Amicus Curiae Brief — Kelo v. New London

No. 04-108 |

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In The | |

Supreme Court of the United States ~

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SUSETTE KELO, et al.,

Petitioners,

vs.

CITY OF NEW LONDON, et al.,

Respondents.

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On Writ Of Certiorari To The

Supreme Court Of Connecticut

+

BRIEF AMICI CURIAE OF ROBERT NIGEL

RICHARDS, CHARLES WILLIAM COUPE,

JOAN ELIZABETH COUPE, AND JOAN COUPE

SUPPORTING PETITIONERS

¢

KENNETH R. KUPCHAK*

ROBERT H. THOMAS

DAMON KEY LEONG

KUPCHAK HASTERT

1600 Pauahi Tower

1001 Bishop Street

Honolulu, Hawaii 96813

(808) 531-8031

Counsel for Amici Curiae

Robert Nigel Richards,

Charles William Coupe,

Joan Elizabeth Coupe

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

5 Cig Bing,

Ms eh TEN, tal

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QUESTION PRESENTED

What protection does the Fifth Amendment’s public

use requirement provide for individuals whose property is

being condemned, not to eliminate slums or blight, but for

the sole purpose of “economic development” that will

perhaps increase tax revenues and improve the local

economy?

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIA ..................sccccssseseseeeees 1

SUDEDEARS OF ABMSUEEIETE ccccccccssoccccscecessestusesensninnn 3

PN 5, NENT eT 4

I. UNSHACKLED FROM MEANINGFUL JUDI-

CIAL REVIEW OF PUBLIC USE, TAKINGS

JUSTIFIED ONLY BY PROMISES OF “MORE”

OR “BETTER” ARE BECOMING MORE

CORES CE SalI TS...vvevevseccovesssesssonsneneennienal 4

Il. THE RIGHT TO KEEP YOUR HOME IS

FUNDAMENTAL AND DESERVES THE

FEPCEEI ES FOO EE BOIUN ccccvssscesserninnsneniaial 7

III. TAKINGS ANALYSIS HAS LONG REQUIRED A

SUBSTANTIAL NEXUS BETWEEN THE

GOVERNMENTS PROFFERED GOAL AND

THE MEANS USED TO ACHIEVE IT............. 10

IV. TAKINGS SUPPORTED ONLY BY “ECO-

NOMIC DEVELOPMENT” MERIT HEIGHT-

ENED JUDICIAL SCRUTINY........... ecoeevenenisiiii 16

CONC TAIIIIN ccccccccccocccosneseseseescessnessnennenneinnnnnnnnnnnnnn 21

ill

TABLE OF AUTHORITIES

Page

CASES

99 Cents Onl: Stores v. Lancaster Redev. Agency,

237 F. Supp. 2d 1123 (C.D. Cal. 2001).........................2. 20

Adarand Con.tructors, Inc. v. Pena, 515 U.S. 200

EE SEAL 17

Agins v. City of Tiburon, 447 U.S. 255 (1980)............... 3, 11

Armstrong v. United States, 364 U.S. 40 (1960)............... 21

Bailey v. Superior Court, 76 P.3d 898 (Ariz. Ct. App.

ES IE TE 20

Berman v. Parker, 348 U.S. 26 (1954).............0ccccccccceees 5,17

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ..................0..0008. 5

Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d

102 (N.J. Sup. Ct. Law. Div. 1998) ...............:ccccccccereeeeees 7

Chevron USA v. Lingle, 363 F.3d 846 (9th Cir.), cert.

granted, 125 S.Ct. 314 (No. 04-163, Oct. 12,

TE il

City of Las Vegas Downtown Redev. Agency v.

Pappas, 76 P.3d 1 (Nev. 2003), cert. denied, 124

EET 7

City of Monterey v. Del Monte Dunes at Monterey,

a 11

City of Richmond v. J.A. Croson Co., 488 U.S. 469

EL 17

Cottonwood Christian Center v. Cypress Redev.

Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002)......... 6, 20

lv

TABLE OF AUTHORITIES — Continued

Page

County of Hawaii v. Robert Nigel Richards, et al.,

Civ. No. 00-1-0181K (Haw. 3d Cir. filed Oct. 9,

TID cricecicessteninte <cnhiataiapenpmaniameniaiataiauitinitinitniaitisipiiitsiaalsiatiasiaiesiainias 1

County of Wayne v. Hathcock, 684 N.W.2d 765

a ee 5, 9, 20, 21

Dolan v. City of Tigard, 512 U.S. 374 (1994).....3, 11, 12, 13

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987).................. 16

Georgia Dep't of Transp. v. Jasper County, 586

ee Ce cccecccncnsanssisiesttntisiheiniasainiinninnianiins 9, 20

Goldblatt v. Town of Hempstead, 369 U.S. 590

SUE TUTT cctanerriiniesineperemntaesraiasittienininisltiaiicipeiiiihcietabitediaiaihaalaidibiaiiae 10

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229

Git ciniccsusenteinitinsasinnenieniiemaneapaistbidteiinitiiaiaiainaidiiel 2, 3, 6, 14, 17

Hughes v. Washington, 389 U.S. 290 (1967) ................:00 9

Lawrence v. Texas, 539 U.S. 558 (2003) .0...........cccccceeeeeeeeees 8

Lucas v. South Carolina Coastal Council, 505 U.S.

