Good News for Landlords

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.

Is the US Government, Corrupt California or other State, or Anti-Capitalists from Los Angeles or other Municipal ALLOWING YOUR TENANTS TO NOT PAY RENT ?

Are they enacting ordinances to allow delinquency of debt is against property owner rights. The National Emergency of COVID-19 Pandemic is over. On Feb 22, 2022 — President Biden released a notice extending the national emergency declaration for the COVID-19 pandemic beyond March 1 2022. Any ordinance made after this NON PANDEMIC is considered unconstitutional.

The Fifth Amendment protects the right to private property in two ways.  First, it states that a person may not be deprived of property by the government without “due process of law,” read more 

The following case below hold liable all government employees that make ordinances outside of a national emergency which as of March 1, 2022 Covid-19 Emergency is officially over CHAVIS V. BLIBAUM, ___Md.___(August 27, 2021) see also  BRITTANY SIMMONS, ET AL.   v.     THE MARYLAND MANAGEMENT COMPANY, ET AL.  read more here

You cannot impose any law or doctrine that would prevent me from the exercising of a privilege granted by the Bill of Rights. MURDOCK v. COMMONWEALTH OF PENNSYLVANIA A state may not impose a charge for the enjoyment of a right granted by the federal constitution

Marbury v. Madison Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States.

But whenever the operation and effect of any general regulation is to extinguish or destroy that which by law of the land is the property of any person, so far as it has that effect, it is unconstitutional and void.  Thus, a  law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, destroys its value, restricts or interrupts its common, necessary, or profitable use, hampers the owner in the application of it to the purposes of trade, or imposes conditions upon the right to hold or use it and thereby seriously impairs its value.  (Statute) 167 Am. Jur. 2d, Constitutional Law, Section 369.

Justice  Bandeis  eloquently  affirmed  his  condemnation  of  abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of  Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared:

“Decency,  security,  and  liberty  alike  demand  that Government officials shall be subjected to the same rules of  conduct  that  are  commands  to  the  Citizen.  In  a Government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher.

For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.”

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.”  In Re Newman (1858), 9 C. 502.

Under USC Title 42 §1982. Property rights of citizens …, further evidences the above position that the City or State cannot take land because they DO NOT have Jurisdiction.                         It states that federal or state governments / agencies MUST have a monetary or proprietary interest in your real private property in order to have jurisdiction over it (if your land has no government grant/funding or is not a subsidized government project, then agencies have neither).                         DEMAND any public servant/said agencies to provide the legal document that allows any federal or state agency to supersede and/or bypass Title 42 USC §1982 and/or §1441.   Title 42 §1983. Civil action for deprivation of rights …, further  protects Declarant’s private property.

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.” Court will assign to common-law terms their common-law meaning unless legislature directs otherwise.

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.” Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

Please feel Free to read the excellent pamphlet to help you secure your RIGHT to contracts! 

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

 

and here is the Amendment to OUR US LAW that GRANTS YOU THESE RIGHTS 

Overview of Contract Clause

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

“To say that one may not defend his own property is usurpation of power by legislature.”  O’Connell v. Judnich (1925), 71 C.A.386, 235 664.

The State cannot diminish rights of the people.  Hurtado v. California, 110 U.S. 516.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system;  but it is commonly used as the designation of a court of  special,  limited, or  statutory jurisdiction, whose  record must show the  existence and  attaching of jurisdiction in any given case, in order to give  presumptive validity to its  judgment.  In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.”   Nestor  v.  Hershey,  425 F2d 504.

People v. Young (1983) 340 N.W.2d 805,418 Mich. 1. Common law, by constitution, is law of state.

To be that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of  common law, would not be the law of the land. (Jury) Hoke v. Henderson, 15, N.C. 15 25 AM Dec 677.

Void Judgment –  “One which has no legal force or effect, invality of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally.   Reynolds   v.Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092.

Voidable Judgment – “One apparently valid, but in truth wanting in some material respect.”  City of Lufkin v. McVicker, Tex.Civ.App., 510 S.W. 2d 141, 144.

Property MUST be devoted / pledged to the public with your consent and being fully compensated for such

“… In one of the so-called elevator cases, that of Munn v. Illinois, 94 U. S. 113, [24 L. Ed. 77], it is said: ‘When, therefore, one devotes his property to a use in which the public have an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.’  But so long as he uses his property for private use, and in the absence of devoting it to public use, the public has no interest therein which entitles it to a voice in its control.  Other case to the same effect are Budd v. New York, 143 U. S. 517, [36 L. Ed. 247, 12 Sup. Ct. Rep. 468];  Weems Steamboat Co. v. People‘s Co., 214 U. S. 345, [16 Ann. Cas. 1222, 53 L. Ed. 1024, 29 Sup. Ct. Rep. 661]; Monongahela Nav. Co. v. United States, 148 U. S. 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]; and Del Mar Water Co. v. Eshleman, 167 Cal. 666, [140 Pac. 591, 948].  Indeed, our attention is directed to no authority in this state or elsewhere holding otherwise.” Associated etc. Co. v. Railroad Commission  (1917) 176 Cal. 518, 526.

“… That subjecting petitioners’ property to the use of the public as common carriers constitutes a taking of the same, admits of no controversy.  ‘Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the constitution. … It is not necessary, in order to render the statute obnoxious to the restraints of the constitution, that it must in terms or effect authorize the actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.’  (Forster v. Scott,136 N. Y. 577, [18 L. R. A. 543, 32 N. E. 976]; Monongahela Nav.Co. v. United States, 148 U. S. 312, 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]. … Mr. Lewis in his work on Eminent Domain, third edition, section 11, says: ‘A law which authorizes the taking of private property without compensation, … cannot be considered as due process of law in a free government.’  (Chicago etc, R. R. Co. v. Chicago, 166 U. S. 226, [41 L. Ed. 979, 17 Sup. Ct. Rep. 581].” Associated Co. v. Railroad Commission (1917) 176 Cal. 518, 528-530.

It is beyond the power of a State by legislation fiat to convert property used exclusively in the business of a private carrier, into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation which no State can do consistently with the due process of law clause of the 14th Amendment.  (See police power) Producers Transportation Co. v. RR Commission, 251 U.S. 228, 230; Wolff Co. v. Duke, 266 U.S. 570, 578.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state.   The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind.  336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92;  Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles (1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”                                Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee.  Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442.  “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”  16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used.   When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases.  We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.  Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives.  Not one of them has a right to ignore or disregard these mandates…”  John F. Jelko Co. vs. Emery, 193 Wisc. 311;  214 N.W. 369, 53 A.L.R., 463;   Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

ENGLISH TORT LAW 61. Ashby v. White, (1703) 92 Eng. Rep. 126 (K.B.); BLACKSTONE, supra note 59, at 23. 62. 5 U.S. (1 Cranch) 137, 163-66 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded . . . . [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”).

ENGLISH TORT LAWAshby v. White, (1703) 92 Eng. Rep. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the Commons. Sir Thomas Powys (c. 1649-1719) defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts. Judgment Holt CJ was dissenting in his judgment in the High Court, but this was upheld by the House of Lords. He said at pp 273-4: “ “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal… And I am of the opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action on the case is not maintainable, because
there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights. To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.

The People are the Sovereign!

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.”  Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the  common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

“The People of a State are entitled to all rights which formerly belonged to the King by his prerogative.” Lansing v. Smith, 4 Wendell 9, 20 (1829)

“In the United States the People are sovereign and the government cannot sever its relationship to the People by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967).

In Europe, the executive is synonymous with the sovereign power of a state…where it is too commonly acquired by force or fraud or both…In America, however the case is widely different. Our government is founded upon Compact. Sovereignty was, and is, in the People. Glass v. The Sloop Betsy, 3 Dall 6.(1794)

It is a Maxim {an established principle} of the Common Law that when an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when a Statute is general, and any prerogative Right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound. The People vs. Herkimer, 15 Am. Dec. 379, 4 Cowen 345 (N.Y. 1825).

Chisholm v. Georgia, Dallas Supreme Court Reports, Vol. 2, Pages 471, 472 (1793) “It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects… and have none to govern but themselves…”

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

Sovereignty itself is. of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails., as being the essence of slavery itself.

(Yick Wo vs. Hopkins, U.S. 356 (1886). “…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316,404,405; Yick Yo v. Hopkins, 118 U.S. 356, 370.”  The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.” City of Dallas v Mitchell, 245 S.W. 944

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior au&priry. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government: yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves: that the men acting by virtue of delegated powers may do. not only what then- powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him hi their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio. 392 U.S. 39 (1967).

“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins ,118 U.S. 356 (1886).

People are supreme, not the state.  Waring vs. the Mayor of Savannah, 60 Georgia at 93.

“In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins ,118 U.S. 356, 370 (1886).

People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden,  27 U.S. 1 No legislature can bargain away the public health or the public morals. The people themselves cannot do it. much less their servants. See: New Orleans Gas Co v. Louisiana Light Co ,115 U.S. 650 (1885).

