# Amicus Curiae Brief — Pappas v. City of Las Vegas Downtown Redevelopment Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 912

## Text

MOTION FILED ZN
FEB 6 - 2004 ‘7

No. 03-972

Jn The
Supreme Court of the Anited States

*

CAROL PAPPAS, JOHN H. PAPPAS, JR.,
and HARRY J. PAPPAS,

Petitioners,
v.

CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT
AGENCY, FREMONT STREET EXPERIENCE LIMITED
LIABILITY COMPANY, and FREMONT STREET
EXPERIENCE PARKING CORPORATION,

Respondents.

¢

On Petition For A Writ Of Certiorari
To The Supreme Court Of Nevada

¢

MOTION FOR LEAVE TO FILE AND
BRIEF OF ARIZONA PROPERTY OWNERS SAIED
AFKARY, MARK LAMBARD, KENNETH B. PILLOW
AND MARY ANN PILLOW AS AMICI CURIAE
IN SUPPORT OF PETITIONERS

¢

ILYA SOMIN ViET D. DINH

GEORGE MASON UNIV. (Counsel of Record)
SCHOOL OF LAW BANCROFT ASSOCIATES, PLLC

3301 N. Fairfax Drive 2121 Bancroft Place, N.W.

Arlington, VA 22201 Washington, D.C. 20008

(703) 993-8069 (202) 662-9324

February 6, 2004 Counsel for Amici

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

1

MOTION FOR LEAVE TO FILE AND
BRIEF OF ARIZONA PROPERTY OWNERS SAIED
AFKARY, MARK LAMBARD, KENNETH B. PILLOW
AND MARY ANN PILLOW AS AMICI CURIAE
IN SUPPORT OF PETITIONERS

Pursuant to Rule 37.2(b) of the Rules of this Court,
Arizona property owners Saied Afkary, Mark Lambard,
Kenneth B. Pillow, and Mary Ann Pillow respectfully move
for leave to file the attached brief as amici curiae in
support of the Petitioner.

The Petitioners have consented to the filing of this
brief. However, respondents have not responded to re-
quests for consent. Amici file this motion, as required by
Rule 37.2(b), because parties to the case have presumably
withheld consent, in order to call the Court’s attention to
legal developments and matters not already brought to its
attention by the parties.

4
7

INTERESTS OF AMICI CURIAE

Amici Saied Afkary, Mark Lambard, Kenneth B.
Pillow, and Mary Ann Pillow are property owners in
Tempe, Arizona, who resisted efforts by a private devel-
oper to acquire land to construct a seven- to ten-acre
shopping center. The developer acquired all other neces-
sary properties, but amici refused to sell their land. The
City of Tempe thereafter initiated eminent domain pro-
ceedings against amici. Amici contested the eminent
domain, alleging abuse of the taking power to advance
private interests. Discovery in those proceedings indicated
that the City had entered into a contract to transfer

amici’s land to the private developer at apparently below-
market values in return for a percentage of the profits
from the private shopping center.

While the proceedings were pending, Bailey v. Myers,
76 P.3d 898, 904 (Ariz. Ct. App. 2003) held that “when a
proposed taking for a redevelopment project will result in
private commercial ownership and operation, the Arizona
constitution requires that the anticipated public benefits
must substantially outweigh the private character of the
end use so that it may truly be said that the taking is for a
use that is ‘really public.’” Thereafter, the City agreed to a
stipulated dismissal of the eminent domain proceedings
against amici. The trial court’s award of costs and attor-
neys fees to amici relating to those proceedings is pending
appeal.

Amici Kenneth B. Pillow and Mary Ann Pillow have
testified before the Arizona legislature about their experi-
ence with abuse of the eminent domain power. Amici
continue to engage in advocacy activities to encourage
proper application of the Fifth Amendment to limit taking
of property only for public use and not to advance private
interests. All amici believe that the issue presented to the
Court by the petition for writ of certiorari is one of na-
tional importance that should be resolved by the Court.

For the foregoing reasons, amici curiae respectfully
request that they be allowed to participate in this case by
filing the attached brief.

Respectfully submitted,
ILYA SOMIN VIET D. DINH
GEORGE MASON UNIV. (Counsel of Record)
SCHOOL OF LAW BANCROFT ASSOCIATES, PLLC
3301 N. Fairfax Drive 2121 Bancroft Place, N.W.
Arlington, VA 22201 Washington, D.C. 20008
(703) 993-8069 (202) 662-9324

February 6, 2004 Counsel for Amici

QUESTIONS PRESENTED

Does the Public Use Clause of the Fifth Amendment,
which permits condemnation of property only for a
“public use,” impose any limit on governmental power
to take property to advance private interests?

Does Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229
(1984) require deference to the government’s post hoc
assertion of public use as a pretext for expropriation
of property for the benefit of private interests?

Does Berman v. Parker, 348 U.S. 26 (1954), which
authorizes condemnation to alleviate blight in slum-
like areas, license expropriation of property when nei-
ther the property nor its surrounding area is actually
blighted?

Is an effectively unlimited power to condemn private
property for private interests consistent with this
Court’s determination to protect property rights on an
equal basis with other constitutional rights?

TABLE OF CONTENTS
Page
SP MREEE OPE UEE FMI MIES 1 IOED os.cnescccvssscsssceceosvecnssocscoss i
TABLE OF AUTHORITIEG........... ci vankazelsaniavcetlieate ili
INTEREST OF AMICI CURIAGE.................ccccceeeeeees 1
PEPER NEES SCPE BEAK CASE, ....cncccrsvcvcscccsscnssesssccese 2
REASONS FOR GRANTING THE PETITION......... 2

I. The decision below misinterprets Hawaii
Hous. Auth. v. Midkiff, 467 U.S. 229 (1984),
to permit virtually unlimited government
power to condemn property for private uses
and conflicts with decisions by the Seventh

EE IE cco nicsnsdcciinctansivacinvenareeieane 5
A. The decision below would allow the tak-
ing of virtually any property.................6 6
B. The judgment below conflicts with deci-
sions by the Seventh and Ninth Circuits... 9

II. The decision below misinterprets Berman v.
Parker, 348 U.S. 26 (1954), to allow condem-
nation to alleviate “blight” even absent slum-
like conditions, and thus conflicts with the
Supreme Judicial Court of Massachusetts..... 15

IIt. The decision below is incompatible with this
Court’s Case law granting protection to con-
stitutional property rights fully equal to that
accorded other constitutional rights.............. 18

NG i rtnveriinnnrscnnuiesssncannnnininnekacessantainlamnestin 20

ili

TABLE OF AUTHORITIES
Page
CASES
99 Cents Only Stores v. Lancaster Redev. Agency,

237 F. Supp. 2d 1123 (C.D. Cal. 2001)....................... 7,14
Aaron v. Target Corp., 269 F. Supp. 2d 1162 (E.D.

Mo. 2003), rev’d on other grounds, 2004 WL

190439 (Sth Cir. Feb. 3, 2004).............c0ssssesscosesssssseees 7,14
Armendariz v. Penman, 75 F.3d 1311 (9th Cir.

