The issue here is when government action can be enjoined. The opinion discusses precedent at length and comes to conclusions about the effects of statutes that the Supreme Court will presumably tell us some day are either right or wrong. And then it suggests that torts are lawful.

Plaintiffs allege that the defendant City and State handled the runoff of a severe storm by deliberately overfilling a drainage basin, flooding their properties. They sought an injunction, arguing that Defendants were using their property as an “ad hoc” drainage basin without compensation. Defendants moved to dismiss under 12-1802(4) (can’t enjoin enforcement of a statute) and 1802(6) (can’t enjoin lawful exercise of an office). The trial court dismissed on 1802(6). Plaintiffs appealed.

The Court of Appeals reverses. On appeal the Defendants argued both parts of the statute and the opinion addresses both.

1802(4) doesn’t apply “if the requesting party is seeking to enjoin conduct that goes beyond the officer’s statutory power.” Defendants had cited various statutes allowing them to build and operate storm-water infrastructure. But Plaintiffs, says the court, were not trying to enjoin any of those; “rather, Plaintiffs sought to enjoin Defendants from allegedly exceeding their power by negligently managing the System, knowingly breaching [its] retention capacity, and using their properties as “ad hoc” overflow relief.”

The parties agreed that 1802(6) doesn’t bar injunctions preventing the unlawful exercise of office. But they disagreed about what is “unlawful.” Defendants appear to have argued  basically that only acts done without legal authority are unlawful. Plaintiffs argued that “unlawful” means not simply acting beyond authority – which the opinion assumes Plaintiffs didn’t plead — but also means exercising authority in an unreasonable or arbitrary manner. The court says it agrees with Plaintiffs.

Then it adds in a footnote that Plaintiffs did plead trespass. The point of the footnote is to address Defendants’ argument that the allegation was defective because the Complaint didn’t claim that they intended to flood Plaintiffs. The court points out that intent to do an act known to cause a substantially certain result intends that result. But it doesn’t explain why it bothers with this argument nor what the effect of the trespass allegation is. It already said that Defendants’ acts could be unlawful not because they were alleged to be unauthorized but because they were alleged to be unreasonable or arbitrary. So how does trespass fit in? Isn’t a tort unlawful? Is there a statute that authorized it? If not, how is an allegation of trespass not in itself an allegation of the unlawful exercise of office? If so, what part of what statute gives the government authority to commit a “reasonable”  tort?

(Opinion: Boruch v. State)