Conference Report – October 27 Conference

On Monday, the Court released its Order List from the October 27 Conference. It didn’t add any new merits cases to the docket, but there were still a few noteworthy orders. In one closely watched case, the Court denied certiorari in 616 Croft Ave., LLC et al. v. West Hollywood, CA. The builders of a proposed condominium unit were required, by a City of West Hollywood ordinance, to pay an “affordable housing fee” of $540,393.28 to subsidize the construction of low-cost housing in the city. This requirement kicked in automatically upon approval of the building permit, without any need of the City to show that the project in question created a need for low-cost housing. The issue in 616 Croft Ave is whether a permit condition that is legislatively mandated is subject to scrutiny under the doctrine of unconstitutional-conditions. In the petition for writ of certiorari filed for this case, reasons for granting the writ centered around the Takings Clause of the Fifth Amendment, and the limitations it might place on a government’s authority to require private property owners to dedicate private property to public use via the permit process. The Court had considered this case at the previous four conferences prior to October 27, and now that they have decided not to take up the property rights issue presented in 616 Croft Ave, the previous ruling in favor of the City of West Hollywood will stand. In response to the Court’s decision not to consider this case, West Hollywood’s attorney Mike Jenkins said “[t]he city is pleased that its efforts to create housing for people at all economic levels in our community remains intact.” On the other side of the coin, the Cato Institute argued in its amicus brief that this case demonstrates how “municipalities and counties have devised schemes to evade the prohibition on uncompensated takings.” In Lexology, David L. Preiss explains what denial of certiorari means for housing in California, noting the state’s cities “are now relatively unrestricted in their adoption of inclusionary housing ordinances as they apply to ‘ownership’ projects, both as to ‘set aside’ and ‘in lieu fee’ provisions, and they probably do not need to conduct any formal ‘nexus’ studies to support them.”

The joint motion to defer consideration of the petition for writ of certiorari was granted in Pacific Gas & Electric Co. v. United States. The issues in Pacific Gas & Electric Co. stem from the restructuring of the energy markets in the State of California during the late 1990s, designed to make wholesale electricity go through two main market exchanges, facilitating sales between buyers (such as the Petitioners) and sellers. There are two questions presented in this case: (1) whether selling energy through centralized market exchanges forms a contractual relationship between buyers and federal agencies selling the energy, thus giving the Court of Federal Claims jurisdiction over lawsuits filed by buyers to recover for overcharges; and (2) whether Pacific Gas and Electric Co. was in such a relationship with the federal agencies for those sales.

The motions for leave to proceed in forma pauperis in both Modrall, Robert G. v. Deutsch, Kimberley, et al. and In Re Raymond L. Rogers were denied. Motions for leave to proceed in forma pauperis are filed when a petitioner is seeking to proceed without paying the normal costs associated with the cost of being in court. If leave to proceed in forma pauperis was granted in a lower court (i.e., counsel was appointed for an indigent party), then no additional affidavit stating proof of the need for waiving fees is required and the petitioner need only cite the relevant law or attach the order of appointment.  The motions for leave to proceed in forma pauperis here were denied because of Rule 39.8, which states that if the Court finds that a petition for writ of certiorari or a related petition is either frivolous or malicious, the Court can deny leave to proceed in forma pauperis. Robert M. Yablon of the Yale Law Journal dives into the certiorari process with a particular focus on current Supreme Court Justice Sotomayor. In his interesting piece, Yablon notes “in forma pauperis petitions account for the vast majority of the petitions the Court receives–some seventy-five to eighty percent. Yet, in most years, they account for less than twenty percent of the Court’s grants of certiorari.” The petitions for writ of certiorari and writ of habeas corpus, respectively, were dismissed in Modrall and In Re Raymond.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018.

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