CD cenenemnceenneenneiinaninitininininiainiibapae 8, 10, 11, 12

Lynch v. Household Finance Corp., 504 U.S. 538

Gio nseecuscsnntennssunsnenstnsntnninieionsiieataiininieddaniatiniabbebenianiaiusilis 9

Moore v. City of East Cleveland, 431 U.S. 494

GeO Oe csncancanststnnnssnscincnianniainiimiiniitasniaidtiiniiiiiiitaaatliaiasiinitiiis 11

Nectow v. City of Cambridge, 277 U.S. 183 (1928)............ 10

Nollan v. California Coastal Comm'n, 482 U.S. 825

GO cccssesvsennnssnneememmanininnemeteanel 3, 11, 12, 13

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)................. 9

Penn Central Trans. Co. v. New York City, 438 U.S.

a aT ee LPN ER 10, 11

TABLE OF AUTHORITIES -— Continued

Page

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

ERR AR Saas et stereteiar eran re we ee tenia ee 10

Poletown Neighborhood Council v. City of Detroit,

304 N.W.2d 455 (Mich. 1981) ................c.ccccccceeeeees 5, 6, 21

Pumpelly v. Green Bay Co., 80 U.S. 166 (1871)................ 15

Rukab v. City of Jacksonville, 811 So.2d 727 (Fla.

ee, Ge, Bi Bie cccninsccntensttencinnutinsineneniennmeinninitenne 15

Southwestern Illinois Dev. Auth. v. National City

Environmental, LLC, 768 N.E.2d 1 (Ill.), cert.

Cs Ce iicrcantiinisnciiiiscntistaiunitiinaiiisnionss 20

Tahoe-Sierra Preservation Council v. Tahoe Re-

gional Planning Agency, 535 U.S. 302 (2002)........... 3,11

United States v. Carolene Products Co., 304 US.

| ESE en eet oo Seem rete os cn en SR eeren 14

Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304

I aan ntcitcineeeid nee enema 4,5

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

RE ER ee ee re me 10

CONSTITUTIONAL PROVISIONS

7 GO er nena ate se nny 8

| EET nane nn ceME me Sense ones 8

ee GR, GUE VO cencescnsnssennccnensecmsmaminsmentel passim

NS er ew nee vaeene ray ee 8

I GI Ee, Th TT ccnrsrsiccteiliesisitdeiteneninidieeniaeidinndinaeaiidaieies 5

vi

TABLE OF AUTHORITIES - Continued

Page

CODES, STATUTES AND RULES

eR re Ges Oe I cireseiconinsennsotsininteseninmninineaies 2

OTHER AUTHORITIES

Amendment to Private Property Hailed, China View

SII, Stic ITTTITIT siesaensieeressiaisieierneitmtasatainiaeinieesiabaeceatmnaanacastbliaiadibiniiattaies 9

Dana Berliner, Public Power, Private Gain - A Five-

Year, State-by-State Report Examining the Abuse

GT maBenamet TUNED CD ocnccccccecescccccccsesesescccssccsesssccesece 7

James Gleick, Chaos: Making a New Science (1987)....... 18

Donald J. Kochan, “Public Use” and the Independ-

ent Judiciary: Condemnation in an Interest-

Group Perspective, 3 Tex. Rev. L. & Pol. 49 (1998)....... 14

Stephen J. Jones, Note, Trumping Eminent Domain

Law: An Argument for Strict Scrutiny Analysis

Under the Public Use Requirement of the Fifth

Amendment, 50 Syracuse L. Rev. 285 (2000)................ 14

Richard E. Levy, Escaping Lochner’s Shadow:

Toward a Coherent Jurisprudence of Economic

Rights, 73 N.C. L. Rev. 329 (1995) ...............cccccccceeseeeees 14

Laura Mansnerus, Note, Public Use, Private Use,

and Judicial Review in Eminent Domain, 58

ke BF EEE EEE 14

Thomas W. Merrill, The Economics of Public Use,

I a elteieinall 6

Gordon Y.K. Pang, Council Favor End to Condo

Law, The Honolulu Advertiser (Aug. 12, 2004).............. 2

vii

TABLE OF AUTHORITIES — Continued

Page

Nathan A. Sales, Note, Classical Republicanism

and the Fifth Amendment's “Public Use” Re-

quirement, 49 Duke L. J. 339 (1999) ...........cccceceeseeeees 19

Ilya Somin, Poletown Decision Did Not Create

Desired Benefits; New Ruling Protects Weak from

Government Abuses, The Detroit News (Aug. 8,

TIT csiesietasatissiiinsighiheatniassihiaamapeaieanstiarideinipaiariniaianbiaiaaiimapmninuieninins 19

1

INTEREST OF AMICI CURIAE

Amici curiae Robert Nigel Richards, Charles William

Coupe, Joan Elizabeth Coupe, and Joan Coupe (Richards

Family) respectfully submit this brief in accordance with

Supreme Court Rule 37.' The Richards Family is the

owner of private real property situated on the western

slope of Hualalai, an active 8,200 foot volcano on the

island of Hawaii. Their property is not blighted. Like

Petitioners, the Richards Family's property, which has

been in their family for generations, has been threatened

with the exercise of eminent domain to benefit private

developers. In County of Hawaii v. Robert Nigel Richards,

et al., Civ. No. 00-1-0181K (Haw. 3d Cir. filed Oct. 9, 2000),

the County of Hawaii at the sole discretion of a private

developer, is attempting to condemn portions of the Rich-

ards Family’s property to site a road without which a

neighboring Pebble Beach-style project could not be

developed. In order to obtain its land use approvals, the

developer must construct an access highway from the

main road to its project site. The developer chose a route

though the Richards Family’s property that cleaves their

parcel in two.

