Court.com

Attorney & Court Information

Archives for June 2019

Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information

by Leave a Comment

Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information

In Food Marketing Institute v. Argus Leader Media, the Supreme Court held today that the Freedom of Information Act allows a federal agency to withhold from disclosure records submitted by a private entity when the submitter keeps the records secret and the agency promises to keep the records from disclosure. In an opinion by Justice Neil Gorsuch for a six-justice majority that included the court’s other conservatives and Justice Elena Kagan, the court overruled the U.S. Court of Appeals for the 8th Circuit’s decision below, which was based on longstanding precedent from the U.S. Court of Appeals for the District of Columbia Circuit that had held sway among most of the other circuits. Focusing only on the relevant statutory language, the majority concluded that an agency and private submitter need only show that the records are kept “confidential,” in the court’s broad interpretation of the term, and not that disclosure would cause any harm to the private-sector submitter.

The case concerned a request by a South Dakota newspaper, the Argus Leader, for records that would disclose data about the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program, known as SNAP. That data included commercial information about the retail grocery stores at which SNAP recipients purchase their groceries. USDA and the grocers whose data had been captured in SNAP transactions claimed that the retailers’ individual market positions, which they keep secret from competitors and the general public, would be revealed by the information’s release. The 8th Circuit, affirming a district court decision, had held that the SNAP data was not exempt from FOIA because the grocers could not meet the prevailing Exemption 4 test first adopted by the D.C. Circuit in 1974 in National Parks & Conservation Association v. Morton. National Parks had held that Exemption 4 applied only to information whose disclosure is likely “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” The grocers could show that they kept the data from the public and their competitors, and that USDA assured them it would keep the information private (as the United States stated in its amicus brief and during oral argument). But the grocers could not show a likelihood of substantial harm from the information’s disclosure.

After holding that the grocers had standing to sue because the injury they would suffer from disclosure would be fairly traceable to the decision that Exemption 4 does not apply and could therefore be redressed by a decision that it does, the Supreme Court held that the statutory language did not support the National Parks test. FOIA’s Exemption 4 applies to “commercial or financial information obtained from a person and privileged or confidential,” as stated in 5 U.S.C. § 552(b)(4). In interpreting the word “confidential,” Gorsuch focused solely on dictionary definitions from the time of FOIA’s original enactment, none of which considered harm from disclosure to be an aspect of the word’s meaning.

Instead, the contemporaneous understanding of “confidential” extended to information customarily kept private, and also included assurances given by the receiving party that it would keep privately disclosed information secret. This, the Supreme Court observed, had been the test in some circuit courts prior to National Parks. It will now be the authoritative test under Food Marketing Institute: Henceforth, a private-sector submitter of information to an agency will only need to show their efforts to keep the information private and the assurances they received from the agency that it would keep the information from the public. No longer will a submitter need to show any harm, whether substantial or negligible.

Joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Stephen Breyer’s partial dissent agreed with the majority that the statutory text could not support the substantial-competitive-injury test that National Parks had established. But the dissent disagreed with the majority’s decision to remove harm entirely from consideration under Exemption 4. Finding definitions of “confidential” in other contexts (including national security) in which disclosure’s consequences are deemed part of a confidential classification, the dissent would have required more than merely a process-related definition established by the direct parties to the provision and receipt of the information. The dissent worried that the new test would allow, and perhaps even incentivize, private entities and agencies to overstate their efforts to keep information private in contexts in which disclosure would not harm the submitter but would serve a public benefit. A more expansive exemption that does not even consider harm to the submitter, the dissent argued, runs counter to FOIA’s purpose of informing the public and enabling citizens to hold the government accountable for its decisions.

