Amicus Curiae Brief — Brown v. Legal Foundation of Wash.

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| OCT 18 2%

No. 01-1325

IN THE

Supreme Court of the Gnited States

WASHINGTON LEGAL FOL NDATION, ef al..

Petitioners,

LEGAL FOUNDATION OF WASHINGTON, ef a/.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, AND TRIAL LAWYERS FOR

PUBLIC JUSTICE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

TIMOTHY J. DOWLING *

COMMUNITY RIGHTS COUNSEL

1726 M Street, N.W.

Suite 703

Washington, D.C. 20036

(202) 296-6889

* Counsel of Record

eal PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether an “Interest on Lawyer Trust Account” program

violates the Just Compensation Clause of the Fifth

Amendment where the program causes no economic harm to

the claimants and thus just compensation for any taking

would be zero.

(i)

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE .........ccccccceeeeeseees l

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

PR EIIIO TD crnsensesonssserecsusscesccecessescssssscessscenoscocccsoscoeoes 3

I NO VIOLATION OF THE JUST

COMPENSATION CLAUSE OCCURS

WHERE A _ TAKING CAUSES NO

ECONOMIC HARM AND THUS JUST

COMPENSATION IS ZERO ...........cccecsseeeeeeee 4

A. Takings That Do Not Reduce the Value

of the Claimant’s Property..................0000++ 7

B. Takings With Offsetting Special

Si tlieinicinieihiedeipenstencnnsesncsnnncesveocescceeee 8

C. Takings of Valueless Land ..................000++ 9

Il. LORETTO CONFIRMS THAT NO VIOLA-

TION OF THE JUST COMPENSATION

CLAUSE OCCURS ABSENT ECONOMIC

Ill. PETITIONERS’ POSITION WOULD IM-

PROPERLY CURTAIL THE SOVEREIGN

POWER OF EMINENT DOMAIN................... 12

SETI ne ictasiiontindissencnsesscsancsccavensssesscscsesscesccseccoceee 14

(iii)

TABLE OF AUTHORITIES

CASES Page

Armstrong v. United States, 364 U.S. 40 (1960) ... 10

Bartz v. United States, 633 F.2d 571 (Ct. Cl.

SD cceunsetninenerniontieassanimmnnnenennpeaibicimainananunsitl 9

City of Monterey v. Del Monte Dunes at

Monterey, Lid., 526 U.S. 687 (1999) ........c00000 5

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)..... 2,5

Fulmer v. State, 134 N.W.2d 798 (Neb. 1965)...... 7,8

Hendler v. United States, 175 F.3d 1374 (Fed.

Fe eccnnvencintensenaneaninnsingtidnnteniincimeninantinss 8,9

Hudson v. Palmer, 468 U.S. 517 (1984)................ 5

Kimball Laundry Co. v. United States, 338 U.S. |

CE a cercsnnsenntininczetreninieseniunnennimesinintieiasliansiatie 13

Loretto v. Group W Cable, 522 N.Y.S.2d 543

(Rate, TERR. CBB G P enccncssssersssannessiteseaprtemmennmnenae 11

Loretto v. Teleprompter Manhattan CATV Corp.,

GE Ee, Ga re cceeetesctensttitinatasenenel 4,10, 11, 13

Louisiana Power & Light Co. v. City of

Thibodaux, 360 U.S. 25 (1959).........cccccecceeeeeeees 12

Marion & Rye Valley Ry. Co. v. United States,

BO Se ercereentntepnin 7

Olson v. United States, 292 U.S. 246 (1934)......... 2, 6, 13

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)... 3, 14

Perry v. United States, 294 U.S. 330 (1935) ......... 10

Phillips v. Washington Legal Found., 524 U.S.