The County has relinquished to the developer the

responsibility of selecting and acquiring the Richards

Family’s property for its highway.’ The developer and the

' The parties consented to the filing of amici curiae briefs, and

copies of the parties’ written consents have been filed with the Clerk of

the Court. This brief was not authored in any part by counsel for either

party, and no person or entity other than amici curiae and counsel

made a monetary contribution toward the preparation or submission of

this brief.

* The developer is not an agency of government or a public utility

authorized by law to exercise the power of eminent domain. See Haw.

(Continued on following page)

2

County entered into a development agreement under

which, at the demand and sole discretion of the developer,

the County must exercise its power of eminent domain to

take the Richard Family’s property for the developer’s

highway. The developer, not the County, is required to pay

the costs and expenses associated with the condemnation

of the property. The Richards Family was not a party to

the development agreement, and did not receive personal

notice or an opportunity to provide input or comment prior

to its execution. The court is currently considering the

Richards Family’s objections to the taking of their prop-

erty, including challenges under the public use clauses of

the Fifth Amendment and the Hawaii Constitution.

Hawaii property owners understand the impact of

harsh application of eminent domain, having lived for

more than thirty-five years under the Land Reform Act at

issue in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240

(1984).* The Richards Family has borne entirely the cost of

preparing this brief, as they believe the issue before the

Court is of vital importance to their family and other

private property owners nationwide who find themselves

on the business end of eminent domain abuse, threatened

with having their property taken away for the benefit of

Rev. Stat. § 101-4 (2003) (authorizing certain utility companies to

condemn private property).

* Perhaps sensing that The Land Reform Act’s oligopoly-busting

public use rationale is no longer applicable and that some exercises of

eminent domain have gone “too far,” Honolulu has given preliminary

approval to repeal its version of the Act. Honolulu Revised Ordinances

chapter 38 permits condominium lessees to petition the city to seize

their leases from the lessors and turn them over to the lessees upon

payment of just compensation. The city council has voted 7-2 to repeal

and final approval is pending. See Gordon Y.K. Pang, Council Favor

End to Condo Law, The Honolulu Advertiser (Aug. 12, 2004).

3

another private party who has promised the government

that they will make “better” use of it.

S

SUMMARY OF ARGUMENT

In undertaking the review of public use issues re-

served to the judiciary in Midkiff, 467 U.S. at 240, this

Court should adopt the same heightened scrutiny for

exercises of the eminent domain power justified by prom-

ises of a better economy as it has established for suspect

regulatory takings: a taking justified only by economic

development is invalid if it fails to substantially advance a

legitimate state interest. See Tahoe-Sierra Preservation

Council v. Tahoe Regional Planning Agency, 535 U.S. 302,

333-34 (2002) (regulation is an illegal taking if it “fails to

substantially advance a legitimate state interest”).

Under the Fifth Amendment’s Takings Clause, the

affirmative exercise of eminent domain to take private

property is valid only if it is for “public use” and just

compensation is provided. U.S. Const. amend. V. In regula-

tory takings jurisprudence, a regulation has the same

effect as an exercise of eminent domain when it either fails

to substantially advance a legitimate state interest, or

deprives an owner of beneficial use of property. Agins v.

City of Tiburon, 447 U.S. 255, 260 (1980). A regulation

substantially advances a legitimate state interest when

there is a nexus between the regulation and a legitimate

aim of government, and the regulation is tailored to

achieve its end. Nollan v. California Coastal Comm’n, 482

U.S. 825, 834 (1987) (nexus required); Dolan v. City of

Tigard, 512 U.S. 374, 385 (1994) (“rough proportionality”

between goal and means used to achieve it).

4

Amici suggest this takings standard is applicable in

this case. The “substantially advance” test is a restate-

ment of the public use requirement and should govern

affirmative takings as well as regulatory takings. There is

no principled distinction between eminent domain and

regulatory takings, and this case presents the Court with

an opportunity to clarify the public use requirement and

hold that unless the government shows that taking the

property will substantially further the goal of an improved

economy or increased tax revenue, it is invalid under the

Public Use Clause.

¢

ARGUMENT

I. UNSHACKLED FROM MEANINGFUL JUDICIAL

REVIEW OF PUBLIC USE, TAKINGS JUSTIFIED

ONLY BY PROMISES OF “MORE” OR “BETTER”

ARE BECOMING MORE COMMONPLACE

Next to the power to prosecute criminals, eminent

domain — government’s power to confiscate private prop-

erty against the will of the ewner —- is perhaps the most

formidable power wielded by government against indi-

viduals. See Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.)

304, 311 (C.C.D. Pa. 1795) (use of eminent domain to take

property from one private owner and vest it in another is

“despotic”). With eminent domain, completely innocent

families can be forced from their homes and established

businesses shut down against their will, and the property

owners are nearly powerless to prevent it.

Because eminent domain is too easily subject to abuse,

the Fifth Amendment and the constitutions of all fifty

-states permit the government to take private property

5

only if the owner is justly compensated and only if the

property is taken for “public use.” See, e.g., U.S. Const.

amend. V (“nor shall private property be taken for public

use, without just compensation”); Haw. Const. art. I, § 20

(“Private property shall not be taken or damaged for

public use without just compensation.”).

