Amicus Curiae Brief — Violet Dock Port, Inc., LLC, Petitioner v. St. Bernard Port, Harbor, & Terminal District

No. 17-1656

In The

Supreme Court of the United States

♦

VIOLET DOCK PORT, INC., L.L.C.,

v.

Petitioner,

ST. BERNARD PORT, HARBOR, & TERMINAL

DISTRICT,

♦

Respondent.

On Petition for a Writ of Certiorari to the

Louisiana Supreme Court

♦

BRIEF OF AMICI CURIAE

OWNERS’ COUNSEL OF AMERICA AND

INSTITUTE FOR JUSTICE

IN SUPPORT OF PETITIONER

♦

Robert H. Thomas

Counsel of Record

Loren A. Seehase

Ross Uehara-Tilton

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street

16th Floor

Honolulu, Hawaii 96813

(808) 531-8031

rht@hawaiilawyer.com

Dana Berliner

INSTITUTE FOR JUSTICE

901 North Glebe Road

Suite 900

Arlington, Virginia 22203

(703) 682-9320

Counsel for Amici Curiae

QUESTIONS PRESENTED

The St. Bernard Port, Harbor & Terminal District

used its eminent domain power to seize Petitioner’s

fully-functioning and profitable private port facility

to lease it to another private port operator to operate

in a similar manner, even taking over Petitioner’s

customers in the process. The taking was not part of

a comprehensive redevelopment plan, nor was Petitioner’s property blighted or causing any public

harm. The intended private recipient of the property

was intimately involved in all aspects of the taking

from its earliest planning stages, to the local government’s applications for state funding, to taking

over operations on the property post-taking.

The Louisiana Supreme Court, relying on Kelo v.

City of New London, 545 U.S. 469 (2005), upheld the

taking by holding “this expropriation satisfies the

broad definition of public purpose under federal law.”

The questions presented are:

1. Did the Louisiana Supreme Court err when it

held that the Fifth Amendment’s “public use” requirement is a question of fact to be resolved in the

trial court, subject only to manifest error review on

appeal?

2. Do the Fifth and Fourteenth Amendments prohibit government from taking a fully-functioning

private facility with the intent to lease it to another

private entity to operate, with the revenues earned

from those operations to be shared by both the local

government entity and its favored private actor?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............................

i

TABLE OF CONTENTS ...................................

ii

TABLE OF AUTHORITIES..............................

iii

INTEREST OF AMICI CURIAE ......................

1

SUMMARY OF ARGUMENT ...........................

3

ARGUMENT .....................................................

7

I.

MEANINGFUL JUDICIAL REVIEW

IS NEEDED BECAUSE THE

POLITICAL PROCESS DOES NOT

PROTECT PROPERTY OWNERS ..........

7

PUBLIC USE OBJECTIONS SHOULD

BE CONSIDERED BY APPLYING

THE SAME ANALYSIS THAT

COURTS EMPLOY WHERE OTHER

CONSTITUTIONAL RIGHTS ARE

INFRINGED BY FACIALLY

NEUTRAL ACTION..................................

12

III. JUDICIAL REVIEW MEANS MORE

THAN DEFERENCE ................................

18

CONCLUSION ..................................................

23

II.

iii

TABLE OF AUTHORITIES

Page

CASES

Bacich v. Bd. of Control,

144 P.2d 818 (Cal. 1943) ..................................... 12

Berman v. Parker, 348 U.S. 26 (1954) ............. 7, 8, 12

Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868 (2009) ............................................. 15

Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520 (1993) ......................... 15

City & Cty. of Denver v. Block 173 Assocs.,

814 P.2d 824 (Colo. 1991) ................................... 22

City of Lafayette v. Town of Erie,

No. 17CA0595, 2018 Colo. App. LEXIS

899 (Colo. App. June 14, 2018) ...................... 18-22

City of Lafayette v. Town of Erie Urb.

Renewal Auth., No. 2016CV307901

(Colo. Dist. Ct. Boulder Cty., Feb. 16,

2017) ............................................................... 19-20

City of Norwood v. Horney,

853 N.E.2d 1115 (Ohio 2006) ............................... 1

County of Hawaii v. C & J Coupe Family

Ltd. P’ship, 198 P.3d 615 (Haw. 2010) ............... 14

County of Hawaii v. C & J Coupe Family

Ltd. P’ship, 208 P.3d 713 (2009),

cert. denied, 565 U.S. 881 (2011) ........................ 10

Dolan v. City of Tigard, 512 U.S. 374 (1992) .... 15, 17

Fideicomiso De La Tierra Del Caño Martin

Peña v. Fortuño,

604 F.3d 7 (1st Cir. 2010) ................................... 14

Franco v. Nat’l Capital Revitalization

Corp., 930 A.2d 160 (D.C. 2007) ......................... 13

Glenelk Ass’n, Inc. v. Lewis,

260 P.3d 1117 (Colo. 2011) ................................. 21

iv

TABLE OF AUTHORITIES--Continued

Page

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984) ...................................... 7-8, 12

Kelo v. City of New London,

545 U.S. 469 (2005) ...................................... passim

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........................................... 14

Mayor and City Council of Baltimore City

v. Valsamaki, 916 A.2d 324 (Md. 2007) .. 12, 13-14

Middleship Township v. Lands of Stone,

939 A.2d 331 (Pa. 2007) ...................................... 13

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000) ............................................. 14

