Amicus Curiae Brief — El Papel, LLC, et al., Petitioners v. City of Seattle, Washington, et al.

No. 23-807

IN THE

Supreme Court of the United States

EL PAPEL, LLC, AND BERMAN 2, LLC,

PETITIONERS,

V.

THE CITY OF SEATTLE, WASHINGTON,

AND BRUCE HARRELL, IN HIS OFFICIAL CAPACITY AS

MAYOR OF THE CITY OF SEATTLE,

_______

RESPONDENTS.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

_______

Amicus Curiae Brief Of The

Small Property Owners of San Francisco Institute

Supporting Petitioners

MICHAEL M. BERGER*

*COUNSEL OF RECORD

MANATT, PHELPS & PHILLIPS, LLP

Counsel for Amicus Curiae

The Small Property Owners

of San Francisco Institute

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

i

INTEREST OF THE AMICUS CURIAE ............... 1

INTRODUCTION ................................................... 2

SUMMARY OF ARGUMENT ................................ 2

ARGUMENT ........................................................... 4

I.

II.

“The Political Ethics Reflected in the

Fifth Amendment Reject Confiscation

as a Measure of Justice”............................... 4

A.

A Complete Takeover of

Property Would Unarguably

be a Taking ........................................ 4

B.

A Compelled Transfer of

a Recognizable Interest in

Property is a Taking .......................... 7

C.

A Taking Occurs When

Government Commands A

Property Owner To Stand Aside

And Permit Physical

Occupation Of Property

By Another ......................................... 9

1.

The General Rule is That

Physical Occupation is a

Taking. .................................... 9

2.

Yee v. City of Escondido

Is Not Compatible With

Settled Law ........................... 11

Good Intentions Are Constitutionally

Irrelevant .................................................... 14

CONCLUSION ...................................................... 23

ii

TABLE OF AUTHORITIES

CASES

Andy Warhol Foundation for the Visual

Arts, Inc. v. Goldsmith,

143 S.Ct. 1258 (2023)........................................ 13

Arverne Bay Constr. Co. v. Thatcher,

15 N.E.2d 587 (N.Y. 1938) .................................. 6

Babbitt v. Youpee,

519 U.S. 234 (1997)........................................... 13

Berman v. Parker,

348 U.S. 26 (1954)........................................2, 3, 7

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021)........................................ 13

City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999)21

Community Housing Improvement Program

v. City of New York,

59 F.4th 540 (2d Cir. 2023) ...............3, 12, 14, 17

Consolidated Rock Products Co. v. Du Bois,

312 U.S. 510 (1941)........................................... 13

Creppel v. United States,

41 F.3d. 627 (Fed. Cir. 1994) ............................ 20

Dames & Moore v. Regan,

453 U.S. 654 (1981)........................................... 19

Dolan v. City of Tigard,

512 U.S. 374 (1994)........................................... 13

F.C.C. v. Florida Power Corp.,

480 U.S. 245 (1987)........................................... 11

iii

TABLE OF AUTHORITIES

(continued)

First English Evangelical Lutheran Church

v. County of Los Angeles,

482 U.S. 304 (1987)..................................5, 16, 19

Florida Rock Indus., Inc. v. U.S.,

791 F.2d 893 (Fed. Cir. 1986) ........................... 21

Florida Rock Indus, Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) ......................15, 20

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984)......................................... 2, 7

Hodel v. Irving,

481 U.S. 704 (1987)....................................6, 9, 10

Horne v. Department of Agriculture,

576 U.S. 350 (2015)........................................... 13

Hughes v. Washington,

389 U.S. 290 (1967)........................................... 22

Hurley v. Kincaid,

285 U.S. 95 (1932)............................................. 19

In re Santiago-Monteverde,

24 N.Y.3d 283 (2014) .......................................... 3

Kaiser Aetna v. U.S.,

444 U.S. 164 (1979)...................... 9, 10, 11, 13, 18

Knick v. Township of Scott,

139 S. Ct. 2162 (2019)....................................... 14

Lingle v. Chevron USA, Inc.,

544 U.S. 528 (2005)........................................... 16

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 ..................... 9, 10, 11, 12, 13, 17, 18

iv

TABLE OF AUTHORITIES

(continued)

