Eminent domain lawyers know that even though the U.S. Supreme Court ruled against the property owner in Kelo, it acknowledged that there was a (slight?) hope in some cases where the condemnor's stated public use or purposes is actually "pretext" to private benefit.
Pretext may be present in at least three situations: (1) when eminent domain is used to transfer the private property of one party to another private party where the magnitude of public benefits outweighs the private benefit; (2) when eminent domain is used for a one-to-one transfer of private property without a comprehensive, integrated, and carefully considered development plan; and (3) where a particular private party is identified before the taking. See Kelo v. City of New London, 545 U.S. 469, 478 & n.6 (2005).
But in the 15 years since Kelo, the Court has never agreed to take up the question of how a property owner goes about actually proving that the real reason for the taking isn't the stated reason. What kind of evidence is needed? What are the burdens of proof? Some lower courts have taken a deeper dive (see this, this, and this case, for example), but on the whole it is still uncharted territory at least as far as definitive guidance from the Supreme Court goes.
In other areas of law, the courts regularly deal with pretext issues, concluding that a reviewing court must look to context to determine the motivations of government officials. See, e.g., Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977) ("Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”). And our favorite, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) ("“[W]e may determine the city council’s object from both direct and circumstantial evidence," which includes "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.").
Well today, the Court issued another opinion that might be useful to eminent domain lawyers grinding through a pretext issue. But it is not an eminent domain case, but one that involves the U.S. Census.
The issue in Dep't of Commerce v. New York, No. 18-966 (June 27, 2019), Chief Justice Roberts, writing for a five-Justice majority in a challenge to the inclusion of questions on the upcoming census about a person's citizenship, concluded that it is permissible for the census to ask such questions, but that in this case, the Department could not adequately explain why it was including the citizenship questions, and it needed to justify it better. In other words, the Department's stated reasons looked pretextual. (For more on the decision, including a breakdown of the votes, see lawprof Jonathan Adler's post at Volokh Conspiracy.)
The entirety of the opinions is worth reading of course, but for the majority's pretext analysis, start on page 23. CJ Roberts writes, "in order to permit meaningful judicial review, an agency must 'disclose the basis' of its action." Slip op. at 23. And courts normally stick to the record which the agency generates. Id. at 23-24. Why? Because (like eminent domain), in reviewing these type of cases, that due to separation of powers concerns, courts are hesitant to making deep inquiries into why another branch is doing what it does. And a court cannot conclude that an agency's rationale is invalid "simply because the agency might also have had other unstated reasons." Id. at 24. Again, a lot like condemnation. And although courts don't normally inquire into the "mental processes of administrative decisionmakers," they can in some limited circumstances.
The majority agreed with the District Court invoking that exception in this case. Starting on page 26 of the slip opinion, the Court laid out all of the facts which led the majority to conclude:
...we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.
Slip op. at 26. Noting a "mismatch" between the agency's decision to include the citizenship question, "and the rationale he provided," the majority concluded that "[w]e are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency's priorities and decisionmaking process." Slip op. at 28.
Here's the majority's bottom line that resulted in the remand:
Altogether, the evidence tells us a story that does not match the explanation the Secretary gave for his decision.
Slip op. at 27.
Eminent domain lawyers, take note.
Dep't of Commerce v. New York, No. 18-966 (U.S. June 27, 2019)
