Amicus Brief In Eminent Domain Pretext Case: Time For SCOTUS To Clear Up The "Extreme Confusion"

by Robert Thomas, InverseCondemnation.com

A coalition of property rights advocates including the National Federation of Independent Business Small Business Legal Center, the CATO Instiutute, the Owners' Counsel of America, and lawprofs James Ely, David Callies, Todd Zywicki, Randy Barnett, Eric Claeys, and D. Benjamin Barros -- has filed an amicus brief brief supporting the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).

Lawprof Ilya Somin, a noted scholar on public use issues, authored the brief, which argues:

This case presents an opportunity for this Court to clarify the definition of a "pretextual taking" under the Public Use Clause of the Fifth Amendment. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court ruled that "economic development" is a public use justifying the use of eminent domain. But the Court also emphasized that government may not "take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." ... Unfortunately, Kelo provided only limited guidance on what counts as a pretextual taking. ...

As a result, lower courts have applied widely divergent standards. ... Several state supreme courts look to the motives of the condemnor. Others focus on the whether the new private owner captures most of the benefits of the condemnation. A third group focuses on the extent of the planning process preceding the taking. The U.S. Court of Appeals for the Third Circuit emphasizes the presence of a known private beneficiary of the taking. Finally, the lower court in the present case, the New York Court of Appeals, and the United States Court of Appeals for the Second Circuit define pretext so narrowly that even the most blatant favoritism will escape judicial scrutiny. This extreme confusion calls out for resolution by this Court.

Disclosure: we represent the Owners' Counsel of  America in this case.

The case arose in Guam, and the facts are pretty outrageous. Ilagan owned land in Agana on which he ran an apartment building. Ungacta, who was then the Mayor of Agana, owned a neighboring residentially-zoned lot. In 1981, the Ungacta property did not have access to a road. Ungacta appraised a part of the Ilagan property that had access, and which was used for parking for Ilagan's tenants. Soon after, the Guam government condemned the appraised area, paying for it with compensation supplied by Ungacta, and transferred it to the,. 

Guam assert this was an "economic development" measure occurring under the "Agana Plan," a post-WWII redevelopment plan enacted to reconfigure irregular lot lines, but which had been defunct for seven years prior to the Ilagan taking. When active, it did not contemplate a single-lot taking and had never been used that way. No other lots were taken under purported authority of the Plan at the time of the Ilagan taking. In the 30 years since, the Plan has never been used to take any property.

Although the Guam trial court held the taking unconstitutional, the Guam Supreme Court reversed. At the urging of Ungacta (the Guam government did not appeal), that court applied a standard of "judicial deference" under Kelo, and held the taking served a valid public purpose. The Guam Supreme Court's opinion is here.

The Supreme Court's docket report for the case is here, in case you want to follow along. If there's a BIO, we'll post it. 

Update: More here (Ilya Somin at Volokh), and here (Ilya Shapiro at CATO).

FULL TEXT: Motion for Leave to File and Brief of Amici Curiae The National Federation of Independent Business Small Bus...

Background: Guam: Mayor Seizes Neighbor's Land