December 2012

US Supreme Court Hears Arguments On Temporary Takings

December 11, 2012, by Meyers Nave

On October 3, 2012, the Supreme Court of the United States heard oral arguments in a case whose outcome may change federal takings and the just compensation owed property owners subjected to a temporary physical taking by the government.  In Arkansas Fish & Game Commission v. United States (No. 11-597), the court is considering whether the temporary but reoccurring downstream flooding events, caused from periodic dam releases by the Army Corps of Engineers over a period of six years, constitutes a “taking” of property warranting payment of just compensation.  

Supreme Court Decides Temporary Flooding Takings Case – No Automatic Exemption

December 12, 2012, by Meyers Nave

The Supreme Court of the United States reversed and remanded Arkansas Game and Fish Commission v. United States (568 U.S. ____ (2012)) finding that government induced flooding temporary in duration gains no automatic exemption from the Takings Clause.  The Court explained that takings claims turn on situation-specific factual inquiries.  Takings temporary in duration can be compensable. However, because the Federal Circuit Court rested its decision entirely on the temporary duration of the flooding, it did not address the other challenges to the trial court’s fact findings including causation, foreseeability, substantiality and the amount of damages.  These issues remain open for consideration on remand.  

Whistleblowers Beware: Violations of a Charter City's Municipal Law Are Not Violations of State Law For Purposes of Labor Code Section 1102.5(c)

December 17, 2012, by Arthur A. Hartinger, Matthew C. Lewis

The California Labor Code protects whistleblowers by prohibiting employers from retaliating against an employee "for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation."  Cal. Labor Code § 1102.5(c).

In Edgerly v. City of Oakland (Alameda Super. Ct. No. RG09461220), the former City Administrator of Oakland, Deborah Edgerly, asserted she was wrongfully terminated as a whistleblower for her refusal to violate the City's Charter, Municipal Code, and civil service rules and resolutions.  Edgerly allegedly questioned and sometimes denied numerous requests that came to her from the Mayor's office, including requests for reimbursement, and to approve contracts in excess of the Mayor's authority. She alleged that she was terminated by the Mayor as a result.

CalPERS Seeks to Prevent City of San Bernardino From Using Bankruptcy to Avoid Meeting Pension Payment Obligations

December 21, 2012, by Edward L. Kreisberg, Matthew C. Lewis

The California Public Employees’ Retirement System (CalPERS) is seeking to sue the bankrupt City of San Bernardino to require the City to meet its pension obligations.   The City entered Chapter 9 bankruptcy proceedings in August 2012, in part due to an unfunded pension liability of upwards of $140 million. 

In In re San Bernardino, Case No. 12-28006 (U.S. Bankruptcy Court, Cent. Dist. Cal.), CalPERS argued that it should be placed ahead of other creditors because the City’s debts to CalPERS are statutory liens, required to be paid by state law.  CalPERS asserts that since the City declared bankruptcy, the City has failed to make almost $7 million in required payment to CalPERS.  Accordingly, CalPERS asked the court for permission to sue the City to require the City to make all missed payments and to make the necessary future payments going forward; or alternatively for the City to be kicked out of bankruptcy court altogether.