Takings When a governmental enactment results in the destruction of a substantial part of a lawful property, it effects a taking of private property

without just and adequate compensation and is void under the constitution. Parking Association of Georgia, Inc. v. City of Atlanta 264 Ga. 764 (Ga. 1994) Who is suing? Who is being sued? For what? What issue on appeal? The City of Atlanta enacted a zoning ordinance aimed specifically at surface parking lots with 30 or more spaces in several downtown and midtown zoning districts. The ordinance requires minimum barrier curbs and landscaping areas equal to at least ten percent of the paved area within a lot, ground cover (shrubs, ivy, pine bark or similar landscape materials) and at least one tree for every eight parking spaces. Its stated purpose is to improve the beauty and aesthetic appeal of the City, promote public safety, and ameliorate air quality and water run-off problems. All costs of compliance with the ordinance are to be borne by the landowners; however, no landowner is required to reduce the number of parking spaces by more than three percent. Plaintiffs, an association of companies managing or owning surface parking lots in the affected areas, as well as individual owners of affected parking lots, brought suit against the City seeking declaratory and injunctive relief on the grounds that the ordinance is unconstitutional and void. The superior court ruled in favor of the City and denied injunctive relief. Plaintiffs appealed. The zoning ordinance does not authorize a permanent physical taking or occupation of plaintiffs' property by another; it merely regulates the use of plaintiffs property. Thus, the ordinance does not constitute a per se taking entitling plaintiffs to compensation. It follows that we must assess and weigh the purposes and economic effects of the ordinance to determine if it exceeds the police power in regulating land use for zoning and runs afoul of the constitutional prohibition against condemnation of land for a public purpose without just compensation. This state uses a balancing test to determine whether the police power has been properly exercised. This test weighs the benefit to the public against the detriment to the individual. The factors to be considered are set forth in Guhl v. Holcomb Bridge Road Corp. (1977). A zoning ordinance is presumptively valid, and this presumption can be rebutted only by clear and convincing evidence. The burden is on the plaintiff to come forward with clear and convincing evidence that the zoning presents a significant detriment to the landowner and is insubstantially related to the public health, safety, morality and welfare.

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Plaintiffs failed to present clear and convincing evidence that the ordinance presents a significant detriment. Plaintiffs may experience a loss of profits due to a reduction in the number of available parking spaces and the costs of compliance; however, a zoning ordinance does not exceed the police power simply because it restricts the use of property, diminishes the value of property, or imposes costs in connection with the property. A loss of at most three percent of plaintiffs' parking spaces does not constitute a significant deprivation. Plaintiffs also failed to present clear and convincing evidence that the ordinance is unsubstantially related to the public health, safety, morality and welfare. The ordinance was designed to regulate aesthetics, crime, water run-off, temperature and other environmental concerns. The means adopted have a real and substantial relation to the goals to be attained. An ordinance is not unreasonable even if designed only to improve aesthetics. Legislation based on aesthetics is within the public welfare aspect of the police power. The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. If the plaintiff does not meet the initial burden of showing both significant detriment and insubstantial relationship to the public health, safety, morality and welfare, there is no need for the governing authority to present any evidence justifying the zoning. Plaintiffs failed to meet either prong of this state's balancing test. The ordinance is constitutional and valid. Plaintiffs assert the ordinance constitutes an unconstitutional denial of equal protection because it only applies to paved parking lots with 30 or more spaces in downtown and midtown zoning districts. We disagree. A zoning ordinance does not offend the equal protection clauses of the State and Federal Constitutions if it has some fair and substantial relation to the object of the legislation and furnishes a legitimate ground of differentiation. The larger lots have a far greater impact upon aesthetics, water run-off, temperature, pedestrian traffic and other health, safety and environmental concerns; the affected districts have the greatest concentration of parking lots. Thus, the ordinance rationally differentiates between larger and smaller parking lots and between affected and unaffected zoning districts. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Q1 Q2 Q3. Q4 Q5 Does this concern notice or an opportunity to be heard? What is a taking? Did the action take the plaintiffs property? What was the equal protection argument? The U.S. Supreme Court declined to hear a challenge to this ordinance, even though plaintiffs argued compliance would cost $4.37 Million. The companies also calculated they would lose $1.6 Million worth of sign advertising.