IE cactinisiinerissakbvcidivepeianatedaiebeietianasiaalinamads passim
Avalonbay Cmtys., Inc. v. Town of Orange, 775 A.2d

Ee I: HII Biiconschsccsuincnddeeesncth eudeianeceummnane mn iieniin 13
Bailey v. Myers, 76 P.3d 898 (Ariz. Ct. App. 20038).............. 1
Baycol, Inc. v. Downtown Development Auth., 315

ie eR Be Ov seicendshcncciccicccatencnnaensunnacnsiiidneinans 8
Berman v. Parker, 348 U.S. 26 (1954)......... 3, 15, 16, 17, 18
Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d

102 (N.J. Super. Ct. Law Div. 1998)................ccccccsssseees 13
Chicago, Burlington & Quincy R.R. Co. v. Chicago,

SE Fi EES entetiicitnensiidiiiaamnnies 5,19
City of Cincinatti v. Vester, 281 U.S. 4389 (1930)........... 5, 20
City of Little Rock v. Raines, 411 S.W.2d 486 (Ark.

PEGE sisicanscnsnensigiuincinnsabiadapeeaiiaihesidaipatiiliamisanieiuatiib uae 8
City of Miami v. Wolfe, 150 So.2d 489 (Fla. App.

BID iscisvcsiesacnanvientuaoneaaeiiadipas sada adeimnmdioin 13
Cottonwood Christian Ctr. v. Cypress Redev. Agency,

218 F. Supp. 2d 1203 (C.D. Cal. 2002) ............scccreserseses 14

County of Wayne v. Hathcock, 671 N.W.2d 40 (Mich.
BOD isksientsnsichentieninceevetnesonsensustncioneanetaimeasmaacaniianiaan 8

TABLE OF AUTHORITIES — Continued

Page
County of Wayne v. Hathcock, 2003 WL 1950233

Cie. CO. A. Bae. BG, BDOGP iccsessievesscsessesngusviecessssensnnes 8
Daniels v. Area Plan Comm’n, 306 F.3d 445 (7th

Ce PTE nikki nentinvinsiehintiabucensianmaialihiadiomnnenadibeins passim
Denver W. Metro. Dist. v. Geudner, 786 P.2d 434

CE FR: Be encinenenstsrnciveesiicensdanemesksesmetinnbicnanens 13
Dolan v. City of Tigard, 512 U.S. 374 (1994) ..... eee 5
Earth Mgmt., Inc. v. Heard County, 283 S.E.2d 455

EG ikinevalntesascsienednncasisaseamneteipactanassainmindenaelaanteins 13
Essex Fells v. Kessler Inst., 673 A.2d 856 (N.J.

NE: CR. Fate TIN Biases tesneissenviscnsesansionisnsnevsnnenanes 13
Ga. Dep’t of Transp. v. Jasper County, 586 S.E.2d

Re Ge, titers nk ohenedanaranens 8
Greater New Orleans Broad. Ass’n v. United States,

SEE Fs 60 Nadiesinindtaemiatinineis 17
Hawii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) .. passim
Hogue v. Port of Seattle, 341 P.2d 171 (Wash. 1959).....8, 17
In re Petition of Seattle, 638 P.2d 549 (Wash. 1981)........... 8
Karesh v. City of Charleston, 247 S.E.2d 342 (S.C.

FPF sis ccindicadssusialicsimuumnitinesissbiauaimeabeinsamcaadeaiin 8

Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) 4, 18, 20
Madisonville Traction Corp. v. St. Bernard Mining

CR FES itis eee Ct sticiovatiespincsensinreciavsnttinstentinenss 5
Merrill v. City of Manchester, 499 A.2d 216 (N.H.
TIPU vstiissdcicastdsiosndicapuicec odalakipiobe ehgeneciencraniia sesamiae alae uaceaaacendiren 8

Opinion of the Justices, 126 N.E.2d- 795 (Mass.
BE “skins aicnichescoluaceaececuenctulenteuniciatiodanl daienamaaens 3, 4, 17, 18

TABLE OF AUTHORITIES — Continued

Page
Opinion of the Justices, 131 A.2d 904 (Me. 1957)............... 8
Owensboro v. McCormick, 581 S.W.2d 3 (Ky. 1979)............ 8
Pheasant Ridge Ass’n v. Town of Burlington, 506
Pe Re ke EDs BONE Pricchatidanaiacacentsnbacadaeamnainciinsin 13
Poletown Neighborhood Council v. City of Detroit,
OR Fi, re Se Ls CED eis sisiensvcnnsctssssrtinieasinveienction 8
Prestonia Area Neighborhood Ass’n v. Abramson,
Fe I Fe CR NE nietsitiscentsinnciensetanbntericrignanntmnnic 9
Redev. Auth. v. Owners, 274 A.2d 244 (Pa. Cmmw.
Pt APE e cnniccrneindesanninemionntansnaiestaacineciasatiaddahauacaaienia 13
S.W. Ill. Dev. Auth. v. Nat'l City Env., 768 N.E.2d 1
SRN. Nena NN ONTO ETE eT TE 7,12
Stone v. Powell, 428 U.S. 465 (1976).............cccccosccscssccssces 20
Thompson v. Consolidated Gas Corp., 300 U.S. 55
A SIEE D iinisasesinsanstontinschsbicailes Savsnisioa aang aediaaaaeadapbananeen 3,5
United States v. Lopez, 514 U.S. 549 (1995) .... eee 4
Wilmington Parking Auth. v. Land with Improve-
mnarete, GEL AT Bas CE, TI vicissisccncssesccessveciasisaccens 13
FEDERAL CONSTITUTIONAL PROVISIONS AND STATUTES
ee Tt MIG WF eacincccrtatcdnsiuntenesnsseneteisiicninnenndiens 2, 7,18
Wits SINE: MII, BEET © Betinsicssccoscesecsinemisinstavenceiemisninniens 5

