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

No. 14-275

Supreme Court of the Anited States

MARVIN D. HORNE, ET AL.,

Petitioners,

Vv.

UNITED STATES DEPARTMENT OF AGRICULTURE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE RUTHERFORD INSTITUTE,

AMICUS CURIAE IN SUPPORT OF

THE PETITIONERS

John W. Whitehead

Counsel of Record

Douglas R. McKusick

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

923 Gardens Boulevard

Charlottesville, VA 22901

(434) 978-3888

Counest wot Amicus Curaie

~~ LANTAGNE LEGAL PRINTING | Pee.

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0493 ue

QUESTIONS PRESENTED

(1) Whether the government’s “categorical duty”

under the Fifth Amendment to pay just

compensation when it “physically takes possession of

an interest 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

categorical 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.

(3) Whether a governmental mandate to

relinquish specific, identifiable property as a

“condition” on permission to engage in commerce

effects a per se taking.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED.....................-----0000ese000+++ i

TABLE OF AUTHORITIES .....................22-:cccceeeeeeees ili

INTEREST OF AMICUS CURIAE..............22..0020000++ 1

SUMMARY OF THE ARGUMENT ......................... 1

I crtretrccnscnrstsnesessenesestnememninnents 2

I. The History of the Fifth Amendment

Demonstrates that the Takings Clause Should be

Applied to Personal, as Well as Real, Property. ..... 2

Il. There is No Principled Reason to Limit the

Takings Clause to Real Property. ............................ 6

Ill. Petitioners Are Entitled to Just

EE a 9

GSES csnencevecescccvensnsnscssesssseqsacnsssenessmnensetten 10

TABLE OF AUTHORITIES

Cases

Arkansas Game & Fish Comm’n v. United

A OEE i

Armstrong v. United States, 364 U.S. 40 (1960)...... 2

Boston Chamber of Commerce v. Boston, 217

Se I sis nett ciannieeieinciaaeerpcinnimnidsbimabaninnenaiiaginied 9

Brown v. Legal Found. Of Wash., 538 U.S. 216

STII iiccsisieitetdMbcanenhiaineipiniasibaeiginddhinaininngaieaiatagenieiuiniandinebdeiuiis 7

Chicago, Burlington & Quincy R.R. v. Chicago,

NN I i rci ll tnericipanisneeindgehibiaineaian 4

First English Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987).................cccccceeceeeeees 9

Kirby Forest Indus., Inc. v. United States, 467

TIL Ui IIIT iss indincccicnddeniniadenednetatnbiebeiialaseibateiniannanis 9

Lucas v. S.C. Coastal Council, 505 U.S. 1003

ST istetcienitcinbtieteiaseeeltmeneiat le eteteeeiteahtaeiaiiiaeaian 9

Nixon v. United States, 978 F.2d 1269 (D.C. Cir.

SST sshencecheleniesentiinciieesel ideale ti iamiiiinieaiaeaii 7

Respublica v. Sparhawk, 1 Dall. 357 (Pa. 1788).....3

Ruckleshaus v. Mon3anto Co., 467 U.S. 986

ERT AE ESSN ere eee nee nee Maer eee 7

Safford Uniform School District No. 1 v.

Redding, 557 U.S. 364 (2009) ............c0.sseseeseesee0e

iv

Schneider v. Cal. Dep’t of Corr., 151 F.3d 1:94

ITIL: SIUIIED cnnncinnensandenndedsessnnsstadedednenstnmesenemmnianes 7

Snyder v. Phelps, 131 S. Ct. 1207 (2011)................. 1

United States v. General Motors Corp., 323 U.S.