156 (1998)............ pascessnsneaneenqnssresnennsnnenessesnsesinnss 4, 5,6

Preseault v. Interstdte Commerce Comm'n, 494

8 5,6

Ruckelshaus v. Monsanto Co., 467 U.S. 986

Ce a ccrancstntinempninagaarinesttunnsaneatennmnecinegsiainnsins 5, 6

San Diego Gas & Electric Co. v. City of San

Diego, 450 U.S. 621 (1981) ........cccceeceeseeeneenenes 12

TABLE OF AUTHORITIES—Continued

Page

State v. Templeman, 693 P.2d 125 (Wash. Ct.

I: Tie cientinitnsidnicitanintniiguaegneatatienintiianineeiss 9

State v. The Mill, 887 P.2d 993 (Colo. 1995) ........ 9, 10

State v. Wabash R.R. Co., 889 S.W.2d 181 (Mo.

Re re ee 8

Suitum v. Tahoe Reg’l Planning Agency, 520

Sts SURED UNITUl iicincnitinichninatpninstennnintntnteniniedensuting 5

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

Planning Agency, 122 S. Ct. 1465 (2002) ......... 3,14

United States v. 50 Acres of Land, 469 U.S. 24

SEIT enincsincinccsitiinteipeientasncnnedtalingninapiiamnenineanenens 13

United States v. 564.54 Acres of Land, 441 U.S.

Oe inhacenciiiinintaiutindattntnainnntapincianiniamesnsutaiae 6

United States v. Reynolds, 397 U.S. 14 (1970)...... 6

Williamson County Reg’l Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) ............0.+ 5,11

MISCELLANEOUS MATERIALS

6 J. Sackman, Nichols’ Law of Eminent Domain

Bk 8 een 12

IN THE

Supreme Court of the United States

No. 01-1325

WASHINGTON LEGAL FOUNDATION, et al.,

Petitioners,

Vv.

LEGAL FOUNDATION OF WASHINGTON, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, AND TRIAL LAWYERS FOR

PUBLIC JUSTICE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE '

The National League of Cities (NLC) is a non-profit

organization whose members include 49 state municipal

leagues and approximately 1,800 member cities and towns.

Through the member state municipal leagues, NLC also

represents more than 18,000 municipalities.

' No counsel for a party authored this brief in whole or in part, and no

~ person or entity other than amici made a monetary contribution to the

preparation or submission of this brief. Letters of consent to the filing of

this brief have been filed with the Clerk. :

The International Municipal Lawyers Association (IMLA)

is a non-profit organization that has served as an advocate for

municipal attorneys since 1935. Its members include lawyers

from more than 1,400 municipalities. [MLA serves as the

legal voice for the nation’s local governments and thus has a

vital interest in legal issues that affect municipalities.

Trial Lawyers for Public Justice (TLPJ) is a national

public interest law firm dedicated to creating a more just

society. Through precedent-setting litigation, TLPJ

prosecutes cases designed to enhance consumer and victims’

rights, environmental protection, civil rights and liberties,

workers’ rights, America’s civil justice system, and the

protection of the poor and powerless. In particular, TLPJ has

long fought to preserve an open and accessible system of

justice in this country.

Amici have diverse and sometimes competing interests.

Notwithstanding these differences, we share an abiding

interest in protecting appropriate access to justice and

ensuring that takings jurisprudence continues to allow local

officials to protect the public interest without fear of

inappropriate and exorbitant compensation awards. Amici

also are united in our view that Interest on Lawyer Trust

Account (“IOLTA”) programs do not violate the Just

Compensation Clause of the Fifth Amendment.

SUMMARY OF ARGUMENT

The Just Compensation Clause does not proscribe takings

of private property, but merely conditions any taking on the

payment of just compensation. E.g., First English

Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304, 314 (1987). The just compensation requirement

serves to put the claimant “in as good a position pecuniarily

as if [the] property had not been taken.” Olson v. United

States, 292 U.S. 246, 255 (1934). Where a taking causes no

pecuniary harm, just compensation for the taking is zero and

no violation of the Just Compensation Clause occurs. Courts

repeatedly have declined to award relief for both direct and

inverse condemnations where the taking caused the claimant

no economic harm. Because respondents’ IOLTA program

does not cause petitioners economic harm, just compensation

for any taking would be zero. Thus, even assuming

arguendo that a taking occurred, the IOLTA program does

not violate the Just Compensation Clause.