The people of the State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people.      State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.  And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.”  Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation: and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Diet. (1870). The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior au&priry. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.”  Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights.      “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.”   (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In  Land  v.  Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.”  Brady  v.  Roosevelt, 317 US 575 (1943);  FHA  v.  Burr, 309 US 242 (1940);  Kiefer  v.  RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared,  that  “…where  any  state  proceeds  against  a  private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.”  Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When  enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662;  Bothke  v.  Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved  agency  —  but  only  in  a  “ministerial”  and  not  a “discretionary capacity…”  Thompson  v.  Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction.  Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160;  Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief.  “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.”  San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

424 F.2d 1021UNITED STATES v.Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.
Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.” Norman v. Zieber, 3 Or at 202-03 US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.” S. Carolina v. U.S., 199 U.S. 437, 448 (1905).

“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.” SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .

Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

NO IMMUNITY “Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.” See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”); Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983. “When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991). “Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Supreme Court Justice Brandeis spoke, in the case of Olmstead v. United States when he said: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to obsereve the laws scruplously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by it’s example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcemnt student, practitioner, supervisor, and adminstrator ” State v. Manuel, North Carolina, Vol. 20, Page 121 (1838) The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State”.

“The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70 FRAUD BY GOVERNMENT McNally v. U.S., 483 U.S. 350, 371-372 (1987),

Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ” 

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citingMeier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193  Notification of legal responsibility is “the first essential of due process of law”. See also: U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.”  Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

42 U.S. Code § 1983 – Civil action for deprivation of rights – read here

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof – click here to learn requirements

California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984).  “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict his cannot protect us.  All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey.  1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

• – Article 1 of the Bill of Rights – guarantees freedom of religion-
  Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1.  Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

BUYING OR RECEIVING STOLEN GOODS

      NRS 205.275  Offense involving stolen property: Definition; penalty; restitution; prima facie evidence; determination of value of property.

      1.  Except as otherwise provided in NRS 501.3765 (see below), a person commits an offense involving stolen property if the person, for his or her own gain or to prevent the owner from again possessing the owner’s property, buys, receives, possesses or withholds property:

•       (a) Knowing that it is stolen property; or
•       (b) Under such circumstances as should have caused a reasonable person to know that it is stolen property.

      2.  A person who commits an offense involving stolen property in violation of subsection 1:

•       (a) If the value of the property is less than $1,200, is guilty of a misdemeanor;
•       (b) If the value of the property is $1,200 or more but less than $5,000, is guilty of a category D felony and shall be punished as provided in NRS 193.130;
•       (c) If the value of the property is $5,000 or more but less than $25,000, is guilty of a category C felony and shall be punished as provided in NRS 193.130;
•       (d) If the value of the property is $25,000 or more but less than $100,000 or if the property is a firearm, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000; or
•       (e) If the value of the property is $100,000 or more, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years, and by a fine of not more than $15,000.

      4.  A person may be prosecuted and convicted pursuant to this section whether or not the principal is or has been prosecuted or convicted.

      5.  Possession by any person of three or more items of the same or a similar class or type of personal property on which a permanently affixed manufacturer’s serial number or manufacturer’s identification number has been removed, altered or defaced, is prima facie evidence that the person has violated this section.

      6.  For the purposes of this section, the value of the property involved shall be deemed to be the highest value attributable to the property by any reasonable standard.

      7.  As used in this section, “stolen property” means property that has been taken from its owner by larceny, robbery, burglary, embezzlement, theft or any other offense that is a crime against property, whether or not the person who committed the taking is or has been prosecuted or convicted for the offense.

      [1911 C&P § 383; A 1951, 29]—(NRS A 1967, 502; 1971, 925; 1979, 561, 1445; 1989, 1434; 1995, 13, 1223, 1323; 1997, 344; 1999, 402; 2011, 166; 2013, 1003; 2019, 4433)

      NRS 205.290  Restoration of stolen property to owner.  All property obtained by larceny, robbery, burglary or embezzlement and found in the possession of the thief or embezzler thereof, or in the possession of any receiver or wrongful possessor of stolen property, shall be restored to the owner.

      [1911 C&P § 385; A 1935, 370; 1931 NCL § 10337]—(NRS A 1971, 926)

      NRS 205.295  Restoration of stolen property: Duties of officers.  The officer arresting any person charged as principal or accessory in any robbery or larceny shall use reasonable diligence to secure the property alleged to have been stolen, and after seizure shall be answerable therefor while it remains in the officer’s hands, and shall annex a schedule thereof to the return of the warrant. Whenever the district attorney shall require such property for use as evidence upon the examination or trial, such officer, upon the demand of the district attorney, shall deliver it to the district attorney and take a receipt therefor, after which such district attorney shall be answerable for the same.

      [1911 C&P § 386; RL § 6651; NCL § 10338]

      (read here) NRS 501.3765  Unlawful activities concerning traps, snares or similar devices owned by another person; criminal penalties.

      1.  Any person who intentionally steals, takes and carries away one or more traps, snares or similar devices owned by another person with an aggregate value of less than $1,200 is guilty of a gross misdemeanor.

      2.  Any person who buys, receives, possesses or withholds one or more traps, snares or similar devices owned by another person with an aggregate value of less than $1,200:

•       (a) Knowing that the traps, snares or similar devices are stolen property; or
•       (b) Under such circumstances as should have caused a reasonable person to know that the traps, snares or similar devices are stolen property,  is guilty of a gross misdemeanor.

      (Added to NRS by 2013, 1001; A 2019, 4484)

Cited https://www.leg.state.nv.us/nrs/nrs-205.html#NRS205Sec290

WE FEEL THE LAWS BELOW ARE UNCONSTITUIONAL BARRING COLLECTION OF RENT THAT IS OVER ONE YEAR PAST DUE, YET THEY ALLOWED TENANTS TO NOT PAY FOR WELL OVER ONE YEAR IS A CATCH 22
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

but you can always sue after in Civil court keep reading below

Is there a time limit on collecting rent payments?

 CAN I BE EVICTED IF THE LANDLORD WANTS TO REMODEL, MOVE INTO MY UNIT, SELL MY BUILDING, OR TEAR DOWN THE BUILDING?

It depends. State law allows landlords to evict a tenant for any of the following reasons:

• When the owner or owner’s family member plans to move in
• When the owner plans to take the unit off the rental market
• When the owner plans to substantially rehabilitate the unit for health and safety reasons (evicting a tenant just to remodel a unit is not allowed)

Have a family member you trust move in for 3 months or remodel the heck out of your place it will be best to get higher rent with a freshly remodeled place and a delinquent tenant gone! 

The federal eviction moratorium from the Centers for Disease Control (CDC) prohibits tenants from being evicted for any reason that is not the fault of the tenant, but it does not apply to everyone, and it expires on October 3, 2021. To see if the federal moratorium applies to you, call the Law Foundation at (408) 280-2424 or our web-based intake at www.lawfoundation.org/housing.

