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Fifth Amendment

The following summaries are of recent published decisions of the California appellate courts, the Ninth Circuit, and the United States Supreme Court. The summaries are presented without regard to whether Severson & Werson represented a party in the case.

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Dodging the question whether the takings clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment creates by its own force a cause of action authorizing suits for just compensation, the Supreme Court finds that the precondition for any such constitutional claim would be the absence of any other available remedy.  Since Texas state law and… Read More

To pass 5th Amendment restraints on public taking of private property, a condition that a government entity imposes on a permit for development of private property must have an “essential nexus” to the government’s land-use interest and  have “rough proportionality” to the development’s impact on the land-use interest.  This decision holds that those tests apply to any condition imposed on… Read More

The county's sale of plaintiff's condo at a tax sale to collect delinquent taxes plaintiff owed.  The sale netted a sum greater than the taxes owed.  The county kept the surplus sale proceeds.  That was a taking of plaintiff's property that violated the Fifth Amendment even though state law allowed the county to keep the surplus.  To determine the scope… Read More

The Agricultural Labor Relations Board's access regulation (Cal. Code Regs. tit. 8, § 20900) gives agricultural labor unions a limited right to access to agricultural workers while on their employer's property for an hour before and after work and during the lunch hour for four months out of the year.  This decision holds that the regulation is a per se… Read More

The Eminent Domain Law’s procedure for allowing condemning authorities to perform pre-condemnation testing of property meets state and federal constitutional requirements so long as it is reformed to allow jury determination of the property owner’s damages from the testing.  Read More