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., LLC,

Petitioner,

v.

ST. BERNARD PORT, HARBOR,

& TERMINAL DISTRICT,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Louisiana Supreme Court

-----------------------------------------------------------------MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE AND BRIEF OF AMICI CURIAE

NFIB SMALL BUSINESS LEGAL CENTER,

SOUTHEASTERN LEGAL FOUNDATION,

CATO INSTITUTE, CENTER FOR

CONSTITUTIONAL JURISPRUDENCE, ATLANTIC

LEGAL FOUNDATION, MOUNTAIN STATES

LEGAL FOUNDATION, NEW ENGLAND LEGAL

FOUNDATION, AND RUTHERFORD INSTITUTE

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

2255 Sewell Mill Rd., Ste. 320

Marietta, GA 30062

KAREN R. HARNED

LUKE A. WAKE

Counsel of Record

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F St., N.W., Ste. 200

Washington, D.C. 20004

(202) 314-2048

luke.wake@nfib.org

July 11, 2018

[Additional Counsel Listed On Signature Page]

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

1

MOTION OF NFIB SMALL BUSINESS

LEGAL CENTER, SOUTHEASTERN LEGAL

FOUNDATION, CATO INSTITUTE, CENTER

FOR CONSTITUTIONAL JURISPRUDENCE,

ATLANTIC LEGAL FOUNDATION,

MOUNTAIN STATES LEGAL FOUNDATION,

NEW ENGLAND LEGAL FOUNDATION,

AND RUTHERFORD INSTITUTE FOR

LEAVE TO FILE BRIEF AS AMICI CURIAE

Pursuant to Supreme Court Rule 37.2(b), Amici

Curiae, the National Federation of Independent Business (NFIB) Small Business Legal Center, Southeastern Legal Foundation, Cato Institute, Center for

Constitutional Jurisprudence, Atlantic Legal Foundation, Mountain States Legal Foundation, New England

Legal Foundation, and Rutherford Institute respectfully request leave of this Court to file the following

brief in support of the Petitioner in the above captioned

matter. In support of the motion, the amici state:

1.

On behalf of the listed amici, NFIB Small

Business Legal Center requested the consent

of Petitioner and Respondent to file an amicus

curiae brief in this case. This request was

timely, in accordance with Supreme Court

Rule 37.2.

2.

Petitioner consents to the proposed amicus

curiae brief.

3.

Respondent does not oppose the proposed

amicus curiae brief.

4.

Each signatory to this brief has an interest in

defending private property rights, curbing the

2

abuse of eminent domain powers and protecting fundamental constitutional rights. Many

of the signatories have prepared and filed

briefs in this Court in other property rights

cases, including Kelo v. City of New London,

545 U.S. 469 (2005). Many signatories have

authored articles, books, and other academic

works on eminent domain, property rights,

and other constitutional issues.

5.

Each signatory has submitted a statement of

interest outlining their interests in this case.

Amici curiae respectfully request leave to file

the attached brief.

Respectfully submitted,

KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

2255 Sewell Mill Rd., Ste. 320

Marietta, GA 30062

THOMAS FLANAGAN

FLANAGAN PARTNERS LLP

201 St. Charles Ave.,

Ste. 2405

New Orleans, LA 70170

MARTIN S. KAUFFMAN

ATLANTIC LEGAL FOUNDATION

2039 Palmer Ave., Ste. 104

Larchmont, NY 10538

KAREN R. HARNED

LUKE A. WAKE

Counsel of Record

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F St., N.W., Ste. 200

Washington, D.C. 20004

(202) 314-2048

luke.wake@nfib.org

JOHN C. EASTMAN

ANTHONY T. CASO

CENTER FOR CONSTITUTIONAL

JURISPRUDENCE

C/O CHAPMAN U. SCHOOL

OF LAW

One University Dr.

Orange, CA 92886

3

ILYA SHAPIRO

TREVOR BURRUS

MEGGAN DEWITT

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

WILLIAM PERRY PENDLEY

CHRISTIAN B. CORRIGAN

MOUNTAIN STATES LEGAL

FOUNDATION

2596 South Lewis Way

Lakewood, CO 80227

July 11, 2018

MARTIN J. NEWHOUSE

NEW ENGLAND LEGAL

FOUNDATION

150 Lincoln St.

Boston, MA 02111

JOHN W. WHITEHEAD

RUTHERFORD INSTITUTE

P.O. Box 7482

Charlottesville, VA 22906

i

QUESTIONS PRESENTED

1. What standards must courts apply under the Public Use Clause to determine whether the stated purpose for a taking is a pretext for private benefit?

2. Whether the Public Use Clause of the Fifth

Amendment is satisfied where private property is

taken to advance a public corporation’s pecuniary gain

as a market participant, in competition with the entity

targeted for condemnation?

3. Should this Court overrule Kelo v. City of New London’s ruling that transferring property from one private owner to another for the purpose of “economic

development” is a public use justifying the use of eminent domain under the Fifth Amendment?

ii

TABLE OF CONTENTS

Page

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

i

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

ii

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

iii

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

1

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

7

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

8

THE COURT SHOULD GRANT CERTIORARI TO LIMIT OR RECONSIDER KELO V.

CITY OF NEW LONDON .................................

8

A.

In the Wake of Kelo, Courts Have Taken

Several Approaches to Determine Whether

a Taking is Pretextual, with Louisiana’s

Approach Being the Most Deferential .........

8

B.

This Court Should Grant Certiorari to

Clarify that Elimination of Competition is

not a Legitimate Public Use ...................... 14

C.

Beyond Merely Clarifying Kelo, this Case

also Presents an Opportunity to Consider

Overruling that Precedent ........................ 20

CONCLUSION..................................................... 24

iii

TABLE OF AUTHORITIES

Page

CASES

62-64 Main St., L.L.C. v. Mayor & Council of

City of Hackensack, 221 N.J. 129 (2015) .................14

99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (C.D. Cal.

