Here's the amici brief we're filing in an important Public Use case we've been following.
In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking by the St. Bernard Port, Harbor, and Terminal District of a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a "hand-picked" private operator. The owner challenged the power to take, as well as the compensation awarded. We filed an amicus brief on the issue of compensation, arguing that just compensation isn't limited to fair market value, but the jury must be allowed to consider replacement cost for a unique property like VDP's facility.
The Louisiana Supreme Court held that the Port has the power to take the docking facility so that the Port could operate the facility.The court also rejected the owner's argument that the real purpose was to take over VDP's valuable Navy contracts and to halt competition. The court held the record suggested the real reason for the taking was because the Port was at capacity and "sought to expand its cargo operations." But the court agreed with the owner (and our brief) that the compensation awarded was not enough, and send the case back down for more.
But VDP doesn't want compensation, it wants to keep its property, so it filed a cert petition asking the U.S. Supreme Court to review the Public Use arguments. Our amicus brief addresses when a reviewing court should take a harder look at the condemnor's stated reasons for a taking.
Rather than restate the brief, here's the Summary of Argument:
In a nation seemingly besieged by a vortex of divisive issues, you only need to glance at a newspaper to understand that eminent domain is one of the most contentious. Takings for pipelines. Protesters sitting in trees. Blight designations supporting condemnations for a new plant for a multinational electronics manufacturer. There is even an “Eminent Domaine” winery. But unlike many other hot-button issues, the focus on eminent domain has an easily-identifiable point source: this Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005).In Kelo, this Court’s majority approved the taking of non-blighted family-owned homes, concluding that seizing property from one private owner and turning it over to another private owner for purposes of economic development was generally consistent with the Public Use Clause as long as it was accomplished within the confines of a transparent and objective overall development plan. Thus, the public purpose of the development plan of which the taking is a part (and not the public use of the specific taking being challenged) is the measure of constitutional validity. See id. at 480 (“The disposition of this case therefore turns on the question whether the City’s development plan serves a ‘public purpose.’”).
The reaction was swift. See Ilya Somin, The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain (2015). The majority ruling resulted in a “massive and unprecedented political reaction . . . [which] attracted intense and widespread hostility.” Ilya Somin, The political and judicial reaction to Kelo, Washington Post, (June 4, 2015). Forty-five states and the federal government “enacted legislation intended to curb economic development takings; this is probably the broadest legislative reaction ever generated by any Supreme Court ruling.” Ilya Somin, The Judicial Reaction to Kelo, 4 Albany Gov’t L. Rev. 1, 2 (2011) (footnotes omitted). The ripple effect of Kelo was felt across “partisan, ideological, racial, and gender” lines. Id. The public’s reaction was no less intense. The decision resulted in mass-market books. See Jeff Benedict, Little Pink House: A True Story of Defiance and Courage (2009); Carla T. Main, Bulldozed: “Kelo,” Eminent Domain and the American Lust for Land (2007). Susette Kelo’s story was even dramatized in a feature film. See Little Pink House (Korchula Productions, 2017).
But this legislative and public reaction has resulted in only limited protections for property owners on the target end of abusive takings, because state laws are often riddled with exceptions adopted to favor special interest groups, and in application, property owners such as Petitioner continue on an uneven playing field. See Harvey M. Jacobs and Ellen M. Bassett, All Sound, No Fury? The Impacts of State-Based Kelo Laws, 63 Planning & Envtl. L. 3, 7 (2011) (“But among a set of supporters and advocates of these state laws there appears to be a broad consensus that there has been little substantive impact from them. Overall, the laws are characterized as more symbolic than substantive in nature and content.”). Highly deferential judicial review continues to limit the proper role of the judiciary as a check on the legitimacy of the exercise of eminent domain authority.
Kelo recognized that an exercise of eminent domain “under the mere pretext of a public purpose, when its actual purpose [is] to bestow a private benefit,” would be unconstitutional. Id. at 478. Kelo left unresolved the question of when a taking—ostensibly for public use—will instead confer private benefit because it was not “executed pursuant to a ‘carefully considered’ development plan, there was “evidence of an illegitimate purpose,” and the result is “to benefit a particular class of identifiable individuals.” Id. The Court did not further address the question because “[s]uch a one-to-one transfer of property, executed outside the confines of an integrated development plan, [was] not presented in [that] case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise.” Id. at 487 (footnotes omitted).
This is that case. The Port’s taking of a fully-functioning docking facility and turning it over to a previously identified competitor to operate was not part of a publicly beneficial plan, and this case includes all of the factors identified by Kelo as indicators of pretext: a known private beneficiary driving the process; no integrated or independent development plan; little public benefit from the taking; and an exercise of eminent domain so unusual that it shows the actual character of the taking was not public use or purpose. Because of these factors, the Public Use Clause required that the courts consider the case with less than the usual deference and should have viewed the taking with heightened scrutiny.
Amici make three points in this brief. First, meaningful judicial review under the Public Use Clause is essential because the political process does not adequately protect property owners from abusive takings. The record in this case aptly illustrates how favored private players can capture the process, even while the condemnor’s stated purposes for the taking remain neutral. Second, Public Use Clause objections should be considered by applying the same analysis that the courts use where other constitutional rights are claimed to be denied by facially neutral government action. Finally, we set out the analytical and evidentiary framework which should have governed this case.
This Court is uniquely positioned to calm the waters on the question of when a taking of property “for the purpose of conferring a private benefit on a particular private party” passes Public Use Clause muster. Id. at 477. This case presents an excellent vehicle to do so.
Br. at 3-7 (footnotes omitted).
Stay tuned as always. Or follow along on the Court's docket.
