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Oyez! Oyez! Oyez! The 2016 First Monday In October Report Is Here!

hoAt the opening of a term of the United States Supreme Court, the Court’s Marshal, resplendent in full dress uniform, enters the courtroom and calls out, as the Justices file in from chambers and all present rise in respect:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.

“Oyez” is pronounced something like “Oh yay!” with a little extra something kinda-French kinda-Latin just hinted at the end, but this isn’t the Kool-Aid man bursting through the wall to offer sweet, cool refreshment — it’s a solemn ceremony.

For it’s a solemn business, and a tricky one particularly this Term. The Court opens with a different Dean than it did last year, and it’s clear enough that Congress’ failure to replace the deceased and honored Antonin Scalia is having a significant effect. The total docket is currently only 40 cases, less than half of last year’s docket and maybe two-thirds of what the docket was when the last Session opened. Not even half of those cases have arguments scheduled, and only 18 arguments are on calendar over the next six weeks.

It wouldn’t surprise me at all if petitions for certiorari were being slow-tracked specifically until the Court has an idea of when it will get a ninth and in many cases tie-breaking vote back on its bench.1 So this year of all years, expect the total docket to have at least doubled by the end of the Term in late June of 2017. Simply put, the light docket is substantial evidence that the lack of a ninth Justice has demonstrably diminished the Court’s ability to conduct its business, a state of affairs that is simply unfair to everyone, especially the litigants who need their cases resolved, as well as to the countless thousands of other litigants who need definitive statements of legal rules implicated by the matters on the High Court’s calendar.

Slightly complicating things also is the substantial likelihood that many of the names of the litigants are going to change between the briefing of their cases and the announcement of the decisions. The reason for that is that a change in Presidential Administration will take place in January of 2017, so a large number of the Cabinet-level officials who are named as parties, in their official capacities, will change. Of the cases I list below, the “Lynch” identified in two of them is Loretta Lynch, the Attorney General of the United States. She will in all likelihood not be the Attorney General come June of 2017, regardless of what the voters decide on November 8, 2016.

As is my tradition, I’ve reviewed the docket (such as it is) and here, in the somewhat arbitrary order of the Court’s case numbering system, are eight cases that I think will be interesting for the readership here to follow.


Murr v. Wisconsin, No. 15-214:

Anyone can appreciate the aesthetic and recreational value of lakefront property. Near Troy (just across the border from Minnesota, the exurbs of the Twin Cities are only a few miles away), William Murr purchased a lot, “Lot F,” in 1960, and built a vacation house for his family’s use there. Three years later, he bought the vacant lakefront lot next door, “Lot E,” which he held onto for investment purposes. He bought Lot F through his company and Lot E personally. In 1994 and 1995, title to the parcels was transferred jointly to Mr. Murr’s six now-adult children. Two of them were bought out, so now the lots were held by four siblings, and they shared use of the house for their families’ recreational purposes. Eventually, they decided that the house needed significant structural renovations, including elevating it to prevent flood damage; they decided to sell Lot E, which had remained undeveloped all these years, to fund the repairs of the shared vacation house on Lot F, they also got a lot of help from Residenza.com.au with the tiling, they also decided to contact www.yourwindowexpert.com for window replacements.

They were told by St. Croix County officials that they could not do so; they had to sell both Lot E and Lot F together; by operation of Wisconsin law (particularly a minimum lot-size ordinance passed in the 1970’s), the parcels had become effectively unified and can only be alienated together. So now the Supreme Court must ask: is this a taking of the property? If it is, the Murr siblings may sell Lot E separately, as they intended; if not, then presumably the lot-size restriction force them to find some other way to fund the repairs on the structure.

Oral argument has not yet been scheduled.


The Bolivaran Republic of Venezuela v. Helmerich & Payne International, No. 15-423:

Helmerich & Payne International Drilling Co. had been drilling for oil in Venezuela since 1954, creating a Venezuelan corporation which owned its assets in Venezuela, and operated its business there. All oil drilling in Venezuela is done under authority of Petróleos de Venezuela, S.A., a corporation wholly owned by the Bolivaran Republic of Venezuela.2 Helmerich & Payne allowed its contracts with Venezuela to expire in 2009, idling and then disassembling its rigs. Venezuela then nationalized the then-idle oil rigs and Petróleos began re-assembling them, which triggered an obligation under Venezuelan law for the government to pay Helmerich & Payne the “fair value” of the seized assets.

Helmerich & Payne filed an independent action in U.S. courts to establish a counter-valuation under U.S. law. I can think of two really good reasons why Helmerich & Payne would do this – one, Venezuelan law would yield a substantially lower valuation than U.S. law, and two, Venezuela was unlikely to actually pay a judgment rendered only in its own courts.  The company claims that the Foreign Sovereign Immunities Act of 1976 permit suits in U.S. courts against foreign governments when those governments seize property “in violation of international law,” and the seizure occurs “in connection with a commercial activity carried on in the United States.” Venezuela says, in response, the subsidiary entity that Helmerich & Payne used was a Venezuelan corporation, which makes it a national of Venezuela, and its sole remedy is in the Venezuelan courts.

