Amicus Curiae Brief — Ariyan Incorporated, dba Discount Corner, et al., Petitioners v. Sewerage & Water Board of New Orleans, et al.

No. 22-52

In The

Supreme Court of the United States

ARIYAN INCORPORATED, DOING BUSINESS AS

DISCOUNT CORNER, ET AL.,

Petitioners,

v.

SEWERAGE & WATER BOARD OF NEW ORLEANS, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE

REASON FOUNDATION, SOUTHEASTERN

LEGAL FOUNDATION, NATIONAL

ASSOCIATION OF REVERSIONARY

PROPERTY OWNERS, AND

PROFESSOR JAMES W. ELY, JR.,

IN SUPPORT OF PETITIONERS

STEPHEN S. DAVIS*

*Counsel of Record

MARK F. (THOR) HEARNE, II

TRUE NORTH LAW LLC

112 S. Hanley Road, Suite 200

St. Louis, MO 63105

(314) 296-4000

sdavis@truenorthlawgroup.com

Counsel for Amici Curiae

QUESTION PRESENTED

Does the Fifth Amendment’s self-executing

command that the government justly compensate an

owner when the government takes private property

mean the government must promptly pay the owner

or does the owner’s right to compensation depend

upon the legislature appropriating funds to

compensate the owner?

ii

TABLE OF CONTENTS

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

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

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

INTRODUCTION ...................................................... 3

SUMMARY OF ARGUMENT ................................... 4

ARGUMENT .............................................................. 6

I.

II.

This Court should grant certiorari to

resolve the split between the circuits ............. 6

A.

Contrary to the Fifth Circuit, the

First Circuit correctly applied this

Court’s

Fifth

Amendment

jurisprudence, which holds, “if the

government takes private property, it

must pay just compensation.” ................. 6

B.

The Sewerage Board violated its

“categorical

duty”

to

justly

compensate these landowners................. 9

This Court should grant the petition for

certiorari to affirm the principle that the

Fifth Amendment is self-executing ................. 12

A.

The Fifth Amendment’s guarantee of

“just compensation” is self-executing ..... 12

iii

TABLE OF CONTENTS—Continued

Page

B.

The

Fifth

Amendment’s

selfexecuting

guarantee

of

“just

compensation”

is

a

principle

recognized before the founding of the

Republic .................................................... 14

III. This Court should grant the petition for

certiorari because the Sewerage Board

denied these landowners a remedy that is

guaranteed by the Constitution ...................... 20

CONCLUSION ......................................................... 26

iv

TABLE OF AUTHORITIES

Page

Cases

Ariyan, Inc. v. Sewerage & Water Board of New

Orleans,

29 F.4th 226 (5th Cir. 2022) ................................ 3, 19

Arkansas Game and Fish Comm’n v. United States,

568 U.S. 23 (2012) ...................................................... 9

Armstrong v. United States,

364 U.S. 40 (1960) ...................................................... 8

Bloodgood v. Mohawk & Hudson Railroad Co.,

18 Wend. 9, 1837 WL 2871 (N.Y. 1837) .................. 24

Bragg v. Weaver,

251 U.S. 57 (1919) .................................................... 22

Brandt Revocable Trust v. United States,

572 U.S. 93 (2014) .................................................. 2, 6

Cedar Point Nursery v. Hassid,

141 S.Ct. 2071 (2021) ........................... 5, 9, 10, 19, 20

Chicago, Burlington & Quincy Railroad Co. v.

Chicago,

166 U.S. 226 (1897) .................................................. 13

Cobb v. City of Stockton,

909 F.3d 1256 (9th Cir. 2018).................................... 7

Crozier v. Fried. Krupp Aktiengesell-schaft,

224 U.S. 290 (1912) .................................................. 25

v

TABLE OF AUTHORITIES -- Continued

Page

Entick v. Carrington,

95 Eng. Rep. 807 (K.B. 1765) ............................ 16, 17

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987) .......................................... passim

Folsom v. City of New Orleans,

109 U.S. 285 (1883) .................................. 4, 10, 12, 13

Gardner v. Newburgh,

2 Johns, Ch. 162 (N.Y. 1816) ................................... 16

Horne v. Department of Agriculture,

576 U.S. 350 (2015) .......................................... 5, 9, 15

In re Financial Oversight & Management Board v.

Cooperativa de Ahorro,

41 F.4th 29 (1st Cir. 2022)............................... passim

Joslin Mfg. Co. v. City of Providence,

262 U.S. 668 (1923) .................................................. 22

Knick v. Township of Scott,

139 S.Ct. 2162 (2019) ....................................... passim

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) .................................................. 17

Marbury v. Madison,

5 U.S. 137 (1803) ...................................... 4, 20, 21, 26

vi

TABLE OF AUTHORITIES -- Continued

Page

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) ................................ 15, 18, 19, 22

Murr v. Wisconsin,

137 S.Ct. 1933 (2017) ............................................... 20

National Ass’n of Mfrs. v. Department of Defense,

138 S.Ct. 617 (2018) ................................................... 1

National Ass’n of Reversionary Property Owners v.