Nollan v. California Coastal Commn.,

483 U.S. 825 (1987).......... 9, 10, 11, 12, 18, 19, 22

Penn Central Transp. Co. v. City of New York,

438 U.S. 104 (1978)............................................. 9

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 .....................................15, 16, 17, 19

Preseault v. I.C.C.,

494 U.S. 1 (1990)............................................... 19

Pumpelly v. Green Bay Co.,

13 Wall. (80 U.S.) .............................................. 12

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974) .....................................19, 20

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984)........................8, 9, 10, 13, 19

Shelton v. Tucker,

364 U.S. 479 (1960)........................................... 22

Skaw v. United States,

740 F.2d 932 (Fed. Cir. 1984) ........................... 21

Stanley v. Illinois,

405 U.S. 645 (1972)........................................... 22

Stewart v. Abend,

495 U.S. 207 (1990)........................................... 13

United States v. Cors,

337 U.S. 325 (1949)............................................. 4

United States v. Security Indus. Bank,

459 U.S. 70 (1982)......................................... 9, 13

v

TABLE OF AUTHORITIES

(continued)

United States v. Causby,

328 U.S. 256 (1946)........................................... 12

United States v. Clarke,

445 U.S. 253 (1980)........................................... 21

United States v. General Motors Corp.,

323 U.S. 373 ...................................................... 13

United States v. Peewee Coal Co.,

341 U.S. 114 (1951)........................................... 16

Webb’s Fabulous Pharmacies, Inc. v.

Beckwith,

449 U.S. 155 (1980)............................................. 8

Whitney Benefits, Inc. v. United States,

926 F.2d 1169 (Fed. Cir. 1990) ....................20, 21

Williamson County Regional Planning

Commn. v. Hamilton Bank,

473 U.S. 172 (1985)........................................... 14

Winger v. Aires,

89 A.2d 521 (Pa. 1952) ........................................ 8

Yee v. City of Escondido,

503 U.S. 519 (1992)................................11, 12, 14

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)........................................... 16

STATUTES

Internal Revenue Code § 501(c)(3) .......................... 1

vi

TABLE OF AUTHORITIES

(continued)

OTHER AUTHORITIES

Epstein, Richard A., The Unfinished Business

of Horne v. Department of Agriculture,

10 NYU J.L. & Liberty 734 (2016) ................... 14

Michelman, Frank, Property, Utility, and

Fairness: Comments on the Ethical

Foundations of “Just Compensation” Law,

80 Harv. L. Rev. 1165 (1967) .............................. 4

Tribe, Laurence, American Constitutional Law

(2d ed 1988) ....................................................... 11

1

INTEREST OF THE AMICUS CURIAE

Amicus curiae The Small Property Owners of

San Francisco Institute (“SPOSFI”) is a California

nonprofit corporation (Internal Revenue Code

§ 501(c)(3)) and organization of small property

owners that advocates for the rights of property

owners in San Francisco. SPOSFI’s members range

from young families to the elderly on fixed incomes,

and its membership cuts across all racial, ethnic,

and socio-economic strata.1

SPOSFI is also involved in education, outreach

and research. Through education, it helps owners

better understand their rights and learn how to deal

with local government; through outreach to

community groups and to the public, it demonstrates

how restrictive regulations harm both tenants and

landlords, and through research projects, it aims to

separate hyperbole from fact on the effect of rent

control on housing stock. Through legal advocacy,

SPOSFI seeks to protect the rights of small property

owners against unfair and burdensome regulations.

SPOSFI has appeared as amicus curiae in this

Court in support of petitions seeking to protect the

rights of property owners.

INTRODUCTION

Philosophical differences between landlords and

tenants are hardly new. Nor are they strangers to

1 No counsel for any party has authored this brief in whole or

in part and no person other than the amicus has made any

monetary contribution to this brief’s preparation or

submission. The parties were timely notified.

2

this Court. However, the “solutions” now being

devised by some municipalities (sometimes by city

councils, sometimes by voter initiative measures

voted in by the tenants themselves) to perceived

problems in the residential rental setting have gone

beyond this Court’s consistent teachings about

property takings. Compulsory, uncompensated

transfers of interests in property are becoming

commonplace. Particularly in the rental context,

this Court has seen a steady flow of litigation. E.g.,

74 Pinehurst LLC v. New York, 59 F.4th 557, 563 (2d

Cir. 2023), petition for certiorari pending, Docket

No. 22-1130; 335-7 LLC v. City of New York, No. 21823, 2023 WL 2291511, at *2 (2d Cir. Mar. 1, 2023),

petition for certiorari pending, Docket No. 22-1170.

