Amicus Curiae Brief — Ariyan Incorporated, dba Discount Corner, et al., Petitioners v. Sewerage & Water Board of New Orleans, et al.
Supreme Court briefAug 18, 2022
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No. 22-52
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------ARIYAN, INC., DBA DISCOUNT CORNER, et al.,
Petitioners,
v.
SEWERAGE & WATER BOARD
OF NEW ORLEANS, et al.,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE
OWNERS’ COUNSEL OF AMERICA
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------MARK M. MURAKAMI
Counsel of Record
JOANNA C. ZEIGLER
CHEYNE I.Y. YONEMORI
DAMON KEY LEONG KUPCHAK HASTERT
1003 Bishop Street, 16th Floor
Honolulu, Hawaii 96813
(808) 531-8031
mmm@hawaiilawyer.com
Counsel for Amicus Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
A fundamental element of just compensation is
“certain payment of the compensation without unreasonable delay.” Bragg v. Weaver, 251 U.S. 57, 62 (1919).
In 2013, the Sewerage & Water Board of New Orleans
inversely condemned the properties of 70 home and
business owners for a flood control project. The property owners obtained state court judgments starting
in 2018. Louisiana law prohibits enforcement of judgments against state and local governments – even just
compensation judgments – which go unpaid unless
government voluntarily appropriates the funds. The
Sewerage Board has refused to do so, in some cases for
years. The question presented is:
May the government, consistent with the Fifth
and Fourteenth Amendments’ self-executing command
of Just Compensation for takings of private property,
indefinitely delay paying just compensation?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
TABLE OF CONTENTS ......................................
ii
TABLE OF AUTHORITIES .................................
iv
INTEREST OF AMICUS CURIAE ......................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
3
I.
II.
This Case Provides a Vehicle to Address
the Circuit Split on the Inviolability of
Just Compensation ....................................
3
Prompt Payment of Just Compensation is
a Federal Civil Right, Enforceable in Federal Court ..................................................
7
A. Federal Courts are Empowered to Enforce Federal Constitutional Rights......
7
B. Self-Executing Character of the Fifth
Amendment Requires Prompt Payment ..................................................... 10
C. Fifth Circuit Was Wrong to Rely on
Folsom .................................................. 12
III.
The Just Compensation Clause Requires
Timely Payment ......................................... 15
A. Possession Requires Payment or Deposit ..................................................... 15
B. Failure to Pay Compensation Triggers
Repossession ........................................ 17
iii
TABLE OF CONTENTS – Continued
Page
C. Prompt Payment in Inverse Condemnation Cases Protects Landowners
from Condemnor Default ..................... 17
D. Prompt Payment Requirement is a
Modest Tool to Obtain Compliance ...... 20
CONCLUSION..................................................... 22
iv
TABLE OF AUTHORITIES
Page
CASES
Ariyan, Inc. v. Sewerage & Water
Board of New Orleans,
29 F.4th 226 (5th Cir. 2022) ....................................14
Armstrong v. United States,
364 U.S. 40 (1960) .....................................................7
Big Lost River Irrigation Co. v. Davidson,
121 P. 88 (Idaho 1912) .............................................20
Bragg v. Weaver,
251 U.S. 57 (1919) .....................................................7
Brown v. Board of Education,
347 U.S. 483 (1954) ...................................................8
Brown v. Kennebec Water Dist.,
79 A. 907 (Me. 1911) ................................................20
Cedar Point Nursery v. Hassid,
141 S. Ct. 2063 (2021) .............................................11
Chicago v. Barbian,
80 Ill. 482 (Ill. 1875) ................................................20
Cnty. Board of School Trustees v. Boram,
186 N.E.2d 275 (Ill. 1962) .......................................21
Cobb v. City of Stockton,
909 F.3d 1256 (9th Cir. 2018) ............................ 3, 5, 6
Community Redevelopment Agency v.
Force Electronics,
55 Cal. App. 4th 622 (Ct. App. 1997) ................ 18, 19
Des Moines v. Des Moines War Co.,
218 F. 939 (S.D. Iowa 1914) .....................................20
v
TABLE OF AUTHORITIES – Continued
Page
Dolan v. City of Tigard,
512 U.S. 374 (1994) ...................................................8
Fin. Oversight & Mgmt. Bd. v. Cooperativa de
Ahorro (In re Fin. Oversight & Mgmt. Bd.),
No. 22-1119, 2022 U.S. App. LEXIS 19736
(1st Cir. July 18, 2022) ...................................... 3, 4, 5
First English Evangelical Lutheran Church v.