Surface Transportation Board,

158 F.3d 135 (DC Cir. 1998) ...................................... 2

People ex rel. Utley v. Hayden,

6 Hill 359, 1844 WL 4447 (N.Y. Sup. Ct. 1844) ...... 24

Preseault v. Interstate Commerce Comm’n,

494 U.S. 1 (1990) ........................................................ 2

Pumpelly v. Green Bay & Mississippi Canal Co.,

80 U.S. 166 (1871) .................................................... 13

Rogers v. Bradshaw,

20 Johns. R. 735 (N.Y. 1823) ................................... 24

San Diego Gas & Electric v. San Diego,

450 U.S. 621 (1981) .................................................. 13

Seaboard Air Line Railway v. United States,

261 U.S. 299 (1923) .............................................. 9, 19

vii

TABLE OF AUTHORITIES -- Continued

Page

Sveen v. Melin,

138 S.Ct. 1815 (2018) ................................................. 2

Sweet v. Rechel,

159 U.S. 380 (1895) ...................................... 22, 23, 24

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency,

535 U.S. 302 (2002) .................................................... 9

United States Forest Service v. Cowpasture River

Preservation Ass’n,

140 S.Ct. 1837 (2020) ................................................. 2

United States v. Clarke,

445 U.S. 253 (1980) ............................................ 14, 18

United States v. Commodities Trading Corp.,

339 U.S. 121 (1950) .................................................. 20

United States v. Jones,

565 U.S. 400 (2012) ............................................ 16, 17

United States v. Miller,

317 U.S. 369 (1943) .................................................. 10

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) .................................................... 1

Williams v. Parker,

188 U.S. 491 (1903) .................................................. 25

viii

TABLE OF AUTHORITIES -- Continued

Page

Constitutions, Statutes, and Rules

42 U.S.C. § 1983 ...................................................... 4, 11

Magna Carta ......................................................... 14, 15

U.S. Const. Amend. V ......................................... passim

Supreme Court Rule 37 .............................................. 1

OTHER AUTHORITIES

Blackstone, William, Commentaries on the Law of

England (1768) ............................................. 15, 20

Canellos, Peter S., The Great Dissenter: The Story

of John Marshall Harlan, America’s Judicial

Hero (2021) ........................................................... 4

Cash, Johnny, Folsom Prison Blues (1957) .............. 4

Ely, James W., The Guardian of Every Other

Right: A Constitutional History of Property

Rights (3rd ed. 2008) ............................................ 1

Padover, Saul K., The Complete Madison (1953) ... 17

INTEREST OF AMICI CURIAE1

Reason Foundation is a nonpartisan public

policy think tank, founded in 1978. Reason’s mission

is to advance a free society by developing and

promoting libertarian principles and policies —

including free markets, individual liberty, and the

rule of law.

Reason advances its mission by

publishing Reason magazine, online commentary, and

policy research reports.

To further Reason’s

commitment to “Free Minds and Free Markets,”

Reason files briefs on significant constitutional issues.

Southeastern Legal Foundation (SLF),

founded in 1976, is a national, nonprofit legal

organization dedicated to defending liberty and

Rebuilding the American Republic. In particular,

SLF advocates to protect individual rights and the

framework set forth to protect such rights in the

Constitution, including the Fifth Amendment’s

guarantee of just compensation. This aspect of its

advocacy is reflected in the regular representation of

those challenging government overreach and

guarding individual liberty. See, e.g., Utility Air

Regulatory Group v. EPA, 573 U.S. 302 (2014);

National Ass’n of Mfrs. v. Department of Defense, 138

S.Ct. 617 (2018).

1

In accordance with this Court’s Rule 37.2(a), all counsel of

record for the parties received timely notice of the intention to

file this brief, and both petitioners and respondents have

consented to the filing of this brief. Pursuant to Rule 37.6, no

counsel for any party authored any part of this brief, and no

person or entity other than amici curiae made a monetary

contribution intended to fund its preparation or submission.

2

National Association of Reversionary

Property Owners (NARPO) is a Washington State

not-for-profit educational foundation whose purpose is

to educate property owners concerning the defense of

their property rights. NARPO has assisted thousands

of property owners nationwide and has been involved

in litigation protecting an individual’s constitutional

right to due process and just compensation as

guaranteed by the Fifth Amendment. See, e.g.,

Preseault v. Interstate Commerce Comm’n, 494 U.S. 1

(1990) (amicus curiae); NARPO v. Surface

Transportation Board, 158 F.3d 135 (DC Cir. 1998).

Professor James W. Ely, Jr., is the Milton R.

Underwood Professor of Law Emeritus at Vanderbilt

University Law School. Professor Ely is a renowned

property law expert and legal historian who is the coauthor The Law of Easements & Licenses in Land

(revised ed. 2021), and the author of The Guardian of

Every Other Right: A Constitutional History of

Property Rights (3rd ed. 2008), Railroads & American

Law (2001), and The Contract Clause: A

Constitutional History (2016). The U.S. Supreme

Court and twenty-one other federal courts have relied

upon Professor Ely’s scholarship.

See Brandt

Revocable Trust v. United States, 572 U.S. 93, 96

(2014), United States Forest Service v. Cowpasture

River Preservation Ass’n, 140 S.Ct. 1837, 1844 (2020),

and Sveen v. Melin, 138 S.Ct. 1815, 1828 (2018)

(Gorsuch, J., dissenting). Courts in forty-one states

and territories have cited Professor’s Ely’s work,

including twenty-nine state supreme courts.

