The need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, officers must respect the sanctity of the home—which means that they must get a warrant. Lange v. California, 594 U.S. ___,
141 S. Ct. 2011,
210 L. Ed. 2d 486 (2021).
Within the meaning of the 4th amendment, domestic animals are effects and the killing of a companion dog constitutes a seizure, which is constitutional only if reasonable. Viilo v. Eyre,
547 F.3d 707 (2008).
Given how slight is the incremental loss of privacy from having to wear an anklet monitor, and how valuable to society the information collected by the monitor is, s. 301.48 does not violate the 4th amendment. The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers' having to obtain warrants. Such warrantless searches do not violate the 4th amendment as long as they are reasonable. Such monitoring of sex offenders is permissible if it satisfies the reasonableness test applied in parolee and special-needs cases. Wisconsin's ankle monitoring of the defendant is reasonable. Belleau v. Wall,
811 F.3d 929 (2016). See also Braam v. Carr,
37 F.4th 1269 (2022).
For protective searches for weapons, area searches are permissible only when they have the level of suspicion identified in
Terry,
392 U.S. 1 (1968). Under
Terry, an officer may conduct a protective search for weapons of an individual's person and the area within the individual's control if a reasonably prudent person in the circumstances would be warranted in the belief that the person's safety or that of others was in danger. In this case, officers suspected the defendant had placed a gun on the threshold of the front door behind the screen door, and, based on the totality of the circumstances, opening the screen door fell within the bounds of a constitutional search. United States v. Richmond,
924 F.3d 404 (2019).
In this case, because the walkway was part of the curtilage of the house and was not clearly accessible to the public, when police officers used it to enter the backyard, they violated the 4th amendment. Although they were in the process of securing the perimeter, which they contend was a legitimate law enforcement objective, the broad catch-call of “legitimate law enforcement objective" is not an exception to the 4th amendment's curtilage rule. Reardon v. Schossow,
416 F. Supp. 3d 793 (2019).
But What of Wisconsin's Exclusionary Rule? The Wisconsin Supreme Court Accepts Apparent Authority to Consent as Grounds for Warrantless Searches. Schmidt. 83 MLR 299 (1999).
State v. Seibel: Wisconsin Police Now Need Only a Reasonable Suspicion to Search a Suspect's Blood Incident to an Arrest. Armstrong. 1993 WLR 523.
The Private-Search Doctrine Does Not Exist. McJunkin. 2018 WLR 971.
Law Enforcement in the American Security State. Said. 2019 WLR 819.
OWI Blood Draws: An Uncertain Road Ahead. Anderegg. Wis. Law. Nov. 2017.
I,12
Attainder; ex post facto; contracts. Section 12
. No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.
Section 45.37 (9), Stats. 1963, constituted a contract as to the property an applicant for admission to the Grand Army Home had to surrender, and to apply a later amendment would be unconstitutional. Estate of Nottingham,
46 Wis. 2d 580,
175 N.W.2d 640.
Although the obligation of a contract is not an absolute right but one that may yield to the compelling interest of the public, the public purpose served by a law mandating rent reductions due to property tax relief is not so vital so as to permit such an impairment of contract. State ex rel. Bldg. Owners v. Adamany,
64 Wis. 2d 280,
219 N.W.2d 274.
Retroactive application of s. 57.06, 1987 stats. [now s. 304.06], as amended in 1973, increasing the period to be served by state prison inmates imposed an additional penalty and violated the prohibition against ex post facto legislation. State ex rel. Mueller v. Powers,
64 Wis. 2d 643,
221 N.W.2d 692.
The legislative preclusion against the State Medical Society's divesting itself of control of ch. 148, disability plans did not constitute any impairment of the society's charter because: 1) the grant of ch. 148 powers is permissive and voluntarily exercised by the society; 2) the ch. 148 grant is in the nature of a franchise rather than a contract and cannot be viewed as unalterable or it would constitute a delegation of inalienable legislative power; and 3) the constitutional interdiction against statutes impairing contracts does not prevent the state from exercising its police powers for the common good. State Medical Society v. Comm. of Insurance,
70 Wis. 2d 144,
233 N.W.2d 470.
When a probation statute was amended after a crime was committed but before the accused pled guilty and was placed on probation, application of the amended statute to probation revocation proceedings offended the ex post facto clause. State v. White,
