Another Bad Opinion by the Supreme Court - Kick the can down the road

[welkin]

Today, the United States Supreme Court declined to hear a case brought by an innocent woman seeking compensation after a McKinney, Texas, SWAT team destroyed her home while pursuing a fugitive in July 2020. Vicki Baker, represented by the Institute for Justice (IJ), was seeking to make it clear that victims of such destruction are entitled to compensation under the Fifth Amendment.

"I was hoping the Supreme Court would take up my case, so what happened to me would never happen to anyone else, so it's disappointing that they decided not to hear it," said Vicki. "If police can destroy my home and leave me with the bill, it can happen to anyone."

In July 2020, a fugitive was attempting to flee police with a hostage and decided to barricade himself inside a home with a "for sale" sign out front. That home happened to belong to Vicki, who was under contract to sell and was out of town at the time. When the McKinney SWAT team arrived on the scene, they stormed the home, launched tear-gas grenades, knocked down doors, and ran over the fences with an armored vehicle. The raid caused tens of thousands of dollars in damage, and the would-be buyer backed out of the deal.

Like many insurance plans, Vicki's did not cover "acts of the government," and when she reached out to the city about being compensated, they refused, claiming they were immune.

"At some point, the Supreme Court will need to grapple with the fact that there is a circuit split and that the lower courts are divided on this issue," said IJ Senior Attorney Jeffrey Redfern. "The constitution makes it clear that the government must compensate people for such takings, and your ability to receive such compensation shouldn't depend on where in the country you live."

Justices Sonia Sotomayor and Neil Gorsuch wrote a statement saying that this case "raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so." They go on to explain that lower courts should continue to grapple with this issue and that the Supreme Court may have to take the question up in the future.

In their statement, the justices point out that had the city "razed Baker's home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker's home for a different public use: to protect local residents and themselves from an armed and dangerous individual. Under the Fifth Circuit's decision, Baker alone must bear the cost of that public benefit."

Vicki teamed up with IJ to sue in March 2021. In April 2022, the district court ruled the city was "liable for a taking" under both the United States and Texas Constitutions, and in June 2022 a jury ruled she was owed nearly $60,000 in damages. But the city appealed the decision, and in October 2023 a panel of the 5th U.S. Circuit Court of Appeals overturned the lower court. When Vicki asked the full appeals court to rehear the panel's decision, they voted against doing so, 11-6.

"We're obviously disappointed the court declined to hear Vicki's case, but we will continue to fight for justice until every American's property rights are secured," said IJ President and General Counsel Scott Bullock. "Whether it's the police department raiding a home to catch a fugitive or the highway department condemning a home for a road that will be used by the public, the government must pay when it takes private property for a public good."

Although the Supreme Court's decision is the final word on Vicki's claim under the United States Constitution, she still has a claim under the Texas Constitution, and IJ will continue to represent her in seeking compensation.

https://ij.org/press-release/suprem...pensation-after-swat-team-destroyed-her-home/

Here is a link to the opinion:

What I found interesting about this case is that at the summery judge stage of the case, the city claimed governmental immunity and it was denied. The Court said there is no question on immunity, the question in this case is about the Taking Clause of the Fifth Amendment and it went to trial.

 

[adjusterjack]

Wesley Little, the fugitive kidnapper committed suicide after releasing the hostage.

Texas police destroyed a cancer survivor's house. A new legal maneuver may force the city to pay

A SWAT team destroyed a cancer survivor's home while chasing a fugitive. The city refused to pay for the damage. But a new legal strategy may help Vicki Baker and others.

www.foxnews.com

Must be some consolation there, I suppose.

 

[Tax Counsel]

You are misinterpreting the action of the Supreme Court. The court made no decision (as that term is used in the courts). It instead denied a petition for a writ of certiorari (which lawyers often abbreivate as denying or granting cert). The petition asks the Supreme Court to agree to hear the case, and the arguments in a good petition for cert are focused on not on the merits of the case but rather on why the case is important enough that the Supreme Court should agree to hear it because that's all the court will consider at that stage. As a result, the denial of cert says nothing about the court's view of the merits of the case. It only indicates that the Court refused to hear it.

Almost all cases decided by the Supreme Court are those that are appeals from either one of the federal circuit courts of appeal or from final decision from a state appellate court. There are too many of those appeals for the Court to hear them all. Thus the Court selects which appeals it will hear. That's done through the writ process described above. Bear in mind that the Supreme Court grants cert only on about 1% of all petitions for cert.

To put some numbers on that for perspective, in the last Supreme Court session (2023-2024) the court accepted 62 petitions for cert and issued 60 opinions (a bit lower than most years). The court also disposed about 100 more cases without a full hearing by the court. The justices also have other duties in administering the federal court system. About half the cases granted cert are criminal cases, including death penalty appeal cases.

The two main reasons the Court grants cert are (1) a split in the Courts of Appeal on cases that affect people and (2) cases with a significant constitutional issue that have not been adequately addressed by the Courts of Appeal. For the court to grant cert, at least four justices just must agree that the case merits being heard by the Court.

