Amicus Curiae Brief — Horne v. Dep't of Agric., 135 S. Ct. 1039 (2015) (No. 14-275)

Supreme Coun. US

FILED

OCT 8 - 20%

No. 14-275 OFFICE OF THE CLERK _|

3un the Supreme Court of the Anited States

MARVIN D. HORNE, ET AL., PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF AGRICULTURE,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR TH® CATO INSTITUTE,

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS, CENTER FOR CONSTITUTIONAL

JURISPRUDENCE, INSTITUTE FOR JUSTICE,

REASON FOUNDATION, AND SOUTHEAST-

ERN LEGAL FOUNDATION AS AMICI CURIAE

IN SUPPORT OF CERTIORARI

WILLIAM P. FERRANTI STEFFEN N. JOHNSON

Winston & Strawn LLP Counsel of Record

35 W. Wacker Drive EIMERIC REIG-PLESSIS

Chicago, IL 60601 CHRISTOPHER E. MILLS

(312) 558-5600 Winston & Strawn LLP

1700 K Street, N.W.

Washington, DC 20006

(202) 282-5000

sjohnson@winston.com

Counsel for Amici Curiae

[Additional Counsel Listed on Inside Cover]

er neem

WiLson-Eres Prana Co., inc. — (202) 789-0086 -— Wasmaron, D.C. 20002

ILYA SHAPIRO

Cato Institute

1000 Mass. Ave.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

Counsel for Cato

Institute

KAREN R. HARNED

ELIZABETH MILITO

NFIB Small Business

Legal Center

1201 F St., NW, Ste. 200

Washington, DC 20004

(202) 406-4443

elizabeth. milito@nfib.org

Counsel for National

Federation of

Independent Business

MANUEL S. KLAUSNER

Law Offices of Manuel

S. Klausner, P.C.

One Bunker Hill Bldg.

601 West Fifth St.

Los Angeles, CA 90071

(213) 617-0414

mklausner@klausnerinc.com

Counsel for Reason

Foundation

JOHN C. EASTMAN

Center for Constitutional Ju-

risprudence

c/o Chapman University

School of Law

One University Dr.

Orange, CA 92886

(714) 628-2500

jeastman@chapman.edu

Counsel for Center for

Constitutional

Jurisprudence

Scott G. BULLOCK

Institute for Justice

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

SBullock@ij.org

Counsel for Institute for

Justice

SHANNON L. GOESSLING

Southeastern Legal

Foundation

2255 Sewell Mill Rd.

Suite 320

Marietta, GA 30062

(770) 977-2131

shannon@southeasternlegal.org

Counsel for Southeastern

Legal Foundation

QUESTIONS PRESENTED

1. Whether the government's “categorical duty”

under the Fifth Amendment to pay just compensa-

tion when it “physically takes possession of an inter-

est in property,” Arkansas Game & Fish Comm'n v.

United States, 133 S. Ct. 511, 518 (2012), applies only

to real property and not to personal property.

2. Whether the government may avoid the cate-

gorical duty to pay just compensation for a physical

taking of property by reserving to the property owner

a contingent interest in a portion of the value of the

property, set at the government’s discretion.

‘i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ...........00..cccccccccccccccccecccesee i

INTRODUCTION AND INTEREST OF

p ESSER ery SP nyu ee 1

ESLER rena Ronen ep eae me Ee 5

REASONS FOR GRANTING THE WRIT .................. 8

I. In conflict with decisions of this Court and

other circuits, the Ninth Circuit wrongly

limited Loretto to real property. ..................0..0..000+ 8

Il.

A.

The Ninth Circuit relied on inapposite

dicta and contradicted this Court's

explicit recognition that Loretto applies to

i ell 8

. Review is needed to resolve the circuit

split on this recurring issue—a split that

includes the Federal Circuit, which hears

more takings cases than any other

Ns inisiesalescetcienictalticileerinaiehiniepaenbietabeslindnilhde ninmaneiaiesitiaanianinn 1l

. There is no principled distinction

between government confiscation of real

ee i dibtcccecnscecceciccecescccreseceee: 12

The Ninth Circuit's approach would

encourage the government to engage in

procedural gamesmanship to avoid Loretto’s

ca einen icidinnieninbtid 14

A. Under the Ninth Circuit’s rule, the

government could manipulate the

standard of review by offering an illusory

IIL cicscmnenictddniemmibnnigunsininisenseins 15

B. The Ninth Circuit’s decision permits the

government to avoid the per se rule

merely by characterizing diffuse public

benefits as “contingent interests.” .................. 16

C. Evisceration of the per se takings rule

would undermine property ownership,

autonomy, and reliance interests. .................. 19

EET sencessnroninsccunsectscmsentionsintnsaiesennnsmenesectes

APPENDIX A: LIST OF AMICI CURIAE ................

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004) ......................000000 11

Armstrong v. United States,

gk NT er a RE 20

Brown v. Legal Found. of Wash.,

REET ae 10

E. Enters. v. Apfel,

I a iield 20

Evans v. United States,

i i 5

Horne v. Dep’t of Agric.,

| eC re eee a 7

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

kk ERC eee 20

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) .......... 2-4, 8-12, 14-15, 17-20

Lucas v. S.C. Coastal Coiincil,

a: cc siciiaiasininasil 9-10, 22

Nixon v. United States,

978 F.2d 1269 (D.C. Cir. 1992) ..................... 9,11

Vv

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) ........ccccececeeeeeeeeee 14, 20, 22-23

Pa. Coal Co. v. Mahon,

RRA NER ema 19

Philip Morris, Inc. v. Reilly,

fe 13

Porter v. United States,

473 F.2d 1329 (Sth Cir. 1973) .................0..000000 11

Rose Acre Farms, Inc. v. United States,

378 F.3d 1177 (Ped. Cir. 3004).......................... 12

Tahoe-Sierra Preservation Council v. Tahoe

Reg'l Planning Agency,

Te 9-10

United States v. Causby,

GT ae ree ee 16

United States v. Corbin,

- bs F «Be To Ae /, SeEEeeeneene 11

United States v. Pewee Coal Co..,

| TEE ee nr 16

Warner /Elektra/ Atl. Corp. v. Cnty. of DuPage,

991 F.2d 1280 (7th Cir. 1993) .....................0000. 11

Wash. Legal Found. v. Legal Found. of Wash.,

271 F.3d 835 (9th Cir. 2001) ............ 11, 13, 18-19

vi

STATUTES, REGULATIONS, RULES, AND

CONSTITUTIONAL PROVISIONS

7 C.F.R

TUTTI iiictiisisiiihisaeheiiniibaidaiiaiitipieidinianthichaniimainicanias 5

Sir UIT cicirciteisiendicssouiabaiiechiepeediniiengtinninginieideiniaiioiinaiand 5

