Amicus Curiae Brief — Amy Hadley, Petitioner v. City of South Bend, Indiana, et al.

No. 25-1158

In the

Supreme Court of the United States

AMY HADLEY,

Petitioner,

v.

CITY OF SOUTH BEND, INDIANA, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of A ppeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE SMALL PROPERTY

OWNERS OF SAN FRANCISCO INSTITUTE

AND OWNERS COUNSEL OF AMERICA

SUPPORTING PETITIONER

Michael M. Berger

Counsel of Record

Manatt, Phelps & Phillips, LLP

2049 Century Park East,

Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

Counsel for Amici Curiae

Small Property Owners of

San Francisco Institute and

Owners Counsel of America

121081

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

THE STATE’S POLICE POWER IS NOT

THE POWER OF A POLICE STATE . . . . . . . . 5

A. No Bright Line Separates The Police

Power From Eminent Domain . . . . . . . . . . . 7

B. Even Legitimate Government Actions

Can Require Compensation When

They Impress Private Property Into

Public Service . . . . . . . . . . . . . . . . . . . . . . . . 10

II. THE FIFTH AMENDMENT’S PROTECTION OF PRIVATE PROPERTY

IS FOUNDATIONAL, CATEGORICAL,

AND SELF-EXECUTING . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

447 U.S. 255 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

568 U.S. 23 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Barron v. Baltimore,

32 U.S. 243 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

Berman v. Parker,

348 U.S. 26 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Dolan v. City of Tigard,

512 U.S. 374 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765) . . . . . . . . . . . . . . . . . . . 15

First English Evangelical Lutheran Church v.

Los Angeles County,

482 U.S. 304 (1987) . . . . . . . . . . . . . 3, 5, 7, 8, 12, 14, 16

iii

Cited Authorities

Page

Florida Rock Indus., Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . 11

Florida Rock Indus., Inc. v. United States,

791 F.2d 893 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . 14

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Horne v. U.S. Dept. of Agriculture,

576 U.S. 350 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Hughes v. Washington,

389 U.S. 290 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

Jacobs v. United States,

290 U.S. 13 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Johnson v. Manitowoc County,

635 F.3d 331 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 4

Kaiser Aetna v. United States,

444 U.S. 164 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

Kelo v. City of New London,

545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iv

Cited Authorities

Page

Knick v. Township of Scott,

588 U.S. 180 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Koontz v. St. Johns River Water Mgmt. Dist.,

133 S. Ct. 2586 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15

Loan Assn. v. Topeka,

87 U.S. 655 (1875) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Lutheran Church in America v. City of New York,

316 N.E.2d 305 (N.Y. 1974) . . . . . . . . . . . . . . . . . . . . . . 9

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1893) . . . . . . . . . . . . . . . . . . . . . . . . 15, 17

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) . . . . . . . . . . . . . . . . . . . . . . 3, 13, 14

Olson v. United States,

292 U.S. 246 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

v

Cited Authorities

Page

Pakdel v. San Francisco,

594 U.S. 474 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) . . . . . . . . . . . . . . . . . . . . . . 5, 11, 12

Preseault v. ICC,

494 U.S. 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pumpelly v. Green Bay Co.,

80 U.S. 166 (1871) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sackett v. EPA,

598 U.S. 651 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

San Remo Hotel, L.P. v. City and County of

San Francisco,

545 U.S. 323 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sheetz v. County of El Dorado,

601 U.S. 267 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Stop the Beach Renourishment, Inc. v.

Fla. Dept. of Envt’l Protection,

130 S. Ct. 2592 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi

Cited Authorities

Page

Tyler v. Hennepin County,

598 U.S. 631 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Dickinson,

331 U.S. 745 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Jones,

565 U.S. 400 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Wilkins v. United States,

598 U.S. 152 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Winter v. Natural Resources Def. Council,

555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

Yee v. City of Escondido,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other Authorities

Berger, Michael & Kanner, Gideon, The Nasty,

Brutish And Short Life Of Agins v. City Of

Tiburon, 50 The Urban Lawyer 9 (2019) . . . . . . . . . . 3

Berger, Michael, Theft, Extortion, and the

Constitution: Land Use Practice Needs an

Ethical Infusion, 38 Touro L. Rev. 755 (2023) . . . . . 3

Berger, Michael, Whither Regulatory Takings,

51 The Urban Lawyer 171 (2021) . . . . . . . . . . . . . . . . 3

vii

Cited Authorities

Page

Beuscher, Jacob, Notes on the Integration of

Police Power and Eminent Domain by

the Courts: Inverse Condemnation, in J.