97 Wis. 2d 517,
294 N.W.2d 36 (Ct. App. 1979).
A challenge to legislation must prove: 1) the legislation impairs an existing contractual relationship; 2) the impairment is substantial; and 3) if substantial, the impairment is not justified by the purpose of the legislation. Reserve Life Ins. Co. v. La Follette,
108 Wis. 2d 637,
323 N.W.2d 173 (Ct. App. 1982).
A mortgage contract entered into in 1977 and controlled by the 1971 statutes, which provided for a redemption period of 12 months upon foreclosure, could not be altered by a 1978 legislative enactment that reduced the redemption period to 6 months. An act that in any degree modifies the obligation of the contract by attempting to relieve the one party from any duty by the contract assumed is repugnant to the constitutional prohibition. Burke v. E. L. C. Investors, Inc.
110 Wis. 2d 406,
329 N.W.2d 259 (Ct. App. 1982).
The ex post facto prohibition applies to judicial pronouncements as well as legislative acts. The question to be addressed is whether the new law criminalizes conduct that was innocent when committed. State v. Kurzawa,
180 Wis. 2d 502,
509 N.W.2d 712 (1993).
Legislation creating penalty enhancers resulting from convictions prior to the effective date does not run afoul of the ex post facto clause. State v. Schuman,
186 Wis. 2d 213,
520 N.W.2d 107 (Ct. App. 1994).
An ex post facto law is one that punishes as a crime an act previously committed, that: 1) was innocent when done; 2) makes more burdensome the punishment for a crime, after its commission; or 3) deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel,
188 Wis. 2d 695,
524 N.W.2d 641 (1994).
Retroactive application of a new statute of limitations, enacted at a time when the old limitations period has not yet run, does not violate the ex post facto clause. State v. Haines,
2003 WI 39,
261 Wis. 2d 139,
661 N.W.2d 72,
01-1311.
In any challenge to a law on double jeopardy and ex post facto grounds, the threshold question is whether the ordinance is punitive, as both clauses apply only to punitive laws. Courts employ a two-part “intent-effects" test to answer whether a law applied retroactively is punitive and, therefore, an unconstitutional violation of the Double Jeopardy and Ex Post Facto Clauses. If the intent was to impose punishment, the law is considered punitive and the inquiry ends there. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. City of South Milwaukee v. Kester,
2013 WI App 50,
347 Wis. 2d 334,
830 N.W.2d 710,
12-0724.
In evaluating a claim brought under the contract clause, the court first considers whether the contested state legislation has operated as a substantial impairment of a contractual relationship. This inquiry has three components: 1) whether there is a contractual relationship; 2) whether a change in law impairs that contractual relationship; and 3) whether the impairment is substantial. If the legislative act constitutes a substantial impairment to a contractual relationship, it will still be upheld if a significant and legitimate public purpose for the legislation exists. If a significant and legitimate purpose exists for the challenged legislation, the question becomes whether the legislature's impairment of the contract is reasonable and necessary to serve an important public purpose. Madison Teachers, Inc. v. Walker,
2014 WI 99,
358 Wis. 2d 1,
851 N.W.2d 337,
12-2067.
For a legislative enactment to be considered a contract, the language and circumstances must evince a legislative intent to create private rights of a contractual nature enforceable against the state. This requires the court, when reviewing a particular legislative enactment, to suspend judgment and proceed cautiously both in identifying a contract within the language of a regulatory statute and in defining the contours of any contractual obligation. Madison Teachers, Inc. v. Walker,
2014 WI 99,
358 Wis. 2d 1,
851 N.W.2d 337,
12-2067.
Under
Calder v. Bull,
3 U.S. 386, “every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender," is a prohibited ex post facto law. A post-offense change in the law making hearsay evidence admissible at a preliminary hearing did not violate a defendant's ex post facto rights. The hearing is not held “in order to convict the offender," but rather to determine if probable cause exists to bind over a defendant for trial, at which the decision whether to convict occurs. State v. Hull,
2015 WI App 46,
363 Wis. 2d 603,
867 N.W.2d 419,
14-0365.