UTI is ciisasinietuatenniannsiniiennensitmannnsneniandsinnaanininsineniintn 5

SUITED ciescriiinschdeieicetiaiiiiislineibieiealbdiiniiniaiain 5

anni eicisheseclleuaeieppdhnlceilaaiiciia 5

SOUT iesesticiiisitiglatiieenesiunipadiiniadialeaminiabaiinnsiinentaiaintininatie 5

STITT Lie ini tiisediitiainteasminiasednannabeeitananite 1,5,6

STII <ssissitnsctstasuiesieieiuiapiejatiansiiieasioasicnianiciacntiisiebiniitialaiebita 1

7 U.S.C

ea os 5

Supreme Court Rule 37.2(@)..........ccccccccssccccosscscesscees 1

SS EE ees e Eee 1

U.S. Const. amend. V............ 2-4, 7, 12-13, 17, 19, 22

OTHER AUTHORITIES

Daniel Bensing, The Promulgation and

Implementation of Federal Marketing

Orders Regulating Fruit and Vegetable

Crops Under the Agricultural Marketing

Agreement Act of 1937, 5 San Joaquin

a I a scuelebnnmbonsonens 6

Eric R. Claeys, The Penn Central Test and

Tensions in Liberal Property Theory, 30

Harv. Envtl. L. Rev. 339 (2006) ................... 21-22

Steven J. Eagle, The Four-Factor Penn Central

Regulatory Takings Test, 118 Penn St. L.

I ccmsininiuaile 22

Richard A. Epstein, Lucas v. South Carolina

Coastal Council: A Tangled Web of

Expectations, 45 Stan. L. Rev. 1369 (1993)......21

Tedra Fox, Lake Tahoe’s Temporary

Development Moratorium, 28 Ecology L.Q.

TTT ss ccxiciceicieiaitehcatnerialndidaac ela uichinaitiiiiianianinn 12

Thomas M. Lenard & Michael P. Mazur,

Harvest of Waste: The Marketing Order

Program, Regulation, May/June 1985,

available at www.cato.org/pubs/regulation/-

James Madison, Property, Nat’1 Gazette, Mar.

29, 1792, reprinted in 14 The Papers of

James Madison 266 (Robert A. Rutland et

I a lidaiceiiariainain 4

Susan Rose-Ackerman, Against Ad Hocery: A

Comment on Michelman, 88 Colum. L. Rev.

ES ITED ‘inciitndssnccesieniidenspndiinidiasmamamananinanieaiinel 22

Antonin Scalia, The Rule of Law As A Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989)............... 22

Transcript of Oral Argument, Horne v. Dep’t of

Agric., 133 S. Ct. 2053 (2013) (No. 12-123) ........ 7

Why does America regulate the trade in

raisins?, The Economist (Apr. 14, 2013),

available at http://econ.st/1C60qXK ................... 6

INTRODUCTION AND

INTEREST OF AMICI CURIAE’

Amici are advocates for individual freedom who

regard the right to keep and control one’s own proper-

ty as among the most vital rights in any free society

and the most basic rights protected by the Constitu-

tion. See Appendix A. Four of the amici participated

in this case in its previous iteration, when this Court

unanimously rebuffed the government’s attempt to

make property owners sue twice—once in federal dis-

trict court and once in the Court of Claims—to vindi-

cate their property rights.

The case is here again, this time because the

Ninth Circuit has wrought a major upheaval of basic

principles of takings law. The seeds of this case were

sown in 1949, when the Department of Agriculture

established a Raisin Marketing Order, ostensibly to

smooth market fluctuations. The government's

scheme conscripts raisin “handlers” to convey title to

a quota of “producers” raisins to its Raisin Adminis-

trative Committee. This Committee then has unbri-

dled discretion over the fate of its spoils. It can sell

the raisins for profit, ship them to another public

agency, or even give them to foreign countries.

Meanwhile, the handler must “hold in storage” the

raisins “for the account of the committee” “until he

has been relieved of such responsibility.” 7 C.F.R.

§§ 989.66-67. Once the Committee disposes of the

* Pursuant to Rule 37.2(a), amici provided timely notice of their

intention to file this brief. All parties have consented. In ac-

cordance with Rule 37.6, no counsel for any party has authored

this brief in whole or in part, and no person or entity other than

the amici has made a monetary contribution to the preparation

or submission of this brief.

2

raisins, hands out export subsidies to its preferred

processors, and covers its administrative costs, it

might have funds remaining to disburse to the farm-

ers whose raisins were taken and who retained a con-

tingent interest in those proceeds.

Or it might not. In 2003-2004, petitioners, the

Hornes, turned over 306 tons of raisins—30% of their

crop—to USDA; in return, they received nothing.

Pet. App. 4la. The year before, when they turned

over nearly half of their raisins, they received far less

than their cost of production. Pet. 6-7. Thus, a New

Deal program whose raison d’étre was to lift prices

above “the cost of production” (Pet. App. 4a) now forc-

es raisin farmers to fork over the fruits of their labor

with no hope of even covering their expenses. Year in

and year out, the Committee takes farmers’ crops

without providing just—or sometimes any—

compensation.

The Ninth Circuit nevertheless upheld the gov-

ernment’s scheme, on two grounds. First, the court

departed from this Court’s precedent and squarely

split with six other circuits by drawing an artificial

distinction between real and personal property. Un-

der the per se rule of Loretto v. Teleprompter Manhat-

tan CATV Corp., 458 U.S. 419 (1982), any physical

confiscation of property has always required just

compensation. But according to the Ninth Circuit,

the mere fact that the property here is “personal,” not

“real,” immunizes the taking from Loretto’s reach.

The Takings Clause, however, makes no distinc-

tion between “real” and “personal” property—it states

categorically that “private property” shall not “be

taken for public use, without just compensation.”