Nollan v. Cal. Coastal Comm’n,

482 U.S. 825 (1987)....................................... 11, 16

Rhode Island Econ. Dev. Corp. v. The

Parking Co., 892 A.2d 87 (R.I. 2006)............ 13, 20

Silver Dollar Metro. Dist. v. Goltra,

66 P.3d 170 (Colo. App. 2002) ............................ 21

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ............................................... 9

Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp.,

429 U.S. 252 (1977) ............................................. 15

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926) ............................................ 7-8

v

TABLE OF AUTHORITIES--Continued

Page

CONSTITUTIONS

U.S. Const. amend. V ...................................... passim

OTHER AUTHORITIES

Jeff Benedict, Little Pink House: A True

Story of Defiance and Courage (2009) ................. 5

Charles E. Cohen, Eminent Domain After

Kelo v. City of New London: An

Argument for Banning Economic

Development Takings,

29 Harv. J.L. & Pub. Pol’y 491 (2006)................ 17

James W. Ely, The Guardian of Every

Other Right: A Constitutional History of

Property Rights (3d ed. 2008)............................... 1

Charles M. Haar, “In Accordance With a

Comprehensive Plan”,

68 Harv. L. Rev. 1154 (1955) ................................ 8

Harvey M. Jacobs and Ellen M. Bassett,

All Sound, No Fury? The Impacts of

State-Based Kelo Laws,

63 Planning & Envtl. L. 3 (2011) ......................... 5

vi

TABLE OF AUTHORITIES--Continued

Page

Stephen J. Jones, Trumping Eminent

Domain Law: An Argument for Strict

Scrutiny Analysis Under the Public Use

Requirement of the Fifth Amendment,

50 Syracuse L. Rev. 285 (2000) .......................... 11

Gideon Kanner, Detroit and the Decline of

Urban America,

2013 Mich. St. L. Rev. 1547 ....................... 9-10, 12

Gideon Kanner, We Don’t Have to Follow

Any Stinkin’ Planning—Sorry about

That, Justice Stevens,

39 Urb. Law. 529 (2007) ....................................... 9

Donald J. Kochan, “Public Use” and the

Independent Judiciary: Condemnation

in an Interest-Group Perspective,

3 Tex. Rev. L. & Pol. 49 (1998) ........................... 11

Richard E. Levy, Escaping Lochner’s

Shadow: Toward a Coherent

Jurisprudence of Economic Rights,

73 N.C. L. Rev. 329 (1995) .................................. 11

Little Pink House

(Korchula Productions, 2017) ............................... 5

Carla T. Main, Bulldozed: “Kelo,” Eminent

Domain and the American Lust for

Land (2007) ........................................................... 5

vii

TABLE OF AUTHORITIES--Continued

Page

Laura Mansnerus, Public Use, Private

Use, and Judicial Review in Eminent

Domain, 58 N.Y.U. L. Rev. 409 (1983) ......... 11, 12

Justin Nobel, Pipeline Protesters Take to

The Trees, Rolling Stone (May 15, 2018) ............. 3

Our Story, Eminent Domaine,

http://www.eminentdomaine.com/

our-story/ (last visited July 8, 2018) ................. 3-4

Brittany Peterson and Stuart

Leavenworth, Pennsylvanians speak out

about losing their land to a Sunoco

pipeline, Miami Herald (June 1, 2017) ................ 3

Rick Romell, Village of Mount Pleasant

declares Foxconn area as blighted, may

use eminent domain to take properties,

Milwaukee J. Sentinel (June 5, 2018).................. 3

Ilya Somin, The Grasping Hand: “Kelo v.

City of New London” and the Limits of

Eminent Domain (2015) ....................................... 4

Ilya Somin, The Judicial Reaction to Kelo,

4 Albany Gov’t L. Rev. 1 (2011) ...................... 5, 13

viii

TABLE OF AUTHORITIES--Continued

Page

Ilya Somin, The political and judicial

reaction to Kelo, Washington Post,

(June 4, 2015),

https://www.washingtonpost.com/news/

volokh-conspiracy/wp/2015/06/04/thepolitical-and-judicial-reaction-to-kelo/ ................. 5

Dean Starkman, Condemnation Is Used to

Hand One Business Property of

Another, Wall. St. J., Dec. 2, 1998) .................... 10

INTEREST OF AMICI CURIAE1

1. Owners’ Counsel of America. OCA is an invitation-only national network of the most experienced

eminent domain and property rights attorneys. They

have joined together to advance, preserve, and defend

the rights of private property owners, and thereby

further the cause of liberty, because the right to own

and use property is “the guardian of every other

right,” and the basis of a free society. See James W.

Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (3d ed. 2008). OCA is

a non-profit 501(c)(6) organization sustained solely

by its members. OCA members and their firms have

been counsel for a party or amicus in many of the

property cases this Court has considered in the past

forty years, and OCA members have also authored

and edited treatises, books, and law review articles

on property law, eminent domain, and property

rights.