This case provides the Court with the

opportunity to reexamine, revise, and enforce the

standards for Fifth Amendment takings evaluation

in the residential rental context. SPOSFI prays that

the Court take the opportunity and rationalize this

confused area of constitutional law.

SUMMARY OF ARGUMENT

Although this Court has permitted property and

wealth redistribution schemes in the past, it has

never done so unless the party whose property was

being taken was compensated. Indeed, the presence

of compensation has been the key to upholding such

schemes. Hawaii Housing Authority v. Midkiff, 467

U.S. 229 (1984); Berman v. Parker, 348 U.S. 26

(1954). As this Court put it in Berman, when

explaining why it was permitting a forced transfer

of property from one citizen to another through the

government's coercive eminent domain power:

3

“The rights of these property owners are

satisfied when they receive that just

compensation which the Fifth Amendment

exacts as the price of the taking.” 348 U.S.

at 36.

Below, the City focused on what it viewed as the

needs and problems of tenants in the Covid era.

Neither the members of SPOSFI nor, we suspect, the

petitioners we are supporting, are unsympathetic to

the problems of their tenants. The members

represented by SPOSFI, for example, are not large,

faceless, corporate bureaucracies out of touch with

the real world. Most of them are small “mom and

pop” operations.

Ends and means. As is so often true in

constitutional litigation, that’s what this case is

about.

The problem arises when simplistic solutions are

chosen for complex problems; when, in haste, onesided “cures” are devised. Here, the City has

precluded landlords from reclaiming possession of

any of their units due to the Covid pandemic,

allowing tenants to remain in possession regardless

of their rent payment status or the ending of their

leases. The means chosen to provide this protection

are now before this Court. In other words, is it

constitutional to allow tenants to shelter in place

during the pandemic without paying rent or

maintaining their premises?

To meet perceived needs, Seattle has cast its net

too broadly. It has transferred palpable interests in

property from landlords to tenants. Without

compensation. That, the constitution forbids.

4

ARGUMENT

I

“THE POLITICAL ETHICS REFLECTED IN

THE FIFTH AMENDMENT REJECT

CONFISCATION AS A MEASURE OF

JUSTICE.”2

It is hard to improve on this Court’s vintage

words.3 However, what the Ninth Circuit has

approved is the precise opposite of this Court’s

simple and fair summary of the Just Compensation

Clause’s mandate.

A.

A Complete Takeover of Property

Would Unarguably be a Taking.

Perhaps, by contrast, a hypothetical can

illustrate the reality facing owners of apartment

buildings in Seattle today.

Suppose that the City decided that a large set of

apartment buildings housed the city’s poorest

citizens and, to protect them from joining the ranks

of the homeless, the city decided to acquire all those

apartment buildings to maintain as low-income

housing. To accomplish that, the city assembled the

2 United States v. Cors, 337 U.S. 325, 332 (1949).

3 Professor Michelman’s classic expansion on that thought is

worth noting, nonetheless: “any measure which society cannot

afford or, putting it another way, is unwilling to finance under

conditions of full compensation, society cannot afford at all.”

Frank Michelman, Property, Utility, and Fairness: Comments

on the Ethical Foundations of “Just Compensation” Law,

80 Harv. L. Rev. 1165, 1181 (1967).

5

apartments’ owners and informed them that the city

was taking them over. A sort of coup de apartments.

In exchange for title to their properties, the owners

would receive contracts to manage the new cityowned buildings and would be paid a salary based

on a percentage of the rent collected. But the city

would set the rent; the rental rates would change

only when the city decided they could; funds for

upkeep, insurance, and maintenance would have to

come from the rents collected or money borrowed by

the “managers,” as the city would invest no money of

its own; and the tenants could either remain in

perpetuity or designate their successors in interest.

Had the City actually commandeered title to the

properties and placed title in the City’s name, there

is no doubt that a Fifth Amendment violation would

have occurred. Property would have been taken for

public use without any compensation changing

hands. The acquisition of title would have made the

taking obvious.

As this Court explained:

“government action that works a taking of

property rights necessarily implicates the

‘constitutional obligation to pay just

compensation.’ [Citation.]” First English

Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 315 (1987);

emphasis added.

