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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0347%3A05. Public record. Not legal advice.