On Blueberry Hill – Property Owner Seeks Injunction from US Supreme Court

by: Joseph Grather
1 May 2020

Not very sexy to sing ‘I found my thrill on Blueberry Hill Public Golf Course & Lounge’, but these are strange days indeed.

The name of the case is actually “Friends of Danny DeVito v. Tom Wolf” but if I were the property owner’s lawyer I would have led with Blueberry Hill….

I digress.  This is one of several cases in the pipeline that have challenged “Executive Authority” to shut down private business in the name of the public good.  It is the first to reach the U.S. Supreme Court.

The Petition is a quick read and it tells a now familiar tale.  Property owner complains that an executive shut-down order that allows only essential businesses to operate is unconstitutional for several reasons, including, a “taking” of “private property” without without payment of “just compensation.”  The example in the petition – a golf course whose business income is, of course, tied directly to its use and enjoyment of the land itself.

The Chief Justice of the Pennsylvania Supreme Court’s dissent underscored the devastating nature of the lock-down Order even though it is “temporary”:

“I am less confident, however, in the majority’s conclusion that “summary administrative action” by the executive branch to close many businesses throughout the Commonwealth must evade judicial review as a check against arbitrariness.  While the majority repeatedly stresses that such closure is temporary, see id., this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast. Significantly, moreover, the Supreme Court of the United States has admonished that the impermanent nature of a restriction “should not be given exclusive significance one way or the other” in determining whether it is a proper exercise of police power. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 307 (2002).”

Reminds me of the public private dichotomy found in Pennsylvania Coal v. Mahon (260 U.S. 393 (1922)) – where Justice Holmes’ majority opinion found a taking after penning one his most famous lines:

“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power.”

The rationale for a taking was that the regulation went “too far” because it prevented the property owner from extracting 100% of the coal on the property subject to the regulation.

Justice Frankfurter’s dissent argued that there was no taking by espousing his infamous denominator theory – that one had to look at all the owners’ property to determine whether there was a taking (which theory won the day in Penn Central v. City of New York, 438 U.S. 104 (1978)).  The point is, much like when Justice Holmes found a taking where a regulation prevented a coal company from mining for 100% of the coal on the property affected by the regulation, if a temporary government regulation prohibits you from using your property (and ultimately “takes” your business), it arguably should come within the purview of the just compensation clause of the Fifth Amendment.

The takings question could be avoided by focusing on the standards for injunctive relief.  It will be interesting to see whether the Supreme Court takes the case….