Blog

Today we will continue our coverage of zoning, with a focus on aesthetics (a word I am incapable of spelling without spell check).

The lecture notes are here, and the live chat is here.

For the first case, State ex rel Stoyanoff v. Berkely, Ladue, MO is the wealthiest suburb of Missouri (anyone know what ex rel means?). The media income was $141,000. Check out the property values on Zillow–most houses are over $1 million. Ladue, also the site of the third case, City of Ladue v. Gileo, has particularly high property values in the Willow Hill subdivision.

This is a rendering of the Stoyanoff house:

For you Rand fans, the Stoyanoff case may remind you a bit of The Fountainhead.

Roark, the architect in the Fountainhead was inspired by Frank Lloyd Wright who designed Falling Water.

 

For the second case, Anderson v. Issaquah, you can learn more about Issaquah, Washington here. Here is a map of 145 N.W. Gilman Blvd, Issaquah, WA. It seems to be an Auto Tech store now.

View Larger Map

And  for an adverse possession flashback, check out this video. A homeowner in Detroit left her house vacant for a year and a squatter moved in. The squatter put a lien on the house, and now refuses to leave. The homeowner is in the process of filing the action to oust the squatter. But until that happens, under Michigan law, the homeowner can’t physically eject the squatter. So, they are both living under the same roof. Unbelievable.

Judge Charles Breyer that is, not his somewhat-more famous brother Justice Stephen Breyer. PLF has the story:

Today, U.S. District Court Judge Charles Breyer sided with Pacific Legal Foundation’s (PLF) lawsuit and struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional.

Under the ordinance, rental property owners who want to reclaim use of their own property must pay a massive sum to their tenants – a sum that the tenant doesn’t even have to use for relocation purposes.

PLF’s lead clients are Dan and Maria Levin, who live in the upstairs unit of their two-story home.   They would like to use the lower unit for friends and family, but they would have to pay their tenant $118,000 to withdraw it from the rental market.

Judge Breyer found an unconstitutional exaction:

The Court holds that the Ordinance effects an unconstitutional taking by conditioning property owners’ right to withdraw their property on a monetary exaction not sufficiently related to the impact of the withdrawal. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 5 512 U.S. 374, 395 (1994); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2599 (2013).

His brother dissented in Koontz, but was not yet on the Court for Nollan or Dolan.

In the event this case makes it to SCOTUS, Justice Breyer would recuse, as is his practice. Just what we need. Another 4-4 Takings case (after Stop the Beach and Justice Stevens’s recusal). Another case where Judge Reinhardt can set Supreme Court policy.

In Jeff Toobin’s interview with President Obama, we gained further insight into how the President views the relationship between gridlock and executive power.

Obama has stopped pretending that he has much respect for Congress. He had minimal tolerance for legislative horse-trading even when he was a legislator. Now, after six years of implacable Republican opposition to everything he has proposed, he sounds fed up.

“Because Congress is not working the way it’s supposed to, there’s both pressure on administrative agencies and pressure on the courts to sort through, interpret, and validate or not validate decisions that in a better-functioning democracy would be clearer and less ambiguous,” Obama said.

This explanation is keeping with the President’s view that gridlock provides a justification, or “safety valve” to use the Solicitor General’s explanation during Noel Canning, to engage in more robust executive power. See my article Gridlock and Executive Power for more details.

Yet, the President’s theory departs from reality, because he firmly believes that Congress voting “no” on something is not taking action.

He pointed out that the failure of Congress to pass legislation on climate change and immigration left his Administration with little guidance on how to proceed on those issues. When there is gridlock in Congress, “the executive branch has to make a whole series of decisions,” Obama said. “That, in turn, puts more burden on the Court to interpret whether the executive actions are within the authority of the President and whether they’re interpreting statutes properly. All of which I think further politicizes the courts.”

Congress voted no on the President’s immigration policy (albeit by one vote in the Senate). That is not a failure to provide guidance. They provided guidance. They said no. At which point the President can try something else. Instead, he worked around Congress with DACA, and whatever we will get after the election.

