When the Supreme Court dismissed review in Bottini v. City of San Diego last week, it missed an opportunity to make law on what regulatory action constitutes a taking, for which a government must give just compensation. But, as appellate lawyer and former Chair of the State Bar Board of Trustees Michael Colantuono reminded me, the court’s action also reinstates the full precedential effect of the Court of Appeal’s opinion in the case.
Used to be that the Supreme Court’s grant of review depublished the Court of Appeal opinion in the case, making the opinion unciteable. Three years ago, however, the court changed the rule, allowing a published opinion to remain published pending review, although the opinion’s precedential effect is diluted; before the Supreme Court decides the case, the Court of Appeal opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only.” But, if review is dismissed, as in Bottini, the “opinion regains binding or precedential effect.”
The Fourth District, Division One, Court of Appeal in Bottini recognized the differences between a U.S. Supreme Court opinion and an earlier California Supreme Court opinion for determining whether there has been a regulatory taking. It applied the U.S. Supreme Court’s more property-owner-friendly test, essentially finding the California Supreme Court test to be a dead letter, but it held the property owners in the case lost under the U.S. Supreme Court test anyway.
So, now there’s a Court of Appeal opinion — Bottini — telling the superior courts to apply the U.S. Supreme Court standard, but there remains the California Supreme Court opinion, which has not been overruled, that states a different standard. Normally, reinstating a Court of Appeal opinion’s binding effect upon dismissal of review would send a clear signal. In this case, however, maybe not so much.