2. Institute for Justice. The Institute for Justice

(IJ) is a nonprofit, public interest law center committed to defending the essential foundations of a free

society through securing greater protection for

individual liberty and restoring constitutional limits

on the power of government, including restoring

limits on the power to take property. IJ has represented many property owners in opposing eminent

domain for private development in both federal and

state courts. See, e.g., Kelo v. City of New London,

549 U.S. 469 (2005); City of Norwood v. Horney, 853

N.E.2d 1115 (Ohio 2006). IJ also regularly files

1. All parties have consented to the filing of this brief. Counsel of record for the parties received timely notice of the intention to file this brief. Amici affirm that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

amicus briefs on the proper construction and application of “public use” under the U.S. Constitution, as

well as the construction of similar language under

state constitutions.

Amici are submitting this brief because this case

offers an opportunity for the Court to clarify whether

there are any realistic limitations on the power of

eminent domain, and to affirm the central role of

judicial review in enforcing a fundamental constitutional limitation on the power of government. We

believe our viewpoint and this brief will be helpful to

the Court.

♦

3

SUMMARY OF ARGUMENT

In a nation seemingly besieged by a vortex of divisive

issues, you only need to glance at a newspaper to

understand that eminent domain is one of the most

contentious. Takings for pipelines.2 Protesters sitting

in trees.3 Blight designations supporting condemnations for a new plant for a multinational electronics

manufacturer.4 There is even an “Eminent Domaine”

winery.5 But unlike many other hot-button issues,

2. Brittany Peterson and Stuart Leavenworth, Pennsylvanians speak out about losing their land to a Sunoco pipeline,

Miami Herald (June 1, 2017) (“Any day now, a pipeline company will arrive on Ralph Blume’s land in southern Pennsylvania

to remove a hay shed. The shed sits on the route of the new

Mariner East 2 pipeline, which Sunoco is building to transport

natural gas liquids to the East Coast and abroad. Blume, 76,

doesn’t plan to make it easy for Sunoco contractors. ‘I’ll sit in

the damn building, and they can go to hell,’ he said, one week

after he watched Sunoco contractors cuts down trees on his

farm.”).

3. Justin Nobel, Pipeline Protesters Take to The Trees, Rolling

Stone (May 15, 2018) (“On March 28th, ‘Nutty’ planted herself

atop a fifty-foot pole–the timber of a tulip poplar tree—in

Virginia’s Jefferson National Forest to block the path of a

proposed natural gas pipeline.”).

4. Rick Romell, Village of Mount Pleasant declares Foxconn

area as blighted, may use eminent domain to take properties,

Milwaukee J. Sentinel (June 5, 2018) (“And Monday’s action

likely will further sharpen the battle lines already drawn over

the Foxconn project, which is lauded by proponents as an

engine of economic transformation and criticized by detractors

as a taxpayer-financed boondoggle and environmental threat.”).

5. “Eminent Domaine” is a winery in Newberg, Oregon:

The name, Eminent Domaine, is a reflection of our experience with the legal term, eminent domain, our dedication to

the Oregon wine industry and our love of the wines produced in our region.

(footnote continued on next page…)

4

the focus on eminent domain has an easilyidentifiable point source: this Court’s decision in Kelo

v. City of New London, 545 U.S. 469 (2005).

In Kelo, this Court’s majority approved the taking

of non-blighted family-owned homes, concluding that

seizing property from one private owner and turning

it over to another private owner for purposes of

economic development was generally consistent with

the Public Use Clause as long as it was accomplished

within the confines of a transparent and objective

overall development plan. Thus, the public purpose

of the development plan of which the taking is a part

(and not the public use of the specific taking being

challenged) is the measure of constitutional validity.

See id. at 480 (“The disposition of this case therefore

turns on the question whether the City’s development plan serves a ‘public purpose.’”).

The reaction was swift. See Ilya Somin, The Grasping Hand: “Kelo v. City of New London” and the

Limits of Eminent Domain (2015). The majority

ruling resulted in a “massive and unprecedented

political reaction . . . [which] attracted intense and

(…footnote continued from previous page)

In 2002 the City of Portland cited eminent domain as reason for claiming an office building we owned downtown. We

began negotiations, as we agreed with the intent of the law,

which states that the property would be used for the public

good in exchange for a price based on fair market value.

However, when both qualifiers came into question, a

lengthy legal process ensued. Despite having a more favorable outcome from arbitration, the compensation was low

and the property was used for undisclosed purposes.

Our Story, Eminent Domaine, http://www.eminentdomaine.

com/our-story/ (last visited July 8, 2018).

5

widespread hostility.” Ilya Somin, The political and

judicial reaction to Kelo, Washington Post, (June 4,

2015), https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/06/04/the-political-and-judicialreaction-to-kelo/. Forty-five states and the federal

government “enacted legislation intended to curb

economic development takings; this is probably the

broadest legislative reaction ever generated by any

Supreme Court ruling.” Ilya Somin, The Judicial

Reaction to Kelo, 4 Albany Gov’t L. Rev. 1, 2 (2011)

(footnotes omitted). The ripple effect of Kelo was felt

across “partisan, ideological, racial, and gender”

lines. Id. The public’s reaction was no less intense.

The decision resulted in mass-market books. See Jeff

Benedict, Little Pink House: A True Story of Defiance and Courage (2009); Carla T. Main, Bulldozed:

“Kelo,” Eminent Domain and the American Lust for

Land (2007). Susette Kelo’s story was even dramatized in a feature film. See Little Pink House (Korchula Productions, 2017).

