Urging the Supreme Court to Flesh Out the “Pretext” Exception to its Controversial Ruling inKelo v. City of New London
In this case, NELF joined with a number of amici to urge the U.S. Supreme Court to grant certiorari for the purpose of clarifying how courts should analyze a case in order to determine when the government’s “public use” rationale for taking private property is a sham or pretext intended to cover a scheme of private, third-party enrichment.
In Kelo v. City of New London the Supreme Court ruled that a governmental taking of private property for private (as opposed to public) development, would satisfy the "public use" requirement of the Fifth Amendment, so long as the private development was intended to benefit the public at large.
The Court ruled that the taking there did not violate the Fifth Amendment because New London's purpose was for the private development of the property to provide increased local employment and tax revenues to the city. (In fact, to date the property taken has not been developed and remains a vacant lot and an eyesore, mainly because after the Kelo decision, Pfizer--whose presence in the city was a vital expectation for the development--made the corporate decision to leave New London.)
However, in Kelo the Supreme Court did place an important limitation on such takings. With little elaboration, the Court stated that such a use of eminent domain would fall afoul of the Fifth Amendment if the alleged public purpose were merely a pretext, i.e., if the property was taken in actuality just to benefit a particular private party, as opposed to the public at large.
Since Kelo, both the lower federal courts and the state courts have adopted divergent approaches to determining whether the alleged public benefit is merely a pretext. In the present case, involving property located in Guam, the Petitioners claim that the taking of their property violated Kelo--i.e., that the alleged public purpose was actually a sham, under cover of which their property was taken to benefit the family of the local mayor.
The Guam Supreme Court was completely deferential to the municipal authorities in this instance, seeing little reason to sift through the powerful set of facts that the Petitioners presented to prove a pretextual taking. While there are other facts that would perhaps validate the taking, the Guam Supreme Court performed no balancing of factors and did not look seriously at the plaintiffs' case. In their brief, NELF and its fellow amici did not deal so much with the factual inquiry, as emphasize that this case provides a golden opportunity for the Supreme Court to clarify how lower courts should proceed analytically when faced with such a set of facts. Any such guidance would determine how inquiry should be conducted throughout the country, including New England.
Despite the importance of the question presented, the Supreme Court denied the writ of certiorari on April 15, 2013.
In this case, NELF joined with a number of amici to urge the U.S. Supreme Court to grant certiorari for the purpose of clarifying how courts should analyze a case in order to determine when the government’s “public use” rationale for taking private property is a sham or pretext intended to cover a scheme of private, third-party enrichment.
In Kelo v. City of New London the Supreme Court ruled that a governmental taking of private property for private (as opposed to public) development, would satisfy the "public use" requirement of the Fifth Amendment, so long as the private development was intended to benefit the public at large.
The Court ruled that the taking there did not violate the Fifth Amendment because New London's purpose was for the private development of the property to provide increased local employment and tax revenues to the city. (In fact, to date the property taken has not been developed and remains a vacant lot and an eyesore, mainly because after the Kelo decision, Pfizer--whose presence in the city was a vital expectation for the development--made the corporate decision to leave New London.)
However, in Kelo the Supreme Court did place an important limitation on such takings. With little elaboration, the Court stated that such a use of eminent domain would fall afoul of the Fifth Amendment if the alleged public purpose were merely a pretext, i.e., if the property was taken in actuality just to benefit a particular private party, as opposed to the public at large.
Since Kelo, both the lower federal courts and the state courts have adopted divergent approaches to determining whether the alleged public benefit is merely a pretext. In the present case, involving property located in Guam, the Petitioners claim that the taking of their property violated Kelo--i.e., that the alleged public purpose was actually a sham, under cover of which their property was taken to benefit the family of the local mayor.
The Guam Supreme Court was completely deferential to the municipal authorities in this instance, seeing little reason to sift through the powerful set of facts that the Petitioners presented to prove a pretextual taking. While there are other facts that would perhaps validate the taking, the Guam Supreme Court performed no balancing of factors and did not look seriously at the plaintiffs' case. In their brief, NELF and its fellow amici did not deal so much with the factual inquiry, as emphasize that this case provides a golden opportunity for the Supreme Court to clarify how lower courts should proceed analytically when faced with such a set of facts. Any such guidance would determine how inquiry should be conducted throughout the country, including New England.
Despite the importance of the question presented, the Supreme Court denied the writ of certiorari on April 15, 2013.
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