Pretext In Eminent Domain: Law Of The Land On The Coupe Opinion

Dean Patty Salkin's Law of the Land blog posts James Lawlor's summary of the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008), "Court Must Decide If Public Purpose Claimed for Road Was Pretextual." 

The Hawaii Supreme Court ruled a trial court erred by not specifically considering whether a county’s claimed justification for a taking to build a highway was a mere pretext to benefit a private landowner, as the landowner affected by the taking charged.

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The court said it did not have to accept Justice Kennedy’s formulation to conclude that Kelo and the relevant Hawaii precedents supply ample authority to require the trial court to reach the pretext issue. On its face, the stated public purpose in this case met the public use requirements of both the state and United States constitutions, the court continued. The county’s taking resolution stated the existing north-south Mamalahoa Highway cannot handle the existing traffic volume and the proposed bypass would provide a benefit for the entire Kona region. Nevertheless, the county’s stated public purpose need not be taken at face value if there is evidence that purpose might be pretextual. 

Disclosure: we represent the property owner in the case, which is currently on remand to the trial court.  The opinion of the court is posted here, and the briefs of the parties are available here.  The property owner's brief on remand on the pretext issue is posted here (with summary) and here (from JDSupra).