US Supreme Court Update for FDD Homeowners: Petition Distributed to Justices’ Chambers for Review; Decision as Early as October 1, 2019

We have important news from the United States Supreme Court about the progress of the Homeowners Petition for review in the FDD Homeowners Class Action, Lumbard et al. v. City of Ann Arbor.

As you may recall, on July 29, 2019, the FDD Homeowner Class Plaintiffs in Lumbard v City of Ann Arbor filed their Petition in the US Supreme Court for review of the Sixth Circuit’s opinion in the City’s favor on January 11, 2019. The City’s arguments and the Sixth Circuit’s opinion were both based on two older Supreme Court cases we have discussed before, Williamson County Bd of Comm’rs v Hamilton County Bank and San Remo Hotel v City of San Fransisco.

When the Sixth Circuit decided Lumbard, both of these cases were on life support in the US Supreme Court in a related case, Knick v. Township of Scott. By June 21, 2019, when the Court decided Knick, the two cases were dead, overturned and renounced When the the Sixth Circuit’s opinion was handed down on January 11, 2019, it had affirmed the result in the District Court, also on the basis of Williamson/San Remo tactics, while Knick was still pending in the Supreme Court.

Barely six months later, Justice Roberts wrote the biting majority opinion in Knick, sweeping away Williamson/San Remo, and its requirement for years of state court litigation as a condition of adjudication by a federal court. Roberts the made the conditions necessary to any future “San Remo preclusion trap”

The Homeowner Plaintiffs in Lumbard v City of Ann Arbor waited to file their Petition for Review in the US Supreme Court until after the Supreme Court had handed down its landmark decision in Knick v. Township of Scott on June 21, 2019.

As we reported previously, on August 27, 2019, the City waived its right to file an opposition in the Supreme Court to the Homeowners’ Petition. That sped up the process at the Supreme Court. So, as the Court announced last week, the Petition has been distributed to the nine Justices of the Court for its first level of review.

Next Steps in Review of Petitions for Certiorari

The first step in this review is for the Petition to be studied and analyzed by some of the best and brightest young lawyers in America, US Supreme Court Clerks, who will provide their results to the Justices. It doesn’t hurt that the Clerks for the Justices in the majority in Knick still have that signal case fresh in mind. Four justices are required to grant a petition.

The Justices will then decide individually whether the FDD Homeowners’ petition goes on to the next step: discussion of the Petition in one of the Justices’ future weekly private conferences.

When in the future? The date could have been set sooner or later, but the private conference is October 1, 2019, two weeks from today.

Before then, the Chief Justice gets the first crack at which petitions delivered to him as candidates for the “discuss list” for October 1. After that, the other eight Justices get their turn; any of them can add a petition to the “discuss list” or move one to a later conference date.

The Supreme Court does not publicly announce which cases are going to be discussed at a conference and which won’t. The press gets that information the day before, but it is not for publication.

When will we know the results for this Petition? This conference is on a Tuesday, while Supreme Court conferences are typically on Thursdays. Again, typically, the Court announces the next day what the results of the conference were — which cases were discussed and the Court’s disposition. Based on that, we should have a result between Wednesday, October 2, 2019 and Friday, October 4, 2019.

We will keep you posted.

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