Amicus Curiae Brief — Fred J. Eychaner, Petitioner v. City of Chicago, Illinois

No. 20-1214

IN THE

___________

FRED J. EYCHANER,

PETITIONER,

V.

CITY OF CHICAGO,

RESPONDENT.

___________

On Petition for Writ of Certiorari to the

Appellate Court of Illinois

__________

AMICUS CURIAE BRIEF OF

THE LIBERTY JUSTICE CENTER

IN SUPPORT OF PETITIONER

__________

April 13, 2021

Jeffrey M. Schwab

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

208 LaSalle St., Ste. 1690

Chicago, IL 60604

(312) 637-2280

jschwab@libertyjusticecenter.org

i

QUESTION PRESENTED

1. Is the possibility of future blight a permissible

basis for a government to take property in an unblighted area and give it to a private party for private

use?

2. Should the Court reconsider its decision in Kelo

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

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

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

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

INTEREST OF THE AMICI CURIAE ........................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 1

ARGUMENT ................................................................ 3

I. Kelo was poorly reasoned and there is wide

consensus that it was in error and should be

overruled. ......................................................... 3

II. Courts should not allow local government to

take property based on their unreliable

prediction as to what property may or may not

be blighted in some uncertain future. ............. 9

CONCLUSION .......................................................... 12

iii

TABLE OF AUTHORITIES

Cases

Berman v. Parker, 348 U.S. 26 (1954)..................... 5, 6

Bond v. United States, 564 U.S. 211 (2011) ................ 9

Buck v. Bell, 274 U.S. 200 (1927) ................................ 3

Citizens United v. FEC, 558 U.S. 310 (2010) .............. 2

Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) ..... 6

Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163

(2009) ........................................................................ 7

Helvering v. Hallock, 309 U.S. 106 (1940) .................. 2

Janus v. AFSCME, 138 S. Ct. 2448 (2018) ............. 1, 2

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

........................................................................ passim

Payne v. Tennessee, 501 U.S. 808 (1991)..................... 2

Other Authorities

Alberto B. Lopez, Revisiting Kelo and Eminent

Domain’s “Summer of Scrutiny”, 59 Ala. L. Rev.

561 (2008) ................................................................. 3

Ilya Somin, THE GRASPING HAND: KELO V. CITY OF

NEW LONDON & THE LIMITS OF EMINENT DOMAIN

(2015) ................................................................ 3, 4, 9

Jane Jacobs, THE DEATH AND LIFE OF GREAT

AMERICAN CITIES (1961) ......................................... 10

Les Christie, “Taking your home away,” CNN (Aug. 3,

2005),

https://money.cnn.com/2005/07/25/real_estate/inves

tment_prop/eminent_domain_v_deveopment/index.

htm ............................................................................ 4

Patty Wetli, NEIU Wanted These Properties Badly

Enough to Invoke Eminent Domain. They’re Still

Vacant, So Now What?, WTTW,

https://news.wttw.com/2021/01/25/neiu-wantedthese-properties-badly-enough-invoke-eminentdomain-they-re-still-vacant-so; see also, Illinois

iv

Policy, The Taking of Bryn Mawr Avenue,

https://www.youtube.com/watch?v=r4hdQglN2W0

................................................................................ 12

1

INTEREST OF THE AMICI CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest litigation center located in Chicago, Illinois that seeks to protect economic liberty,

private property rights, free speech, and other fundamental rights. The Liberty Justice Center pursues its

goals through strategic, precedent-setting litigation to

revitalize constitutional restraints on government

power and protections for individual rights. See, e.g.,

Janus v. AFSCME, 138 S. Ct. 2448 (2018).

Amicus are interested in this case because the protection of private property rights is a core value vital

to a free society. To that end, the Liberty Justice Center represents property owners in a variety of cases

around the country. See, e.g. Mendez v. Chicago, No.

2016 CH 15489, Circuit Court of Cook County, Illinois.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Sixteen years ago, a bare majority of this Court licensed state governments to take from the poor and

give to the rich. Under Kelo, the “specter of condemnation hangs over all property. Nothing is to prevent the

State from replacing any Motel 6 with a Ritz-Carlton,

any home with a shopping mall, or any farm with a

factory.” Kelo v. City of New London, 545 U.S. 469, 503

(2005) (O’Connor, J., dissenting). The majority opinion

1 Rule 37 statement: No counsel for any party authored

any part of this brief, and no person or entity other

than amicus funded its preparation or submission. All

parties received timely notice of amici’s intent to file

and consented to the filing of this brief.

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“eliminate[d] liberties expressly enumerated in the

Constitution,” for “[i]f such ‘economic development’

takings are for a ‘public use,’ any taking is, and the

Court has erased the Public Use Clause from our Constitution.” Id. at 506 (Thomas, J., dissenting). As Petitioners explain, few recent decisions of this court have

been more universally condemned— from the left to

the right, the academy to ordinary citizens. See Pet. at

26.

