Supreme Court Grants Cert on Exactions

Hi Everyone--

I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.

Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.

So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.

An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.

However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.

I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.

To Testify or Not to Testify?

That is the question! Of course no one ever has to testify in a court proceeding where they're the defendant, but there are different reasons and strategies as to why someone may, or may not choose to testify on their own behalf.

First, let's start with the obvious: the jury wants to hear your story. You have been accused of something--what do you have to say about that? Are you believable? Do you seem as if you are lying, or do you seem as if you're a straight-up person with nothing to hide?

The problem of course is that lawyers are tricky. We're trained in how to argue. Many people think they're good speakers, and maybe under normal circumstances they are, but here you have an adversary that is trying to make you look bad, trip you up, find inconsistencies in your words. You're nervous, and maybe you end up looking bad. You could easily hurt your case. This is all the more true if you are not a practiced public speaker, or if you don't have a good educational background.

You also have the issue of whether or not the state has presented a strong case or not. If the state hasn't, you can easily decide that there is no need for you to take the stand. If the prosecution has failed to put on a case worthy of a conviction, why give them a second chance at making you look bad? Anytime the defendant takes the stand there are new issues surrounding what might be admissible, what witnesses could be called to rebut the defendant's testimony, etc.

From a trial strategy perspective, this could be a very difficult decision to make--yet it could be crucial to the outcome. In the trial I am involved with now, the lead defense attorney made the decision for the Defendant to NOT take the stand. Was this the right decision? If the jury comes back with an acquittal, then of course there was no harm in him not saying anything. However, if he is convicted, he will always have to live with the knowledge that he could have said something on his behalf, but didn't.

My own position is that if it was me, I would take the stand. Of course, I am a lawyer, and I am comfortable with speaking in my own defense--or for someone else. I totally understand why other people may not have the same view. At the end of the day, each case has its own unique facts, its own defendant, and there is no easy "right or wrong" answer as to whether or not someone should testify.