Interested in the intriguing question of whether a court ruling can "take" property? If so, check out the latest cert petition on the issue.
Let's start with the Questions Presented:
1. Is a state supreme court able to "side-step" the just compensation requirement of the Fifth and Fourteenth Amendments by simply removing preexisting property rights of owners to real property?2. Is the North Carolina Supreme Court’s decision in holding that an established right of private property no longer exists a taking in violation of the Fifth and Fourteenth Amendments to the United States Constitution?3. Is the North Carolina Supreme Court’s grant of title and ouster of property rights without payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
You remember the last time that the Supreme Court ventured into this area, it wasn't exactly a satisfying result, although we got a bizarre analogy from Justice Scalia, and we personally got a law review article out of it.
This latest petition argues that the North Carolina Supreme Court altered the state's property law in a case that started off as what appears to be a rather run-of-the-mill ownership and trespass dispute between the Kisers and Duke Energy over a retaining wall on the bed of Lake Norman.
The alleged judicial taking occurred when the North Carolina Supreme Court affirmed a trial court's order that concluding the Kiser property is subject to an easement in favor of Duke Energy:
Under the Trial Court Order, property went not from A to B, but from A to C without compensation and foreclosed any economic benefit in the Kiser Lake Parcel. App.48a. This is a taking on every conceivable level. Sunset Keys cannot build on the Kiser Lake Parcel, it cannot collect rents and it cannot exclude others. The entire bundle of sticks that represents property interests were removed by the Trial Court
Order.
Pet at. 18.
Stay tuned. Follow along here, or on the Court's docket.
Petition for a Writ of Certiorari, Kiser v. Duke Energy Carolinas, LLC, No. (U.S. Sep. 18, 2023)