Petitioners’ contention that every taking requires

affirmative relief, regardless of whether it causes economic

harm, is a radically new per se remedial rule that would

apply to both direct and inverse condemnations. It would

improperly curtail the sovereign power of eminent domain,

contravene longstanding precedent, and disregard this

Court’s wise admonition to resist “‘[t]he temptation to adopt

what amount to per se rules in either direction” in takings

cases. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’!

Planning Agency, 122 S. Ct. 1465, 1478, 1481 n.23 (2002)

(quoting Palazzolo v. Rhode Island, 533 U.S. 606, 636

(2001) (O’Connor, J., concurring)).

ARGUMENT

Respondents’ briefs show that they should prevail on two

independent grounds. First, the IOLTA program does not

constitute a taking of petitioners’ property. Second,

assuming for the sake of argument that a taking has occurred,

there is no violation of the Just Compensation Clause

because the IOLTA program caused petitioners no economic

harm and thus no compensation is due.

This amicus brief focuses on respondents’ second

showing, supplementing it in three ways. First, we describe

many situations in which courts have found no violation of

the Just Compensation Clause—notwithstanding the

existence of an uncompensated taking—because the taking

caused no economic harm. Second, we demonstrate that

nothing in Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982), suggests that a violation of the Just

Compensation Clause may occur where the claimant suffers

no economic harm. Indeed, the subsequent history of Loretto

in state court shows that despite the taking of Loretto’s

property, the court held that there was no constitutional!

violation because Loretto failed to show that she suffered

economic harm. Third, we explain how petitioners’ position

would dramatically disrupt the ability of local governments

to protect the public interest through the exercise of their

sovereign power of eminent domain.

I. NO VIOLATION OF THE JUST COM-

PENSATION CLAUSE OCCURS WHERE A

TAKING CAUSES NO ECONOMIC HARM

AND THUS JUST COMPENSATION IS ZERO.

The central fact of this case is that Washington’s IOLTA

program has not caused petitioners economic harm. As

shown in respondents’ briefs and the rulings below, the funds

at issue would not have earned interest absent the IOLTA

program. Thus, petitioners have suffered no pecuniary loss.”

In Phillips v. Washington Legal Foundation, 524 U.S. 156

(1998), this Court deferred consideration of the significance

? E.g., Pet. App. 33a (Ninth Circuit: “Thus, because no interest would

be earned on client funds deposited by escrow and title companies absent

the IOLTA program, requiring those companies to place client funds in

IOLTA accounts has no economic impact on the owners of the principal.

Indeed, if there be any economic impact, it is a positive one.”); Pet. App.

38a (Ninth Circuit: “[T]he alleged loss of the escrow and title companies’

earnings credits had no economic impact on [the claimants].”); Pet. App.

87a (District Court: “[IOLTA] programs are premised on the idea that the

interest created by the pooled funds could not create a net profit * * * for

the client-depositor.”); Pet. App. 94a (District Court: “[{I]n no event can

the client-depositors make any net return on the interest accrued in these

accounts. Indeed, if the funds were able to make any net return, they

would not be subject to the IOLTA program.”).

of this fact as it relates to the issue of just compensation,

expressing “no view” as to the amount of just compensation,

if any, that would be due if the IOLTA program were deemed

a taking of property. /d. at 172. Because the compensation

issue is now squarely before the Court, petitioners’ inability

to receive any net interest on funds subject to IOLTA has

become “the most salient fact” of the case. Jd. at 173

(Souter, J., with whom Stevens, Ginsburg, & Breyer, JJ.,

join, dissenting).