STATE STATUTES
NEV. REV. STAT. § 279.58G(1) (2O0O3).............cccccccccccccsccsccees 11

TABLE OF AUTHORITIES -— Continued
Page
OTHER AUTHORITIES

Guido Calabresi & A. Douglas Melamed, Property
Rules, Liability Rules, and Inalienability Rules:
One View of the Cathedral, 85 Harv. L. Rev. 1089
Raich sirshan ae'ociedbaprudcbelickild itsceineatataeonisauinaisieedieaaaadeatiins 19

JAMES W. ELY, THE GUARDIAN OF EVERY OTHER
RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY

s+» RRS eta aa pee Pian oem IO PDB eT 18, 19
RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY
AND THE POWER OF EMINENT DOMAIN (1985)..............66. 19

GEORGE L. KELLING & CATHERINE L. COLES, FIXING
BROKEN WINDOWS: RESTORING ORDER AND RE-
DUCING CRIME IN OUR COMMUNITIES (1996).................6 17

RICHARD PIPES, PROPERTY AND FREEDOM (1999)............... 18

Ilya Somin, Michigan Should Alter Property Grab
Rules, Det. News, Jan 8, 2004, § A, at 11... ee 8

INTEREST OF AMICI CURIAE’

Amici Saied Afkary, Mark Lambard, Kenneth B.
Pillow, and Mary Ann Pillow are property owners in
Tempe, Arizona, who resisted efforts by a private devel-
oper to acquire land to construct a seven- to ten-acre
shopping center. The developer acquired all other neces-
sary properties, but amici refused to sell their land. The
City of Tempe thereafter initiated eminent domain pro-
ceedings against amici. Amici contested the exercise of
eminent domain, alleging abuse of the taking power to
advance private interests. Discovery in those proceedings
indicated that the City had entered into a contract to
transfer amici’s land to the private developer at appar-
ently below-market values in return for a percentage of
the profits from the private shopping center.

While the proceedings were pending, Bailey v. Myers,
76 P.3d 898, 904 (Ariz. Ct. App. 2003) held that “when a
proposed taking for a redevelopment project will result in
private commercial ownership and operation, the Arizona
constitution requires that the anticipated public benefits
must substantially outweigh the private character of the
end use so that it may truly be said that the taking is for a
use that is ‘really public.’” Thereafter, the City agreed to a
stipulated dismissal of the eminent domain proceedings
against amici. The trial court’s award of costs and attor-
neys fees to amici relating to those proceedings is pending
appeal.

* Consistent with Rule 37.6, this brief has not been authored in
whole or in part by counsel for a party. No person, other than amici or
their counsel, has made a monetary contribution to the preparation or
submission of this brief.

2

Amici Kenneth B. Pillow and Mary Ann Pillow have
testified before the Arizona legislature about their experi-
ence with abuse of the eminent domain power. Amici
continue to engage in advocacy activities to encourage
proper application of the Fifth Amendment to limit taking
of property only for public use and not to advance private
interests. All amici believe that the issue presented to the
Court by the petition for writ of certiorari is one of na-
tional importance that should be resolved by the Court.

STATEMENT OF THE CASE

- Amici adopt the statement of the case presented in the
Petition. For the Court’s convenience, amicus notes here
only the salient fact that the City of Las Vegas Downtown
Redevelopment Agency, in taking Petitioners’ property,
was acting to advance the interests of the Fremont Street
Experience Limited Liability Company (“LLC”), a private
consortium of casinos. The trial court found that the
Redevelopment Agency had “turned over all control” of the
eminent domain process to the LLC. Pet. App. at 101a.
Petitioners presented evidence that “the Agency was
acting as a front for the LLC.” Jd. at 95a.

REASONS FOR GRANTING THE PETITION

The Nevada Supreme Court misinterpreted Hawaii
Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), to permit
virtually limitless government power to condemn private
property and transfer it to other private parties. The
decision below permits government condemnation of
property where there are “downward trends in the business
community, relocation of existing businesses outside of the
community, business failures, and loss of sales or visitor
volumes.” Pet. App. at 20a. This standard guts the public
use requirement of the Fifth Amendment of any meaning
because all areas experience periodic “downward trends in

= - : :

3

the business community” and occasional “loss of sales or
visitor volumes.” Rather than reading the Public Use
Clause out of the Constitution, Midkiff reiterated the
principle that “‘one person’s property may not be taken for
the benefit of another private person without a justifying
public purpose.’” Midkiff, 467 U.S. at 241 (quoting Thomp-
son v. Consol. Gas Corp., 300 U.S. 55, 80 (1937)).

The opinion below conflicts with decisions by the
Seventh and Ninth Circuits interpreting the Public Use
Clause to impose meaningful limits on the government’s
power to take private property. See Daniels v. Area Plan
Comm'n, 306 F.3d 445, 462 (7th Cir. 2002) (striking down
condemnation for lack of a public use); Armendariz v.
Penman, 75 F.3d 1311, 1321-22 (9th Cir. 1996) (en banc)
(same). First, it misinterprets Midkiff as requiring broad
deference to the government’s condemnation decision even
though the putative public use justification, the alleviation
of “blight,” was only asserted after the fact. Armendariz
and Daniels both hold that deference is inappropriate for
such post hoc assertions. Daniels, 306 F.3d at 465; Armen-
dariz, 75 F.3d at 1321. Second, the decision below conflicts
with Armendariz’ denial of deference to pretextual asser-
tions of public use to justify condemnations intended to
benefit private interests. See id. The trial court found that
the Redevelopment Agency had “turned over all control” of
the eminent domain process to the LLC. Pet. App. at 101a.
Petitioners presented evidence that “the Agency was
acting as a front for the LLC.” Id. at 95a.

