Appellate courts love constitutional cases. But they aren’t always very good at them.

A Flagstaff ordinance requires owners of property adjoining sidewalks to maintain them and imposes a lien for the costs of repair. Bonito challenged its constitutionality.

On summary judgment, the trial court upheld it under the due process clause. The Court of Appeals affirms that. Making adjoining landowners keep up sidewalks is a valid exercise of the police power under a couple of cases from other states.

But Bonito also argued the takings clause. This opinion says, citing a U.S. Supreme Court case named Lingle (all quotes in this paragraph are from U.S. Supreme Court cases; don’t blame CA1 for them) that even if an ordinance is valid under the due process  it can still be an invalid taking. ““[P]roperty may be regulated to a certain extent, [but] if a regulation goes too far it will be recognized as a taking.” How far is “too far?” Aside from per se takings (permanently invading or completely depriving an owner of use), which this is not, “the Court has ‘generally eschewed’ any ‘set formula for determining how far is too far,’” preferring “ad hoc, factual inquiries.” Don’t you just love that kind of so-called “law?” There is only one type of case in which “we know it when we see it” is laughed at; courts otherwise think it quite sophisticated. So how do you figure it out? Factor analysis, the courts’ most trusted refuge from thought. You examine “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations” (you’re no doubt marveling at what a clear and objective standard that is) and ““the character of the governmental action – for instance whether it amounts to a physical invasion or instead merely affects property interest through some public program adjusting the benefits and burdens of economic life to promote the common good” (ditto). But, as always, the stated factors are merely the ones the court wants to talk about to justify this decision since you must also look “into all of the relevant circumstances in a particular case.”

This is (quoting now from this opinion) an “essentially ad hoc, factual . . .  inquiry” which “an appellate court is ill-equipped to apply . . .  when [it has] not been addressed and developed by the parties in the trial court.” The parties didn’t do so because they relied on pre-Lingle cases. So the Court of Appeals remands. For what? “[F]or the court to determine whether the City’s lawful exercise of its police powers nonetheless constituted an unconstitutional taking.” How? Ask for more summary-judgment motions on a different issue? Hold an evidentiary hearing? Who knows. (But keep in mind that being an “essentially” factual issue means that it isn’t really a factual issue and that the appellate court can change the result on the same facts – using our old friends, the “factors” – if it wants to.)

And what about the burden of proof? If Lingle controls, and if it says you have to show certain things, and if somebody didn’t, why don’t they just lose the issue? Since when does relying on superseded precedent earn you a second chance?

The Court also concludes, using all the analysis necessary (in other words, not much) that the lien is not a tax or a special law.

A somewhat longer analysis is necessary to explain why Flagstaff has the power to enact such an ordinance. Under the statutes a city can require a landowner to build a pubic sidewalk and not to obstruct it, and  can abate nuisances. These statues are found in Title 9. So, Title 9 must also mean that  the city can require landowners to abate at public expense nuisances on those sidewalks. Even though no statute in Title 9 actually says that. Got it?

(link to opinion)