PROPERTY RIGHTS, HOUSING, AND THE AMERICAN CONSTITUTION

PROPERTY RIGHTS, HOUSING, AND THE
AMERICAN CONSTITUTION: THE SOCIAL
BENEFITS OF PROPERTY RIGHTS PROTECTION,
GOVERNMENT INTERVENTIONS, AND THE
EUROPEAN COURT ON HUMAN RIGHTS’ HUTTENCZAPSKA DECISION*
Edward H. Ziegler** and Jan G. Laitos
ABSTRACT
Nations around the world utilize government interventions to promote
the availability and affordability of housing. This Article focuses on
various types of government regulatory interventions, such as rent controls,
building dedications and exactions, and density and growth controls on
housing. These interventions are common in the United States and in other
countries and may contribute to inefficient resource allocation and poor
housing outcomes. This Article examines whether these types of
government interventions may require, in particular cases in the United
States, judicially required compensatory damages for affected property
owners. The social costs of these forms of government intervention are
examined from the perspective of the benefits accruing from a regime of
property rights protection. This Article further explains that there is some
existing precedent under international human rights norms, as illustrated by
the Hutten-Czapska v. Polandi decision, for the standards used in the
United States for protecting the property rights of owners and developers of
housing from excessive and unwise government regulation.
I. INTRODUCTION
The U.S. Constitution provides protection for private property owners
when the government intervenes through official regulations restricting an
owner’s rights in land or housing.2 When the government acts through
regulatory intervention that restricts the private use of land and housing, the
property rights of affected owners are protected under the Fourteenth
Amendment and the Takings Clause of the Fifth Amendment of the U.S.
Constitution. 3 These provisions apply regardless of the personal status or
income of the affected private owner.
Government intervention by police power regulation of land and
housing in the United States is constrained by judicial interpretation of the
constitutional protection afforded private owners of property. The Fifth
Amendment of the U.S. Constitution provides that “[n]o person shall be …
deprived of life, liberty or property without due process of law; nor shall
private property be taken for public use, without just compensation.”5 The
next section of this Article discusses the legal protection afforded private
housing and landowners by the U.S. Constitution’s Takings Clause and the
court decisions interpreting this provision.
To a significant degree, the constitutional protection of property rights
for owners of real property in the United States is reflected in the European
Court on Human Rights’ Hutten-Czapska decision, which involved rent
controls imposed on apartment housing in Poland.6 The European Court
ruled that rent controls violated the right to property in the European
Convention on Human Rights. Over time, rent controls denied a housing
owner any economically viable use of his property, which amounted to a
disproportionate and impermissible benefit extraction of the owner’s
interest in the property.7 The rationale of the Court’s decision closely
parallels the U.S. Supreme Court’s analysis of the protection of private
property under the U.S. Constitution.
The constitutional protection of private property rights in the United
States is thought to promote economic prosperity and efficiency, as well as
basic fairness and individual liberty.9 In this sense, private property rights
are institutionally considered important human and civil rights that operate
to protect a disfavored minority from favoritism and unfairness caused by
majority legislative action.10 In the United States, while a right to housing
is not codified, there is no shortage of quality housing space available at
2011] market prices. Also, on a comparative and absolute basis, the United States
provides substantial public and private financial support for housing the
very poor and homeless.” The U.S. housing market is highly influential
across the globe,12 likely due, at least in part, to the constitutional protection
of the property rights of private owners and renters of housing.
II. TAKING PRIVATE PROPERTY AND THE RIGHT TO COMPENSATION
The U.S. Constitution’s Takings Clause requires that an owner be
paid just compensation when the government takes private property for a
public use.13 Compensation must be paid to an owner when the
government directly takes title to private property to establish a new public
use, like a public park.14 However, courts have also ruled that a taking
occurs, and compensation must be paid, when the government interferes in
certain ways with an owner’s possessory interests, while acting in an
enterprise capacity or by a police power regulation of private property
rights. These situations are known as cases of inverse condemnation, in
which there is no direct taking of title. The government often contests in
court whether compensation is required.16 These cases are controlled by
the general jurisprudential taking principle that police power regulation of
private property may not be used simply as a mechanism for extracting
public benefits from private landowners that, in all fairness and justice,
should be paid for by the public as a whole.’ 7
Courts have recognized that land value consists not only in title
ownership and possession, but also in the rights of an owner to use, enjoy
and develop the land. Since all property is subject to the exercise of
government regulation in protection of the public welfare, government
regulation of land will not be held a taking simply because it partially
reduces or destroys the use or development value of the land.19 Justice
Holmes argued that “government hardly could go on if to some extent
values incident to property could not be diminished without paying for
every change in the general law.”20 However, Holmes also recognized, in
view of the policies underlying the due process and takings provisions in
the U.S. constitutional system, that “if regulation goes too far it will be
recognized as a taking.”21 The police power “must have its limits” and
“when it reaches a certain magnitude, in most if not all cases, there must be
an exercise of eminent domain and compensation to sustain the act.”22
The Takings Clause in the U.S. Constitution plays a significant role in
shaping the limits and forms of government regulation that are sought for
housing or new housing development. 23 All three types of the
constitutional taking claims discussed below – physical invasion analysis,
economically viable use analysis, and partial benefit-extraction analysis –
significantly restrict the methods of government intervention that ma
address perceived social problems related to housing in the United States.
A. Physical Invasion Takings Analysis
A regulation adopted by a governing authority that allows someone to
enter another person’s property will likely be considered a physical
invasion taking of the private right to exclusive possession for which
compensation must be paid.25 The U.S. Supreme Court has adopted a per
se confiscation taking rule that applies when government interferes, through
regulation, with an owner’s possessory interest in excluding others from his
property.26 Under this analysis, a taking occurs when regulation results in a
permanent physical invasion of private property or an interference with an
owner’s right to exclude others from his 2property, which disturbs his
reasonable investment-backed expectations. For example, in Loretto v.
Teleprompter Manhattan CATV Corp, the Supreme Court held that a New
York law requiring a landlord to permit installation of cable television on
his property constituted a taking. Similarly, a taking would be found if
the government was to require owners of private apartments to provide free
housing for the poor or homeless.29 In such cases, the government would
have to compensate the private owner for the fair market rental value for the
possession of the apartments. However, extensive government regulation
of all aspects of the landlord-tenant relationshi is generally allowed within
the constitutional parameters discussed below.
B. Economically Viable Use Analysis
Zoning, urban planning, public design controls, and other forms of
government intervention by regulation will not be held confiscatory simply
because regulation prohibits the owner from making the most profitable use
of the property or results in a substantial diminution in market value of the
land.31 Generally, a regulation will be held confiscatory only where it
deprives an owner of every use to which the property is reasonably
adapted.32 Recently, the U.S. Supreme Court and most state courts have
adopted the economically viable use test.” Under this test, a regulation
generally will not be held confiscatory unless it denies an owner all
reasonably beneficial and economically viable use of the land considered as
a whole.34 A regulation may be held confiscatory even if an owner is
afforded a beneficial or economically viable use of the property under either
of the alternative takings tests.
Applying the economically viable use analysis, the purchase price
paid by a present owner and the decline in market value as a result of
regulation are unlikely to be determinative in whether a taking has occurred
and compensation must be paid.36 However, the testimony of an appraiser
or real estate expert regarding the market value of land developed for
allowed uses may constitute an important part of a landowner’s confiscation
claim.37 Market value and demand for permitted land uses, taken together,
may demonstrate that such potential uses are not reasonably beneficial and
economically viable uses for the land in question, rendering the regulation
confiscatory. For example, where a landowner’s proof demonstrated that,
upon completion of a residence on a lot, the market value of the house and
lot would be less than the cost of constructing the residence, the regulation
was confiscatory because the lot was held to be unsuitable and valueless for
residential use. Similarly, denial of a variance to operate a gasoline
station in an area zoned for retail business was confiscatory based on a
finding that the area was so undeveloped, residentially and otherwise, that
there was no market value or demand for commercial use of the land.40
Government interventions that regulate housing are generally
permissible if they leave the owner with an economically viable use of the
land.4 ‘ This general rule is true for most ordinary government planning
restrictions on building development, such as construction standards related
to building bulk and height, lot size, setbacks, open space, fences, building
design, landscaping, and parking.42 Similarly, regarding rent control, the
U.S. Supreme Court has upheld the general constitutionality of rent
restrictions in several court cases dating back to World War II.43 In those
cases, the Court focused on the increased war-time power of the
government and discussed the takings issue and property rights related to
housing. The Court ruled that setting maximum rent prices did not
constitute a taking unless the restrictions went so far as to be confiscatory.”
The Court noted that although rent control “may reduce the value of the
property regulated,” it was not unconstitutional. 4 5
Today, government rent control regulation would likely be considered
a taking for which compensation must be paid only if the regulation, as
applied to an owner’s property, did not provide the private owner with an