Cty. of L.A.,
482 U.S. 304 (1987) .................................................10
Florida C. & P.R. Co. v. Bear,
31 So. 287 (Fla. 1901) ..............................................20
Folsom v. Mayor & Adm’rs,
109 U.S. 285 (1883) ......................................... passim
Gates v. Collier,
616 F.2d 1268 (5th Cir. 1980) ....................................8
Hamacher v. People,
29 Cal. Rptr. 513 (1963) ..........................................20
Hays v. Port of Seattle,
215 U.S. 233 (1920) ...................................................7
Heath v. City of Alexandria,
52 So. 3d 86 (La. Ct. App. 2010) ..............................21
Higginbotham Ex’x v. Commonwealth,
66 Va. 627 (Va. 1974) ...............................................21
Jazz Casino Co., LLC v. Bridges,
223 So. 3d 488 (La. 2017) ........................................21
Jones v. Hammer,
255 P. 955 (Wa. 1927) ..............................................20
vi
TABLE OF AUTHORITIES – Continued
Page
Joslin Mfg. Co. v. City of Providence,
262 U.S. 668 (1923) ...................................................7
Kirby Forest Industries v. United States,
467 U.S. 1 (1984) ............................................... 11, 16
Knick v. Township of Scott,
139 S. Ct. 2162 (2019) ..................................... 4, 9, 10
Mandel v. Myers,
29 Cal. 3d 531 (Cal. 1981) .......................................21
Phelps v. United States,
274 U.S. 341 (1927) .................................................18
Redevelopment Agency v. Gilmore,
700 P.2d 794 (Cal. 1985)..........................................18
San Diego Gas & Elec. Co. v. San Diego,
450 U.S. 621 (1981) .................................................11
State ex rel. Attorney Gen. v. Young,
29 Minn. 474 (Minn. 1881)......................................21
State ex rel. Folsom Bros. v. Mayor & Adm’rs of
New Orleans,
32 La. Ann. 709 (1880) ...................................... 12, 13
Sweet v. Rechel,
159 U.S. 380 (1895) ...................................................7
United States v. Clarke,
445 U.S. 253 (1980) .................................................11
Williamson County v. Hamilton Bank,
473 U.S. 172 (1985) ...................................................9
Witkowski v. Bradley,
35 La. Ann. 904 (1883) ............................................15
vii
TABLE OF AUTHORITIES – Continued
Page
CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
U.S. Const. amend. V .......................................... passim
U.S. Const. amend. XIV ................................ 1, 2, 11, 14
40 U.S.C. § 3115 ..........................................................16
Alaska Stat. § 09.55.400 .............................................16
Cal. Code Civ. Proc. § 1255.010 ..................................16
Fla. Stat. § 73.11 ................................................... 17, 20
Haw. Rev. Stat. § 101-25 .............................................17
La. Const. of 1868 .......................................................13
La. Const. of 1879 ........................................... 13, 14, 15
N.J. Stat. § 20:3-18 ......................................................16
S. Ct. R. 37 ....................................................................1
OTHER AUTHORITIES
1A Nichols on Eminent Domain § 4.8 (2022) ........ 1, 17
Christina Bohannan, Beyond Abrogation of Sovereign Immunity: State Waivers, Private Contracts, and Federal Incentives, 77 N.Y.U.L.
Rev. 273 (2002) ........................................................21
James W. Ely, The Guardian of Every Other
Right: A Constitutional History of Property
Rights (3d ed. 2008) ..................................................1
viii
TABLE OF AUTHORITIES – Continued
Page
Gideon Kanner, Making Laws and Sausages:
A Quarter-Century Retrospective on Penn
Central Transportation Co. v. City of New York,
13 Wm. and Mary Bill of Rts. J. 679 (2005) ............12
D. Bruce La Pierre, Enforcement of Judgments
Against States and Local Governments: Judicial Control over the Power to Tax, 61 Geo.
Wash. L. Rev. 301 (1991) ...........................................8
Frank T. Read, The Bloodless Revolution: The
Role of the Fifth Circuit in the Integration of
the Deep South, 32 Mercer L. Rev. 1149
(1981) .........................................................................9
Remembering Judge Elbert P. Tuttle, https://www.
ca11.uscourts.gov/remembering-judge-elbertp-tuttle .......................................................................9
1
INTEREST OF AMICUS CURIAE1
Owners’ Counsel of America (OCA) is an invitationonly network of the nation’s most experienced eminent
domain and property rights attorneys. Its members
join together to advance, preserve, and defend the
rights of private property owners and to further the
cause of liberty, because the right to own and use property is “the guardian of every other right.” See James
W. Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (3d ed. 2008). OCA
is a non-profit organization sustained solely by its
members. Only one member is admitted from each
state. OCA members have been counsel for parties or
amici in most of this Court’s landmark property and
takings cases over the past fifty years, and OCA members have authored or edited treatises, books, and articles on property law, takings, and just compensation,
including editing the leading eminent domain treatise
Nichols on Eminent Domain.
