New Cert Petition: Does The Fifth Amendment Require Compensation For Destroying Business In A Taking?

Check this out, the latest cert petition from the Institute for Justice (Kelo), in a case we've been following.

This one asks a question that has been kicking around in the lower courts for a long time, and has long bothered we who represent property owners who have to eat the often-massive losses to a business which come about as a direct result of eminent domain (and which condemning agencies and the courts almost invariably determine are "consequential" losses, not compensable.

The U.S. Supreme Court, in Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), held that "an exercise of the power of eminent domain which has the inevitable effect of depriving the owner of the going-concern value of his business is a compensable 'taking' of property," and you would think that would take care of the question of whether such losses are part of just compensation. But that's not the way that many courts -- here, the Louisiana Supreme Court -- see that case.

Here's the Question Presented:

Whether the government must pay compensation under the Just Compensation Clause of the Fifth Amendment when the condemnation of real property inevitably destroys the value of a business as a going concern (as the high courts of Minnesota, Nevada, New Mexico, and Pennsylvania have held) or whether property owners are entitled to such compensation only if the government directly takes the business itself (as the court below held, joining the Federal Circuit and the highest courts of the District of Columbia, Montana, and Wisconsin).

More on the case and issues here, from IJ.

Now, for the real test: how do you pronounce "LaFourche (something we learned yesterday)?"

Petition for a Writ of Certiorari, Jarreau v. South LaFourche Levee District, No. ____ (cert. petition file...