▪ Two New Eminent Domain Cert Petitions

Two cert petitions have recently been filed in the US Supreme Court on eminent domain. 

Didden v. Village of Port Chester, is a Kelo follow up.  The case is detailed on the Institute for Justice's web site, which includes links to the petition and amicus briefs urging granting of the petition.  The Question Presented in the case raises two interesting issues. 

The first is whether Kelo precludes judicial review of public use claims if a condemnation takes place "within an integrated development plan."  Recall that in Kelo, the majority took great pains to highlight the fact that the condemnation of Mrs. Kelo's house took place within a detailed and apparently comprehensive plan.  The majority opinion relied on the Rosetta Stone zoning case, Euclid v. Ambler Realty Co., and implied (if not held) that the Kelo taking was just fine because of the detailed process that allegedly preceded it.  Like zoning, it appeared that the majority was trusting the result of the procedures that resulted in a taking simply because it was comprehensive, thus equating public use analysis with substantive due process analysis.  The Questions Presented:

     In Kelo v. City of New London, this Court held that economic development within an integrated development plan was a "public use" under the meaning of the Fifth Amendment to the U.S. Constitution.  Does Kelo therefore completely preclude all claims of private purpose takings within an integrated development plan area, including a claim that eminent domain was used for financial extortion and the purely private financial gain of a single party?

     What limits if any do the Fifth and Fourteenth Amendments to the U.S. Constitution place on demands for cash in exchange for refraining from the use of eminent domain?

The second issue is a convergence of Nollan and Kelo, asking the Court what standards should apply to extortionate demands, backed up by eminent domain, rather than permit denial.  The amicus brief I filed in Kelo anticipated this issue somewhat, since it suggested the Court apply the Nollan-Dolan standard for examining monetary exactions, to public use analysis:

     In undertaking the review of public use issues reserved to the judiciary in Midkiff, 4687 U.S. at 240, this Court should adopt the same heightened scrutiny for exercises of the eminent domain power justified by promises of a better economy as it has established for suspect regulatory takings: a taking justified only by economic development is invalid if it fails to substantially advance a legitimate state interest.

The second eminent domain petition was filed in Detroit International Bridge Co. v. United States.  The Questions Presented in that petition do not involve public use, but rather the other main issue in eminent domain cases, that of Just Compensation:

1.  Whether requiring courts to apply the interest rate set in the Declaration of Taking Act 40 U.S.C. § 3116, to determine the compensation due when the government delays payment of compensation for private property taken under the Act violates the Just Compensation Clause and the separation of powers when applying the statutory interest rate would materially undercompensate the landowner.

2.  Whether a court’s reduction of the amount of compensation paid to a property owner based on the fact that the intended taking had been made public at the time the owner purchased the property contravenes this Court’s repeated holding that the just compensation due to a landowner under the Fifth Amendment is not to be affected by the government’s decision to condemn the property. 

At oral argument in Kelo, several justices, most notably Justice Kennedy expressed their concern that the Court should examine the fairness of the compensation rules in eminent domain, perhaps as a way of counterbalancing the grossly inequitable law that favors the condemnor in public use questions.  We'll see.