The decision is significant in two regards. First, it will broaden the reach of Exemption 4, making it easier for private records to be kept from disclosure. Food Marketing Institute will benefit businesses in regulated industries who are frequently asked or required to provide information to government agencies that is confidential but does not meet the definition of “trade secret” that federal courts apply to Exemption 4. But it will frustrate news media, watchdogs and competitors who will be less likely to have their FOIA requests met. Notably, the majority never explained that the Argus Leader submitted its FOIA request as part of its investigation into SNAP-related fraud. That investigation will now have to proceed without access to the SNAP data. The decision’s influence will vary among administrations and even among agencies within the same administration, depending on the extent to which agencies provide assurances that they will keep submitted records private. But it will narrow access to information the government holds.

The decision also offers a snapshot of statutory interpretation on the Roberts Court. Gorsuch’s decision began and ended with the statutory text. He interpreted the key term that the statute did not define solely by reference to contemporaneous dictionaries. He did not consider FOIA’s legislative history or Congress’ purpose in enacting it. Nor was he persuaded by the newspaper’s effort to argue for the relevance of common law definitions of “confidential” and of Congress’ implied ratification of National Parks in more recent FOIA amendments and in similar language Congress has incorporated into other statutory provisions. This approach is consistent with Kagan’s 2011 decision in Milner v. Department of Navy, which also overruled an influential and longstanding D.C. Circuit test for a FOIA exemption — although Milner, from which only Breyer dissented, included legislative purpose as a secondary justification. The Food Marketing Institute dissent argued that abandoning harm as a part of Exemption 4 runs counter to FOIA’s general purpose of requiring broad disclosure, and rejects prior statements in Supreme Court FOIA precedent prescribing narrow readings of the statute’s exemptions. The majority considered only the text. Justice Antonin Scalia might well have been pleased by what this decision says about the influence on the court’s interpretive practice of his textualist approach to statutory interpretation.

The post Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information appeared first on SCOTUSblog.

SCOTUSblog

A “view” from the courtroom: From the T-shirt shop to the high seas

by Leave a Comment

A “view” from the courtroom: From the T-shirt shop to the high seas

With 12 opinions remaining, no one expects today to be the last day of the court’s term. Still, there is an air of anticipation and some special guests are in the courtroom this morning.

In the public gallery, the second group of high-school teachers from the Supreme Court Summer Institute for Teachers is here. (The first group was here last Monday.) Both groups held moot courts on American Legion v. American Humanist Association, about whether a World War I memorial cross in Bladensburg, Maryland, violates the establishment clause. The institute’s first group of teachers serving as high-court justices ruled overwhelmingly to allow the cross to remain. This past weekend, the second group, even with the benefit of the real Supreme Court’s decision last Thursday in favor of the cross, ruled narrowly against the American Legion and the state of Maryland. Those civics teachers are independent spirits.

Opinions announced by Justices Gorsuch, Kagan and Alito (Art Lien)

Elsewhere in the public gallery, there is a group of about a dozen or more high school students, ready for a firsthand civics lesson. They will soon be joined in the courtroom by two more pupils. Margaret and Liza Kavanaugh, the daughters of Justice Brett Kavanaugh, arrive with their mother, Ashley, and take their seats in the VIP section. There are many tender ears here this morning.

Also in the VIP section are Martha-Ann Alito, the wife of Justice Samuel Alito, and Joanna Breyer, the wife of Justice Stephen Breyer.

Justice Kavanaugh’s wife and daughters seated in the courtroom (Art Lien)

In the press section, this is the time of the year when most regular reporters feel duty-bound to stay in the press room on the ground floor, adjacent to the Public Information Office, where opinions are distributed as soon as a justice begins reading from his or her summary from the bench. That way, reporters may immediately take to Twitter or the web to give their first take on the news.

Some news outlets arrange for another reporter to assist their Supreme Court correspondent by going up to the courtroom to observe. The Washington Post’s regular court reporter, Robert Barnes, has been aided in recent days by ace legal reporter Ann Marimow. Adam Liptak, the Supreme Court correspondent of The New York Times, is being assisted today by Peter Baker, the Times’ senior White House correspondent as well as an accomplished author and a familiar face on cable television.

