Some day, the Court will grant cert in another eminent domain case.
But today is not that day.
The Court declined to review C & J Coupe Family Ltd. P'ship v. County of Hawaii, No. 11-75, the petition that asked, after Kelo, when is eminent domain pretextual? We represent the petitioner, and after the case did not show up on last week's grant list the handwriting was on the wall. But today's order list made it official.
This makes at least the third pretext petition denied by the Court, meaning the lower courts will continue to flounder about searching for clues in the Kelo majority opinion's language for the correct standard to assess whether a condemnor's asserted reason for a taking is a pretext to private benefit, and ask whether Justice Kennedy's concurring opinion means much of anything. Until the Court establishes a standard, any hope of a property owner actually proving pretext to an appellate court's satisfaction will remain largely illusory: governments and their eminent domain partners do not employ "stupid staffs" (to use Justice Scalia's famous phrase) who do not know how to hide private benefits behind plausible public benefits, or manufacture "blight" from thin air, and the lower courts can continue to assert that a pretext claim exists in theory, while rejecting it in each case in which it is raised.