3

INTRODUCTION

The Sewerage & Water Board of New Orleans

(Sewerage Board) took private property from seventy

owners. The Sewerage Board did not pay the owners

but forced the owners to go to court and sue for

compensation.2 The owners won. Two Louisiana

state courts held the Sewerage Board took these

owners’ private property and must pay the owners

$10.5 million in compensation.

Ariyan, Inc. v.

Sewerage & Water Board of New Orleans, 29 F.4th

226, 228 (5th Cir. 2022). There is no dispute about

this. But, instead of paying the owners, the Sewerage

Board said, “sorry, we didn’t appropriate the money.”3

The owners went to federal court to enforce their

Fifth Amendment right to compensation. But the

district court dismissed the owners’ claim, and a panel

of the Fifth Circuit affirmed, contrary to this Court’s

holding in Knick v. Township of Scott.4 The Fifth

2 Justice Thomas concurred in Knick v. Township of Scott to

emphasize, “[t]his ‘sue me’ approach to the Takings Clause is

untenable. The Fifth Amendment does not merely provide a

damages remedy to a property owner willing to shoulder the

burden of securing compensation after the government takes

property without paying for it.

Instead, it makes just

compensation a prerequisite to the government’s authority to

take property for public use.” 139 S.Ct. 2162, 2180 (2019)

(internal quotations and citations omitted).

3 The Sewerage Board, in effect, adopted Judge Smails’ dictum

from Caddyshack, “you’ll get nothing and like it.”

4 “[A] property owner has a claim for a violation of the Takings

Clause as soon as a government takes his property for public use

without paying for it. *** And the property owner may sue the

government at that time in federal court for the ‘deprivation’ of

4

Circuit panel wrongly supposed the Fifth Amendment

guarantee of “just compensation” depends upon

legislative grace. The Fifth Circuit wrongly premised

its opinion upon a misreading of this Court’s decision

in Folsom v. City of New Orleans, 109 U.S. 285 (1883),

condemning these owners to a “Folsom Prison”5 in

which the government may take their property but

never pay.

SUMMARY OF ARGUMENT

This Court should grant the petition for certiorari

to resolve a conflict with the First Circuit6 and affirm

this Court’s jurisprudence holding the Fifth

Amendment guarantee of “just compensation” is selfexecuting, and as such, does not depend upon an act

of legislative grace any more than the other provisions

of the Bill of Rights. As articulated by Chief Justice

Marshall in Marbury and in dissent in Folsom by this

Court’s “Great Dissenter,”7 an unenforceable

judgment is no judgment at all.

a right ‘secured by the Constitution.’ 42 U.S.C. § 1983.” 139

S.Ct. at 2170.

5 Johnny Cash, Folsom Prison Blues (1957) (“I’m stuck in Folsom

prison, and time keeps draggin’ on *** Well I know I had it

coming, I know I can’t be free/But those people keep amovin’/And that’s what tortures me.”).

6

See In re Financial Oversight & Management Board v.

Cooperativa de Ahorro, 41 F.4th 29, 43 (1st Cir. 2022) (holding

“Fifth Amendment right to receive just compensation [cannot be

changed] into a mere monetary obligation that may be dispensed

with by statute”).

7

Peter S. Canellos, The Great Dissenter: The Story of John

Marshall Harlan, America’s Judicial Hero (2021), pp. 2-3.

5

The Fifth Amendment provides, “No person shall

*** be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, without just compensation.” It “does

not say: ‘Nor shall private property be taken for public

use, without an available procedure that will result in

compensation.’”8

And as this Court even more

recently declared, “taking cases are easily resolved

“using a simple per se rule: The government must pay

for what it takes.”9

8 Knick, 139 S.Ct. at 2170 (emphasis added).

9 Cedar Point Nursery v. Hassid, 141 S.Ct. 2071, 2072 (2021).

See also Horne v. Department of Agriculture, 576 U.S. 350, 367

(2015) (“Any physical taking of [private property] for public use

must be accompanied by just compensation.”); In re Board, 41

F.4th at 46 (“The Fifth Amendment provides that if the

government takes private property, it must pay just

compensation.”).

6

ARGUMENT

I.

This Court should grant certiorari to resolve

the split between the circuits.

A. Contrary to the Fifth Circuit, the First

Circuit correctly applied this Court’s

Fifth Amendment jurisprudence, which

holds, “if the government takes private

property,

it

must

pay

just

10

compensation.”

Government will always be tempted to take

private property and avoid paying the owner. See,

e.g., Brandt, 572 U.S. at 100 (holding United States

violated Just Compensation Clause for imposing a

recreational trail easement across owner’s land when

the government attempted to avoid paying

compensation by suing landowners “seeking *** an

order quieting title in the United States”). Both the

Sewerage Board and Puerto Rico have attempted to

do just that.

