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Two big property rights issues — for the future

The Supreme Court on Monday chose to pass up two major disputes on property rights, but lawyers were urged to bring up those issues again in future cases — cases without procedural flaws.  By denying review, the Court set no new precedents; even so, the Justices who did file comments made clear that, if raised in appropriate cases, the questions would be worthy of precedent-setting review.

Those actions came as the Court issued the first round of orders in pending cases since the death of Justice Antonin Scalia, leaving an eight-member Court, at least for the time being.  The Court, although it had before it an unusually long list of potential cases, did not grant review of any of them.  There was no way to know whether the fact that only eight Justices were taking part had made any difference.

In the two property rights cases that were bypassed, one involved the power of a city government to require developers of new home projects to provide a sizable part of the projects for sale to low-income buyers at below-market prices, and the other involved the authority of a state government to claim ownership of millions of dollars worth of unclaimed property whose owners cannot be located.

Although the Court did not accept any new cases for review, it did seek the legal advice of the federal government about whether it should hear three new controversies.  In the case of Ivy v. Morath, the question is whether a hearing-impaired person has a right under federal disability rights law to take a driver-education class, when such classes are run on behalf of a state by a private driving school.  In a pair of cases that the Court is considering together — Republic of Venezuela v. Helmerich & Payne International Drilling Co. and a case with those parties in reverse order — the Justices are being asked to clarify when a foreign government’s takeover of private property is a violation of international law and thus can be challenged in U.S. courts, and whether a foreign government is immune from a breach-of-contract claim in U.S. courts when there have been extensive commercial dealings between the two inside the U.S.  In a third dispute, Czyzewski v. Jevic Holding Corp., the question is whether it is illegal for a bankruptcy court to distribute the proceeds of a debt settlement in a ways that contradict the priority of payment to creditors that are specified in bankruptcy law.  There is no deadline for the U.S. Solicitor General to reply to the Court’s request for the government’s views.

The housing developers’ case that the Court refused to hear (California Building Industry Association v. San Jose) had been set for consideration by the Court at three private Conferences, but it was put off each time.  The Justices did examine it at a fourth scheduled conference, but that led to the denial.  The dispute involves a San Jose city ordinance that requires all developers of new residential housing projects with at least twenty units to set aside a minimum of fifteen percent of the units up for sale to be sold at a below-market price to low-income buyers.  Justice Clarence Thomas wrote separately, joining in the denial because he said the crucial issues had not been explored in lower courts.  But he also said that the Court should at some point confront the issue.  Until it does, he declared, property owners and local governments would be left uncertain about which type of government action — legislative or administrative — can lead to an unconstitutional “taking” of private property.

The other property case (Taylor v. Yee) is one that the Court had listed for examination at eight separate private Conferences, before finally releasing its order declining review.  Justice Samuel A. Alito, Jr., in an opinion joined by Thomas, said that denial was proper “because of the convoluted history of this case,” but he argued that the constitutionality of the kind of state seizures of unclaimed private property “is a question that may merit review in a future case.”  He cited what he said were recent trends that failed to give potential owners of such property adequate notice and time to come forward and claim it.

When a member of the Court makes a suggestion like those in the two property cases, that frequently will lead lawyers to move a new test case through the courts to get an answer.

Alito, in a separate case, also wrote at length in a dissent from the denial of review in Ben-Levi v. Brown — a case that the Court presumably had looked at five times before opting for a refusal to review.  It involved a challenge by a North Carolina state prison inmate, Israel Ben-Levi, to a prison policy that prevented him and other Jewish inmates from praying together and joining in the study of the Torah.  Alito said that prison officials imposed restrictions on Jewish gatherings that it did not apply to other religious groups.

Much of the Court’s long list of orders released Monday focused on refusals to hear cases.  Among the more significant cases were a test of public school officials’ authority to discipline a student for the use of harsh language criticizing school faculty members, when the student did so while using a computer at home for private expression (Bell v. Itawamba County School Board); a challenge by farming groups to a broad order by the U.S. Environmental Protection Agency requiring states to take significant steps to prevent pollution of the Chesapeake Bay by run-offs from private land (American Farm Bureau v. EPA); and a new attempt to challenge the legality of the federal Affordable Care Act’s requirement that businesses maintain health insurance at affordable rates for their employees, or face financial penalties — a key part of the ACA that the Court has not yet ruled upon (Hotze v. Burwell).

Recommended Citation: Lyle Denniston, Two big property rights issues — for the future, SCOTUSblog (Feb. 29, 2016, 3:14 PM),