FDD Class Action Progress in US Supreme Court: City of Ann Arbor Waives Right to Respond to Homeowners’ Petition for SCOTUS Review and Relief

City Will File Opposition Only if Requested by the Supreme Court Justices

In January 2019, the Homeowner Plaintiffs in the FDD Federal Class Action (Lumbard, et al. v City of Ann Arbor) were handed a disappointment when the Sixth Circuit Court of Appeals affirmed the dismissal of their claims by the US District Court in Detroit.

On June 21, 2019, however, the Supreme Court handed down its much-anticipated decision in Knick v Township of Scott. We posted about the case before and after the decision in June.

The Court there was faced with compelling arguments by the homeowner, Rose Knick, for overturning two decisions that, in combination, produced a tactic referred to by the Chief Justic as the “San Remo preclusion trap” employed by municipal governments to extinguish federal Fifth Amendment claims without a hearing for the plaintiffs.

Chief Justice John Roberts exceeded our wishes. He did not perpetuate the legal mess that litigation of federal private property claims had become. Rather, he burned to the ground the entire legal and procedural structure that produced both the City’s San Remo Trap tactics against the Homeowner Plaintiffs in federal court and the Sixth Circuit opinion based on the City’s arguments. The Opinion of the Supreme Court particularly condemned the use of the San Remo “traps” by municipalities, the only intended result of which was to deny meritorious federal plaintiffs their day in Court.

Mlive and the City Attorney were very vocal and positive in their assertions that the litigation over the FDDP was at an end. In a press release, the City Attorney ventured that “[n]one of this litigation should have ever been filed.” He continued that “[t]his case has tied up the time of one state trial court judge, three state court of appeals judges, one federal district court judge and now 20 federal court of appeals judges.” According to the Supreme Court in Knick, however, it’s the municipalities, not the property owners, that are responsible for this waste of judicial time.

Now that the decision in Knick went the FDD Homeowners’ way, the City has waived its only right to file a Response to the Petition with the Supreme Court. The document filed by the City on August 26, 2019, signed by Abigail Elias, says that “I do not intend to file a Response to the petition for a writ of certiorari unless one is requested by the Court.” This time, no press release from the City Attorney, Stephen Postema.

What is the timeline from here? The Lumbard case is Supreme Court Case No. 19-150. Following the City’s Waiver, the Petition will now be circulated to all the Justices. There is a “cert. pool” of Supreme Court clerks who will review and analyze the Petition for seven of the Justices. Two still are briefed by their own Clerks. The next hurdle is for the case to be put on a “conference list” for one of the Justices’ private Friday conferences.

Here is some further description of the Court’s prodedure from Wikipedia:

Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the “discuss list”; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be “re-listed” for discussion at a later conference. This occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted. The votes of four Justices at conference (see Rule of four) will suffice to grant certiorari and place the case on the court’s calendar.

In fact, the Solicitor General of the United States did intervene in the Knick case on the side of the homeowner. So, the Justices may very well want to hear General Noel Fransisco’s thoughts.



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