Two -- count 'em two! -- cert petitions from our shop, filed today. Both call for "clarifying or overruling" Penn Central.
Oh, have I got your attention now?
Both arise out of the Michigan governor's orders shuttering some, but not all, businesses during Co-19. These had devastating consequences, and owners sued for, inter alia, a taking, asserting a Penn Central theory. As we noted here, the Gym 24/7 case went up through the Michigan court system, with the Supreme Court eventually denying discretionary review over an extensive dissent. The Mount Clemens Recreational Bowl case took pretty much the same path.
We're not going to say much more because these petitions are ours, with Jon Houghton and Deb La Fetra walking point.
Here are the Questions Presented:
In the Gym 24/7 case:
In this Fifth Amendment regulatory takings case, Michigan’s Executive Order took dominion and control of the use of Petitioner’s commercial property. It barred all customers from the premises for six months, which erased the property’s economic use and destroyed Petitioner’s reasonable investment-backed expectations to benefit the general public. However, Michigan courts dismissed Petitioner’s case at the pleadings stage, generating three disparate opinions, with two different outcomes, and three conflicting interpretations of Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). The result demonstrates Penn Central’s inability to protect fundamental property rights and to provide a clear, consistent, and uniform determination of “how far is too far.” There is also tension in this Court’s decisions, and those below, as to whether the element of time should be a determinant of takings liability. The questions presented are:
1. Whether Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), should be clarified or overruled?
2. Whether a taking occurs upon the government asserting control over a property right, as the Court held in Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021), or instead, upon the government asserting control over a property right for some undefined period of time, as the Court held in Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302 (2002)?
In the Mount Clemens Recreational Bowl case:
Whether Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), should be clarified or overruled?
Stay tuned.
Petition for a Writ of Certiorari, The Gym 24/7 Fitness, LLC v. Michigan, No. 24-____ (U.S. Jan. 15, 2025)
Petition for a Writ of Certiorari, Mount Clemens Recreational Bowl, Inc. v. Hertel, No. 24-____ (U.S. Jan....