As to his argument that his executive actions politicizes the Courts, I think he needs to take stock of the fact that virtually every SCOTUS decision against him in this realm has been a 9-0 reversal, most recently Noel Canning. This is one of the rare areas where the President has united people who usually disagree–the 9 Justices of the Court!

Joan Biskupic’s great new book, Breaking In, provides some insights into how President Obama chose Sonia Sotomayor over Diane Wood for David Souter’s seat. At the beginning of the President’s term, the short list was three, with a serious Chicago focus–Diane Wood, Elena Kagan, and Sonia Sotomayor.

He was attracted to other candidates he knew from Chicago’s academic enclave of Hyde Park . His preliminary list, right after the 2008 election, was topped by three names: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit who lectured at the University of Chicago; Cass Sunstein, a Harvard law professor who earlier had taught at the University of Chicago; and Elena Kagan , a former University of Chicago professor who had become dean of Harvard Law School. 8 Sotomayor’s inclusion on Obama’s expanded list arose from her education, experience , and connections, as well as the diversity she would offer.

Following the announcement of Souter’s retirement, the President was strongly leaning towards Diane Wood.

In the early weeks of the search, advisers said, Obama leaned toward Judge Wood, who had served on the Seventh Circuit since 1995.

Kagan seemed to be the runner-up.

She had no record as a jurist, so observers were not sure whether she had the liberal vigor of Wood. As a new U.S. solicitor general in the spring of 2009,

Sotomayor seemed to be in third place.

Sotomayor lacked the scholarly reputation of Kagan and Wood, but she had graduated from two of the most intellectually rigorous schools in the country. Sotomayor had a long, relatively uncontroversial judicial record; the Ricci decision stood out. She had served seven years as a trial judge and eleven years as an appellate judge. She did not have the direct personal link to the president that Wood and Kagan had, but she had other connections that proved helpful—her Second Circuit judicial colleagues, Manhattan district attorney Robert Morgenthau, and advocacy groups that had long been pushing for the first Hispanic justice.

Sotomayor’s selection raised a different interplay between diversity and qualifications:

The Hispanic Congressional Caucus, chaired by Democratic U.S. representative Nydia Velázquez, was persuading African Americans in Congress to throw their support behind Sotomayor. Velázquez, a Puerto Rican who grew up in the Bronx, lobbied for the promise that if a black candidate did not make Obama’s short list, the Congressional Black Caucus would back Sotomayor. For Obama, ethnicity cut both ways. He understood the value of diversity, but as the man who had not asserted his own racial identity in his campaign, he did not want to be seen as choosing someone simply because of her color and ethnic heritage. He wanted someone he could say had a superior intellect and judicial demeanor. Almost immediately, critics of Sotomayor were raising doubts.

But what sold Obama on Sotomayor, over Wood or Kagan, seems to have been the interview. Sotomayor nailed it.

When it was time for her meeting in the Oval Office, Sotomayor said she felt at ease and ready to represent herself to the utmost. She highlighted her regard for precedent and said she thought the way she challenged litigants on the bench was an effective way to probe a case. She said she could recall only one other interview during which she felt she was able to so effectively represent herself and her legal strengths— and that was with Moynihan, nearly two decades earlier, when the senator was interviewing potential district court candidates. A graduate of Columbia College and Harvard Law School himself, Obama was also impressed that she had the topflight credentials from Princeton and Yale, from Morgenthau’s office, and from her tenure as an appeals court judge on the Second Circuit. But it was her personal intensity and her continued connections to her community that really struck him. The Bronx Latina had not forgotten her roots. Knowing such struggles well, Obama admired how she had traversed worlds defined by race and ethnicity. He kept her in the Oval Office for an hour— a good sign, because Obama had a reputation for winding up conversations quickly if he felt they were not going anywhere. As they parted, Sotomayor told him that no matter what he decided, he had made her “the happiest person” simply by his consideration of her. 27 “Wow, she was great,” Obama told top aides.

