Judge Bybee writes a very long, very detailed takings opinion this morning -- one that finds that the mobile home rent control ordinance in Goleta constitutes a regulatory taking. He's got a point. One that conservative judges (and their clerks) are often especially keen on nowadays.
But I'm not sure this opinion is going to stand. Sure, it's hard to get a fact-bound opinion like this one taken en banc. And, yes, Judge Bybee was able to persuade Judge Goodwin -- hardly a huge right-winger -- onboard.
But Judge Bybee loses Judge Kleinfeld -- hardly a leftie -- who writes a very short but fairly persuasive disssent that argues that this isn't a taking, at least as applied to these mobile home park owners (who purchased the property after the rent control ordinance at issue had already been enacted). Plus, there are a variety of different docrinal ways to bounce this case (standing, ripeness, etc.), and while Judge Bybee responds to each, there's a lot here upon which to grab a vote or two from even otherwise sympathetic judges. Not to mention those who think that rent control regulations are a good thing and far from a taking.
So I think there's a very decent shot this case gets taken en banc, or (failing that) even that the Supeme Court steps in and reverses. Not because this is an "out of control liberal Ninth Circuit going amok." But rather because I think this case probably comes out differently with a limited en banc draw or Supreme Court review.
So stay tuned.