As Solicitor General Noel Francisco and his team arrive, there is another familiar face that has been in the news in recent days. Michael Dreeben, a longtime deputy solicitor general who specializes in criminal matters, is here today for the first time in quite a while. Dreeben was dispatched to special counsel Robert Mueller’s office for the investigation of Russian interference in the 2016 election.

Dreeben, a 30-year Department of Justice veteran who has argued more than 100 cases before the Supreme Court, is leaving the department in coming weeks, the department’s public affairs office has confirmed. He has not indicated publicly where he is going. (Chief Justice John Roberts recognized Dreeben’s 100th argument in April 2016.)

The court takes the bench, and the chief justice announces that Justice Neil Gorsuch “has the opinion this morning in two cases.”

The first is United States v. Davis, about whether a provision of federal law defining a “crime of violence” for purposes of federal criminal prosecution for using a gun during such a crime is unconstitutionally vague.

Right at the outset of his bench announcement, Gorsuch stresses that the two defendants in the case, who robbed several gas stations in Texas and were convicted of multiple federal crimes, “are going to spend a very long time in prison.”

This nonetheless suggests that he is coming down on the side that the provision is unconstitutionally vague, and that is the holding of the court. Gorsuch explains that Kavanaugh has filed a dissenting opinion, joined in full by Justices Clarence Thomas and Alito, and in part by Roberts.

So, it’s another split between the court’s two newest justices, and another 5-4 decision.

Gorsuch’s second opinion is Food Marketing Institute v. Argus Leader Media, about whether certain commercial or financial information provided to the government qualifies as confidential and thus subject to an exemption from disclosure under the Freedom of Information Act.

The case arises from efforts by a South Dakota newspaper, the Argus Leader, to report on fraud in the federal food-stamp program, which is formally called the Supplemental Nutrition Assistance Program, “or SNAP,” Gorsuch says snappily.

The newspaper sought store-level SNAP data as part of its investigation of retailer fraud in the program, but the U.S. Department of Agriculture withheld the data based on FOIA’s Exemption 4, which shields trade secrets and other privileged or confidential commercial or financial information.

The U.S. Court of Appeals for the 8th Circuit ruled for the newspaper, applying the “substantial competitive harm” test developed decade ago by the U.S. Court of Appeals for the District of Columbia Circuit in National Parks & Conservation Association v. Morton.

“Today, we reject National Parks’ ‘substantial competitive harm’ test as a relic from a bygone era of statutory construction,” Gorsuch says.

Breyer has filed an opinion concurring in part and dissenting in part, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The chief justice announces that Justice Elena Kagan has the opinion in Iancu v. Brunetti, about whether the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks violates the First Amendment.

Justice Kagan with opinion in Iancu v. Brunetti (Art Lien)

This is when we get anxious about the tender ears of the teenagers and preteens in the courtroom today. The proposed trademark at issue in this highly publicized case is from a line of streetwear founded by Erik Brunetti of California under the name FUCT.

But that name will not be mentioned in the courtroom today. Just as the justices and the arguing counsel did contortions to avoid mentioning Brunetti’s mark or the many variations of vulgarities discussed in the briefs, Kagan keeps her bench announcement at most PG-rated. (She mentions it a mere three times in her written opinion.)

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expressions based on the ideas or viewpoints it conveys,” she says. “The ban on ‘immoral’ and ‘scandalous’ marks does just that.”

The prohibition “allows trademark registration when a mark’s message conforms with society’s sense of decency or morality,” Kagan continues. “But it prohibits any mark expressing a contrary view—when it goes against that societal sense. That’s exactly the kind of discrimination against ideas that the First Amendment prohibits.”

She adds that if that all sounds a little abstract, “some examples should make the point.”