The government has wide latitude in defining the

public objectives of exercises of eminent domain, but use of

the power solely to confiscate one owner’s property and

turn it over to another is barred. See Vanhorne’s Lessee, 2

U.S. (2 Dall.) at 310 (legislature has “no authority to make

an act, divesting one citizen of his freehold and vesting it

in another, even with compensation.”); Calder v. Bull, 3

U.S. (3 Dall.) 386, 388 (1798) (“law that takes property

from A and gives it to B” is “against all reason and jus-

tice.”).

This Court has upheld the exercise of eminent domain

to remedy what amounted to public nuisances by taking

severely blighted property and turning it over to a rede-

veloper. Berman v. Parker, 348 U.S. 26 (1954). Other

courts, however, stretched that rationale to take non-

blighted property, allowing government to use eminent

domain to condemn perfectly good property and vest it in

others who promised to make “better” use of it. These

takings could not be justified by urban renewal, only a

“better” economy. For more than twenty years until re-

cently overruled, the seminal case permitting such “eco-

nomic development” takings was Poletown Neighborhood

Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981),

overruled, County of Wayne v. Hathcock, 684 N.W.2d 765

(Mich. 2004). In Poletown, an entire Detroit neighborhood

was condemned for a new plant for General Motors. There

was nothing wrong with the neighborhood and it was not

6

blighted, so the public use advanced was that the sprawl-

ing 450+ acre auto plant would pump up the city’s declin-

ing tax base. The citizens whose 1,400 homes, businesses,

and churches stood in the way of this “progress,” however,

had a different view. Their neighborhood was hardly a

slum — it was a vibrant working-class community, and

they didn’t want to leave. The Michigan Supreme Court,

however, permitted the taking. Poletown was the first case

in which a court upheld the “economic development”

rationale, and the case served as the model for other

governments around the country when they began flexing

their eminent domain muscle.‘

Not surprisingly, governments facing declining tax

revenues, stagnant economies, and strained infrastructure

have become more and more aggressive in their use of

eminent domain to appease private interests that promise

to alleviate these problems, straying from traditional uses

to more and more outlandish exercises, such as selling

zoning along with eminent domain power. Thus, Costcos

were slated to replace churches (non-profits don’t pay

property taxes and big box retailers emphatically do).

Cottonwood Christian Center v. Cypress Redev. Agency,

* Condemning agencies have also been emboldened by Hawaii

Hous. Auth. v. Midkiff, 467 U.S. 229 (1984). In that case, the Court held

that pronouncements of public use by the legislature deserve deference,

but reminded that “[t)here is . . . a role for courts to play in reviewing a

legislature’s judgment of what constitutes a public use,” even if it is a

narrow one. Jd. at 240. Even though the Court acknowledged that the

question of public use remained a judicial one, many view Midkiff as a

free pass, mistakenly assuming that virtually any use declared by the

condemning agency will be considered public by the courts. See, e.g.,

Thomas W. Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61

(1986) (“most observers today think the public use limitation is a dead

letter”).

7

218 F. Supp. 2d 1203 (C.D. Cal. 2002). In Atlantic City, a

casino attempted to evict a widow from her home to build

a parking lot for limousines. Casino Reinvestment Dev.

Auth. v. Banin, 727 A.2d 102 (N.J. Sup. Ct. Law. Div.

1998). In Las Vegas, a 72-year old homeowner vainly

fought attempts to take her home for a parking lot to

service off-Strip casinos. City of Las Vegas Downtown

Redev. Agency v. Pappas, 76 P.3d 1 (Nev. 2003), cert.

denied, 124 S.Ct. 1603 (2004). All of these uses were

considered “public” by the government. And the actual list

of owners like Petitioners and Amici whose properties are

targeted and who must turn to the courts for protection is

much longer. See Dana Berliner, Public Power, Private

Gain — A Five-Year, State-by-State Report Examining the

Abuse of Eminent Domain (2003). Whatever protection the

Public Use Clause offers against eminent domain over-

reaching is in danger of very nearly disappearing alto-

gether.

Il. THE RIGHT TO KEEP YOUR HOME IS FUN-

DAMENTAL AND DESERVES THE HIGHEST

PROTECTION

Pervading this case is the undeniable fact that Peti-

tioners are making lawful, non-noxious use of their prop-

erty, and the only reason it is being targeted for

acquisition is that someone else has convinced the con-

demning agency that they will make better use of it and

that the public will consequently benefit. However, it is

the function of the market, not the government, to make

value judgments of lawful private uses of property, and to

select among them, particularly when someone’s home is

involved.

8

This principle of reasonable use of property is en-

shrined as one of the great trinity of rights acknowledged

in both the Fifth and Fourteenth Amendments, on par

with life and liberty. Property and one’s home are explic-

itly protected in the Third, Fourth, Fifth, and Fourteenth

Amendments, and impliedly in the penumbra of the First,

Second, Ninth, and Tenth Amendments. See U.S. Const.

amend. III (“No Soldier shall, in time of peace be quar-

tered in any house, without the consent of the Owner, nor

in time of war, but in a manner to be prescribed by law.”);

U.S. Const. amend. IV (“The right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated ...”); U.S. Const. amend. V (“nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just

compensation.”); U.S. Const. amend. XIV (“nor shall any

State deprive any person of life, liberty, or property,

without due process of law.”); Lawrence v. Texas, 539 U.S.

