April 4, 2012
By: David A. Smith

Rent control, however, is much more intrusive than mere zoning – so what about the two questions the plaintiffs should have asked but didn’t: is rent control a violation of due process, or a regulatory taking?

In this Court, petitioners attempt to challenge the ordinance on two additional grounds:  They argue that it constitutes [X] a denial of substantive due process and [Y] a regulatory taking.

Neither of these claims is properly before us.
The first was not raised or addressed below [Meaning in the lower courts, not in this blog post! – Ed.], and the second is not fairly included in the question on which we granted certiorari.
I won’t belabor the Yees’ botching of their due process argument, which boils down to their failure to touch second base.

The Yees thought that unnecessary because they thought they touched first base (regulatory takings):

Petitioners unquestionably raised a taking claim in the state courts.  … Petitioners’ arguments that the ordinance consti­tutes a taking in two different ways, by physical occupation and by regulation, are not separate claims.  They are rather separate arguments in support of a single claim—that the ordinance effects an unconstitu­tion­al taking.  Having raised a taking claim in the state courts, therefore, petition­ers could have formulated any argument they liked in support of that claim here.

Unfortunately for them, the California courts found that they didn’t touch it, and thus could not raise the regulatory-taking argument in the Supreme Court:

We granted certiorari on a single question pertaining to the Takings Clause …. Fairly construed, then, petitioners’ question presented is the equivalent of the question “Did the court below err in finding no physical taking?”

As a result, the Supreme Court denied itself the opportunity to look at the video tape, and for a procedural policy imperative (Rule 14.1(a)) that I concede is a good one:

Were we routinely to consider questions beyond those raised in the petition, the respondent would … face the formidable task of opposing certiorari on every issue the Court might conceiv­ably find present in the case.  By forcing the petitioner to choose his questions at the outset, Rule 14.1(a) relieves the respondent of the expense of unnecessary litigation on the merits and the burden of opposing certiorari on unpresented questions.

Rule 14.1(a) accordingly creates a heavy presumption against our consideration of petitioners’ claim that the ordinance causes a regulatory taking.  Petitioners have not overcome that presumption.

The Court then finds itself expressing what sounds to me like judicial wonderment:

In fact, were we to address the issue here, we would apparently be the first court in the nation to determine whether an ordinance like this one effects a regulatory taking.  [Boldface added.]

Maybe it’s just my reading of the text, though the court’s language sounds surely wistful to me.

We will accordingly follow Rule 14.1(a), and consider only the question petitioners raised in seeking certiorari.

To me this is court inviting someone to bring it a well-argued regulatory-takings case, as does this summing up:

Because the Escondido rent control ordinance does not compel a land­owner to suffer the physical occupation of his property, it does not effect a per se taking under Loretto.  The judgment of the Court of Appeal is accordingly Affirmed.

Loretto, as we saw above, was exclusively a physical-invasion takings case, not a regulatory one.

To be sure, the court that decided Yee differs from the one that will decide whether to take Harmon and if so how to decide it, but if anything, over the last twenty-plus years the court has consistently buttressed the rights of property owners vis-a-vis their intrusive government.

Even Kelo v. New Londonthe landmark upholdingwas only 5-4 and triggered massive political blowback before ending in farce, and it’s impossible to read recent decisions such as the Court’s 9-0 smackdown of EPA in Sacketts v. EPA (2012) and think government will fare better this time around.

There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

A great many people either haven’t read Yee or haven’t read it carefully, and as a result they’ve failed to realize that not only is this Court interested in considering New York City rent control, the Yee court was actively inviting someone to submit it to them:

Additional contentions made by petitioners—that the ordinance benefits current mobile home owners but not future owners, who must purchase the homes at premiums resulting from the homes’ increased value, and that the ordinance deprives petition­ers of the ability to choose their incoming tenants—might have some bearing on whether the ordinance causes a regulatory taking, but have nothing to do with whether it causes a physical taking.

These encouragements are not part of a dissent or a concurring opinion, they’re squarely within the opinion itself, so that when coupled with the Court’s emphasis on the narrowness of its holding, it can be read only as an invitation to revisit the regulatory takings issue.

While that claim [regulatory takings] is important, lower courts have not reached conflicting results on the claim as they have on the physical taking claim.  Prudence also dictates awaiting a case in which the issue was fully litigated below, to have the benefit of developed arguments and lower court opinions squarely addressing the question.

I have my views about whether the court will overturn New York rent control, but I’ll reserve until after we learn the truth or falsity of this prediction:

The Supreme Court will grant certiorari on Harmon.

Source: Affordable Housing Institute


April 3, 2012
By: David A. Smith
I’m sorry. My responses are limited. You must ask the right questions.
For more than a quarter of a century, I’ve been baffled as to why rent control hasn’t been declared Unconstitutional, but it took until just recently, with James Harmon’s lawsuit against New York City, for me to read the critical Supreme Court decision, Yee v. Escondido, both the decision itself (blue Georgia) and its syllabus (black Georgia), to understand why:
Nobody has asked the Supreme Court the right question.
New York City’s rent control could be Unconstitutional on any of three grounds:
Rent control could be a physical taking, an invasion.  Yee asked the court that.
Rent control could be a regulatory taking – an economic deprivation.  Nobody’s asked the court that.
Rent control could be a violation of substantive due process.  Nobody’s asked the court that.

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Affordable Housing Advocates Support Harmon Rent Control Challenge, Part 2



January 26, 2012 
Continued from yesterday’s Part1.]
In yesterday’s Part 1, we met the Don Quixote of rentcontrol, lifelong New Yorker James Harmon, whose case challenging the statutelost on appeal to the U. S. Second Circuit Court of Appeals, but may be heardby the Supreme Court granting certiorari.  To fill in the legalarguments, I’ve used RichardEpstein’s Wall Street Journal op-ed (Palatino brown) and Cato’sdescription of its amicus brief (Georgia gray), because the NewYork Times’s (December 19, 2011) story, though sympathetic,glides over them, preferring to focus on the long-suffering plaintiff:

Affordable Housing Advocates Support Harmon Rent Control Challenge, Part 1


January 25, 2012 
Even dropped from the Empire State Building, it can’t kill anyone
Even dropped from the Empire State Building, it can’t kill anyone
Though ’tis a consummation devoutly to be wished, I had given up believing that rent control would ever be ruled an economic taking without due process or just compensation (even though it is both), because the procedural and administrative defenses mounted by a determined confiscatory local government are so tortuous to besiege and scale that for nearly forty years no one has. 
Destined to have his name in the law books? James Harmon


Destined to have his name in the law books? James Harmon

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