Stare decisis is “not an inexorable command.” Janus v. AFSCME, 138 S. Ct. 2448, 2478 (2018) (quoting

Pearson v. Callahan, 555 U.S. 223, 233 (2009)). While

respect for precedent “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process,” Payne v. Tennessee, 501 U.S. 808, 827

(1991), this Court has repeatedly outlined circumstances under which these values must give way to

more acute considerations and has not hesitated to jettison misbegotten precedent. See Janus, 138 S. Ct. at

2486. The doctrine is not “a mechanical formula of adherence to the latest decision.” Helvering v. Hallock,

309 U.S. 106, 119 (1940). “If it were, segregation would

be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary

criminal suspects without first obtaining warrants.”

Citizens United v. FEC, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring). Amicus submits this brief to

emphasize that Kelo is ripe for this Court’s reconsideration.

Amicus also submits this brief in order to emphasize the empirical failure of ‘future blight’ determinations. Headquartered in Chicago, the Liberty Justice

3

Center’s offices are not far from the property at issue.

As Petitioners point out, rather than being blighted,

the neighborhood in this case has thrived in the past

two decades. See Pet. at 10, 22. This Court should look

askance at local government’s claim to a crystal ball—

they have no greater ability to predict the course of

complex economic system than a Court, and should not

be allowed to make politically convenient guesses.

ARGUMENT

I.

Kelo was poorly reasoned and there is

wide consensus that it was in error and

should be overruled.

Usually, a decision of this court that unites all sides

to its derision involves some long-ago ruling based on

the received wisdom of the time which experience has

shown to be benighted. See, e.g. Buck v. Bell, 274 U.S.

200 (1927). Yet Kelo attained infamy in its own time

as “probably the most universally despised Supreme

Court decision in decades.” Alberto B. Lopez, Revisiting Kelo and Eminent Domain’s “Summer of Scrutiny”,

59 Ala. L. Rev. 561, 562 (2008). “No other Supreme

Court decision has ever led to such a broad legislative

reaction.” Ilya Somin, THE GRASPING HAND: KELO V.

CITY OF NEW LONDON & THE LIMITS OF EMINENT DOMAIN 3 (2015).

Indeed, the backlash was swift—and bipartisan.2

The decision was denounced by Ralph Nader and Rush

2

Indeed, Counsel of Record for Amicus was an intern at the

law firm representing Ms. Kelo at the time the Court’s decision was issued and recalls a poll on the front page of CNN’s

4

Limbaugh, Howard Dean and Bernie Sanders. Somin,

THE GRASPING HAND at 137. Many jurisdictions

quickly attempted to put some limits on the dangers

Kelo created: “[i]n the years following the decision,

both the federal government and forty-five states

passed new laws limiting the using of eminent domain.” Id. 3. Unfortunately, these efforts often fell

short, failing to provide more than symbolic limits on

the power of governments to take property. Id.

The reason for this bipartisan consensus is

straightforward: these sort of economic development

takings are unfair from any angle one looks at them.

They don’t simply undermine the promises of rights in

property that was fundamental to our founding principles, they do so by transferring wealth and power to

the politically powerful at the expense of the weak. As

Justice Thomas explained in his dissent,

Public works projects in the 1950’s and 1960’s

destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore,

Maryland. Id., at 28-29. In 1981, urban planners in Detroit, Michigan, uprooted the largely

“lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have

long been associated with the displacement of

website finding only one percent of responders thought that

the government should be able to seize private homes or businesses for private development. See Les Christie, “Taking

your home away,” CNN (Aug. 3, 2005),

https://money.cnn.com/2005/07/25/real_estate/investment_prop/eminent_domain_v_deveopment/index.htm.

5

blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’”

Pritchett, The “Public Menace” of Blight: Urban

Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over

97 percent of the individuals forcibly removed

from their homes by the “slum-clearance” project upheld by this Court in Berman[v. Parker]

were black. 348 U.S., at 30, 99 L. Ed. 27, 75 S.

Ct. 98. Regrettably, the predictable consequence of the Court’s decision [in Kelo] will be

to exacerbate these effects.

Kelo, 545 U.S. at 522 (Thomas, J., dissenting).

If these terrible outcomes were somehow compelled

by the text of the Fifth Amendment, or by clear precedent, perhaps this Court’s role would be simply to concede that the Constitution cannot always provide the

answers one would like. But Kelo’s reasoning demonstrates no such compulsion. Instead, it leans on poor

analogies to a few earlier cases. The Court in Kelo

claimed that there was “no principled way of distinguishing economic development from the other public

purposes that we have recognized.” 545 U.S. at 484. An

examination of the relevant cases shows otherwise.