The decision below also misinterprets Berman v.
Parker, 348 U.S. 26 (1954), thereby creating a conflict with
Opinion of the Justices, 126 N.E.2d 795 (Mass. 1955). The
blighted area at issue in Berman was characterized by
“[mJiserable and disreputable housing conditions.” Ber-
man, 348 U.S. at 32. Here, the court below upheld the
taking of Petitioners’ non-blighted property simply be-
cause it was located in an area that has experienced

4

“downward trends” in economic performance or a “loss of
sales or visitor volumes.” Pet. App. at 20a. By contrast, the
Supreme Judicial Court of Massachusetts held that blight
alleviation unter Berman cannot justify condemnations in
areas where “there is no suggestion that the area is now a
slum.” Opinion of the Justices, 126 N.E.2d 795, 803 (Mass.
1955).

The decision of the Nevada Supreme Court is at odds
with this Court’s insistence that property rights under the
Takings Clause are accorded the same level of protection
as other individual rights. Unchecked power to designate
virtually any property as “blighted” and to transfer it to
other private interests cannot be reconciled with the
principle that “rights in property are basic civil rights”
that deserve protection “no less than the right to speak or
the right to travel.” Lynch v. Household Fin. Corp., 405
U.S. 538, 552 (1972).

Granting the Petition and reversing the decision
below would not affect the vast majority of condemnations,
which either take land directly for government use, or
transfer it to private parties in order to advance public
uses whose legitimacy is well-established. It would,
however, make clear that the power of eminent domain is
not a blank check governments may abuse to benefit
private interests. As this Court has demonstrated, even
very broad powers of government remain subject to consti-
tutional limits.’

* See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (holding that
Congress’ broad powers under the Commerce Clause are subject to legal
limits, despite a fifty-year assumption to the contrary).

5

I. The decision below misinterprets Hawaii
Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), to
permit virtually unlimited government power
to condemn property for private uses and
conflicts with decisions by the Seventh and
Ninth Circuits.

The Public Use Clause,’ if it is to have any meaning,
cannot be interpreted to give government unfettered
power to condemn private property “for the benefit of
another private person.” Thompson, 300 U.S. at 80. This
“Court’s cases have repeatedly stated that ‘one person’s
property may not be taken for the benefit of another
private person without a justifying public purpose, even
though compensation be paid.’” Midkiff, 467 U.S. at 241.
“It is fundamental in American jurisprudence that private
property cannot be taken by the government, national or
state, except for purposes which are of a public character
... That principle grows out of the essential nature of all
free governments.” Madisonville Traction Corp. v. St.
Bernard Mining Corp., 196 U.S. 239, 251-52 (1905).
Although great deference is granted to legislative deter-
minations of public use, “[iJt is well established that ...
the question [of] what is a public use is a judicial one.”
City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930).

As the Ninth Circuit pointed out,

If officials could take private property, even with
adequate compensation, simply by deciding

* The Public Use Clause was made applicable against the states
through the incorporation of the Fifth Amendment under the Four-
teenth Amendment. Chicago, Burlington & Quincy R.R. v. Chicago, 166
U.S. 226, 239 (1897); see also Dolan v. City of Tigard, 512 U.S. 374, 384
n.5 (1994) (reaffirming incorporation of the Takings Clause under the
Fourteenth Amendment).

6

behind closed doors that some other use of the

property would be a ‘public use,’ and if those offi-

cials could later justify their decisions in court

merely by positing a ‘conceivable public purpose’

to which the taking is rationally related, the

‘public use’ provision of the Takings Clause would

lose all power to restrain government takings.
Armendariz, 75 F.3d at 1321; see also Daniels, 306 F.3d
445, 461-62 (relying on Armendariz to strike down a
taking intended to benefit private parties).

A. The decision below would allow the tak-
ing of virtually any property.

The decision below misconstrues Midkiff to grant, in
effect, unlimited gcvernment power to condemn property
for the benefit of private interests. Although the putative
public use justification for taking Petitioners’ property was
the alleviation of “blight,” the Nevada Supreme Court
defined blight so broadly as to make it a virtually limitless
concept: “Economic blight involves downward trends in the
business community, relocation of existing businesses
outside of the community, business failures, and loss of
sales or visitor volumes.” Pet. App. at 20a. Virtually any
area periodically experiences “downward trends,” the
“relocation of existing businesses,” business failures, and
especially “loss of sales or visitor volumes.” Id. The city
need not resort to the extreme remedy of condemnation in
_ order to alleviate these common problems, but can instead
use numerous less drastic means, such as improving
infrastructure or extending tax credits to businesses in the
area.

Indeed, the so-called blighted area at issue in this case
is the renowned “downtown area ... of the City of Las
Vegas.” Id. at 22a. Under the Nevada court’s standards,
even the casinos that stand to benefit from this condemna-
tion may be blighted, if they have experienced a “loss of
sales or visitor volumes.” Jd. Not surprisingly, neither the

7

City’s property survey nor the Development Agreement
makes any reference to the presence of blight in the area
in question. Pet. Cert. at 5. Instead, the stated purpose of
the Development Agreement was “to enhance employment
opportunities, keep companies from leaving the downtown
area, attract new businesses to the downtown area, and.
provide inducement to ... hotels and other businesses in
the downtown area.” Pet. Cert. at 4-5.

The approach adopted below would justify any con-
demnation of property to aid a private business, so long as
government officials believe (rightly or wrongly) that the
beneficiaries of its condemnation largesse could make
more money off the expropriated land than could its
present owners. The Public Use Clause would be meaning-
less if it were interpreted to sanction the transfer of
private property from one owner to another simply be-
cause the latter would “contribute to positive economic
growth in the region,” because “incidentally, every lawful
business does this.” S.W. Ill. Dev. Auth. v. Natl City Env.,
768 N.E.2d 1, 9 (Ill. 2002), cert. denied, 537 U.S. 880
(2002) (hereinafter “SWIDA”). Although the Nevada
Supreme Court may choose to eviscerate the Public Use
Clause of its state constitution in this way, it cannot do the
same to the Fifth Amendment.

