# Amicus Curiae Brief — Kelo v. New London

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A48

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 469

## Text

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.

¢

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,
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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 . 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A48. Public record. Not legal advice.