2001) ........................................................................10

Aaron v. Target Corp., 269 F. Supp. 2d 1162 (E.D.

Mo. 2003), rev’d on other grounds, 357 F.3d

768 (8th Cir. 2004) ...................................................11

Armendariz v. Penman, 75 F.3d 1311 (9th Cir.

1996) ........................................................................11

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery,

136 P.3d 639 (Okla. 2006) .......................................22

Calder v. Bull, 3 U.S. (Dall.) 386 (1798) .....................16

Carole Media v. N.J. Transit Corp., 550 F.3d 302

(3d Cir. 2008) ...........................................................12

Case of the King’s Prerogative in Saltpetre, 77

Eng. Rep. 1294 (1607) .............................................18

City of Norwood v. Horney, 853 N.E.2d 1115

(Ohio 2006) ..............................................................22

Commonwealth v. Susquehanna Area Reg’l Airport Auth., 423 F. Supp. 2d 472 (M.D. Pa. 2006) ....... 17

Cty. of Hawaii v. C&J Coupe Family Ltd. P’ship,

198 P.3d 615 (Haw. 2008) ........................................10

Daniels v. Area Plan Comm’n, 306 F.3d 445 (7th

Cir. 2002) .................................................................11

iv

TABLE OF AUTHORITIES – Continued

Page

Franco v. Nat’l Capitol Revitalization Corp., 930

A.2d 160 (D.C. 2007) ...............................................11

Goldstein v. Pataki, 488 F. Supp. 2d 254

(E.D.N.Y. 2007) ........................................................10

Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008) ..........12

Gov’t of Guam v. 162.40 Square Meters of Land

More or Less, Situated in Municipality of

Agana, 2011 WL 4915004 (Guam 2011) .................13

In re Goldstein, 921 N.E.2d 164 (N.Y. 2009) ..............13

Janus v. Am. Fed’n of State, Cty. & Mun. Emps.

Council 31, No. 16-1466, 2018 WL 3129785

(U.S. June 27, 2018)........................................... 20, 24

Kaur v. N.Y. State Urban Dev. Corp., 13 N.Y.3d

511 (N.Y. 2010) ........................................................13

Kelo v. City of New London, 545 U.S. 469

(2005) ............................................................... passim

Knick v. Twp. of Scott, Pa., 862 F.3d 310 (3d Cir.

2017), cert. granted, 138 S. Ct. 1262 (U.S. Mar.

5, 2018) (No. 17-647) .................................................5

Lawrence v. Texas, 539 U.S. 558 (2003) ......................21

Marvin M. Brandt Revocable Tr. v. United

States, 572 U.S. 93 (2014)..........................................5

Mayor & City Council of Baltimore v. Valsamaki,

916 A.2d 324 (Md. 2007) .........................................11

MHC Fin. Ltd. P’ship v. City of San Rafael, 2006

WL 3507937 (N.D. Cal. Dec. 5, 2006)......................11

v

TABLE OF AUTHORITIES – Continued

Page

Middletown Twp. v. Lands of Stone, 939 A.2d

331 (Pa. 2007) ..........................................................10

Montejo v. La., 556 U.S. 778 (2009) ...................... 21, 23

Owasso Indep. School District v. Falvo, 534 U.S.

426 (2002) ..................................................................6

Payne v. Tennessee, 501 U.S. 808 (1991) .....................20

Reeves, Inc. v. Stake, 447 U.S. 429 (1980) ...................16

R.I. Econ. Dev. Corp. v. Parking Co., 892 A.2d 87

(R.I. 2006) ................................................................11

St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 239 So. 3d 243 (La.

2018) .................................................................... 9, 14

United States Army Corps of Eng’rs v. Hawkes

Co., 136 S. Ct. 1807 (2016) ........................................2

White v. Mass. Council of Constr. Emp’rs, Inc.,

460 U.S. 204 (1983) .................................................16

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .............................................. 5, 23

La. Const. Art. I, Sec. 4(B)(1) ......................................22

RULES

Sup. Ct. R. 37 ................................................................1

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Abdon Pallasch, Scalia Offers Ruling: Deep Dish

v. Thin Crust? Chicago Sun-Times (Feb. 13,

2012) ........................................................................21

Alec Torres, Nine Years after Kelo, the Seized Land

is Empty, National Review (Feb. 5, 2014) ................. 23

Amy Coney Barrett, Constitutional Foundation:

Precedent and Jurisprudential Disagreement,

91 Tex. L. Rev. 1711 (2013) .....................................20

Amy Lavine & Norman Oder, Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Realty in Brooklyn’s

Atlantic Yards Project, 42 Urb. L. 287 (2010) .........12

Bernard H. Siegan, Property Rights: From

Magna Carta to the Fourteenth Amendment

(2001) .........................................................................9

Damon Root, When Public Power Is Used for Private Gain, Reason.com (Oct. 8, 2009) .....................13

Daniel B. Kelly, Pretextual Takings: Of Private

Developers, Local Governments, and Impermissible Favoritism, 17 Sup. Ct. Econ. Rev.

173 (2009) ................................................................10

Dick Carpenter & John Ross, Testing O’Connor

and Thomas: Does The Use of Eminent Domain Target Poor and Minority Communities?, 46 Urban Stud. 2447 (2009)...........................20

vii

TABLE OF AUTHORITIES – Continued

Page

Einer Richard Elhauge, The Scope of Antitrust

Process, 104 Harv. L. Rev. 668 (1991) .....................17

Ilya Somin, Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur,

38 Fordham Urban L.J. 1193 (2011) ......................12

Ilya Somin, The Grasping Hand: Kelo v. City of

New London and the Limits of Eminent Domain

(Univ. of Chicago Press 2015) ............ 10, 20, 21, 22, 23

James W. Ely Jr. “Poor Relation” Once More: The

Supreme Court and the Vanishing Rights of

Property Owners, 2005 Cato Sup. Ct. Rev. 39

(2005) .......................................................................22

Jarod Bona & Luke Wake, The Market-Participant Exception to State Action Immunity

From Antitrust Liability, 23 Competition: J.