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Norman v. United States 429 F.3d 1081 Who is suing? Who is being sued? For what? What issue on appeal? The Normans are real estate developers who planned to develop commercial and industrial office space in Reno, Nevada, on a 2425-acre property previously used for ranching and agricultural activities (Ranch). In 1986, a company called Southmark Corporation purchased the Ranch, intending to develop it for commercial and residential uses. Southmark prepared a "master plan" for the development of the property and submitted it to the Reno City Council for approval. In 1987, the city council conditionally approved the master plan, identifying 41 conditions that the developer was required to satisfy before final approval would issue. One of those conditions required the developer to submit to the council plans approved by the United States Army Corps of Engineers delineating wetlands or any other lands the development of which were subject to the issuance of federal permits. In 1988, the Army Corps of Engineers sent a team of wetlands experts to conduct field work necessary to prepare a final wetlands delineation. In the months before that team arrived, the Normans became interested in purchasing a 470-acre commercial portion of the Ranch for development as an industrial park, per the Master Plan prepared by Southmark. The Normans were unwilling, however, to purchase the 470-acre commercial portion until the Corps completed a final wetlands delineation of the property. On September 12, 1988, the Corps issued a delineation (the 1988 Delineation) prepared pursuant to the 1987 version of the Corps' Wetlands Delineation Manual. The 1988 Delineation identified 28 acres of jurisdictional wetlands on the Ranch property, of which 17 acres were located on the 470-acre parcel desired by the Normans. Following completion of the delineation, the Normans acquired the property. At the same time, Robert Helms purchased the 1800-acre "residential" portion of the Ranch. The Normans and Helms then entered into an agreement whereby they agreed to develop their properties consistently with Southmark's Master Plan. After the 1988 Delineation became public, a "storm of controversy" erupted as a variety of concerned entities criticized the delineation. The Corps then revoked the 1988 Delineation and conducted a new delineation under the 1989 version of the Corps' Wetlands Delineation Manual (1991 Delineation). The 1991 Delineation substantially increased the acreage of jurisdictional wetlands on the subject property, identifying 87 acres on the commercial portion of the parcel owned by the Normans. This increased their wetlands acreage by 70 acres. The 1991 Delineation allegedly forced the owners of the Ranch property to revise their master

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development plan. In 1994, following creation of a new development plan that provided for development in three phases, the Normans began purchasing smaller properties adjacent to their 470-acre parcel. Later that year, Helms declared bankruptcy, and they purchased his 1800-acre parcel from his bankruptcy estate. Plaintiffs owned approximately 2280 acres of property intended for development in the three-phase master plan. In 1995, appellants applied to the Corps for a permit under section 404 of the Clean Water Act enabling them to impact 15 acres of jurisdictional wetlands and other waters of the United States. As mitigation for the proposed impact, plaintiffs proposed to create additional wetlands to ensure no net loss of wetlands functions and values. The Corps accepted the proposal and issued the permit. In 1998, appellants submitted another 404 Permit application, this time seeking permission to impact wetlands throughout the 2280-acre development site. The Corps responded that because appellants' proposed actions would result in significant environmental impacts, the Corps would have to prepare an Environmental Impact Statement in compliance with the National Environmental Policy Act of 1969, unless appellants provided a mitigation plan which clearly reduced the project impacts to a less than significant level. In July of 1999, appellants submitted a revised mitigation proposal that was a result of a negotiations process between the Corps and plaintiffs in which the parties discussed which areas of property on the 2280-acre Development could be utilized as mitigation wetlands. Under the modified development plan, a substantial portion of the mitigation wetlands would be on lands that would not otherwise have been developed in any case. The Corps approved the proposal and, on August 31, 1999, issued the Normans a 404 Permit enabling them to proceed with their development plan (1999 Permit). The 1999 Permit enabled appellants to fill approximately 60 acres of wetlands; in exchange, it required them to create or restore approximately 195 acres of wetlands as mitigation. Prior to and following issuance of the 1999 Permit, appellants continued to sell the developable parts of the 2280-acre Development to various independent third parties. At the time the 1999 Permit actually issued, appellants owned only 716 acres of the original 2280-acre parcel. In their appeal, the Normans challenge the trial courts rulings on their categorical and regulatory takings claims. A "categorical" taking is a regulatory taking in which government action deprives the landowner of all beneficial use of his property, such that the government action is the functional equivalent of a physical invasion. The trial court identified the parcel as a whole as the 2280-acre Development, comprising the properties designated for development. Without an effective challenge to the trial court's identification of the parcel as a whole, appellants cannot dispute that court's conclusion that the facts here do not sustain a categorical takings claim. Having correctly found that there was no categorical taking of plaintiffs' property, the trial court moved on to weigh the three factors of the Penn Central ad hoc analysis to determine whether a regulatory taking of the plaintiffs 220.85 acres occurred. That analysis requires the court to balance (1) the extent to which the regulation has interfered with reasonable investment-backed expectations; (2) the economic impact of the regulation on the claimant; and (3) the character of the governmental action at issue.