The anxiety meter goes back up a few degrees, but her examples, drawn from the record and the briefs, stay on the tame side. She cites proposed marks such as “Marijuana Cola” and “You Can’t Spell Healthcare Without THC,” which were rejected by the U.S. Patent and Trademark Office because they glamorize drug use. Yet the PTO approved marks such as “Say No to Drugs” that express an anti-drug message. There are similar viewpoint-based distinctions on trademarks in the areas of religion and terrorism, she says. Those in the courtroom unfamiliar with the case would never guess that it stems from a line of clothing that skateboarders have been wearing for more than 20 years.

Kagan says the court cannot accept the limiting construction proposed at oral argument by Deputy Solicitor General Malcolm Stewart to read the statute to cover only marks that are lewd, sexually explicit or profane.

“But although we try to interpret statutes to avoid constitutional problems, we simply can’t rewrite Congress’s words,” she says.

Alito has filed a concurring opinion. Roberts has an opinion concurring in part and dissenting in part. Breyer has an opinion concurring in part and dissenting in part. And so does Sotomayor, joined by Breyer. None of these are read in the courtroom, even though the dissenting portions all suggest that those justices would adopt the government’s limiting principle and bar marks such as Brunetti’s.

The final opinion today is from Alito, and we’re moving from the T-shirt shop at the mall to the high seas.

In The Dutra Group v. Batterton, Alito writes for the court that a plaintiff may not recover punitive damages on a claim of unseaworthiness.

The case arises from an accident in which a hatch on a vessel exploded and seriously injured the hand of Christopher Bratton, a deckhand covered by the Jones Act of 1920.

Alito gives a brief history of legal claims protecting seamen, including “maintenance and cure” (which as his written opinion points out goes back to laws promulgated by Eleanor of Aquitaine in 1160) and “unseaworthiness,” which was meant to give sailors under contract to sail on a ship the right to collect their pay even when they refused to board what they discovered to be an unsafe vessel.

As with his discussion of the Yeti last week in his decision in Gamble v. United States, Alito again sprinkles a lively element into his bench announcement.

Think of the “old salt who put his mark to go out to sea on the S.S. Rusty Bucket,” Alito says. “When the sailor sobered up” he saw that this ship was “not very likely to make it to its destination.” Under a seaworthiness claim, that sailor could still collect his wages.

Alito skips ahead a bit and refers to two cases upon which Batterton relies to establish that punitive damages were traditionally available for breach of the duty of seaworthiness.

But upon close inspection, those cases—The Rolph, from 1923, and The Noddleburn, from 1886—do not support the respondent’s argument, Alito says.

The U.S. Court of Appeals for the 9th Circuit is reversed and the case is remanded. Ginsburg has a dissent, joined by Breyer and Sotomayor.

With that, there is an abrupt bang of the gavel by Marshal Pamela Talkin, who announces Wednesday is the next day of departure for the S.S. SCOTUS.

The post A “view” from the courtroom: From the T-shirt shop to the high seas appeared first on SCOTUSblog.

SCOTUSblog

Opinion analysis: Vagueness doctrine as a shield for criminal defendants

by Leave a Comment

Opinion analysis: Vagueness doctrine as a shield for criminal defendants

Today, as expected, the Supreme Court invalidated 18 U.S.C. § 924(c)(3)(B). In United States v. Davis, the court declared that the categorical approach is dead, and with it Section 924(c)(3)(B). Justice Neil Gorsuch wrote the opinion for a 5-4 majority (joined by the four more liberal justices), and Justice Brett Kavanaugh wrote the dissent.

This case involved the constitutionality of a federal criminal statute — Section 924(c). Section 924(c) makes it a crime to use a firearm during or in relation to a crime of violence, and Section 924(c)(3)(B) (now defunct) defined a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In Sessions v. Dimaya, the Supreme Court held that the identical language was unconstitutionally vague when it appeared in Section 16(b), the general federal definition of a crime of violence. Today in Davis, the court said what is good for the goose is good for the gander: Section 924(c)(3)(B) is unconstitutionally vague as well.

