Recall that in the wake of the overwhelmingly negative reaction to the U.S. Supreme Court's decision in Kelo v. New London, at least one of the Connecticut Supreme Court justices whose previous ruling was upheld, expressed his regrets. Others have made similar remarks.
Well, here may be a chance for the Connecticut Supreme Court to right the ship, so to speak. Later this month, the court will be hearing oral arguments in a case asking whether a state agency's power to take "land, buildings, equipment or facilities" includes bus companies' exclusive state-granted rights to operate bus routes. The bus companies have what amounts to a monopoly under state-granted certificates.
While this case doesn't squarely present the same issue as in Kelo (that may be coming later, in other cases which are making their way up the Connecticut chain), it does represent a chance to see whether the Connecticut Supreme Court has gotten any wiser since its decision in that case, because the apparent reason for the taking was to keep the bus companies in line. As the opening brief notes, "[a]s the Trial Court (Shortall, J.T.R.) recognized, the impetus for the Commissioner's conduct was the opening of the Busway [by the State) between Hartford and New Britain[.]" Br. at 4. The bus companies thought this interfered with their exclusive rights, and made trouble (seeking injunctions and the like); the state agency just decided to end it all with its trump card, eminent domain.
The case also should give some indication of whether the Connecticut court views a statutory grant of eminent domain narrowly, or expansively. Is a bus route a "facility?" Offhand, it seems not to fit the language of the statutory grant, which on its face reads as a power to condemn actual stuff, not incorporeal things like rights and franchises. Here's how the bus companies' brief frames the question:
This case presents the important question of whether the Commissioner of Transportation has the authority under Conn. Gen. Stat. §13b-36(a) to condemn Certificates of Public Convenience and Necessity issued to four private bus companies pursuant to Conn. Gen. Stat. §13b-80? Section 13b-80 provides the statutory scheme for issuing and regulating Plaintiff's Certificates, and identifies whether those Certificates may be suspended or revoked. Section 13b-36(a) permits the Commissioner to condemn only "land, buildings, equipment or facilities." We submit that §13b-36(a) may not be read, either by its express terms or by necessary implication, to permit the Commissioner to condemn intangible property such as there Certificates as "facilities."
Here are the briefs in the case:
Follow along with the court's docket page. Our thanks to ABA State and Local Government Law Section colleague John X. Peloso for cluing us in to the briefs.