No soup for you!
Update: our colleague Bryan Wenter has his take on one of the cases denied review here ("U.S. Supreme Court Again Declines to Consider Important Property Rights Issue Regarding the Unconstitutional Conditions Doctrine") ("Because the current composition of the U.S. Supreme Court leans ideologically conservative by any traditional measure and it takes only four of nine Justices to grant certiorari, on the surface it is surprising that the Court has yet to take up a case, such as CBIA or 616 Croft Ave., that would finally resolve this distinction between sweeping legislative takings and particularized administrative takings. The surprise is enhanced to a degree by the fact that the Court considered both cases in conference four times, which suggests a serious interest in the issue.").
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To bring you up to speed on cases of interest in the Supreme Court's cert pipeline that we've been following, the short story is that none of them were granted review. Here's a list:
- Nies v. Town of Emerald Isle, No. 16-1305 (cert. denied Oct. 2, 2017). This is the case where the NC Legislature gave municipalities the green light to move the location of the "public trust" shoreline. What had always been private was thus public. We filed an amicus brief urging the Court to review the case. This case caught at least one Justice's attention, since it was relisted after a response was requested. Here's a local news story on the case: "U.S. Supreme Court declines to hear case that threatened public's right to beach access."
- Jarreau v. S. Lafourche Levee District, No. 17-163 (cert. denied Oct. 30, 2017). This is the case asking whether a state can, consistent with the Just Compensation Clause, categorically bar "business losses" which occur as an inevitable result of a taking. We filed an amicus brief in this one, too. Here's an oped about the case, which summarizes the issues. This one also seemed like it might have legs, since a response was requested. But cert denied.
- 616 Croft Ave., LLC v. City of West Hollywood, No. 16-1137 (cert. denied Oct. 30, 2017). This case presented the "legislative vs. executive exaction" question that has been left unanswered for a while. We said so in an amicus brief we joined. This case seemed like a good vehicle, too, especially after it was relisted four times.
- Wayside Church v. Van Buren County, No. 17-88 (cert. denied Oct. 30, 2017). Williamson County ripeness, again. An issue that is really ripe for SCOTUS review (pun intended). Lots of amici jumped in, although we didn't file a brief in this case (so we know it isn't us causing the denials, at least).
What to make, if anything, from these denials in cases that looked pretty good? No real vehicle problems, and issues that are primed for the Court to take up: yet cert denied, denied, denied...and denied.
There are many ways to read the tea leaves, including the usual "the Court just wasn't interested." But we have speculated that these denials are not something to necessarily despair about, and are more a sign of inopportune timing and the Justices who are supportive of property rights wanting to keep their powder dry for a time when they have a more solid majority. We base our speculation on two cases.
First, Murr v. Wisconsin, a decision where Justice Kennedy authored a perplexing majority opinion that seems to satisfy no one except those who simply think regulatory takings case should always be decided against the property owner. With Justice Kennedy possibly controlling the majority in property cases, perhaps the risk of another Murr was simply too much, and it was better for the pro-property Justices to vote to deny cert than risk it.
Bolstering this speculation is the second case, Bay Point Properties v. Mississippi Transportation Comm'n, No. 16-1077 (cert. denied June 26, 2017), in which we represented the petitioner. There, after relisting the case multiple times, the Court denied cert on the last day of the term, three days after ruling in Murr. No Justice dissented from the denial, but Justices Gorsuch and Thomas filed a curious "statement" which says (we're paraphrasing here) good issue, lower court split, and interesting case; you should raise this issue down the road "at the next opportunity." If so, then why not now? The only answer we could muster was that things were not just ready on the merits to get a good result.
Which is what led us to the conclusion that this maybe what is going on in these other cases -- good issues all, but timing is just not good now.
That's our take. So what do you think is going on?