But this legislative and public reaction has resulted

in only limited protections for property owners on the

target end of abusive takings, because state laws are

often riddled with exceptions adopted to favor special

interest groups, and in application, property owners

such as Petitioner continue on an uneven playing

field. See Harvey M. Jacobs and Ellen M. Bassett, All

Sound, No Fury? The Impacts of State-Based Kelo

Laws, 63 Planning & Envtl. L. 3, 7 (2011) (“But

among a set of supporters and advocates of these

state laws there appears to be a broad consensus

that there has been little substantive impact from

them. Overall, the laws are characterized as more

symbolic than substantive in nature and content.”).

Highly deferential judicial review continues to limit

6

the proper role of the judiciary as a check on the

legitimacy of the exercise of eminent domain authority.

Kelo recognized that an exercise of eminent domain

“under the mere pretext of a public purpose, when its

actual purpose [is] to bestow a private benefit,”

would be unconstitutional. Id. at 478. Kelo left unresolved the question of when a taking—ostensibly for

public use—will instead confer private benefit because it was not “executed pursuant to a ‘carefully

considered’ development plan, there was “evidence of

an illegitimate purpose,” and the result is “to benefit

a particular class of identifiable individuals.” Id. The

Court did not further address the question because

“[s]uch a one-to-one transfer of property, executed

outside the confines of an integrated development

plan, [was] not presented in [that] case. While such

an unusual exercise of government power would

certainly raise a suspicion that a private purpose

was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise.” Id. at

487 (footnotes omitted).

This is that case. The Port’s taking of a fullyfunctioning docking facility and turning it over to a

previously identified competitor to operate was not

part of a publicly beneficial plan, and this case

includes all of the factors identified by Kelo as indicators of pretext: a known private beneficiary driving

the process; no integrated or independent development plan; little public benefit from the taking; and

an exercise of eminent domain so unusual that it

shows the actual character of the taking was not

public use or purpose. Because of these factors, the

Public Use Clause required that the courts consider

the case with less than the usual deference and

7

should have viewed the taking with heightened

scrutiny.

Amici make three points in this brief. First, meaningful judicial review under the Public Use Clause is

essential because the political process does not

adequately protect property owners from abusive

takings. The record in this case aptly illustrates how

favored private players can capture the process, even

while the condemnor’s stated purposes for the taking

remain neutral. Second, Public Use Clause objections

should be considered by applying the same analysis

that the courts use where other constitutional rights

are claimed to be denied by facially neutral government action. Finally, we set out the analytical and

evidentiary framework which should have governed

this case.

This Court is uniquely positioned to calm the waters on the question of when a taking of property “for

the purpose of conferring a private benefit on a

particular private party” passes Public Use Clause

muster. Id. at 477. This case presents an excellent

vehicle to do so.

ARGUMENT

I. MEANINGFUL JUDICIAL REVIEW IS

NEEDED BECAUSE THE POLITICAL

PROCESS DOES NOT PROTECT PROPERTY

OWNERS

In Kelo, the Court formally “Euclidized” the Public

Use Clause. The arc began in Berman v. Parker, 348

U.S. 26, 32 (1954), when the Court concluded that a

legislative declaration of the public interest is “wellnigh conclusive.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) expanded the concept by

expressly equating the eminent domain power and

8

the police power. Id. at 240 (“The ‘public use’ requirement is thus coterminous with the scope of a

sovereign’s police powers.”). Then, in Kelo, the Court

completed the arc by concluding that if a particular

taking could conceivably be considered part of a

comprehensive plan, the public purpose of the taking

was established, even if the specific transfer was to

take property from “A” and give it to “B” without a

particularized determination of public use or purpose.6 Relying upon Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926)—the case which

upheld a municipality’s power to zone provided it is

exercised in the context of a “comprehensive plan”—

Kelo upheld the New London taking because it was

part of what the majority concluded was a wellconsidered plan of “comprehensive character.” Kelo,

545 U.S. at 484. Eminent domain has thus become,

like zoning, just another tool in the government’s

regulatory toolbox. Professor Haar would no doubt

approve. See Charles M. Haar, “In Accordance With a

Comprehensive Plan”, 68 Harv. L. Rev. 1154 (1955)

(the comprehensive plan is the foundation of zoning,

and the basis of judicial deference to such exercises

of the police power). Courts view zoning and other

police power regulations though the “rational basis”

lens because they are, at least in theory, adopted by

transparent and comprehensive processes. Robust

6. Kelo, 545 U.S. at 484 (“Given the comprehensive character

of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for

us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of

the entire plan. Because that plan unquestionably serves a

public purpose, the takings challenged here satisfy the public

use requirement of the Fifth Amendment.”).

9

judicial scrutiny is not necessary under this theory

because the remedy for an owner whose property’s

value may be impacted by regulations lies in the

arena of politics, not with the courts. A conclusion

that pronouncements of public use are coterminous

with the police power is similarly dependent upon

the expectation that a property owner targeted by

eminent domain has sufficient political capital to

participate meaningfully in the legislative process,

and the courts should not interfere in such areas

where representative bodies have more institutional

competence to balance questions of public policy. See,

e.g., United States v. Carolene Products Co., 304 U.S.

144 (1938).