Prompt payment of just compensation is a fundamental right protected by the Fifth and Fourteenth
Amendments, which state law may not impede or restrict. OCA has a unique viewpoint and we believe this
brief will be helpful to the Court.
---------------------------------♦---------------------------------
Rule 37 disclosure: All parties were timely notified and consented to the filing of this brief. No part of this brief was authored
by any party’s counsel and no person, or entity, other than amicus
funded its preparation and submission.
1
2
SUMMARY OF ARGUMENT
This case presents an opportunity for the Court to
enforce the fundamental principle that just compensation must be paid within a reasonable time of a taking.
The Just Compensation Clause requires more than an
unenforceable suggestion to pay. This Court time and
time again has affirmed the self-executing nature of
just compensation. And yet, as this case demonstrates,
property owners remain subject to the whims of condemnors when it comes time to pay that compensation.
Louisiana law cannot usurp the Fifth and Fourteenth
Amendments’ right to timely compensation and federal courts are empowered to enforce that civil right. A
mere promise to pay without some federal judicial enforcement tool in back of it leaves landowners vulnerable to municipal bankruptcy, redevelopment agency
and utility company insolvency, or as here, the bare
politics in the legislature.
This brief makes three points:
1. The lower courts are split on whether the Just
Compensation Clause is self-executing, and whether
anything can impede the requirement of full and
prompt payment of compensation.
2. Property rights, including the right to timely
compensation, are federal civil rights and federal
courts have the power to enforce them to remedy any
constitutional violation.
3. Timely payment of compensation is a wellestablished principle required by the Just Compensation Clause.
3
Absent enforceability of the requirement of timely
payment, the Just Compensation Clause is rendered
hollow.
---------------------------------♦---------------------------------
ARGUMENT
I.
THIS CASE PROVIDES A VEHICLE TO
ADDRESS THE CIRCUIT SPLIT ON THE
INVIOLABILITY OF JUST COMPENSATION
As the Petition highlights, this Court has not addressed a key issue of whether anything can prevent
the payment of full compensation, or otherwise inhibit
the mandate of the Just Compensation Clause. On this
issue, the Fifth Circuit here joined the Ninth Circuit,
which in Cobb v. City of Stockton, 909 F.3d 1256 (9th
Cir. 2018), held that just compensation claims, can receive less, or none, of their just compensation by operation of bankruptcy laws. Very recently, the First
Circuit, relying on the self-executing nature of just
compensation, held the opposite and refused to allow
bankruptcy law to impede full payment of just compensation. Fin. Oversight & Mgmt. Bd v. Cooperativa de
Ahorro, No. 22-1119, 2022 U.S. App. LEXIS 19736, at
*5 (1st Cir. July 18, 2022). A ruling from this Court resolving the split and requiring reasonably prompt payment of just compensation would dramatically lower
the risk of condemnors violating the Fifth Amendment
by nonpayment of just compensation. Granting the Petition also will allow the Court to emphasize the payment required by the Just Compensation Clause and
4
resolve the real risk of delayed payment – or even nonpayment – which faces owners whose property has
already been taken.
Fin. Oversight & Mgmt. Bd concerned the bankruptcy of the Commonwealth of Puerto Rico. The
debtor proposed to treat Puerto Rico’s liability for just
compensation claims (for condemnation and inverse
condemnation) as unsecured debt, thus subject to reduced payment. Id. at *5. The debtor cited this Court’s
decision in Knick v. Township of Scott, 139 S. Ct. 2162,
2171 (2019) arguing that the decision meant that the
right to compensation was “untethered” from the taking which made it like any other unsecured creditor
claim. Id. at *18. The First Circuit affirmed that bankruptcy law could not impede the full payment of just
compensation for property already taken:
Recognizing that the “right to full compensation arises at the time of the taking,” does not
imply that the subsequent denial of that compensation does not also raise Fifth Amendment concerns. We decline to read Knick as
changing the Fifth Amendment right to receive just compensation into a mere monetary
obligation that may be dispensed with by statute.
Id. at **18-19 (internal citation omitted). The court
continued:
Just compensation then does not serve only as
a remedy for a constitutional wrong; it serves
also as a structural limitation on the government’s very authority to take private property
5
for public use. As the Court has stated, “where
the government’s activities have already
worked a taking . . . , no subsequent action by
the government can relieve it of the duty to
provide compensation.” Simply put, the Fifth
Amendment contemplates a “constitutional
obligation to pay just compensation.”
Id. at **22-23 (emphasis added, internal citation omitted).