This is only of interest to the general public because of recent Congressional activity authorizing private suits against the Kingdom of Saudi Arabia for its purported involvement in the 9/11/01 attacks on New York and Washington: Bolivaran Republic of Venezuela could potentially serve as a platform for the Supreme Court to announce a doctrine concerning suits against sovereign nations, which is a tricky area both diplomatically and judicially.

Oral argument is scheduled for November 2, 2016.


Trinity Lutheran Church of Columbia v. Pauley, No. 15-577:

The state of Missouri subsidizes the purchase of playground surfaces made from recycled rubber (like from old dead tires), but playgrounds owned by churches and other religious organizations are not eligible for the subsidy. Missouri effectively admits that it has no Federal Establishment Clause problems in this case under currently effective Establishment Clause jurisprudence. Instead, it relies upon the plain text of the state constitution’s “no aid” clause.3

So, if Missouri has no valid Establishment Clause concern, can it nevertheless exclude churches like Trinity from otherwise neutral and secular aid programs? The Church says that this interpretation of the Missouri Constitution violates the Federal Free Exercise Clause, the Due Process Clause, and the Equal Protections Clause. The State says that failing to subsidize a religious school’s purchase of recycled rubber playground surfaces does nothing to prohibit the school from engaging in religious activity and there is a compelling reason for having a “no aid” clause in the first place: avoiding religious bigotry in the form of favoring one religion over the other.

It’s worth noting that most states have laws, most of them embedded in their states’ Constitutions, similar to Missouri’s.

Oral argument has not yet been scheduled.


Moore v. Texas, No. 15-797:

As a teenager, Bobby James Moore scored a 77, a 57, and a 78 on three different IQ tests but was never diagnosed with an intellectual disability.4 In 1980, then twenty years old, Moore and two associates botched a robbery, and an employee was shot and killed. Moore was convicted as the shooter, and sentenced to death. On habeas corpus review, he proved ineffective assistance of counsel and was granted a new hearing on sentencing, but the new hearing resulted, again, in a sentence of death.

On habeas corpus review of that second sentence of death, he proved to the trial court that he was intellectually disabled and therefore not eligible for the death penalty after all. See Atkins v. Virginia, 536 U.S. 304 (2002). But on appeal, a the Texas Court of Criminal Appeals applied a variety of standards from a number of different medical and academic entities, explicitly disregarded the standards found within the DSM-V, and found that under a majority of those standards he was mentally competent and reversed the Atkins finding, reinstating the death penalty.

Before the Supreme Court, Moore argues that DSM-V is the “state of the art” and the most authoritative text available to determine his competency, while Texas argues that the DSM-V is merely the publication of one, albeit prestigious, of many associations of scientists, doctors, and mental health care providers, not all of whom agree with one another about what constitutes an intellectual disability. The Supreme Court must answer, therefore, whether excluding an analysis under DSM-V of mental competence effectively inflicts cruel and unusual punishment under the Eighth Amendment.

Oral argument has not yet been scheduled.


Lynch v. Morales-Santana, No. 15-1191:

Luis Ramon Morales-Santana was born in the Dominican Republic in 1962. His father was U.S. citizen, but also had not spent more than five years in the United States after his fourteenth birthday. His mother was a Dominican national. Morales-Santana’s parents married when respondent was eight years old and this legitimated Morales-Santana by Dominican law. Five years later, the then thirteen-year old was admitted to the U.S. as a lawful permanent resident (in 1975) when he moved here with his father; his father died in 1976.

In 1995, he was convicted of a number of rather awful crimes (burglary, robbery, and attempted murder) and thereafter the government initiated deportation proceedings. By 2000 he was found to be subject to removal as an alien adjudged to be violent felon. At that point, he claimed outright citizenship, which the immigration court denied on the theory that his father had not been in the United States continuously for the requisite period of time, so by operation of 8 U.S.C. §§ 1401 & 1409, he had never been a U.S. citizen.

Morales-Santana (well, his lawyers) then took a close look at the naturalization law and noticed that under 8 U.S.C. § 1409 had his parents been married, or if it had been his mother rather than his father who was the U.S. citizen, the reside-within-United-States requirement would have been relaxed and Morales-Santana would be able to claim lawful citizenship. So they challenged the law as discriminating on the basis of gender and seek to have it invalidated for violating the Equal Protections Clause. Yes, invalidating that law would have the effect of making Morales-Santana a citizen, and therefore not subject to removal.

Oral argument is scheduled for November 9, 2016.