To determine whether a statute is punitive, the court applies the intent-effects test. The second part of the intent-effects test requires the court to examine the effect of the statute. Seven factors guide the court's analysis of whether the statute actually punishes a defendant: 1) does the statute involve an affirmative disability or restraint; 2) has the sanction at issue historically been regarded as punishment; 3) will the sanction be imposed only after a finding of scienter; 4) does the statute promote the traditional aims of punishment — retribution and deterrence; 5) is the behavior to which the sanction applies already a crime; 6) is there an alternative purpose to which the sanction may be rationally connected; and 7) is the sanction excessive in relation to the alternative purpose assigned. State v. Williams,
2018 WI 59,
381 Wis. 2d 661,
912 N.W.2d 373,
16-0883.
A statute is an ex post facto law only if it imposes punishment. In
Muldrow,
2018 WI 52, the court determined that neither the intent nor the effect of lifetime global positioning system (GPS) tracking is punitive. Thus, GPS tracking does not violate the ex post facto clause. Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774,
915 N.W.2d 193,
17-0085.
Constitutionality of rent control discussed. 62 Atty. Gen. 276.
I,13
Private property for public use. Section 13
. The property of no person shall be taken for public use without just compensation therefor.
The dismissal of an appeal for lack of prosecution in a condemnation action did not violate the condemnee's right to just compensation. Taylor v. State Highway Comm.,
45 Wis. 2d 490,
173 N.W.2d 707.
The total rental loss occasioned by a condemnation is compensable, and a limitation to one year's loss was invalid. Luber v. Milwaukee County,
47 Wis. 2d 271,
177 N.W.2d 380.
A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now ss. 59.692 and 281.31] does not amount to a taking of property. Police powers and eminent domain are compared. Just v. Marinette County,
56 Wis. 2d 7,
201 N.W.2d 761.
A special assessment against a railroad for a sanitary sewer laid along the railroad's right-of-way, admittedly of no immediate use or benefit to the railroad, did not constitute a violation of this section. Soo Line RR. Co v. Neenah,
64 Wis. 2d 665,
221 N.W.2d 907.
In order for the petitioner to succeed in the initial stages of an inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property under s. 32.10, or a taking, which must be compensated under the constitution. Howell Plaza, Inc. v. State Highway Comm.,
66 Wis. 2d 720,
226 N.W.2d 185.
The owners of private wells ordered by the department of natural resources to seal them because of bacteriological danger are not entitled to compensation because such orders are a proper exercise of the state's police power to prevent a public harm, for which compensation is not required. Village of Sussex v. Dept. of Natural Resources,
68 Wis. 2d 187,
228 N.W.2d 173.
Ordering a utility to place its power lines under ground in order to expand an airport constituted a taking because the public benefited from the enlarged airport. Public Service Corp. v. Marathon County,
75 Wis. 2d 442,
249 N.W.2d 543.
For inverse condemnation purposes, a taking can occur absent a physical invasion only when there is a legally imposed restriction upon the property's use. Howell Plaza, Inc. v. State Highway Comm.,
92 Wis. 2d 74,
284 N.W.2d 887 (1979).
The doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for recovery of just compensation. Zinn v. State,
112 Wis. 2d 417,
334 N.W.2d 67 (1983).
Zoning classifications may unconstitutionally deprive property owners of due process of law. State ex rel. Nagawicka Is. Corp. v. Delafield,
117 Wis. 2d 23,
343 N.W.2d 816 (Ct. App. 1983).
Ordering a riparian owner to excavate and maintain a ditch to regulate a lake level was an unconstitutional taking of property. Otte v. DNR,
142 Wis. 2d 222,
418 N.W.2d 16 (Ct. App. 1987).
A taking by government restriction occurs only if the restriction deprives the owner of all or practically all use of property. Busse v. Dane County Regional Planning Comm.,
181 Wis. 2d 527,
510 N.W.2d 136 (Ct. App. 1993).
A taking claim is not ripe for judicial review until the government agency charged with implementing applicable regulations has made a final decision applying the regulations to the property at issue. Taking claims based on equal protection or due process grounds must meet the ripeness requirement. Streff v. Town of Delafield,
190 Wis. 2d 348,
526 N.W.2d 822 (Ct. App. 1994).
Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha,
200 Wis. 2d 737,
547 N.W.2d 778 (Ct. App. 1996),
95-0185.
A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha,
201 Wis. 2d 365,
548 N.W.2d 528 (1996),
93-2381.
Section 32.10 does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on this section. Anderson v. Village of Little Chute,
201 Wis. 2d 467,
549 N.W.2d 561 (Ct. App. 1996),
95-1677.