First, in Berman v. Parker, 348 U.S. 26 (1954), this

Court addressed the District of Columbia’ ‘slum clearance’ program. Amicus submits that Berman was in

error for many of the same reasons Kelo, and the opinion in this case, were in error—and the passage above

from Justice Thomas emphasizes the racial and socioeconomic inequities these sorts of “anti-blight” initiatives created—but even taking Berman in tow, the

facts the Court confronted were simply different in

kind:

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In 1950 the Planning Commission prepared

and published a comprehensive plan for the

District. Surveys revealed that in Area B,

64.3% of the dwellings were beyond repair,

18.4% needed major repairs, only 17.3% were

satisfactory; 57.8% of the dwellings had outside

toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry

tubs, 83.8% lacked central heating. In the judgment of the District's Director of Health it was

necessary to redevelop Area B in the interests

of public health. The population of Area B

amounted to 5,012 persons, of whom 97.5%

were Negroes.

Berman, 348 U.S. at 30. The facts, as the Court in Berman understood them, were that more that 80% of the

homes in question were uninhabitable. The program

in Berman was a public health measure, which this

Court recognized as within the scope of traditional

municipal police powers. Id. at 32. The Court in Kelo

took a precedent about homes that didn’t have enough

heat to keep people from freezing in winter, and transformed it into a general license to replace residents

who were economically inconvenient.

The Kelo Court also relied on Haw. Hous. Auth. v.

Midkiff, 467 U.S. 229, 232 (1984). Because of some idiosyncrasies of Hawaii’s feudal and colonial history,

nearly all the land not owned by the federal government was owned by a small number of individuals. The

Hawaii government instituted a plan to break up this

oligopoly, by which people leasing from the oligopolists

could purchase the homes they were living in. Id. at

234. The Court found that “reduc[ing] the perceived social and economic evils of a land oligopoly traceable to

7

[Hawaii’s] monarchs” was a valid use of the state police power. Id. at 241-2.

Again, amicus would submit that “Berman and

Midkiff erred by equating the eminent domain power

with the police power of States.” Kelo, 545 U.S. at 519

(Thomas, J., dissenting). But even accepting the premise of these earlier cases, Kelo was in error. As with the

public health efforts in Berman, the kind of antitruststyle interest espoused in Midkiff has some basis in

traditional forms of state regulation. As with extant

health and safety issues, perhaps government can try

and resolve longstanding social conflicts related to the

very particular history of a state—conflicts whose complications that this court has had to confront more

than once. See, e.g. Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 166 (2009). As Justice O’Connor

explained,

“[i]n both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society--in Berman

through blight resulting from extreme poverty

and in Midkiff through oligopoly resulting from

extreme wealth. And in both cases, the relevant

legislative body had found that eliminating the

existing property use was necessary to remedy

the harm.

545 U.S. at 500 (O’Connor, J., dissenting). But Kelo

lacked any link to a traditional police power, and was

not addressed to any special or extreme harm. Rather,

the City of New London decided they’d rather serve the

purposes of a corporation than the individual citizens

who currently lived in their community. Id. at 469. The

Court held “that the sovereign may take private property currently put to ordinary private use, and give it

8

over for new, ordinary private use, so long as the new

use is predicted to generate some secondary benefit for

the public--such as increased tax revenue, more jobs,

maybe even esthetic pleasure.” Id. at 500 (O’Connor,

J., dissenting).

The root flaw that lead the Court astray is the conflation of “use” with “purpose,” which it came to employ

interchangeably despite the fact that they are distinct

concepts. Certainly, anything could serve some public

purpose, at least in the abstract. Justice O’Connor’s

dissent rightly points out that, at the level of generality adopted by the Court, simply transferring property

from poor to rich, or from small companies to larger,

can be justified by the increase in tax base. Id. at 503.

But one need not even be so constructive: if increasing

taxes is the end goal, one could simply seize and raze

homes to create scarcity and drive up the property values for politically preferred homeowners. No policy

will ever serve the purposes of the entire public, as the

public is made up of many individuals with their own

needs and preferences. See Id. at 501 (“nearly any lawful use of real private property can be said to generate

some incidental benefit to the public”). The City will

always be choosing between the purposes of various

segments of the public—and it does not require much

deduction to realize this will mean the purposes of the

wealthy and politically connected over the purposes of

those in the truest need.

Nor is Kelo’s supposed respect for state prerogatives persuasive. The court invoked “a strong theme of

federalism, emphasizing the ‘great respect’ that we

owe to state legislatures and state courts in discerning

local public needs.” 545 U.S. at 482. But subsidiarity

is not an end in itself—rather, this Court holds that

9

the division of authority is a means of securing the

rights of citizens. “By denying any one government

complete jurisdiction over all the concerns of public

life, federalism protects the liberty of the individual

from arbitrary power. When government acts in excess

of lawful powers, that liberty is at stake.” Bond v.