“economically viable return” on the land and buildings as an operational
investment.46 More broadly, a confiscation claim to a government
restriction respecting rent control, tenant eviction protection, or
apartmentto-ownership conversion could be successfully asserted where the
regulation, as applied, merely denies an owner a fair and reasonable return
on his investment. 47 Court decisions have utilized different takings
analyses in evaluating whether various types of rent control and tenant
protection provisions are confiscatory.48 Typically, the key question in
these cases is what constitutes a fair return on investment. While a
variety of fair return formulas may be permissible, including a net
operating income ratio formula,51 courts have ruled that landlords are not
constitutionally entitled to market value rates of return on their
investment.52
In determining a fair return, some courts have held that inflation must
be taken into account,5 3 and every dollar for capital improvement the
landlord puts into the property constitutes an investment for which a fair
and reasonable return must be allowed. 54 In Richardson v. City & County
of Honolulu,5 5 a federal District Court held a local rent control ordinance
confiscatory based on a straightforward fair return formula.56 The Court
ruled that by indiscriminately basing maximum rent allowed on the initial
rent paid under a lease and by neglecting to provide a mechanism for
adjustment or review, the law operated to deprive owners of a just and
reasonable rate of return.5 7 The Court held that tying rent increases to
general increases in prices and incomes would not result in a fair return on
investment because there was substantial evidence that the base rate of
initial rent paid, which served as a basis for this calculation, would often be
far below fair market rental value.58
The New York Court of Appeals applied a similar economically
viable use analysis in Seawall Associates v. City of New York.59 The Court
held a local ordinance enacted to preserve and maintain low rent singleroom
occupancy (SRO) housing within the City of New York
confiscatory. 6 0 The law, among other requirements, prohibited property
owners from altering, demolishing, or converting their buildings to any
other use; compelled owners to restore any uninhabitable unit to habitable
condition; and required owners to keep all their units occupied as SRO
housing. The court analyzed the impact of the law on property owners’
basic rights “to possess, use, and dispose” of their buildings and found that
the law substantially impaired each of these rights.62 The court further
noted that the mandatory rental provisions, together with the above
requirements, denied owners of SRO buildings any right to use their
properties and deprived them of an economically viable use of their
properties.63 The court found that the ordinance operatively ignored the
legitimate investment-backed expectations of SRO property owners and
failed to establish a formula to provide owners a fair return on their
investment.
C. Partial Benefit-Extraction Taking Analysis
As the U.S. Supreme Court has often stated, the Fifth Amendment’s
just compensation provision is “designed to bar Government from forcing
some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.”6 5 As reflected in recent U.S.
Supreme Court decisions, the partial taking analysis explicitly recognizes
that a regulation may affect an unconstitutional taking of private property
without amounting to a categorical or per se taking, either by denying an
owner all economically viable use or by resulting in the physical occupation
of the owner’s land. 66
Under the benefit-extraction taking analysis, confiscation occurs
when the burden imposed on a private owner, in view of the nature of the
government action involved, is one that the public fairly and justly should
pay for as a whole through taxing and spending.67 Justice and fairness
require that economic injuries caused by regulation be compensated by the
government rather than remain disproportionately concentrated on regulated
and burdened private owners.68 Courts in these cases find that the
regulation in question is designed primarily to secure the acquisition of
public resources and extract from the affected owners a public benefit that
is not substantially attributable to some problem related to the owners’
conduct.69 This takings analysis is reflected in a very long line of state
court decisions and in a number of recent U.S. Supreme Court decisions
dealing with “development exactions.” 70 The benefit-extraction taking
principle at work here is that development exactions must be reasonably
related in nature to some problem caused by development and reasonably
related in amount to the magnitude of that problem.71
For example, a regulatory condition imposed on the development of
food markets mandating that they give free food to persons with an official
“low income” card would be a taking requiring compensation. The stores
would simply be convenient targets of a regulation providing free food to
persons with a low income, though the stores were not a significant cause of
the poverty that the regulation addresses. Under this analysis, the public
benefit secured by such a regulation – feeding the poor – is considered
constitutionally appropriate, but that burden must be publicly shared
through taxing and spending powers. 72 This benefit-extraction taking
analysis would also apply to regulations imposed on private owners to
house the poor or shelter the homeless.73
This taking analysis has been applied in cases involving impact fees
for public housing and other similar regulatory schemes. 74 For example,
the California Court of Appeals recently ruled in favor of the housing
developer when it struck down an affordable housing impact fee imposed
on a new housing development.75 The court held that the increase in the
affordable housing fee was not “reasonably justified” under existing law
because there was no reasonable relationship between the amount of
increase in the fee and some demonstrated “deleterious public impact of
development.”7 The court relied on the lack of evidence of any
relationship between the extent of the city’s affordable housing need and
the development of housing units by the developer.7 7 Other decisions have
held regulatory conditions on housing confiscatory under benefit-extraction
taking analysis. 78 It has also been applied to public rent control schemes
where the burden is arbitrarily placed on a disfavored group of tenants.
III. THE HU7TEN-CZAPSKA CASE: PROPERTY, HUMAN RIGHTS, AND
CONFISCATION CLAIMS
In 2006, the European Court of Human Rights (ECHR) heard a
housing case involving the government’s imposition of long-term rent
controls on private owners of housing in Poland.s The suit originated in
the Polish courts by Maria Hutten-Czapska, a French national with property
in Poland. Restrictive landlord provisions had been passed in response to
the housing shortage in Poland – the most severe shortage in Eastern
Europe after World War II.81 The laws imposed a number of rent
restrictions on landlords, including a low ceiling on rent levels such that
landlords could not recover maintenance costs, much less make a profit and
a return on investment.82 In 2001, the Polish Constitutional Court (PCC)
held the laws unconstitutional for placing a disproportionate and excessive
burden on landlords. In February 2005, the PCC again found the
legislation unconstitutional because it made it impossible for landlords to
receive rent reasonably commensurate with the costs of property
maintenance. The PCC directed Poland to find a way to provide HuttenCzapska
and the other 100,000 similarly situated landlords a reasonable
level of rent or to provide them with a way to mitigate the consequences of
the state-controlled rent increases.8 5
The Polish government requested referral of the case to the Grand
Chamber of the ECHR. The Grand Chamber relied on the European
Convention on Human Rights 86 and the Charter of Fundamental Rights of
the European Union, which states that the right to property is a fundamental
87
right. The Grand Chamber agreed that Poland, which inherited an
abominable housing situation from the communist regime, was in the
difficult position of balancing conflicting interests of landlords and
tenants. However, the Polish government failed to distribute the social
and financial burden fairly. The ECHR essentially applied the benefitextraction
confiscation analysis, as used by U.S. courts, and found that
Poland had placed the burden on one particular social group.89 By failing
to establish a “reasonable relation of proportionality” between the
legitimate goal of the Polish government and the restrictions utilized to
achieve that goal, the ECHR ruled that the government violated Article 1 of
Protocol No. 1 of the Convention. 90
Had this case arisen in the United States, the outcome would have
likely been the same. Under both the economically viable use and the
benefit-extraction analyses utilized in U.S. court decisions, the long-term
rent controls in Hutten-Czapska would have been held an unconstitutional
taking of the landlord’s property.9 1 Future ECHR decisions may continue
to reflect, at least in part, the analysis utilized in U.S. court decisions
interpreting the taking of private property rights by government regulatory
interventions. The three lines of constitutional regulatory takings analysis
utilized by U.S. courts may be consulted for possible lines of argument and
analysis in future property rights cases arising under the Charter of
Fundamental Rights of the European Union and the European Convention
on Human Rights. 92
IV. OWNERSHIP OF PRIVATE PROPERTY, OVERREGULATION, AND JUDICIAL
RESTRAINTS
The Hutten-Czapscka decision is a classic example of how a wellmeaning
housing rule can create negative consequences such that private
entrepreneurial choices become frustrated and defeated. In Poland, longterm
rent controls designed to address an acute housing shortage made it
impossible for owners of rental housing to enjoy any economic gains or
viable ownership benefits. The only solution was first a judicial override of
the rent control law by the Polish courts then by the ECHR Grand Chamber.
The United States has also experienced this sequence of good-faith
government interference with private property markets resulting in
economic marketplace chaos requiring judicial intervention to restore
fairness and economic growth.93 Such a pattern is not uncommon when a
government decides to assert its authority over decisions involving rights to
privately owned property.
Conversely, several positive market consequences result when private
parties contract for the use and development of property free from
unreasonable government interference. Property ownership permits private
economic ordering and helps secure the investment capital necessary for
financial growth. Moreover, property provides a benefit to non-owners,
who are better off because an owner decided to develop, transfer, or make
active use of the property. When the private exercise of a property right
benefits third parties, like parties other than the owner or a party to whom
the property is conveyed, the property is generating a positive externality.
When the private property is actively used and not passively held, it
becomes a “public good.” A public good is an economist’s term for a
resource whose use by a private party benefits not only the owner but also
third parties.95
Private property, when transformed by the owner into a valuable
commodity, becomes a public good because the owner’s behavior has a