The mandate of just compensation cannot be limited by statute or barred by sovereign immunity. Just compensation is not measured by the economic benefit to the state resulting from the taking, but by the property owner's loss. Just compensation is for property presently taken and necessarily means the property's present value presently paid, not its present value to be paid at some future time without interest. Retired Teachers Ass'n v. Employee Trust Funds Board,
207 Wis. 2d 1,
558 N.W.2d 83 (1997),
94-0712.
A municipality may constitutionally retain the excess proceeds of a tax lien foreclosure and sale if there has been notice sufficient to meet due process requirements. Due process does not require notices to state that should the tax lien be foreclosed and property sold the municipality may retain all the proceeds. Ritter v. Ross,
207 Wis. 2d 476,
558 N.W.2d 909 (Ct. App. 1996),
95-1941. But see Tyler v. Hennepin County, 598 U.S. ___,
143 S. Ct. 1369,
215 L. Ed. 2d 564 (2023).
The reversal of an agency decision by a court does not convert an action that might have otherwise been actionable as a taking into one that is not. Once there has been sufficient deprivation of use of property, there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment,
227 Wis. 2d 609,
595 N.W.2d 730 (1999),
97-2869.
When a regulatory taking claim is made, the plaintiff must prove: 1) a government restriction or regulation is excessive and therefore constitutes a taking; and 2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment,
227 Wis. 2d 609,
595 N.W.2d 730 (1999),
97-2869.
A condemnation of property for a highway that was never built because an alternative route was found constituted a temporary taking entitling the owner to compensation, but not to attorney fees as there is no authority to award fees for an action brought directly under this section. Stelpflug v. Town of Waukesha,
2000 WI 81,
236 Wis. 2d 275,
612 N.W.2d 700,
97-3078.
A claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen,
2000 WI App 140,
237 Wis. 2d 284,
614 N.W.2d 845,
99-2192.
A property owner who acquires property knowing that permits are required for development cannot presume that the permits will be granted and assumes the risk of loss in the event of denial. R.W. Docks & Slips v. State,
2000 WI App 183,
238 Wis. 2d 182,
617 N.W.2d 519,
99-2904.
Under Wisconsin eminent domain law, courts apply the unit rule, which prohibits valuing individual property interests or aspects separately from the property as a whole. When a parcel of land is taken by eminent domain, the compensation award is for the land itself, not the sum of the different interests therein. Hoekstra v. Guardian Pipeline, LLC,
2006 WI App 245,
298 Wis. 2d 165,
726 N.W.2d 648,
03-2809.
The lessor under a long-term favorable lease who received no compensation for its leasehold interest under the unit rule when the fair market value of the entire property was determined to be zero was not denied the right to just compensation. City of Milwaukee VFW Post No. 2874 v. Redevelopment Authority of the City of Milwaukee,
2009 WI 84,
319 Wis. 2d 553,
768 N.W.2d 749,
06-2866.
Consequential damages to property resulting from governmental action are not compensable under Article I, Section 13 or the takings clause of the 5th amendment. Here, the government did not physically occupy the plaintiff's property or use it in connection with the project in question, and the public obtained no benefit from the damaged property. Rather, the property was damaged as a result of alleged negligent construction. Accordingly, there was only damage, without appropriation to the public purpose. Such damage is not recoverable in a takings claim but instead sounds in tort. E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District,
2010 WI 58,
326 Wis. 2d 82,
785 N.W.2d 409,
08-0921.
Article I, Section 13 protects a wide variety of property interests recognized by state law. Contract rights are not the sine qua non for a property interest in a state fund. Property interests arise from a much broader set of factors than contract rights. A contractual relationship is a source of property interests, and that principle remains sound, but case law recognizes a broader scope of participant interests. These interests derive directly from statutory language and from the nature and purpose of the trust created by statute. Wisconsin Medical Society v. Morgan,
2010 WI 94,
328 Wis. 2d 469,
787 N.W.2d 22,
09-0728.
Health care providers have a constitutionally protected property interest in the injured patients and families compensation fund under s. 655.27, which defines the fund as an irrevocable trust, and the structure and purpose of which satisfy all the elements necessary to establish a formal trust. Because the health care providers are specifically named as beneficiaries of the trust, they have equitable title to the assets of the fund. The transfer of $200 million from the fund to another fund was an unconstitutional taking of private property without just compensation. Wisconsin Medical Society v. Morgan,
2010 WI 94,
328 Wis. 2d 469,
787 N.W.2d 22,
09-0728.
A taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner's property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. The government airport operator bears responsibility if aircraft are regularly deviating from FAA flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their property. Placing the burden on the property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for such takings. Brenner v. City of New Richmond,
2012 WI 98,
343 Wis. 2d 320,
816 N.W.2d 291,
10-0342.
Injury to property resulting from the exercise of the police power of the state does not necessitate compensation. A state acts under its police power when it regulates in the interest of public safety, convenience, and the general welfare of the public. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Claims for such “regulatory takings" must be brought under s. 32.10, the inverse condemnation statute. Hoffer Properties, LLC v. State of Wisconsin,
2016 WI 5,
366 Wis. 2d 372,
874 N.W.2d 533,
12-2520.
To maintain an unconstitutional takings claim, four factors must be demonstrated: 1) a property interest exists; 2) the property interest has been taken; 3) the taking was for public use; and 4) the taking was without just compensation. Adams Outdoor Advertising Limited Partnership v. City of Madison,
2018 WI 70,
382 Wis. 2d 377,
914 N.W.2d 660,
16-0537.
A right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest. Adams Outdoor Advertising Limited Partnership v. City of Madison,
2018 WI 70,
382 Wis. 2d 377,
914 N.W.2d 660,
16-0537.
An exaction is a category of regulatory takings that is defined as conditioning approval of development on the dedication of property to public use and can include conditioning a development approval upon the developer making some financial commitment. The analysis of whether a government exaction is constitutional has been set forth in a two-prong test referred to as the
Nollan,
483 U.S. 825 (1987)/
Dolan,
512 U.S. 374 (1994), test. First, the government must establish that an essential nexus exists between a legitimate government interest and the exaction. Second, if an exaction satisfies the essential nexus requirement, the government must demonstrate rough proportionality between the exaction and the impact caused by the development. Fassett v. City of Brookfield,
2022 WI App 22,
402 Wis. 2d 265,
975 N.W.2d 300,
21-0269.
Under
Nollan,
483 U.S. 825 (1987), a substantial nexus must exist between the purpose for a development exaction or condition and some problem or need generated by the particular development in question. Thus, the government must show that the proposed development created the need for the condition—such that the government has a legitimate interest in demanding mitigation of the impacts of a proposed development. Fassett v. City of Brookfield,
2022 WI App 22,
402 Wis. 2d 265,
975 N.W.2d 300,
21-0269.
A New York law that a landlord must permit a cable television company to install cable facilities upon property was a compensable taking. Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982).
State land use regulation preventing beachfront development that rendered an owner's land valueless constituted a taking. When a regulation foreclosing all productive economic use of land goes beyond what “relevant background principals," such as nuisance law, would dictate, compensation must be paid. Lucas v. S. Carolina Coastal Council,
505 U.S. 1003,
120 L. Ed. 2d 798 (1992).
Seizure of private property in a forfeiture action under a warrant issued at an ex parte hearing to establish probable cause that a crime subjecting the property to forfeiture was committed, while possibly satisfying the prohibition against unreasonable searches and seizures, was a taking of property without due process. United States v. Good Real Estate,
510 U.S. 43,
126 L. Ed. 2d 490 (1993).
A municipality requiring the dedication of private property for some future public use as a condition of obtaining a building permit must meet a “rough proportionality" test showing it made some individualized determination that the dedication is related in nature and extent to the proposed development. Dolan v. City of Tigard,
512 U.S. 374,
129 L. Ed. 2d 304 (1994).
A taking claim is not barred by the mere fact that title to the property was acquired after the effective date of a state-imposed land use restriction. Palazzolo v. Rhode Island,
533 U.S. 606,
150 L. Ed. 2d 592 (2001).
A temporary moratorium on development imposed during the development of a comprehensive plan did not constitute a
per se taking. Compensation is required when a regulation denies an owner all economically beneficial use of land. An interest in property consists of the metes and bounds of the property and the term of years that describes the owner's interest. Both dimensions must be considered in determining whether a taking occurred. A fee simple interest cannot be rendered valueless by a temporary prohibition on use. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