In other words, the Court does NOT typically take cases just because some of the justices think the appellate court made the wrong decision in that particular case. It can't take on that many cases. That's why the Courts of Appeal are much more important than most of the public appreciates. For 99% of federal appeals the Courts of Appeal have the final say. This is the reason why lawyers say that generally the judges on the Courts of Appeal have, as a practical matter, far more impact on federal law than the Supreme Court does.

In the case you mentioned, there is not yet a significant split on the issue in the appellate courts and evidently the members of the court did not find that the issue in the case would have broad enough impact to merit the Supreme Court stepping in and making it one of the approximately 60-100 civil cases it will agree to hear this term. There are, for a example, a number of tax cases that I would like to see the Supreme Court rule on to resolve splits in the appellate courts but as most of those issues don't affect many taxpayers they aren't important enough to get the Supreme Court's attention.

In short, the Court kicks a lot of cases down the road. It has to do that because it simply does not have time and resources to hear all the cases seeking Supreme Court review, even when the circuit courts of appeal disagree.

The Supreme Court is long overdue for changes in procedure that would allow more cases to be heard. The number of justices on the court has varied a bit over the history of the country, but for most of our history the court has had nine members and all nine are involved in reviewing every case in which an opinion is issued by the court. The Court had nine members in its first term, which began in 1789. The population of the U.S. in the 1790 census was 3,929,214. The court still has nine members, all of whom participate in each case, but the population of the U.S. in the 2020 census was 331,449,281. Thus the population of the country is nearly 100 times more today than in 1790 yet the Supreme Court has remained largely unchanged.

Add to that the fact that Americans are much more litigious today than they were in the 18th century and its not hard to see why the percentage of appellate cases heard by the Supreme Court has dropped drastically since the Court was founded. We have expanded Congress to account for population growth, the executive branch has been massively expanded since 1789 to account for population growth and the complexities of modern society. We've increased the number of federal trial courts and courts of appeal to deal with the increasing case loads. But no significant change has been made to the Supreme Court since the founding of our republic. A big reason for that is the hallowed status we've conferred on the Supreme Court such that any proposal for change gets people riled up.

One way to get more cases heard is to do what the Courts of Appeal do. There are 13 federal circuit courts of appeal, with a total of 179 judges. That makes an average of about 14 judges on each court. But most cases are decided by a three judge panel of the court, with only a few cases each year reviewed by the full court (known an en banc review). The Supreme Court could do the same thing: have most cases decided by a panel of three justices with the only the most significant constitutional cases being heard by the full court. That would nearly triple the number of cases that get reviewed.

Or Congress might create two new appeals courts, a national court of civil appeals and a national court of criminal appeals, which would have the final say on cases that did not have a constitutional issue. The Supreme Court would hear those constitutional appeals and nothing else (like the constitutional courts other nations use). There are other proposals that have been made to increase the number of cases the Court can hear, but they all basically come down to the same thing: we can't have the Supreme Court operate as the final court of appeal for all federal legal issues with all the justices participating in every case. In short, what was a workable solution in 1789 isn't nearly as workable today.

 

[welkin]

You are misinterpreting the action of the Supreme Court. The court made no decision (as that term is used in the courts). It instead denied a petition for a writ of certiorari (which lawyers often abbreivate as denying or granting cert).

Perhaps I should not have used the word opinion. But I understand exactly what the Court did.

Whether any such exception exists (and how the Takings Clause applies when the government destroys property pursuant to its police power) is an important and complex question that would benefit from further percolation in the lower courts prior to this Court's intervention.

They kicked the can down the road.

 

[army judge]

They kicked the can down the road.

I'm not surprised, as that's what the royals do that inhabit Washington DC.

Actually, the nobility doesn't do the kicking, they employ Royal "can kickers" to actually kick the cans down the road.

After all, royalty dislikes doing things the unwashed masses do.

 

[Tax Counsel]

Perhaps I should not have used the word opinion. But I understand exactly what the Court did.



They kicked the can down the road.

Yes. But my point was that the Supreme Court was making a workload choice, not anything to do with the merits of the case. It can only hear about 1% of the cases in which its review is sought and has to priortize which ones to take. This case would essentially have to be among the 50 or so most important civil cases seeking review this court term for the court to take it. There weren't at least four justices who thought it was that significant. The Court kicks a lot cases down the road each term. It has to do that because it doesn't have the time and resources to hear all the cases where Supreme Court review would be useful. However important you or I think a case may be, we aren't the ones that have to decide which of the over 1000 petitions for cert it gets merit being among the 1% it can review. In short, yes the Court kicked the case down the road, but that's nothing noteworthy or out of the ordinary. That's what the court does hundreds of time a year.

For my part, I don't see this case as bringing up a particularly pressing issue, especially given that there isn't a significant split yet in the Courts of Appeal on the matter to make it necessary for the Court to step and play referee among the appellate courts.