Anti. & Unfair Comp. L. Sec. St. B. Cal. 156

(2014) .......................................................................17

John Paul Stevens, Address at University of Alabama School of Law, Albritton Lecture (Nov.

16, 2011) ..................................................................23

Joseph Sax, Taking and the Police Power, 74 Yale

L.J. 36 (1964) ...........................................................18

Richard A. Epstein, Supreme Neglect: How to

Revive Constitutional Protection for Private

Property (2008) .......................................................22

viii

TABLE OF AUTHORITIES – Continued

Page

Timothy Sandefur, A Natural Rights Perspective

on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of

“Public Use”, 32 Sw. U. L. Rev. 569 (2003) ..............18

Timothy Sandefur, In Defense of Substantive

Due Process, or the Promise of Lawful Rule, 35

Harv. J.L. & Pub. Pol’y 283 (2012) ..........................17

1

INTEREST OF AMICI CURIAE1

The NFIB Small Business Legal Center (NFIB

Legal Center) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the nation’s courts through representation on issues of public interest affecting small

businesses. The National Federation of Independent

Business (NFIB) is the nation’s leading small business

association, representing members in Washington,

D.C., and all 50 state capitals. Founded in 1943 as a

nonprofit, nonpartisan organization, NFIB’s mission is

to promote and protect the rights of its members to

own, operate and grow their businesses.

NFIB represents member businesses nationwide,

and its membership spans the spectrum of business

operations, ranging from sole proprietor enterprises to

firms with hundreds of employees. While there is no

standard definition of a “small business,” the typical

NFIB member employs 10 people and reports gross

sales of about $500,000 a year. The NFIB membership

reflects American small business.

To fulfill its role as the voice for small business,

the NFIB Legal Center frequently files amicus briefs

in cases that will impact small businesses. The NFIB

1

The parties were notified 10 days prior to the filing of

amici’s intent to file. Blanket consent is on file with the Court for

Petitioner. Respondent does not oppose the filing of this brief, but

did not give consent. No counsel for a party has authored this brief

in whole or in part, and no person other than amici curiae, their

members, and their counsel has made a monetary contribution to

the preparation or submission of this brief. See Sup. Ct. R. 37.

2

Legal Center files in this case because the small business community remains deeply concerned about this

Court’s decision in Kelo v. City of New London, 545 U.S.

469 (2005). This case is particularly alarming because

of the anti-competitive nature of this taking.

Southeastern Legal Foundation (SLF) is a national nonprofit, public-interest law firm and policy

center that advocates constitutional individual liberties, limited government, and free enterprise in the

courts of law and public opinion. For 42 years, SLF has

advocated, both in and out of the courtroom, for the

protection of private property interests from unconstitutional governmental takings. This aspect of its advocacy is reflected in regular representation of property

owners challenging overreaching governmental actions in violation of their property rights. Additionally,

SLF frequently files amicus curiae briefs at both the

state and federal level in support of property holders.

See, e.g., United States Army Corps of Eng’rs v. Hawkes

Co., 136 S. Ct. 1807 (2016). Following the Supreme

Court’s decision in Kelo, SLF took the lead in the successful effort to roll back eminent domain private property seizures by government for so-called “economic

development” purposes, assisting then-Georgia Governor Sonny Perdue in drafting Georgia’s anti-Kelo laws.

Georgia’s law served as a blueprint for the American

Legislative Exchange Council, and as a result, SLF

worked with a number of states providing legal opinions and research on these issues.

The Cato Institute is a nonpartisan, publicpolicy research foundation established in 1977 and

3

dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books

and studies, conducts conferences, produces the annual

Cato Supreme Court Review, and files amicus curiae

briefs in courts nationwide. Cato has consistently advocated for more stringent review under the Public

Use Clause and has joined in asking this Court to reconsider or limit Kelo.

The Center for Constitutional Jurisprudence

was established in 1999 as the public interest law arm

of the Claremont Institute, the mission of which is to

uphold and restore the principles of the American

Founding to their rightful and preeminent authority in

our national life. In addition to providing counsel for

parties at all levels of state and federal courts, the Center and its affiliated attorneys have participated as

amicus curiae or on behalf of parties before this Court

in several cases, including Kelo v. City of New London,

545 U.S. 469 (2005).

The Center believes the issue before the Court in

this matter is one of special importance to the scheme

of individual liberty enshrined in the Constitution. The

Framers considered the individual right to own and

use private property to be the cornerstone of individual

liberty. This case goes to the core of that individual

right, addressing whether private individuals can

4

employ the power to take property from other private

individuals.

The Atlantic Legal Foundation (ALF) is a nonprofit, nonpartisan public interest law firm that provides legal representation and advice, without fee, to

scientists, educators, parents, other individuals, companies and trade associations. ALF’s leadership includes distinguished legal scholars and practitioners

from across the legal community.

ALF’s mission is to advance the rule of law in

courts and before administrative agencies by advocating limited and efficient government, free enterprise,

individual liberty, school choice, and sound science.

ALF is guided by a basic but fundamental philosophy:

Justice prevails only in the presence of reason and in

the absence of prejudice; accordingly, ALF promotes

sound thinking in the resolution of legal disputes and

the formulation of public policy. ALF has an abiding

interest in the protection of property rights, as one of

the essential elements of a democratic and productive

society.

The Mountain States Legal Foundation

(MSLF) is a nonprofit, public interest legal foundation

organized under the laws of the State of Colorado.

MSLF is dedicated to bringing before the courts issues

vital to the defense and preservation of individual liberties, the right to own and use property, the free enterprise system, and limited and ethical government.