IT sincnipnnindinivesicinsininpestitadttaianianitninannniniandebinanioninn 7

United States v. Russell, 80 U.S. 623 (1871)........... 6

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

ee Be rittnkichincetnescnmenseciinentanninteneien 7

Constitutional Provisions

a a—87F=E——E eee passim

Other Authorities

1 HENRY ST. GEORGE TUCKER, BLACKSTONE’S

COMMENTARIES (The Lawbook Exchange, Inc.

a here la aaa 5

1 WILLIAM BLACKSTONE, COMMENTARIES ................ 6

3 J. Srory, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES

(Cambridge, Mass. 1833) ....................cccccceeeeeeeees 10

BLACK’S LAW DICTIONARY (6th ed. 1990).................. 8

Eduardo M. Pefialver, Is Land Special? The

Unjustified Preference for Landownership in

Regulatory Takings Law, 31 EcoLocy L.Q.

ERIS REE ECCS eee 5, 6, 8,9

ERWIN CHEMERINSKY, CONSTITUTIONAL LAW

PRINCIPLES AND POLICIES (2d ed. 2002)................ 2

Jed Rubenfeld, Usings, 102 YALE L.J. 1077

John Jay, A Hint to the Legislature of the State

of New York (1778), reprinted in 5 THE

FOUNDERS’ CONSTITUTION (Philip B. Kurland

& Ralph Lerner eds., 1987)....................cccceeceeeeeees 4

Property, Nat’ Gazette, Mar. 27, 1792, in 14 J.

MADISON, THE PAPERS OF JAMES MADISON (R.

Rutland & T. Mason eds. 1983)...........................- 5

STEVEN J. EAGLE, REGULATORY TAKINGS (2d ed.

EEE er RIE ee ene Eee ee er ae eee 8

William M. Treanor, The Origins and Original

Significance of the Just Compensation Clause

of the Fifth Amendment, 94 YALE L.J. 694,

(1985) ............ pinehiancidtnaneadapueininnsimninieinmmentinidnniee 4

Rules

SEY EI ith MIE iccenerneneaninndincnstnennienninnensebpenenerinmanenn 1

Treatises

THOMPSON ON REAL PROPERTY § 14.03 (David A.

Thomas ed., Supp. 1999)..................ccscccssceseceees 8,9

INTEREST OF AMICUS CURIAE!

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered

in Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute

specializes in providing legal representation without

charge to individuals whose civil liberties are

threatened or infringed and in educating the public

about constitutional and human rights issues.

Attorneys affiliated with the Institute have filed

amicus curiae briefs in this Court on numerous

occasions over the Institute’s 30-year history,

including Snyder v. Phelps, 131 S. Ct. 1207 (2011)?2,

and Safford Uniform School District No. 1 v.

Redding, 557 U.S. 364 (2009). One of the purposes

of the Institute is to advance the preservation of the

most basic freedoms our nation affords its citizens —

in this case, the right to be free from uncompensated

deprivations of personal property.

SUMMARY OF THE ARGUMENT

Reduced to its core, the issue that confronts

this Court is simple: may this country’s citizens be

dispossessed of their private property by the

1 Pursuant to Sup. Ct. R. 37.6, amicus certifies that no

counsel for a party to this action authored any part of this

amicus curiae brief, nor did any party or counsel to any

party make any monetary contribution to fund the

preparation or submission of this brief. Counsel of record

for the parties to this action have filed letters with this

Court consenting to the filing of amicus curiae briefs.

2 See Snyder, 131 S. Ct. at 1213 (citing Brief for The

Rutherford Institute as Amicus Curiae).

government without just (or, indeed, any)

compensation?

Here, the basis for the taking of Petitioners’

personal property without just compensation is a

faulty premise that an individual’s personal property

is less sacrosanct than real property and is not

subject to the protections of the Fifth Amendment’s

Takings Clause. Because there is no historical or

principled basis for such a distinction between real

and personal property, however, the Court should

hold that both types of property are protected

equally under the Takings Clause. To fail to do so

would eviscerate the right of our nation’s citizens to

be secure in their possessions.

ARGUMENT

I. The History of the Fifth

Amendment Demonstrates that the

Takings Clause Should be Applied

to Personal, as Well as _ Real,

Property.