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After undertaking a meticulous analysis of the Penn Central Transportation Co. v. New York (1978) factors as applied to the facts, the trial court concluded that appellants had reasonable investment-backed expectations with respect to only a 4.07-acre parcel which appellants purchased in 1989 but which was first delineated as wetlands in the 1991 Delineation. The trial court then concluded that the economic impact factor weighed against a finding of a taking, because the 1999 Permit actually increased the economic value of the parcel as a whole by allowing plaintiffs to fill valuable commercial property and develop that property in exchange for setting aside other, less valuable property for mitigation. Finally, the trial court analyzed the character of the government action, concluding that the issuance of the 1999 Permit served a legitimate public welfare obligation; that appellants were treated fairly by the Corps and that the Permit was itself the product of negotiations between the Corps and appellants; and that appellants were not singled out for disparate treatment. Weighing all these factors, the trial court concluded that no regulatory taking of property occurred, because the Corps' actions simply did not unduly burden plaintiffs. The Normans were not only constructively but also actually aware of the applicable wetland restrictions, and purchased most of the land with full knowledge that portions of it were not subject to development. They could not have made those purchases in reliance on a state of affairs that did not include those restrictions. We conclude that the trial court correctly found that the appellants had reasonable investment-backed expectations only with respect to the 4.07acre parcel. The trial court found that the Normans reasonably relied on the 1988 Delineation when purchasing their original 470-acre parcel. In that delineation, the Corps designated only 17 acres of the 470-acre parcel as wetlands. The 1991 Delineation identified an additional 70 acres of that parcel as wetlands. Although as of the time they purchased the 470-acre parcel, the Normans had reasonable investment-backed expectations that they would be able to develop those 70 acres, the effect of the 1991 Delineation was considerably mitigated by the 1999 Permit and related Deed of Restrictions, which resulted in the Normans gaining the right to develop all but a few of the 70 acres designated as wetlands in 1991. To be sure, in order to obtain the right to develop those acres, appellants had to agree to set aside additional acreage as mitigation wetlands. The trial court found, however, that almost all of the property that either had been designated as wetlands in the original 1988 Delineation (of which the Normans were fully aware when they purchased the 470-acre parcel), or was outside the 470-acre parcel (and thus was purchased by the Normans only after it had already been designated as wetlands in 1991), or was never intended for development because it was intended to be used for storm run-off and flood control. Thus, the trial court found that of the 220.85 acres set aside for mitigation, only 4.07-acres constituted property that the appellants intended and reasonably expected to be able to develop. Because the trial court's finding as to the appellants' reasonable investment-backed expectations with regard to the 470-acre parcel has not been shown to be erroneous, we uphold the trial court's finding that the Normans' reasonable investment-backed expectations were limited to the 4.07acre plot. In short, the Normans have provided us no basis on which to reverse the trial court's

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conclusion that no taking occurred here. For the reasons set forth in this opinion, we affirm the trial court's judgment in favor of the United States as to the Normans' takings claims. Q1. Q2. Q3. Q4. Q5. What is a categorical taking? How often do governmental actions outside of eminent domain result in a categorical taking? What is a regulatory taking? What did the Normans loose the regulatory taking argument? What might the Normans have done differently to mount a more successful takings challenge? Saffo v. Foxworthy, Inc. 687 S.E.2d 463 Who is suing: Who is being sued: For what: What issue on appeal: The appellants contend the trial court erred in relying on Official Code of Georgia Annotated (OCGA) 48-4-47 to dismiss their complaint against the appellees to recover property sold at a tax sale to satisfy unpaid property taxes. OCGA 48-4-47 provides that once the right of redemption has been foreclosed by the providing of notice to the delinquent taxpayer and the passing of the barment date, the delinquent taxpayer cannot file or maintain suit to invalidate the tax deed without first paying or tendering to the new owner the full redemption amount, which includes the price paid for the property at the tax sale plus taxes, costs, and penalties that escalate with each passing year. The appellants, who are delinquent taxpayers, did not pay or tender the redemption amount before or after filing suit against the new owner to challenge the validity of the tax sale of their residence and the resulting tax deed. The appellants argue that the trial court nevertheless erred in dismissing their complaint, because an exception to the statutory payment or tender requirement applies and because the payment or tender requirement of OCGA 48-447 violates their constitutional due process rights. We reject those arguments and affirm. The delinquent taxpayers, appellants Sallie M. Saffo and her husband, Forrest J. Saffo, purchased the property at issue in 1983. For the next seven years, the property taxes were paid out of an escrow account connected with the mortgage. The Saffos knew that they had to pay property taxes and knew that the taxes were no longer being paid from the escrow account after 1990. Nevertheless, from 1991 on, the Saffos did not pay property taxes. A tax lien attached to the