Beuscher & R. Wright, LAND USE 724 (1969) . . . . 9

Blake, William, The Law of Eminent Domain—A

Fifty State Survey (Am. Bar Ass’n 2012)

(editor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Dunham, Allison, Griggs v. Allegheny County in

Perspective: Thirty Years of Supreme Court

Expropriation Law, 1962 Sup. Ct. Rev. 63 . . . . . . . . 8

Fields, Leslie, Colorado Eminent Domain

Practice (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Hamilton, John, Kansas Real Estate Practice

And Procedure Handbook (2009) (chapter on

Eminent Domain Practice and Procedure) . . . . . . . 3

Hamilton, John & Rapp, Dav id, Law and

Procedure of Eminent Domain in the 50

States (Am. Bar Ass’n 2010) (Kansas chapter) . . . . . 3

Kanner, Gideon, Making Laws and Sausages:

A Quarter-Century Retrospective of Penn

Central Transportation Co. v. City of New

York, 13 Wm. & Mary Bill of Rts. J. 679 (2005) . . . . 3

viii

Cited Authorities

Page

Merriam, Dwight, Eminent Domain Use and

Abuse: Kelo in Context (Am. Bar Ass’n 2006)

(coeditor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Michelman, Frank, Property, Utility, and Fairness:

Comments on the Ethical Foundations of

“Just Compensation” Law, 80 Harv. L. Rev.

1165 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rikon, Michael, Moving the Cat into the Hat: The

Pursuit of Fairness in Condemnation, or,

Whatever Happened to Creating a “Partnership

of Planning?”, 4 Alb. Gov’t L. Rev. 154 (2011) . . . . . . 3

Sax, Joseph, Takings and the Police Power,

74 Yale L.J. 36 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sm it h, Ra nda l l , Emin ent Do m ain Af t er

Kel o an d Katr in a, 5 3 La . Ba r J. 3 6 3

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Van A lsty ne, A r vo, Taking or Damaging

by Police Power: The Search for Inverse

Condemnation Criteria, 44 S. Cal. L. Rev. 1

(1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Waite, Graham, Gover nmental Power and

Private Property, 16 Cath. U.L. Rev. 283

(1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

INTERESTS OF AMICI 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. 2

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

in part and no person other than the amici has made any monetary

contribution to this brief’s preparation or submission. The parties

were timely notified of intent to file.

2. Simultaneously with the filing of this brief, these amici have

filed a brief in Pena v. City of Los Angeles, no. 25-1163. The two

cases raise related issues, and the two briefs apply to both cases.

2

Owners’ Counsel of America (OCA) is an invitationonly national network of the most experienced eminent

domain and property rights attorneys. They have joined

together to advance, preserve and defend the rights of

private property owners, and thereby further the cause

of liberty, because the right to own and use property is

“the guardian of every other right,” and the basis of a free

society. See James W. Ely, The Guardian of Every Other

Right: A Constitutional History of Property Rights (2d

ed. 1998). As the lawyers on the front lines of property

law and property rights, OCA brings unique perspective

to this case. OCA is a non-profit 501(c)(6) organization

sustained solely by its members. Only one member

lawyer is admitted from each state. OCA seeks to use

its members’ combined knowledge and experience as a

resource in the defense of private property ownership, and

OCA member attorneys have been involved in landmark

property law cases in nearly every jurisdiction nationwide.

Additionally, OCA members and their firms have been

counsel for a party or amicus in many of the property

cases this Court has considered in the past forty years,

including most recently Sheetz v. County of El Dorado,

601 U.S. 267 (2024); Tyler v. Hennepin County, 598 U.S.

631 (2023); Sackett v. EPA, 598 U.S. 651 (2023); Wilkins

v. United States, 598 U.S. 152 (2023); Pakdel v. San

Francisco, 594 U.S. 474 (2021); and Cedar Point Nursery

v. Hassid, 594 U.S. 139 (2021). 3 OCA members have also

3. For additional cases handled by OCA members, see Knick

v. Township of Scott, 139 S. Ct. 2162 (2019); Koontz v. St. Johns

River Water Mgmt. Dist., 133 S. Ct. 2586 (2013); Horne v. U.S.