In contrast, the Ninth Circuit in Cobb, held that a
government’s obligation to pay just compensation for
takings is like any other unsecured debt. In that case,
the City of Stockton filed an eminent domain action
and used its powers of “quick take” to obtain possession
of land to build a road. 909 F.3d at 1260. As was his
right, the landowner withdrew the deposited compensation pending future adjudication of his actual just
compensation award. Id. at 1261. Ultimately, the eminent domain action was dismissed for failure to proceed to trial and title to the property did not pass to
the City of Stockton. Id. The landowner brought an inverse condemnation suit seeking just compensation for
the taking since the road involved in the condemnation
action was in fact built. Id. Before Cobb’s claim went
to judgment in state court, Stockton petitioned for protections under the Bankruptcy Code. Id. at 1262. The
confirmed plan treated the landowner’s claim as general unsecured debt and allowed the just compensation
claim to be adjusted in the plan. Id. On appeal, the
Ninth Circuit held that a landowner’s inverse condemnation claim following a failed condemnation lawsuit,
6
was an “unsecured monetary debt claim” capable of adjustment in a municipal bankruptcy reorganization,
id. at 1267, and treated the landowner as if he was any
other creditor subject to equitable mootness. Id. at
1263.
Cobb argued that the Takings Clause exempted
his unsecured claim from reorganization. Id. at 1266.
The Ninth Circuit disagreed, holding:
The Takings Clause is only implicated in
bankruptcy if the creditor has actual property
rights. In other words, the creditor must have
an in rem right under nonbankruptcy law to
look to specific items of property in order for
the debt to be paid ahead of unsecured creditors. If the purported property interest is, in
reality, just a contractual or statutory right
for monetary relief, then the debt can be adjusted in bankruptcy.
****
As the bankruptcy court pointed out, if the inverse condemnation claim had been reduced
to a judgment, it would be subject to adjustment in bankruptcy, therefore it is not logical
to say that an unliquidated claim for greater
compensation cannot be adjusted in bankruptcy.
Id. at 1266-67.
7
II.
PROMPT PAYMENT OF JUST COMPENSATION IS A FEDERAL CIVIL RIGHT, ENFORCEABLE IN FEDERAL COURT
The Fifth Amendment’s Just Compensation
Clause’s bedrock protection is to “bar Government
from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by
the public as a whole.” Armstrong v. United States, 364
U.S. 40, 49 (1960).
Actual payment of just compensation is included
in the Fifth Amendment’s protection. See, e.g., Sweet v.
Rechel, 159 U.S. 380, 401 (1895) (means for securing
payment must be such that owner will not be put to
risk of unreasonable delay); Bragg v. Weaver, 251 U.S.
57, 62 (1919) (compensation due without unreasonable
delay); Hays v. Port of Seattle, 251 U.S. 233, 238 (1920)
(Constitution requires payment without unreasonable
delay); Joslin Mfg. Co. v. City of Providence, 262 U.S.
668, 677 (1923) (just compensation mandate fulfilled
when public is pledged to reasonably prompt payment
and there is provision for enforcing that pledge).
A. Federal Courts are Empowered to Enforce Federal Constitutional Rights
As the vindicator of federal civil rights, federal
courts should not be closed to claims that a local government unreasonably delayed just compensation after a taking. As this Court has said, property rights
should enjoy the same privileged constitutional status
in federal courts as the other rights enshrined in the
8
Bill of Rights. Dolan v. City of Tigard, 512 U.S. 374, 392
(1994) (“We see no reason why the Takings Clause of
the Fifth Amendment, as much a part of the Bill of
Rights as the First Amendment or Fourth Amendment,
should be relegated to the status of a poor relation in
these comparable circumstances.”).
Here there is no question of whether a taking has
occurred, nor any dispute as to the amount of compensation. Accordingly, the only issue that was brought to
federal court was whether the Sewerage Board had unreasonably delayed payment of just compensation.
And the Fifth Circuit held that federal courts have no
power to hear, much less remedy, that claim. Yet, in
other civil rights cases, the Fifth Circuit has not been
cowed by government’s delays, but approved use of any
“weapon” at a court’s disposal to enforce civil rights
judgments: “[t]he defendants have made it abundantly
clear that they intend to resist the judgment until the
bitter end. Given such obstinance, we think it beyond
peradventure that the remedy fits the wrong.” Gates v.
Collier, 616 F.2d 1268, 1271-72 (5th Cir. 1980). “If statutory authority is needed for the court’s actions, it may
be found in Fed.R.Civ.P. 70.” Id.2
As the Fifth Circuit decisions following Brown v.
Bd. of Educ., 347 U.S. 483 (1954) showed, federal courts
See generally D. Bruce La Pierre, Enforcement of Judgments Against States and Local Governments: Judicial Control
over the Power to Tax, 61 Geo. Wash. L. Rev. 301 (1993).