Puerto Rico argued that this Court, in Knick, held

that “a Takings Clause violation is keyed only on the

actual taking of property rather than on any

subsequent denial of just compensation.” In re Board,

41 F.4th at 42 (“The Board would thus have us

understand just compensation as an entitlement to

payment that is untethered from the substantive

Takings Clause violation itself.”). The First Circuit

rejected Puerto Rico’s argument, explaining,

10 In re Board, 41 F.4th at 46.

7

nothing in Knick’s holding casts doubt on the

Fifth Amendment’s requirement that just

compensation be paid. 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 43.11

The First Circuit explained that Puerto Rico could

not claim “that any laws enacted pursuant to

[Congress’ Article I] powers would trump the

constitutional requirement to pay just compensation

for taken property merely by nature of their mention

in the Constitution. Otherwise, Congress might

largely do away with the requirement to pay just

compensation altogether.” In re Board, 41 F.4th at 42.

“[A]s the Supreme Court has explained,” the First

Circuit stated, “Just compensation [ ] 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 for public use.”

Id. at 44 (citing First English Evangelical Lutheran

Church of Glendale v. Los Angeles County, 482 U.S.

304, 314 (1987)). “Simply put, the Fifth Amendment

11 Cf. Cobb v. City of Stockton, 909 F.3d 1256, 1267 (9th Cir.

2018) (holding “asserting an unconstitutional taking [does not]

make [a claim] immune from evaluation on the merits in

bankruptcy”).

8

contemplates a ‘constitutional obligation to pay just

compensation.’” Id. (quoting Armstrong v. United

States, 364 U.S. 40, 49 (1960)) (emphasis added).12

The First Circuit continued, “[a]s the [Supreme]

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.’” In re Board, 41 F.4th at

44.13 Indeed, the First Circuit explained, “in the case

of the Takings Clause, the Constitution clearly spells

out both a monetary remedy and even the necessary

quantum of compensation due. Accordingly, the

denial of adequate (read: just) compensation for a

taking is itself constitutionally prohibited.” Id. at 45

(citing First English, 482 U.S. at 316 (“reaffirming the

Supreme Court's ‘frequently repeated’ view that ‘in

the event of a taking, the compensation remedy is

required by the Constitution’”) (emphasis added).

The First Circuit correctly and appropriately

applied this Court’s holdings in Knick and Cedar

Point Nursery to Puerto Rico, holding, “the issue we

decide is rather simple. The Fifth Amendment

provides that if the government takes private

12 See also Armstrong, 364 U.S. at 49 (“The Fifth Amendment's

guarantee that private property shall not be taken for a public

use without just compensation was designed 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.”).

13 Emphasis added; quoting First English, 482 U.S. at 315, 321

(quoting Armstrong, 364 U.S. at 49).

9

property, it must pay just compensation.” In re Board,

41 F.4th at 46 (emphasis added). This Court should

grant the petition for certiorari to correct the Fifth

Circuit’s error and affirm this Court’s Fifth

Amendment jurisprudence.

B. The Sewerage Board violated its

“categorical duty” to justly compensate

these landowners.

The legitimacy of government’s eminent domain

power is premised upon the government’s

“categorical” duty to justly compensate the owner.

See Arkansas Game and Fish Comm’n v. United

States, 568 U.S. 23, 31 (2012) (“[w]hen the

government physically takes possession of an interest

in property for some public purpose, it has a

categorical duty to compensate the former owner.”);14

Horne, 576 U.S. at 358, 367 (“The Government has a

categorical duty to pay just compensation when it

takes your car, just as when it takes your home. ***

Any physical taking of [private property] for public

use must be accompanied by just compensation.”).

Neither the federal government, nor a state or

local government, may escape its “categorical duty” to

compensate landowners by creating a scheme denying

owners the ability to obtain just compensation. See

Seaboard Air Line Railway v. United States, 261 U.S.

299, 304 (1923) (“Just compensation is provided for by

the Constitution and the right to it cannot be taken

away by statute.”). See also Cedar Point Nursery, 141

14 Quoting Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 535 U.S. 302, 322 (2002).

10

S.Ct. at 2072 (“taking cases are easily resolved “using

a simple per se rule: The government must pay for

what it takes”).

A landowner has been justly compensated – and

the owner’s Fifth Amendment right to “just

compensation” satisfied – only when the government

actually pays the owner an amount sufficient to put

the owner in “as good position pecuniarily as he would

have occupied if his property had not been taken.”

United States v. Miller, 317 U.S. 369, 373 (1943)

(citing, 261 U.S. at 304).

In Knick, this Court held that “because the

[constitutional] violation is complete at the time of the

taking, pursuit of a remedy in federal court need not

await any subsequent state action. Takings claims

against local governments should be handled the

same as other claims under the Bill of Rights.” 139

S.Ct. at 2177. As Justice Harlan wrote in dissent in

Folsom,

It is also said by my brethren that plaintiffs

are not deprived of their property in these

judgments because at the time they are

unable to collect them. No state shall “deprive

any person of life, liberty, or property without

due process of law,” is the mandate of the

constitution. Could a state law depriving a

person of his liberty be sustained upon the

ground that such deprivation was only for a

time?

109 U.S. at 295.

11

Knick ends any debate, wherein this Court

explained, “[t]he [Just Compensation] Clause

provides: ‘[N]or shall private property be taken for

public use, without just compensation.’ It does not

say: ‘Nor shall private property be taken for public

use, without an available procedure that will result in

compensation.’” Knick, 139 S.Ct. at 2170 (emphasis

added). The Sewerage Board and the Fifth Circuit

wrongly concluded the government needn’t pay these

landowners because these landowners have “an

available procedure that will [someday] result in

compensation.” As this Court declared in Knick,

If a local government takes private property

without paying for it, that government has

violated the Fifth Amendment – just as the

Takings Clause says – without regard to

subsequent state court proceedings. And the

property owner may sue the government at

that time in federal court for the “deprivation”

of a right “secured by the Constitution.”