U.S. Const. amend. V. Nor did Loretto rest on any

3

such distinction. It held that, where the government

“effectively destroys each” of one’s “[p]roperty rights

in a physical thing’—‘“the rights ‘to possess, use and

dispose of” the property—this Court’s “cases uniform-

ly have found a taking.” 458 U.S. at 435, 434.

But the Ninth Circuit's distinction not only con-

flicts with the constitutional text and this Court's

precedents. It also lacks any economic basis and fa-

vors landowners over those who lack the means to

buy real estate. The Hornes lost all right to possess,

use, and dispose of their own property. It is constitu-

tionally irrelevant that the property is a ton of raisins

grown on their farm, rather than the farm itself.

Second, the decision below authorizes the gov-

ernment to flout its constitutional obligation to pro-

vide just compensation merely by providing a future,

contingent interest that may well prove worthless.

By the Ninth Circuit's lights, Loretto’s per se rule is

inapplicable whenever the government’s scheme pre-

serves the theoretical possibility of a payout from the

government's use of the taken property—even if, as

here, the payout never materializes or it amounts to

less than the owners’ cost of producing the property

in the first place. The court justified this result on

the ground that the property owners share in the

public benefits supposedly produced by the taking,

effectively reducing the Takings Clause to a form of

rational-basis-style “legitimate purpose” review.

By permitting the government to avoid Loretto’s

per se rule merely by offering a contingent interest

that could be utterly worthless, the Ninth Circuit

opened the door to procedural gamesmanship that

threatens to send property rights the way of the Cali-

fornia Raisins. The court found it persuasive that the

4

government scheme was “carefully crafted to ensure

the [owners] are not completely divested of their

property rights” in the sense that they retain the

right to an “equitable distribution,” albeit one that

“may be zero.” Pet. App. 18a, 21a. But this mistakes

the problem for the solution. Any government action

can be joined with some trivial, contingent right.

Surely the government may not seize our cars to de-

liver the mail and avoid paying just compensation by

allowing us to use them on Sundays.

Nor, obviously, is the fact that mail would be de-

livered to our homes Monday through Saturday—our

bit of the public benefit—sufficient to avoid a per se

taking. Yet that is exactly what the Ninth Circuit

held in ruling that the Hornes’ enjoyment of the sup-

posed benefits of collectivization is a “contingent in-

terest” sufficient to avoid Loretto.

By devaluing property rights of all sorts, the

Ninth Circuit’s approach weakens the values of au-

tonomy and reliance that undergird the Takings

Clause and our constitutional order. James Madison

could have been speaking directly to the court below

when he admonished: “Government is instituted to

protect property of every sort,” and “the end of gov-

ernment * * * is a just government, which impartially

secures to every man, whatever is his own.” James

Madison, Property, Nat'l Gazette, Mar. 29, 1792, re-

printed in 14 The Papers of James Madison 266

(Robert A. Rutland et al. eds., 1983) (first emphasis

added).

The Ninth Circuit’s decision radically shrivels the

right to own property—in a manner that conflicts

with the precedents of this Court and numerous cir-

5

cuits, the nation’s founding ideals, and the Constitu-

tion. Certiorari should be granted.

STATEMENT

1. Much-criticized relics of the New Deal, agricul-

tural marketing orders administered by the United

States Department of Agriculture (USDA) continue to

tightly control the supply of many agricultural prod-

ucts today. In theory, these orders are designed to

prevent “unreasonable fluctuations in supplies and

prices.” 7 U.S.C. § 602(4). In reality, the orders cre-

ate government-enforced cartels that give bureau-

crats carte blanche both to fine farmers who sell more

than their allotted quotas and to drive up prices for

consumers. See generally Thomas M. Lenard & Mi-

chael P. Mazur, Harvest of Waste: The Marketing Or-

der Program, Regulation, May/June 1985.!

2. This case involves the USDA’s marketing order

for raisins, which “effects a direct transfer of title of a

producer's ‘reserve tonnage’ raisins to the govern-

ment.” Evans v. United States, 74 Fed. Cl. 554, 558

(2006). Under that order, handlers of raisins must

reserve a certain portion of the producers’ crop, which

they may not sell on the open market. USDA annual-

ly establishes the amount to be reserved, based on

the recommendations of a committee of 46 industry

representatives and one representative of the public.

7 C.F_R. §§ 989.26, 989.29-30, 989.35-36.

The reserve-tonnag® raisins must be physically

segregated from the rest of the farmer’s crop and held

“for the account” of the Committee, which takes title.

Id. §§ 989.65, 989.66(a), (b)(1), (b)(2), (g). After the

Committee disposes of the raisins and covers its ex-

1 Available at www.cato.org/pubs/regulation/regv9n3/v9n3-4 pdf.

6

penses, “[w]hatever net income remains [if any] is

disbursed to” the farmers who grew the raisins and

were forced to turn them over. Pet. App. 6a (citing 7

C.F.R. § 989.66(h)).

The Committee’s central planning has been less

than stellar. After “allegations that members of the

Raisin Administrative Committee engaged in illegal

price-fixing and market division discussions with for-

eign producers,” the USDA amended the marketing

order to prohibit such conduct. Daniel Bensing, The

Promulgation and Implementation of Federal Market-

ing Orders Regulating Fruit and Vegetable Crops

Under the Agricultural Marketing Agreement Act of

1937, 5 San Joaquin Agric. L. Rev. 3, 20 (1995). The

Committee does consumers no favors either: its crea-

tion of “artificial raisin-scarcity * * * drives up pric-

es,” with the paradoxical result “that Californian rai-

sins are sometimes cheaper abroad than they are in

California.” Why does America regulate the trade in

raisins?, The Economist (Apr. 14, 2013).?

3. The Hornes are farmers in Fresno and Madera

Counties. During the relevant years, 2002-2003 and

2003-2004, the Hornes did not set aside the mandat-

ed reserve-tonnage raisins. As they explained to the

Committee, they believed they had a “right[] under

the Constitution” not to “relinquish ownership of

[their] crop” to the government. Pet. App. 129a-130a.

The government disagreed. It initiated an adminis-

trative enforcement action against the Hornes, and

the USDA ultimately found them liable for failing to

give up their raisins. Pet. App. 8a.