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property, which was later foreclosed, and on February 1, 2000, the Fulton County Sheriff sold the property at a tax sale to the highest bidder, appellee Foxworthy, Inc., for $51,406.88. Under OCGA 48-4-40(1), the Saffos had an initial period of 12 months to redeem the property by paying the redemption amount to Foxworthy. They failed to do so. In light of the Saffos' allegations of inadequate notice in 2002, Foxworthy served the Saffos with a second Notice of Foreclosure of Equity of Redemption on November 4, 2004. The barment date specified in the notice was December 28, 2004. Once again, the Saffos failed to redeem the property. On October 3, 2008, the trial court conducted a hearing on the parties' cross-motions to dismiss and for summary judgment. The court entered an order finding that the Saffos' right to redeem the property was permanently barred because the Saffos had not paid or tendered the redemption amount. The court further held that, to the extent the Saffos were arguing that the tax sale must be invalidated because the Sheriff did not comply with the statutory tax sale requirements, their remedy would be an action against the Sheriff, not Foxworthy. Accordingly, the trial court granted Foxworthys motions to dismiss the complaint and for summary judgment, denied the Saffos motions to dismiss the counterclaim and for partial summary judgment, and reiterated an earlier order referring Foxworthy's counterclaim to a special master for a report and recommendation. The Saffos appealed. The Saffos raise two claims on appeal. First, they argue that the trial court erred in holding that OCGA 48-4-47 bars their suit challenging the validity of the tax sale and resulting tax deed to Foxworthy. Second, they contend that OCGA 48-4-47 violates their constitutional right to due process of law. The article of the Georgia Code governing redemption of property following a tax sale to satisfy unpaid taxes grants the delinquent taxpayer has the right to redeem the property by paying the amount required for redemption, the redemption price. The redemption price is the amount paid for the property at the tax sale, as reflected in the tax deed, plus certain other taxes, costs, and penalties that increase as time passes. The effect of redeeming the property is to place title back in the hands of the delinquent taxpayer, with the tax delinquency resolved. The delinquent taxpayer has an initial period of 12 months from the date of the tax sale in which to redeem the property. At the expiration of the 12-month period, the new owner has the ability to terminate and forever bar the delinquent taxpayer's right of redemption by setting a barment date and causing a notice of foreclosure to be served 30 days prior to the barment date. The notice of foreclosure must be served on the delinquent taxpayer, any occupant of the property, and all holders of any right, title, or interest in, or lien on, the property. Service of the notice of foreclosure of the right of redemption bars the filing or continuance of any action to set aside, cancel, or in any way invalidate the tax deed referred to in the notice or the title conveyed by the tax deed, unless the plaintiff first pays or tenders the full redemption amount. The Saffos concede that after they filed this lawsuit, Foxworthy caused a second Notice of Foreclosure of Equity of Redemption to be served on them which specified a barment date of

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December 28, 2004. The Saffos clearly received much more than the requisite 30 days' notice, and OCGA 48-4-47 bars not only the filing of a suit to set aside a tax deed without payment or tender of the redemption amount, but also maintaining such a suit. It is undisputed that the Saffos never paid or tendered the redemption amount. Accordingly, the trial court did not err in dismissing the Saffos' complaint for failing to pay or tender the redemption amount. The Saffos note that in this case, the redemption amount of $112,516 dwarfs the original $2,000 in unpaid taxes the property was sold to satisfy, and it was more than double what Foxworthy paid for the property at the tax sale in 2000 due to the addition of taxes, costs, and penalties. They claim that requiring them to pay or tender this large sum in order to challenge the tax sale effectively deprived them of notice and an opportunity to be heard by a judicial officer before the taking of their property, in violation of their constitutional right to due process of law, particularly because they allegedly were not given actual notice of the 2000 tax sale until after it took place. The Saffos are simply incorrect in claiming that due process requires that they be given actual notice before their property can be taken. As the U.S. Supreme Court has clearly explained, due process does not require that a property owner receive actual notice before the government may take his property. Instead, what due process requires is that the government provide notice reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Georgia's statutory scheme requires that notice of foreclosure of the right of redemption be personally served, if possible, on the delinquent taxpayer, any occupant of the property, and anyone else with an interest of record in the property, as well as by publication. Notice by personal service certainly satisfies the requirements of due process, and the statutory scheme is not unconstitutional on its face. Nor have the Saffos otherwise been deprived of an opportunity for hearing appropriate to the nature of the case. The Saffos do not contend that they can pay the redemption amount. They do not even contend that they could repay Foxworthy what it paid for the property in 2000. Nor do the Saffos challenge, on constitutional or statutory grounds, the individual components of the redemption amount. As a result, if this case proceeded to trial and the Saffos won, the redemption amount, including the unpaid taxes, would still be due, and presumably the tax sale process would start all over again. What the Saffos seek is an opportunity to be heard that will result in the return of their property to them without having to pay for it. OCGA 48-4-47 does not violate the Saffos' due process rights simply because it prevents them and others unwilling or unable to pay or tender the redemption amount from forcing the taxing authority, the new owner, and the trial court to engage in an apparent exercise in futility where, at the end of the day, they will still be in a position where they cannot retain their property. The enforcement and collection of taxes through the sale of the taxpayer's property can be a harsh procedure. But procedures may be harsh without being unconstitutional. In this case, the Saffos have failed to make out a valid claim that their due process rights have been violated. Accordingly, we reject their due process challenge to the constitutionality of OCGA 48-4-47.