MSLF has members who reside, own property, and

work in all 50 states. Since its creation in 1977, MSLF

5

and its attorneys have defended individual liberties

and have been active in ligation opposing governmental actions that result in takings of private property.

See, e.g., Marvin M. Brandt Revocable Tr. v. United

States, 572 U.S. 93 (2014).

The New England Legal Foundation (NELF)

is a nonprofit, nonpartisan public interest law firm, incorporated in Massachusetts in 1977, and headquartered in Boston, Massachusetts. NELF’s membership

consists of corporations, law firms, individuals, and

others, primarily from the New England region, who

believe in NELF’s mission of promoting balanced economic growth for the United States and the New England region, protecting the free enterprise system, and

defending economic and property rights. NELF has

regularly appeared as an amicus curiae in this Court

in cases affecting property rights including in Kelo v.

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

NELF has also recently filed an amicus brief in Knick

v. Twp. of Scott, Pa., 862 F.3d 310 (3d Cir. 2017), cert.

granted, 138 S. Ct. 1262 (U.S. Mar. 5, 2018) (No. 17647).

NELF has long supported the reconsideration by

this Court of the Kelo decision itself or, at the least, the

articulation by this Court of the standard of review

that courts must apply under the Fifth Amendment’s

Public Use Clause to adequately protect property owners in cases where the stated purpose for a taking may

be a pretext for conferring a private benefit. NELF believes that this case affords the Court an excellent opportunity to do both: to reconsider its 2005 decision in

6

Kelo, or to announce a meaningful Public Use standard

in Kelo-type takings.

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered in

Charlottesville, Virginia. Founded in 1982 by its President, John W. Whitehead, the Institute specializes in

providing free legal representation to individuals

whose civil liberties are threatened or infringed and in

educating the public about constitutional and human

rights issues. Attorneys affiliated with the Institute

have represented parties before the Court in cases

such as Owasso Indep. School District v. Falvo, 534 U.S.

426 (2002). The Institute has also filed briefs as an

amicus of the Court in cases involving property rights

on many occasions, including Kelo v. City of New London, 545 U.S. 469 (2005).

The Rutherford Institute is participating as amicus herein because it regards the case as an extraordinary opportunity for the Court to clarify and uphold

the sacrosanct right to own and use private property

without fear that it will be usurped by the government.

When this nation was founded, securing the property

rights of citizens was considered a principal function of

government. However, expansion of the power of eminent domain in recent decades has resulted in a corresponding destruction of a fundamental aspect of

liberty. This Court should reaffirm the historic commitment to property rights and make clear that the government may only take property in furtherance of a

bona fide public purpose.

------------------------------------------------------------------

7

SUMMARY OF ARGUMENT

The Louisiana Supreme Court approved the forcible transfer of private commercial property to eliminate competition with a public enterprise—and for the

benefit of another private entity. In doing so, it blessed

the use of eminent domain for anticompetitive purposes that are antithetical to the public interest. This

concretely demonstrates the perverse implications of

this Court’s decision in Kelo v. City New London, 545

U.S. 469 (2005).

In her Kelo dissent, Justice O’Connor warned that

the majority opinion opened the door for any mom-andpop store to be replaced by a Ritz-Carlton. Id. at 503

(O’Connor, J., dissenting). The constitutional basis for

such a taking remains questionable, but not even the

worst scenarios set forth in her dissent undermine the

Fifth Amendment like the opinion below. Rather, the

Louisiana Supreme Court’s decision, and similar cases

in other jurisdictions, effectively preclude pretextual

takings claims, inviting corruption and abuse far beyond what even Justice O’Connor anticipated. Unless

this Court acts to limit application of Kelo, or to at least

reconsider the level of deference given to the condemning authority, politically powerful corporate interests

will have incentives to lobby public authorities to expropriate properties owned and operated by smaller

firms—even with the goal of eliminating competition.

That is precisely what happened here: the government

displaced an independent enterprise from the market

for an overtly anticompetitive purpose.

8

The Louisiana Supreme Court accepted at face

value the purported public purpose of enabling expansion of the St. Bernard Port Harbor & Terminal District’s (Port Authority) operations, which allegedly

benefits the public. But whether a taking to advance

the government’s interest as a competing marketparticipant constitutes a public use is an important

and still unanswered question under this Court’s jurisprudence. Further, the lower court’s refusal to consider

the clear anticompetitive motivations underlying this

exercise of eminent domain underscores the compelling need for guidance from this Court about the

proper standard for addressing pretextual takings

claims—a point on which the lower courts remain irreconcilably conflicted.

------------------------------------------------------------------

ARGUMENT

THE COURT SHOULD GRANT CERTIORARI

TO LIMIT OR RECONSIDER KELO V. CITY OF

NEW LONDON.

A. In the Wake of Kelo, Courts Have Taken

Several Approaches to Determine Whether

a Taking is Pretextual, with Louisiana’s Approach Being the Most Deferential.

Even while upholding a taking for “economic redevelopment” in Kelo, this Court said that government

may not “take property under the mere pretext of a

public purpose, when its actual purpose [is] to bestow

9

a private benefit.”2 545 U.S. at 478. In his concurrence,

Justice Kennedy emphasized that Courts should strike

down any government act where there is a “clear showing” that the taking “is intended to favor a particular

private party, with only incidental or pretextual public

benefits.” Id. at 491 (Kennedy, J., concurring). He

stressed that courts should scrutinize the motivations

prompting the exercise of eminent domain. When “confronted with a plausible accusation” of improper motives, a reviewing court must consider the “primary

motivation” for the expropriating authority. Id. at 49192. A reviewing court “should treat the objection as a

serious one and review the record to see if it has

merit. . . .” Id. at 491.