Were it not for the interview, we very well may have had Justice Wood.

Some said later that if the interview had not gone so well, Obama might have chosen Diane Wood. Said Craig, “As far as I was concerned, watching him, it was between her and Diane Wood.”

FLOTUS also backed Sotomayor. Biden too.

Michelle Obama favored Sotomayor. The First Lady had attended Princeton University as an undergraduate and— almost a decade after Sotomayor— found refuge in the Third World Center. A lawyer, Michelle Obama believed Sotomayor was fully up to the job of a Supreme Court justice. 28 Vice President Biden interviewed Sotomayor by phone on Sunday , May 24. On Monday, Memorial Day, it all seemed settled. President Obama was ready to elevate Judge Sotomayor. But it took him several hours— nearly the whole day— to call her as he had planned. Some Obama advisers started to worry that he was having second thoughts. But it was his way to want to reflect on such a momentous choice.

Fascinating back-story.

 

There is an odd asymmetry with respect to the Solicitor General’s position on Supreme Court review of Obamacare in 2011 and 2014. In 2011, you may recall, the 11th Circuit Court of Appeals invalidated the individual mandate. At the time, the 6th Circuit Court of Appeal had already upheld the law (remember that other significant Jeff Sutton case?). Decisions were still pending in the 4th and D.C. Circuits.

The S.G. had a choice. He could petition for rehearing en banc in the 11th Circuit. If the court took the case en banc, and vacated the opinion, the Circuit Split would disappear. Perhaps, the 11th Circuit would disagree with the panel decision. At which point (and we know in hindsight), all of the other courts of appeals would have upheld the law. Then, there was no reason for the Supreme Court ot even take the case.

The S.G., rather than trying to eliminate any circuit split, petitioned for certiorari, and brought this case to the Supreme Court right away. In its brief, the S.G. wrote that the Court must take the case right away–rather than let the lower courts handle it–and “put these challenges to rest.” What sense was there in waiting when such a significant piece of legislation was in legal doubt.

Now, three years later, the Solicitor General has taken a different position with respect to Obamacare. Much like in 2011, there was a Circuit Split. One Court of Appeals (the 4th) found that the IRS rule providing tax credits in states without exchanges was valid. Another Court of Appeals (the D.C. Circuit) found that the rule was invalid, and millions of dollars were illegally being spent. The S.G., faced with the option of again allowing the Supreme Court to “put these challenges to rest,” opposed certiorari, and asked the D.C. Circuit for rehearing en banc.

Why the difference? Well for one, as President Obama noted in the interview with Jeff Toobin, the D.C. Circuit is now stacked with a majority of judges appointed by Democratic Presidents, who, if Harry Reid is to be believed, will vote in favor of upholding the rule in Halbig. Because of this “realignment,” rehearing en banc was sought. But more fundamentally, the government is now content to allow this issue to linger on, even though millions of dollars in subsidies are potentially being spent in violation of the law. The hope is that by allowing people to rely on potentially illegal appropriations, it will be harder for a court to invalidate it. But, this very fact supports the Court getting involved sooner to prevent future illegal activity that generates irreparable harm.

The same sort of equities that favored the S.G. not seeking rehearing en banc from the 11th Circuit would counsel in favor of not seeking rehearing en banc in the D.C. Circuit. But this is not the route the S.G. chose.

Making this argument forcefully is the reply to the government’s brief in opposition to certiorari in King v. Burwell, the 4th Circuit case. The brief, filed by Jones Day, was signed my Mike Carvin, who was counsel of record for NFIB in NFIB v. Sebelius. As far as advocacy, this brief is superlative, and I encourage you to read it in its entirety.

I also want to draw attention to the lead associate who worked on the brief, my friend and colleague Yaakov Roth. While the WSJ saw fit to call it “Carvin’s ObamaCare Tour de Force,” Yaakov was instrumental in the formation of the arguments in response to the S.G.