Here's the amicus brief we filed yesterday in a public use case we've been following that asks whether pretext and private benefit are irrelevant as long as the condemnor invokes a "classic" public use. In this case, the Colorado Supreme Court overturned the court of appeals' conclusion that even though the purported purpose of the taking was to provide future possible public infrastructure, the overwhelming private benefit today meant the taking was not for public use.
Here's the cert petition.
Southeastern Legal Foundation, Cato Institute, Owners' Counsel, and NFIB Small Business Legal Center joined in the brief, which argues that the unusual circumstances (an obviously self-interested condemnor) lead to a reasonable suspicion that "a private purpose is afoot" (as Kelo put it), and thus the usual presumption of conceivable basis review is not warranted, and indeed, the courts should look at these type of takings with a particularly skeptical eye.
Here's the Summary of Argument:
In Kelo v. City of New London, 545 U.S. 469 (2005), this Court 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,” is unconstitutional. Id. at 478. But the Court did not address the question directly, because “[s]uch a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this 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. It offers the Court an opportunity to clarify that the Public Use Clause is not mere hortatory fluff, and affirm that the Fifth Amendment limits eminent domain. The Court should grant review.
Br. at 2-3 (footnote omitted).
Stay tuned. The Respondent has asked the Court for more time to file a BIO, so we expect one shall be filed. We'll keep following along, or you can do so on the Court's e-docket.
