self-driving vehicles a charge that Uber has adamantly denied since Waymo filed its complaint in federal court four months ago.

In May, U.S. District Judge William Alsup ordered Uber to return the stolen files, writing that evidence indicated the company "knew or should have known that he possessed over 14,000 confidential Waymo files."

Now, Uber has for the first time has acknowledged that Levandowski informed its now-departed CEO, Travis Kalanick, that he had five disks filled with Google's information five months before joining Uber. The disclosure, made in March 2016, lends credence to Waymo's allegation that Levandowski downloaded 14,000 documents on to a computer before leaving Google.

The admission was contained in a Thursday court filing.

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Uber, though, says Kalanick told Levandowski not to bring any of the Google information with him to Uber. At that time, a deal had been reached for Uber to buy Levandowski's startup, Otto, for $680 million, though the acquisition wasn't completed until August 2016.

The filing asserts that Levandowski destroyed the disks containing Google's material not long after Kalanick told him that Uber didn't want the information on them.

Levandowski's lawyers didn't immediately respond to requests for comment. They have been advising Levandowski to assert his Fifth Amendment right against self-incrimination since Waymo filed its lawsuit.

Based on the evidence he has seen so far, Alsup has already referred the case to the Justice Department for a potential criminal investigation.

The scenario sketched by Uber comes a few weeks after the company fired Levandowski for refusing to relinquish his Fifth Amendment rights and cooperate with its efforts to defend itself against Waymo's suit.

Kalanick resigned as Uber's CEO Tuesday week after investors demanded he step down. The investors who have financed Uber's growth had concluded Kalanick had to go following revelations of sexual harassment in the company's office, a federal investigation into company tactics used to thwart regulators, and the threat of even more trouble posed by the Waymo lawsuit.

The Associated Press contributed to this report.

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Uber admits it knew ex-Google engineer kept trade secrets - Fox Business