photos of lawyers attending INBLF Litigation Fly-In retreat June 2024

Last week I joined many of my INBLF (International Network of Boutique and Independent Law Firms) colleagues in Chicago for what has become an annual litigation retreat to discuss issues of interest to us practicing litigation attorneys.

INBLF is a world-wide network of highly credentialed attorneys, with boutique firms in the US and Canada that have deep experience in scores of legal specialties and full-service international firms who are steeped in the law, traditions, and cultures of their home countries.

2024 Litigation Fly-In

This year’s retreat (Fly-In), held from June 20-21, 2024, was organized and hosted by Larry Friedman of the Chicago firm of Barnes, Richardson.

The Fly-In kicked off with a fabulous dinner at a nearby hotel. The day-long program began with a panel discussion (organized by Larry Ebner of Capital Appellate Advocacy PLLC) of recently decided and pending key Supreme Court cases. The panel participants included Charles T. Frazier from Dallas, Charles Kagay from San Francisco, Sarah Elizabeth Spencer from Salt Lake City, John Reeves from St. Louis, Richard Montes from New York, Larry Ebner from Washington, D.C., and me.

Two Supreme Court Blockbuster Rulings

The two cases I discussed were George Sheetz v. County of El Dorado, California and Richard Devillier v. State of Texas, two blockbuster rulings issues by the Court earlier this term.

Both decisions provide important insights into the current Court’s analysis of constitutional issues. The first thing to note is that both were unanimous decisions, which is consistent with the Chief Judge’s effort to obtain a consensus on the court.

George Sheetz v. County of El Dorado, California

As noted in an amicus brief that I co-authored with Larry Ebner of the Atlantic Legal Foundation, there can be no legislative exceptions to the right to receive just compensation when private property is taken by the government for a public purpose.

As Justice Barrett noted in examining the history of the just compensation clause of the Fifth Amendment, history shows that legislation was a prime target for scrutiny under the Fifth Amendment. Her decision simply adopted Justice Thomas’s dissenting opinion in an earlier case, which set forth years ago what all agree now is the best analysis:

“It is not clear why the existence of a taking should turn on the type of governmental entity responsible for the taking. A city council can take property just as well as a planning commission can …. The distinction between sweeping legislative takings and particularized administrative takings appears to be a distinction without a constitutional difference.” *

Richard Devillier v. State of Texas

The Devillier case is an excellent example of how the Roberts court is often referred to as an incremental court and is generally disinclined to engage in a wholesale rewrite of the law.

Devillier arose out of flooding from Hurricane Harvey, which hit the Houston area in August 2017. Richard Devillier and 120 other landowners own property along an interstate highway between Houston and Beaumont, Texas. Because the State had built a three-foot concrete median along the highway, which acted as a dam and collected massive amounts of water during Harvey, these property owners’ land was flooded and they incurred significant losses.

The court granted the petition to determine whether a person whose property is taken without just compensation may seek redress under the self-executing JC Clause even if the legislature has not provided them with a cause of action.

Writing for the Court, Justice Thomas explained that this question assumed that the property owner had no separate cause of action under which to bring a claim based on the Fifth Amendment. Justice Thomas then stated: “But, that is not the case here,” because Texas law provides Devillier with the cause of action they are seeking.

And here is where we see judicial restraint in full flower in this case:

“Our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under” the Fifth Amendment. “But, this case does not require us to resolve that question. . . . It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action.”

The Court then vacated the Fifth Circuit’s judgment and remanded the case, and it will ultimately be tried in state court.

 

* Parking Ass’n of Ga., Inc. v. City of Atlanta, Ga., 515 U.S. 1116, 1117–18 (1995) (Thomas, J, dissenting from denial of certiorari); see also Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 95 (1985) (“Instead of providing a bulwark against the excesses of government power, a narrow construction of the eminent domain clause simply encourages government officials to redirect their behavior to those forms of exploitation that are beyond constitutional review.”).