That assumption is severely undermined, however,

because there are critical differences between an

exercise of the government’s power to regulate property (even if it may devalue it severely as a result),

and its power to seize it outright, even upon payment

of compensation. See Gideon Kanner, We Don’t Have

to Follow Any Stinkin’ Planning—Sorry about That,

Justice Stevens, 39 Urb. Law. 529, 536 (2007) (“The

Municipal Precondemnation Plans Are Not Worth

the Paper They Are Written on”). The dissent in Kelo

identified the precise issue: “when deciding if a

taking’s purpose is constitutional, the police power

and ‘public use’ cannot always be equated.” Kelo, 545

U.S. at 501 (O’Connor, J., dissenting). The conflation

of police power with eminent domain is even less apt

in situations like the case here, where the targeted

property owner is often in a class of one and unable

to organize with others with similar interests to

object, because there are no others being targeted:

For reasons that have not been judicially explained, in administering eminent domain

10

laws, courts abandoned their cherished role of

impartial guardians of constitutional rights who

get to pass on the constitutionality of government activities and to invoke provisions of the

Bill of Rights to protect the citizen from government abuses. Instead, the U.S. Supreme Court

justices and lower court judges took the position

that eminent domain takings are almost entirely

a legislative matter, even though decisions to

take specific properties are actually made by

unelected local government functionaries (who

are often influenced by the lobbying of the ultimate, usually private, beneficiaries of the redevelopment process.

Gideon Kanner, Detroit and the Decline of Urban

America, 2013 Mich. St. L. Rev. 1547, 1552 (citing

Dean Starkman, Condemnation Is Used to Hand One

Business Property of Another, Wall. St. J., Dec. 2,

1998, at A1). And these decisions often are not made

by elected legislative bodies, as the courts have

assumed. Redevelopment agencies, highway departments, and regional transportation authorities, for

example, often make the call about whether and

what to take. See, e.g., Kelo, 545 U.S. at 474-75 (New

London Development Corporation). Even other

private landowners are delegated the power to decide

what to take. See, e.g., County of Hawaii v. C & J

Coupe Family Ltd. P’ship, 208 P.3d 713 (2009) (upholding condemnation undertaken at the behest of a

private developer in a development agreement), cert.

denied, 565 U.S. 881 (2011).

The reality is also that the owners of property generally targeted by these types of takings lack the

wherewithal to compete in a survival-of-thewealthiest contest with a well-financed special

11

interest bent on acquisition. See Stephen J. Jones,

Trumping Eminent Domain Law: An Argument for

Strict Scrutiny Analysis Under the Public Use Requirement of the Fifth Amendment, 50 Syracuse L.

Rev. 285, 302 (2000) (citing Laura Mansnerus, Public

Use, Private Use, and Judicial Review in Eminent

Domain, 58 N.Y.U. L. Rev. 409, 436 (1983)). Eminent

domain also is subject to the risk that it may be more

efficient for private parties who desire to acquire

another’s property to “invest” in eminent domain

action through the condemning agency than it is to

attempt to purchase the property on the open market. Donald J. Kochan, “Public Use” and the Independent Judiciary: Condemnation in an InterestGroup Perspective, 3 Tex. Rev. L. & Pol. 49, 52

(1998). In cases like these, no judicial deference is

due a condemning authority’s determination since

“the results of a manipulated political process are no

more legitimate than those of the unelected judiciary.” Jones, Trumping Eminent Domain, 50 Syracuse

L. Rev. at 302 (citing Richard E. Levy, Escaping

Lochner’s Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. Rev. 329, 36263 (1995)).

Nollan v. Cal. Coastal Comm’n, 482 U.S. 825 (1987)

is one example in which this Court applied heightened judicial scrutiny to certain categories of landuse regulations to ensure that a regulatory action

requiring the surrender of property for a purported

public purpose was indeed for a public use and not

“an out-and-out plan of extortion.” Id. at 837. The

Port’s affirmative appropriation of property from

Petitioner presents the same threat: that the condemning authority, rather than representing the

consent of the governed, has been captured by special

12

interests or has an ulterior motive. See Mansnerus,

Public Use, Private Use, 58 N.Y.U. L. Rev. at 432.

Thus, Berman, Midkiff, and Kelo’s wholly uncritical

and deferential approach—is there any other area of

constitutional jurisprudence where the legislature’s

pronouncement is treated as “well-nigh conclusive?”—is not readily adaptable to takings such as

Petitioner’s, and “[t]here is nothing in the Constitution that requires such a subservient attitude on the

part of the court in the context of eminent domain

any more than in other fields of constitutional law.

As the California Supreme Court made clear, it is

simply a judicial policy choice.” Kanner, Detroit and

the Decline, 2013 Mich. St. L. Rev. at 1553 (citing

Bacich v. Bd. of Control, 144 P.2d 818, 823, 826 (Cal.

1943)).