Dept. of Agriculture, 576 U.S. 350 (2015); Arkansas Game and

Fish Comm’n v. United States, 568 U.S. 23 (2012); Stop the Beach

Renourishment, Inc. v. Fla. Dept. of Envt’l Protection, 130 S. Ct.

2592 (2010); Winter v. Natural Resources Def. Council, 555 U.S.

3

authored and edited treatises, books, and law review

articles on property law and property rights.4

7 (2008); Kelo v. City of New London, 545 U.S. 469 (2005); San

Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S.

323 (2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005);

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002); Palazzolo v. Rhode Island, 533 U.S. 606

(2001); City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687 (1999); Dolan v. City of Tigard, 512 U.S. 374 (1994);

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992);

Yee v. City of Escondido, 503 U.S. 519 (1992); Preseault v. ICC,

494 U.S. 1 (1990); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

(1987); First English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987); Agins v. City of Tiburon, 447 U.S.

255 (1980); Kaiser Aetna v. United States, 444 U.S. 164 (1979).

4. See, e.g., Michael M. Berger, Theft, Extortion, and the

Constitution: Land Use Practice Needs an Ethical Infusion, 38

Touro L. Rev. 755 (2023); Michael M. Berger, Whither Regulatory

Takings, 51 The Urban Lawyer 171 (2021); Michael M. Berger

& Gideon Kanner, The Nasty, Brutish And Short Life Of Agins

v. City Of Tiburon, 50 The Urban Lawyer 9 (2019); William G.

Blake, The Law of Eminent Domain—A Fifty State Survey (Am.

Bar Ass’n 2012) (editor); Leslie A. Fields, Colorado Eminent

Domain Practice (2008); John Hamilton, Kansas Real Estate

Practice And Procedure Handbook (2009) (chapter on Eminent

Domain Practice and Procedure); John Hamilton & David M.

Rapp, Law and Procedure of Eminent Domain in the 50 States

(Am. Bar Ass’n 2010) (Kansas chapter); Gideon Kanner, Making

Laws and Sausages: A Quarter-Century Retrospective of Penn

Central Transportation Co. v. City of New York, 13 Wm. & Mary

Bill of Rts. J. 679 (2005); Dwight H. Merriam, Eminent Domain

Use and Abuse: Kelo in Context (Am. Bar Ass’n 2006) (coeditor);

Michael Rikon, Moving the Cat into the Hat: The Pursuit of

Fairness in Condemnation, or, Whatever Happened to Creating

a “Partnership of Planning?”, 4 Alb. Gov’t L. Rev. 154 (2011);

Randall A. Smith, Eminent Domain After Kelo and Katrina,

53 La. Bar J. 363 (2006); (chapters on Prelitigation Process and

Flooding and Erosion).

4

INTRODUCTION

Members of South Bend’s police department were

intent on serving an arrest warrant. They approached the

home noted on the warrant and announced their presence

through a bull horn, directing anyone inside to come out.

The 15-year-old son of the owner emerged and told the

officers there was no one else at home. Notwithstanding

that he left the door open, the officers did not enter

the home to enforce their warrant. Instead, they fired

numerous tear gas grenades into the home, causing severe

damage and making it unfit for habitation.

It turned out that there was no one else in the home (as

the boy had told them). It also turned out that it was not the

right house. The miscreant was apprehended days later at a

different location. When the owner sought compensation for

the damage, the City declared it was not the City’s problem.

Thus, this litigation.

The lower courts made short work of it. The Seventh

Circuit already had a rule declaring a “police power”

exception to the Fifth Amendment, holding that damage

caused by exercise of any power other than eminent

domain was exempt from the just compensation mandate.

Johnson v. Manitowoc County, 635 F.3d 331, 336 (7th Cir.

2011). Applying that circuit precedent, the lower courts

made short work of Mrs. Hadley’s claim.

SUMMARY OF ARGUMENT

There is no “police power” exception to the Fifth

Amendment. The Fifth Amendment’s compensation

5

guaranty is absolute. When there is a taking, the

owner is entitled to be paid. And the payment must be

contemporaneous with the taking.

ARGUMENT

I.

THE STATE’S POLICE POWER IS NOT THE

POWER OF A POLICE STATE.

In all facets of modern life, the Constitution protects

the individual against the majority’s collective will.