Nelson v. Colorado, No. 15-1256:

Shannon Nelson was convicted in 2006 of five sexual assault charges against her own children. In total, Nelson was ordered (along with imprisonment and other punishment) to pay $8,192.50 in restitution, penalties, costs, and fees authorized by state law. She appealed her conviction, won, and was granted a re-trial. While all of this was pending, the Colorado Department of Corrections deducted a total of $702.10 from her “prisoner’s account,” for restitution and various victim’s funds. On re-trial, she was acquitted of all charges.

Her co-plaintiff Louis Alonzo has a similar story, with the underlying charge being one of allegedly patronizing a child prostitute, with his conviction vacated on appeal and the prosecutor thereafter electing to not re-file charges. The court refused to refund him $757.75 of a total of about two thousand dollars in penalties, costs, and fees associated with his initial conviction.

Both were instructed that according to state law, they had to file a separate action proving their innocence by “clear and convincing evidence,” a in intermediate standard of proof well above that of the “preponderance of the evidence” standard that applies in civil actions, but less than the “beyond a reasonable doubt” standard that applies in criminal cases. In this case, they ask the Supreme Court to say that this standard, apparently unique to Colorado law, is a violation of their federal due process rights by depriving them of their property.

Oral argument has not yet been scheduled.


Lee v. Tam, No. 15-1293:

Simon Shiao Tam is the leader and principal artist of a politically active dance-rock band called “The Slants.”5 Tam filed an application for trademark protection, claiming to own the mark THE SLANTS and the U.S. Patent and Trademark Office denied his application, citing 15 U.S.C. § 1052(a), which denies the PTO the ability to register marks “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam brings before the Supreme Court a First Amendment freedom of speech challenge to § 1052(a), at least as applied in this case.

Of particular interest is an amicus brief filed by Pro-Football, Inc., an entity that is a member of the National Football League, doing business under the name “The Washington Redskins,” claiming to have a better case for analysis of this portion of the Lanham Act (the formal name for the trademark law) than Mr. Tam.

Oral argument has not yet been scheduled.


Lynch v. Dimaya, No. 15-1498:

James Garcia Dimaya is a Philippine national, who obtained a permanent resident visa in 1992. In 2007 and again in 2009, he was convicted of felony first-degree burglary in violation of California Penal Code § 459. The federal government began deportation proceedings against him in 2010, alleging that he had committed “crimes of violence” as defined by 18 USC § 16(b). The statutory definition of that term includes any felony “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.”

Dimaya challenges the wording of this statute as void for vagueness – meaning it cannot be reasonably known in advance what kind of crime is contemplated by this wording. For instance, most burglaries, including the ones Dimaya was convicted of, didn’t involve violence because the residents of the homes Dimaya broke into weren’t home.6 But if the resident is home, there’s a risk of violence. So is breaking and entering, on its own, a crime of violence under 18 USC § 16(b), and could a reasonable person know in advance that burglary, as defined by the California Penal Code, falls within that description?

Oral argument has not yet been scheduled.


Also worth a mention is the case of Lewis v. Clarke, No. 15-1500, not so much because it’s all that interesting to non-specialists whether tribal immunity bars damages actions against native American tribe members who are defendants as individuals in tort actions for torts purportedly committed while engaged in the course and scope of employment of tribal businesses (like the casinos or gas stations one sees on tribal lands so often). It’s a weighty enough issue, I suppose, though not one I expect is of particularly broad interest unless you litigate personal injury actions in an area located very near an Indian reservation. I mention the case only because I find the the name kind of amusing.

  1. For those of you keeping track, Merrick Garland was nominated by President Obama to become the 113th person to serve on the Court 201 days ago today. []
  2. I absolutely love that this is the formal name of that government. []
  3. “[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion….” Missouri Constitution, Art. I, § 7. []
  4. Bless his heart. []
  5. Apparently, they’re currently looking for a drummer. []
  6. It’s also not entirely clear to me that Dimaya unlawfully entered the premises of his victims – there are hints in the petition that he gained entry lawfully, but entered with intent to steal, which still meets the California definition of “burglary.” []

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Pseudonymous. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Lives in Southern California (for now). Former Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. Likes: respectful and intelligent dialogue, good wine, the Green Bay Packers, and long romantic walks on the beach. Dislikes: mass-produced barley pop, magical thinking, ketchup, and insincere people. If you follow him on Twitter at @burtlikko you may be disappointed.

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78 thoughts on “Oyez! Oyez! Oyez! The 2016 First Monday In October Report Is Here!

  1. Murr v. Wisconsin, No. 15-214: Is this a taking? Of course it is. Any restriction, is by definition a taking, if you could do that thing you wanted to prior to said restriction coming into place.. Unless there’s some legal chicanery regarding how the land was purchased, personally & via coorp, that existed when the last was purchased.