558, 562 (2003) (“Liberty protects the person from unwar-

ranted government intrusions into a dwelling or other

private places. In our tradition the State is not omnipres-

ent in the home.”); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1016 (1992) (right to use property

for non-noxious uses is a fundamental “stick” in the

property rights bundle).°

* Highlighting the fundamental nature of private property, even

the People’s Republic of China is amending its constitution:

The state has the right to expropriate or collect private

property in line with laws in the public interest, but has to

compensate owners, under the draft amendment.

(Continued on following page)

9

An individual's right of property is not different from

other fundamental Constitutional and human rights and

deserves utmost frotection when threatened. Lynch v.

Household Finance Corp., 504 U.S. 538, 552 (1972) (“The

dichotomy between personal liberties and property rights

is a false one.”). Property is “sacrosanct,” Hathcock, 684

N.W.2d at 769, and an individual has a right “to own

property and use it as he pleases.” Georgia Dep't of Transp.

v. Jasper County, 586 S.E.2d 853, 856 (S.C. 2003).

The Constitutional acknowledgment and protection of

property and the home are founded upon Lockean princi-

ples that property rights, as a source of individual liberty,

cannot be subject to absolute state control. See Palazzolo v.

Rhode Island, 533 U.S. 606, 627 (2001) (the state cannot

simply wipe out property rights by prospective legislation);

Hughes v. Washington, 389 U.S. 290, 296-97 (1967) (Stew-

art, J., concurring) (the government cannot defeat prop-

erty rights and permit a taking simply by declaring that

Tang said the draft amendment set up a critical rule to curb

public power and guarantee private owners compensation if

they suffer losses in the public interest.

The proposed amendment is hailed not only by the wealthy

elite, but also ordinary citizens who feel they have suffered

injustices.

“We are not always so confident in representing private cli-

ents as sometimes judges lean towards the public party,”

said Liu Weiping, a Shanghai-based real estate lawyer, who

has represented individuals in cases of illegal demolition of

homes by local governments and developers.

“With the constitutional guarantee of private property, local

governments and real estate developers won't recklessly

level private residences as if it is in the nature of things,” he

said.

Amendment to Private Property Hailed, China View (Jan. 1, 2004).

10

the property never existed at all); Webb’s Fabulous Phar-

macies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980) (the

state may not, “by ipse dixit” transform private property

into public property). See also Lucas, 505 U.S. at 1014

(government's ability to redefine the range of interests

included in the ownership of property is limited by the

Constitution).

Ill. TAKINGS ANALYSIS HAS LONG REQUIRED A

SUBSTANTIAL NEXUS BETWEEN THE GOV-

ERNMENT’S PROFFERED GOAL AND THE

MEANS USED TO ACHIEVE IT

This Court’s modern takings jurisprudence since its

inception in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922), has followed a heightened scrutiny test for actions

alleged to be de facto takings of property by inquiring

whether an action is “substantially related” to a legitimate

public purpose, and even if so, whether the regulation

devalues property to such a degree that it is no different

than a taking of title by eminent domain. Penn Central

Trans. Co. v. New York City, 438 U.S. 104, 127 (1978). In

Penn Central, the Court held that a regulation is an

enjoinable taking unless it serves “a substantial public

purpose.” Penn Central, 438 U.S. at 127 (citing Goldblatt

v. Town of Hempstead, 369 U.S. 590 (1962)). The Court

held it is:

implicit in Goldblatt that a use restriction on

real property may constitute a “taking” if not rea-

sonably necessary to the effectuation of a substan-

tial public purpose ... or perhaps if it has an

unduly harsh impact upon the owner’s use of the

property.

11

Penn Central, 438 U.S. at 127 (emphasis added) (citing

Nectow v. City of Cambridge, 277 U.S. 183 (1928); Moore v.

City of East Cleveland, 431 U.S. 494 (1977) (Stevens, J.,

concurring)).

Subsequent decisions of this Court have confirmed the

continuing validity of the “substantial public purpose”

standard. See Agins v. City of Tiburon, 447 U.S. 255, 260

(1980) (“The application of a general zoning law to particu-

lar property effects a taking if the ordinance does not

substantially advance legitimate state interests.”); Nollan

v. California Coastal Comm’n, 482 U.S. 825, 834 (1987)

(“We have long recognized that land-use regulation does

not effect a taking if it ‘substantially advance(s] legitimate

state interests’”); Lucas v. South Carolina Coastal Coun-

cil, 505 U.S. 1003, 1016 (1992) (“As we have said on

numerous occasions, the Fifth Amendment is violated

when land-use regulation ‘does not substantially advance

legitimate state interests’”); Dolan v. City of Tigard, 512

U.S. 374, 385 (1994) (same); City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 704 (1999) (same);

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 535 U.S. 302, 333-34 (2002) (same).*

* In Chevron USA v. Lingle, 363 F.3d 846 (9th Cir.), cert. granted,

125 S. Ct. 314 (No. 04-163, Oct. 12, 2004), the Court is reviewing the

State of Hawaii's challenge to the long-standing “substantially advance”

takings standard in a case where the Hawaii Legislature responded to

the perceived high price of gasoline by capping the rent oil companies

may charge dealers who lease company-owned gas stations. The

District Court concluded that the rent control law was a taking because

it did not substantially advance the legitimate interest of controlling

gas prices since rather than decreasing prices, the legislation would

actually have the opposite effect of raising them.

