MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 11th of February, 2019. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. The Supreme Court’s been taking a short break and gets back to business a week from tomorrow. Meantime, we’ll get you caught up on all the oral arguments leftover from January.
First up, a case that’s already been argued once, back in October. But at that time it was an eight-justice bench. And the reason the court takes it up one more time may very well be because the court was split right down the middle. Could also be the justices wanted to flesh out the issues a bit more. We don’t know.
What we do know is the court ordered a second argument, now with a full bench of nine.
REICHARD: Right, so once again, the facts, to refresh your memory. Rose Mary Knick — that’s K-N-I-C-K, not you, Nick — Rose Mary Knick owns 90 acres of land in eastern Pennsylvania.
Knick’s neighbor says some of his relatives are buried on her land. The neighbor persuaded town officials to pass an ordinance requiring — under threat of hefty fines — free public access to her land.
Knick points to the Fifth Amendment’s so-called “Takings Clause.” That constitutional right says the government has no right to take private property without paying for it.
Listen to her lawyer David Breemer, for round two:
BREEMER: You do know, when your property’s invaded by the government, it’s taking the benefit of invading your land and using it for its purpose, and it hasn’t given you compensation or secured your compensation, you are without just compensation at that time. That’s the original understanding…
The town concedes that may be the original understanding, but its lawyer says there is a process to go through first.
Like all states, Pennsylvania state courts take care of these things by way of a process called inverse condemnation. Essentially, it’s a claim against the state for trespassing on your land.
But Rose Mary Knick’s lawyer says that’s a real burden for property owners. They’re put in a position to have to wade through state and local procedures with state judges. Not exactly a fair playing field for citizens with limited resources.
Justice Samuel Alito had sympathy for that.
Listen to this terse exchange with the lawyer for the town, Teresa Sachs. Alito lays out a scenario of someone who realizes her property value has just taken a dive and has to go fight city hall about it.
ALITO: You have effectively taken my property. Will you pay me just compensation? And the municipality…says absolutely not. We’re not going to pay you one penny. Now, of course, if you want to take us to court, we’re going to fight you tooth and nail all the way through the state court system, and if in the end you get a judgment that says that there was a taking and you’re entitled to a certain amount of just compensation, we’re going to pay that. Now you’re saying that there has been no violation of the Takings Clause until the end of that state court litigation, right?
SACHS: We are saying there has been no constitutional violation until there is a failure to provide the process for recovering just compensation.
These arguments sounded no different from the first time around with the eight-justice bench.
And if you assumed the ninth justice, Brett Kavanaugh, would tilt the court toward property owners, I’m not so sure about it. He seemed hung up on the idea that taking this issue away from the state courts was an implicit insult — as though state court judges and juries can’t handle the problem.
So Justice Stephen Breyer cast about for another way.
BREYER: Is there some kind of middle position here?….I mean, I think what people are worried about is that, that they’re tied up forever in the state courts and then they can’t even get to a federal court. But could you say where the state doesn’t have a speedy fair system for determining if there’s compensation or not then you can go into federal court? That would be totally practical.
The town lawyer said it takes about two years to go through the state process. But human nature being, well, human nature, it’s not much of a stretch to imagine we’ll have a big fight over whether that’s really “speedy.”
And pity poor Rose Mary Knicks.
It takes a lot of stamina, not to mention treasure, to fight these things. Of course, fighting it out costs municipalities plenty of taxpayer treasure, too. And I don’t think this second argument shed new light on anything.
OK, this next case has something for everyone: seemingly simple language in a statute, esoteric legal analysis of what that language means, and two opposing lawyers who couldn’t be more different in style, yet matched in skill.
Here are the facts of this one, starting with the opposing parties: Oracle USA, a software company, and Rimini Street, another software company. In 2010, Oracle filed a copyright lawsuit against Rimini Street for making unauthorized copies of its product.