In Davis, the federal government had agreed that Section 924(c)(3)(B), as currently interpreted, is unconstitutionally vague. Courts interpret Section 924(c) using the so-called categorical approach, which requires courts to assess whether the “typical version” of the defendant’s offense, defined by its elements, involves a substantial risk of force.

The government had urged the Supreme Court to kill the categorical approach in order to save Section 924(c). In its place, the government would have had courts assess whether the defendant’s actual conduct involved a substantial risk of force. Gorsuch’s majority opinion begins by conceding that a statute requiring an inquiry into the defendant’s actual conduct would not be unconstitutionally vague.

But, the majority continues, Section 924(c) is not that statute. Rather, after engaging in a straightforward exercise of statutory interpretation, the majority concludes that the text, structure and context of 924(c) all suggest that the statute requires courts to look at a generic offense and assess the risk of that offense, rather than the defendant’s conduct. The “language in the statute before us,” the majority goes on to say, “isn’t the language posited in the dissent’s push poll.” After determining the proper interpretation of Section 924(c), there was not much left for the majority to decide, because the court had already found that interpretation to be unconstitutionally vague in Dimaya.

Gorsuch’s majority opinion contains an interesting passage on the relationship between the doctrine of constitutional avoidance and the rule of lenity, which requires ambiguous criminal laws to be read in a defendant’s favor — an issue that he had raised at oral argument. The government had urged the court to invoke the canon of constitutional avoidance and interpret Section 924(c) in a way that would make it constitutional. The majority opinion primarily rejects the application of the canon of constitutional avoidance because the (much) better reading of the statute is that it requires the categorical approach.

But Gorsuch’s majority opinion suggests that the canon of constitutional avoidance is inapplicable for another reason as well. The opinion reasons:

[N]o one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it… Employing the avoidance canon to expand a criminal statute’s scope would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests.

The majority opinion thus ensures that the canon of constitutional avoidance can function as a sword for criminal defendants. But it also declares that the vagueness doctrine operates as a shield to protect criminal defendants from attempts by the government to wield the constitutional-avoidance canon against them.

The opinion in Davis underscores an important jurisprudential difference in criminal cases between the two most recent nominees to the Supreme Court, Kavanaugh and Gorsuch. The tone of the majority opinion — and its concern about judges’ broadening already expansive criminal statutes — is very different from the tone of Kavanaugh’s dissent. The dissent opens with the claim that “crime and firearms form a dangerous mix,” and it then proceeds to discuss various statistics about violent crime. Against this backdrop, the dissent finds ways to interpret Section 924(c) that would save the statute, perhaps to rescue us from that “dangerous mix” of “crime and firearms.”

As I wrote in my argument analysis, Section 924(c) may be the last Johnson domino to fall — that is, the last criminal statute the Supreme Court invalidates on the basis of the court’s opinion in Johnson v. United States, which invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague.

Johnson was a significant opinion, and so is Davis. But the reach of Johnson — and of Davis — will be dictated by the procedures that judges use to implement those decisions. For example, courts are addressing whether a defendant may be resentenced if the court that sentenced the defendant did not specifically identify which definition of “crime of violence” the court relied on — an invalid one, or one of the surviving ones. Another question that has divided the courts is whether a defendant who can be resentenced in light of Johnson (and now Davis) may rely on the Supreme Court’s subsequent decisions that interpret the scope of the other, still valid definitions of the phrase.

Those procedural questions will determine the reach of Davis and Johnson. Whether the Supreme Court will take up those questions, in addition to the flashier issues about whether particular provisions are unconstitutionally vague, remains to be seen.

The post Opinion analysis: Vagueness doctrine as a shield for criminal defendants appeared first on SCOTUSblog.

