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Koepnick v. Arizona State Land Department (CA1 2/26/09)

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You still can’t fight City Hall – especially when its County and State Hall.

Koepnick leased state trust land between Apache Junction and Florence for agricultural use. Pinal County wanted a right-of-way over the property for a new road. But to get one it would have had to pay Koepnick over $750,000 for improvements he had built that would be disrupted by it. Then the Commissioner of the State Land Department – our friend Mr. Winkleman from a few posts ago – decided to reclassify the land as “commercial” rather than “agricultural.” This had the effect of cancelling the lease and allowing the County to do what the documents arguably showed it wanted to do: get the right-of-way without paying Koepnick anything. Koepnick cried foul but the Arizona Land Board of Appeals and the Superior Court affirmed the decision, hence this appeal.

Koepnick’s principal argument, apparently, was that the Commissioner couldn’t declare the land “commercial” because that was the wrong category. The County envisioned that it would largely be given over to residential use. The statutes have three categories: “commercial,” “agricultural,” and “homesite.” Koepnick argued that “homesite” was therefore the proper category.

The court reasoned that before you can live in a house someone first has to build it, building houses is a commercial enterprise, therefore land to be used for homesites is “commercial,” not “homesite.” That is the Land Department’s interpretation of the statutes; the court adopted it, which it may do if the construction  is “reasonable and consistent with statutory language.” How the Land Department’s view is more reasonable and consistent than Koepnick’s is not crystal clear.

Koepnick argued that the government’s activity was the result of a deal between the County and the State to cheat him. But various government employees who had written notes to that effect testified that they were wrong, or misunderstood, or that they don’t think that they meant that though they can’t really recall. Those of you who do government litigation have heard that sort of thing before. If you don’t, you may wonder how it could ever pass the smell test; the answer is that its easier when there’s no jury to do the sniffing.

Koepnick also argued that the Commissioner violated his constitutional and statutory obligations to ensure that Koepnick be compensated for the improvements; under the circumstances of this reclassification, there is apparently no particular prospect of that happening. The court decided that there was a “conflict” between the Commissioner’s duties to the trust and to the lessee that the Commissioner had in this case “resolved” in a manner within his discretion. How the Commissioner’s voluntary act creates a conflict in his duties that allows him to ignore some of them is a bit murky.

This decision seems to have been pretty much a foregone conclusion after both the Board of Appeals and the Superior Court upheld the Commissioner. The court on appeal had to accept the facts established below. Courts routinely adopt the relevant agency’s interpretations of the statutes it works with. Does that mean that Max Koepnick wasn’t shafted by crafty bureaucrats? Well, appellate decisions don’t answer every question.

Green v. Lisa Frank, Inc. (CA2 1/20/09)

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Appellate judges love to do this once in a while: write, a la Stanley Feldman,  a long opinion explaining why black is really white even though the statutes and the cases and the common law all thought it was black.

The case was a messy corporate/family dispute. In the course of it Green, a corporate officer, violated a court order prohibiting him from making off with corporate assets. Finding him in contempt, the trial court struck his pleadings and awarded the other side some injunctive relief. A judgment was entered, with Rule 54(b) language; damages were to be determined later.

The law has always been that civil contempt orders are not appeable; the remedy is by special action. The civil contempt statute has no provision for appeal, the common law does not allow appeal, and our Supreme Court has said that there is no appeal. It takes Joe Howard’s dissent only a couple of pages to point out law that the Court of Appeals has no power to change. The moral should be that you can’t make an order appealable just by dressing it up like a judgment.

But the majority decides that the order was an “interlocutory judgment” that could be appealed under 12-2101(G). What about the statute, cases, etc.? The long and short of the fifteen pages (in fairness to Judge Pelander, the rest of his 37-page opinion discusses the merits; in more fairness to him, he doesn’t try to hide the fact that the law is against him) is that they don’t really apply to this situation because this was, you see, a “judgment.” Why was it a judgment? It did award part of the relief sought in the action but this is hardly the first time contempt ever did that. In reading the majority opinion one can’t escape the feeling that the good judge  thought it was a judgment mostly because it says “Judgment.”

Reasonable people could argue that an order of this sort is enough like a judgment that it ought to be appealable. But the law is — or was — that it can’t be until the Legislature lets it be. That’s a step that shouldn’t be skippable.

What about the merits? Corporate-law types will want to read the case but the substance is pretty mushy: the trial court was right on some things, wrong on others, based on the sort of equitable “factors” that this court makes up and  the next will follow or ignore as it pleases.

Mayer Unified School District v. Winkleman (2/13/09)

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This one won’t be of much interest to most; a tip of the hat to the court, though, for a well-written opinion. It helps that the legal analysis consists of one sentence.

Winkleman is the State Land Commissioner, in charge of school trust lands. From 1909 to 1967, the state granted easements over trust land without compensation. In 1967 the United States Supreme Court held, in Lassen v. Arizona, 385 U.S. 458, that the state had to charge for such easements; since then it has. In this case a couple of school districts sued Winkleman as Land Commissioner, the State Land Department, the state, and pre-1967 easement holders for the money the state should have charged between 1909 and 1967.

The filed the case in 2004. The issue was, therefore, the statute of limitations.

The court recited the historical facts and pointed out that the cause of act could not have accrued until at least 1967, when Lassen made people aware that the state’s action was improper.  Plaintiffs argued that  not collecting past money was a “continuing violation” by the state, which would mean that their 2004 filing was still timely even though the applicable statute of limitations was one year.

The court analyzed the Plaintiffs’ argument by citing an Indian land case from the Court of Claims that disagreed with a similar argument and adding this:

We agree that the violation here also occurred once, when the  . . . easements were granted, even though the cause of action did not accrue until 1967.

The cause of action thus accrued in 1967; the plaintiffs Complaint was about 36 years late.

This sort of clear, if somewhat conclusory, approach is old-fashioned; it was common in Arizona Supreme Court cases sixty and more years ago. We hope its coming back into vogue — it is really not necessary to turn every opinion into a legal treatise or a demonstration of  how much the judge knows. But we’re not holding our breaths.