Here the Louisiana Supreme Court held that the

Public Use Clause is satisfied so long as there is some

conceivable basis in the record for finding that the taking served a public purpose. St. Bernard Port, Harbor

& Terminal Dist. v. Violet Dock Port, Inc., LLC, 239 So.

3d 243, 251 (La. 2018) (“Based on the record before us,

we cannot say that the trial court’s finding was manifestly erroneous. . . .”). In one sentence, the Court dismissed Petitioner’s argument that the government’s

true motivation was to benefit another business. The

court’s rationale would seemingly uphold any taking.

So long as the condemning authority articulates a

plausible justification that would facially satisfy the

2

Cf. Bernard H. Siegan, Property Rights: From Magna Carta

to the Fourteenth Amendment, 16-17, 39 (2001) (explaining that it

has always been unlawful to abrogate an individual’s property

rights for the advancement of purely private interests).

10

Public Use Clause, a court could ignore clear and undisputed evidence of collaboration (or collusion) with a

private entity that will directly benefit from the compelled transfer. Louisiana therefore stands on the extreme side of the spectrum of those jurisdictions that

have addressed the parties’ burden of persuasion in

pretextual takings claims.

While Kelo emphasized that the Public Use Clause

prohibits pretextual takings, it provided only limited

guidance on the issue. See, e.g., Goldstein v. Pataki, 488

F. Supp. 2d 254, 288 (E.D.N.Y. 2007) (observing that

Kelo “did not define the term ‘mere pretext’ ”). The resulting confusion is evident in the widely different

standards that courts apply when assessing pretextual

takings claims. See Daniel B. Kelly, Pretextual Takings:

Of Private Developers, Local Governments, and Impermissible Favoritism, 17 Sup. Ct. Econ. Rev. 173 (2009);

Ilya Somin, The Grasping Hand: Kelo v. City of New

London and the Limits of Eminent Domain, ch. 7 (rev.

ed. 2016). At least five divergent approaches exist.

Some jurisdictions look to the condemning authority’s intentions. See Middletown Twp. v. Lands of Stone,

939 A.2d 331, 337 (Pa. 2007) (interpreting Kelo as requiring Courts to examine “the real or fundamental

purpose behind a taking. . . .”); Cty. of Hawaii v. C&J

Coupe Family Ltd. P’ship, 198 P.3d 615, 648-49 (Haw.

2008) (Kelo requires courts to consider “the actual purpose” to determine whether the official rationale was

“mere pretext.”). In conflict with Louisiana’s approach,

these courts seriously consider evidence of the underlying motives. See 99 Cents Only Stores v. Lancaster

11

Redevelopment Agency, 237 F. Supp. 2d 1123, 1129

(C.D. Cal. 2001) (“No judicial deference is required, [ ]

where the ostensible public use is demonstrably pretextual.”). For example, in Armendariz v. Penman, 75

F.3d 1311 (9th Cir. 1996), the Ninth Circuit invalidated

a taking because the official rationale of blight alleviation was a mere pretext for “a scheme . . . to deprive

the plaintiffs of their property . . . so a shopping-center

developer could buy [it] at a lower price.” Id. at 1321;

see also Aaron v. Target Corp., 269 F. Supp. 2d 1162,

1174-76 (E.D. Mo. 2003), rev’d on other grounds, 357

F.3d 768 (8th Cir. 2004) (holding that a property owner

was likely to prevail on a claim that the government’s

real reason for the taking was to serve the interest of

the Target Corporation and not to alleviate blight).

Other courts require a searching inquiry into

whether the public or a private entity stands as the

primary beneficiary of a taking. See Franco v. Nat’l

Capitol Revitalization Corp., 930 A.2d 160, 173-74

(D.C. 2007); MHC Fin. Ltd. P’ship v. City of San Rafael,

2006 WL 3507937, at *14 (N.D. Cal. Dec. 5, 2006); Daniels v. Area Plan Comm’n, 306 F.3d 445, 456-66 (7th Cir.

2002). Still other jurisdictions hold that the pretextual

takings inquiry must focus on the extent of the precondemnation planning process—with the assumption

that a lack of planning reveals an improper purpose.

See, e.g., Mayor & City Council of Baltimore v. Valsamaki, 916 A.2d 324, 352-53 (Md. 2007); R.I. Econ. Dev.

Corp. v. Parking Co., 892 A.2d 87, 104 (R.I. 2006). And

another line of cases recognizes a pretextual taking

where evidence exists to show a specific private

12

beneficiary was known at the outset. See Carole Media

v. N.J. Transit Corp., 550 F.3d 302, 311 (3d Cir. 2008)

(upholding a taking because “there [was] no allegation

that [the Authority] . . . knew the identity” of the private party that ultimately benefited from the transfer).

By contrast, Louisiana follows a fifth line of cases

that virtually defines pretextual takings out of existence—with grave consequences for small business, the

poor, minorities and other politically weak property

owners who are most vulnerable to eminent domain

abuse.3 See Kelo, 545 U.S. at 521 (Thomas, J., dissenting) (noting that “losses will fall disproportionately on

poor communities”); Id. at 505 (O’Connor, J., dissenting) (“The beneficiaries are likely to be those citizens

with disproportionate influence and power in the political process, including large corporations and development firms.”).

As in this case, the Second Circuit applied a rational basis-like standard in dismissing a pretextual

takings claim where a private developer was both the

originator of the project and arguably the primary beneficiary.4 Goldstein v. Pataki, 516 F.3d 50, 62 (2d Cir.

3

See Br. of the NAACP et al. as Amici Curiae Supporting Petitioners, Kelo, 545 U.S. 469; Br. of Becket Fund for Religious Liberty as Amici Curiae Supporting Petitioners, Kelo, 545 U.S. 469

(describing vulnerability of religious nonprofits).