Numerous other state and federal courts have invali-
dated condemnation where the putative public benefit of
increased economic development is achieved indirectly by
enriching a private entity.“ As the Supreme Court of
Kentucky explained,

* See, e.g., Aaron v. Target Corp., 269 F.Supp. 2d 1162, 1174-76
(E.D. Mo. 2003), rev’d on other grounds, 2004 WL 190439 (8th Cir. Feb.
3, 2004) (finding owner likely to prevail on claim that condemnation of
shopping center to transfer to Target Corporation lacked public use); 99
Cents Only Stores v. Lancaster Redev. Agency, 237 F. Supp. 2d 1123,
1129-31 (C.D. Cal. 2001), app. dismissed as moot, 2003 WL 932421 (9th

(Continued on following page)

8

If public use were construed to mean that the
public would be benefited in the sense that the
enterprise or improvement for the use of which
the property was taken might contribute to the
comfort or convenience of the public, or a portion
thereof, or be esteemed necessary for their en-
joyment, there would be absolutely no limit on
the right to take private property. It would not be
difficult for any person to show that a factory or

Cir. Mar. 7, 2003) (finding that condemnation to replace one store with
a more lucrative one was not a public use); City of Little Rock v. Raines,
411 S.W.2d 486, 495 (Ark. 1967) (finding private economic development
project not a public use); Baycol, Inc. v. Downtown Dev. Auth., 315 So.2d
451, 457 (Fla. 1975) (“‘[P]ublic benefit’ is not synonymous with ‘public
purpose’ as a predicate which can justify eminent domain.”); Owensboro
v. McCormick, 581 S.W.2d 3, 8 (Ky. 1979) (“No ‘public use’ is involved
where the land of A is condemned merely to enable B to build a
factory.”); Opinion of the Justices, 131 A.2d 904, 905-06 (Me. 1957)
(holding that condemnation for industrial development to enhance
economy is not a public use); Merrill v. City of Manchester, 499 A.2d
216, 217-18 (N.H. 1985) (finding condemnation for industrial park not a
public use where no harmful condition was being eliminated); Ga. Dept
of Transp. v. Jasper County, 586 S.E.2d 853, 856 (S.C. 2003) (holding
that substantial “projected economic benefit” does not justify a condem-
nation); Karesh v. City of Charleston, 247 S.E.2d 342, 345 (S.C. 1978)
(“We cannot constitutionally condone the eviction of the present
property owners by virtue of the power of eminent domain in favor of
other private shopkeepers.”); Hogue v. Port of Seattle, 341 P.2d 171, 187
(Wash. 1959) (invalidating condemnation of residential property so that
agency could “devote it to what it considers a higher and better
economic use”); In re Petition of Seattle, 638 P.2d 549, 556-57 (Wash.
1981) (disallowing plan to use eminent domain to build retail shopping
center, where purpose was not elimination of blight). The Michigan
Supreme Court is being asked in County of Wayne v. Hathcock, 2003 WL
1950233 (Mich. Ct. App. Apr. 24, 2003), app. granted, 671 N.W.2d 40
(Mich. 2003), to reconsider Poletown Neighborhood Council v. City of
Detroit, 304 N.W.2d 455 (Mich. 1981), which upheld the condemnation
of the homes of 4200 people, sixteen churches, and a “historic, racially
integrated community” in order to transfer the land to General Motors
for the construction of a new factory. See Ilya Somin, Michigan Should
Alter Property Grab Rules, Det. News, Jan. 8, 2004, § A, at 11.

9

hotel or like improvement he contemplated erect-
ing or establishing would result in benefit to the
public, and under this rule the property of the
citizen would never be safe from invasion.

Prestonia Area Neighborhood Ass’n v. Abramson, 797
S.W.2d 708, 711 (Ky. 1990) (quotation omitted).

B. The judgment below conflicts with deci-
sions by the Seventh and Ninth Circuits.

The Nevada Supreme Court’s validation of the trans-
fer of condemned property to private commercial interests
to alleviate “downward trends in the business community,”
Pet. App. at 20a, conflicts with decisions by the Seventh
and Ninth Circuits holding that the Public Use Clause sets
clear limits on the power of eminent domain.

Both the Seventh and Ninth Circuits emphasized that
courts cannot simply rubber stamp assertions of public use
put forward by condemning authorities. Daniels, 306 F.3d
at 461-62; Armendariz, 75 F.3d at 1320-21. The Ninth
Circuit held that the judicial branch must prevent takings
that are not “for a ‘public use,’ as the Fifth Amendment
requires, but rather for the use of another private person.”
Armendariz, 75 F.3d at 1321. Similarly, the Seventh
Circuit concluded that the Public Use Clause does not
permit takings whose main purpose is “to confer a private
benefit” on business interests in a case where “any specu-
lative public benefit would be incidental at best.” Daniels,
306 F.3d at 465.

Courts ordinarily accord great deference to legislative
determinations of public use. Such determinations are
upheld so long as they are “rationally related to a conceiv-
able public purpose” and are not “palpably without a
reasonable foundation.” Midkiff, 467 U.S. at 241. The
Seventh and Ninth Circuits have held, however, that such
broad deference is not warranted where the putative

10

public use is offered only to rationalize a condemnation
after the fact.

In Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996)
(en banc), owners of low income housing alleged that the
City of San Bernardino sought to condemn their property
to build a privately owned shopping mall. Jd. at 1314-15,
1321. The City claimed that it sought to serve the public
purpose of “the reduction of urban blight.” Jd. at 1314. The
Ninth Circuit refused to defer to the City’s assertion
because “the Takings Clause would lose all power to
restrain government takings” if officials “could take
private property ... simply by deciding behind closed
doors that some other use of the property would be a
‘public use,’” and “later justify their decisions in court” by
concocting “‘a conceivable public purpose’ to which the
taking is rationally related.” Jd. at 1321.