The Just Compensation Clause—‘“nor shall private

property be taken for public use, without just compensa-

tion”—is different in kind from most other provisions of the

Bill of Rights. It does not prohibit government conduct, but

merely conditions the taking of property on the payment of

adequate compensation. As the Court noted in First English

Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304 (1987), the Just Compensation Clause “makes clear

that it is designed not to limit the governmental interference

with property rights per se, but rather to secure compensation

in the event of otherwise proper interference amounting to a

taking.” /d. at 315.

With respect to both direct and inverse condemnations,

“there is no constitutional violation ‘unless or until the state

fails to provide an adequate postdeprivation remedy for the

property loss.’” City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 714-15 (1999) (quoting

Williamson County Reg’! Planning Comm'n v. Hamilton

Bank, 473 U.S. 172, 195 (1985) (quoting Hudson v. Palmer,

468 U.S. 517, 532 n.12 (1984))). In other words, where the

condemnor provides adequate compensation, the property

owner “suffer{[s] no constitutional injury from the taking

alone.” Del Monte Dunes, 526 U.S. at 710.”

* Accord, Suitum v. Tahoe Yeg'l Planning Agency, 520 U.S. 725, 734

(1997) (where the government provides adequate compensation, “the

Moreover, it is black-letter law that where a taking causes

.0 economic harm, just compensation is zero. To be sure,

“property is more than economic value.” Phillips, 524 U.S.

at 170. But just compensation is not. Just compensation

considers only the economic value of the property. The

constitutional guarantee of just compensation is designed

simply to put “the owner of the condemned property ‘in as

good a position pecuniarily as if [the] property had not been

taken.”” United States v. 564.54 Acres of Land, 441 US.

506, 510 (1979) (quoting Olson v. United States, 292 U.S.

246, 255 (1934) (emphasis added)); accord, United States v.

Reynolds, 397 U.S. 14, 16 (1970) (“The owner is to be put in

the same position monetarily as he would have occupied if

[the] property had not been taken.”).

Applying these principles, courts repeatedly have held

that, notwithstanding the existence of an uncompensated

taking, no violation of the Just Compensation Clause occurs

where the challenged government action causes no economic

harm to the claimant. In particular, courts have refused to

award compensation where a taking did not interfere with the

claimant’s profitable operations, where special benefits

conferred by a taking nullified any alleged economic harm,

and where the condemned land was valueless. We set forth

representative examples of each of these scenarios below.’

property owner cannot claim a violation of the Just Compensation

Clause”); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018 n. 21

(1984) (same); Preseault v. Interstate Commerce Comm'n, 494 U.S. 1,

11-12 (1990) (same).

* The Ninth Circuit held that “even if the IOLTA program cons ted

a taking of * * * private property, there would be no Fifth Amendment

violation because the value of their just compensation is nil.” Pet.

App. 45a. Amicus Home Builders mischaracterizes this ruling as

“requiring a calculation of just compensation before a Fifth Amendment

taking can be found to exist.” NAHB Br. 3. The ruling on its face,

however, plainly assumes the existence of a taking and observes that

despite the assumed taking, there would be no constitutional violation

ieee

A. Takings That Do Not Reduce the Value of the

Claimant’s Property

In Marion & (Rye Valley Ry. Co. v. United States, 270 U.S.

280 (1926), the Court addressed a takings claim based on a

unanimous Court, Justice Brandeis found no constitutional

luding that even assuming that the

lamation worked a taking, no economic

thus no compensation was due:

For even if there was technically a taking, the judgment

for deft t was right. Nothing was recoverable as

just com ion, because nothing of value was taken

from the company, and it was not subjected by the

government to pecuniary loss.

Id. at 282. |The Court emphasized that no evidence

“show/(ed] that the alleged taking had subjected the company

to any pecuniary loss or had deprived it of anything of

pecuniary value,” /d. at 286.