4

For detailed discussions of the Atlantic Yards cases, which

describe the many abuses, see Ilya Somin, Let There Be Blight:

Blight Condemnations in New York after Goldstein and Kaur, 38

Fordham Urban L.J. 1193, 1197-99, 1200-16 (2011) (Symposium

on Eminent Domain in New York); Amy Lavine & Norman Oder,

Urban Redevelopment Policy, Judicial Deference to Unaccountable

13

2008) (rejecting the suggestion that any significant

scrutiny was required: “[It is impermissible to] give

close scrutiny to the mechanics of a taking . . . to gauge

the purity of the motives of the various government officials who approved it.”). And the New York Court of

Appeals upheld the same taking without seriously considering evidence that the planning process was deliberately skewed to benefit a preordained private

developer.5 In re Goldstein, 921 N.E.2d 164 (N.Y. 2009);

see also Kaur v. N.Y. State Urban Dev. Corp., 13 N.Y.3d

511 (N.Y. 2010) (ignoring extensive evidence that a private university would reap most of the condemnation’s

benefits, evidence of inadequate planning, and the undisputed fact that the university was identified as the

main beneficiary from the beginning). Other jurisdictions have followed suit. Louisiana is simply the latest

in more and more jurisdictions that refuse to consider

allegations of improper motives and pretext. See, e.g.,

Gov’t of Guam v. 162.40 Square Meters of Land More

or Less, Situated in Municipality of Agana, 2011 WL

Agencies, and Realty in Brooklyn’s Atlantic Yards Project, 42 Urb.

L. 287 (2010).

5

“[N]othing was said about ‘blight’ by the sponsors of the

project until 2005,” when the ESDC realized that a blight determination might be legally necessary. Goldstein, 921 N.E. at 189

(Smith, J., dissenting). By “that point [the developer] had already

acquired many of the properties he wanted (thanks to eminent

domain) and left them empty, thus creating much of the unsightly

neglect he [later] cite[d] in support of his project.” Damon Root,

When Public Power Is Used for Private Gain, Reason.com (Oct. 8,

2009), available online at http://reason.com/archives/2009/10/08/

when-public-power-is-used-for (last visited Jul. 6, 2018).

14

4915004 (Guam, 2011) (upholding a taking transferring title for a single parcel to then-Mayor Felix Ungacta); Cf. 62-64 Main St., L.L.C. v. Mayor & Council of

City of Hackensack, 221 N.J. 129, 157 (2015) (upholding

a blight designation for redevelopment on a substantial evidence basis).

These inconsistent applications show that both

courts and litigants need clarity on what showing is

necessary to prevail in a pretextual takings claim.

While the first four approaches at least claim to comport, in one way or another, with passages in the Kelo

opinion, the Louisiana Supreme Court’s approach cannot be squared with this Court’s precedent. This case

presents the ideal vehicle for this Court to provide clarity because there is evidence in the record to support a

taking under all four of these tests: (1) improper motivation; (2) the primary beneficiary; (3) limited planning; and (4) a previously identified private

beneficiary.

B. The Court Should Grant Certiorari to Clarify that Elimination of Competition is not a

Legitimate Public Use.

The Louisiana Supreme Court accepted the Port

Authority’s pretextual argument that expropriation of

private dock facilities will advance the public interest

by facilitating trade, creating jobs and bringing in revenue. St. Bernard Port, Harbor & Terminal Dist., 239

So. 3d at 250-51 (holding that expansion of “public

ports” serves a “public purpose”) (citing Kelo, 545 U.S.

at 479). But by that logic private enterprise serves the

15

public good as well.6 As a result, there is no reason in

principle to believe that a “public port” authority,

providing the same services, advances the public good

any more than a private business. For that matter, neither the Louisiana Supreme Court nor the Louisiana

Court of Appeal began to explain how operation of a

private docking facility injures the public in any way

that might be ameliorated through public appropriation. This violates the unifying principle of this Court’s

takings jurisprudence, which holds that for a condemnation to serve a public purpose it must either allow

actual use by the public or be intended to ameliorate a

social problem. See Kelo, 545 U.S. at 481-82 (observing

that in previous cases the Court had recognized a public purpose in the removal of blight or the elimination

of “social and economic evils . . . ”) (internal citations

omitted); id. at 500 (O’Connor, J., dissenting) (emphasizing that this should be understood as a limiting

principle under the Public Use Clause).

There is no public benefit in destroying a privatesector business to advance a public enterprise (much

less another competing private business).7 This

6

In fact, the record shows that the Port Authority plans to

have another private company operate the facilities just as the

Petitioner. The only difference is that the Port Authority will take

a share of the profits.

7

Amici maintain that the Court should foreclose this taking

as a pretextual taking because it is intended to benefit another

private entity. But, even if this Court concludes that this was not

a pretextual taking for the benefit a private company, it should

rule that a taking for the purpose of eliminating competition with

a public enterprise violates the Public Use Clause.

16

conduct is predatory. See Calder v. Bull, 3 U.S. (Dall.)

386, 388 (1798) (“[A] law that takes property from A

and gives it to B: [ ] is against all reason and justice. . . .”). This case presents the opportunity to clarify

that government cannot take private property to advance its own pecuniary interests as a market participant—in direct competition with a business

targeted for condemnation. Such an appropriation

should be found a per se violation of the Public Use

Clause.

This Court has already recognized a distinction

between a public authority acting (a) in the capacity of

a sovereign or (b) in the capacity of a marketparticipant. See, e.g., Reeves, Inc. v. Stake, 447 U.S. 429,

440 (1980) (concluding that South Dakota was acting

in the capacity as a market-participant on the same

footing as other private parties, and not in a sovereign

capacity, when selling cement); White v. Mass. Council

of Const. Emp’rs, Inc., 460 U.S. 204, 214-15 (1983) (“In

so far as the city expended [ ] its own funds in entering

into construction contracts for public projects, it was a

market participant and [not acting in its sovereign

capacity]. . . .”). This distinction is important—as a

constitutional matter—where the propriety of government conduct hinges on whether a public entity is acting in a truly sovereign capacity. And since the power

of eminent domain is such an extraordinary exercise of

sovereignty this distinction should be even more critical under the Public Use Clause.