    • I want you to be right, ; I think what St. Croix County did here is some grade-A bullshit. The standard for a taking is pretty high, though: the Murrs have to be denied any reasonable use of the land and they can pretty obviously clear it and use it as part of their vacation home’s yard.


      • The standard is defined by the gov’t (how curious!). And the Murrs HAVE been denied a reasonable use-selling a separate lot-which was joined to the other lot by gov’t action. But I tend to be pretty rabid when it comes to “takings”.


        • Were the lots joined by “government action”, or where they joined as one at the request of the owner(s)?

          I doubt that the government went sua sponte joining lots. So probably a lot hinges on how the lots came to be joined.

          If it had been a single lot for ever, before the new regulations came in place, I doubt anybody would argue the big lot could be segregated. When the two lots became one, as long as it was before the new regulations took place shouldn’t make any difference.

          And if the Murrs legally joined the two lots into one after the new regulations were in place they have no leg to stand.

          The only thing I can imagine is that actually the lots have never been joined legally.


          • They were never legally joined. The regulation in question is one communities often use to stymie high density development in places where such development is not desired (like lakefront property).


          • I’ll agree with Jaybird below. The fact that this case is on the Supreme Court’s docket is a sign of the apocalypse.

            All one has to do is look at the property tax bills for these properties. Are there one or two? If there are two the state loses. If there is one, was the property owner notified as to the change, and given a chance to respond?


      • Would you feel the same if someone purchased a single lot the size of Lot E + Lot F before the minimum lot size laws went into effect and then tried to sell off part of the lot equal in size to Lot F off. Would you think that is also a taking? I guess the question is, which part do you dislike, the lot size regulation or the fact that the two lots were combined into one?


        • I think it’s arguable that if any other party on the planet had owned Lot E that they’d be able to sell it.

          That is, they wouldn’t be told “sorry, you have to wait for those other bastards to sell Lot F and they’ll have to sell it to the guy who is buying it as a unit with Lot E”.

          But since these bastards happen to also own Lot E, they’re being told that they have to sell them together.

          Which is… odd.


          • Correct, they had the small lot size grandfathered in. But there are lots of situations where changing characteristics of a property end that grandfathering. For example, the residence I lived in while attending college was not ADA compliant. However, if renovations were made above X% of the property value over Y years, then it would have to be (which includes installing an elevator). The question is, “Does putting two adjoining parcels under one owner count as a trigger to end grandfathering?” Unless it is part of the minimum lot size regulation, I would lean to no.


            • “If you were anyone else, we’d let you sell this, but since you’re you, you can’t” strikes me as something that ought to have been resolved far below SCotUS but this is the world we live in today.


                • If there aren’t any examples of this in the past, though, we’re stuck saying “hey, we understand that parcels A, B, C, and D have been bought and sold a dozen times in the last 20 years, but that’s because they had four different owners! If they were the same seller, we wouldn’t have allowed them either!” and sounding really, really sincere.

                  Is the precedent being set here? Because, if it is, that makes this an even dumber argument.

                  Was the original Lot E buyer from the wrong socio-economic group or something?


            • I think what really matters is less ownership and more usage. If some manner of development had extended from lot F to lot E, then the lots would be conjoined by usage. But if they were kept largely distinct, then this strikes me as being too specific to an individual party.


              • I agree 100% with this. If they built a structure that was on both sides of the property line, the municipality would clearly have a case for treating it as one parcel. If they built a fence around both parcels, with nothing dividing them, then it’s a bit sketchier, but there’s still a case for treating it as one. If there was a fence between the two parcels and they tore it down, it would be even less clear and I would lean against combining the parcels. If they left both parcels as is, then the case for combining them is much weaker and I would be opposed to it.


        • I dislike that the two lots were deemed effectively unified, without the owners so much as being given notice of this until they tried to alienate one. I also dislike that the property was not grandfathered in — when the property was purchased these restrictions weren’t there. If I bought property on that lake today, I’d know that there was a minimum lot size restriction and bake that into what I was willing to pay for it. But that wasn’t part of the deal with Mr. Murr first bought the land way back in the 1960’s.


    • “Any restriction, is by definition a taking, ”

      Under that criteria all regulations are takings.

      It might be that this is a taking. It very likely is, if I had bought the second lot, no doubt I could sell it, minimum size notwithstanding. But that doesn’t mean I can do anything on my land.


      • “Under that criteria all regulations are takings.”

        Yes, that’s my view. I don’t see any other reasonable interpretation.

        “But that doesn’t mean I can do anything on my land.” Actually, it does, unless it’s covered under criminal law.


        • So you can put a garbage dump in it?

          But if one single molecule of leach escapes your property boundaries in any direction, I can sue you.

          And after a couple of years, litigation, you are found guilty of your leach traspassing my property

          And then you declare bankruptcy and the Gods of Libertarianism are satisfied, but my property next door is still polluted

          Did I get it right?