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Judgment affirmed. Q1. What is an escrow account? Q2. What is the right of redemption? Q3. What is a barment date? Q4. Why isnt actual notice required before the delinquent taxpayers property can be taken? Q5. If the Saffos have been wronged, who should they sue concerning the tax sale of their property? Q6. Why are harsh penalties allowed? Albrecht v. Treon 617 F.3d 890 (6th Cir. 2010) (Ohio case) Who is suing: Who is being sued: For what: What issue on appeal: Plaintiffs-Appellants Mark and Diane Albrecht et al. (Albrechts) appeal the district court's decision to grant judgment on the pleadings in favor of Defendants-Appellees Brian Treon. et al. (Defendants). The Albrechts brought a claim pursuant to 42 U.S.C. 1983, alleging that they were denied due process of law when the defendant coroner performed an autopsy on the Albrechts' son's remains and removed the brain during the procedure. When the body was returned to the Albrechts, they were not informed that the coroner had retained the brain for further study and that it would be destroyed once the investigation was complete. The Albrechts claim that the retention and destruction of their son's brain, without their knowledge, deprived them of the right to dispose of their son's brain, in violation of the Due Process Clause of the Fourteenth Amendment. The Albrechts base this claim on their purported property interest in their son's entire body, including his brain. The Albrechts also brought common law tort claims against Defendants, over which the district court exercised supplemental jurisdiction. The district court was faced with the question of whether the Albrechts had a constitutionally protected property interest in their son's brain after it was removed and retained for legitimate investigative purposes. As this was a question of first impression in Ohio, the district court certified the question to the Ohio Supreme Court. The Ohio Supreme Court answered the question in the negative, stating that there is no constitutionally protected property interest in

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human remains retained by the state of Ohio for criminal investigation purposes. The district court consequently held that the Albrechts had no property interest in the brain, and, thus, Defendants were entitled to judgment on the pleadings. The Albrechts argue that the Sixth Circuit's ruling in Brotherton v. Cleveland holding that a spouse had a protected property interest in her husband's corneas, which were removed for donation purposes, should rule this case, as opposed to the Ohio Supreme Court's answer to the certified question. For the reasons which follow, the judgment of the district court is affirmed. The coroner for Clermont County, Ohio, performed an autopsy on the Albrechts' son's remains. The autopsy required examination of their son's brain. In order to examine and dissect a human brain more effectively, the jelly-like organ must be soaked in a formol saline solution for ten to fourteen days, a process referred to as "fixing" the brain, which firms the brain tissue for dissection. Due to the lengthy process of fixing the brain, it is the usual practice of the coroner to return the remains to next of kin for disposition without the brain. The coroner did not inform the Albrechts that he retained their son's brain upon return of the body to them. When the examination of the brain was completed, it was destroyed in accordance with the coroner's usual practice. The coroner did not notify the Albrechts that the brain was going to be destroyed. The Albrechts learned that their son's body was missing the brain when they received the autopsy report months later, long after burying their son. The Albrechts filed suit, claiming a violation of the Due Process Clause of the Fourteenth Amendment and common law tort liability. The suit was certified as a class action, and the Albrechts represent a class of similarly-situated plaintiffs whose deceased family members' bodies were returned to them missing tissues or organs that the coroner retained for further study in the course of a criminal investigation. Motions for judgment on the pleadings [require courts to] construe the complaint in the light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief. However, the plaintiff must provide the grounds for its entitlement to relief, and that requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. A plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. A plaintiff falls short if she pleads facts merely consistent with a defendant's liability or if the alleged facts do not permit the court to infer more than the mere possibility of misconduct. The Albrechts argue that under Brotherton v. Cleveland and Whaley v. County of Tuscola they had a constitutionally protected property interest in their son's discarded brain. In Brotherton, the plaintiff objected to the donation of her deceased husband's organs at the hospital. This objection, however, was not conveyed to the county coroner, who removed the decedent's corneas pursuant to an Ohio statute which permitted a coroner to remove the corneas of autopsy subjects without consent, provided that the coroner has no knowledge of an objection by the decedent, the decedent's spouse, or the person authorized to dispose of the body. We reversed the district court's dismissal of the plaintiff's 1983 claims, finding that the plaintiff had the right to possession of her husband's body for the limited purpose of lawfully disposing of it. At issue in Brotherton, however, was part of Ohio's adoption of the Uniform Anatomical Gift Act, which expressly granted next of kin the right to dispose of a relative's remains. There is no similar statute at issue in this case.