2
9
are able to redress constitutional violations committed
by state and local institutions.3
In a similar vein, this Court recently remedied
three decades of unfair and doctrinally unsupportable
rulings that kept landowners from asserting their federal constitutional property rights in federal court. In
Knick v. Township of Scott, 139 S. Ct. 2162 (2019), this
Court overruled the requirement – first adopted in Williamson County v. Hamilton Bank, 473 U.S. 172 (1985)
– that property owners seek and be denied compensation in state courts before having a ripe federal claim.
Knick let these claims come back to federal court and
emphasized what was lost by the Fifth Circuit here,
that the right to compensation arises at the taking,
and “no subsequent action by the government can relieve it of the duty to provide compensation.” Knick,
139 S. Ct. at 2171. State law simply cannot relieve or
unreasonably postpone the duty to pay compensation,
and federal courts should have the power to hear
claims of unpaid or delayed payments and remedy
those violations of the Fifth Amendment.
See Frank T. Read, The Bloodless Revolution: The Role of
the Fifth Circuit in the Integration of the Deep South, 32 Mercer
L. Rev. 1149 (1981), available at https://digitalcommons.law.mercer.
edu/cgi/viewcontent.cgi?article=2239&context=jour_mlr; see also
Remembering Judge Elbert P. Tuttle, available at https://www.ca11.
uscourts.gov/remembering-judge-elbert-p-tuttle.
3
10
B. Self-Executing Character of the Fifth
Amendment Requires Prompt Payment
The Petition should be granted to affirmatively
state that the Just Compensation Clause has primacy
over any conflicting state law. Or, to put it more simply,
that just compensation judgments must be paid. Here,
with a blessing from the Fifth Circuit, a Louisiana
agency flouted lawful, binding, and valid judgments
directing just compensation payments to landowners
found to have suffered a taking. Ignoring the payment mandate of the Fifth Amendment, the agency
subjected the prevailing landowners to a murky and
uncertain prospect of payment from the legislative process. Governmental appropriations, owned by the most
political of the three branches of government, is a discretionary governmental process. But just compensation is mandatory, not discretionary. Amend. V (“nor
shall private property be taken for public use, without
just compensation”). As such, the Fifth Amendment
provides no guarantee of just compensation if a legislature cannot be compelled to satisfy the judgements
awarding such just compensation.
This Court has termed the compensation protections of the Fifth Amendment as “self-executing” repeatedly. Knick v. Twp. of Scott, 139 S. Ct. 2162, 2171
(2019) (“Because of ‘the self-executing character’ of
the Takings Clause ‘with respect to compensation,’ a
property owner has a constitutional claim for just compensation at the time of the taking”); First English
Evangelical Lutheran Church v. Cty. of L.A., 482 U.S.
304, 315 (1987) (“We have recognized that a landowner
11
is entitled to bring an action in inverse condemnation
as a result of the self-executing character of the constitutional provision with respect to compensation. . . .”)
(internal quotation marks omitted); United States v.
Clarke, 445 U.S. 253, 257 (1980) (same); Kirby Forest
Indus. v. United States, 467 U.S. 1, 5 n.6 (1984)
(same); San Diego Gas & Elec. Co. v. San Diego, 450
U.S. 621, 654 (1981) (Brennan, J., dissenting) (“This
Court has consistently recognized that the just compensation requirement in the Fifth Amendment is not
precatory: once there is a ‘taking,’ compensation must
be awarded.”). Simply put, it is the uncompensated aspect of a taking, whether by a regulation going “too far”
or interfering with investment-backed expectations or
by a dilatory legislature not paying judgments, which
violates the Fifth and Fourteenth Amendments.4
Claims by a condemnor, post-taking, that it needs
additional taxes or assessments to pay just compensation judgments should fall on deaf ears. As property
rights professor Gideon Kanner wrote:
[A]s a matter of both principle and law, it is
difficult to accept the notion that the condition
of the public purse delimits a specific constitutional provision explicitly set out in the Bill
of Rights. Are we to take it that an impecunious municipality can get a free pass to violate
its constitutional obligations and acquire private property for less than the law requires?
Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2074 (2021)
(the growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments).