When legislation is enacted that takes property

with no intent to provide compensation, the

6

legislation is invalid. Hodel v. Irving, 481 U.S. 704

(1987).4

How does the hijacking of title from the

apartment owners in the hypothetical differ from

what the Seattle ordinance actually did to these

apartment owners? In only one meaningful way: In

the hypothetical, the owners would be relieved of the

dubious honor of paying taxes on the property, as

they would no longer hold title to it. As the New York

Court of Appeals put it in its enduring exposition on

the difference between overt and covert confiscation:

“The only substantial difference, in

such case, between restriction and actual

taking, is that the restriction leaves the

owner subject to the burden of payment of

taxation, while outright confiscation

would relieve him of that burden.” Arverne

Bay Constr. Co. v. Thatcher, 15 N.E.2d

587, 592 (N.Y. 1938).

Aside from the taxation issue, the Seattle

ordinance has stripped apartment owners of all

useful indicia of ownership. Hyperbolic as this may

sound, it is the reality. The stringent regulations

have reduced the ownership of an apartment

building in Seattle to something akin to a public

utility, where all decisions are made by the

4 The statute in Irving was intended to solve a problem caused

by intestate succession to miniscule Native American estates.

In the process, however, the property right of devise and

descent was taken from current owners without any intent to

pay for taking that “stick” from the bundle of rights. As a

result, this Court struck down the statute.

7

government and the titular owners of the properties

have lost not only control over what they can charge

and who they can rent to, but have been compelled

to transfer substantial property interests to their

tenants with no compensation whatever.

B.

A Compelled Transfer of a Recognizable

Interest in Property is a Taking.

As noted earlier, this Court approved Hawaii’s

plan for land reform and its use of the power of

eminent domain to accomplish the breakdown of a

feudal land tenure system (Hawaii Housing

Authority v. Midkiff) and also approved the concept

of urban redevelopment in the District of Columbia

and its use of the power of eminent domain to

assemble large tracts of land for resale to developers

who would redevelop decayed city cores (Berman v.

Parker).

In neither case, however, was there any doubt

that compensation was a key element in the

package. Indeed, the entire discussion in Midkiff

was directed at the “public use” aspect of the Fifth

Amendment because, as the unanimous opinion put

it, “we assume for purposes of these appeals that the

weighty demand of just compensation has been met

….” 467 U.S. at 245. Absent this Court’s ability to

make that crucial assumption, the land title reform

system which compelled the transfer of fee simple

title from landlords to tenants could not have passed

constitutional muster.

8

Nor is this surprising. The extent of the power of

eminent domain has been described in terms more

suited to breathless ingenues than judges:

“The power of eminent domain, next to

that of conscription of man power for war,

is the most awesome grant of power under

the law of the land.” Winger v. Aires,

89 A.2d 521, 522 (Pa. 1952).

When recognized property interests are

compulsorily transferred from a private citizen on

orders from the government, compensation is

mandated:

“This Court has stated that a sovereign

‘by ipse dixit, may not transform private

property into public property without

compensation …. This is the very kind of

thing that the Taking Clause of the Fifth

Amendment was meant to prevent.’”

Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1012 (1984); quoting Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 161 (1980).

In the context at bar, there is no issue that such

a transfer has taken place. Wordplay alone stands

between these apartment building owners and the

property right which has been taken from them and

given to their tenants.

9

C.

A Taking Occurs When Government

Commands a Property Owner to Stand Aside

and Permit Physical Occupation of Property

by Another.

1.

The General Rule is

Occupation is a Taking.

That

Physical

The Seattle scheme goes beyond mere wealth

transfer. It commands property owners to permit

permanent physical occupation of their property by

strangers.

Physical invasion has always been viewed by this

Court as a particularly obnoxious form of

governmental intrusion, one which can more readily

be seen as a Fifth Amendment violation. Cedar Point

Nursery v. Hassid, 141 S.Ct. 2063, 2072 (2021); Penn

Central Transp. Co. v. City of New York, 438 U.S.

104, 122 (1978); Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 436.

“Property” consists of many things. Indeed, the

concept is so complex that this Court has repeatedly

used the bundle of sticks analogy to help illustrate

it, concluding that either the taking of an entire

“stick” from the “bundle” or the taking of a part of all

“sticks” in the “bundle” violates the Just

Compensation Clause of the Fifth Amendment.5

5 E.g., Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979);

Loretto, 458 U.S. at 433, 435; United States v. Security Indus.