In Daniels v. Area Plan Comm'n, 306 F.3d 445 (7th
Cir. 2002), the Area Plan Commission of Allen County,
Indiana, sought to condemn property in a neighborhood
restricted by common covenant to residential uses and to
transfer ownership to a private developer to construct a
shopping center. The Seventh Circuit invalidated the
taking because the Area Plan Commission failed to show
at the time of the taking that the proposed “commercial
development in and of itself would serve some overriding
public purpose.” Jd. at 465. The Commission’s post hoc
determination that the condemnation might serve a
“conceivable public purpose” did not deserve full deference
under Midkiff. Id. at 465-66 (emphasis in original) (quota-
tion omitted). “Much like the value of the property taken,
‘public use’ is to be determined at the time of the taking,
and at the time of the taking of the restrictive covenant,

11

the possible future commercial development could not be
rationally described as for a public purpose.” Id. at 465.”

Just so here, where the elimination of blight was only
asserted after the fact. As Justice Leavitt pointed out
below, “there was no evidence of blight in or around the
Pappases’ property.” Pappas, Pet. App. at 32a (Leavitt, J.,
dissenting). Neither the Redevelopment Agreement that
led to the condemnation of Petitioners’ property nor the
1986 survey on which that agreement was based even
mentions the presence of blight in the relevant downtown
area. Pet. Cert. at 4-5, 10. According to the trial court,
“none of the block surveys” used by the Redevelopment
Agency to justify the taking of the Pappases’ property
“indicate any findings of blight.” Pet. App. 47a. Likewise,
there is nothing in the record to indicate that the Redevel-
opment Agency made any specific findings of blight in
1993 when it decided to condemn Petitioners’ property.
Pet. Cert. at 10-11.° Indeed, even some members of the

* As in Daniels, 306 F.3d at 460-61, the failure to find blight at the
inception deprived the Downtown Redevelopment Agency of its
statutory authority to condemn Petitioners’ property. Under Nevada
law, eminent domain can only be used to alleviate blight in a “blighted
area, the redevelopment of which is necessary to effectuate the public
purposes.” NEV. REV. STAT. § 279.586(1)(a) (West 2003). Furthermore,
Petitioners’ property was not contiguous with the rest of the redevelop-
ment area, and the condemning authority must show that “noncontigu-
ous areas of a redevelopment area are blighted or necessary for effective
redevelopment” prior to adopting a redevelopment plan. NEv. REV.
STAT. § 279.586(1)(f) (2003). The Redevelopment Agency did not make
any such showings prior to adopting its redevelopment plan and thus
acted ultra vires in condemning Petitioners’ property. See Pet. App. at
31a, 32a (Leavitt, J., dissenting).

* The 1986 Redevelopment Plan gave the Agency the generalized
power to “eliminate blight.” Pet. App. at 48a. However, that authoriza-
tion does not alter the fact thdt there was no finding of blight in the
area, and therefore no blight to “eliminate.” Jd.

12

LLC have conceded that there was no blight in the area.
Id. at 11.

The assertion that condemning Petitioners’ property
would alleviate blight was only advanced by the Redevel-
opment Agency as a litigation position after the fact. The
Nevada Supreme Court’s decision to relieve the Agency of
any meaningful obligation to show the validity of this
asserted public use cannot be squared with Armendariz
and Daniels.

The Redevelopment Agency’s blight rationale was not
only advanced after the fact, it was also a mere pretext for
a condemnation intended to benefit private business
interests. Even many of the casino owners who stand to
benefit from the condemnation of the Pappases’ property
concede that there is no evidence to support the proposi-
tion that downtown Las Vegas is blighted. Pet. Cert. 11.
The trial court found that the Redevelopment Agency had
“turned over all control” of the eminent domain process to
the LLC casino interests. Pet. App. 10la. The Pappases
presented evidence that “the Agency was acting as a front
for the LLC.” Id. at 95a.’ Thus, the LLC’s private interests,
not any determination of public use, led to the condemna-
tion of Petitioners’ property.

In Armendariz, the Ninth Circuit held that Midkiff
did not require deference to the City of San Bernardino’s

"In an analogous case, the Illinois Supreme Court recently
invalidated a condemnation to build a racetrack parking lot because the
condemning authority’s “true intentions were to act as a default broker
of land for [the track owner’s] proposed parking plan.” SWIDA, 768
N.E.2d at 10. The condemning agency in SWIDA had agreed to con-
demn “whatever land” the racetrack owners “desired” for the parking
lot. Id. These facts echo the Redevelopment Agency’s willingness to turn
over “all control” of the condemnation process to the LLC. Pet. App. at
101a.

13

claim that its actions served the public purpose of alleviat-
ing “blight” because the property owners had presented
evidence indicating that this rationale was a mere pretext
for “a scheme ... to deprive the plaintiffs of their property
. .. SO a Shopping-center developer could buy [it] at a lower
price.” Armendariz, 75 F.3d at 1321. A primarily pretex-
tual claim of public use does not deserve deference because
it cannot be considered a true “legislat[ive] judgment of
what constitutes a public use,” but is rather a mere cover
for condemnations designed to benefit private interests.
Midkiff, 467 U.S. at 240. Numerous state courts have also
refused to defer to condemning authorities in cases where
the asserted public use was pretextual.®

* See, e.g., Denver W. Metro. Dist. v. Geudner, 786 P.2d 434, 436-37
(Colo. App. 1989) (finding that flood control was a pretext for enabling
sale of government property); Avalonbay Cmtys., Inc. v. Town of Orange,
775 A.2d 284, 299-303 (Conn. 2001) (upholding injunction against
condemnation of private property allegedly to alleviate blight because it
was a pretext to preventing the construction of affordable housing);
Wilmington Parking Auth. v. Land with Improvements, 521 A.2d 227,
232-34 (Del. 1986) (finding parking construction was a pretext for
extending benefit to private party); City of Miami v. Wolfe, 150 So.2d
489, 490 (Fla. App. 1963) (affirming finding that extending roadway
was a pretext for the acquisition of valuable riparian rights); Earth
Mgmt., Inc. v. Heard County, 283 S.E.2d 455, 460-61 (Ga. 1981)
(blocking condemnation nominally for a park but actually intended to
prevent construction of waste disposal site); Pheasant Ridge Ass’n v.
Town of Burlington, 506 N.E.2d 1152, 1157 (Mass. 1987) (holding that
the construction of a park and moderate income housing was a pretext
for excluding low income housing); Casino Reinvestment Dev. Auth. v.
Banin, 727 A.2d 102, 103-05 (N.J. Super. Ct. Law Div. 1998) (rejecting
pretextual taking intended to benefit casino owned by Donald Trump);
Essex Fells v. Kessler Inst., 673 A.2d 856, 858 (N.J. Super. Ct. Law Div.
1995) (disallowing borough from condemning property in order to
prevent owner from constructing a nursing facility); Redev. Auth. v.
Owners, 274 A.2d 244, 252 (Pa. Cmmw. Ct. 1971) (finding land taken on
pretext of removing blight was actually to benefit another private
party).

