July 18th, 2011 — By — In News & Events

New Cert Petition filed with SCOTUS: Post Kelo when is condemnation pretextual?

On July 14, 2011, our colleagues* at Damon Key Leong Kupchak Hastert in Honolulu, Hawaii filed a cert petition (see below) asking the U.S. Supreme Court to review the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 242 P.3d 1136 (Haw. 2010). In this case the County of Hawaii sought to seize by eminent domain the private property of the Coupe and Richards families for the purpose of constructing a 5.5-mile highway to bypass part of the congested Mamalahoa Highway. Hawaii’s highest court upheld the taking on The Island of Hawaii (aka “the Big Island”) holding that the asserted public use (a highway bypass) was not a pretext for a primarily private benefit received by the developer of a luxury residential project, the Hokulia project.

[*Disclosure: OCA Hawaii Member, Robert Thomas, is one of the Damon Key attorneys who has represented the Coupe and Richards Family in this litigation and in this request to the Supreme Court.]

Because he said it so well and because of his personal familiarity with this case, we will borrow what Robert has written on his inversecondemnation.com blog here outlining the opportunity that this petition for certiorari offers with respect to clarification of pretext in eminent domain.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that “unusual” exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan; (2) the factual context reveals suspect motivations such as a contractual restraint on sovereign powers; (3) the taking benefits a particular private party selected beforehand; or (4) private benefits outweigh incidental public benefits.

Governments and property owners will benefit from the establishment of clear standards, because condemning authorities will understand that when they utilize eminent domain in a neutral, transparent, and well-considered process, the result will be entitled to judicial deference, and property owners will be assured that in the absence of these indicators of pretext, the need to surrender their property for the greater good is genuine. While any single indicator is enough to trigger reversal of the presumption of validity, this case has all four.

The Question Presented in the petition follows:

The Hawaii Supreme Court held that a one-to-one transfer of property to a private developer by eminent domain, instituted outside the confines of an integrated development plan, and while the condemnor was threatened by breach of a contract in which it promised to condemn the land for the developer, was not subject to a presumption of invalidity or even heightened scrutiny under the Fifth Amendment’s Public Use Clause. The court concluded that even when “a contract that delegates a county’s eminent domain powers raises well founded concerns that a private purpose is afoot” under Kelo v. City of New London, 545 U.S. 469 (2005), it is the property owner’s burden to prove by “clear and palpable” evidence the asserted reason for taking property is “manifestly wrong.”

Since Kelo, the lower courts have been unable to settle on consistent or clear standards for when the public purpose supporting an exercise of eminent domain is pretextual, or in what situations the “risk of undetected impermissible favoritism” is such that a presumption of invalidity or a heightened standard of review is warranted. Id. at 493 (Kennedy, J., concurring). The question presented is:

What category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?

Additional background relating to this case is available on inversecondemnation.com here and here. See also Hawaii Legal News and the Star Bulletin.

Petition for a Writ of Certiorari, C&J Coupe Family Ltd Pship v County of Hawaii (filed 7/14/2011)

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