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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0550%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 216

## Text

| OCT 18 2%
No. 01-1325
IN THE

Supreme Court of the Gnited States

WASHINGTON LEGAL FOL NDATION, ef al..
Petitioners,

V.

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)

iv

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

v

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. :

2

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

3

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

4

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.”).

5

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

6

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.

8

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

9

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

10

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

12

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]”

13

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—

14

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,

TIMOTHY J. DOWLING *
COMMUNITY RIGHTS COUNSEL
1726 M Street, N.W.

Suite 703

Washington, D.C. 20036
(202) 296-6889

October 18, 2002 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0550%3A17. Public record. Not legal advice.