Bank, 459 U.S. 70, 76 (1982); Ruckelshaus, 467 U.S. at 1011;

Hodel, 481 U.S. at 716; Nollan v. California Coastal Commn.,

483 U.S. 825, 831 (1987).

10

One “stick” which has received special protection

from this Court has been the right of the property

owner to exclude others from his property. This

Court has repeatedly referred to the right to exclude

others as … one of the most essential”6 and “most

treasured strands in an owner's bundle of property

rights.”7

Moreover, the Court has been particularly

protective against governmental actions which

permit strangers to invade the property of others:

“This is not a case in which the

Government is exercising its regulatory

power in a manner that will cause an

insubstantial devaluation of petitioners’

private property; rather, the imposition of

the navigable servitude in this context will

result in an actual physical invasion of the

privately owned marina.” Kaiser Aetna,

444 U.S. at 180; emphasis added; see also

Loretto, 458 U.S. at 436.

Like Kaiser Aetna, this case does not involve

“insubstantial devaluation” of property. The actual

physical transfer of interests effected by the

The “sticks” obviously affected here are the right to exclude

others from one’s property, the right to possession of one’s

property and, because of the wealth transfer aspects of the

ordinances, the right to alienate one’s property.

Kaiser Aetna, 444 U.S. at 176; Loretto, 458 U.S. at 433,

Ruckelshaus, 467 U.S. at 1011, Irving, 481 U.S. at 716; Nollan,

486 U.S. at 831.

6

7 Loretto, 458 U.S. at 435.

11

ordinance causes injury to the apartment owners

which is evident and substantial.

This Court later explained its rule as affording

protection to a property owner against “an interloper

with a government license.” FCC v. Florida Power

Corp., 480 U.S. 245, 253 (1987).8 That analogy seems

apt here, where the Seattle ordinance permits—or,

more properly, requires—a perpetual stream of

strangers to occupy the apartment units.

Coerced acceptance of physical invasion is

enough—by itself—under this Court’s precedents to

find a taking. However, the Seattle intrusion may be

qualitatively worse than the others already

condemned by this Court. For here we are not

talking about boats on a waterway (Kaiser Aetna) or

strollers on a beach (Nollan) or wires in a building

(Loretto). Here, we are talking about living quarters.

The landlords have lost all ability to determine who

will live in their buildings. That control has shifted

to their tenants.

2.

Yee v. City of Escondido Is Not Compatible

With Settled Law.

The Ninth Circuit thought that Yee v. City of

Escondido, 503 U.S. 519 (1992), a mobile home rent

control case, compelled its action. That conclusion is

in error. Yee was, in fact, an aberration that ought to

be recognized as such and discarded.

8 Or, as Professor Tribe colorfully expressed it, “government-

invited

gatecrashers.”

Laurence

Tribe,

Constitutional Law § 9-5 at 602 (2d ed 1988).

American

12

Yee was based on two concepts that are

antithetical to this Court’s takings jurisprudence,

both past and present. First, it is based on the idea

that only coerced physical occupation offends the

Fifth Amendment and, second, it relies on the fact

that the regulation did not completely eliminate the

property owner’s interests. This Court’s cases are

contrary on both counts.

First, the Court’s physical takings jurisprudence

is not limited to coerced physical occupation. The

Court’s physical takings cases are based on facts on

the ground. In United States v. Causby, 328 U.S. 256

(1946), for example, the taking was caused by

overflights. In Pumpelly v. Green Bay Co., 13 Wall.

(80 U.S.) 166 (1872), the taking was caused by

unintended flooding. Nollan authorized casual

beach use. Although, to be sure, some physical

takings cases are based on coerced physical

occupation, e.g., Loretto, 458 U.S. 419, plainly all are

not. The question is whether there was a sufficient

physical invasion to compromise property rights.

Second, Yee found no taking because the owners

retained significant value. The courts below

magnified this holding by undermining the “bundle

of sticks or rights” concept that this Court has

consistently used. According to them, a physical

taking cannot occur unless government action takes

“the entire bundle” of rights. But that has never

been the test. This Court has viewed each of the

component sticks in the bundle as being property

protected by the Takings Clause. See, e.g., Kaiser

Aetna, 444 U.S., at 176, describing the right to

exclude as “one of the most essential sticks” in the

bundle (emphasis added); Dolan v. City of Tigard,

13

512 U.S. 374, 393 (1994) (same); United States v.

Security Indus. Bank, 459 U.S. at 76 (security

interest); United States v. General Motors Corp., 323

U.S. 373, 378 (1945) (rights “to possess, use and

dispose”); Consolidated Rock Products Co. v.

