Question II.

 

  1. Boxer wants to invalidate the ordinance and keep operating her school as she has been.  Accordingly, she is better off arguing that the ordinance is ultra vires or that it violates substantive due process under the Fourteenth Amendment rather than arguing that it is a taking.  If the ordinance constitutes a regulatory taking she will be entitled to compensation, but she will have to stop operating her school in the manner that has produced success.

 

Her ultra vires argument would be that the eminent-domain condemnation is outside the powers given to the Baltimore City Council by the Maryland State Legislature.  We have no grounds for making such an argument on the facts as given, but we would surely check the text of the state statute authorizing zoning decisions by municipal legislative bodies. 

 

A successful substantive due process argument (the facts do not suggest any procedural due process problems, since presumably the ordinance was adopted in a city council meeting which Boxer was free to attend and express her views) must begin by showing that the State of Maryland, acting through Baltimore City, has deprived Boxer of property or liberty or both.  In order to show a deprivation of property, she must establish that all of the sticks that she is using in her RAP school belong to her bundle.  To do that, she must negate any possibility that her educational (and other) activities constitute a nuisance at common law.  More on nuisance in the answer to sub question B, but it is likely that operating a school to educate law students about the Rule Against Perpetuities would not have constituted a nuisance at common law, even if they were allowed to drink beer, eat pizza, wear hats, and play with computers during class.  The ordinance, assuming it is enforced, will deprive Boxer of some of the sticks in her original bundle—permitting her students to do as they please in class.  So she can establish a depravation of property.  Moreover, since the ordinance tells her what she cannot teach, she also has been deprived of a liberty interest stemming from her First Amendment freedom of expression. 

 

Next, she must show that this deprivation was not accompanied by substantive due process.  This part of the analysis requires her to negate any legitimate state interest providing a foundation for the ordinance.  The Baltimore City Council has identified a state interest—protecting and enhancing the quality of the legal profession in Maryland—which surely is a legitimate state interest, even without the usual judicial deference to municipal legislative determinations of state interest. 

 

But the means used by a state must have a nexus to the identified state interest, and here is where Boxer’s argument is strong.  She would claim that prohibiting the teaching of the Rule Against Perpetuities along with beer, pizza, and the rest has nothing to do with undermining or supporting the soundness of the future legal profession in Maryland.  Even if a reviewing court is willing to defer to the city council’s determination that the nexus exists, Boxer has strong arguments that the ordinance is under inclusive.  It does not prohibit regular law schools from teaching the Rule Against Perpetuities and allowing students to drink beer, eat pizza, wear hats and play with computers while they are studying it.  It also does not prohibit bars or other establishments from permitting students to learn from each other about the Rule Against Perpetuities while they drink beer, eat pizza, wear hats, and play with computers.  So even if those activities do undermine the legal profession they can go on widely under the ordinance while Boxer is singled out and forced to curtail these activities. 

 

In addition, she can negate the constitutionally required nexus by arguing that the real reason for the ordinance was not to enhance the stated purpose, but rather to respond to the anticompetitive request by the Dean of MULS.  This ulterior motive negates any nexus. 

 

Boxer also might want to set up a procedural due process argument by requesting a variance from the city council or whatever other body is authorized to grant zoning variances.  She would expect that her variance request would be denied and hope that it would be denied in some fashion that deprived her of an unbiased decisionmaker, failed to articulate the reasons for the denial, or thwarted her power to present arguments and witnesses. 

 

If for some reason she is pessimistic about these arguments and wants to make a backup argument that the ordinance constitutes a regulatory taking, which would at least entitle her to compensation, and might persuade the City of Baltimore to repeal or amend the ordinance, she would have a hard time claiming that the ordinance effected a physical invasion of her property.  It did not.  She also would have a hard time arguing that the ordinance deprived her of all economically beneficial uses of her property.  She could teach other legal subjects without beer, pizza, hats and computers; or she could open a restaurant, for example.  So her takings argument would have to rely on the Penn Central balancing test, and here should would have a pretty good argument because she is being singled out to pay the price while others engaged in similar activities can go on unmolested.  And she also would repeat her substantive due process arguments to show that there is no connection between the burden imposed on her in any legitimate state interest.  So the balance would come out in her favor. 