In pertinent part, the Fifth Amendment

provides that “[nJor shall private property be taken

for public use, without just compensation.” US.

CONST., amend. V. A principal purpose of the

Takings Clause is “to bar the Government from

forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by

the public as a whole.” Armstrong v. United States,

364 U.S. 40, 49 (1960). Accordingly, it is well-

established that “[t]he takings clause is the most

important protection of property rights in the

Constitution.” ERWIN CHEMERINSKY,

CONSTITUTIONAL LAW PRINCIPLES AND POLICIES 616

(2d ed. 2002).

Despite the importance of property rights in

the Anglo-American legal tradition, uncompensated

takings were frequent in the revolutionary era.

Significantly, these takings were not just of land, but

also included takings of personal property for

military use. See, e.g., Respublica v. Sparhawk, 1

Dall. 357 (Pa. 1788) (denying compensation for

seizure of goods). The following account of John Jay

illustrates the resentment against government

appropriation of private property to supply the army

during the Revolutionary War, and demonstrates the

Founders’ commitment to the protection of personal

property:

I . take the Liberty of calling the

Attention of my Countrymen to a

Subject, which however important

seems to have passed without due

Notice; I mean the Practice of

impressing Horses, Teems, and

Carriages by the military .. without

any Authority from the Law of the

Land.

as * .

... The Time may come when Law

and Justice will again pervade the

State, and many who now severely feel

this kind of oppression, may then

bring Actions and recover Damages.

This is true Doctrine, however

questionable the Policy of declaring it

at this Time may be.

John Jay, A Hint to the Legislature of the State of

New York (1778), reprinted in 5 THE FOUNDERS’

CONSTITUTION 312, 312-13 (Philip B. Kurland &

Ralph Lerner eds., 1987).

Against a background of such abuses, the

Takings Clause was designed to protect both real

and personal property, and reflected the liberalism

of its primary author, James Madison. Along with

the rest of the Fifth Amendment, the Takings Clause

became effective on December 15, 1791, and its

significance is illustrated by the fact that it was the

first provision of the Bill of Rights to be applied to

the states. See Chicago, Burlington & Quincy R.R.

v. Chicago, 166 U.S. 226 (1897). Professor Treanor

notes that “Madison’s rationale for the Bill of Rights

suggests two reasons for his proposal of the just

compensation clause. First, the clause would

explicitly bar the uncompensated taking by the

national government of chattel and real property . .

..” William M. Treanor, The Origins and Original

Significance of the Just Compensation Clause of the

Fifth Amendment, 94 YALE L.J. 694, 710-11 (1985)

(emphasis added). Similarly, Professor Rubenfeld

argues that “the appropriation of private, and,

presumably, personal, property to supply the army

during the Revolutionary War” numbered among the

“paradigm[atic] case[s)” of governmental wrongdoing

that the Founders sought to remedy through the

Takings Clause. Jed Rubenfeld, Usings, 102 YALE

L.J. 1077, 1122-23 (1993).

Such an understanding is in harmony with

Madison’s own writings. In his essay Property,

Madison argued that the federal government had

committed to the proposition that “no land or

merchandize” “shall be taken directly even for public

use without indemnification to the owner.” Property,

Nat] Gazette, Mar. 27, 1792, in 14 J. MADISON, THE

PAPERS OF JAMES MADISON 266-67 (R. Rutland & T.

Mason eds. 1983). Likewise, Henry St. George

Tucker, writing shortly after the ratification of the

Takings Clause, stated that the purpose of the

clause was “probably intended to restrain the

arbitrary and oppressive mode of obtaining supplies

for the army, and other public uses, by Impressment,

as was too frequently practiced during the

revolutionary war, without any compensation

whatsoever.” 1 HENRY ST. GEORGE TUCKER,

BLACKSTONE’S COMMENTARIES 305-06 (The Lawbook

Exchange, Inc. 2008).