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Whaley is a direct progeny of Brotherton and arose under similar facts. The plaintiffs in Whaley were the next of kin of persons whose bodies were the subject of autopsies and whose corneas or eyeballs were removed, either without the consent of the next of kin, or after the objection of their next of kin. The Whaley court held that under Michigan law, the next-of-kin have a legitimate claim of entitlement and thus a property interest in a dead relative's body, including the eyes. Defendants claim that Brotherton and Whaley are distinguishable from the facts in this case, because removal and retention of tissue or organ for donation purposes, as in Brotherton and Whaley, serve little function for the state, and, thus, the relatives have greater property interest in the body parts. However, removal and retention of tissues or organs for forensic analysis in furtherance of a criminal investigation serves an important state function, which is paramount to the Albrechts' right to possess their son's body in its entirety. The Due Process Clause of the Fourteenth Amendment prohibits states from depriving "any person of life, liberty, or property, without due process of law." In order to establish a procedural due process claim, a plaintiff must show that (1) he had a life, liberty, or property interest protected by the Due Process Clause; (2) he was deprived of this protected interest; and (3) the state did not afford him adequate procedural rights prior to depriving him of the property interest. Property interests are defined by existing rules or understandings that stem from an independent source such as state law-rules. Although property rights are principally created by state law, whether a substantive interest created by the state rises to the level of a constitutionally protected property interest is a question of federal constitutional law. The due process clause only protects those interests to which one has a legitimate claim of entitlement. The issue on appeal is whether the Albrechts had a constitutionally protected property interest in their son's brain after it was removed during the autopsy. The Ohio Supreme Court held that the next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent's tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing. As a result of that answer, the district court in Albrecht II held that because Ohio law does not give the next of kin of a decedent upon whom an autopsy has been performed a protected right in the decedent's tissues, organs, blood or other body parts that have been removed and retained by the coroner for forensic examination and testing, Plaintiff's action brought pursuant to 42 U.S.C. 1983 fails as a matter of law. We agree. In August 2009, the Sixth Circuit Court discussed the case at bar at length in Waeschle v. Dragovic. The facts in Waeschle are nearly identical to the facts in this case, but Waeschle originated in Michigan, not Ohio. Noting the similarities between Michigan and Ohio property law, we stated, the Ohio Supreme Court's decision in Albrecht II, which explicitly denied that the next of kin have a right to body parts collected for forensic examination, suggests that such a right would probably not be recognized under existing Michigan law. We held that for the purposes of qualified immunity, Waeschle's alleged constitutionally protected property right to her mother's brain is not clearly established, but cautioned that it did not determine the existence or the scope of Waeschle's right to her mother's brain in the present case.

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The Waeschle court stated that the plaintiff "might have no right" to her mother's brain because the law in Michigan has not been clearly defined on this issue. The Supreme Court of Ohio, however, has clearly defined the law on this issue in Ohio. Furthermore, this Court and the Supreme Court of Ohio agree that Brotherton applies only in the narrow circumstance of unauthorized removal of body parts for donations, and should not be expanded to include claims by next of kin for bodily tissues retained by a government official for legitimate criminal investigations. Federal law is clear that the states define property rights in their respective jurisdictions. The Ohio Supreme Court explicitly delineated the lack of property rights in this case in Albrecht II. That Court held that next of kin have no right to autopsy specimens removed and retained by the coroner, in furtherance of a criminal investigation. Although there is no dispute as to the facts as the Albrechts present them, they had no property interest in their son's brain, thus, they cannot support the first element of a due process clause claim. Their claim fails as a matter of law. If state actors do not infringe on the life, liberty, or property of the plaintiffs, there can be no due process violation. Here, the Albrechts had no property rights on which the state could infringe. As a result, the district court properly granted judgment on the pleadings in favor of the defendants. For the foregoing reasons, the district court's grant of judgment on the pleadings in favor of Defendants is affirmed. Q1. Q2. Q3. Q4. Q5. What is a judgment on the pleadings? Why did the court decide that the precedents established in Brotherton and Whaley did not apply? What was the significance of Albrecht II? Is the courts opinion consistent with Michigan law? Do courts in other states of the 6th Circuit need to follow this courts ruling? Mann v. Georgia Department of Corrections 2007 Ga. LEXIS 849 (Ga. 2007) Who is suing: Who is being sued: For what: What two issues on appeal: This case involves a constitutional takings challenge to OCGA 42-1-15, which prohibits registered sex offenders from residing or loitering at a location that is within 1,000 feet of any

