Update: More here (Ilya Somin at Volokh), and here (Ilya Shapiro at CATO).
A coalition of property rights advocates including the National Federation of Independent Business Small Business Legal Center, the CATO Instiutute, the Owners’ Counsel of America, and lawprofs James Ely, David Callies, Todd Zywicki, Randy Barnett, Eric Claeys, and D. Benjamin Barros — has filed an amicus brief brief supporting the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).
Lawprof Ilya Somin, a noted scholar on public use issues, authored the brief, which argues:
This case presents an opportunityfor this Court to clarify the definition of a “pretextual taking” under thePublic Use Clause of the Fifth Amendment. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court ruledthat “economic development” is a public use justifying the use of eminentdomain. But the Court also emphasized that government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestowa private benefit.” … Unfortunately,Kelo provided only limited guidance onwhat counts as a pretextual taking. …
As aresult, lower courts have applied widely divergent standards. … Several state supremecourts look to the motives of the condemnor. Others focus on the whether thenew private owner captures most of the benefits of the condemnation. A thirdgroup focuses on the extent of the planning process preceding the taking. TheU.S. Court of Appeals for the Third Circuit emphasizes the presence of a knownprivate beneficiary of the taking. Finally, the lower court in the presentcase, the New York Court of Appeals, and the United States Court of Appeals forthe Second Circuit define pretext so narrowly that even the most blatantfavoritism will escape judicial scrutiny. This extreme confusion calls out forresolution by this Court.
Disclosure: we represent the Owners’ Counsel of America in this case.
The case arose in Guam, and the facts are prettyoutrageous. Ilagan ownedland in Agana on which he ran an apartment building. Ungacta, who was then the Mayor of Agana, owned a neighboring residentially-zoned lot. In 1981, the Ungacta property did not have access to a road. Ungacta appraised a part of the Ilagan propertythat had access, and which was used for parking for Ilagan’s tenants. Soon after, the Guam government condemned the appraised area,paying for it with compensation supplied by Ungacta, and transferred it to Ungacta.
Guam assert this was an “economic development” measure occurring under the “AganaPlan,” a post-WWII redevelopment plan enacted to reconfigureirregular lot lines, but which had been defunct for seven years priorto the Ilagan taking. When active, it did not contemplate a single-lottaking and had never been used that way. No other lots were taken underpurported authority of the Plan at the time of the Ilagan taking. In the 30 years since, the Plan has never been used to takeany property.
Although the Guam trial court held the takingunconstitutional, the Guam Supreme Court reversed. At the urging of Ungacta (the Guam government did not appeal), that courtapplied a standard of “judicial deference” under Kelo, and held the taking served a valid publicpurpose. The Guam Supreme Court’s opinion is here.
The Supreme Court’s docket report for the case is here, in case you want to follow along. If there’s a BIO, we’ll post it.