Not only does this undercut any argument

that real property is somehow more deserving of

protection under the Takings Clause, but it seems

likely that the Founders were more concerned with

the taking of personal property by troops than the

taking of real property by the government. Indeed,

as Professor Pefialver has concluded, “it seems

unlikely that the uncompensated taking of personal

property was somehow less offensive to the Framers

than the uncompensated taking of land.” Eduardo

M. Pefialver, Is Land Special? The Unjustified

Preference for Landownership in Regulatory Takings

Law, 31 ECOLOGY L.Q. 227, 249 (2004).

In this respect, the Takings Clause is in

harmony with its English antecedents, specifically

Magna Carta. As Professor Rubenfeld explains, “the

Compensation Clause is also a descendant of Magna

Carta, which provided that the King could not ‘take

grain or other chattels or any one without immediate

payment therefore in money.” Rubenfeld, Usings,

102 YALE L.J. at 1123 n.205 (citing Magna Carta ch.

28, reprinted in 1 BERNARD SCHWARTZ, THE BILL OF

RIGHTS: A DOCUMENTARY HISTORY 8, 11 (1971)).

Such an understanding chimes with the

commentaries of William Blackstone, who defined

property rights as consisting of “the free use,

enjoyment, and disposal of all his acquisitions,

without any control of diminution, save only by the

laws of the land.” 1 WILLIAM BLACKSTONE,

COMMENTARIES 134.

Put simply, therefore, “the original

understanding of the Takings Clause offers no

support for a distinction between personal property

and land in takings law.” Pefialver, Is Land

Special?, 31 ECOLOGY L.Q. at 250. As such, any

reading of the Takings Clause that allows an

individual’s personal property to be subject to

uncompensated takings is an affront to its original

understanding and purpose.

Il. There is No Principled Reason to

Limit the Takings Clause to Real

Property.

Despite the historical support that the

Takings Clause was designed to protect personal

property, courts have frequently afforded real

property far more protection than personal property.

Such decisions, however, cut against this Court’s

earliest Takings Clause precedent. In United States

v. Russell, 80 U.S. 623 (1871), the Court held that

the federal government was obliged to pay

compensation for steamships confiscated as part of

the Civil War effort. Jd. at 630 (“Beyond doubt such

an obligation raises an implied promise on the part

of the United States to reimburse the owner for the

use of the steamboats ....”). By way of further

illustration and more recently, in United States v.

General Motors Corp., 323 U.S. 373 (1945), the Court

stated that “property” as used in the Takings Clause

refers to the entire “group of rights inhering in the

citizen’s [ownership]” and was not limited to the

“vulgar and untechnical sense of the physical thing

with respect to which the citizen exercises right

recognized by law. [Instead it] . . . denote[s}) the

group of rights inhering in the citizen’s relation to

the physical thing, as the right to possess, use and

dispose of it. ... The constitutional provision is

addressed to every sort of interest the citizen may

possess.” Jd. at 378. Even more recently, the Court

has determined that forms of property other than

tangible property are protected under the Takings

Clause. See, e.g., Ruckleshaus v. Monsanto Co., 467

U.S. 986 (1984) (holding that trade secrets are

property).

Here, Petitioners’ property interest in the

raisins they sell to support themselves is at least as

great as the other forms of property that this Court

and various Courts of Appeal have held are

protected under the Takings Clause. See, e.g.,

Brown v. Legal Found. Of Wash., 538 U.S. 216

(2003) (relating to interest from IOLTA accounts);

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

U.S. 155 (1980) (relating to interest earned on an

interpleader fund); Schneider v. Cal. Dep’t of Corr.,

151 F.3d 1194 (9th Cir. 1998) (relating to interest

from inmate funds placed in trust); Nixon v. United

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

“taking” of presidential papers requires just

compensation). Consequently, the “implication the

‘personal property’ should have less protection than

land under regulatory takings doctrine flies in the

8

face of long precedent that both tangible and

intangible personalty are as subject to condemnation

as realty.” STEVEN J. EAGLE, REGULATORY TAKINGS

88 (2d ed. 2001). Professor Pefialver likewise

concludes that “the distinction finds no support in

the plain text of the Constitution. The Fifth

Amendment protects ‘private property,’ but does not

distinguish between personal property and land.”