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child care facility, church, school or area where minors congregate (the residency restriction), or being employed by any business or entity located within 1,000 feet of any child care facility, church or school (the work restriction). Appellant Anthony Mann is a registered sexual offender, who previously challenged the predecessor to OCGA 42-1-15 when its application required him to vacate his residence at his parents' home. In Mann v. State, we rejected his takings challenge to the residency restriction on the basis that he had only a minimal property interest in the living arrangement he enjoyed at his parents' home. The record here establishes that appellant moved from his parents' home, got married in and purchased, together with his wife, a home on Hibiscus Court in Clayton County in October 2003. It is uncontroverted that the home at the time it was purchased was not within 1,000 feet of any child care facility, church, school or area where minors congregate. Around October 2004, appellant became the half owner and dayto-day operator of a Clayton County business, a barbecue restaurant, where he cooks and runs the dining room among other duties. It is likewise uncontroverted that the business, at the time it leased its current premises, was not located within 1,000 feet of any child care facility, church or school. However, child care facilities thereafter located themselves within 1,000 feet of both appellant's home and his business. Appellant's probation officer then demanded that appellant quit the premises of his business and remove himself from his home upon penalty of arrest and revocation of probation. Appellant brought this action seeking a declaration that OCGA 42-115 is unconstitutional because it authorizes the regulatory taking of his property without any compensation as required by the Constitution of the United States, as well as the Constitution of the State of Georgia. The trial court rejected appellant's arguments and he appeals. For the reasons that follow, we affirm in part and reverse in part the trial court's order. We address first appellant's constitutional challenge to the residency restriction. Under the terms of that statute, it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected. OCGA 42-1-15 contains no "move-tothe-offender" exception to its provisions. Thus, even when a registered sex offender like appellant has strictly complied with the provisions of OCGA 42-1-15 at the time he established his place of residency, the offender cannot legally remain there whenever others over whom the offender has no control decide to locate a child care facility, church, school or area where minors congregate within 1,000 feet of his residence. As a result, sex offenders face the possibility of being repeatedly uprooted and forced to abandon homes in order to comply with the restrictions in OCGA 42-1-15. Further, OCGA 42-1-15 is part of a statutory scheme that mandates public dissemination of information regarding where registered sex offenders reside. Thus, third parties may readily learn the location of a registered sex offender's residence. The possibility exists that such third parties may deliberately establish a child care facility or any of the numerous other facilities designated in OCGA 42-1-12 within 1,000 feet of a registered sex offender's residence for the specific purpose of using OCGA 42-1-15 to force the offender out of the community. A registered sexual offender who knowingly fails to quit a residence that is located within 1,000 feet of any of the facilities or locations designated in the statute commits a felony punishable by imprisonment for not less than ten nor more than 30 years.

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As the United States Supreme Court recognized in Lingle v. Chevron U.S.A., Inc. (1995), government regulation of private property may be so onerous that its effect is tantamount to a direct appropriation or ouster -- and that such "regulatory takings" may be compensable under the Fifth Amendment. Regulations that fall short of eliminating property's beneficial economic use may still effect a taking, depending upon the regulation's economic impact on the landowner, the extent to which it interferes with reasonable investment-backed expectations, and the interests promoted by the government action. This language reflects the essentially ad hoc, factual inquiries set forth in Penn Central Transp. Co. v. New York City (1978), which rejected any set formula and instead listed certain factors to be used to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, the Penn Central test focuses directly upon the severity of the burden that government imposes upon private property rights. The Penn Central inquiry turns in large part upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests. We apply these guidelines to resolve appellant's claim that OCGA 42-1-15(a) constitutes an unconstitutional regulatory taking of his property. Although we earlier determined appellant's property interest in his rent-free residence at his parents' home to be minimal, we find appellant's property interest in the Hibiscus Court residence he purchased with his wife to be significant. As a registered sex offender, the locations where appellant may reside are severely restricted by OCGA 42-1-15(a). Nevertheless, appellant and his wife were able to find and purchase a house that complied with the residency restriction. The evidence is uncontroverted that the Hibiscus Court property was purchased for the sole purpose of serving as their home. The effect of OCGA 42-1-15 is to mandate appellant's immediate physical removal from his Hibiscus Court residence. It is functionally equivalent to the classic taking in which government directly ousts the owner from his domain. As long as the day care center remains in its current location, appellant cannot reside in his home until he is released from the registration requirement by a superior court. He cannot legally live with his wife at their home but must instead locate another residence that complies with the residency restriction. Although the State contends that appellant's ability to rent or sell his house eliminates or minimizes the economic impact of OCGA 42-1-15(a), appellant's testimony established that he and his wife did not purchase the Hibiscus Court property for rental purposes. OCGA 42-1-15 would force appellant and his wife to become lessors, an unwelcomed and unanticipated role for which they are ill-equipped. Sale of the Hibiscus Court house will involve numerous expenses, and appellant would face additional expenditures such as escrow deposits and utilities transfers in purchasing a new residence. We thus reject the State's position that appellant has failed to demonstrate a significant economic impact from application of OCGA 42-1-15 to his situation. Moreover, OCGA 42-1-15 looms over every location appellant chooses to call home, with its on-going potential to force appellant from each new residence whenever, within that statutory 1,000-foot buffer zone, some third party chooses to establish any of the long list of places and facilities encompassed within the residency restriction. OCGA 42-1-15 does not merely interfere with, it positively precludes appellant from having any reasonable investment-backed