Otherwise, as this Court wisely noted a century and a half

ago, the result is “despotism. It is true it is a despotism

of the many, of the majority, if you choose to call it so, but

it is none the less a despotism.” Loan Assn. v. Topeka, 87

U.S. 655, 662 (1875). That has been a consistent theme of

the Court’s jurisprudence.

As it plainly said more recently, the Fifth Amendment’s

just compensation guarantee was intended to restrict the

“freedom and flexibility” of government, just like other

provisions of the Bill of Rights, in order to protect the

rights of individuals. First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 321 (1987).

Under our system of law, we have institutionalized

and constitutionalized the protection of private property.

That is why, more than a century ago, the Court expressly

recognized that if government acts to protect the public

health, safety, and welfare and the effect of its action

goes “too far” the command to pay just compensation is

triggered. Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 415 (1922). Nor was that the first time the Court

commented on the issue. In Barron v. Baltimore, 32 U.S.

6

243 (1833), for example, the Court accepted the argument

that city diversion of water to damage a wharf raised a

Fifth Amendment compensation issue. The only reason

the owner did not recover was that the Court held the

Fifth Amendment guarantee applied only to actions of

the federal government, not state entities.

More to the point, in Pumpelly v. Green Bay Co., 80

U.S. 166, 177-78 (1871) the Court strongly demonstrated

why the compensation guarantee is essential to our

system:

“It would be a very curious and unsatisfactory

result, if in construing a provision of constitutional

law, always understood to have been adopted

for protection and security to the rights of the

individual as against the government, and

which has received the commendation of jurists,

statesmen, and commentators as placing the

just principles of the common law on that

subject beyond the power of ordinary legislation

to change or control them, it shall be held that

if the government refrains from the absolute

conversion of real property to the uses of the

public it can destroy its value entirely, can inflict

irreparable and permanent injury to any extent,

can, in effect, subject it to total destruction

without making any compensation, because,

in the narrowest sense of that word, it is not

taken for the public use. Such a construction

would pervert the constitutional provision into

a restriction upon the rights of the citizen, as

those rights stood at the common law, instead

of the government, and make it an authority for

7

invasion of private right under the pretext of the

public good, which had no warrant in the laws or

practices of our ancestors.” (Emphasis added.)

The Court summarized its thinking recently in

Cedar Point Nursery v. Hassid, 594 U.S. 139, 149,

(2021), explaining that “[t]he essential question is not . . .

whether the government action at issue comes garbed

as a regulation . . . [but] whether the government has

physically taken property for itself or someone else—by

whatever means”.

A.

No Bright Line Separates The Police Power

From Eminent Domain.

As Justice Stewart succinctly put it, “the Constitution

measures a taking of property not by what a State says,

or by what it intends, but by what it does.” Hughes

v. Washington, 389 U.S. 290, 298 (1967) (Stewart, J.,

concurring).

This Court’s takings doctrine is built around the

idea that in addition to eminent domain, other exercises

of government power have such a dramatic effect on

private property that they are considered to be the

functional equivalent of an affirmative exercise of the

condemnation power, giving rise to a self-executing

obligation to compensate the owner. As the Court put it

in First English:

“While the typical taking occurs when the

government acts to condemn property in the

exercise of its power of eminent domain, the

entire doctrine of inverse condemnation is

8

predicated on the proposition that a taking

may occur without such formal proceedings.”

482 U.S. at 316.

Nonetheless, otherwise respectable authorities

(including the courts below) play the label game, asserting

that if “only” the “police power” is being utilized, then

compensation is not required; whereas if the “eminent

domain” power is used, compensation must be paid.

But that distinction has been heavily criticized by

scholars in the field. Professor Waite called the distinction

“illusory.”5 Professor Michelman called it “wordplay.”6

Professor Van Alstyne characterized these decisions

as consisting of “conclusionary terminology, circular

reasoning, and empty rhetoric.” 7 Professor Sax called

them “a welter of confusing and apparently incompatible

results. 8 Professor Dunham, examining only decisions

of this Court, found a “crazy-quilt pattern.”9 Professor

Beuscher sagely counseled:

5. G. Graham Waite, Governmental Power and Private

Property, 16 Cath. U.L. Rev. 283, 291 (1967).

6. Frank Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of “Just Compensation”

Law, 80 Harv. L. Rev. 1165, 1186 (1967).

7. Arvo Van Alstyne, Taking or Damaging by Police Power:

The Search for Inverse Condemnation Criteria, 44 S. Cal. L. Rev.

1, 2 (1970).

