Developer & County's Brief In Opposition filed In Eminent Domain Pretext Case

by Robert Thomas, Inverse Condemnation

Last week the developer and the County of Hawaii filed their joint Brief in Opposition in C & J Coupe Family Limited Partnership v. County of Hawaii, No. 11-75 (cert. petition filed July 14, 2011), responding to the cert petition we filed earlier, that poses this Question Presented:

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 condemner 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?

Not surprisingly, the BIO does not agree with that formulation of the issue, and puts it this way"

Whether Petitioner has presented compelling reasons to grant the Petition, where the Hawaii Supreme Court's Opinion affirming the State Circuit Court's application of the Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655 (2005) analytical framework, in the condemnation of land for the construction of a regional public highway, does not conflict with a decision of this Court nor does it implicate an important federal question that has not been settled by this Court that would require this Court to create a new standard of scrutiny.

The Court is scheduled to consider the case at its September conference.

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