II. PUBLIC USE OBJECTIONS SHOULD BE

CONSIDERED BY APPLYING THE SAME

ANALYSIS THAT COURTS EMPLOY WHERE

OTHER CONSTITUTIONAL RIGHTS ARE

INFRINGED BY FACIALLY NEUTRAL

ACTION

Kelo left open a role for the courts to play in “ferreting out takings whose sole purpose is to bestow a

benefit on the private transferee,” but as Justice

O’Connor pointed out in dissent, the majority did not

“detail[] how courts are to conduct that complicated

inquiry.” Kelo, 545 U.S. at 466 (O’Connor, J., dissenting). Kelo did not define “mere pretext,” and following the decision, there was a “virtual blizzard of

articles, treatises, law review articles, and the like”

seeking clarification. Mayor and City Council of

Baltimore City v. Valsamaki, 916 A.2d 324, 267 n.25

(Md. 2007). The judiciary has fared no better than

legal scholars, and in the intervening years, the

13

lower courts have vainly searched for a consistent

approach for determining when, if ever, an allegedly

pretextual taking will be subject to heightened

scrutiny, or whether there are any circumstances in

which the presumption in favor of validity should

shift. See Somin, The Judicial Reaction to Kelo, 4

Albany Gov’t L. Rev. at 35-36 (“As should be evident . . . there is noconsensus among either state or

federal judges on the criteria for determining what

counts as a pretextual takings claim after Kelo. . . . It

seems unlikely that any consensus will emerge in

this area any time soon, unless the Supreme Court

decides to review a case that settles the dispute.”).

Some courts read Kelo to say that the lack of a comprehensive plan means the asserted public use is

pretextual. In Middleship Township v. Lands of

Stone, 939 A.2d 331 (Pa. 2007), the court concluded

that “evidence of a well-developed plan of proper

scope is significant proof that an authorized purpose

truly motivates a taking.” Id. at 338. Similarly, in

Rhode Island Econ. Dev. Corp. v. The Parking Co.,

892 A.2d 87 (R.I. 2006), the court contrasted the

“exhaustive preparatory efforts that preceded the

takings in Kelo” to conclude that the government has

a higher burden in quick-take condemnations than it

has in “regular” takings. Id. at 104. The court concluded that the lack of a Kelo plan showed that the

condemnor’s “principal purpose” for the taking was

to achieve by way of condemnation that which it

could not achieve by agreement. Id. at 106. In

Valsamaki, the court shifted the burden to the

condemnor to show “concrete, immediate necessity”

with “specific and compelling evidence” when it uses

quick-take procedures, and to show what plans it

had for the property beyond future “mixed-use devel-

14

opment.” Valsamaki, 916 A.2d at 352-53 (citing Kelo,

545 U.S. at 473-74). In Fideicomiso De La Tierra Del

Caño Martin Peña v. Fortuño, 604 F.3d 7, 23 n.13

(1st Cir. 2010), the First Circuit held the Kelo majority opinion “should not be interpreted as barring asapplied challenges” if it is shown that lands are

“taken for purely private purposes or under the mere

pretext of a public purpose.” And in County of Hawaii v. C & J Coupe Family Ltd. P’ship, 198 P.3d 615

(Haw. 2010), the Hawaii Supreme Court adopted a

broader rule that any taking—even a taking of a

road eventually to be owned by the public—is subject

to pretext analysis if the record merits it. The court

held that “although the government’s stated public

purpose is subject to prima facie acceptance, it need

not be taken at face value where there is evidence

that the stated purpose might be pretextual[.]” Id. at

647.

That such “ferreting out” is necessary should not be

surprising. This Court has noted that a property

owner’s evidence of the government’s motivation will

almost always be based on context because the

government is rarely careless, or self-destructively

candid. See Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1025 n.12 (1992) (legislative bodies

should not be presumed to employ “stupid staffs”).

Similarly, in a taking instituted solely for a private

benefit, “[t]he government will rarely acknowledge

that it is acting for a forbidden reason.” Franco v.

Nat’l Capital Revitalization Corp., 930 A.2d 160, 169

(D.C. 2007). Evidence of private influence and impropriety are most often exercised in ways other

than “quid pro quo.” Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000). “The difficulties of inquiring

into actual bias, and the fact that the inquiry is often

15

a private one, simply underscore the need for objective rules. That same dynamic has resulted in this

Court recognizing in similar situations that a reviewing court must look to context to determine the

motivations of government officials, with the application of deeper scrutiny, or even a shifting of the

presumption of valid purpose. See e.g., Village of

Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252, 266 (1977) (“Sometimes a clear pattern, unexplainable on grounds other than race,

emerges from the effect of the state action even when

the governing legislation appears neutral on its

face.”); Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 540 (1993) (“[W]e may determine the city council’s object from both direct and

circumstantial evidence,” which includes “the historical background of the decision under challenge, the

specific series of events leading to the enactment or

official policy in question, and the legislative or

administrative history, including contemporaneous

statements made by members of the decisionmaking

body.”). Even when faced with the mere possibility of

impropriety or the appearance of potential bias, this

Court imposed a bright line prohibition. Caperton v.

A.T. Massey Coal Co., Inc., 556 U.S. 868, 877 (2009)

(“There are objective standards that require recusal

when ‘the probability of actual bias on the part of a

judge or decisionmaker is too high to be constitutionally tolerable.”). Although these cases involved equal

protection, the free exercise of religion, and judicial

recusal standards, the inquiry is no different when

property is involved, since private property is also a

fundamental constitutional right that must be respected. Dolan v. City of Tigard, 512 U.S. 374, 393

(1992) (“We see no reason why the Takings Clause of

16

the Fifth Amendment, as much a part of the Bill of

Rights as the First Amendment or the Fourth

Amendment, should be relegated to the status of a

poor relation in these comparable circumstances.”).