8. Joseph Sax, Takings and the Police Power, 74 Yale L.J.

36, 37 (1964).

9. A llison Dunham, Gr iggs v. A llegheny County in

Perspective: Thirty Years of Supreme Court Expropriation Law,

1962 Sup. Ct. Rev. 63, 80-81.

9

“ The inverse condemnation cases should

remind us that those writers who emphasize the

separate air tight, non-overlapping character of

the two basic powers-police power and eminent

domain-have been too glib.”10

Professor Beuscher was a master of understatement.

The conceptual difficulties which have arisen in this

area are the result of a simple refusal to face reality.

Problems are not solved by attempting to define them out

of existence. Problems are only solved, as W.C. Fields once

expressed it, by “taking the bull by the tail and facing the

situation.”

Those who have forthrightly confronted the issue

have recognized the unitary nature of the governmental

power with which we deal. For example, as the New York

Court of Appeals put it: “Government interference with

an owner’s use of private property under the police power

runs a gamut from outright condemnation for which

compensation is expressly provided to the regulation of

the general use of land remaining in private ownership

so that the use might harmonize with other uses in the

vicinity.”11

This Court’s most explicit recognition of the concurrent

nature of the “two powers” is in its 1954 decision of

Berman v. Parker, 348 U.S. 26 (1954). Berman, of course,

10. Jacob Beuscher, Notes on the Integration of Police Power

and Eminent Domain by the Courts: Inverse Condemnation, in

J. Beuscher & R. Wright, LAND USE 724 (1969).

11. Lutheran Church in America v. City of New York, 316

N.E.2d 305, 310 (N.Y. 1974) (emphasis added).

10

is best remembered (particularly by governmental

entities) for its expansive interpretation of “public use.”

The coextensiveness of the “two powers” is best expressed

in the Court’s own words:

“ We deal, in other words, w ith what

traditionally has been known as the police

power. An attempt to define its reach or trace its

outer limits is fruitless, for each case must turn

on its own facts. . . . 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

32, 33, 36; emphasis added.

More recently, this Court summarized the rule:

“The [eminent domain] ‘public use’ requirement

is thus coterminous w ith the scope of a

sovereign’s police powers.” Hawaii Housing

Auth. v. Midkiff, 467 U.S. 229, 240 (1984)

(emphasis added).

Any effort to separate police power and eminent

domain is specious.

B. Even Legitimate Government Actions Can

Require Compensation When They Impress

Private Property Into Public Service.

The government defended itself below by claiming

that its focus on protecting the public was legitimate.

The Seventh Circuit adopted that rationale. The question,

however, is whether legitimacy should count for anything

in this constitutional analysis? In a word, no.

11

The decision proceeds as though recognition of a

legitimate governmental goal validates whatever solution

is chosen. Not relevant. Determination of a legitimate

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

law distinguishes between means and ends, and the means

chosen to achieve the objective must survive Constitutional

scrutiny the same as the ends.

Legitimate goals are constitutionally irrelevant.

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 the 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 eminent domain. But the question

at bottom is upon whom the loss of the changes

desired should fall.”12

After determining that government action was done

to achieve a legitimate goal, the means chosen must be

constitutionally examined to ensure that private rights

12. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922)

(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. . . .”

12

have not been violated. Governmental power is not

permitted to run roughshod over the constitutionally

protected rights of individuals. That is what the Court

meant when it concluded in First English Evangelical

Lutheran Church of Glendale v. Los Angeles County, 482

U.S. 304, 321 (1987) 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.”

Pennsylvania Coal was merely one in a long line of

decisions in which the Court explained to government

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 legitimacy of the former.

The Seventh Circuit, however, seems not to have gotten

the message. Evidently believing that the government was

pursuing the public good, it ended its analysis at that point.

Demonstrating the error of that theory, the dissenting

opinion in Pennsylvania Coal had argued precisely the

same, saying that a “restriction imposed to protect the

public health, safety or morals from dangers threatened

is not a taking.”13 Eight Justices rejected that proposition

more than a century ago.

In Loretto v. Teleprompter Manhattan CATV Corp.,

New York’s highest court upheld a statute as a valid

13. 260 U.S. at 417 (Brandeis, J. dissenting).

13

police power exercise and dismissed an action seeking

compensation. This Court 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.”14

Similarly, in Kaiser Aetna v. United States, the Corps

of Engineers decreed that a private marina be opened to

public use without compensation. The Court reversed,

explaining:

“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 it so chose.