SCOTUSblog

Opinion analysis: Court overrules takings precedent, allowing more suits in federal court

by Leave a Comment

Opinion analysis: Court overrules takings precedent, allowing more suits in federal court

In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent, Williamson County Regional Planning Commission v. Hamilton Bank, triggering a sharp dissent and another debate among the justices about the meaning of stare decisis. The majority opinion also rests on a reading of the takings clause—that a constitutional violation occurs at the moment property is “taken,” even if compensation is paid later—that may have consequences beyond this case.

The takings clause of the federal Constitution provides: “nor shall private property be taken for public use, without just compensation.” This takings case arose from a dispute between petitioner Rose Mary Knick and the township of Scott, Pennsylvania. Knick has a small graveyard on her property, and the township attempted to enforce against her an ordinance requiring such properties to be open to the public during daytime hours. Knick alleged an unconstitutional taking, but a federal court dismissed her suit because she had not first sought compensation in state court.

That brings us to Williamson County. The court held there that the plaintiff could not bring a takings claim in federal court until the plaintiff had pursued an inverse-condemnation action—that is, a lawsuit seeking compensation for the alleged taking—in state court. The Williamson County court drew upon two principles from prior case law: first, that “because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied.” Second, the court invoked a line of cases, starting with Cherokee Nation v. Southern Kansas Railway Co. in 1890, for the proposition that governments need not pay compensation at the time of the property deprivation as long as, at that time, they make available a “reasonable, certain, and adequate” mechanism for recovering such compensation after the fact.

The Williamson County decision has generated substantial criticism, due primarily to its effects on local takings plaintiffs. For one, Williamson County’s acceptance of inverse-condemnation suits in state courts as a “reasonable, certain, and adequate” recovery mechanism, and the consequence that local takings plaintiffs must proceed first in state court, means that takings plaintiffs are differently situated from other constitutional plaintiffs, who can go straight to federal court. (Defenders of Williamson County argue this is because the takings clause is different from other constitutional rights—more on that shortly.) Perhaps more strikingly, application of the full faith and credit statute, as the court explained in San Remo Hotel v. City and County of San Francisco,  often means that local takings plaintiffs are barred from federal court altogether, a consequence that Williamson County did not foreshadow or perhaps even foresee.

The majority opinion in Knick, written by Chief Justice John Roberts on behalf of himself and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, overrules Williamson County. The majority concludes that Williamson County’s “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs” and “conflicts with the rest of our takings jurisprudence.” In reaching this conclusion, the Supreme Court does not rely on any of the narrow rationales described in my earlier posts about the case—including the U.S. solicitor general’s proposed interpretations of Sections 1983 and 1331, and Knick’s supplemental theory based on whether and when the government admits a taking has occurred. Rather, the majority rejects the proposition that the solicitor general (echoed now by the dissent) described as uncontested and over a century-old: that a taking does not occur at the time of the property deprivation so long as an adequate mechanism for compensation is available. Instead, the rule the court announces is that  “a government violates the Takings Clause when it takes property without compensation, and … a property owner may bring a Fifth Amendment claim under § 1983 at that time.”

The majority supports this rule in several ways. First, it briefly discusses the text of the takings clause: That text does not, the majority notes, state “Nor shall private property be taken for public use, without an available procedure that will result in compensation.” The majority roots its interpretation in precedent, specifically Jacobs v. United States and First English Evangelical Lutheran Church v. County of Los Angeles, both of which indicate that the right of compensation arises at the time of the taking. The majority also explains its point by analogy: “A bank robber might give the loot back, but he still robbed the bank.” In the same vein, subsequent payments of compensation remedy takings; such remedies do not mean there was no violation. The court also asserts that its holding is basically consistent with the Cherokee line of cases, most of which involved claims for injunctive relief. And it concludes that overruling Williamson County is compatible with principles of stare decisis, the rule that courts should generally adhere to precedent, given how wrong and unworkable the rule has proven to be and the absence of reliance on it. Finally, the majority offers some assurance in response to concerns expressed by the United States. The majority states that, even though its ruling deems many government actions unconstitutional even if compensation is later paid, it will not lead courts to bar those actions: “As long as just compensation remedies are available—as they have been for nearly 150 years—injunctive relief will be foreclosed.” (Elsewhere in the opinion the court states the assurance this way: “Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate.”)