Du Bois, 312 U.S. 510, 528 (1941) (rights of

bondholders in bankruptcy); Babbitt v. Youpee, 519

U.S. 234, 242 (1997) (right of devise; “completely

demolish one of the sticks”) (emphasis added);

Loretto, 458 U.S. at 533 (“one of the most essential

sticks”) (emphasis added); Cedar Point Nursery v.

Hassid, 141 S.Ct. 2063, 2069 (2021) (“one of the most

important sticks”) (emphasis added); Ruckelshaus,

467 U.S. at 1011 (trade secret); Stewart v. Abend,

495 U.S. 207, 253 (1990) (right to prevent derivative

publication); Andy Warhol Foundation for the Visual

Arts, Inc. v. Goldsmith, 143 S.Ct. 1258, 1261 (2023)

(right to derivative works).

If there were any doubt, the Court swept it away

in Horne v. Department of Agriculture, 576 U.S. 350,

362-63 (2015), where the Court held that leaving the

property owner with one stick out of the bundle is

not sufficient to avoid a taking: “Whether the

government may avoid the categorical duty to pay

just compensation for a physical taking of property

by reserving to the property owner a contingent

interest in a portion of the value of the property, set

at the government's discretion. The answer is no.”

Leaving property owners with one (or more) of the

sticks in the bundle they began with does not

immunize the government from takings liability. See

Richard A. Epstein, The Unfinished Business of

Horne v. Department of Agriculture, 10 N.Y.U.J.L. &

Liberty 734, 758-61 (2016).

14

In short, the underpinnings of Yee have been

done away with by more recent decisions, to the

extent they had validity in the first place.

In 2019, the Court did not shy away from

overruling another aberrant Takings Clause ruling

from that developing era in this field of the law, i.e.,

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985), overruled in

Knick v. Township of Scott, 139 S. Ct. 2162 (2019).

Knick discarded Williamson County because it was

“not just wrong. Its reasoning was exceptionally ill

founded and conflicted with much of our takings

jurisprudence.” (Knick, 139 S.Ct. at 2178.) So, too,

with Yee.

II.

Good Intentions Are Constitutionally

Irrelevant.

This brief does not challenge the good intentions

of the Seattle government to care for its residents.

The question, however, is should their good

intentions count for anything in this constitutional

analysis? In a word, no.

That the city professes to be seeking to do good is

beside the point. It proceeds as though recognition of

a legitimate governmental goal validates whatever

solution is chosen. And the Ninth Circuit bought into

that. Not relevant. Determination of a legitimate

governmental objective is the first, not the last, step.

We distinguish between means and ends, and the

means chosen to achieve the objective must survive

Constitutional scrutiny the same as the ends.

15

Good intentions are constitutionally irrelevant,

although they may be legally and morally necessary.

For the proper exercise of any governmental power,

the underpinning of such a beneficent purpose must

exist. That much was settled no later than 1922,

when this Court examined a statute designed to stop

land subsidence caused by underground coal mining

and concluded that the prerequisites for exercise of

both police power and eminent domain were present:

“We assume, of course, that the statute

was passed upon the conviction that an

exigency existed that would warrant it,

and we assume that an exigency exists

that would warrant the exercise of the

power of eminent domain. But the

question at bottom is upon whom the loss

of the changes desired should fall.”9

More recent authority echoes that conclusion:

“the Takings Clause presupposes that the

government has acted pursuant to a valid public

9 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (emphasis

added). See also Florida Rock Indus, Inc. v. United States, 18

F.3d 1560, 1571 (Fed. Cir. 1994): “It is necessary that the

Government act in a good cause, but it is not sufficient. The

takings clause already assumes the Government is acting in

the public interest ….” More than that, it assumes that the

Government is acting pursuant to lawful authority. If not, the

action is ultra vires and void. Compare Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952) (unlawful wartime

seizure voided) with United States v. Peewee Coal Co., 341 U.S.

114 (1951) (compensation mandatory after lawful wartime

seizure).

16

purpose.” Lingle v. Chevron USA, Inc., 544 U.S. 528,

543 (2005) (emphasis added).