Likewise, in| Fulmer v. State, 134 N.W.2d 798 (Neb.

ka Supreme Court relied on the lack of

in refusing to award compensation for a

condemnation of a permanent easement that prohibited

advertising on farmland adjacent to an interstate highway.

The state submitted evidence showing that any income from

advertising would be so small as to be disregarded by

potential purc , and thus there was no difference in the

value of the | before and after the taking. /d. at 800.- The

because no ion would be due. The Home Builders’ misreading

of the Ninth Circuit in this regard renders its brief largely beside

the point.

court concluded that the “evidence supports the finding that

the landowner was not damaged by the taking of the

easement.” /d.

In State v. Wabash R.R. Co., 889 S.W.2d 181 (Mo. Ct.

_ App. 1994), the state condemned a permanent easement on a

portion of a railroad right-of-way for an interstate off-ramp,

as well as a temporary construction easement. /d. at 181-82.

The court affirmed a jury award of zero damages because the

evidence “established that no interference to the [railroad’s]

use of the land occurred and the railroad’s evidence failed to

show any damage to the remaining parcel.” /d. at 184.

In the same way, the IOLTA program has not caused

petitioners any pecuniary loss. Thus, the program does not

violate the Just Compensation Clause regardless of whether it

works a taking.

B. Takings With Offsetting Special Benefits

No constitutional violation occurs for an uncompensated

taking where special benefits conferred by the taking nullify

any economic harm. For instance, the Federal Circuit

declined to award relief for a taking of property near the

notorious Stringfellow Acid Pits in California. Hendler v.

United States, 175 F.3d 1374 (Fed. Cir. 1999) (Plager, J.).

The court had previously concluded that a physical taking

occurred where the government installed wells on the

claimants’ land to monitor ground water as part of a cleanup

under the federal Superfund program. /d. at 1377-78.

Nevertheless, the Federal Circuit affirmed the trial court’s

denial of compensation because the special benefits

conferred on the land by the cleanup outweighed the value of

the easements taken by the government. /d. at 1379-1383. In

so ruling, the court invoked “the underlying equitable

principle that the Government’s obligation is, to the extent

possible following the Government’s intrusion, to restore the

landowner to the position he was in absent any government

action.” Jd. at 1382. Because the challenged cleanup

activities caused no economic harm, no compensation was

due. Jd. at 1383.

Similarly, in Bartz v. United States, 633 F.2d 571 (Ct. Cl.

1980) (per curiam), the Federal Circuit’s predecessor relied

on offsetting benefits in refusing to award compensation for

an alleged taking of farmland by recurring flooding

purportedly caused by the Coralville Dam on the Iowa River.

Id. at 576-77. The court concluded that any economic

injuries from the flooding “were heavily countervailed by the

benefits to the [claimants’] farmlands as a whole.” /d. at

577-78.

Condemnations of land for public highways often give rise

to offsetting special benefits that result in zero-compensation

awards. For example, in State v. Templeman, 693 P.2d 125

(Wash. Ct. App. 1984), the trial court entered a judgment on

a jury verdict of zero dollars as just compensation for a

condemnation of portions of two parcels comprising about 65

acres for a state highway project. Expert testimony showed

that the claimants’ holdings would be worth more after the

road improvements. /d. at 126. The appeals court affirmed

the judgment. /d. at 129.

As in these offset cases, petitioners have suffered no

economic harm from the IOLTA program and thus are

entitled to no relief under the Just Compensation Clause.

C. Takings of Valueless Land

An uncompensated taking causes no_ constitutional

violation where the condemned land is valueless. In State v.

The Mill, 887 P.2d 993 (Colo. 1995), the Supreme Court of

Colorado declined to award compensation or other relief for

the condemnation of a 6l-acre parcel previously used for

uranium milling operations where the parties stipulated that

the market value of the property in its contaminated state was

zero. /d. at 997-98. The court noted that “[i]f the property

owner were allowed to collect the value of the property in its

decontaminated state, the property owner would not only be

spared the expense of cleanup, but would also receive the

increase in market value resulting from the cleanup,” a result

the court denounced as “windfall profits.” /d. at 1006.