          • “Did I get it right?” No.

            Let’s assume (for the sake of argument) that I own land somewhere and there are no regulations on how that land can be used. Now, if the gov’t imposes some regulation prohibiting garbage dumps, then they have reduced the value of my land and I am due compensation. No doubt that compensation would be small if the land could be used for multiple uses, but none the less, the value has been reduced. That’s a taking.

            “Alternatively, we can regulate where and how garbage dumps can be placed”. Yes “we” can, and that regulation is a taking since you are restricting some kind of use to land that was not restricted prior to the regulation. That’s a taking. Regardless of whether or not said regulation is “good” or achieves some positive net social improvement, it’s still a taking.


            • Except @j_a has a solid point. If your usage imposes an externality upon your neighbors, ideally they could sue and try to force you to mitigate the externality, but you could then declare bankruptcy, walk away, and everyone is still stuck dealing with the externality.

              Hence regulation, or a vast reworking of bankruptcy laws and the obligations imposed upon a landowner.

              Now, we could craft land use regulations such that a particular use isn’t banned outright, but the permits to put the land to that use are crafted to impose costs that would prevent externalities from the word go (i.e. if Damon wanted a dump, he’d have to install underground barriers to prevent leaching, and fencing to block the view and secure the yard, etc.). So if he wants a dump, that’s fine, but he’ll have to spend $10M to prepare the site to be a dump, which is way more than he’ll ever make storing trash.


            • Was building the interstate highway system a taking? Lots of towns that were along the prior highway system had their values go down immensely as they were no longer waypoints for travelers. Should they be able to sue the government and prevent the construction of highways that miss their town?


              • “Was building the interstate highway system a taking?” Condemning the land it was to be built on was. Having the highway be different from the old road isn’t. But should the gov’t even be in the business of building roads?


                • Are you planning to get out of your house ever?

                  That means you are looking forward to using government built streets.

                  Or would you rather pay a toll every time you step out of your property?


                • I didn’t say anything about eminent domain, since that’s unambiguously a taking, which is why there’s compensation. But you said the value is reduced, therefore it’s a taking. So if a new major highway is built miles away from your gas station, your property value will go way down. By your own criteria, that’s a taking.


                  • “But you said the value is reduced, therefore it’s a taking. So if a new major highway is built miles away from your gas station, your property value will go way down. By your own criteria, that’s a taking.”

                    Yes but I was talking about regulation specifically. Now, if you want to include all gov’t action, hey, I’m game and I’ll agree.


            • I’m still back on the more basic question of land claims being some sort of absolute right, non-negotiable and pre-existant.

              So if you claim a piece of land, that is your feudal fiefdom, untouchable by anyone.
              Of course, society has no voice, no agency, no standing.

              Society must acknowledge the claim as legitimate and affirmatively adjudicate and defend the claim at no cost to the owner.

              Society is not allowed to negotiate the terms of this engagement, not allowed to place terms and conditions upon their actions on behalf of the owner, but must merely acquiesce and provide these valuable services promptly.

              Because, reasons.


              • I don’t think the argument needs to be phrased in terms of an “absolute right, non-negotiable and pre-existant” to get off the ground. All it needs is an accurate description: that gummint policy cost those people some money by changing the otherwise existing expectation of being able to sell it.


                • But there was never a moment where there was property, and then came the government, and all went down the drain. It’s quite the opposite. All property claims derive initially from government action. The government was before you, and was never outside the equation.

                  For instance, all the land in Texas belonged to the King of Spain, who granted or gifted some of it to certain individuals, in exchange for payment, services, or other obligations, and kept the rest for himself. Your land was never yours ab initio, it was the King’s, and his successors, the United Mexican States, and the State of Texas, and granted by them to someone some time ago in exchange for something, and under a regime than reserved for the King -and his successors- the ability to impose liens on your property, such as not using it as a garbage dump.


                  • All property claims derive initially from government action. The government was before you, and was never outside the equation.

                    Which is why I said that the argument doesn’t need to be phrased in terms of a prior right to property. It can, and in my view, in fact is, phrased in terms of existing government law, regarding both private ownership of land as well as government takings. So even on your premise (that without government there would be no private ownership of land) the challenge makes sense: at T1 lot F was purchased by the lot E owner with the expectation that it could be individually sold; at T2 a restriction was imposed on lot F denying lot E owners the right to sell it.

                    And that seems to me to be the case irrespective of any particular theory of the origins and justification of private property ownership and transfer.

                    Adding: which is to say, the way I’m understanding the argument you and Chip are making, the issue isn’t so much government having its cake as much as its entitled to eat it too.


                    • I’m not pushing back against the argument in the SCOTUS case, so much as Damon’s argument about property rights, which takes a rather absolutist stance.