In a brief concurrence, Thomas underscores his rejection of what he terms the “‘sue me’ approach to the Takings Clause”—the approach, advocated by the township and the United States but rejected by the majority, that deems there to be no constitutional violation as long as compensation is later paid. Critiquing concerns raised by the United States, Thomas writes that if the payment of compensation at the time of a taking “makes some regulatory programs ‘unworkable in practice,’… so be it—our role is to enforce the Takings Clause as written.” Perhaps most intriguingly, Thomas may be understood to cast some uncertainty on the majority’s indication that regulatory programs will not face new obstacles. He echoes the majority’s explanation that the United States’ concerns about injunctions “may be misplaced.” But he goes on to write: “I do not understand the Court’s opinion to foreclose the application of ordinary remedial principles to takings claims and related common-law tort claims, such as trespass.”

Justice Elena Kagan’s sharply worded dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, takes the court to task for “smash[ing] a hundred-plus years of legal rulings to smithereens.” Kagan contests the notion that takings claims are treated worse than others under Williamson County (and rejects the bank robber analogy), noting that “[t]he distinctive aspects of litigating a takings claim merely reflect the distinctive aspects of the constitutional right,” which is not violated until “(1) the government takes property, and (2) it fails to pay just compensation.” She chides the majority for its textual analysis, noting that the spare text of the Fifth Amendment “no more states the majority’s rule than it does Williamson County’s.” The dissent emphasizes Williamson County’s long precedential pedigree, giving the majority “[p]oints for creativity,” but stating that the majority’s construction of the Cherokee line of cases is “just not what the decisions say” (and was not argued by Knick or her amici). “Maybe,” the dissent writes, “the majority should take the hint: When a theory requires declaring precedent after precedent after precedent wrong, that’s a sign the theory itself may be wrong.”

The dissenters point to three negative consequences of the majority’s ruling. First, “it will inevitably turn even well-meaning government officials into lawbreakers.” Now that a constitutional violation is complete at the time of deprivation, even if the government will later pay compensation, ordinary land-use regulators become “constitutional malefactors.” None of the opinions fully flesh out the possible consequences of that distinction—but local, state and federal officials (who take oaths to uphold the Constitution) will likely be reflecting on the possibility of collateral consequences. Second, the dissent asserts that federal courts will now be flooded with claims that depend on land-use and state-law intricacies, and that the majority’s ruling “betrays judicial federalism.” Finally, and perhaps most vigorously, the dissent decries the majority’s treatment of stare decisis. “[T]he entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance,” the dissent writes, and “it is hard to overstate the value, in a country like ours, of stability in the law.” Referencing the court’s citation to last term’s controversial ruling in Janus v. American Federation of State, County, and Municipal Employees the dissent states, “If that is the way the majority means to proceed—relying on one subversion of stare decisis to support another—we may as well not have principles about precedents at all.”

To sum it up: The Knick opinion is a win for those who those who lamented the difficulty local takings plaintiffs faced in accessing federal courts. Local takings plaintiffs may now go directly to federal court, without first proceeding in state court. The theory the Supreme Court relies upon—that a constitutional violation is complete at the time property is taken, even if mechanisms are available to seek compensation—may have other implications for local, state and federal regulators, though the majority emphasizes that regulatory programs are unlikely to be invalidated or enjoined on the basis of today’s ruling. Finally, the opinion provides another round of debate within the court about the meaning of stare decisis, now and going forward.

The post Opinion analysis: Court overrules takings precedent, allowing more suits in federal court appeared first on SCOTUSblog.

SCOTUSblog

No legal advice is being given here, no attorney-client or confidential relationship can be created by using this site. Court.com is not an attorney referral service. All information is deemed reliable, but is not guaranteed. Opinions are just that, opinion.