positive effect on parties that are external to both the owner and the party to
whom the property is transferred. For example, property development for
residential purposes has repercussions beyond the owner when the use
makes the property economically productive. For instance, if an owner
subdivides land and builds homes, second parties directly benefit from this
use. These include workers employed during the construction of the homes,
agents who sell the homes, and future homeowners. Third parties benefit
indirectly, like government agencies whose property tax base is expanded.
Employers of those who live in the new homes benefit because otherwise
they might have had to provide housing for their employees. Also, the
overall local economy benefits from the purchasing power of new
consumers now living in the area.
Despite unregulated private property creating a public good,
especially when that property becomes housing, the government may
choose to regulate the uses of that property and restrict the choices of the
owners. Controls over land use, housing, and property have been common
in Western civilization ever since the Roman Empire introduced replations
for setback lines for buildings and trees in as early as 450 B.C. In the
United States, although land use regulations existed since the colonial era, it
wasn’t until the twentieth century that the demand for regulations of real
estate development became significant.97 First, as the United States moved
toward a more urban society, “city governments sought to gain control over
the location of industry, commerce, and housing” through zoning. 98New
York City, for example, adopted its first comprehensive zoning ordinance
in 1916. B the 1930s, most urban areas had adopted some kind of
zoning law. 0 After World War II, increasing suburbanization in the
United States led to municipal regulations, controlling the size and type of
such housing developments.’ 0 Beginning in the 1970s, once again
growing urban population necessitated regional planning and even more
restrictive housing and property policies.102
One such restrictive policy is exclusionary zoning. “Exclusionary
zoning is using zoning to further the parochial interests of a particular
municipality, at the expense of surrounding regions.” 0 3 It takes various
forms, such as setting a minimum lot or house size or prohibiting
multifamily housing or mobile homes.104 This type of zoning “fences out”
low-income housing and decreases the overall supply of housing. 05
Exclusionary zoning thus advances economic, social, and often racial
segregation. It takes advantage of regional development to create and
maintain homogenous communities and building affluent municipalities. 107
The practice certainly goes against the idea that municipal zoning aims to
advance general welfare.
Such government interference with private housing decisions
produces several negative consequences.los Generally, excessive regulation
smothers the creativity of marketplace actors whose decisions fuel
economic growth.109 Additionally, regulation fails to enhance personal
liberty since the government’s exercise of police power inhibits it. 110
Government regulation limits a person’s ability to make fundamental
choices about how best to deploy resources productively, and it entails high
administrative costs.I 1
Three other negative consequences that flow from unchecked
regulation have a particular impact on third parties. The first occurs when
the government, not properly monitored through meaningful judicial
review, disproportionately burdens one or a very small number of
individuals, while not subjecting similarly situated persons to equivalent
burdens.11 2 If this kind of regulation paralyzes the courts, third parties
benefit by not having to share the cost of regulation, and they become free
riders.113
Another third party consequence is the creation of what Professor
Frank Michelman calls “demoralization costs.”1 1 4 These costs “accrue to
[property owners] and their sympathizers specifically from the realization
that [no judicial relief] is offered” when government over-regulates.115
These costs are the effect that excessive property regulation has on other
property owners who witness but do not directly experience the regulatory
impact. These third parties may be less inclined to develop their
property when they see a neighbor saddled with unrelieved, burdensome
regulation. Furthermore, unrestricted regulation can change the preexisting
distribution of wealth by forcing or authorizing exchanges of property
between property owners without compensating them for their loss.
Such forced exchanges occur with rent-control laws that burden landlords
and benefit tenants and with certain environmental laws that deprive
propertvr owners of environmentally sensitive land for the benefit of the
public.
Another harm resulting from government interference with private
property autonomy is that the disadvantaged often bear the brunt of any
attendant harm. 120 Typically, when regulation creates costs or conditions of
scarcity, the poor suffer the most.121 These distributional consequences are
worsened because the poor are the least able to alter legislative decisions
that produce over-regulation.122 Moreover, legislators enacting police
power regulation are often influenced by interest-group politics. The
economically disadvantaged have neither the funds nor the expertise to
access lobbyists who have the most influence over legislators. Therefore,
the interests of the disadvantaged are not frequently reflected in police
power legislation. 123
For private property to have the potential to maximize the welfare of
not only owners and those with whom they engage in transactions regarding
the property but also third parties who benefit from property’s public goods
component, courts should protect property uses from over-zealous exercises
of the police power. Courts could then preserve external benefits for third
parties that result from reducing regulation of private property. The
judiciary can protect both individual choices and the public good of
property use by applying the legal doctrines established in constitutions that
allow courts to halt excessive regulations. In the United States, the U.S.
Constitution’s Takings Clause provides this protection.124
V. SOCIAL AND POLICY BENEFITS OF THE TAKINGS CLAUSE
The Takings Clause of the U.S. Constitution is a limit on the ability of
government actions to take or otherwise unreasonably burden private rights
in land, property, or housing. 125 It serves an important check on
government decisions that interfere with private choices about property
interests. There are many social and policy benefits that follow from this
kind of constitutional limit on governmental meddling in the economic
market.
A. The Takings Clause prevents government from denying owners any use
of their property
When the government denies all economically beneficial or
productive use of property, it affects a per se taking.126 Some courts have
even decided that a per se taking can occur when the government
substantiallI deprives a property owner of the use and enjoyment of
property. A compensable temporary taking occurs when an owner is
prevented from doing anything with his or her property for a limited period
of time. 28 In Lucas v. South Carolina Coastal Council, the Supreme Court
clarified why the Takings Clause is proper by invoking Lockean-liberal
assumptions about private property: “[O]ur prior takings cases evince an
abiding concern for the productive use of, and economic investment in,
land.”
B. The Takings Clause promotes economic prosperity
One of the assumptions behind the Takings Clause is that if private
property rights are secure, ownership in real property is protected. The free
market is allowed to operate without extensive government interference,
and individuals in these communities are economically better off.
Prosperity follows. The Takings Clause is designed to curb aggressive
government decisions that are inconsistent with these three premises.
Moreover, if legislatures are able to change private property into
public property, there has been a transfer of resources from private hands to
the general community. Commentators have warned that when private
owners have too many of their assets and earnings redistributed by the force
of law, they will become discouraged and may stop developing their
property.130 Property owners incur these demoralization costs when the law
interferes with their expectations of keeping and controlling the properties
in which they have invested. One important purpose of the Constitution’s
Takings Clause is to prevent this.
C. The Takings Clause encourages efficient decision making
The mere presence of the Takings Clause in the U.S. Constitution
deters excessive or unreasonable government action because government
actors are aware that private parties may challenge such action in court. For
example, exclusionary zoning is a public and collective decision that stands
in stark contrast to a system of private property decision-making, in which
individual owners make choices about how to use their property. The
Takings Clause might permit owners to make choices about efficient land
use instead of a more distant and collective government choice.131
D. The Takings Clause requires the government to act fairly
One of the central tenets of the Takings Clause is that government
should not extract a public benefit from private land and property
owners.132 Indeed, in Armstrong v. United States,133 a seminal case in
1960, the Supreme Court explained that the principal purpose of the
Takings Clause was “to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by
the public as a whole.” 34 Other courts have since decided that the essence
of a takings claim, particularly a partial takings claim, is the extent to which
a police power regulation has singled out one or a few property owners to
bear burdens disproportionately, while the community shares the
benefits.’ 35 When property owners have not contributed more to a problem,
then it is a taking if a regulation makes them remedy the problem. Even
though the police power regulation may be well-intentioned, the law cannot
In a free market system, each person’s welfare is maximized if
autonomous decision-making is allowed. When the government prevents
such autonomy by making public and collective choices (such as a zoning
or rent control law), the market is frustrated, and individual benefits may be
frustrated. The Takings Clause unleashes individual liberty by limiting
government actions that interfere with individualized choice about land,
property, and ownership rights. Such liberty of choice in turn yields
economic prosperity.’ 3 8
VI. CONCLUSION
Although government housing policies are often said to be designed
to benefit the general welfare, sometimes those same policies can result in
damaging burdens to private property owners, including prospective buyers
as consumers of housing. Such burdens, in turn, not only harm these
existing and prospective housing owners, but also they can produce social
costs that adversely affect the public as a whole. A higher law, such as the
U.S. Constitution or the European Convention on Human Rights, can
sometimes utilize constitutional norms to override the government policies
that create these types of negative consequences for property owners and
the public. Landlords and developers are not the only beneficiaries of the
application of this higher law. The market for higher quality and affordable
housing is often assisted when excessive or unreasonable restrictions on
private housing decisions are removed