So too here. Petitioners have suffered no economic harm

from the IOLTA program and thus any relief afforded them

-under the Just Compensation Clause would be an unfair

windfall. Such a result cannot be justified under a

constitutional provision whose application is informed by

“fairness and justice.” Armstrong v. United States, 364 U.S.

40, 49 (1960).°

Il. LORETTO CONFIRMS THAT NO VIOLATION

OF THE JUST COMPENSATION CLAUSE

OCCURS ABSENT ECONOMIC HARM.

Petitioners and their amici argue that this Court’s ruling in

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 (1982), shows that government action may violate the

Just Compensation Clause regardless of whether that action

* This Court also has reached zero-compensation results under other

constitutional provisions. For instance, in Perry v. United States, 294

U.S. 330 (1935), the Court ruled that the Congress exceeded its

constitutional powers and breached contracts by abrogating gold clauses

under which the principal and interest on various government obligations

were payable in gold coin. /d. at 346-54. Nevertheless, the Court held

that the claimant was not entitled to any relief because it failed to show

economic harm in view of other congressional action withdrawing gold

coin from circulation and prohibiting its exportation. Stressing that the

claimant could “recover no more than the loss he has suffered” and “is

~ not entitled to be enriched” (id. at 354-55), the Court concluded that the

claimant had not shown “that in relation to buying power he has sustained

any loss whatever.” /d. at 357. Thus, the Court wrote, compensation

“would appear to constitute, not a recoupment of loss in any proper sense,

but an unjustified enrichment.” /d. at 358.

causes economic harm to the claimant. They note that

Loretto holds that a taking may occur even where the

challenged government action enhances the value of the

property at issue. Pet. Br. 34 n.13; NAHB Br. 5-6; PLF Br.

3-4. Their reliance on Loretto is misplaced.

Loretto involved the physical occupation of real property,

a circumstance that easily distinguishes it from the case at

bar. As respondents show, Loretto thus has little relevance to

the issue of whether a taking has occurred. But with respect

to the issue of just compensation, the full history of Loretto

shows exactly the opposite of what petitioners suggest. This

Court’s “very narrow” holding in Loretto (458 U.S. at 419)

expressly declined to address whether the Just Compensation

Clause required compensation for the taking, and instead

remanded that issue to the state court. /d.

On remand, the state court refused to award Loretto

attorneys’ fees as a prevailing party because she failed to

“establish the deprivation of any federal right.” Loretto v.

Group W Cable, 522 N.Y.S.2d 543, 545 (App. Div. 1987).

The court observed that although Loretto established that the

defendant took her property, “that alone does not amount to

the deprivation of a right.” /d. After noting that in takings

cases “no constitutional violation occurs until just compensa-

tion is denied,” id. at 546 (quoting Williamson County), the

state court concluded that Loretto had failed to demonstrate a

right to compensation and thereby “prove any underlying

constitutional violation.” /d. The court stressed that

Loretto’s showing of a taking was thus “of purely academic

interest.” Jd.

Far from showing that every taking must result in the

payment of compensation regardless of economic injury, the

full history of Loretto confirms that courts should not award

compensation where the challenged measure causes no

economic harm to the claimant. Because Loretto failed to

show that the statute at issue caused economic harm, she

could not show a constitutional violation that entitled her to

attorneys’ fees as a prevailing party. In the same way,

petitioners’ inability to demonstrate economic harm from the

IOLTA program precludes them from showing a violation of

the Just Compensation Clause.

Ill. PETITIONERS’ POSITION WOULD IMPRO-

PERLY CURTAIL THE SOVEREIGN POWER

OF EMINENT DOMAIN.

Ignoring the longstanding precedent discussed above,

Petitioners and their amici take an extraordinary position.