Once it is determined that the government action

is done to achieve a legitimate goal, then the means

chosen must be examined against the constitutional

matrix to ensure that private rights have not been

violated. Governmental power is not permitted to

run roughshod over the constitutionally protected

rights of individuals. That is what the Court was

talking about when it concluded in First English

that:

“many of the provisions of the Constitution

are designed to limit the flexibility and

freedom of governmental authorities and the

Just Compensation Clause of the Fifth

Amendment is one of them.” 482 U.S. at 321.

Pennsylvania Coal was merely one in a long line

of decisions in which this Court—speaking through

various voices along its ideological spectrum

(Pennsylvania Coal having been authored for the

Court by Justice Holmes)—patiently, and

consistently, explained to regulatory agencies that

the general legal propriety of their actions and the

need to pay compensation under the Fifth

Amendment present different questions, and the

need for the latter is not obviated by the virtue of the

former.

The Ninth Circuit, however, seems not to have

gotten the message. Evidently believing that the city

was pursuing the public good by allowing people to

remain in their existing housing during an

emergency, that court granted summary judgment

to the city. Demonstrating the error of that theory,

17

the dissenting opinion in Pennsylvania Coal had

argued the absolute position that a “restriction

imposed to protect the public health, safety or

morals from dangers threatened is not a taking.”10

Eight Justices rejected that proposition.

In Loretto, New York’s highest court upheld a

statute as a valid exercise of the police power, and

therefore dismissed an action seeking compensation

for a taking. This Court put it this way as it

reversed:

“The Court of Appeals determined that

§ 828 serves [a] legitimate public purpose …

and thus is within the State’s police power.

We have no reason to question that

determination. It is a separate question,

however, whether an otherwise valid

regulation so frustrates property rights that

compensation must be paid.”11

Similarly, in Kaiser Aetna, the Corps of

Engineers decreed that a private marina be opened

to public use without compensation. This Court

disagreed, and explained the relationship between

justifiable regulatory actions and the just

compensation guarantee of the Fifth Amendment:

“In light of its expansive authority under the

Commerce Clause, there is no question but

that Congress could assure the public a free

right of access to the Hawaii Kai Marina if

10 260 U.S. at 417 (Brandeis, J. [Holmes’ usual constitutional

soulmate], dissenting).

11 458 U.S. at 425 (Marshall, J.) (emphasis added).

18

it so chose. Whether a statute or regulation

that went so far amounted to a taking,

however, is an entirely separate question.”12

Or, as the Court put it in Nollan:

“That is simply an expression of the

Commission’s belief that the public

interest will be served by a continuous

strip of publicly accessible beach along the

coast. The Commission may well be right

that it is a good idea, but that does not

establish that the Nollans (and other

coastal residents) alone can be compelled

to contribute to its realization. Rather,

California is free to advance its

‘comprehensive program,’ if it wishes, by

using its power of eminent domain for this

‘public purpose.’”13

That is why the Court concluded in First English

that the Fifth Amendment was designed “to secure

compensation in the event of otherwise proper

interference amounting to a taking.”14 This bedrock

principle of the law of constitutional remedies goes

back to the unanimous decision in Hurley v.

Kincaid,15 where the Court held that the remedy for

a taking resulting from valid governmental action is

just compensation, not judicial second-guessing of

12 444 U.S. at 174 (Rehnquist, J.) (emphasis added).

13 483 U.S. at 841 (Scalia, J.).

14 482 U.S. at 315 (Rehnquist, C.J.) (first emphasis, the Court’s;

second emphasis added).

15 285 U.S. 95 (1932) (Brandeis, J.).

19

governmental policies and

disruptive injunctions.16

decisions

through

In a similar vein are cases like Preseault v.

I.C.C.,17 Ruckelshaus v. Monsanto Co.,18 Dames &

Moore v. Regan,19 and the Regional Rail

Reorganization Act Cases.20 In each of them, the

Court was faced with the claim that Congress, in

pursuit of legitimate objectives, had taken private

property without just compensation. The goal in

each was plainly legitimate (respectively, the

creation of recreational trails over abandoned

railroad right-of-way easements, obtaining expert

input prior to licensing pesticides, dealing with the

issue of compensation in the aftermath of the

Iranian hostage crisis, and widespread railroad

bankruptcy). Nonetheless, the Court did not permit

those virtuous legislative goals to trump the

constitutional need for compensation when private

property was taken in the process. In each, the Court

directed the property owners to the Court of Federal

Claims21 to determine whether these exercises of

16 Justice Brandeis’ opinion for the Court in Hurley shows his

acceptance of the Court’s holding in Mahon that takings

require compensation. Justice Brandeis had been the lone

dissenter in the latter case, expressing the belief (abandoned

in Hurley) that valid regulation does not require compensation.