When seeking to appropriate private property

the government necessarily relies on an assertion of

17

sovereign authority, which should mean that an exercise of eminent domain is permissible only where the

authority is acting as a uninterested party.8 When

an authority pursues condemnation to advance its

own commercial venture it is acting as a “marketparticipant” on equal footing with other economic actors. As a result, it should not be allowed to wield

eminent domain powers anti-competitively.

For example, we have seen cases where an airport

authority invoked the power of eminent domain to convert a private parking facility into a public facility. See

Commonwealth v. Susquehanna Area Reg’l Airport

Auth., 423 F. Supp. 2d 472 (M.D. Pa. 2006). As in this

case, such condemnations serve no public purpose because the converted property is used for the same purpose as it would have under private ownership. To

allow such a condemnation would be to allow predatory conduct—which would violate the fundamental

precept that government exists to serve the public, not

to further its own corporeal interests.9 Timothy

8

Cf. Einer Richard Elhauge, The Scope of Antitrust Process,

104 Harv. L. Rev. 668, 696 (1991) (arguing that state and local

authorities should be subject to the same rules as private economic actors unless it may be said that “a financially disinterested and politically accountable actor controls and makes [the]

substantive decision in favor of [the anti-competitive act in question] . . . ”).

9

“[T]o the extent the State acts to advance its own pecuniary

interests to the detriment of its citizens, it may exceed its natural

charter to govern in the public interest.” Jarod Bona & Luke

Wake, The Market-Participant Exception to State Action Immunity From Antitrust Liability, 23 Competition: J. Anti. & Unfair

Comp. L. Sec. St. B. Cal. 156, 171 (2014).

18

Sandefur, In Defense of Substantive Due Process, or the

Promise of Lawful Rule, 35 Harv. J.L. & Pub. Pol’y 283,

299 (2012) (“In politics, Aristotle distinguished between governments aimed for the benefit of the ruled

and those that aim at the ruler’s benefit.”); see also Joseph Sax, Taking and the Police Power, 74 Yale L.J. 36,

62 (1964) (distinguishing between an appropriate exercise of police powers and self-interested abuse of

power under the Takings Clause). When acting in such

a self-interested manner—i.e., to advance a public corporation’s institutional interests—a taking functionally serves a private purpose. See Case of the King’s

Prerogative in Saltpetre, 77 Eng. Rep. 1294 (1607)

(holding that King James I could take saltpeter [essential for gunpowder] from private lands to defend the

realm, but emphasizing limits on the King’s power to

take private property: “[T]he King cannot [take property] for the [improvement] . . . of his own house . . . for

that doth not extend to public benefit.”).10

The mere fact that there may be some speculative

and incidental public benefit in a public corporation

growing is beside the point. If ABC Corporation convinced its friends on the City Council to use eminent

domain to compel transfer of title to its competitor’s

facility, that would be a paradigmatic violation of the

Public Use Clause. It is true enough that ABC

10

“The King could not take property for his own benefit . . .

because ‘the King . . . cannot do any wrong.’ ” Timothy Sandefur,

A Natural Rights Perspective on Eminent Domain in California: A

Rationale for Meaningful Judicial Scrutiny of “Public Use”, 32 Sw.

U. L. Rev. 569, 572-73 (2003).

19

Corporation might grow as a result of this sort of

backroom deal-making—perhaps even replacing the

jobs eliminated from the competitor’s facilities on a

one-to-one basis; however, this would amount to a naked transfer of private market-power to the detriment

of consumers (i.e., the public). This forced transfer

might even enable ABC Corporation to become prosperous and create even more jobs with time, but those

theoretical benefits are not only speculative but incidental to ABC Corporation’s primary (self-serving) motivation. See Kelo, 545 U.S. at 490 (Kennedy, J.,

concurring) (observing that even Kelo’s deferential

standard does not “alter the fact that transfers intended to confer benefits on particular, favored private

entities, and with only incidental or pretextual public

benefits, are forbidden by the Public Use Clause”).

Since the Port Authority stands in the very same

position as ABC Corporation, it should not be allowed

to take Petitioner’s property here. Indeed, the only difference is that the Authority did not have to engage in

backroom deal-making. All too conveniently, Louisiana

has conferred the power of eminent domain upon the

Authority. But the Louisiana courts have refused to

check use of that power. On the contrary, they have expressly blessed this taking for the self-enriching purpose of growing the Authority’s enterprise.

20

C. Beyond Merely Clarifying Kelo, this Case

also Presents an Opportunity to Consider

Overruling that Precedent.

While this Court is generally hesitant to reevaluate statutory cases and other matters where Congress

can act to ameliorate the ill effects of a decision, this

Court has emphasized that the doctrine of stare decisis

is at its weakest when considering questions of constitutional law. Janus v. Am. Fed’n of State, Cty., & Mun.

Emp, Council 31, No. 16-1466, 2018 WL 3129785, at

*23 (U.S. June 27, 2018); Payne v. Tennessee, 501 U.S.

808, 828 (1991) (“Stare decisis is not an inexorable

command”); see also Amy Coney Barrett, Constitutional Foundation: Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1737 (2013) (arguing

that a relatively weak form of stare decisis is essential

not only to allow for correction of errors, but also for

encouraging “a reasoned conversation over time between justices—and others—who subscribe to competing methodologies of constitutional interpretation”).