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expectation in any property purchased as his private residence. OCGA 42-1-15 effectively places the State's police power into the hands of private third parties, enabling them to force a registered sex offender like appellant, under penalty of a minimum ten-year sentence for commission of a felony, to forfeit valuable property rights in his legally-purchased home. Courts must remain mindful that the Takings Clause is intended to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. All of society benefits from the protection of minors, yet registered sex offenders alone bear the burden of the particular type of protection provided by the residency restriction. No burden is placed on third parties to aid in providing this protection, even though they have been enabled to do so by the mandated public dissemination of the addresses of registered sex offenders. Looking to the magnitude and character of the burden OCGA 42-1-15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, we conclude that justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be spread among taxpayers through the payment of compensation. We therefore find that OCGA 42-1-15(a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation. Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction. Appellant also contends that the work restriction in OCGA 42-1-15(b)(1) violates the takings clauses of the United States and Georgia Constitutions. Applying the analysis set forth above, we conclude the trial court did not err by rejecting appellant's challenge. The evidence presented by appellant established that he owns a half interest in a business that operates a barbeque restaurant. Appellant testified that the restaurant opened its doors in June 2005 and that he runs the dining room, does some cooking and performs accounting work. He testified that the restaurant has an accountant, one server, a full-time cook and a part-time dish washer. Although appellant testified that the business suffered as a result of his absence from the restaurant, he also testified that he could take a computer and his papers and so forth and perform tasks without being physically present at the restaurant. OCGA 42-1-15(b)(1) provides that no registered sex offender "shall be employed by . . . any business or entity that is located within 1,000 feet of a child care facility, a school, or a church." We find that the work restriction aims to lessen the potential for those offenders inclined toward recidivism to have contact with, and possibly victimize, the youngest members of society. We hold that nothing in the statute prohibits a registered sex offender from owning a business or entity within the 1,000-foot buffer zone around child care facilities, schools and churches, as long as that ownership does not involve the sex offender's physical presence at the business or entity. Appellant's property interest in the business in which he owns a half-interest is considerable. However, nothing in OCGA 42-1-15(b)(1) compels appellant to divest himself of that ownership interest in the business or to relocate the business in order to maintain his interest in it. Although the statute's work restriction does directly deprive appellant of his right to work at the physical location of the business, there was no showing that appellant's property interest in the

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business depends on his physical presence; that the tasks he performs on site at the restaurant cannot be performed economically by others; and that other tasks he performs cannot be handled with comparable economic efficiency at a site outside any buffer zone. Appellant provided no evidence to quantify his claim that the restaurant had suffered as a result of his physical absence. Thus, although OCGA 42-1-15(b)(1) has the functional effect of ousting appellant physically from his business, appellant has not shown that the regulation has unduly burdened him financially or adversely affected his reasonable investment-backed expectations in his business. We therefore conclude that appellant failed to establish that the economic impact of the work restriction, as applied to him, effected an unconstitutional taking of appellant's property interest in his business. The trial court did not err by denying appellant's request for declaratory relief. Judgment affirmed in part and reversed in part. Q1. What takings challenge was denied in the earlier lawsuit Mann v. State? Q2. What is the difference between a per se and a regulatory taking? Q3. What is the distinction between the earlier Mann v. State case and this case? Q4. What is the distinction between the house and the business? Q5. Did the appellant and his attorney fail to articulate his need to physically work at his restaurant? Q6. If a similar case arises for another sex offender, what additional facts should the appellant argue about his business to support a different result? Q7. How does this statute affect the ability of sex offenders to make meaningful contribution to the states economy through their work? Q8. When does a 17-year old male, who engages in sexual activity with his younger girlfriend, become sex offender? Q9. Is this statute, as modified by the court, good for Georgia?