17 494 U.S. 1 (1990) (Brennan, J.).

18 467 U.S. 986 (1984) (Blackmun, J.).

19 453 U.S. 654 (1981) (Rehnquist, J.).

20 419 U.S. 102 (1974) (Brennan, J.).

21 When litigation is brought in that court, the Court of Appeals

for the Federal Circuit has consistently affirmed judgments

making the United States liable for takings that precluded

20

legislative power, though substantively legitimate,

nonetheless required compensation.22

This consistent teaching probably explains why

the Court of Appeals for the Federal Circuit, the

body which hears all appeals from the Claims Court

(the court which adjudicates more takings cases

than any other because it is virtually the exclusive

forum for takings cases against the United States),

has had no trouble recognizing that the Just

Compensation Clause operates against proper

governmental action:

“In such cases the characteristic feature is

the defendant’s use of rightful …

regulatory rights to control and prevent

exercise of [private] ownership rights the

defendant is unwilling to purchase and

pay for.”23

development in order to further proper environmental goals.

E.g., Whitney Benefits, Inc. v. United States, 926 F.2d 1169

(Fed. Cir. 1990) (surface coal mining); Florida Rock Indus., Inc.

v. United States, 18 F.3d 1560 (Fed. Cir. 1994) (limestone

mining); Creppel v. United States, 41 F.3d. 627 (Fed. Cir. 1994)

(dredging and filling wetlands).

To this end, the Fifth Amendment’s just compensation

guarantee has been held self-executing. The availability of

compensation validates and constitutionalizes the otherwise

wrongful government action. City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 714-15 (1999) (Kennedy, J.); United

States v. Clarke, 445 U.S. 253, 257 (1980) (Rehnquist, J.).

22

23 Florida Rock Indus., Inc. v. U.S., 791 F.2d 893, 899 (Fed. Cir.

1986) (quoting with approval; emphasis the Court’s). See also

Whitney Benefits, 926 F.2d at 1177; Skaw v. United States, 740

F.2d 932, 939 (Fed. Cir. 1984).

21

In sum, for a taking to occur, it matters not

whether the regulators acted in good or bad faith, or

for good or bad reasons. What matters is the impact

of their acts, not the purity vel non of their motives.

Indeed, if their motives are benign—or done for the

best of reasons—that only fortifies the need for

compensation required by the Just Compensation

Clause of the Fifth Amendment.24

“[T]he Constitution recognizes higher

values than speed and efficiency. Indeed,

one might fairly say of the Bill of Rights in

general, and of the Due Process Clause in

particular, that they were designed to

protect the fragile values of a vulnerable

citizenry from the overbearing concern for

efficiency

and

efficacy

that

may

characterize praiseworthy government

officials no less, and perhaps more than

mediocre ones.”25

Thus, it is not enough to conclude that it is a good

thing to radically reorganize our system of property

ownership. As a matter of Constitutional policy,

severe invasions of protected property rights cannot

occur unless compensation is paid. Such radical

change cannot be accomplished with the stroke of a

word processor. If Seattle believes that the idea is

24 See Hughes v. Washington, 389 U.S. 290, 298 (1967): “[T]he

Constitution measures a taking of property not by what a State

says, or by what it intends, but by what it does.” (Stewart, J.,

concurring) (emphasis original).

Stanley v. Illinois, 405 U.S. 645, 656 (1972) (footnote

omitted). See also Shelton v. Tucker, 364 U.S. 479, 488 (1960).

25

22

otherwise worthwhile then, as this Court put it in

Nollan, “it must pay for it.” 483 U.S. at 842.

CONCLUSION

Certiorari should be granted.

Respectfully Submitted,

MICHAEL M. BERGER*

*COUNSEL OF RECORD

MANATT, PHELPS & PHILLIPS, LLP

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4000

mmberger@manatt.com

Counsel for Amicus Curiae

The Small Property Owners

of San Francisco Institute