2 Available at http://econ.st/1C60qXK.

7

4. The Hornes sought relief in federal court. Pet.

App. 8a. After the district court granted summary

judgment to the USDA, the Hornes appealed to the

Ninth Circuit, which initially held that no taking had

occurred because the marketing order “applies to the

Hornes only insofar as they voluntarily choose to

send their raisins into the stream of interstate com-

merce.” Pet. App. 208a. But when the Hornes sought

rehearing, the Ninth Circuit changed its tune, decid-

ing it lacked jurisdiction over the takings issue.

This Court unanimously reversed. Pet. App. 258a.

As the Court held, “it is clear that the Government

has both taken property and denied just compensa-

tion,” which permits the Hornes to bring a Fifth

Amendment claim. Pet. App. 254a (emphasis added).

The Court remanded the case so that, as Justice Ka-

gan put it, the Ninth Circuit could “figure out wheth-

er this marketing order is a taking or * * * just the

world’s most outdated law.” Transcript of Oral Ar-

gument 49, Horne v. Dep’t of Agric., 133 S. Ct. 2053

(2013) (No. 12-123).

5. On remand, the same panel again ruled that

the Committee’s seizure of the raisins is not a com-

pensable taking. The court cited two reasons—

neither of them advanced by the government—why

the per se rule requiring compensation for physical

confiscations of property does not apply.

First, “the Marketing Order operates on personal,

rather than real property,” and “the Takings Clause

affords less protection to personal than to real prop-

erty.” Pet. App. 18a. Second, the Hornes retain a

“contingent interest” in the proceeds from their rai-

sins, so they “are not completely divested of their

property rights.” Ibid.

8

The panel acknowledged that “the equitable dis-

tribution” from the Committee “may be zero,” but it

“is not zero in every year’ (Pet. App. 21a)—at least,

not for those who participate year after year. Even

when it is, that is only because “it just so happens

that in those years” the Committee’s “gross proceeds

are not greater than [its] operating expenses.” Jbid.

In any event, the taken raisins “continue to work to

the Hornes’ benefit” because USDA uses them “to

stabilize market conditions.” Pet. App. 21la-22a.

REASONS FOR GRANTING THE WRIT

I. In conflict with decisions of this Court and

other circuits, the Ninth Circuit wrongly

limited Loretto to real property.

Where the government effects “a permanent phys-

ical occupation of property,” this Court’s “cases uni-

formly have found a taking.” Loretto, 458 U.S. at 434.

Here, the government “effectively destroy[ed] each” of

the Hornes’ “[p]roperty rights in a physical thing’—

“the rights ‘to possess, use and dispose of” their rai-

sins. Id. at 435. But in conflict with the decisions of

this Court and other circuits, the Ninth Circuit held

that Loretto does not govern “controversies involving

personal property.” Pet. App. 20a. Review is needed.

A. The Ninth Circuit relied on inapposite

dicta and contradicted this Court’s explic-

it recognition that Loretto applies to per-

sonal property.

1. This Court has never held that Loretto’s per se

rule is limited to real property. Loretto itself certain-

ly states no such rule: As the Ninth Circuit admitted,

“the Loretto Court did not have occasion to consider

the occupation of personal property.” Pet. App. 20a.

In fact, “the actual holding of Loretto makes no men-

9

tion of a distinction between real and personal prop-

erty, nor was any rationale given in the opinion that

might justify such a distinction.” Nixon v. United

States, 978 F.2d 1269, 1284 (D.C. Cir. 1992).

To support its distinction between real and per-

sonal property, the Ninth Circuit thus relied instead

on a “later discussion of personal property in Lucas,”

where this Court observed in dictum that, “in the

case of personal property,” the government has a

“traditionally high degree of control.” Pet. App. 18a-

20a (quoting Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1027-1028 (1992)). This passage, the court rea-

soned, shows that there is “no reason to extend Loret-

to to govern controversies involving personal proper-

ty.” Pet. App. 20a. The court below was mistaken.

First, Lucas did not involve a “physical invasion”

of property (505 U.S. at 1015)—the type of taking at

issue here and in Loretto. USDA wishes to physically

take possession of the Hornes’ raisins. Lucas, by con-

trast, dealt with the distinct situation “where regula-

tion denies all economically beneficial or productive

use of land.” Jbid. The Marketing Order does not

merely diminish the value of the Hornes’ property, or

foreclose certain uses thereof. Rather, the govern-

ment has outright taken title to that property for a

public use while refusing to pay for it.

Put simply, regulatory-taking rules are irrelevant.

The panel's treatment.of a “regulatory taking” case

like Lucas as “controlling” in a “case[] involving phys-

ical takings” ignored a “longstanding distinction” be-

tween the two and was “inappropriate.” Tahoe-Sierra

Preservation Council v. Tahoe Reg’ Planning Agency,

535 U.S. 302, 323-324 (2002) (internal quotation

marks omitted); Pet. 25-26.

10

Second, this Court has already recognized that

Loretto does apply to personal property. A decade af-

ter Lucas, the Court analyzed the government’s

forced “transfer of the interest” in lawyers’ trust ac-

counts—personal property—under the “per se ap-

proach,” finding that it was “akin to the occupation”

of property “in Loretto.” Brown v. Legal Found. of

Wash., 538 U.S. 216, 235 (2003) (citing Phillips v.

Wash. Legal Found., 524 U.S. 156, 172 (1998)).

By ignoring and contradicting Brown, the Ninth

Circuit parted company with six other circuits (see

infra at 11-12) and rendered a highly destabilizing

decision. If intangible and fungible property like

earned interest on a trust fund is subject to Loretto’s

categorical rule, then surely “physical thing[s]” like

raisins—which can literally be “possess[ed], use[d]

and dispose[d] of’ —fall under its protection. Loretto,

458 U.S. at 435 (internal quotation marks omitted).

Indeed, such “physical appropriations * * * represent

a greater affront to individual property rights.” Ta-

hoe-Sierra, 535 U.S. at 324 (emphasis added).