                      Once we view property rights as a utilitarian creation designed to facilitate other ends, rather than an end in itself, then the interplay between society and the landholder becomes more nuanced, and subject to varying negotiated boundary lines.


                        • In Damon’s defense, I think he’s merely suggesting (hang with me here….) that the burden of proof ought to be on gummint action imposing a taking rather than the other way around. Which seems reasonable to me. I mean, if the taking, or even “taking”, is legitimate then it should be easily defended on it’s own terms.

                          {{Personally, being a pragmatically oriented utilitarian deontologist (in that order, maybe) I’m not opposed to these sorts of things, tho I do think the burden STILL rests on gummint to justify violating individual’s rights without redress.}}


                          • I can’t go there

                            Not that I want individual rights to be violated without redress, but I cannot go to a place where individual rights are in principle unlimited, the individual has no duties towards the commonwealth, and the government must justify (before who?) every individual action before it can be taken, because everything is a limitation on some unlimited individual right or other.

                            We went over this seme issue some weeks ago. Individual rights vs individual duties towards the commonwealth.

                            This specific land regulation is likely invalid, because there are rights that have already been a stablishd by usage and law, including irretroactivity of the laws.

                            But land use regulation -and land use changes- is something that does not constitute a taking needing to be compensated by the community (the government does not have money, its everybody’s money), unless Damon is also happy to return to the community any appreciation in value of the land he might own it it’s zoning changes from agricultural to industrial, for instance.

                            Or when the value goes up is not a taking any more?


        • fwiw, this has never been the law and never could be the law. The vast majority of Americans (including the Justices of the Supreme Court) do not accept the idea that the state has to pay for every diminution of value associated with reasonable land use regulation. Denying the state the power to impose reasonable land use regulation would elevate the concept of “property” beyond even what existed under common law.

          As to the case at issue this is the first I’ve heard of it. A few issues come to mind: (a) what is the state law regarding the merger of adjacent parcels that come into common ownership, (b) is there a distinct state law when one of the parcels is below legal size for development, (c) is there a state law that provides economic value to parcels that are below minimum lot size (for example, an open-space easement can be recorded thereon as part of a transferable development rights scheme).

          Historically, compensable takings were physical only. The development of the doctrines around regulatory takings is relatively recent.


    • Hell, no. I don’t even know who’s going to be on the Court to provide a decisive ninth vote in several easily anticipated 4-4 splits. Kazzy would quail at the thought of making picks if he had no idea who the quarterback would be.


      • Actually, on that, is there easy way to determine how the lower court ruled and thus would be the result (but not precedent) in a 4-4 split? Is the name before the ‘vs’ always the people that are appealing the decision that the name after the ‘vs’ won at next level down?


        • The person whose name is listed first is the petitioner, who is asking the court for some kind of reversal. Sometimes the party named after the “v.”, the respondent, also seeks reversal of part of the lower court’s ruling, but usually seeks the the court affirm the decision below.


        • Hypothetical: could SCOTUS make them, supposing the executive brings some sort of action against the Senate for not approving appointments in a timely manner?

          My guess is that SCOTUS could get away with it but would decline to do so.


          • A more intensely political question is difficult to conjure up. Very hard to imagine SCOTUS would ever issuing such an order or any Federal court doing anything with such a suit but dismissing it.

            Doesn’t mean the DoJ wouldn’t file it, on POTUS’ orders, as a political stunt. But that’s all it would ever be.


            • I realized that I didn’t actually know the criteria for determining whether a question is political, so I looked them up. Here they are, for those who (like me) are ignorant of this rather important bit of law.

              The doctrine is rooted in Marbury v Madison, but the current standards are described in Baker v Carr. That case describes a question as political if it meets any of the following conditions:

              (1) The Constitution explicitly assigns to another branch the power to resolve the dispute.
              (2) There are no “judicially discoverable and manageable” standards for resolving the dispute.
              (3) Resolving the dispute would require the Court to express disrespect for another branch of government.
              (4) Resolving the dispute requires that some issue of policy be decided first.
              (5) There is an “unusual need for unquestioning adherence to a political decision already made”.
              (6) Resolving the question would or could result in a split between different branches of the government.

              I don’t really understand (2) or (5), and would appreciate an example or two if there is such to be had. In any case, though, my question runs afoul of at least (3) and plausibly (4). It’s also pretty clear that nobody is ultimately responsible for ensuring that the various branches actually perform their duties (other than voters, and them indirectly). This is interesting; after some thought I don’t think there’s a way to actually make someone responsible without setting one branch over the other two.


        • I don’t see why a Republican Senate would schedule a vote just because there’s a different Democrat in the White House.

          GOP Sen. Jeff Flake is wondering the same thing, but with a reversie conclusion: vote now on Merrick because the nominee will be worse under Hillary. He also calls out GOP gamesmanship, which is pretty cool on his part.