12

Although never explicitly articulated, the two-part

regulatory takings standard is plainly based on the text of

the Takings Clause, and the “substantially advance” test is

a restatement of the public use requirement.’

Nollan explained when an action advances a legiti-

mate state interest. The coastal commission had condi-

tioned permission to build a beachfront home on the

owner’s assent to provide public access across his property.

The Court held that before the public could be invited to

use private property, the government must demonstrate a

legitimate interest in doing so, and that an “essential

nexus” exists between the interest and the means used to

achieve it. Nollan, 482 U.S. at 837. The Court accepted the

determination that public views of the beach was a legiti-

mate goal of government, and acknowledged that the

agency could have prohibited the building of the house if it

blocked such views, or could have allowed the building of

the house with conditions designed to protect public views.

Thus, the agency could have required the property owner

“provide a viewing spot on their property for passersby

with whose sighting of the ocean their new house would

interfere.” Jd. at 836-37. The coastal commission had not

done so, however, but conditioned its development ap-

proval on the exaction of public access that in no way

furthered its stated goal of protecting views.

” The test of whether a regulation “denies all economically benefi-

cial or productive use of land,” Lucas, 505 U.S. at 1015, is based upon

the Just Compensation Clause - “nor shall private property be taken

... without just compensation.” The “substantially advance” test is a

restatement of the Public Use Clause. The remedies available also track

the language of the Takings Clause: compensation for denial of all

beneficial use, and invalidation for failure to substantially advance a

legitimate state interest.

13

The “constitutional propriety disappears, however, if

the condition substituted for the prohibition utterly fails to

further the end advanced as the justification for the prohi-

bition.” Jd. at 837 (emphasis added). Lacking a substantial

nexus to the legitimate goal, the condition was invali-

dated. In Dolan, the Court further explained:

We think a term such as “rough proportionality”

best encapsulates what we hold to be the re-

quirement of the Fifth Amendment. No precise

mathematical calculation is required, but the city

must make some sort of individualized determi-

nation that the required dedication is related

both in nature and extent to the impact of the

proposed development.

Dolan, 512 U.S. at 390.°

Heightened scrutiny is designed to insure that suspect

actions requiring the surrender of property for public use

are in fact for public use and not “an out-and-out plan of

extortion.” Nollan, 482 U.S. at 837; Dolan, 512 U.S. at 387.

Eminent domain supported solely by “Field of Dreams”

promises of economic development without some showing

that the takings will achieve that result presents the same

threat — see Kelo, 843 A.2d at 581-82, 602 (Zarella, J.,

concurring in part and dissenting in part) — that the

* The nexus test has thus far been limited to cases in which the

government effects a per se taking by requiring dedication of property to

the public, but the instant case presents a much more egregious

example of a per se taking, as there is the threat of a total takeover by

another of title not simply a government invitation to public trespass.

Also, unlike the typical exaction situation, in eminent domain the

property owner is not presented a “take it or leave it” deal. An owner

facing an eminent domain action has no right to refuse compensation

and keep her property.

14

condemning authority, rather than representing the

consent of the governed, has been captured by special

interests or has an ulterior motive. Laura Mansnerus,

Note, Public Use, Private Use, and Judicial Review in

Eminent Domain, 58 N.Y.U. L. Rev. 409, 432 (1983). It also

is subject to the danger that it may be more efficient for

private parties who desire to acquire another’s property to

“invest” in eminent domain action through the condemn-

ing agency than it is to attempt to purchase the property

on the open market. Donald J. Kochan, “Public Use” and

the Independent Judiciary: Condemnation in an Interest-

Group Perspective, 3 Tex. Rev. L. & Pol. 49, 52 (1998).”

* Midkiff’s rationale is not readily adaptable to economic develop-

ment takings because its conclusion that pronouncements of public use

are coterminous with the police power is dependent upon the expecta-

tion that a property owner subject to eminent domain has sufficient

political capital to participate meaningfully in the legislative process,

and the courts should not interfere in such areas where representative

bodies have more institutional competence to balance questions of

public policy. See, e.g., United States v. Carolene Products Co., 304 U.S.

144 (1938). That assumption is severely undermined, however, in

economic development takings where the targeted property owners are

often in a class of one and unable to organize with others with similar

interests to object because there are no others being targeted. The

reality is also that the owners of the types of property generally

targeted by economic development takings lack the wherewithal to

compete in a survival of the wealthiest contest with well-financed

special interests bent on acquisition. See Stephen J. Jones, Note,

Trumping Eminent Domain Law: An Argument for Strict Scrutiny

Analysis Under the Public Use Requirement of the Fifth Amendment, 50

Syracuse L. Rev. 285, 302 (2000) (citing Laura Mansnerus, Note, Public

Use, Private Use, and Judicial Review _.: Eminent Domain, 58 N.Y.U. L.

Rev. 409, 436 (1983)). In such cases, no judicia] deference is due a

condemning authority’s determination since “the results of a manipu-

lated political process are no more legitimate than those of the un-

elected judiciary.” Jones, supra (citing Richard E. Levy, Escaping

Lochner’s Shadow: Toward a Coherent Jurisprudence of Economic

Rights, 73 N.C. L. Rev. 329, 362-63 (1995)).

15

This Court has also long recognized that physical

takings, regulatory takings, and affirmative exercises of

the eminent domain power are not different in kind,

especially from the position of the property owner who is

either dispossessed of his property, or left with little of

value:

It would be a very curious and unsatisfactory re-

sult if in construing [the Takings Clause] it shall

be held that if the government refrains from ab-

solute conversion of real property to the use of

the public it can destroy its value entirely, can in-

flict irreparable and permanent injury to any ex-

tent, 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.