Id. (quoting 42 U.S.C. §1983).

12

II. This Court should grant the petition for

certiorari to affirm the principle that the

Fifth Amendment is self-executing.

A. The Fifth Amendment’s guarantee of

“just compensation” is self-executing.

The Fifth Circuit condemned these owners to a

Folsom Prison, ignoring this Court’s subsequent,

clear, and well-established Fifth Amendment

jurisprudence. Folsom is not a Fifth Amendment case

but statutory case. 109 U.S. at 287 (The city’s

“liability for the damages is created by a law of the

legislature, and can be withdrawn or limited at its

pleasure.”). Yet the Fifth Circuit wrongly read Folsom

as limiting the Fifth Amendment’s constitutional

right of compensation guaranteed by the Just

Compensation Clause.

In Folsom, Justice Harlan wrote that “[t]o

withhold from the 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, 109 U.S. at 294, 297 (Harlan, J.,

dissenting). Justice Harlan explained that “[s]ince

the value of the judgment, as property, depends

necessarily upon the remedies given for its

enforcement, the withdrawal of all remedies for its

enforcement, and compelling the owner to rely

exclusively upon the generosity of the judgment

debtor, is, I submit, to deprive the owner of his

property. Id. at 295. Justice Harlan continued, “it is

said that the plaintiffs are not deprived of their

judgments, so long as they continue to be existing

liabilities against the city. My answer is, that such

13

liability upon the part of the city is of no consequence,

unless, when payment is refused, it can be enforced by

legal proceedings.” Id. (citing Pumpelly v. Green Bay

& Mississippi Canal Co., 80 U.S. 166, 177 (1871)).15

Justice Brennan followed Justice Harlan’s

example, dissenting in San Diego Gas & Electric v.

San Diego, 450 U.S. 621, 654 (1981), where he

explained that the Fifth Amendment guarantee of just

compensation is self-executing:

As soon as private property has been taken,

whether through formal condemnation

proceedings, occupancy, physical invasion, or

regulation, the landowner has already

suffered a constitutional violation, and the

self-executing character of the constitutional

provision with respect to compensation is

triggered.

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.16

Although Justice Brennan’s view in San Diego Gas

was stated in dissent, this Court later recognized its

15 Fourteen years following his dissent in Folsom, Justice Harlan

would write the opinion for this Court in the landmark case of

Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S.

226, 241 (1897), applying the Fifth Amendment to the states.

16 Emphasis added.

14

wisdom, expressly adopting it in First English, 482

U.S. at 315.17 As this Court explained in Knick,

In holding that a property owner acquires an

irrevocable right to just compensation

immediately upon a taking, First English

adopted a position Justice Brennan had taken

in an earlier dissent. In that opinion, Justice

Brennan explained that “once there is a

‘taking,’ compensation must be awarded”

because “[a]s soon as private property has

been taken, whether through formal

condemnation

proceedings,

occupancy,

physical invasion, or regulation, the

landowner

has

already

suffered

a

constitutional violation.”

139 S.Ct. at 2172 (emphasis in original).

B. The Fifth Amendment’s self-executing

guarantee of “just compensation” is a

principle

recognized

before

the

founding of the Republic.

The Fifth Amendment’s self-executing guarantee

of payment of “just compensation,” rooted in Magna

Carta, mandates that the determination of the

compensation due an owner is an “inherently judicial”

17 This Court in First English held, “a landowner is entitled to

bring an action in inverse condemnation as a result of ‘the selfexecuting character of the constitutional provision with respect

to compensation.’” 482 U.S. at 315 (quoting United States v.

Clarke, 445 U.S. 253, 257 (1980) (emphasis added).

15

responsibility that cannot be assumed or barred by

the legislature.18

Blackstone instructed, “The third absolute right,

inherent in every Englishman, is that of property:

which consists in the free use, enjoyment, and

disposal of all his acquisition, without any control or

diminution, save only by the laws of the land.”19

Kent similarly observed the constitutional

protection of property is a “principle in American

constitutional jurisprudence, [that] is founded in

natural equity, and is laid down by jurists as an

acknowledged principle of universal law.”20 “As

Chancellor Kent explained when granting a property

owner equitable relief, the Takings Clause and its

analogs in state constitutions required that ‘a fair

compensation must, in all cases, be previously made

18 Chief Justice Roberts explained that the Fifth Amendment

right of compensation arises from Magna Carta, stating, “The

principle reflected in the [Just Compensation] Clause goes back

at least 800 years to Magna Carta ***. Clause 28 of that charter

forbade any ‘constable or other bailiff’ from taking ‘corn or other

provisions from any one without immediately tendering money

therefor ***.’ The colonists brought the principles of Magna

Carta with them to the New World, including that charter’s

protection against uncompensated takings of personal property.”

Horne, 576 U.S. at 358. See also Monongahela Navigation Co. v.

United States, 148 U.S. 312, 327-28 (1893).