4
12
Wouldn’t that, by parity of reasoning, also
imply that a wealthy community enjoying a
fiscal surplus should have to pay for all of condemnees’ demonstrable losses including those
that are ordinarily non-compensable under
current law, plus perhaps a solatium payment, as has been done at times in other
countries? It seems to me that the definitive
answer to arguments of municipal poverty
was delivered by the U.S. Supreme Court as a
matter of constitutional principle, when it observed, in Watson v. City of Memphis, that
“vindication of conceded constitutional rights
cannot be made dependent on any theory that
it is less expensive to deny than to afford
them.”5
C. Fifth Circuit Was Wrong to Rely on Folsom
The Fifth Circuit relied almost exclusively on a
misreading of this Court’s opinion in Folsom v. Mayor
& Adm’rs, 109 U.S. 285 (1883). This Court should grant
the Petition to distinguish Folsom or reject its continued viability. In that case, the Louisiana supreme court
overturned a writ of mandamus directing the City of
New Orleans to impose taxes to pay for tort judgments
arising from property damage suffered in the New Orleans riots of 1873. State ex rel. Folsom Bros. v. Mayor
& Adm’rs of New Orleans, 32 La. Ann. 709, 718 (1880).
The court concluded that complying with the writ
Gideon Kanner, Making Laws and Sausages: A QuarterCentury Retrospective on Penn Central Transportation Co. v. City
of New York, 13 Wm. and Mary Bill of Rts. J. 679, 761 (2005).
5
13
would violate the 1879 Louisiana constitution, which
established a limit on the taxes that could be assessed.
Id. at 715.6
This Court affirmed, holding that municipalities
were immune from execution under the Louisiana constitution’s maximum tax provisions. Folsom v. Mayor
& Adm’rs, 109 U.S. 285, 290 (1883). The majority concluded the right to reimbursement for riot-caused
damages to be provided, and taken away, at the pleasure of the legislature. Id. at 287. This Court ultimately
cabined its holding to the nature of the claim before it,
noting that an “ordinary judgment of damages for a
tort” was not before it. Id. at 290. Folsom did not involve judgments arising from just compensation, contract, or even tort. Justice Bradley concurred. He
concluded that a tort judgment, unlike the judgments
in Folsom, were property and to abrogate the remedy
for enforcing the judgment, would “deprive the owner
In 1868, with a convention inclusive of African American
delegates, Louisiana adopted a constitution which included a
provision guaranteeing all schoolchildren admittance to the public schools “without distinction of race, color, or previous condition.” La. Const. of 1868, art. 135. It also provided, “There shall
be no separate schools or institutions of learning established exclusively for any race by the State of Louisiana.” Finally, it provided, “nor vested rights divested unless for purposes of public
utility and for adequate compensation made.” La. Const. of 1868,
art. 110.
After Reconstruction ended. Louisiana convened a constitutional convention and in 1879, adopted a new constitution. La.
Const. of 1879. It removed the protections of African American
schoolchildren and included a cap on the property taxes that could
be assessed by municipalities or parishes. La. Const. of 1879, art.
209.
6
14
of his property within the meaning of the Fourteenth
Amendment.” Id. at 291 (Bradley, J., concurring). But
he also agreed that the cause of action was not contract
or tort, but rather on the grounds that remedies for
mob violence was “purely matters of legislative policy”
which could be repealed at any time. Id. at 291 (Bradley, J., concurring).
Justice Harlan dissented, concluding that the
judgments were property whether founded in contract
or otherwise. Id. at 293-94 (Harlan, J., dissenting).
Withholding of payment constituted destruction of the
“value” of the property in violation of the Constitution.
Id. at 294 (Harlan, J., dissenting) (A judgment’s “value
as property depends in every legal sense upon the remedies which the law gives to enforce its collection. To
withhold from a citizen who has a judgment for money
the judicial means of enforcing its collection . . . is to
destroy the value of the judgment as property.”).
Folsom cannot be read so broadly as to permit
just compensation judgment holders to be deprived of
timely compensation. That case involved a judgment
for property damages arising from a riot. The decision
did not pass on the application of the 1879 constitution’s Art. 209 on just compensation judgments. Indeed, the same 1879 constitution required that just
compensation precede takings. La. Const. of 1879, art.
156 (“Private property shall not be taken nor damages
for public purposes without just and adequate compensation being first paid.”) (emphasis added). There is no
way to harmonize a provision saying that payment be
made first with the Fifth Circuit’s decision in Ariyan,
Inc. v. Sewerage & Water Board of New Orleans, 29
15
F.4th 226 (5th Cir. 2022). See Folsom, 109 U.S. at 293
(Harlan, J., dissenting) (“[T]he State Constitution of
1879 cannot be applied to these judgments without
bringing it into conflict with that provision of the Constitution, which declares that no State shall deprive
any person of property without due process of law. That
these judgments are property within the meaning of
the Constitution cannot, it seems to me, be doubted.”).
Further, unlike here, the Louisiana supreme court
never placed Art. 209 as superior to the requirements
of the U.S. Constitution.7 If Art. 209 is causing violations of the Just Compensation Clause, then Louisiana
constitutional law required that Art. 209 yield to the
Fifth Amendment.