 

  1. In order to win a common law nuisance action, we would either have to show that the elements of private nuisance have been satisfied, or that the elements of public nuisance have been satisfied and that we have standing to sue for public nuisance because we have suffered some special kind of harm. 

 

We would argue that because we are so close to Boxer’s renegade activity we do suffer unusual kinds of harm and therefore can sue for public nuisance.  But simply suffering an unusually great magnitude of harm that is suffered in smaller amounts by the general public is usually not enough to confer public-nuisance standing.  Moreover, it is far from clear that Boxer’s activities constitute a public nuisance unless we can offer especially evocative evidence of students staggering out of Boxer’s school and driving while intoxicated or otherwise creating a hazard to the public.

 

Our better argument is private nuisance.  We have to show that Boxer intentionally or negligently conducted activities that created an unreasonable risk of injury to other property owners.  Clearly her pedagogical approach was intentional, and substantially certain to result in the impact on us as a property owner. 

 

Having established that, we must show that the injury to us outweighs the utility of her conduct.  Here we are likely to run into problems.  First of all, the underlying concept of private nuisance has to do with some sort of tangible interference with the land of the plaintiff, and it is hard to see how Boxer’s activities cause any sort of tangible entry onto our land.  I suppose we would argue that our students go to Boxer’s school and then come back to our school in an impaired condition or that they conduct riotous activities on the sidewalk in front of our building, impeding access. 

 

If we can sell that idea of injury we should have a reasonably easy time satisfying the other elements of harm to us.  Our activity is entirely suitable for the location, and it would be an enormous burden for us to move away from the nuisance or to somehow construct barriers to the effluent from Boxer’s school.  

 

So everything will turn on Boxer’s certain argument that the utility of her activity is great.  We will want to argue that there is nothing particularly useful about instruction limited to the Rule Against Perpetuities entirely outside the context of any other aspect of property law, and that there certainly is no utility in encouraging law students to drink and otherwise misbehave while they are in a law class. 

 

I am not particularly optimistic that we will win.  Boiled down to its essence, we are trying to use common law nuisance to prevent competition with us.  Burger King surely could not win a nuisance action against a McDonald’s that opens up nearby even if the result is a sharp decline in Burger King’s business.  If Boxer has a good lawyer she surely will point that out.  On the other hand, if the ordinance identified in sub question A is on the books and has not been invalidated, we have the additional argument in our favor that Boxer’s activities are illegal and therefore cannot be deemed as having any utility whatsoever.  Then, even a small amount of harm to us of the sort that nuisance traditionally recognized would allow us to prevail. 

 

  1. While states are privileged by the Fifth Amendment as incorporated into the Fourteenth Amendment to take private property for a public use when they pay just compensation, they violate substantive due process (or equal protection) when they take property for a private use or do not pay just compensation.  The use of eminent domain is clearly a taking because it is a physical invasion and a 100 percent deprivation of use, and because Boxer presumably has been offered just compensation, she must sustain the proposition that her property is being taken for the private use of MULS and not for a public use.  Under the Supreme Court’s decisions in City of Hartford and Kelo it may satisfy the public-use requirement when a state exercises eminent domain in favor of a private entity, but only when the taking is supported by some sort of public benefit.  Here, we will argue that there is no public benefit and distinguish the facts of our case from the facts of Kelo and City of Hartford.  Reinforcing our argument that there is no public benefit is the fact that the law school, once it occupies our property will be allowed to teach the Rule Against Perpetuities and serve alcohol to students in the “study bar.”  So if the public purpose is the one identified by the Baltimore City Council, even if there is a nexus between the prohibited activities and enhancement of the public purpose, the activities will continue, albeit by MULS instead of Boxer.