This Court explained in Nollan v. Cal. Coastal

Comm’n, 482 U.S. 825 (1987), the reasons why, even

though an action may advance a legitimate state

interest, it still may be subject to heightened review.

The coastal commission had conditioned permission

to build a beach-front home on the owner’s assent to

provide public access across his property. The Court

held that before the public could be invited to use

private property, the government must demonstrate

a legitimate interest in doing so, and that an “essential nexus” exists between the interest and the

means used to achieve it. Id. at 837. The Court

accepted the determination that public views of the

beach was a legitimate goal of government, and

acknowledged that the agency could have prohibited

the building of the house if it blocked such views, or

could have allowed the building of the house with

conditions designed to protect public views. Thus, the

agency could have required the property owner

“provide a viewing spot on their property for passersby with whose sighting of the ocean their new

house would interfere.” Id. at 836-37. The coastal

commission had not done so, however, but conditioned its development approval on the exaction of

public access that in no way furthered its stated goal

of protecting views. The “constitutional propriety

disappears, however, if the condition substituted for

the prohibition utterly fails to further the end advanced as the justification for the prohibition.” Id. at

837 (emphasis added). Lacking a substantial nexus

to the legitimate goal, the condition was invalid. In

17

Dolan, the Court further explained the tailored

determination which the Takings Clause requires:

We think a term such as “rough proportionality”

best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise

mathematical calculation is required, but the city

must make some sort of individualized determination that the required dedication is related both

in nature and extent to the impact of the proposed development.

Dolan, 512 U.S. at 390.

Similar scrutiny should apply here, where the taking was not in furtherance of a larger, comprehensive

plan. The beneficiary was also identified well before

the taking. Heightened scrutiny or a shifting of the

usual presumption of validity protects the public

against the danger of unrevealed private purchase

and control of public processes, strengthens public

confidence that the condemnation power is being

exercised impartially and free of insider influence,

and protects individual property owners by preserving meaningful judicial review if government appears to have been tempted to use private dealing as

a substitute for true public consideration and condemnation procedures. Cf. Charles E. Cohen, Eminent Domain After Kelo v. City of New London: An

Argument for Banning Economic Development Takings, 29 Harv. J.L. & Pub. Pol’y 491, 549 (2006)

(arguing for a per se rule by state courts or legislatures prohibiting all economic development takings

to preserve “respect for the legal system and political

process, as most citizens would intuitively (and

correctly) conclude that the beneficiaries of [an

economic development taking] would be rich and

powerful interests profiting at the expense of ordi-

18

nary property owners”). Heightened scrutiny will

help preserve the public’s confidence that the government is acting independently and free from

private influence.

III. JUDICIAL REVIEW MEANS MORE THAN

DEFERENCE

The Louisiana Supreme Court (over a three-justice

dissent) concluded the trial court’s finding of fact

that the purpose of the taking was to “build and

operate a terminal” was not “manifestly wrong.” Pet.

13a. But that should have been only the beginning of

the analysis, not the end. That the stated purpose of

the taking was public is the necessary first step, and

with a record loaded with evidence that “a private

purpose was afoot,” Kelo, 545 U.S. at 456, the court

should have looked beyond the Port’s stated purpose

for the taking and determined whether that was a

pretext for otherwise impermissible conduct. Facial

neutrality alone should not have been determinative.

The Colorado Court of Appeals recently provided an

example of how the Louisiana courts should have

treated this case. In City of Lafayette v. Town of Erie,

No. 17CA0595, 2018 Colo. App. LEXIS 899 (Colo.

App. June 14, 2018), the question was whether one

municipality—a home rule city—could take land

from a neighboring statutory city. The case arose

from what was essentially a border dispute where

the towns were merging together in the exurbs along

the corridor of Highway 287. The Lafayette side of

the corridor had plenty of development: a big

Walmart, fast food restaurants, an auto repair shop,

and a King Soopers supermarket, along with a

residential development. Erie wanted to get in on the

development of the corridor, so it formed an urban

renewal authority and purchased two vacant parcels

19

(together, now called Nine Mile Corner). A few years

later, Erie annexed Nine Mile from the renewal

agency, and declared the parcel “blighted,” a prerequisite to redevelopment. And the key new tenant of

the saved-from-blight property was going to be King

Soopers, the very same supermarket with an outlet

just south on Highway 287, but over the border in

Lafayette. King Soopers wanted “a larger store

prototype,” and Erie’s Nine Mile property looked

mighty good. Lafayette, it seems, wanted to keep

King Soopers (“and its corresponding tax revenue,”

as the court put it, id. at *4), and it courted the store

with offers of other parcels in Lafayette. But no deal.

Things moved fast. Just a couple of months after

Lafayette found out about King Soopers maybe

moving next door to the Nine Mile parcel in Erie, the

Lafayette city council approved the taking of the

Erie’s land:

for the public purpose of open space and benefits

associated with open space, as well as preservation of Lafayette’s local and unique character, and

buffering of Lafayette from development activities

in neighboring communities.