III. THE JUST COMPENSATION CLAUSE REQUIRES TIMELY PAYMENT
A. Possession Requires Payment or Deposit
One of the critical protections landowners have
in eminent domain actions are statutes that protect
landowners when they lose possession of their lands,
On the interplay between the 1879 constitution’s Art. 209
and the U.S. Constitution, the Louisiana supreme court stated:
This [taxing power limitation is binding on all levels of
State government], and must be sacredly observed and
enforced, save and except in such cases only where it is
found to contravene the paramount law of the land and
the restrictions imposed by that law upon the power of
the States.
Witkowski v. Bradley, 35 La. Ann. 904, 905 (La. 1883) (emphasis
added).
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whether pre-judgment, i.e., quick take, or after payment of just compensation.
In Kirby Forest Industries v. United States, 467
U.S. 1 (1984), this Court outlined the principle that
title and possession of property flow with the tender of
payment to the landowner. Id. at 4. Condemnors who
choose to not pay the award can move for dismissal. Id.
The landowner either has payment or it has its land.
For example, if the Federal Government seeks to
“quick take” property, the head of the government
agency has to make an “irrevocable commitment” to
pay the ultimate award. 40 U.S.C. § 3115. Many states,
recognizing the constitutional right to prompt payment of just compensation for takings, have enacted
similar legislation. See Alaska Stat. § 09.55.400 (deposit); Cal. Code Civ. Proc. § 1255.010 (deposit before
judgment); N.J. Stat. § 20:3-18 (deposit). Provisions
like these make the government put up collateral for
the proposed real estate transaction to secure landowners from the risk of governmental or agency intransigence or insolvency, while simultaneously protecting
their right to timely just compensation.
Statutes such as these shift burden of payment for
eminent domain takings from the individual landowner to the public as a whole, so that no one individual landowner has to bear a disproportionate share of
the cost of citizenship. Just as state governments nationwide have enacted statutory schemes to ensure
payment of just compensation in eminent domain takings, similar protections are necessary to ensure the
constitutionally protected right to just compensation is
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afforded to landowners who have had their land taken
by inverse condemnation.
B. Failure to Pay Compensation Triggers
Repossession
Another landowner protection found in eminent
domain codes is the automatic abandonment or termination of eminent domain proceedings for failure to
pay just compensation. The timeframe for such action
varies ranging from 20 days to several years. 2011 Fla.
Statutes § 73.11; Haw. Rev. Stat. § 101-25. These laws
are an implicit recognition of the need for finality and
certainty for landowners.
C. Prompt Payment in Inverse Condemnation Cases Protects Landowners from
Condemnor Default
Prompt payment of just compensation is required
to avoid the risk that a landowner does not receive that
which was due to him. Several constitutional provisions compel payment including the Just Compensation Clause and the Due Process Clause.8
See, e.g., 1A Nichols on Eminent Domain § 4.8 (2022) (“It
may be parenthetically stated at this point that determination of
the question of compensation is not required by ‘due process’ in
advance of the acquisition, provided that adequate provision is
made for certain payment without unreasonable delay. ‘Due process’ is satisfied, under such circumstances, whenever adequate
provision is made for the ascertainment of compensation pursuant to regular processes of law and for its payment, when ascertained, in due course of procedure.”).
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Many government agencies, quasi-government
agencies, redevelopment agencies, and pipeline and
public utility companies are granted the ability take or
damage land, but may not have the financial resources
to pay for the condemnation or regulatory activities.
As such, federal courts must have the ability to enforce
just compensation judgments to avoid making condemnees the “unwilling financiers of public acquisitions.” Redevelopment Agency v. Gilmore, 700 P.2d 794,
806 (Cal. 1985). After all, this Court recognizes that
landowners are entitled to have the full equivalent of
the value of such use at the time of the taking paid
contemporaneously with the taking. Phelps v. United
States, 274 U.S. 341, 344 (1927). Requiring prompt payment of just compensation removes the risk of nonpayment and provides assurances that a landowner will
not be deprived of both her property AND compensation for years on end.
Consider the case of Community Redevelopment
Agency v. Force Electronics, 55 Cal. App. 4th 622 (Ct.
App. 1997). In that case, a California redevelopment
agency condemned, took possession of, and demolished
the improvements of a landowner. Then, the agency
was unable to pay the full just compensation award.
California law provided that if an award was unpaid
after thirty days, a landowner could repossess the
property or could opt to be paid by installment plan.
Id. at 626. The redevelopment agency pleaded financial
hardship and moved to pay the judgment over ten
years with installments. Id. at 627. The trial court
granted the agency’s motion to pay in installments. Id.