Pumpelly v. Green Bay Co., 80 U.S. 166, 176-78 (1871).

Having the same textual foundation, eminent domain

and regulatory takings jurisprudence cannot be consis-

tently separated, particularly from the property owner’s

perspective since it matters little that in one instance the

government is affirmatively confiscating his property,

while in the other the confiscation is de facto rather than

de jure. See, e.g., Rukab v. City of Jacksonville, 811 So.2d

727, 733 (Fla. Dist. Ct. App. 2002) (“We see no reason to

treat a direct condemnation action differently from an

inverse condemnation claim in this context. In both cases,

property owners are asserting their constitutional rights

not to have the government take their property without

just compensation.”).

Maintaining a less rigorous public use standard for

affirmative takings would result in the anomalous situation

of the individual whose property is taken by regulation

16

having both invalidation and just compensation remedies

available, while the owner whose property is taken by

eminent domain would have only the ability to obtain

compensation. See First English Evangelical Lutheran

Church v. County of Los Angeles, 48° U.S. 304, 315 (1987)

(Takings Clause requires both invalidation and just

compensation remedies for regulatory takings). As the

Richards Family is arguing in its case, the government’s

choice of illegitimate means to accomplish its goals should

not be ignored simply because it may be wang to provide

compensation.

IV. TAKINGS SUPPORTED ONLY BY “ECONOMIC

DEVELOPMENT” MERIT HEIGHTENED aed

CIAL SCRUTINY

Amici suggest this Court adopt a heightened standard

of review for exercises of the eminent domain power

supported only by promises of “economic development.”

Such takings are invalid under the Public Use Clause

unless the condemning agency shows the taking substan-

tially advances a legitimate state interest and the requi-

site proportional nexus. The dissenting Justice in the court

below recognized a similar standard. After acknowledging

that betterment of the economy is a valid goal, he noted:

In my view, the development plan as a whole

cannot be considered apart from the condemna-

tions because the constitutionality of condemna-

tions undertaken for the purpose of private

economic development depends not only on the

professed goals of the development plan, but also

on the prospect of their achievement. Accordingly,

the taking party must assume the burden of

proving, by clear and convincing evidence, that

the anticipated public benefit will be realized.

17

The determination of whether the taking party

has met this burden of proof involves an inde-

pendent evaluation of the evidence by the court,

with no deference granted to the local legislative

authority. In the present case, the evidence fails

to establish that the foregoing burden has been

met.

Kelo, 843 A.2d at 597 (Zarella, J., concurring in part and

dissenting in part) (emphasis added).

The question of public use has always been a judicial

one, Midkiff, 467 U.S. at 240, and heightened scrutiny will

not result in unwarranted judicial usurpation of a legisla-

tive function. See Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 201 (1995) (“we wish to dispel the notion that

strict scrutiny is strict in theory, but fatal in fact”). In-

stead, heightened review will be useful to “smoke out”

illegitimate criteria when the condemning authority is

using the “suspect tool” of eminent domain supported only

by promises of economic development. City of Richmond v.

J.A. Croson Co., 488 U.S. 469, 493 (1989). Heightened

scrutiny will also not disturb established public use

Goctrine nor will it initiate a deluge of public use chal-

lenges to ordinary eminent domain actions. For example,

the takings in Berman and Midkiff would manifestly

satisfy this test. In Berman, the taking was designed to

improve severely blighted property in Washington, D.C.

Berman, 348 U.S. at 30. In Midkiff, the Hawaii Land

Reform Act was enacted to remedy the ills perceived to be

caused by concentrated land ownership. Midkiff, 467 U.S.

at 232-33, 241-42. Eliminating blight and the breakup of

land oligopolies are legitimate government goals, and

using eminent domain was clearly directed in those cases

to accomplish those goals. The property taken was the

18

property causing the problem: taking blighted property

and putting in into the hands of a redeveloper alleviates

the blight; exercising eminent domain and vesting indi-

vidual owners with title diversifies ownership.

Improving the economy is a legitimate goal of gov-

ernment. But when the condemning authority need merely

set forth tenuous “butterfly effect” connections between

that legitimate goal and the means used to achieve it, no

substantive limits remain in the public use requirement.

To avoid this, the targeted property owner must be allowed

the opportunity to challenge the government’s assertion

that the exercise of eminent domain to take their property

will further that goal, and the condemning authority must

demonstrate the nexus between the taking and the bet-

terment of the economy before an individual is casually

deprived of her property and home.

If all that is required of the government in economic

development takings is to invoke grandiose promises of a

“better economy,” with no examination of whether there is

any substance to that assertion, there is no limit to the

government’s ability to take property and put it into the

hands of another, for more economically intensive uses of

any property can always be imagined.

And how often do the promises of a “better economy”

materialize? If the subsequent history of Poletown is any

example, not always:

See James Gleick, Chaos: Making a New Science 8 (1987)

(discussing the parable of the flapping of a butterflys wings that

creates a minor air current in China, that adds to the accumulative

effect in global wind systems, that ends with a hurricane in the

Caribbean).

19

condemnations that transfer property to private

businesses usually don’t even provide the eco-

nomic benefits their advocates promise. General

Motors and Detroit Mayor Coleman Young prom-

ised that the new factory would create more than

6,000 jobs. In reality, the plant employed less

than half that many workers; possibly, more jobs

were lost from the destruction of Poletown than

were created by the factory. This result is typical.