United States, 564 U.S. 211, 221–22 (2011) (cleaned

up). Kelo turns this core principle on its head: it justifies the abrogation of property rights by reference to

local government prerogatives, elevating the means

above the ends.

This Court should grant the petition, take this opportunity to clarify that local government is not entitled to deprive citizens of their most basic property

rights on the whim of political convenience.

II.

Courts should not allow local government

to take property based on their unreliable

prediction as to what property may or may

not be blighted in some uncertain future.

This Court should also grant the petition because

the empirical facts of this case demonstrate the inability of planners to predict which areas will someday become blighted. In Kelo, the planners asked this Court

to trust their wisdom, and when given the benefit of

the doubt they razed the working-class homes of New

London, and what was left a decade later were barren

lots inhabited only by a colony of feral cats. Somin, The

Grasping Hand 235. In this case, the City’s decadeslong failure to take the land lasted long enough to

watch the blighted future of River West turn towards

a bustling hub of prosperity. Yet the planners come to

10

this court and ask that it rubber-stamp their failed

prediction.

This Court should not permit localities to guess at

which areas may or may not one day need intervention, and to intervene merely on that guess—especially

since they aren’t very good at guessing. Yet they ask

this court to affirm their power to take which every

property they wish, for whatever politically convenient

purposes they wish, subject to trust rather than scrutiny. “This is not the rebuilding of cities. This is the

sacking of cities.” Jane Jacobs, THE DEATH AND LIFE OF

GREAT AMERICAN CITIES 6 (1961). To grant the City the

power to take property based on a prediction that

failed to come true would flirt dangerously close to

farce.

The Property in question sits less than a mile and

a half away from amicus’ office in Chicago’s bustling

financial district. See Pet. at 4. In 1999, the City

claimed this area was destined for blight, and so it had

no responsible choice but to designate a manufacturing district to avoid some hypothetical possible future

slum conditions. The hypothesis failed. Yet they have

continued to pursue this case, and Mr. Eychaner’s

land, as River West grew up without them. The record

as to the properties at issue exemplifies the City’s

cracked crystal ball: the initial jury to rule on the case

awarded Petitioner $2,500,000. Pet. at 10. Six years

later, at the retrial, the jury awarded $7,100,000 for

the same property. Pet at 11. In a fraction of the relevant time period since the City predicted River West

would be a future danger-zone, the value of the property nearly tripled.

Just across the street from the Bloomer Chocolate

Factory sit multiple luxury residential buildings, with

11

Studio Apartments running upwards of $2,000.3 A few

blocks away one finds upscale restaurants where one

can wash down $45 fish tacos with $22 cocktails.4 Major chains like Starbucks and Dunkin’ Donuts sell coffee to commuting professionals. There is even an indoor golf simulator.5

Not only is there no reason to think that government entities are any better at predicting whether

properties will or will not become blighted in the future, but Kelo and other cases should caution this

Court in trusting governments to predict whether they

will follow through with their own plans.

Consider another Chicago neighborhood subject to

eminent domain: the 3400 block of Bryn Mawr Avenue

in Chicago’s North Park neighborhood, seized in 2016

by Northeastern Illinois University, traditionally a

commuter school that sought to build dormitories on

the seized properties. Yet, five years later, NEIU has

scrapped its unfulfilled plans to build dorms and has

recently hired a firm to reassess its options for the

properties it has forced to sit vacant for the last five

years. Patty Wetli, NEIU Wanted These Properties

Badly Enough to Invoke Eminent Domain. They’re Still

Vacant,

So

Now

What?,

WTTW,

https://news.wttw.com/2021/01/25/neiu-wanted-theseproperties-badly-enough-invoke-eminent-domainthey-re-still-vacant-so; see also, Illinois Policy, The

3

See, e.g. Alta at K Station, available at https://www.altaatkstation.com/.

4

See, e.g., The Dawson, available at https://the-dawson.com/.

5

See My Chicago Golf, available at http://www.mychicagogolflesson.com/.

12

Taking

of

Bryn

Mawr

Avenue,

https://www.youtube.com/watch?v=r4hdQglN2W0.

The facts here exemplify why this court should not

allow local government to take unblighted property

subject to their own prediction of future economic

winds. Nor can Courts trust local government to admit

when they got it wrong: they’re still litigating this case

based on their failed prediction. At the very least, court

should not be forced to trust the wisdom of planners

over what they can empirically see with their own

eyes: there is not, and never has been, any blight here

to begin with.

CONCLUSION

For the reasons stated above, and by Petitioner, the

Petition should be granted.

Respectfully submitted,

April 13, 2021

Jeffrey M. Schwab

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE

CENTER

208 LaSalle St.,

Ste. 1690

Chicago, IL 60604

(312) 637-2280

jschwab@liberty

justicecenter.org