And there are compelling reasons to reconsider Kelo’s

conclusion that government may compel transfer of

private property from one party to the next, and or the

level of deference appropriate in these cases. See Ilya

Somin, Grasping Hand, supra at 238-41 (explaining

how this Court’s standards for overruling precedent

justify reversing Kelo); Dick Carpenter & John Ross,

Testing O’Connor and Thomas: Does The Use of Eminent Domain Target Poor and Minority Communities?,

46 Urban Stud. 2447 (2009).

21

This Court has stated that it will “overrule an erroneously decided precedent . . . if: (1) its foundations

have been ‘eroded’ by subsequent decisions; (2) it has

been subject to ‘substantial and continuing’ criticism;

and (3) it has not induced ‘individual or societal reliance’ that counsels against overturning” it. Lawrence

v. Texas, 539 U.S. 558, 587-89 (2003). Another factor is

whether the original decision was well reasoned. Montejo v. La., 556 U.S. 778, 793 (2009). Several of these

considerations weigh (heavily) in favor of revisiting,

and overturning, Kelo.

First, Kelo has been subject to widespread criticism.11 Far from garnering general acceptance, the

public largely reviles the suggestion that the government may take an individual’s home or business to

give to a wealthier and more politically powerful corporation. Surveys show that 80 percent of the public

oppose Kelo, and the decision has prompted massive

criticism across the political spectrum—from groups as

varied as the American Association of Retired Persons,

the NAACP, and the Becket Fund for Religious Liberty.

See Somin, Grasping Hand at 135-64; see also Abdon

Pallasch, Scalia Offers Ruling: Deep Dish v. Thin

Crust? Chicago Sun-Times (Feb. 13, 2012) (quoting

Justice Antonin Scalia as saying [of Kelo] that the

Court erred in “estimating how far . . . it could stretch

the text of the Constitution without provoking overwhelming public criticism and resistance”). Acting on

their antipathy, legislators (and voters) in many states

11

We do not suggest that such widespread criticism by itself

justifies overruling Kelo.

22

have sought to limit the impact of the Kelo decision—

but with only mixed results.12 Likewise, several state

supreme courts have repudiated Kelo as a guide to interpreting its state constitution’s public use clause.

See, e.g., City of Norwood v. Horney, 853 N.E.2d 1115,

1136-38 (Ohio, 2006); Bd. of Cty. Comm’rs of Muskogee

Cnty. v. Lowery, 136 P.3d 639, 646-52 (Okla. 2006). And,

of course, Kelo has been subjected to excoriating scholarly criticism, though with some defenders. See, e.g.,

Richard Epstein, Supreme Neglect: How to Revive

Constitutional Protection for Private Property 83-86

(2008); James W. Ely, Jr., “Poor Relation” Once More:

The Supreme Court and the Vanishing Rights of Property Owners, 2005 Cato Sup. Ct. Rev. 39 (2005); and

Somin, Grasping Hand, at 112-34.

Second, reconsideration is appropriate at this

juncture because the grave deficiencies of the majority

opinion are more apparent today than in 2005.13 Even

Justice Stevens, author of the Kelo opinion, has

12

Voters in Louisiana passed a constitutional amendment

intended to protect property owners from Kelo-style abuses. La.

Const. Art. I, Sec. 4(B)(1). But, this case demonstrates that there

are major exceptions. Ilya Somin provides an extensive discussion

of the legislative responses in other jurisdictions, and examines

persisting problems. Grasping Hand, supra 145-53.

13

Kelo stands as anomaly in this Court’s jurisprudence on

the Bill of Rights. In sharp contrast to its treatment of every other

individual right enumerated in that document, the Court’s decision in Kelo allows the very same governments whose abuses the

Public Use Clause is intended to constrain to define the scope of

the rights that are protected. See Ely, 2005 Cato Sup. Ct. Rev. at

62 (“[A]mong all the guarantees of the Bill of Rights, only the public use limitation is singled out for heavy [judicial] deference.”).

23

admitted that its reasoning was based in part on an

“embarrassing” error: the assumption that a series of

late nineteenth and early twentieth century “substantive due process” Supreme Court decisions, applying a

highly deferential approach to state government takings, were actually decided under the Fifth Amendment. John Paul Stevens, Address at University of

Alabama School of Law, Albritton Lecture (Nov. 16,

2011), 14-18, http//www.supremecourt.gov/publicinfo/

speeches/1.pdf.14 The Kelo Court wrongly relied on that

line of cases, and the mistake had a significant impact

on the outcome of the case.15 545 U.S. at 483; see also

Somin, Grasping Hand at 123-26.

Finally, it is better to correct this grievous error

now—rather than waiting for decades. This Court has

recognized that recent precedent is less likely to generate reliance interests than longer-established ones,

and is, therefore more easily overruled if found to be

incorrect. See Montejo, 556 U.S. at 793. And Kelo has

not yet generated substantial reliance interests. If anything, the political backlash over the past thirteen

14

Justice Stevens continues to believe that Kelo was correctly decided, but he justifies that conclusion by embracing the

extreme proposition that “neither the text of the Fifth Amendment Takings Clause, nor the common law rule that it codified,

placed any limit on the states’ power to take private property,

other than the obligation to pay just compensation to the former

owner.” Stevens, Albritton Lecture, at 18.

15

Today we also know that the anticipated public benefits

never materialized. Alec Torres, Nine Years after Kelo, the Seized

Land is Empty, National Review (Feb. 5, 2014), https://www.

nationalreview.com/2014/02/nine-years-after-kelo-seized-landempty-alec-torres/ (last visited Jul. 10, 2018).

24

years demonstrates that the dominant trend has gone

against Kelo. What is more, this Court’s recent decision

in Janus demonstrates that there can be no legitimate

reliance interest in perpetuating violations of individual rights under the Constitution. 2018 WL 3129785,

at *5 (“[N]o reliance interests on the part of [private

parties collaborating with public authorities] are sufficient to justify the perpetuation of the [constitutional]

violations. . . .”).

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the petition for certiorari should be granted.

Respectfully submitted,

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LUKE A. WAKE

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