2. Remarkably, not only did the Ninth Circuit ig-

nore this Court’s logic in Brown, it quoted its own

contrary reasoning from the same case: “[tjhe per se

analysis has not typically been employed outside the

context of real property.” Pet. App. 20a (quoting

Wash. Legal Found. v. Legal Found. of Wash., 271

F.3d 835, 854 (9th Cir. 2001) (“WLF”) (en banc), affd

sub nom., Brown, 538 U.S. 216). The panel neglected

that, although this Court affirmed the judgment in

Brown, it rejected the Ninth Circuit’s takings analy-

sis. This Court “agree[d]” with “the dissenters,” who

“likened” the government’s confiscation of earned in-

terest “to the kind of ‘per se’ taking that occurred in

Loretto.” Brown, 538 U.S. at 235 (emphasis added).

11

As those dissenters recognized, the “argu[ment]

that the per se approach of Loretto and similar cases

applies primarily to takings of real property * * * is

not true.” 271 F.3d at 866 (Kozinski, J., dissenting).

After all, “if the city wants to display your Renoir in

its museum, it can’t just take it and compensate you

with the joy of viewing it during visiting hours.” Ibid.

For raisin farmers in California, the deal is even

worse. If the Ninth Circuit is right, the government

can take your Renoir, send it back to France, and, af-

ter pocketing the change to cover its own budget, give

you absolutely nothing.

That dangerous reasoning is an affront to this

Court’s precedent, to the decisions of six other cir-

cuits, and to the ideals of private property on which

the nation was founded. Review is warranted.

B. Review is needed to resolve the circuit

split on this recurring issue—a split that

includes the Federal Circuit, which hears

more takings cases than any other circuit.

As petitioners show (Pet. 18-19), the Ninth Cir-

cuit’s erroneous holding that government confiscation

of personal property is never subject to Loretto’s per

se rule split with the Fifth, Sixth, Seventh, Tenth,

and D.C. Circuits. Pet. 18-19.3 Critically, however,

3 See Nixon, 978 F.2d at 1284 (rejecting the “argu[ment] that the

per se takings doctrine applies only to * ** real property” as

“failfing] for want of authority or logic”); Warner/Elektra/ Atl.

Corp. v. Cnty. of DuPage, 991 F.2d 1280, 1285 (7th Cir. 1993)

(‘American governments” “have to pay just compensation” when

they “requisition personal property”); Anderson v. Spear, 356

F.3d 651, 668-669 (6th Cir. 2004) (state’s “disgorgement” of

campaign funds “constitutes a per se taking”); Porter v. United

States, 473 F.2d 1329, 1333 (5th Cir. 1973) (per se test applied

to “commonplace items of personal property”); United States v.

12

that holding also split with the Federal Circuit, which

has exclusive jurisdiction over appeals from the Court

of Claims and “hears more takings cases than any

other federal court.” Tedra Fox, Lake Tahoe’s Tempo-

rary Development Moratorium, 28 Ecology L.Q. 399,

426 (2001).

The Federal Circuit has “rejected the * * * conten-

tion that a ‘per se’ takings analysis is never applica-

ble when personal property is at issue.” Rose Acre

Farms, Inc. v. United States, 373 F.3d 1177, 1196 &

n.17 (Fed. Cir. 2004). As that court has recognized,

government confiscation of personal property is “akin

to the ‘per se’ taking that occurred in Loretto.” Id. at

1196 n.17 (citing Brown, 538 U.S. at 235).

The Ninth Circuit held the exact opposite, yet

failed even to mention, much less distinguish, any of

these contrary authorities. And while other circuits

have recognized the proper scope of the Takings

Clause, that is cold comfort to farmers in the Ninth

Circuit—by far the nation’s largest jurisdiction—who

will remain at the mercy of government cartels. This

Court alone can protect them.

C. There is no principled distinction be-

tween government confiscation of real

and personal property.

It is no wonder that—unlike the Ninth Circuit—

most courts have decided that the Takings Clause

applies to confiscations of land and personal property

alike. Economically, distinguishing between real and

personal property makes no sense. Regardless of the

propertys uniqueness or “sentimental value,” only

Corbin, 423 F.2d 821, 826 (10th Cir. 1970) (per se test applied

where “the Government took possession of * * * fish”).

13

the “market value” of taken property is compensable.

WLF, 271 F.3d at 866 (Kozinski, J., dissenting). “For

purposes of the Takings Clause,” therefore, both “real

and personal property are reduced to their cash

equivalents.” Ibid.

That value, moreover, is measured exactly the

same way for real property as it is for personal prop-

erty. “[T]en acres of undeveloped land in rural Maine

is not as valuable as ten acres of undeveloped land in

midtown Manhattan,” because “people are willing to

pay a higher price for access to Manhattan.” Philip

Morris, Inc. v. Reilly, 312 F.3d 24, 51 (1st Cir. 2002)

(Selya, J., concurring). If land itself had some special

significance, “these tracts of equal size and topo-

graphical characteristics [w]ould be worth the same.”

Ibid. But no one pretends that they are, or that land

is any less commercialized or fungible than any other

property. “Limiting per se takings analysis to cases

involving real property is” thus “a crude boundary

with no compelling basis” in economics or “the law.”

Ibid.

Unfortunately, the Ninth Circuit’s unprecedented

view of the Takings Clause “will doubtless be greeted

with a rousing cheer by government officials who will

eagerly” seize personal property—including “bank ac-

counts and other places where money is kept”—all

while easily “justifying it with some sort of ‘ad hoc’

analysis.” WLF, 271 F.3d at 866 (Kozinski, J., dis-

senting). Review is urftntly needed.

14

II. The Ninth Circuit’s approach would en-

courage the government to engage in pro-

cedural gamesmanship to avoid Loretto’s

per se takings rule.

Apart from its artificial distinction between real

and personal property, the Ninth Circuit refused to

apply Loretto because “the Hornes retain the right to

the proceeds from” the Committee’s disposition of the

raisins, so their “rights with respect to the reserved

raisins are not extinguished.” Pet. App. 2la. True,

“the equitable distribution may be zero,” but that is

only because “it just so happens that in those years”

the Committee has no net revenue. Ibid. Thus, the

Ninth Circuit held, “the Hornes did not lose all eco-

nomically valuable use of’ their raisins, and Loretto

does not apply. Pet. App. 20a. Instead, because the

Hornes retained some “residual value after the regu-

lation’s application,” the court applied “the ad hoc

framework” of Penn Central Transportation Co. v.