* 02010 Edward Ziegler and Jan Laitos
** Edward H. Ziegler is Robert B. Yegge Memorial Research Chair and Professor of
Law at the University of Denver – Sturm College of Law. The author wishes to thank Ms.
Katy Michaelis for her assistance in the preparation and editing of this article.
*** Jan G. Laitos is John A. Carver Jr. Professor of Law at the University of Denver –
Sturm College of Law. Professor Laitos wishes to acknowledge the valuable assistance
provided by Elizabeth McDermott in the preparation and development of this article.
1. Hutten-Czapska v. Poland, 45 Eur. Ct. H.R. 4 (2007).
2. See 1 EDWARD H. ZIEGLER, JR., RATHKOPF’S THE LAW OF ZONING AND PLANNING
§ 6:2-3 (4th ed. 2010) [hereinafter ZIEGLER, RATHKOPF’S].
3. Id
4. Id. § 6:2.
5. The Fifth Amendment is held applicable to state and local regulation by its
incorporation into the Due Process Clause of the Fourteenth Amendment. State constitutions
also contain similar due process and takings clauses. Some state constitutions grant greater
protections than the guarantees provided under the Fifth and Fourteenth Amendments. Id.
6. Hutten-Czapska v. Poland, 45 Eur. Ct. H.R. 4 (2007).
7. See id.
8. See infra notes 65-67 and accompanying text.
9. See generally JAN G. LAITOs, LAW OF PROPERTY RIGHTS PROTECTION: LIMITATIONS
ON GOVERNMENTAL POWER (2005).
10. Edward H. Ziegler, Fundamental Fairness and Regulatory Takings: Judicial
Standards of Fairness Shaping the Limits of Categorical and Partial Taking Claims, 1996
INST. ON PLAN. ZONING & EMINENT DOMAIN 11- I [hereinafter Fundamental Fairness]
11. See, e.g., NAT’L ALLIANCE TO END HOMELESSNESS, ANNUAL REPORT 2008 (2008),
available at http://www.endhomelessness.org/content/article/detail/2547; U.S. INTERAGENCY
COUNCIL ON HOMELESSNESS, http://www.ich.gov/ (last visited Nov. 26, 2010).
12. World Housing Market, ECONOMY WATCH, http://www.economywatch.com/market/
housing-market/world.html (last visited Jan. 31, 2011).
13. Edward H. Ziegler, Partial Taking Claims, Ownership Rights in Land and Urban
Planning Practice: The Emerging Dichotomy Between Uncompensated Regulation and
Compensable Benefit Extraction under the Fifth Amendment Takings Clause, 22 J. LAND
RESOURCES & ENVTL. L. 1 (2002) [hereinafter Ziegler, Partial Taking].
14. See Allison Duham, A Legal and Economic Basis for City Planning, 58 Colum. L.
Rev. 650, 666-67 (1958); see also ZIEGLER, RATHKOPF’S, supra note 2,§ 6:34; Ziegler,
Partial Taking, supra note 13, at 9.
15. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:3; see generally LAITOS, supra note 9;
Ziegler, Partial Taking, supra note 13.
16. See, e.g., United States v. Causby, 328 U.S. 256 (1946) (direct overflights destroyed
present use of land as a chicken farm); United States v. Cress, 243 U.S. 316 (1917) (repeated
flooding of land caused by water project); see also Moden v. United States, 60 Fed. Cl. 275,
282 (Fed. Cl. 2004) (test for distinguishing a taking from a tort in inverse condemnation
cases involves a two-part inquiry: (1) “a property loss compensable as a taking only results
when the government intends to invade a protected property interest or the asserted invasion
is the ‘direct, natural, or probable result of an authorized activity and not the incidental or
consequential injury by the action,”‘ and (2) “‘the nature and magnitude of the government
action must be considered. Even where the effects of the government action are predictable,
to constitute a taking, an invasion must appropriate a benefit to the government at the
expense of the property owner, or at least preempt the owner[‘]s right to enjoy his property
for an extended period of time, rather than merely inflict an injury that reduces its value’)
(quoting Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355-56 (Fed.Cir.2003), aff’d,
404 F.3d 1335 (Fed. Cir. 2005)).
17. See Armstrong v. United States, 364 U.S. 40 (1960). Recent U.S. Supreme Court
taking decisions continue to embrace this ultimate taking standard. See Agins v. City of
Tiburon, 447 U.S. 255, 260 (1980) (“The determination that governmental action constitutes
a taking is, in essence, a determination that the public at large, rather than a single owner,
must bear the burden of an exercise of state power in the public interest.”); see also First
English Evangelical Lutheran Church v. Los Angeles Cnty., 482 U.S. 304, 318-19 (1987)
(“It is axiomatic that the Fifth Amendment’s just compensation provision is ‘designed to bar
Government from forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole”‘) (quoting Armstrong, 364 U.S. at
49)). The following cases contain the same quote from Armstrong: Dolan v. City of Tigard,
512 U.S. 374, 384 (1994); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension
Trust for S. Cal., 508 U.S. 602, 646-47 (1993); Nollan v. Cal. Coastal Comm’n, 483 U.S.
825, 835 n.4 (1987); and Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123
(1978).
18. The U.S. Supreme Court and all state courts recognize that, short of taking title to
property, a police power restriction on land use may “go too far” and constitute an
unconstitutional taking of property for public use, due to government’s failure to pay
compensation for the use or development interests thereby destroyed. As Justice Brennan
stated in San Diego Gas & Electric Co. v. City ofSan Diego, “Police power regulations such
as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of
property in order to promote the public good just as effectively as formal condemnation or
physical invasion of property. From the property owner’s point of view, it may matter little
whether his land is condemned or flooded, or whether it is restricted by regulation to use in
its natural state, if the effect in both cases is to deprive him of all beneficial use of it. From
the government’s point of view, the benefits flowing to the public from preservation of open
space through regulation may be equally great as creating a wildlife refuge through formal
condemnation or increasing electricity production through a dam project that floods private
property.” 450 U.S. 621, 652 (1981). See also Phillips v. Wash. Legal Found., 524 U.S. 156
(1998) (for purposes of taking analysis, property consists of a group of rights including the
owner’s right to possess, use, and dispose of it); Nollan, 483 U.S. at 833, n.2 (“[T]he right to
build on one’s own property – even though its exercise can be subjected to legitimate
permitting requirements-cannot remotely be described as a ‘governmental benefit.”‘).
19. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:3; see generally LAITOs, supra note 9;
Fundamental Fairness, supra note 10, at 11-19.
20. Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
21. Id. at 415.
22. Id. at 413.
23. The Fifth Amendment Takings Clause presupposes the fundamental unfairness of
the uncompensated taking of private property for public use or benefit. In the regulatory
takings context, analysis of fundamental fairness in allocation of the burdens imposed, in
view of the policy of horizontal equity (the approximation of equal sharing of costs or of
sharing according to capacity to pay that exists when property is taken by the expenditure of
public funds) underlying the Takings Clause, secures and implements its original meaning
and purpose. Thus, the Supreme Court noted “the oft-cited maxim that ‘while property may
be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”‘
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-15 (1992) (quoting Pa. Coal Co., 260
U.S. at 415).
24. See RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN 138 (1985); Frank I. Michelman, Possession vs. Distribution in the Constitutional
Idea of Property, 72 IOWA L. REv. 1319, 1329 (1987); Antonin Scalia, Economic Affairs as
Human Affairs, 4 CATO J. 703, 703-04 (1985); see also Jan Laitos, The Strange Career of
Private Property and the Police Power, 40A ROcKY MTN. MIN. L. INST. 2, 2-35 (1995)
(“This protection is occurring in three general ways. First, courts are beginning to strike
laws whose primary defect is that they have unfairly affected private property interests. The
main theories used by courts to defend property against police power exercises that are
fundamentally unfair are (1) presumptions against retroactivity; (2) vested rights; and (3)
equitable estoppel. Second, certain property-protective clauses in the Constitution are being
activated by courts (particularly the United States Supreme Court and the United States
Federal Circuit Court of Appeals) to resist government regulations of land and property.
These clauses are (1) the Takings Clause; (2) the Contracts Clause; and (3) the Due Process
Clause. Third, the United States Congress has proposed legislation that would require
agencies to pay compensation to landowners whose property value has been diminished by
police power exercises. In a perfect reflection of the nation’s newly discovered interest in
the role of private property, many of these bills are entitled ‘The Private Property Owners
Bill of Rights.”‘).
25. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 516 (1987);
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430 (1982).
26. See Loretto, 485 U.S. at 426-435; see also Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 124-25 (1978).
27. See Loretto, 485 U.S. at 426-435; see also Penn Central Transp. Co., 438 U.S. at
124-25 (1978).
28. Loretto, 485 U.S. at 438.
29. See Ziegler, Partial Taking, supra note 13, at 13-14.
30. See, e.g., Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61 (Fla. Dist. Ct.
App. 1994) (statute requiring mobile park owners to either buy tenants’ homes or pay
relocation costs held a regulatory taking); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479
(N.Y. 1994) (holding statute that required owners to provide renewal leases to non-private
hospitals based on primary residency status of hospital’s employee-subtenant affected partial
regulatory taking); Seawall Assocs. v. City of New York, 542 N.E.2d 1059 (N.Y. 1989)
(ordinance preventing destruction or conversion of single-room occupancy buildings is
facially invalid as a regulatory taking).
31. See ZIEGLER, RATtiKOPF’S, supra note 2, § 6:11; see generally LAITOS, supra note 9.
32. ZIEGLER, RATHKOPF’S, supra note 2, §§ 6:14, 6:22.
33. ZIEGLER, RATHKOPF’S, supra note 2, § 6:15; see also, e.g., Fla. Rock Indus., Inc. v.
United States, 18 F.3d 1560, 1567-68 (Fed. Cir. 1994) (reduction in fair market value of
almost ninety-five percent, from $10,500 to $500 per acre, would clearly constitute a total
taking).
34. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:15; see generally LAITOS, supra note 9.
35. See discussion infra Part II.A; see discussion supra Part II.C.
36. ZIEGLER, RATHKOPF’S, supra note 2, § 6:30.
37. Id.
