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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0347%3A27

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0347%3A27. Public record. Not legal advice.