City of New York, 438 U.S. 104 (1978). Pet. App. 22a

n.17, 16a.

Permitting the decision below to stand would have

negative consequences for all types of property rights.

The Ninth Circuit's rationale extends to confiscations

of both personal and real property. It would allow

the government to avoid Loretto simply by giving in-

adequate—or purely theoretical—compensation to

those whose property is taken. Just as problematic,

the decision below counts the claimed benefits that

purportedly flow from the government’s use of the

taken property as an adequate contingent interest.

That cannot be the law. If it were, it would under-

mine core property rights and lead to the vast majori-

ty of takings being analyzed only under Penn Cen-

tral’s highly deferential balancing test.

15

A. Under the Ninth Circuit’s rule, the gov-

ernment could manipulate the standard

of review by offering an illusory contin-

gent interest.

According to the Ninth Circuit, the government

may avoid paying just compensation simply by giving

property owners some contingent interest in their

taken property. Under its decision, the per se takings

rule would collapse; it would apply only when a par-

ticularly uncreative government body forgets to pro-

vide the property owner a meaningless remainder in-

terest. After all, every regulation could easily be, in

the Ninth Circuit’s words, “carefully crafted to ensure

the [property owners] are not completely divested of

their property rights”—especially if it is quite alright

that “the equitable distribution” from the interest

“may be zero.” Pet. App. 18a, 21a.

The dangers of this Kafkaesque rule extend to all

types of property. The Ninth Circuit considered its

imaginary contingent interest rationale for avoiding

Loretto “independent” from its mistaken distinction

between real and personal property. Pet. App. 17a.

Thus, a government seeking to build a new highway

through private property might avoid the per se rule

by leaving the property owners a contingent interest

in highway funds—just as the Post Office, desiring to

seize vehicles for mail delivery, might avoid that rule

by leaving the vehicles’ owners a contingent interest

in mail-related revenvs. And since the government

can decide the scope of the contingent interest, there

is every reason to expect that the interest will, as the

Ninth Circuit says, “just so happenf[]” to be worthless.

Pet. App. 21a.

16

Were the Ninth Circuit’s destructive rule correct,

this Court’s past takings cases should have come out

the other way. The seizure of coal mines in United

States v. Pewee Coal Co. would not have required the

government “to pay just compensation,” had it simply

reserved to the mine’s former owner a theoretical in-

terest in the mine’s production. 341 U.S. 114, 117

(1951) (plurality). And the disruptive flights directly

over a home and farm in United States v. Causby

could have been “balanced” into a non-compensable

taking if only the government had offered a token

portion of airport net revenues to the homeowner.

328 U.S. 256, 265 (1946). In short, the Ninth Cir-

cuit’s approach would, apart from the rarest example

of a government forgetting to reserve a parchment

interest, eviscerate the per se takings rules.

B. The Ninth Circuit’s decision permits the

government to avoid the per se rule mere-

ly by characterizing diffuse public bene-

fits as “contingent interests.”

Permitting governments to manipulate the stand-

ard of review by leaving the property owner a mean-

ingless contingent interest is bad enough. But the

Ninth Circuit went further. By its lights, Loretto’s

per se rule does not apply because “even in years in

which producers receive no equitable distribution,”

the Hornes’ interest “funds the administration of an

industry committee” that allegedly “ensures the re-

served raisins continue to work to the Hornes’ benefit

after they are diverted to the” Committee. Pet. App.

2la-22a. The Committee uses the funds from the

Hornes’ property to “represent[] raisin producers” and

supposedly “stabilize the field price of raisins.” Pet.

17

App. 2la.4 In other words, because the government

knows how to use raisins better than the Hornes do

(if only they understood!), the Hornes have a continu-

ing contingent interest sufficient to avoid the per se

rule. Once again, this collectivist view of property is

foreign to the Fifth Amendment.

It is no exaggeration to say that, if this view be-

came law, the following scheme would be judged, not

under Loretto, but only under Penn Centrafls far

weaker balancing test: The government forms a

Land Administrative Committee, which has the pow-

er to take 50 percent of all real property and direct its

use. The (former) property owners must keep the

land “for the account” of the Committee. The owners

receive no compensation. Instead, the government

puts the land to a “better” use and provides, say, low-

er taxes, or some other diffuse public benefit to the

owners (accepted as true in court on the government’s

say-so). Under the Ninth Circuit's view, this is not a

per se taking.

That cannot be right. As the Hornes put it, farm-

ers may not lawfully be required to “relinquish own-

ership of [their] crop”—they “put forth the money and

effort to grow it, not the Raisin Administrative Com-

mittee. This is America, not a communist state.”

April 23, 2002 Letter from the Hornes to the Secre-

tary of Agriculture and the Raisin Admiuistrative

Committee (Pet. App. 129a-130a).

Of course, one need not collectivize half the pri-

vate property in America to see the flaws of the Ninth

* All these “benefits” with “no federal funding,” says the Ninth

Circuit (Pet. App. 6a)—as if this scheme were more constitution-

al because it runs on confiscated property rather than taxes.

18

Circuit's approach. Take Loretto itself. This Court

found a per se taking because there was “a perma-

nent physical occupation of property.” Loretto, 458

U.S. at 441. But if the Ninth Circuit were right, the

government could easily have manipulated the appli-

cable standard, avoiding the per se rule. All it need-

ed to do was tell the Court that, even if the property

owners were too obtuse to realize it, they “benefited”

from the government taking their property to install

cable by the improvement of the nationwide commu-

nications system, the resulting increase in education-

al and entertainment programming, and ultimately a

richer cultural milieu. Thus, the “disposition” of the

owners’ property “inure[d] to [their] benefit.” Pet.

App. 22a.

Indeed, such arguments could be made for any

taking. For instance, “even the family that gets boot-

ed from its home to make room for a freeway will get

the benefit of a much faster commute from the park

bench whence it must take up residence.” WLF, 271

F.3d at 866 (Kozinski, J., dissenting). “In a complex

world, a property owner will always get some benefit,

real or theoretical, from a taking of his property.”

Ibid.