14

Three United States district courts have recently
relied on Armendariz and refused to defer to pretextual
takings that transfer condemned property to private
interests.” In all three cases, courts refused deference to a
condemnation where the government claimed that expro-
priation was necessary to alleviate or prevent blight.
Aaron, 269 F.Supp. 2d at 1174-76; Cottonwood, 218
F. Supp. 2d at 1229-30; 99 Cents, 237 F. Supp. 2d at 1229.
A pretextual claim of blight cannot be allowed to justify a
taking whose true purpose was “the desire to achieve the
naked transfer of property from one private party to
another.” 99 Cents, 237 F. Supp. 2d at 1129.

The question of pretext is distinct from that of a post
hoc claim, because a pretextual justification is invalid even
if asserted prior to or concurrent with the condemnation.
See, e.g., Aaron, 269 F.Supp. 2d at 1174-76 (rejecting
pretextual justification asserted in advance). Conversely, a
post hoc assertion of public use is not entitled to deference
even if it is not purely pretextual. See, e.g., Daniels, 306
F.3d at 461-66. Where, as here, a pretextual justification is
presented after the fact, the wrong is doubly compounded.

The Nevada Supreme Court’s deference to the Rede-
velopment Agency’ public use assertion despite the
evidence of pretext stands in conflict with the teaching of

* See Aaron v. Target Corp., 269 F. Supp. 2d 1162, 1174-76 (E.D.
Mo. 2003), rev’d on other grounds, 2004 WL 190439 (8th Cir. Feb. 3,
2004) (holding that a property owner was likely to prevail on a claim
that a taking ostensibly to alleviate blight was actually intended to
serve the interests of the Target Corporation); Cottonwood Christian
Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203, 1229 (C.D. Cal.
2002); (“Courts must look beyond the government’s purported public
use to determine whether that is the genuine reason or if it is merely
pretext.”); 99 Cents Only Stores v. Lancaster Redev. Agency, 237
F. Supp. 2d 1123, 1129 (C.D. Cal. 2001), app. dismissed as moot, 2003
WL 932421 (9th Cir. Mar. 7, 2003) (“No judicial deference is required
... where the ostensible public use is demonstrably pretextual.”).

15

Armendariz and its progeny that Midkiff provides no
license for the pretense of public purpose to cloak private
greed.

II. The decision below misinterprets Berman v.
Parker, 348 U.S. 26 (1954), to allow condemna-
tion to alleviate “blight” even absent slum-
like conditions, and thus conflicts with the
Supreme Judicial Court of Massachusetts.

In Berman v. Parker, this Court held that condemna-
tions adopted for the purpose of eliminating “slums” do not
violate the Public Use Clause. Berman, 348 U.S. at 32-35.
Although the Court held that “when the legislature has
spoken, the public interest has been declared in terms
well-nigh conclusive,” it also made clear that such defer-
ence to condemning authorities is only appropriate when
the state adheres to “specific constitutional limitations.”
Id. at 32. Thus, the Berman Court emphatically did not
sanction an unlimited power to designate property as
blighted and then condemn it for the purpose of transfer-
ring it to private interests.

The area designated for redevelopment and the use of
the eminent domain power in Berman was characterized
by “[mJiserable and disreputable housing conditions.” Id.
Surveys demonstrated that “64.3% of the dwellings [in the
area] were beyond repair, 18.4% needed major repairs,
only 17.3% were satisfactory; 57.8% of the dwellings had
outside toilets, 60.3% had no baths, 29.3% lacked electric-
ity, 82.2% had no wash basins or laundry tubs, [and] 83.8%
lacked central heating.” Jd. at 30. Such conditions are a far
cry from the mere “relocation of existing businesses
outside of the community, business failures, and loss of
sales or visitor volumes” that were considered sufficient to
declare an area blighted in Pappas. Pet. App. at 20a.

16

Although the Berman Court, in dicta, noted that the
legislature may seek to make the “community ... beauti-
ful as well as healthy, spacious as well as clean,” it did not
hold that purely esthetic or economic gains are by them-
selves sufficient to justify the use of condemnation for the
alleged purpose of alleviating blight. Berman, 348 U.S. at
33. Instead, it limited itself to considering the use of
eminent domain to revitalize areas that are characterized
by persistent “slum” conditions, “as though possessed of a
congenital disease.” Id. at 34.

The court below interpreted Berman to allow the use
of condemnation to address “blight” that falls far short of
the slum-like conditions addressed in this Court’s prece-
dent. According to the Nevada court, Berman permits the
condemnation of property for the alleged purpose of
removing “blight” any time a condemnation is intended to
remove “physical, social or economic conditions that affect
the health, safety or welfare of a community.” Pet. App.
19a, 20a. The court held that “economic blight” sufficient
to justify condemnation of property for transfer to private
parties exists in any area that has experienced “downward
trends in the business community, relocation of existing
businesses outside of the community, business failures,
and loss of sales or visitor volumes.” Jd. at 20a.

The decision below stretched the definition of “blight”
so far that it bears little if any resemblance to the
“(mJiserable and disreputable housing conditions” present
in the Washington, D.C. neighborhood at issue in Berman,
348 U.S. at 32. The trial court below found that there was
no evidence of blight or slum-like conditions in any part of
the downtown area covered by the Redevelopment Plan.
“(Nlone of the block surveys completed by the City, and
submitted to [the trial] Court, indicate any findings of
blight.” Pet. App. at 47a. The only evidence of blight cited
by the Nevada Supreme Court was that the downtown
area suffered from “higher crime rates than the rest of the
City of Las Vegas,” that there were some vacant buildings

17

in the area, and that there had been a reduction in eco-
nomic activity. Pet. App. at 22a. Even if true, these claims
fall well short of the slum conditions present in Berman.