19

William Blackstone, Commentaries on the Law of England

(1768), Book I §§191-92 (the three rights are: “the right of

personal security, the right of personal liberty, and the right of

private property”).

20

James Kent, Commentaries on American Law, Lecture

XXXIV.

16

to the individuals affected.’” Knick, 139 S.Ct. at

2176.21 Thus, this Court continued, at the founding,

[i]f a government took property without

payment, a court would set aside the taking

because it violated the Constitution and order

the property restored to its owner. The

Framers meant to prohibit the Federal

Government from taking property without

paying for it. Allowing the government to

keep the property pending subsequent

compensation to the owner, in proceedings

that hardly existed in 1787, was not what

they envisioned.

Id.

Indeed, a landowner’s right to be secure in his

property is one of the primary objects for which the

national government was formed. In United States v.

Jones, 565 U.S. 400, 405 (2012), this Court recalled

Lord Camden’s famous holding in Entick v.

Carrington, 95 Eng. Rep. 807 (K.B. 1765), a “case we

have described as a ‘monument of English freedom’

‘undoubtedly familiar’ to ‘every American statesman’

at the time the Constitution was adopted ***.”

Quoting Lord Camden, this Court stated, “[O]ur law

holds the property of every man so sacred, that no

man can set his foot upon his neighbour’s close

without his leave; *** if he will tread upon his

neighbour’s ground, he must justify it by law. Jones,

21 Quoting Gardner v. Newburgh, 2 Johns, Ch. 162, 166 (N.Y.

1816) (emphasis added by this Court in Knick).

17

565 U.S. at 405.22 Evoking John Locke, Lord Camden

further declared, “The great end, for which men

entered into society, was to secure their property.”23

The Framers drafted our Constitution embracing

the Lockean view that “preservation of property [is]

the end of government, and that for which men enter

into society ***.” John Locke, Second Treatise on Civil

Government, Ch. XI §138.

Madison declared,

“Government is instituted to protect property of every

sort ***. This being the end of government, that alone

is a just government, which impartially secures to

every man, whatever is his own.”24 In Lynch v.

Household Fin. Corp., 405 U.S. 538, 552 (1972), this

Court rightly observed, “the dichotomy between

personal liberties and property rights is a false one.

Property does not have rights. People have rights ***.

That rights in property are basic civil rights has long

been recognized.”25

22 Quoting Entick, 95 Eng. Rep. at 817.

23 Entick, 95 Eng. Rep. at 817. See also James W. Ely, Jr., The

Guardian of Every Other Right: A Constitutional History of

Property Rights (3rd ed. 2008), p. 4 (“The framers of the

Constitution were deeply concerned with the need to safeguard

property rights.”).

24 Saul K. Padover, ed., The Complete Madison (1953), pp. 267-

68 (published in National Gazette (March 29, 1792)) (emphasis

in original).

25 Citations omitted.

See also Ely, supra, note 23, p. 9 (“given

the framers’ concern with protecting property as well as the

nearly 150 years of Supreme Court activity in this field, the

relegation of property rights to a lesser constitutional status is

not historically warranted. The framers did not separate

property and personal rights.”).

18

This Court has long-held the Fifth Amendment

guarantee of compensation does not depend on the

good graces of Congress, explaining landowners are

“entitled to bring an action in inverse condemnation

as a result of the ‘self-executing character of the

constitutional provision with respect to compensation’

***.” First English, 482 U.S. at 315. This Court has

“frequently repeated *** that, in the event of a taking,

the compensation remedy is required by the

Constitution.” Id. at 316.26

In Monongahela, the federal government acquired

a privately-owned lock and dam. The parties disputed

the value of that property the government took. The

government argued that Congress determined the

amount of compensation the owner was entitled to be

paid when Congress passed the legislation

authorizing the taking and appropriated a specific

sum for compensation. This Court rejected the

government’s argument and held the determination of

“just compensation” is an exclusively judicial inquiry.

This Court further held that private property may not

be taken “unless a full and exact equivalent for it be

returned to the owner.” 148 U.S. at 326.

Only after the owner has been compensated for

the “true value” of his property can “it be said that just

compensation for the property has been made.” Id. at

337. In Monongahela, this Court further explained,

The right of the legislature of a state by law

to apply the property of the citizen to a public

26 Emphasis added; citations omitted; quoting Clarke, 445 U.S.

at 257.

19

use, and then to constitute itself the judge of

its own case, to determine what is the “just

compensation” it ought to pay therefore ***

cannot for a moment be admitted or tolerated

under our constitution.

148 U.S. at 327-28 (emphasis added).

In Seaboard, this Court, citing Monongahela, held

a landowner is “entitled [to] the full and perfect

equivalent of the property taken,” and the owner must

be put “in as good position pecuniarily as he would

have been if his property had not been taken.”27 261

U.S. at 304. A state cannot take an owner’s land and

then the legislature determine the compensation the

owner is due.

The determination of “just

compensation” is exclusively a function of the judicial

branch. Monongahela, 148 U.S. at 327.28

In Cedar Point Nursery, this Court, quoting John

Adams, reaffirmed the foundational tenet that

“[p]roperty must be secured, or liberty cannot exist.”