They argue that even in the absence of economic harm, the

Just Compensation Clause compels relief for “non-economic

rights” and “nonmonetary” components of their property

interest. Pet. Br. 35; PLF Br. 3. In particular, they

emphasize that the IOLTA program impairs petitioners’ right

“to control the uses to which their property is put” or to have

a “voice” in how the interest generated by IOLTA accounts is

spent. Pet. Br. 36-37; PLF Br. 4.

Petitioners essentially assume that interference with a

claimant’s subjective view on how condemned property

should be used is compensable. This contention reflects a

fundamental misunderstanding of the government’s authority

to take property. The power to condemn property is

“intimately involved with sovereign prerogative.” Louisiana

Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28

(1959). The very purpose of this sovereign power is to allow

the government to take property without the owner’s consent

and without regard to the owner’s desires regarding the

disposition of that property. See San Diego Gas & Electric

Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981)

(Brennan, J., with whom Stewart, Marshall, & Powell, JJ.,

join, dissenting) (citing 6 J. Sackman, Nichols’ Law of

Eminent Domain § 1.11 (3d ed. rev. 1980)). Because the

measure of just compensation is a purely “pecuniar{y]”

standard (Olson, supra), the claimant’s personal predilection

regarding how the property should be used is utterly

irrelevant to the amount of compensation due for any taking.

Of course, some infringements of so-called “non-

economic” interests, such as the right to exclude, do cause

economic harm. And when such an infringement constitutes

a taking, the Fifth Amendment requires compensation to

redress the economic harm. But as the Loretto case shows,

absent economic harm, a taking that impairs the right to

exclude or other non-economic interests results in no

constitutional violation. See Section II, supra. By relying on

their own subjective views of how the property at issue

should be used, petitioners contravene longstanding rulings

that “just compensation must be measured by an objective

standard that disregards subjective values which are only of

significance to an individual owner.” United States v. 50

Acres of Land, 469 U.S. 24, 35 (1984); accord, Kimball

Laundry Co. v. United States, 338 U.S. 1, 5 (1949).

Petitioners spend considerable rhetorical energy insisting

that their non-economic interests must “have some value.”

Pet. Br. 17, 37. But they cite no appraisal evidence showing

the value of their non-economic interests. Because

petitioners have not shown economic harm caused by the

IOLTA program, they are already in as good a position

pecuniarily as they would have been in the absence of the

program. Just compensation for any taking would be zero,

and thus no constitutional violation has occurred.

Consider the implications of petitioners’ position for

workaday condemnations. Most takings claimants would

prefer to keep the condemned property. Under petitioners’

theory, a claimant could seek compensation not only for

economic harm caused by the taking, but also for the “non-

economic” injury caused by the failure to consider the

claimant’s voice as to how the property should be used. On

this view, absent adequate compensation for these interests—

which petitioners acknowledge have “no readily determin-

able fair market value” (Pet. Br. 37)—the claimant could

seek injunctive relief to block the exercise of eminent domain

authority. Such a result would be unprecedented in the

annals of takings jurisprudence and seriously undermine the

ability of public officials to exercise the sovereign authority

to condemn property in the public interest.

Petitioners and their amici, in effect, ask this Court to

devise two new per se rules of takings liability: one per se

rule that deems every IOLTA program in the country to be a

taking of private property, and a second per se rule that

requires compensation for every taking, regardless of

whether the claimant has suffered economic harm. Each of

these proposals contravenes the Court’s wise admonition to

resist “(t]he temptation to adopt what amount to per se rules

in either direction” in takings cases. Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’! Planning Agency, 122 S. Ct.

1465, 1478, 1481 n.23 (2002) (quoting Palazzolo v. Rhode

Island, 533 U.S. 606, 636 (2001) (O’Connor, J., concurring).

The text of the Constitution and longstanding precedent

require that any such temptation be resisted here as well.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,