Virtually any area occasionally experiences declining
business conditions, has at least a few vacant lots, and
might have higher crime rates than some other parts of
the city in which it is located. There are numerous reme-
dies for such difficulties that do not require resort to the
drastic compulsion of the power of eminent domain.”
Indeed, the higher crime rates in downtown Las Vegas
relative to the rest of the city may well be explained by the
presence of casino businesses in the area. Cf. Greater New
Orleans Broad. Ass’n v. United States, 527 U.S. 173, 185-
86 (1994) (noting asserted: causal connection between
“legalized gambling” and “street, white-collar, and organ-
ized crime”). If so, it is ironic that the Redevelopment
Agency plans to alleviate these conditions by building a
parking lot intended to increase gambling activity.

In validating the condemnation of Petitioners’ prop-
erty based on its highly elastic definition of blight, the
Nevada Supreme Court created a conflict with Opinion of
the Justices, 126 N.E.2d 795 (Mass. 1955). In that case,
the Massachusetts legislature sought to authorize
condemnation to alleviate “economic blight” in an area
that lacked slum-like conditions because it would improve
“economic well-being,” keep up property values, and
reduce crime. Id. at 803; cf. Hogue v. Port of Seattle, 341
P.2d 171, 184-87 (Wash. 1959) (en banc) (citing Opinion of
the Justices to invalidate a taking where the area in
question was not a “slum or blighted area”). Interpreting

° See, e.g., GEORGE L. KELLING & CATHERINE L. COLES, FIXING
BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR
COMMUNITIES (1998) (describing numerous low cost ways to reduce
crime).

\

18

the Massachusetts Constitution in light of the Berman
federal public use standard, the Supreme Judicial Court
held that the proposed legislation was unconstitutional
because “there is no suggestion that the area is now a
slum.” Jd. The court specifically distinguished Berman
because “[t]he project is not a slum clearance one, and the
principle on which rest such cases as ... Berman v.
Parker, 348 U.S. 26, is not applicable.” Jd.”

III. The decision below is incompatible with this
Court’s case law granting protection to con-
stitutional property rights equal to that ac-
corded to other individual rights.

This Court has emphasized that protection of property
rights is essential to liberty more generally because “a
fundamental interdependence exists between the personal
right to liberty and the personal right in property. Neither
could have meaning without the other.” Lynch v. House-
hold Fin. Corp., 405 U.S. 538, 552 (1972); see also JAMES
W. ELY, THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTI-
TUTIONAL HISTORY OF PROPERTY RIGHTS (1992) (describing
history of the longstanding American commitment tv
property as a vital constitutional right and a bulwark of
individual liberty more generally); RICHARD PIPES, PROP-
ERTY AND FREEDOM (1999) (presenting evidence of connec-
tion between protection of property rights and individual
freedom in societies around the world).

” Although the Massachusetts court was interpreting its own state
constitution, it nevertheless addressed a federal constitutional issue
because the Court’s interpretation of the Massachusetts state Takings
Clause was dependent on Berman’s analysis of the Fifth Amendment.
Opinion of the Justices, 126 N.E.2d at 803.

19

That is so because, in the words of Justice John
Marshall Harlan, “[d]ue protection of the rights of prop-
erty has been regarded as a vital principle of republican
institutions.” Chicago, Burlington & Quincy R.R., 166 U.S.
at 235. The Framers gave paramount importance to
property rights because “property ownership was closely
associated with liberty” and a crucial “buffer protecting
individuals from governmental coercion.” ELy, THE GUARD-
IAN OF EVERY OTHER RIGHT at 43.

The decision below contradicts this Court’s commit-
ment to full constitutional protection for property rights.
Virtually any property could be condemned and trans-
ferred to other private interests under the elastic defini-
tion of “blight” adopted below. Giving government
unlimited power to define away a constitutional right is
the furthest possible departure from protecting that right
on a par with other constitutional liberties.

Te be sure, property rights continue to have some
protection even under the decision below because owners
are entitled to monetary compensation.” However,
compensation itself does not adequately protect property
rights because it converts them to mere “liability rules,”
under which government may confiscate an individual’s
rights so long as it is willing to pay a price for the privilege
of doing so. See Guido Calabresi & A. Douglas Melamed,
Property Rules, Liability Rules, and Inalienability Rules:
One View of the Cathedral, 85 Herv. L. Rev. 1089 (1972)
(distinguishing true property rights .-om mere liability
protections). The owner’s “right to enjoy property without

* Such compensation often falls far below the true value of the
property right to the owner. See, e.g., RICHARD A. EPSTEIN, TAKINGS:
PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 51-56 (1985)
(discussing types of losses to property owners that are usually ignored
in compensation calculations).

20

unlawful ‘deprivation,” Lynch, 405 U.S. at 552, thus
becomes nothing more than a mere liability entitlement
subject to state-mandated transfer or destruction at any
time.

Amici do not urge this Court to apply to the Public
Use Clause the same tests that protect other constitu-
tional rights. We submit, however, that the approach
adopted by the Nevada Supreme Court has eviscerated the
Public Use Clause of any meaning. “State courts, like
federal courts, have a constitutional obligation to safe-
guard personal liberties,” Stone v. Powell, 428 U.S. 465,
494 n.35 (1976), a duty that the court below has abdicated
by ignoring the fact that “the question [of] what is a public
use is a judicial one.” City of Cincinnati v. Vester, 281 U.S.
439, 446 (1930).

CONCLUSION

For the foregoing reasons, the Court should grant the
petition for a writ of certiorari.

Respectfully submitted,
ILYA SOMIN VIET D. DINH
GEORGE MASON UNIV. (Counsel of Record)
SCHOOL OF LAW BANCROFT ASSOCIATES, PLLC
3301 N. Fairfax Drive 2121 Bancroft Place, N.W.
Arlington, VA 22201 Washington, D.C. 20008
(703) 993-8069 (202) 662-9324

February 6, 2004 Counsel for Amici

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0912%3A6. Public record. Not legal advice.