Cedar Point Nursery, 141 S.Ct. at 2071. This Court

“noted that protection of private property rights is

‘necessary to preserve freedom’ and ‘empowers

persons to shape and to plan their own destiny in a

27

The Fifth Amendment requires that “when [an owner]

surrenders to the public something more and different from that

which is exacted from other members of the public, a full and just

equivalent shall be returned to him.” Monongahela, 148 U.S. at

325.

28 Cf. Ariyan, 29 F.4th at 228 (“Louisiana courts lack the power

to force another branch of government to make an appropriation,

the prevailing plaintiff has no judicial mechanism to compel the

defendant to pay.”).

20

world where governments are always eager to do so

for them.’” Id.29 Put simply, “[t]he government must

pay for what it takes.” Id.

III. This Court should grant the petition for

certiorari because the Sewerage Board

denied these landowners a remedy that is

guaranteed by the Constitution.

This case evokes the long-established legal

principle, ubi jus, ibi remedium,30 elucidated by

Blackstone, applied by John Marshall in Marbury v.

Madison,31 and repeated by John Marshall Harlan in

dissent in Folsom.

By denying these private

landowners the remedy guaranteed by the Fifth

Amendment, the Sewerage Board nullified these

landowners’ fundamental constitutional right to “just

compensation.” As this Court explained, “[t]he word

‘just’ in the Fifth Amendment evokes ideas of ‘fairness’

and ‘equity.’” United States v. Commodities Trading

Corp., 339 U.S. 121, 124 (1950). Just compensation

indefinitely delayed is just compensation denied. This

Court, in First English and Armstrong, “reaffirm[ed

its] ‘frequently repeated’ view that ‘in the event of a

taking, the compensation remedy is required by the

Constitution.’” In re Board, 41 F.4th at 45 (quoting

First English, 482 U.S. at 316) (emphasis added).

29 Quoting Murr v. Wisconsin, 137 S.Ct. 1933, 1943 (2017).

30 “Where there is a right, there must be a remedy.”

3 William

Blackstone, Commentaries on the Laws of England 23 (1768).

31 5 U.S. 137, 147 (1803) (“It is a settled and invariable principle,

that every right, when withheld, must have a remedy, and every

injury its proper redress.”).

21

The Fifth Circuit’s premise – that the

Constitution’s guarantee of “just compensation” may

be overcome by lack of appropriation – is incompatible

with the fundamental nature of our Constitution.

Chief Justice Marshall explained in Marbury:

The constitution is either a superior,

paramount law, unchangeable by ordinary

means, or it is on a level with ordinary

legislative acts, and like other acts, is

alterable when the legislature shall please to

alter it. If the former part of the alternative

be true, then a legislative act contrary to the

constitution is not law: if the latter part be

true, then written constitutions are absurd

attempts, on the part of the people, to limit a

power, in its own nature illimitable.

5 U.S. at 176-77.

The right to just compensation under the Fifth

Amendment demands a remedy. As Chief Justice

Marshall further declared in Marbury,

The government of the United States has

been emphatically termed a government of

laws, and not of men. It will certainly cease

to deserve this high appellation, if the laws

furnish no remedy for the violation of a vested

legal right. *** [W]here a specific duty is

assigned by law, and individual rights depend

upon the performance of that duty, it seems

equally clear that the individual who

22

considers himself injured, has a right to resort

to the laws of his country for a remedy.

5 U.S. at 163, 166.

This Court later applied Chief Justice Marshall’s

declaration specifically to the Fifth Amendment,

stating, “In any society the fullness and sufficiency of

the securities which surround the individual in use

and enjoyment of his property constitute one of the

most certain tests of the character and value of

government.” Monongahela, 148 U.S. at 324.

While the government’s power of eminent domain

allows it to take private property without paying the

owner up front, the payment must be certain and

prompt. In Bragg v. Weaver, this Court stated, “where

adequate provision is made for the certain payment of

the compensation without unreasonable delay the

taking does not contravene due process of law in the

sense of the Fourteenth Amendment merely because

it precedes the ascertainment of what compensation

is just.” 251 U.S. 57, 62 (1919). Likewise, in Joslin

Mfg. Co. v. City of Providence, this Court explained,

“the taking of property for public use *** need not be

accompanied or preceded by payment, but that the

requirement of just compensation is satisfied when

the public faith and credit are pledged to a reasonably

prompt ascertainment and payment, and there is

adequate provision for enforcing the pledge.” 262 U.S.

668, 677 (1923) (citing Sweet v. Rechel, 159 U.S. 380,

400, 404, 407 (1895) (emphasis added).

Sweet v. Rechel involved a Massachusetts statute

enabling a city to condemn properties lacking

23

adequate drainage as a nuisance in order to protect

public health. 159 U.S. at 393. The owner of a

condemned lot argued the statute violated the state

constitution because “it did not provide for

compensation to be made to the owners of the property

in advance of its actual appropriation by the

commonwealth.” Id. at 396 (emphasis added). This

Court held, “it is a condition precedent to the exercise

of [the government’s eminent domain] power that the

statute make provision for reasonable compensation

to the owner.” 159 U.S. at 399 (Harlan, J.).