Oracle won and Rimini Street had to pay millions of dollars in damages. Not only that, the loser was also ordered to pay millions more for the legal costs incurred by the winner.
And now the fight is over what the Copyright Act means when it says the loser pays all. Just what are the “full costs” of litigation? Taxable costs or non-taxable costs? What about expert-witness fees, travel expenses, salaries?
Rimini Street lawyer Mark Perry says there’s a way to cut through the confusion. Listen here to his genteel style and his kind reference to his opponent, his friend, Paul Clement, representing Oracle.
PERRY: We have here two words: “full costs.” We actually agree, my friend Mr. Clement and I, on “full.” It means all, or all that can be contained, or complete, or something of that nature. The dispute is on “costs” because, just as the full moon doesn’t tell us anything about Mars and Venus, “full costs,” we submit, doesn’t tell the court anything about fees and expenses.
Paul Clement is a former Solicitor General, a witty, straight shooter sort of man. Clement argued Congress used the word “full” in the Copyright Act for a reason. Plain meanings are just that, and courts should pay heed. Not what the other side is arguing at all. Listen to this exchange with Justice Brett Kavanaugh:
CLEMENT: That’s a lot of wreckage and carnage for ignoring the plain meaning of a statute. And I think the far better course…
KAVANAUGH: There is a lot of redundancy as you well know in the US Code, though….I’m not sure that’s carnage.
CLEMENT: This is the difference and this is what makes it carnage…and Justice Scalia makes exactly this point in his book on reading law about the rule against superfluity. Where it’s really, there really is carnage. It’s where there’s an important word in the statute that is a modifier that’s just inconvenient for the judges. And they just ignore that word, even though it’s there.
Well, points for visual drama: carnage, wreckage. Clement cuts to the chase. But in this exchange, Justice Breyer gives us a peek into how the laws that govern us are actually written.
CLEMENT: Not one word of the statute is superfluous.
BREYER: What do you say, is there anything that will help me, and I might be unique in this, but I often think that Congress, when it uses these words doesn’t really think about it. (laughter) They go up to the drafting section, there is a drafting section, and you’ll get a young man or woman there who has to write a very complicated statute, and – and they might use words they don’t really think about.
And so I look to a lot of other things, as in Murphy.
Murphy is a 2006 case that also delved into the meaning of “costs.” Clement may have had an ally in Justice Breyer, who thought “costs” in that case meant close to what Clement argues it should mean here.
But apparently Justice Breyer is struggling.
BREYER: I made that kind of point in Murphy, and I — I said let’s look at what Congress wanted. And I had a — I thought fabulous. But, unfortunately, it wasn’t fabulous enough because I was writing a dissent. (Laughter.) All right?…But the majority said in that case: No, they don’t get their attorneys’ fees. So am I stuck with that? You say no? Well, well, this is a general problem. Go back to your lengthy career. When do I say, well, I lost; I lost in the consideration of that, so how long do I keep — what rule do I follow? What approach do I take? And how long do I keep referring to a dissenting approach or view when others think the contrary?
CLEMENT: Well, Justice Breyer, far be it from me to give you career advice — (Laughter.) — but I would think —
BREYER: No, no, that’s what I’m asking for.
CLEMENT: I would think that the one thing you never — you never abandon, just because you’re in the dissent, is your basic approach to statutory construction. I mean, Justice Scalia, God rest his soul, was in dissent in a lot of cases, insisting on the plain meaning. He never turned around and said, well, I’m tired; I’m going to look at the legislative history this time around. So that would be my — my sort of —
BREYER: Pity. (Laughter.)
CLEMENT: That would be my career advice on that…
Each side says the other side’s interpretation of the Copyright Act’s phrase “full costs” is wrong.
There’s some hard rain here obscuring obstacles in our way. Because appeals courts have issued contradictory rulings, what we call in the law a split in the circuits.
So it’s up to the Supreme Court to rule and help us all see clearly now.
And that’s this week’s Legal Docket.