OCA Joins Coalition of Property Rights Advocates as Amicus in Support of Property Owner Seeking Supreme Court Review in Kelo-like Eminent Domain Case

A coalition of property rights advocates including the Owners’ Counsel of America, National Federation of Independent Business Small Business Legal Center, CATO Instiutute, and noted law professors James Ely, David Callies, Todd Zywicki, Randy Barnett, Eric Claeys, and D. Benjamin Barros, has filed an amicus curiae brief in support of the Petition for Certiorari filed by the Pacific Legal Foundation in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).

The brief, authored by George Mason law professor, Ilya Somin, 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.

This case arises out of the U.S. Territory of Guam. Mr. Ilagan owned an apartment complex in Agana, Guam. Mr. Ungacta, who was then the Mayor of Agana, owned a neighboring residential 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 Ungacta.

Guam asserted that the taking was for “economic development” occurring under the “Agana Plan,” a post-WWII redevelopment plan enacted to reconfigure irregular lot lines, but which had not been used for seven years prior to the Ilagan taking. 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.

More about the Ilagan case and the amici brief is available at inversecondemnation.com, The Volokh Conspiracy and the CATO Institute.

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