 

The only conceivable argument I can see for MULS is that our students drink, eat pizza, wear hats, and play with computers during the day time while they are studying the Rule Against Perpetuities while the MULS students would go to the study bar only in the evenings after they are done studying.  But that places a lot of weight on student motivation and self control and we do not require that the students engage in those activities while they are in class.  We have a very good chance of prevailing on this argument.

 

  1. Boxer’s lease entitles her to exclusive possession of the leased premises.  When the dean and the thuggish students conducted their raid, they committed a trespass and are liable for it.  Because they were acting as agents of the landlord—MULS’s parent university—the university also is liable for trespass.

 

Moreover, the landlord has an implied covenant of quiet enjoyment which prohibits any activity by the landlord or those under the landlord’s control that would interfere with the tenant’s possession.  We would argue that this covenant has been breached.  The problem with this argument is that one raid hardly ousts us of possession.  Moreover, even if we could sustain the proposition that the raid plus the likelihood of other raids make the continued operation of our school untenable, we do not want to vacate the premises and treat the leasehold as ended; we want to continue operations.  So this may not be our best argument, both because we are unlikely to win it, and because we do not want to win it. 

 

We certainly should be able to get an injunction against further trespasses and damages for the one that has already occurred.

 

In addition, Maryland almost certainly has a statute more or less like California’s which prevents a landlord, even if a leasehold has been terminated, whether naturally or because the breach of some material covenant by the tenant, from engaging in self help in the form of forcible entry.  That is exactly what MULS did here, and so any argument that our violation of the covenant in the lease terminated the leasehold will not undermine our claim for damages for forcible entry. 

 

We also have good arguments for trespass to chattel—perhaps conversion depending on whether the MULS thugs drink the beer and eat the pizza—and for forcible detainer of our chattels—the beer, the pizza, and hats. 

 

This looks like a slam dunk for our side.

 

  1. The conveyance to Boxer is a fee simple subject to an executory limitation.  The executory limitation (“trigger”) is ceasing to operate a bona fide law school.  The executory interest is owned by a presently unascertainable student graduating at the bottom of a future class.  (It is also is possible to construe the conveyance as referring to an unnamed individual who graduated in the most recent graduating class before the conveyance, but that makes no difference in the legal analysis that follows.)

 

Executory interests are subject to the Rule Against Perpetuities.  The only possible measuring lives are the alumna, Boxer, and the student owning the executory interest under the second interpretation of the conveyance.  The trigger is not limited by time so the alumna could die (but that makes no difference because the alumna retained nothing), then Boxer could die, in which case her heirs would have the fee simple subject to an executory limitation.  All of the students who have already graduated from MULS could die, and then a long time from now-- say a hundred years from now--Boxer’s heirs or assigns could stop operating a bona fide law school, in which case the conveyance as written would cause an as-yet unborn law student graduating at the bottom of her class to get possession of the premises.  This clearly is remote vesting and therefore the executory interest is void.

 

Then the question is whether the trigger is also void.  That depends upon a construction of the remaining provisions of the conveyance in a way best to effectuate the intent of the grantor.  Boxer, of course, will argue that the trigger also should be invalidated so that she or her heirs get a fee simple absolute, but it is far more likely that the trigger would be retained in which case the reformed conveyance would create a fee simple determinable in Boxer and her heirs and a possibility of reverter in the alumna or her heirs.

 

Because the executory limitation is invalid, the bottom of the class law student(s) have no arguments to get possession.

 

Only the alum or her heirs have a plausible argument.  They would argue that the trigger has been pulled because what Boxer is doing is not a bona fide law school.  She does not offer degrees.  She does not offer instruction in any subject except the Rule Against Perpetuities.  And she allows activities in class that are incompatible with bona fide legal education.  Accordingly, they would argue, they are entitled to immediate possession.