Here's the third amicus brief filed in support of our cert petition in Bay Point Properties, Inc. v. Mississippi Transportation Commission, a case asking whether the Just Compensation Clause prohibits a court from instructing an inverse condemnation jury that it must value taken property as if it was burdened by a highway easement which the jury found as a matter of fact had been abandoned.
This brief was submitted by a stellar group of public interest organizations and legal scholars: Cato Institute, the NFIB Small Business Legal Center, Reason Foundation, Southwest Legal Foundation, NARPO (the National Association of Reversionary Property Owners), the Property Rights Foundation of America, and Professor James Ely (property and easement expert), Shelley Ross Saxer (land use and takings), and Ilya Somin (eminent domain, among other subjects).
The brief, authored by Thor Hearne and his Federal Takings team, Cato's Ilya Shapiro, and NFIB's Luke Wake, focuses on the Supreme Court's Monongahela decision in which the Court held that Congress could not set the terms for how much compensation was due for a taking. In the Bay Point case, Mississippi adopted a statute which gives the MTC the unreviewable discretion to determine whether to officially abandon highway easements, even where the property is no longer being used in accordance with the original grant of an easement. Because the MTC had not done so, the trial court ordered the jury to value the taken reversionary interest as if it continued to be burdened by a highway easement, even though the jury found the highway was in fact abandoned.
The brief also argues that this deprived Bay Point of its right to have the jury determine just compensation for the taking:
Since King John met the barons on the fields of Runnymede in 1215, the right to trial by jury has been accepted as a fundamental premise of Anglo-American jurisprudence. This Court observed:The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.Jacob, 315 U.S. at 752-53.Applied here, this means the jury, not the Mississippi legislature or Highway Commission, determines the value of that property Mississippi took from Bay Point. The Mississippi scheme compelling the jury to value that property the Highway Commission took from Bay Point assuming the land is already encumbered with the easement is contrary to the principle that the judicial, not legislative branch, determines just compensation. Mississippi’s statutory scheme, as applied here, invades and invalidates the jury’s role in deciding just compensation.
Br. at 23-24 (footnote omitted).
The two other amicus briefs (the brief by Pacific Legal Foundation and the brief by the Virginia Institute for Public Policy and Owners' Counsel of America) are also posted.
The Brief in Opposition is due May 8, 2017. Stay tuned.