Pefialver, Is Land Special?, 31 ECOLOGY L.Q. at 246.

Indeed, properly read, any reading of the

Takings Clause must, by definition, include the

personal property of Petitioners. The Framers could

have limited the word “property” to real property

when drafting the Fifth Amendment but did not do

so. Consequently, “[t]he term ‘property, when used

in its most comprehensive sense, will include both

real and personal property, unless restricted in its

meaning by the context.” THOMPSON ON REAL

PROPERTY § 14.03, at 184 (David A. Thomas ed.,

Supp. 1999). Such an understanding is far from

remarkable, as demonstrated by the Black’s Law

dictionary definition: “That which is peculiar or

proper to any person; that which belongs exclusively

to one.” It includes “everything which is the subject

of ownership, corporeal or incorporeal, tangible or

intangible, visible or invisible, real or personal;

everything that has an exchangeable value or which

foes to make up wealth or estate.” BLACK’S LAW

DICTIONARY 1216 (6th ed. 1990) (defining

“property”). Without any limiting adjective,

therefore, the use of the term “property” in the

Takings Clause should be read expansively to

include personal property.

Perhaps the justification for the differential

treatment of real and personal property is based on

9

outdated concepts of the significance of real

property. See, e.g., Lucas v. S.C. Coastal Council,

505 U.S. 1003, 1016 n.7 (1992) (“[T)he ‘interest in

land’ that Lucas has pleaded (a fee simple interest)

is an estate with a rich tradition of protection at

common law ... .”). Whatever the merits of this, “[i]t

is important . . . to keep in mind that [the distinction

between land and personal property is) traceable to

conditions no longer existing in England, and which

never had any existence in this country.” THOMPSON

ON REAL PROPERTY § 14.03, at 182. As such, “[tJo the

extent that this conclusion conflicts with vague

intuitions about the primacy of property in land,

those intuitions are most likely rooted in cultural

assumptions based on outmoded notions of the ways

in which most people use land.” Pefialver, Js Land

Special?, 31 ECOLOGY L.Q. at 286.

Iii. Petitioners Are Entitled to Just

Compensation.

Once it is established that the taking of

Petitioners’ personal property is fully protected

under the Takings Clause, just compensation must

follow. This Court has recognized that “[i]t is

axiomatic that the Fifth Amendment’s just

compensation provision is ‘designed to bar

Government from forcing some people alone to bear

public burdens which, in all fairness and justice,

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

English Lutheran CHurch v. County of Los Angeles,

482 U.S. 304, 318-19 (1987) (quoting Armstrong, 364

U.S. at 49). This is measured by the market value to

Petitioners at the time of the takings. Kirby Forest

Indus., Inc. v. United States, 467 U.S. 1 (1984); see

also Boston Chamber of Commerce v. Boston, 217

U.S. 189, 195 (1910) (measure of compensation is

10

“what has the owner lost, not what has the taker

gained.”) (Holmes, J.). Only by doing so can there be

“an affirmance of a great doctrine established by the

common law for the protection of private property.”

3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES 661 (Cambridge, Mass. 1833).

CONCLUSION

The history and original purpose of the

Takings Clause, as well as modern concepts and

expectations of property rights, compels the

conclusion that the clause properly extends to

Petitioners’ personal property. As such, for the

reasons set forth above, this Court should reverse

the decision of the United States Court of Appeals

for the Ninth Circuit.

Respectfully submitted,

John W. Whitehead

Counsel of Record

Douglas R. McKusick

Christopher F. Moriarty

Charlottesville, Virginia 22901

(434) 978-3888

Counsel for Amicus Curiae