38. The U.S. Supreme Court’s decision in Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) clarifies that a categorical taking occurs not only when an owner is
denied all beneficial use of the land but also when the uses allowed deny an owner all
economically viable use of the land.
39. See, e.g., Helms v. City of Charlotte, 122 S.E.2d 817 (N.C. 1961); see also
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (owner retained an economically viable use
of his land where regulation allowed a residence to be built on the land, which had a market
value of $200,000-a decrease in market value of about ninety-four percent from the market
value of $3,150,000 if fully developed); Walcek v. United States, 303 F.3d 1349 (Fed. Cir.
2002) (applying whole parcel analysis to wetland regulation taking claim and ruling that
adjustment of base value of owner’s land for inflation or deflation was not warranted to
determine extent of economic impact of regulation); Am. Nat’l Bank & Trust Co. of Chi. v.
Vill. of Winfield, 274 N.E.2d 144 (Ill. App. Ct. 1971); McConnell v. Inc. Vill. of Tuckaboe,
25 A.D.2d 441 (N.Y. App. Div. 1966); Cf Munoz Realty Corp. v. Borough of Verona, 225
A.2d 594 (N.J. Super. Ct. App. Div. 1966) (evidence failed to show that homes could not be
built without cellars and sold at a fair profit or that lots could not be sold unimproved for a
fair price to seller), aff’d, 225 A.2d 569 (N.J. 1966).
40. See People ex rel. St. Albans-Springfield Corp. v. Connell, 177 N.E. 313 (N.Y.
1931); see also Opgal, Inc. v. Bums, 189 N.Y.S.2d 606 (N.Y. Sup. Ct. 1959) (because there
were approximately 1,300 acres of industrially zoned land in use in the town, 800 acres of
undeveloped industrially zoned land, and approximately 5,800 acres of vacant land zoned for
industrial use in the county and the neighboring county at the time the plaintiffs land was
zoned from residential to industrial, there was no present need for further industrial rezoning;
rezoning plaintiffs land was restrictive and unconstitutional), ajfd, 10 A.D.2d 977 (N.Y.
App. Div. 1960), aff’d, 173 N.E.2d 50 (N.Y. 1961).
41. ZIEGLER, RATHKOPF’S, supra note 2, §§ 6:22, 6:51.
42. See Pennell v. City of San Jose, 485 U.S. 1, 20 (1988) (Scalia, J., dissenting)
(“Traditional land-use regulation (short of that which totally destroys the economic value of
property) does not violate [fairness principles] . . . . Thus, the common zoning regulations
requiring subdivisions to observe lot-size and set-back restrictions, and to dedicate certain
areas to public streets, are in accord with our constitutional traditions because the proposed
property use would otherwise be the cause of excessive congestion.”).
43. See, e.g., Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948); Bowles v.
Willingham, 321 U.S. 503 (1944).
44. Bowles, 321 U.S. at 516-17.
45. Id. at 517.
46. See, e.g., Adamson Cos. v. City of Malibu, 854 F. Supp. 1476, 1502 (C.D. Cal.
1994) (rent control ordinance); Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61
(Fla. Dist. Ct. App. 1994) (conditions on change of use of mobile home park); Manocherian
v. Lenox Hill Hosp
47. See W. Dennis Keating, Rent Control: Fair Return, Landlord Hardship, and
Regulatory takings, 12 ZONING & PLAN. L. REP. 169 (1989); see also Santa Monica Beach,
Ltd. V. Superior Court, 968 P.2d 993, 1002 (Cal. 1999) (rejecting a substantive due process
claim to rent control law; “[C]ourts have employed the fair return analysis to price regulation
cases whether the contested regulation is dominated as a taking or a deprivation of property
without due process.”).
48. See generally Karl Manheim, Tenant Eviction Protection and the Takings Clause,
1989 Wis. L. REv. 925.
49. See Kenneth K. Baar, Guidelines for Drafting Rent Control Laws: Lessons of a
Decade, 35 RUTGERS L. REv. 721, 784-816 (1983). The U.S. Supreme Court has generally
defined fair return in this context as a “return . .. commensurate with returns on investments
in other enterprises having corresponding risks. That return, moreover, should be sufficient
to . .. extract capitol.” Fed. Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 603
(1944). See also In re Permian Basin Area Rate Cases, 390 U.S. 747, 792 (1968) (“The
court must determine whether the [regulation] may reasonably be expected to maintain
financial integrity, attract necessary capitol, and fairly compensate investors for the risks
they have assumed, and yet provide appropriate protection for the relevant public interests,
both existing and foreseeable.”).
50. See Kavanau v. Santa Monica Rent Control Bd., 941 P.2d 851, 858-59 (Cal. 1997)
(summarizing a number of important criteria for evaluating whether regulation as applied
provides a “fair return” on investment).
51. Parks v. Rent Control Bd., 526 A.2d 685, 686 (N.J. 1987).
52. See generally San Marcos Mobilehome Park Owners Ass’n v. City of San Marcos,
238 Cal. Rptr. 290 (Cal. Ct. App. 1987); Parks, 526 A.2d 685.
53. Assistance, Inc. v. Teledyne Indus., Inc., 112 Cal. Rptr. 418 (Cal. Ct. App. 1974).
54. Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 958 (9th Cir. 1991), vacated,
506 U.S. 802 (1992); see also Main Union Assocs. v. Twp. of Little Falls Rent Leveling Bd.,
703 A.2d 971 (N.J. Super. Ct. App. Div. 1997) (absence of provision for capital
improvement surcharge did not render rent control ordinance unconstitutional on its face
since the ordinance allowed rent increases to provide a just and reasonable return).
55. Richardson v. City & Cnty of Honolulu, 759 F. Supp. 1477 (D. Haw. 1991).
56. Id.
57. Id. at 1489.
58. Id. at 1489-90.
59. Seawall Assocs. v. City of New York, 542 N.E.2d 1059 (N.Y. 1989).
60. Id.
61. Id. at 1060-61.
62. Id. at 1065-68.
63. Seawall Assocs., 542 N.E.2d at 1069.
64. Id.; see also Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61 (Fla. Dist.
Ct. App. 1994) (statute requiring owner, if changing use of mobile home park, to either buy
tenants’ homes or pay to have homes moved held unconstitutional since not economically
feasible).
65. See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994); Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993); Nollan v. Cal.
Coastal Comm’n, 483 U.S. 825 (1987); Penn Cent. Transp. Co. v. City of New York, 438
U.S. 104 (1978).
66. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:51; see also Dolan, 512 U.S. at 374;
Nollan, 483 U.S. at 825.
67. ZIEGLER, RATHKOPF’S, supra note 2, §§ 6:51-52.
68. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:51; see also Fla. Rock Indus., Inc. v.
United States, 18 F.3d 1560, 1571 (Fed. Cir. 1994); see generally Fundamental Fairness,
supra note 10.
69. See, e.g., E. Enters. v. Apfel, 524 U.S. 498, 528-29, 537 (1998) (the Takings Clause
requires fair assessment of burdens imposed related to causation and proportionality); Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1018-26 (1992) (while regulation often may be
interpreted as either “harm-preventing” or “benefit-conferring,” there must be heightened
judicial review of the nexus between the conduct restricted and the social problem addressed
by regulation in situations where there is a “heightened risk that private property is being
pressed into some form of public service”); United States v. Armstrong, 364 U.S. 40, 49
(1960) (the Takings Clause “was designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the public
as a whole.”); Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (“[A] strong public desire to
improve the public condition is not enough to warrant achieving the desire by a shorter cut
than the constitutional way of paying for the change …. [T]he question at bottom is upon
whom the loss of the [regulatory] changes desired should fall.”); Monongahela Navigation
Co. v. United States, 148 U.S. 312, 325 (1893) (the Takings Clause “prevents the public
from loading upon one individual more than his just share of the burdens of government, and
says that when he surrenders to the public something more and different from that which is
exacted from other members of the public, a full and just equivalent shall be returned to
him.”).
70. Dolan, 512 U.S. 374 (holding that there must be rough proportionality between
amount of development exaction and extent of specific problem related to or need generated
by particular development proposal); Nollan, 483 U.S. 825 (holding that there must be a
substantial relationship between nature of development exaction and some specific problem
related to or need generated by particular development proposal); see also Fundamental
Fairness, supra note 10, at 11-23.
71. Dolan, 512 U.S. 374 (holding that there must be rough proportionality between
amount of development exaction and extent of specific problem related to or need generated
by particular development proposal); Nollan, 483 U.S. 825 (holding there must be a
substantial relationship between nature of development exaction and some specific problem
related to or need generated by particular development proposal); see also ZIEGLER,
RATHKOPF’S , supra note 2, § 6:10; Fundamental Fairness, supra note 10, at 11-23; see
generally LAITOS, supra note 9.
72. This type of partial taking analysis is reflected, in another context, in California
Chief Justice Rose Bird’s dissenting opinion in Yarborough v. Superior Court, 702 P.2d 583,
432 (Cal. 1985) (quoting Yarbrough v. Superior Court, 197 Cal.Rptr. 737, 744-45 (Cal. Ct.
App. 1983) (King, J., concurring):
No one would dare suggest courts have the authority to order a doctor, dentist
or any other professional to provide free services, while at the same time
telling them they must personally pay their own overhead charges for that
time. No crystal ball is necessary to foresee the public outrage which would
erupt if we ordered grocery store owners to give indigents two months of free
groceries or automobile dealers to give them two months of free cars. Lawyers
in our society are entitled to no greater privileges than the butcher, the baker
and the candlestick maker; but they certainly are entitled to no less.
73. But cf Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872, 873
(9th Cir. 1991) (upholding low-income housing fee on commercial building permits);
Holmdel Builders Ass’n v. Twp. of Holmdel, 583 A.2d 277, 295 (N.J. 1990) (upholding
low-income housing fee on commercial building permits); Seawall Assocs. v. City of New
York, 542 N.E.2d 1059, 1069 (N.Y. 1989) (affirming buyout and other burdens imposed on
single-room only housing to address problems of homeless).
74. See, e.g., Commercial Builders of N. California v. City of Sacramento, 941 F.2d 872
(9th Cir. 1991) (upholding city ordinance that conditioned nonresidential building permits on
payment of fee to offset burdens associated with influx of low-income workers to work on
such developments); S. Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192, 1206