Ilya Somin, Poletown Decision Did Not Create Desired

Benefits; New Ruling Protects Weak from Government

Abuses, The Detroit News (Aug. 8, 2004). Courts are

understandably reluctant to examine closely an agency’s

predictive ability, but property owners should have the

opportunity to challenge such pronouncements when their

homes and fundamental property rights are threatened.

Cursory judicial review of economic development

takings augurs a return to outdated republican norms that

presumed that “takings that advanced the interests of one

citizen could be regarded as advancing the interests of all.”

Nathan A. Sales, Note, Classical Republicanism and the

Fifth Amendment’s “Public Use” Requirement, 49 Duke L.

J. 339, 380 (1999). These notions have been superceded by

the more pragmatic realization that all people — even

legislators — are subject to acting in their own self-interest.

See The Federalist No. 10 (J. Madison) <http://www.yale.

edu/lawweb/avalon/federal/fed10.htm>. The danger of total

judicial deference to public use pronouncements is plain:

without it, condemning authorities would have no reason

to refrain from taking private property and turning it over

to those who claim that they would make “better” use of it.

The public use requirement is supposed to insure that

takings are in fact for the public good and not for private

gain, and Amici suggest the Court should undertake

20

careful review of bare assertions of public use in economic

development takings. When the government has the

ability to take private property from one owner and put it

into the hands of another, with the only justification

necessary that the economy may be benefitted by the

transfer of property because the new owner might make

“better” use of it, the public use requirement has lost all

meaning.

The lower courts are beginning to pay attention to the

abuse of eminent domain and are reviewing economic

development takings against the individual right of

property, but have not established a consistent standard of

review. See, e.g., 99 Cents Only Stores v. Lancaster Redev.

Agency, 237 F. Supp. 2d 1123 (C.D. Cal. 2001) (government

“appeased” big box retailer by condemning a smaller

competitor); Cottonwood Christian Center v. Cypress

Redev. Agency, 218 F.Supp. 2d 1203 (C.D. Cal. 2002)

(Costco versus a church); Bailey v. Superior Court, 76 P.3d

898 (Ariz. Ct. App. 2003) (attempt to take a non-blighted

automobile repair shop and turn over the property to a

neighboring hardware store for expansion); County of

Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004) (overrul-

ing Poletown, economic development takings do not satisfy

public use requirement); Georgia Dep't of Transp. v. Jasper

County, 586 S.E.2d 853, 856 (S.C. 2003) (economic devel-

opmem taking invalid); Southwestern Illinois Dev. Auth. v.

National City Environmental, LLC, 768 N.E.2d 1 (Ill.),

cert. denied, 537 U.S. 880 (2002) (same).

While state courts are free to set their own high

standards under their state public use requirements, in

the absence of definitive guidance from this Court estab-

lishing minimum standards, property owners like Peti-

tioners and Amici will continue to live in the crosshairs.

21

See Hathcock, 684 N.W.2d at 786 (“Poletown’s economic

benefit rationale would validate practically any exercise of

the power of eminent domain on behalf of a private en-

tity.”) (emphasis original).

The standard for economic development takings

adopted by the court below ignores the separate purposes

served by the Public Use Clause and the Just Compensa-

tion Clause. The purpose of the public use requirement is

to insure that the private property owner is not being

unfairly forced to contribute his or her property to some-

one else’s private use and that the government’s purported

use of the property is real before an individual’s funda-

mental rights are interfered with.

The purpose of the Just Compensation requirement is

to insure that the cost of public benefits are not concen-

trated in a few but spread across the beneficiaries, and

that an owner whose property is targeted for public use is

at least provided fair market value as a result of the forced

sale. Armstrong v. United States, 364 U.S. 40, 48-49 (1960)

(“since the acquisition was for public use ... [t]he Fifth

Amendment’s guarantee that private property shall not be

taken for a public use without just compensation was

designed to bar Government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”). Both

parts of the Takings Clause should be acknowledged.

4

CONCLUSION

If the public use requirement is to continue to have

significance, then a condemning authority’s conclusory

assertions that taking private property and vesting it in

22

another will boost the economy does not satisfy the Tak-

ings Clause. The Constitution requires public use, not just

“better” use. Affirming the Connecticut Supreme Court’s

decision in this case would write out of the Constitution

the last measure of protection property owners have to

keep their homes and defend their “sacrosanct right” of

property.

Property owners who bear the burden of these ex-

periments in Darwinian economics may be able to obtain

monetary compensation, but the intangible loss of home,

neighborhood, and community is never “just.” The only

check on eminent domain abuse is the public use require-

ment, an agency’s ability to self-police, and meaningful

judicial review when it fails to do so. Although compensa-

tion may be provided for illegitimate exercises of eminent

domain for purely private uses, receiving money is bitter

justice if the government is forcibly evicting the owner

from the family homestead or a life’s work, for the enrich-

ment of another.

In the end this case is reduced to this vital fact: the

Constitution contains the Takings Clause, not just the

Just Compensation Clause.

Respectfully submitted,

KENNETH R. KUPCHAK*

ROBERT H. THOMAS

DAMON KEY LEONG

KUPCHAK HASTERT

1600 Pauahi Tower

1001 Bishop Street

Honolulu, Hawaii 96813

(808) 531-8031

*Counsel of Record