Id. at *7. When Lafayette’s offer to buy the land was

refused, it filed an eminent domain lawsuit. Erie

objected, arguing the condemnation lacked a public

purpose. After a two-day hearing, the trial court

agreed: the purpose of this taking was to stop Erie

from developing the parcel:

The articulated need of acquiring open space for

the purpose of creating a community buffer between Lafayette and Erie is inconsistent with

Lafayette’s actions in development the Hwy. 287

corridor. Instead, Lafayette’s actions are more

20

closely aligned with a previously articulated goal

to ensure that Erie does engage in commercial

development on Nine Mile Corner.

Order Granting Respondents’ Motion to Dismiss,

City of Lafayette v. Town of Erie Urb. Renewal Auth.,

No. 2016CV307901, at 15 (Colo. Dist. Ct. Boulder

Cty., Feb. 16, 2017). The court of appeals affirmed.

The court avoided the question of whether property

owned by a statutory city can be taken by a home

rule city. Apparently both cities assumed Lafayette

could reach outside its borders and take, as long as it

had the right reasons. The court noted that a Colorado home rule municipality can, generally speaking,

take land outside of its borders, even property already devoted to public use, as long as the taking is

for a public purpose. Instead, the court focused on

Lafayette’s actual motive for the taking, concluding

that the taking was motivated by the city’s desire to

keep King Sooper from opening a larger store prototype just over the border in Erie. The court concluded

Lafayette had an improper motive “to interfere with

Erie’s proposed commercial development.” Lafayette,

2018 Colo. App. LEXIS at *11. The court upheld the

stated purpose of the taking—a buffer zone—as

facially valid. But it did not stop there:

The stated public purpose of an open space buffer

is valid, but blocking Erie’s planned development— planning that predated Lafayette’s condemnation petition — is not lawful.

Id. (citing Rhode Island Econ. Dev. Corp. v. The

Parking Co., L.P., 892 A.2d 87 (R.I. 2006)).

The court reviewed the entire factual record (not

just the stated reasons for the taking) and tested

whether Lafayette’s claim that it needed a buffer

21

zone would not be satisfied by means other than

taking Nine Mile Corner. For example, “Lafayette

presented no evidence showing why the setback

incorporated in Erie’s development plans would be

insufficient to serve as a community buffer.”). Slip

op. at 17-18. Thus, the taking was pretextual. The

court concluded:

Because Erie, as the property owner, met its burden of showing bad faith, the district court

properly examined Lafayette’s finding of necessity

to determine, with record support, that the taking

to establish an open space community buffer was

pretextual and was not a lawful public purpose.

The court also indicated that Lafayette’s public

officials were highly motivated to keep King

Soopers—and the corresponding tax revenue—

within Lafayette. Accordingly, the record amply

supports the district court’s findings.

Id. at *14. (citing Silver Dollar Metro. Dist. v. Goltra,

66 P.3d 170, 174 (Colo. App. 2002); Glenelk Ass’n,

Inc. v. Lewis, 260 P.3d 1117, 1120 (Colo. 2011)).

The lessons which Lafayette teaches:

▪

Courts need not accept whatever the condemnor says its reasons are for the taking. Id. at

*10 (“Lafayette’s argument hinges on its belief

that because the Lafayette city council determine this condemnation was necessary, the

district court cannot look behind that determination to see if it was motivated by bad

faith. This is incorrect.”).

▪

If there’s an allegation of bad faith (improper

motive), the court should take a hard look. Id.

at *9 (“Without judicial review of condemnation actions, there would be no end to one enti-

22

ty subverting another entity’s condemnation

action by initiating one of its own.”).

▪

Some public benefit resulting from the taking

won’t necessarily save it. Id. at *6-7. Motive,

not the percent of public benefit, also counts.

▪

In order to test whether the stated public purpose is indeed public, a court looks to the record. Id. at *10 (citing City & Cty. of Denver v.

Block 173 Assocs., 814 P.2d 824, 828-29 (Colo.

1991)).

▪

Similarly, a condemnor’s statement of the necessity of the taking is subject to review for

bad faith or improper motive. Lafayette, 2018

Colo. App. LEXIS at *19 (“Thus, if bad faith is

at issue, courts may look behind an entity’s

stated condemnation purpose and finding of

necessity.”).

▪

Courts may test a claim of bad faith by conducting considering all the evidence, and not

limiting itself the condemnor’s statements. Id.

at *19.

▪

When the condemnation isn’t sui generis, but

there’s a factual record of what happened before the condemnor decided to take, the reviewing court should dive into that record.

Drafting a neutral resolution of taking isn’t

going to insulate the condemnor from this sort

of review. Id. at *22.

In short, motive, not stated reason, is critical. The

fact that a taking motivated by private reasons

might also have some public benefit, or that there

were good motives mixed in with the bad, isn’t

enough. It doesn’t matter, for example, that a taking

23

may be for a public road, if the taking was motivated

by other, nonpublic reasons.

CONCLUSION

This Court should grant the petition and review the

decision of the Louisiana Supreme Court.

Respectfully submitted.

Robert H. Thomas

Dana Berliner

Counsel of Record

INSTITUTE FOR JUSTICE

Loren A. Seehase

901 North Glebe Road

Ross Uehara-Tilton

Suite 900

DAMON KEY LEONG

Arlington, Virginia 22203

KUPCHAK HASTERT

(703) 682-9320

1003 Bishop Street

16th Floor

Honolulu, Hawaii 96813

(808) 531-8031

rht@hawaiilawyer.com

Counsel for Amici Curiae

JULY 2018.