          • I remain convinced the best available choice for Democrats is Sri Srinivasan. From the Republican perspective, Garland is a better choice if only because he’s older and therefore is more likely to turn the seat over that much faster. Garland also hasn’t staked out trailblazing new legal territory the way that, say, Ruth Bader Ginsburg or Sonia Sotomayor did before taking their seats on the Supreme Court.


          • I’ve actually wondered if one of Obama’s last acts won’t be to not pull Garland(*) back off the table(**) after a hypothetical Clinton victory. If he really believes Garland was the right man for the job to carry forward the Obama legacy, it would be just like him to force the lame-duck Congress to fall all over themselves voting for the guy that they had been stonewalling for months. In the most public way possible. After all the rhetoric about “letting the people decide”.

            (*) I refuse to call him by just his given name. Merrick (unqualified) refers to Buffy’s original Watcher, dammit.
            (**) I think I got the right number of negations there


    • Well, they have to give several weeks’ notice as a practical matter, if they want counsel to be prepared for a meaningful oral argument (and of course they do). But I’m looking for the Chief to play a lot of “kick the can” until after the election, when there’ll be a better idea of what Congress is going to do about the empty seat, and when it’s going to do it.


  2. Helmerich & Payne seems somewhat straighforward. If a company creates a foreign subsidiary for assorted reasons (including tax avoidance) it seems like everything associated with being a foreign company, good and ill. In some ways, it reminds me of the businesses that were seeking restitution after Deepwater Horizon. The rules from the Feds were that you would be reimbursed based on the revenue and income you reported on your business taxes. There were a number of businesses that admitted, on TV, that they lied on their taxes and if they only got as little as their tax forms said, they’d be forced to go out of business. My reaction was, “Too bad, so sad.”


  3. Moore v. Texas:

    IQ tests are BS. They don’t really measure anything but the ability to think like the person who wrote the test. There are a lot of different kinds of intelligences. You can’t say whether someone is intelligent or not based on a silly paper test.

    So on, so forth.


    • I think IQ correlates with too many things to not be a useful measuring of something, but not everything. I think here the problem is that lower IQ does not correlate with lack of moral accountability, if anything some studies show a lower IQ tends to increase conscientiousness. Obviously, its his legal team’s responsibility to get this young man off of death-row, but I don’t like the broader implications that someone greater than two standard deviations from the mean in intelligence lacks moral appreciation of murder. For one thing, it makes my sister-in-law’s job placing the intellectually disabled in employment much harder.


      • There are certainly other additional facts than Moore’s low IQ test scores from his early teen years; they are an easy-to-understand facet of what the defense team is calling a previously-undiagnosed intellectual disability. There’s also a pretty heart-wrenching story in his brief about his father beating him and then kicking him out of the house because he was “so stupid,” and the young boy just standing there, crying in pain but not otherwise reacting because (implied) he didn’t really understand what was going on or why his father was so mad at him.


  4. As for The Slants, you’d think that they’d do a better job of understanding that there is a bigger fight at issue here and they are undercutting it.


  5. Re Trinity Lutheran Church of Columbia v. Pauley… There’s a somewhat similar case from Colorado, Douglas County School District v. Taxpayers for Public Education, No. 15-557 waiting for a decision on cert. The school district — third largest in the state, and head-and-shoulders the richest — has been trying for years to find a way around this language in the state constitution:

    Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

    The case has been up to the Colorado Supreme Court a couple of times, which has basically said that there’s no degree of indirection, or alternate justification for payments, that gets around this.


      • The majority opinion by the state appeals court found that plaintiffs lacked standing to sue, so the case should be dismissed. After that, they went on for most of 60 pages to explain that — my one-sentence summary here — the benefit of the voucher system accrued to the students and parents, and that any benefit to religious schools was incidental and immaterial, so the program didn’t violate any of the state’s constitutional and statutory limitations.


        • Did I misunderstand and you are saying that, except for the lack of standing, the court would have ruled in favor of allowing rubber flooring aid (or whatever) in religious schools because it benefits the children’s knees and not the religious organization, or are you saying the opposite, that the court said that the CO constitution is too specific that there is no wiggle room?


          • @j_a
            The first. The state appeals court said plaintiffs had no standing. I was left with the impression that, in the opinion of the appeals court majority that made the ruling, no one could demonstrate a concrete harm necessary for standing. But the court went on to say that even if plaintiffs had had standing, they would lose. That even though public funds ended up in the hands of a church-operated school, the particular program that had done that didn’t violate the language I initially quoted.

            Subsequently reversed by the state supreme court, and now sitting in the cert queue at the SCOTUS.