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The court of appeals concluded that the purpose of the
statute requiring payment of a final condemnation
judgment within 30 days is “to make the government
meet its constitutional obligation to pay just compensation when it has condemned private property. If the
government does not have the money for acquiring the
property, its option is to abandon the condemnation.”
Id. at 632. Further, “[i]f the government refuses to
abandon, the property owner may effectively force an
implied abandonment by using the procedure spelled
out in [the California statute].” Id. Thus, the court held
given that the statute provides for the condemnee’s
election to regain possession of the property, a statute allowing the government to satisfy a just compensation judgment in installment payments would be
unconstitutional. Id. (“It is only the fact that the condemnee has the choice to proceed [with installment
payments] or to repossess the property that save the
constitutionality of Government Code section 970.6
procedure as applied to an eminent domain judgment.”)
Neither choice is satisfying. Repossessing property after public construction projects is costly, accepting installment payments (even with interest) rarely aligns
with landowner’s carrying costs.
Prompt payment should be constitutionally mandatory given that most land has carrying costs like
mortgage interest, property taxes, and insurance and
no landowner will receive the “full and perfect equivalent” of the land lost to governmental acquisition if
she receives no payment to address those carrying
costs.
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D. Prompt Payment Requirement is a Modest Tool to Obtain Compliance
This Court’s adoption of a mandatory payment
deadline with a tool for enforcement would obviate the
need to recognize more drastic remedies or judgment
execution. Some states have adopted the rule that condemnation judgments be paid in a reasonable time.
See Des Moines v. Des Moines War Co., 218 F. 939, 942
(S.D. Iowa 1914); Chicago v. Barbian, 80 Ill. 482, 486
(Ill. 1875) (recognizing that equity would stay any attempt to possess the property without payment);
Brown v. Kennebec Water Dist., 79 A. 907, 909 (Me.
1911) (payment within reasonable time or landowner
may recover damages). Some states have adopted statutory payment requirements. See Hamacher v. People,
29 Cal. Rptr. 513, 515 (1963) (thirty days to pay by statute); Florida C. & P.R. Co. v. Bear, 31 So. 287, 288 (Fla.
1901) (ten days by statute);9 Big Lost River Irrigation
Co. v. Davidson, 121 P. 88, 94 (Idaho 1912) (“Under the
statute, if the value of the property is not paid within
thirty days, the defendant is given the right to enforce
its payment by execution as in civil cases, and if it
cannot be collected in that manner, then the court is
authorized and empowered to annul the proceedings
and restore the defendant to possession.”). To be sure,
some states have not adopted a payment deadline. See
Jones v. Hammer, 255 P. 955, 959 (Wa. 1927) (18 month
delay between judgment and payment does not void
the judgment absent some statutory or constitutional
This was changed to twenty days. 2011 Fla. Statutes
§ 73.11.
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specified time); Cnty. Board of School Trustees v. Boram,
186 N.E.2d 275, 279 (Ill. 1962) (failure to pay, even
without a court deadline, constitutes abandonment).
In addition, some states preclude any enforcement
of judgments outright. Higginbotham Ex’x v. Commonwealth, 66 Va. 627, 641 (Va. 1974) (courts decide
whether judgment should be rendered, not paid);
Heath v. City of Alexandria, 52 So. 3d 86, 87-88 (La. Ct.
App. 2010) (constitution does not provide judiciary
with the ability to execute judgments); State ex rel.
Attorney Gen. v. Young, 9 N.W. 737, 742-43 (Minn.
1881); Christina Bohannan, Beyond Abrogation of
Sovereign Immunity: State Waivers, Private Contracts, and Federal Incentives, 77 N.Y.U.L. Rev. 273,
299-300 (2002). Some draw a distinction between discretionary appropriations and ministerial ones, permitting enforcement of ministerial obligations. Jazz
Casino Co., LLC v. Bridges, 223 So. 3d 488, 495 (La.
2017) (refunds of overpaid taxes are ministerial and
agency can be ordered to pay). California permits court
orders requiring state officials to repurpose appropriated funds. Mandel v. Myers, 29 Cal. 3d 531, 540 (Cal.
1981). If the legislature tried to condition an appropriation to circumvent that, the courts have the power to
strike down the offending condition. Id. at 546.
---------------------------------♦---------------------------------
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CONCLUSION
This Court should grant the Petition and review
the judgment of the United States Court of Appeals for
the Fifth Circuit.
Respectfully submitted,
MARK M. MURAKAMI
Counsel of Record
JOANNA C. ZEIGLER
CHEYNE I.Y. YONEMORI
DAMON KEY LEONG KUPCHAK HASTERT
1003 Bishop Street, 16th Floor
Honolulu, Hawaii 96813
(808) 531-8031
mmm@hawaiilawyer.com
Counsel for Amicus Curiae
AUGUST 18, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.