So close: if just one more Justice had agreed, the U.S. Supreme Court would have taken up a public use case we've been following, Brinkmann v. Town of Southhold. After all, this one had a lot of the usual markers: a divided court below, an allegation of a lower court split, beaucoup amicus support, and a long-festering issue that has remained open for almost 20 years.
But alas, in this Order, the Court denied the cert petition. Perhaps not surprising given the small number of cases the Supreme Court takes up these days (those of us who have been around for a while remember the days when the Court's docket was up to 140 argued cases each Term). But nonetheless a disappointment.
One hint for future similar cases: three Justices (Thomas, Gorsuch, and Kavanaugh) "would grant the petition." We wonder why one more Justice among at least three potential candidates (CJ Roberts, Alito, or Barrett) didn't add the fourth vote to grant. Lawprof Ilya Somin shares his insight in "Supreme Court Refuses to Hear 'Passive Park' Public Use Property Rights Case," where he writes:
I would very much like the Supreme Court to take another public use case, and overrule Kelo and Berman, or at least cut back on those badly flawed precedents. But, for reasons noted in my earlier post, I think this case would have been a bad vehicle for reviewing these issues[.]
The situation here is what we call a "spite taking" (where the apparent purpose of the taking is not so much to promote a public use or benefit, but to stop a property owner from making some publicly disfavored use of his or her land). Are these okay under the Public Use requirement because -- as the Second Circuit panel majority held -- that it is just fine to do good things for bad reasons, and who cares about motivation as long as the stated use is public and not a pretext to a private benefit. Or does it offend the Public Use Clause -- as other courts have held -- to say you're taking it for some public use, when your real motivation is something else (even if not a private benefit)?
Underlying all this is what we see as the predicate question: should the government be in the business of using eminent domain to forcibly acquire private property because the owner is making -- or as here, proposes to make -- an allowed use of the property that the government or the public doesn't like?
One argument is that the government should not be able to use the "despotic power" in such a fashion -- that it should be outright prohibited, or at least subject to more than rational basis review due to the potential for abuse. Countering that is the argument that all exercises of eminent domain are the government telling a property owner that it is forcibly acquiring property because the current use is disfavored: you want to use your property for a house, but the public thinks it should be a post office or fire station. Then there's also the distinction the Second Circuit made that pretext should be reserved for those situations where the stated public use is a pretext to a private use or benefit, and not, as here, another public use.
Unfortunately, we're not going to get any answers on these questions just yet.
So close, yet so far. Stay tuned.