In fact, such an argument was made in Loretto—

and rejected. As the Court explained, even if the tak-

ing “serve[d] the legitimate public purpose of ‘rapid

development of and maximum penetration by a

means of communication which has important educa-

tional and community aspects,” that “is a separate

question” from whether a taking occurred. Loretto,

458 U.S. at 425. “[A] permanent physical occupation

authorized by government is a taking without regard

to the public interests that it may serve.” Id. at 426.

19

If the ruling below is right, then Loretto is wrong.

Indeed, many of this Court’s taking cases must be

wrong. “[T]he physical taking of any property by the

government * * * is a compensable taking, even if the

property owner gets an offsetting—or even a net—

benefit.” WLF, 271 F.3d at 866 (Kozinski, J., dissent-

ing). As Justice Holmes put it long ago: “[A] strong

public desire to improve the public condition is not

enough to warrant achieving the desire by a shorter

cut than the constitutional way of paying for the

change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 416

(1922).

C. Evisceration of the per se takings rule

would undermine property ownership,

autonomy, and reliance interests.

1. By making it easy for governments to avoid the

per se takings rule, the decision below would under-

mine the foundational values of American property

law. The Fifth Amendment embodies the principle

that property rights are central to a free people and a

just government. Property cannot be taken without

“due process”; and when it is taken, the government

must pay “just compensation.” U.S. Const. amend. V.

These guarantees reflect the many values inher-

ent in private property. They promote individual

achievement, privacy, and autonomy from govern-

ment intrusion. Loretto, 458 U.S. at 436 (“[P]roperty

law has long protected an owner’s expectation that he

will be relatively undisturbed at least in the posses-

sion of his property.”). They also protect settled ex-

pectations and reliance interests. Moreover, they fos-

ter equal treatment under the law by barring the

government “from forcing some people alone to bear

public burdens which, in all fairness and justice,

20

should be borne by the public as a whole.” Armstrong

v. United States, 364 U.S. 40, 49 (1960). But under

the Ninth Circuit’s decision, most takings would be

assessed only under the malleable Penn Central

standard. Applying that standard writ large would

provide scant protection to core property rights.

As this Court has recognized, “[t]he traditional

rule” embodied by Loretto “avoids otherwise difficult

line-drawing problems.” Loretto, 458 U.S. at 436.

Since Penn Central, the Court has expressed discon-

tent with that decision’s “essentially ad hoc, factual

inquir[y].” Koontz v. St. Johns River Water Mgmt.

Dist., 133 S. Ct. 2586, 2600 (2013) (quoting Penn Cen-

tral, 438 U.S. at 124). In Koontz, the Court declined

to apply, “much less extend that ‘already difficult and

uncertain rule” to a monetary exaction. Ibid. (quot-

ing E. Enters. v. Apfel, 524 U.S. 498, 542 (1998)

(Kennedy, J., concurring in the judgment and dis-

senting in part)). Indeed, the question of when a tak-

ing occurs under Penn Central is “among the most lit-

igated and perplexing in current law.” E. Enters., 524

U.S. at 542 (Kennedy, J.).

2. The central weakness in Penn Centrals three-

factor balancing test is that it is readily susceptible to

manipulation. Whether a taking occurs depends on a

balancing of: (1) the regulation’s “economic impact”

on the property owner; (2) “the extent to which the

regulation has interfered with distinct investment-

backed expectations”; and (3) “the character of the

governmental action.” 438 U.S. at 124. Those factors

are incapable of consistent application—and should

not be extended beyond regulatory takings, to actual

physical takings.

21

The first factor examines the economic impact on

the property owner. Which way this factor points de-

pends on how the impact is characterized. A court

sympathetic to a taking can easily invoke the “bundle

of rights” concept and frame the taking as one that

removes only a couple twigs from the bundle—as the

Ninth Circuit did here. Pet. App. 18a, 20a; see Eric

R. Claeys, The Penn Central Test and Tensions in

Liberal Property Theory, 30 Harv. Envtl. L. Rev. 339,

357 (2006). By contrast, courts less sympathetic to

the government can “construe[] the owners’ interest

much more broadly,” often by characterizing the right

taken as one of the bundle’s more significant sticks.

Id. at 361.

The second factor focuses on “investment-backed

expectations.” But this phrase obscures more than it

illuminates. As Professor Richard Epstein has ob-

served, “we should be deeply suspicious of the phrase

‘investment-backed expectations’ because it is not

possible to identify even the paradigmatic case of its

use.” Richard A. Epstein, Lucas v. South Carolina

Coastal Council: A Tangled Web of Expectations, 45

Stan. L. Rev. 1369, 1370 (1993). If the phrase is sup-

posed “to convey the idea that property is protected

only where it has been acquired by purchase or labor,

then it is clearly inaccurate”: “The government can-

not take property from a donee anymore than it can

take it from a buyer.” Jbid. Of course, this factor can

swing either way depending on whether the court

chooses to frame the property interest in commercial

terms.

The third factor, the character of the government

action, is likewise unpredictable and easily manipu-

lated. If a court characterizes the government action

“by focusing on the invasiveness of the regulation,”

22

this factor will point toward a taking. Claeys, supra,

at 357. But if the court “tak[es] at face value the

purposes for which the government professed to act”

and gives these purposes “close to rational-basis def-

erence,” this factor will point the other way. Ibid.

“Whether one or the other of the competing charac-

terizations will come to one’s lips in a particular case

depends primarily upon one’s evaluation of the worth

of competing uses of real estate.” Lucas, 505 U.S. at

1025.

3. Penn Centrals malleability erodes the values

served by the protection of private property, creating

uncertainty at the public’s expense. Citizens “will not

be able to make informed choices” about their proper-

ty if the Court does not apply “clear standards to de-

termine when compensation will be paid.” Susan

Rose-Ackerman, Against Ad Hocery: A Comment on

Michelman, 88 Colum. L. Rev. 1697, 1700 (1988). Be-

cause the Takings Clause “is an attempt to reconcile

an unpredictable, democratically responsible polity

with the existence of a capitalist economy based on

private property and individual initiative,” ad hoc

takings rules “introduce[] an element of uncertainty

into private investment decisions that could make the

coexistence of democracy and private property more,

rather than less, difficult.” Jd. at 1701-1702.

Further, unpredictable standards tend to destroy

“the appearance of equal treatment.” Antonin Scalia,

The Rule of Law As A Law of Rules, 56 U. Chi. L.

