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May 1st, 2010 — By — In News & Events

Update: Amici brief filed in SCOTUS “undivided fee rule” eminent domain case

Yesterday, the National Association for Home Builders together with the Wisconsin Building Association filed a brief amici curiae in support of the VFW in the City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

The amici brief, filed by Robert H. Thomas (OCA Hawaii Member), urges the Court “to grant the writ of certiorari to review the Wisconsin Supreme Court’s conclusion that in eminent domain law, somehow the whole can be lesser than the sum of its parts.” The brief calls the undivided fee rule a “rule of convenience” allowing a court to avoid valuing a leasehold apart from the fee simple estate when the two separate interests are condemned simultaneously and, further, that this rule cannot override the 5th Amendment’s guarantee of just compensation.

Check out Robert’s blog for detailed analysis of the petition for writ of certiorari filed by Michael Berger and Gideon Kanner, also OCA Members, (see our previous post announcing the filing of the cert petition here) as well as the arguments in the Home Builder’s/Wisconsin Building Association’s amici brief.

The SCOTUS online docket indicates that an order to extend time to respond has been entered in the case granting the Respondent, City of Milwaukee Redevelopment Authority, 30 additional days to respond. We will keep watch for the Respondent’s brief and any other amici briefs that might be filed, so check back here on June 4.

UPDATE: The public interest law firm Institute for Justice (IJ) also filed a brief amicus curiae in support of the VFW in this case. The brief was authored by Ilya Somin, Associate Professor, George Mason University School of Law, and Dana Berliner, Senior Attorney, Institute for Justice. (Disclosure: Dana Berliner is also an OCA Member.) IJ’s brief argues that the application of the rule in this case violates both the general constitutional principle of just compensation and the Supreme Court’s specific formula regulating compensation for the taking of leaseholds. See Professor Somin’s post on The Volokh Conspiracy blog here.