Whether a statute or regulation that went so far

amounted to a taking, however, is an entirely

separate question.”15

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

14. 458 U.S. 419, 425 (1982) (Marshall, J.) (emphasis added).

15. 444 U.S. 164, 174 (1979) (Rehnquist, J.) (emphasis added).

14

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.’”16

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.”17

In cases like these, the Court has directed the

property owners to the Court of Federal Claims to

determine whether these exercises of government power,

though substantively legitimate, nonetheless required

compensation.

“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.”18

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

government officials acted in good or bad faith, or for good

16. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 841 (1987)

(Scalia, J.).

17. 482 U.S. at 315 (Rehnquist, C.J.) (first emphasis, the

Court’s; second emphasis added).

18. Florida Rock Indus., Inc. v. United States, 791 F.2d 893,

899 (Fed. Cir. 1986) (quoting with approval; emphasis the Court’s).

15

or bad reasons. What matters is the impact of their acts,

not the purity vel non of their motives. The Court put

it succinctly when it concluded that the Takings Clause

“focuses directly upon the severity of the burden that

government imposes upon private property rights”—not

the importance of the governmental interest advanced by

the taking. Lingle, 544 U.S. at 539.19

Indeed, if government motives are benign—or done

for the best of reasons—that only fortifies the need for

compensation required by the Just Compensation guaranty.

II. THE FIFTH AMENDMENT’S PROTECTION

OF PRIVATE PROPERTY IS FOUNDATIONAL,

CATEGORICAL, AND SELF-EXECUTING.

Owners’ rights to be secure in their 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), the Court recalled Lord Camden’s holding

in Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765):

“The great end for which men entered into society was

to secure their property.” This Court explained, “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 Nav.

Co. v. United States, 148 U.S. 312, 324 (1893) (followed by

Olson v. United States, 292 U.S. 246, 254 (1934)).

19. See Hughes v. State of 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 added).

16

This Court held the Fifth Amendment guarantee

of compensation does not “depend on the good graces of

Congress,” explaining:

“[A] landowner 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’. . . .

As noted in Justice Brennan’s dissent in San

Diego Gas [], it has been established at least

since Jacobs v. United States, 290 U.S. 13

(1933), that claims for just compensation are

grounded in the Constitution itself[.]” First

English Evangelical Lutheran Church v. Los

Angeles, 482 U.S. 304, 315-16 (1987).

The Cou r t reiterated recently that the Just

Compensation Clause is “self-executing.” Knick v.

Township of Scott, 588 U.S. 180, 192 (2019).

In First English, the Solicitor General (as amicus

curiae) urged that the Fifth Amendment was merely

“a limitation on the power of the Government to act,

not a remedial provision.” See 482 U.S. at 316, n.9. The

Court rejected that argument, concluding that it was the

Constitution itself that both established the right and

dictated the remedy. Id.

Indeed, even before San Diego Gas and First English,

this Court found:

“whether the theory . . . be that there was a

taking under the Fifth Amendment, and that

17

therefore the Tucker Act may be invoked because

it is a claim founded upon the Constitution, or

that there was an implied promise by the

Government to pay for it, is immaterial. In

either event, the claim traces back to the

prohibition of the Fifth Amendment. . . .” United

States v. Dickinson, 331 U.S. 745, 748 (1947).

The Fifth Amendment “prevents the public from

loading upon one individual more than his just share of the

burdens of government and says that when he 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.

When the government takes an owner’s property, the

government has a “categorical duty” to comply with the

Fifth Amendment. See Arkansas Game & Fish Comm’n

v. United States, 568 U.S. 23, 31 (2012); Horne v. Dept.

of Agriculture, 576 U.S. 350, 362 (2015). In other words,

cash may not heal all wounds, but it is a constitutionally

acceptable remedy for unconstitutional government action.

18

CONCLUSION

Certiorari should be granted. There is confusion

among the lower courts with some, like the Seventh Circuit

here, purporting to find that the Constitution has some

exceptions to the Fifth Amendment’s just compensation

guaranty. There is no such exception and this Court needs

to make that clear.

Respectfully submitted,

Michael M. Berger

Counsel of Record

Manatt, Phelps & Phillips, LLP

2049 Century Park East,

Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

Counsel for Amici Curiae

Small Property Owners of

San Francisco Institute and

Owners Counsel of America