Rev. 1175, 1178 (1989). Because Penn Central, “with

its lack of objective criteria, does not impart

knowledge of the legal rights and obligations of either

property owners or public officials,” its application

has “result[ed] in protracted litigation and arbitrary

outcomes.” Steven J. Eagle, The Four-Factor Penn

23

Central Regulatory Takings Test, 118 Penn St. L.

Rev. 601, 605 (2014).

The per se framework produces fairer and more

predictable results than Penn Central, and it should

be generally favored by the law. Yet, under the deci-

sion below, the per se rule would rarely apply.

Whenever the government offered some contingent

interest in the taken property—even if that interest

was worthless or had value only in the government’s

eyes—there would never be a per se taking. Instead,

Penn Central would apply, permitting property rights

of all sorts to be “balanced” away. To preserve the

core protection of the Takings Clause, the Ninth Cir-

cuit’s decision must be reviewed and reversed.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

WILLIAM P. FERRANTI STEFFEN N. JOHNSON

Winston & Strawn LLP Counsel of Record

35 W. Wacker Drive EIMERIC REIG-PLESSIS

Chicago, IL 60601 CHRISTOPHER E. MILLS

(312) 558-5600 Winston & Strawn LLP

1700 K Street, N.W.

Washington, DC 20006

(202) 282-5000

OCTOBER 2014 sjohnson@winston.com

Counsel for Amici Curiae

ILYA SHAPIRO

Cato Institute

1000 Mass. Ave.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

Counsel for Cato

Institute

KAREN R. HARNED

ELIZABETH MILITO

NFIB Small Business

Legal Center

1201 F St., NW, Ste. 200

Washington, DC 20004

(202) 406-4443

elizabeth. milito@nfib.org

Counsel for National

Federation of

Independent Business

MANUEL S. KLAUSNER

Law Offices of Manuel

S. Klausner, P.C.

One Bunker Hill Bidg.

601 West Fifth St.

Los Angeles, CA 90071

(213) 617-0414

mklausner@klausnerinc.com

Counsel for Reason

Foundation

24

JOHN C. EASTMAN

Center for Constitutional Ju-

risprudence

c/o Chapman University

School of Law

One University Dr.

Orange, CA 92886

(714) 628-2500

jeastman@chapman.edu

Counsel for Center for

Constitutional

Jurisprudence

Scott G. BULLOCK

Institute for Justice

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

SBullock@ij.org

Counsel for Institute for

Justice

SHANNON L. GOESSLING

Southeastern Legal

Foundation

2255 Sewell Mill Rd.

Suite 320

Marietta, GA 30062

(770) 977-2131

shannon @southeasternlegal.org

Counsel for Southeastern

Legal Foundation

APPENDIX

APPENDIX A: LIST OF AMICI CURIAE

The Cato Institute was established in 1977 as a

nonpartisan public-policy research foundation dedi-

cated to advancing the principles of individual liber-

ty, free markets, and limited government. Cato’s

Center for Constitutional Studies was established in

1989 to help restore the principles of limited constitu-

tional government that are the foundation of liberty.

Toward those ends, Cato publishes books and studies,

conducts conferences, publishes the annual Cato Su-

preme Court Review, and files amicus briefs, includ-

ing in various cases concerning property rights. This

case is of central concern to Cato because it impli-

cates the safeguards the Constitution provides for the

protection of property rights against wrongful tak-

ings.

The National Federation of Independent Business

(NFIB) is the nation’s leading small business associa-

tion, representing members in Washington, D.C., and

all 50 state capitals. Founded in 1943 as a nonprofit,

nonpartisan organization, NFIB’s mission is to pro-

mote and protect the right of its members to own, op-

erate, and grow their businesses. NFIB represents

about 350,000 member businesses nationwide, and its

membership spans the spectrum of business opera-

tions, ranging from sole proprietor enterprises to

firms with hundreds of employees. While there is no

standard definition of a “small business,” the typical

NFIB member employs“10 people and reports gross

sales of about $500,000 a year. The NFIB member-

ship is a reflection of American small business.

The National Federation of Independent Business

Small Business Legal Center (NFIB Legal Center) is

a nonprofit, public interest law firm established to

2a

provide legal resources and be the voice for small

businesses in the nation’s courts on issues of public

interest affecting small businesses. To fulfill its role

as the voice for small business, the NFIB Legal Cen-

ter frequently files amicus briefs in cases that will

impact small businesses.

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

the mission of which is to restore the principles of the

American Founding to their rightful and preeminent

authority in our national life, including the proposi-

tion expressed in the Fifth Amendment that private

property can be taken only for public use, and then

only upon payment of just compensation. In addition

to providing counsel for parties at all levels of state

and federal courts, the Center has participated as

amicus curiae before this Court in several cases of

constitutional significance, including Kelo v. City of

New London, Connecticut, 545 U.S. 469 (2005), and

Rapanos v. United States, 547 U.S. 715 (2006).

The Institute for Justice is a nonprofit, public in-

terest law center committed to defending the essen-

tial foundations of a free society through securing

greater protection for individual liberty and restoring

constitutional limits on the power of government.

Central to the mission of the Institute is strengthen-

ing the ability of individuals to control and transfer

property and demonstrating that property rights are

inextricably connected to other civil rights.

The Reason Foundation is a national, nonparti-

san, and nonprofit public policy think tank, founded

in 1978. Reason’s mission is to advance a free society

by developing, applying, and promoting libertarian

principles and policies—including free markets, indi-

3a

vidual liberty, and the rule of law. Reason supports

dynamic market-based public policies that allow and

encourage individuals and voluntary institutions to

flourish. Reason advances its mission by publishing

Reason magazine, as well as commentary on its web-

sites, www.reason.com and www.reason.tu, and by is-

suing policy research reports. To further Reason’s

commitment to “Free Minds and Free Markets,” Rea-

son selectively participates as amicus curiae in cases

raising significant constitutional issues.

Southeastern Legal Foundation (SLF), founded in

1976, is a national non-profit, public interest law firm

and policy center that promotes the public interest in

the proper construction and enforcement of the laws

and Constitution of the “Jnited States in the courts of

law and through publi discourse. SLF advocates

constitutional individual liberties, private property

rights, limited government, and the free enterprise

system in its litigation cases and amicus participa-

tion in state and federal courts.