(E.D.N.C. 1988) (rejecting a claim that a three-fold increase in utility system and tap water
impact fees was arbitrary even though the fees bore no relationship to the stated purposes
and were intermixed with government funds), affd, 900 F.2d 255 (4th Cir. 1990); Bldg.
Indus. Ass’n of Cent. Cal. v. City of Patterson, 90 Cal. Rptr.3d 63 (Cal. Ct. App.), cert.
denied, 130 S.Ct. 660 (2009).
75. Bldg. Indus. Ass’n, 90 Cal.Rptr.3d at 73-74.
76. Id.
77. Id. at 74.
78. See, e.g., Garneau v. City of Seattle, 897 F. Supp. 1318 (W.D. Wash. 1995)
(exaction of cash relocation assistance for low-income tenants); Gagne v. City of Hartford,
10 Conn. L. Rptr. 630 (Conn. Super. Ct. 1994) (requiring replacement of, or “in lieu” fees
for, low income housing); Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61 (Fla.
Dist. Ct. App. 1994) (requirement that mobile home park owners buy tenants’ homes or pay
relocation costs); Prop. Owners Ass’n v. Twp. of N. Bergen, 378 A.2d 25 (N.J. 1977)
(ordinance requiring landlords and other tenants to subsidize senior citizens’ rents);
Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479 (N.Y. 1994) (requirement that owners
provide renewal leases to non-private hospitals based on primary residency status of
hospital’s employee-subtenant); Seawall Assocs., 542 N.E.2d at 1069 (buyout and other
burdens imposed on single-room-only housing to address homelessness problem); Guimont
v. Clarke, 854 P.2d I (Wash 1993) (relocation assistance for low-income tenants); Robinson
v. City of Seattle, 830 P.2d 318 (Wash. 1992) (fees required for destruction of low-income
housing).
79. Prop. Owners Ass’n, 378 A.2d at 33 (“[T]he initial burden falls exclusively upon the
shoulders of the non-Senior Tenants, who in a given case may be financially less capable of
bearing the increase than the Senior Tenants.”).
80. Hutten-Czapska v. Poland, 45 Eur. Ct. H.R. 4 (2007).
81. Maureen Markham, Poland: Housing Challenge In a Time of Transition (2003)
(unpublished HUT-236M paper, Harvard University), http://www.jchs.harvard.edu/
education/ oustandingstudent_papers/markham_poland_03.pdf.
82. Hutten-Czapska, 45 Eur. Ct. H.R. at 237.
83. Id.
84. Id. at% 136-41.
85. Hutten-Czapska, 45 Eur. Ct. H.R. at 1237.
86. Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms of 20 March 1952, as amended by Protocol No. 11, May 11, 1994, ETS No. 155
(entered into force Nov. 1, 1998), available at http://www.ena.lu/protocolconvention_
protection human rights fundamentalfreedomsparismarch_1952_amendedversion-2-
13069.
87. Charter of Fundamental Rights of the European Union, art. 17, 1 1, 2000 O.J. (C
364) 1, 12.
88. Hutten-Czapska, 45 Eur. Ct. H.R. at 1 225.
89. Id.
90. Id. at 167; see also Spadea & Scalabrino v. Italy, 21 Eur. Ct. H.R. 482 (1996)
(discussing the impossibility for a landlord to obtain the enforcement of a decision evicting a
tenant).
91. See supra notes 65-71 and accompanying text.
92. See Charter of Fundamental Rights of the European Union, art. 17, T 1, 2000 O.J. (C
364) 1, 12; Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms of 20 March 1952, as amended by Protocol No. 11, May 11, 1994, ETS No. 155
(entered into force Nov. 1, 1998), available at http://www.ena.lulprotocolconvention_
protection human-rightsfundamental_freedomsparis march_1952_amended version-2-
13069.
94. See Thomas W. Merrill, Dolan v. City of Tigard: Constitutional Rights as Public
Goods, 72 DENV. U. L. REv. 859 (1995).
95. See generally id.
96. 6 West’s Encyclopedia of American Law 185 (Jeffrey Lehman & Shirelle Phelps
eds., 2nd ed. 2005).
97. Id.
98. Id.
99. Id.
100. Id.
101. Id.
102. Id.
103. West’s Encyclopedia of American Law, supra note 96, at 187.
104. Id.
105. Id.
106. Id.
107. Id.
108. One such intervention is rent control, where government artificially restricts rent
increases or limits the landlord’s ability to charge a service fee to tenants and thus interferes
with the market supply, demand and price, rendering the market’s self-corrective features
inoperative. See, e.g., Guggenheim v. City of Goleta, 2010 WL 5174984 (9th Cir. December
22, 2010) (en banc) (holding that a mobile home park rent control ordinance constituted a
regulatory taking. The ordinance was a wealth transfer mechanism, which placed a high
burden on private owners to accomplish city goals that could have been accomplished by
other means and went “too far.” The 9th Circuit, sitting en banc, reversed, holding that the
ordinance furthered legitimate government purpose, as required by due process, and thus did
not constitute taking).
Different tax rates among localities, concentrating higher tax rates in the centrally
located urban developments encourage suburbanization and aggravate the troubles of
central-city business properties. Through various policies, such as tax incentives, low
interest loans, easy credit, secondary mortgage market and capital gains protection, the
government creates over-stimulation of demand. These policies led to the near collapse of
the American housing market in 2008-2009.
109. See generally STEPHEN G. BREYER, REGULATION AND ITS REFORM (1982); PHILIP K.
HOWARD, THE DEATH OF COMMON SENSE: How LAW IS SUFFOCATING AMERICA (1994);
SUSAN ROSE-ACKERMAN, RETHINKING THE PROGRESSIVE AGENDA: THE REFORM OF THE
AMERICAN REGULATORY STATE (1992).
110. See ROSE-ACKERMAN, supra note 109, at 133-34
S11l. Norman Kailin, Substantive Due Process: A Doctrine for Regulatory Control, 13
Sw. U. L. REV. 479, 480 (1983).
112. See LAITOS, supra note 9, § 1.04(C)(1).
113. See Dolan v. City of Tigard, 512 U.S. 374, 385-86 (1994); Armstrong v. United
States, 364 U.S. 40, 49 (1960); see also LAITOS, supra note 9, § 1.04(C)(1).
114. Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical
Foundations of “Just Compensation” Law, 80 HARV. L. REV. 1165, 1214 (1967)
[hereinafter Michelman, Property].
115. Id.
116. LAITos, supra note 9, § 1.04(C)(1).
117. EPSTEIN, supra note 24, at 95-200.
118. Pennell v. City of San Jose, 485 U.S. 1, 19-23 (1988) (Scalia, J., concurring in part
and dissenting in part).
119. Dolan, 512 U.S. at 386-87, 391-93 (1994).
120. See Philip P. Houle, Eminent Domain, Police Power and Business Regulation:
Economic Liberty and the Constitution, 92 W. Va. L. Rev. 51, 61 (1989); Anthony S.
McCaskey, Comment, Thesis and Antithesis of Liberty of Contract: Excess in Lochner and
Johnson Controls, 3 SETON HALL CONST. L.J. 409, 459 (1993); James L. Oakes, “Property
Rights” in Constitutional Analysis Today, 56 WASH. L. REV. 583, 624 (1981); Note,
Resurrecting Economic Rights: The Doctrine of Due Process Reconsidered, 103 HARV. L.
REV. 1363, 1371 (1990).
121. LAITOS, supra note 9, § 1.04(C)(1).
122. Houle, supra note 120, at 59, 98.
123. See MANCUR M. OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND
THEORY OF GROUPS 165-67 (2d ed. 1971); see also Glynn S. Lunney, Jr., A Critical
Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892, 1950-51 (1992)
(concentrated groups are likely to have disproportionately greater resources available than a
dispersed group of poor individuals and are more likely to use the available resources more
effectively to influence the legislature).
124. Legal Scholars have increasingly argued that property rights should be accorded
constitutional protection equal to those enjoyed by other individual rights. See, e.g.,
EPSTEIN, supra note 24; 3 FRIEDRICK A. HAYAK, LAW, LEGISLATION, AND LIBERTY: THE
POLITICAL ORDER OF A FREE PEOPLE (1979); ROSE-ACKERMAN, supra note 109; BERNARD H.
SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980); CASS R. SUNSTEIN, AFTER THE
RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE (1990); Ronald J.
Krotoszynski, Jr., Fundamental Property Rights, 85 GEO. L.J. 555 (1997); Douglas W.
Kmiec, Property and Economic Liberty as Civil Rights: The Magisterial History of James
W Ely, Jr., 52 VAND. L. REV. 737 (1999) (reviewing PROPERTY RIGHTS IN AMERICAN
HISTORY (James W. Ely, Jr. ed. 1997)). But see C. Edwin Baker, Property and its Relation
to Constitutionally Protected Liberty, 134 U. PA. L. REV. 741 (1986); Alan E. Brownstein,
Constitutional Wish Granting and the Property Rights Genie, 13 CONST. COMMENT. 7
(1996).
126. Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1015 (1992).
127. Van Wyk v. Public Serv. Co., 996 P.2d 193 (Colo. App. 1999), rev’d in part, 27
P.3d 377 (Colo. 2001).
128. Ali v. City of Los Angeles, 91 Cal. Rptr.2d 458 (Cal. Ct. App. 1999) (two-year
temporary taking).
129. Lucas, 505 U.S. at 1019 n.8; see also Shelden v. United States, 7 F.3d 1022 (Fed.
Cir. 1993) (taking when government action totally destroyed value of a mortgage owned by
the plaintiff)
130. See Michelman, Property, supra note 114, at 1211-14; see also JEREMY BENTHAM,
PRINCIPLES OF THE CIVIL CODE, IN THEORY OF LEGISLATION 109-14, 121 (C.K. Ogden ed.
1987).
131. EPSTEIN, supra note 24, at 265.
132. ZIEGLER, RATHKOPF’S, supra note 2, § 6:16.
133. Armstrong v. United States, 364 U.S. 40 (1960).
134. Id. at 44.
135. See, e.g., Christopher Lake Dev. Co. v. St. Louis Cnty., 35 F.3d 1269, 1275 (8th Cir.
1994); Creppel v. United States, 41 F.3d 627, 631 (Fed. Cir. 1994); Cardan Oil Co. v. City of
Phoenix, 593 P.2d 656, 659 (Ariz. 1979); Manocherian v. Lenox Hill Hosp., 643 N.E.2d
479, 484 (N.Y. 1994).
136. See, e.g., Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 699 N.Y.S.2d 721
(N.Y. 1999) (discussing whether plaintiffs had been singled out or involuntarily conscripted
to provide open space to the public).
137. See Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal
Analysis, 86 YALE L.J. 420 (1977); A. Dan Tarlock, Zoning and Land Use Symposium:
Regulatory Takings, 60 Cm.-KENT L. REV. 23, 31 (1984).
138. EPsTEIN, supra note 24, at viii.

cited https://mckinneylaw.iu.edu/iiclr/pdf/vol21p25.pdf
download PDF here 

16. Property Rights and the Constitution

cited https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/property-rights-constitution#suggested-readings

download a complete Cato Handbook for Policymakers 8th Edition here
or from original mirrored source here

Statewide Rent Control in California

California’s Tenant Protection Act of 2019 (the Act) implemented statewide rent and eviction control laws that affect most residential tenancies in the state. The Act caps rent increases statewide for qualifying units at 5% plus inflation, or 10% of the lowest gross rental rate charged at any time during the 12 months prior to the increase-whichever is lower. Additionally, landlords can raise rent only once over any 12 month period.

California also allows cities and counties to enact local rent control laws. The Act does not override more restrictive local rent control laws, but does override those that are less restrictive. Also, local rent control laws might apply to rental properties that the Act does not cover.