    • This does provide an amusing rebuttal to all those claims of “if you think taxes are so rotten then what about police, firefighters, sewer and water service, mail service, etc”

      Because when you put “public services are benefits provided by the government” together with a close reading of “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church…”, you end up thinking maybe it’s illegal for churches to receive police protection, firefighter coverage, sewer and water service, mail service, etc…


        • The first argument for a more limited interpretation would be that the language appears in Article IX of the state constitution, titled “Education”. The second argument is that the section forbids payments, not the provision of general public services. Sewer service is a particularly bad example, as churches pay the same fees to be connected as anyone else. But IANAL, just a former legislative analyst who sometimes had to wear a lawyer hat.


      • Although, to flip the flip, you could say that if a church claims tax-exempt status as a religious organization then it’s not paying for those things anyway and so it’s entirely appropriate for it to not receive them.


        • Yes, but, perhaps there is a public benefit to these goods and services being universally available that supersedes any aid-to-religious concern. If the police tolerate crime in a church, that encourages crime elsewhere. A fire in a church might spread to a nearby residence. Filth from a church’s latrine denied access to the public sewer may contaminate the groundwater. And so on.


          • There is also the argument that churches are tax exempt because they provide services that reduce the burden upon similar public services. Although given how some people really enjoy abusing the tax exempt religious bit, it might be a good idea for a church to demonstrate the good it does, if it wants the exemption.


  6. My thoughts:

    The Bolivaran Republic of Venezuela v. Helmerich & Payne International – confused here:

    Even if the Foreign Sovereign Immunities Act of 1976 permit suits in U.S. courts against foreign governments when those governments seize property “in violation of international law,”…where did Venezuela violate *international* law?

    Also the statement ‘Venezuela was unlikely to actually pay a judgment rendered only in its own courts.’ is a bit baffling to me. That seems an extremely strange way to operate a country. I can see the government leaning on the courts and getting the outcome they want, but the courts coming to the ‘wrong’ outcome, finding against the government, and the government literally just ignoring it…is really weird to me.

    Moore v. Texas – Why the hell are states so demanding for the right to execute mentally disabled people? Seriously, if they’d back off that sort of bullshit, they might actually get to *keep* the death penalty a few more years, but, no, they’re determined to make the entire thing *extremely* unpalatable to everyone, aren’t they?

    Lynch v. Morales-Santana – Naturalization laws are almost incomprehensibly sexist for no obvious reason.

    Nelson v. Colorado – I think Colorado should just hand back all that money, and then *immediately* seize the money under civil forfeiture, which would magically put it under the ‘preponderance of the evidence’ standard. And watch the Supreme Court try to moron their way out of that.

    Lynch v. Dimaya – I love the fact the law puts extra penalties on felonies that *by their nature* are X…but, uh, if those felonies are X *by their nature*, surely they could be listed here, or, even better, have them so marked as X when defined. It doesn’t say ‘That *did* X’, it said ones that are *by their nature* X, which surely means they can be listed *beforehand*.


    • As to your first concern, I confess I’m not entirely conversant with what international law the seizure of the oil rigs violated. I’m going to have to tell you to dig around in the briefs, which at least are available for free at SCOTUSblog: Here’s Venezuela’s brief, and here’s Helmerich & Payne’s.

      As for the second remark, which is mine, I can see all sorts of reasons to doubt the quality of justice available in a Venezuelan court, and to doubt the solvency of the Venezuelan government, particularly given current events, which have included food riots and the purchasing of oil imported from the United States. I think Helmerich would have been within the realm of reasonable assessment of Hugo Chavez to have determined that he wouldn’t have paid this debt unless he had to.


      • What do you think of my civil forfeiture point?

        It seems kinda absurd that ‘Can the government keep money paid in fines for a crime someone was convicted of, and then acquitted of?’ is a question when the government can just legally seize money from someone not convicted of any crime to start with.


      • Be that as it may (and I fully support the ida that Venezuelan courts are not reliable at the moment), that’s not a concept you can (or you shouldn’t be able to) bring into a lawsuit.

        International law and the USA currently accept that the government of a Venezuela is legitimate, and functioning. No legitimate international authority, like the U. N. has declared Venezuela a failed state (perhaps they should, but they haven’t) or their courts a travesti.

        Once a Venezuelan person (the local Helmerich entity) access the USA courts with a claim that justice for them is impossible in Venezuela, there is nothing to stop USA companies or the USA government itself, to be sued in France, Uganda, China, Russia, Kyrgistan or Timor Leste, because “justice is not available in the USA”.

        You would not accept that argument ever (even Mitch McConnel has dawned on this concept). Hence we act under the principle that, unless the local government is deemed illegitimate, their institutions must be respected. At the very least, then, the USA should break diplomatic relationships with Venezuela,

        Plus, Helmerich has the recourse of Arbitration under the Business Investment Protection Treaties (BIT claim) which is the forum where they should be pursuing this claim, instead of the regular USA courts (like many other entities did, several of them successfully)


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