535 U.S. 302,
152 L. Ed. 2d 517 (2002).
Regulatory takings jurisprudence aims to identify regulatory actions that are functionally equivalent to classic takings in which government directly appropriates private property or ousts the owner from his or her domain. Each applicable test focuses upon the severity of the burden that government imposes upon private property rights. In this case lower courts struck down a rent control statute applicable to company owned gas stations as an unconstitutional regulatory taking based solely upon a finding that it did not substantially advance the state's asserted interest in controlling retail gasoline prices. The “substantially advances" test prescribes an inquiry in the nature of a due process, not a takings, test that has no proper place in takings jurisprudence. Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528,
161 L. Ed. 2d 876,
125 S. Ct. 2074 (2005).
The State may transfer property from one private party to another if there is a public purpose for the taking. Without exception, cases have defined the concept of public purpose broadly, reflecting a longstanding policy of deference to legislative judgments in this field. It would be incongruous to hold that a city's interest in the economic benefits to be derived from the development of an area has less of a public character than any other public interests. Clearly, there is no basis for exempting economic development from the traditionally broad understanding of public purpose. Kelo v. City of New London,
545 U.S. 469,
125 S. Ct. 2655,
162 L. Ed. 2d 439 (2005).
Government induced flooding, temporary in duration, gains no automatic exemption from takings clause inspection. When regulation or temporary physical invasion by government interferes with private property time is a factor in determining the existence of a compensable taking. Arkansas Game and Fish Commission v. United States,
568 U.S. 23,
133 S. Ct. 511,
184 L. Ed. 2d 417 (2012).
Precedents enable permitting authorities to insist that applicants bear the full costs of their development proposals while still forbidding the government from engaging in “out-and-out . . . extortion that would thwart the 5th amendment right to just compensation." The government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. Extortionate demands for property in the land use permitting context run afoul of the takings clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. Koontz v. St. Johns River Water Management District,
570 U.S. 595,
133 S. Ct. 2586,
186 L. Ed. 2d 697 (2013).
The question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must define the parcel in a manner that reflects reasonable expectations about the property, considering a number of factors, including the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. This endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his or her holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Murr v. Wisconsin,
582 U.S. 383,
137 S. Ct. 1933,
198 L. Ed. 2d 497 (2017).
Under a California regulation that grants labor organizations a “right to take access" to an agricultural employer's property in order to solicit support for unionization, agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The access regulation appropriates a right to invade the growers' property and therefore constitutes a per se physical taking under the 5th and 14th amendments to the U.S. Constitution. Appropriations of a right to invade are per se physical takings, not use restrictions subject to the flexible test developed in
Penn Central Transportation Co.,
438 U.S. 104 (1978). Cedar Point Nursery v. Hassid, 594 U.S. ___,
141 S. Ct. 2063,
210 L. Ed. 2d 369 (2021).
When there is money remaining after a property is seized and sold by a county to satisfy past due property taxes, along with the costs of collecting them, that remaining value is “property" under the takings clause that is protected from uncompensated appropriation by the state. In this case, a Minnesota law that purported to extinguish that property interest by providing that an owner forfeits the owner's interest in property by falling behind on property taxes effected a classic taking in which the government directly appropriated private property for its own use. Tyler v. Hennepin County, 598 U.S. ___,
143 S. Ct. 1369,
215 L. Ed. 2d 564 (2023).
The general rule is that a government does not commit a taking when it exercises its contractual rights rather than its governmental prerogative. City of La Crosse v. Fairway Outdoor Funding, LLC,
575 F. Supp. 3d 1087 (2021).
The Original Understanding of “Property” in the Constitution. Larkin. 100 MLR 1 (2016).
Murr and Wisconsin: The Badger State's Take on Regulatory Takings. Wenthold. 102 MLR 261 (2018).
Compensation for lost rents. 1971 WLR 657.
Blurring the Denominator: Murr v. Wisconsin and the Increasing Complexity of Takings Analysis. Gresik. 2018 WLR 1231.
I,14
Feudal tenures; leases; alienation. Section 14
. All lands within the state are declared to be allodial, and feudal tenures are prohibited. Leases and grants of agricultural land for a longer term than fifteen years in which rent or service of any kind shall be reserved, and all fines and like restraints upon alienation reserved in any grant of land, hereafter made, are declared to be void.
I,15
Equal property rights for aliens and citizens. Section 15
. No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property.
I,16
Imprisonment for debt.
Section 16
. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.
Section 943.20 (1) (e), which criminalizes the failure to return rented personal property, does not unconstitutionally imprison one for debt. State v. Roth,
115 Wis. 2d 163,
339 N.W.2d 807 (Ct. App. 1983).