The Massachusetts statute complied with the

Fifth Amendment, this Court held, because it

provided that “the owner became, from the moment

the property was taken, absolutely entitled to

reasonable compensation, the amount to be

ascertained without undue delay, in the mode

prescribed, and its payment to be assured, if

necessary, by decree against the city, which could be

effectively enforced.” Id. at 407 (emphasis added). In

so holding, Justice Harlan analyzed and followed,

inter alia, a New York state court decision, where that

court explained,

It certainly was not the intention of the

framers of the constitution to authorize the

property of a citizen to be taken and actually

appropriated to the use of the public, and thus

to compel him to trust to the future justice of

the legislature to provide him a compensation

therefor. The compensation must be either

ascertained and paid to him before his

property is thus appropriated, or an

appropriate remedy must be provided, and

24

upon an adequate fund, whereby he may

obtain such compensation through the

medium of the courts of justice ***.32

Sweet, 159 U.S. at 405-06 (quoting Bloodgood v.

Mohawk & Hudson Railroad Co.,

18 Wend. 9, 17 (N.Y. 1837)).33

32

Writing for the New York court, Chancellor Walworth

continued, “I hold that before the legislature can authorize the

agents of the state and others to enter upon and occupy, or

destroy or materially injure the private property of an individual,

except in cases of actual necessity which will not admit of any

delay, an adequate and certain remedy must be provided whereby

the owner of such property may compel the payment of his

damages, or compensation; and that he is not bound to trust to

the justice of the government to make provision for such

compensation by future legislation.” Bloodgood v. Mohawk &

Hudson Railroad Co., 18 Wend. 9, 17, 1837 WL 2871, at *17 (N.Y.

1837) (emphasis added) (following Chancellor Kent’s decision in

Rogers v. Bradshaw, 20 Johns. R. 735 (N.Y. 1823), holding “it

was sufficient if a certain and adequate remedy was provided by

which the individual could obtain such compensation without

any unreasonable delay.”).

33 Justice Harlan likewise quoted and followed the New York

Supreme Court’s decision in People ex rel. Utley v. Hayden, 6 Hill

359, 1844 WL 4447 (N.Y. Sup. Ct. 1844), holding that “[a]lthough

it may not be necessary, within the constitutional provision, that

the amount of compensation should be actually ascertained and

paid before property is thus taken, it is *** the settled doctrine,

*** that, at least, certain and ample provision must be first made

by law, except in cases of public emergency, so that the owner

can coerce payment through the judicial tribunals or otherwise

without any unreasonable or unnecessary delay.” Sweet, 159 U.S.

at 406 (emphasis added). “Otherwise,” the court concluded, “the

law making the appropriation is no better than blank paper.”

Hayden, 6 Hill at 361.

25

This Court again reviewed the constitutionality of

a Massachusetts condemnation statute, which limited

the height of buildings in a certain part of Boston,

under the federal and commonwealth’s constitutions

in Williams v. Parker, 188 U.S. 491, 503 (1903). In

Williams this Court found that the Massachusetts

statute supplied an “adequate provision for the

payment of the damages sustained by the taking”

because the statute provided “a direct and appropriate

means of ascertaining and enforcing the amount of all

such damage.” 188 U.S. at 504 (emphasis added). See

also Crozier v. Fried. Krupp Aktiengesell-schaft, 224

U.S. 290, 306 (1912) (payment of compensation need

not be paid in advance, but it is “sufficient *** that

adequate means be provided for a reasonably just and

prompt ascertainment and payment of the

compensation”) (emphasis added).

Thus, this Court has consistently held that the

government may take property without first paying

compensation only so long as the government provides

the means to enforce and compel prompt payment of

the “just compensation.”

Here, the Sewerage Board took these landowners’

private property in 2013. An almost decade-long

delay in payment defies any notion of promptness.

Even the four-year delay since the first judgment

became final utterly fails a “reasonably prompt” or

“without unreasonable delay” standard.

The Sewerage Board denied these landowners a

remedy for its violation of their vested constitutional

right to “just compensation.” Unless this Court acts

to remedy this injustice, the government stands in

26

danger of “ceas[ing] to deserve th[e] high appellation

of *** a government of laws, and not of men.”

Marbury, 5 U.S. at 163.

CONCLUSION

Contending that the state must provide an

appropriation following a court judgment in order to

honor a landowner’s self-executing constitutional

right to be justly compensated is to render the Fifth

Amendment nothing more than a “parchment

barrier,”34 or worse, “blank paper.”35

This Court should grant the petition for certiorari

because allowing the Sewerage Board to avoid its

constitutional obligation to pay these owners violates

the Fifth Amendment, and the Fifth Circuit’s

affirmance of the Sewerage Board’s action is contrary

to the First Circuit’s decision.

34

See Christopher Scalia and Edward Whelan, eds., Scalia

Speaks, Reflections on Law, Faith, and Life Well Lived (2017), p.

217 (“If this be so, then our Constitution is ‘nothing but words on

paper – what our Framers would call a parchment barrier.’”).

35 See, supra, note 33.

27

Respectfully submitted,

STEPHEN S. DAVIS*

*Counsel of Record

MARK F. (THOR) HEARNE, II

TRUE NORTH LAW LLC

112 S. Hanley Road, Suite 200

St. Louis, MO 63105

(314) 296-4000

sdavis@truenorthlawgroup.com

Counsel for Amici Curiae

SEPTEMBER 8, 2022.