ARLINGTON, Va.—The government’s power to take people’s property using eminent domain is limited by the constitution to only those situations where the taking is for a “public use.” But what if the government lies and invents a public use to shield an illegitimate taking aimed at stopping a homeowner or business from doing something perfectly legal with their property?
Three amicus briefs ask the Supreme Court to take up the case of Brinkmann Hardware, a family-owned business represented by the Institute for Justice (IJ) whose property was taken by a small Long Island town for a park, only after government officials failed to stifle the store using other means. The briefs point out for the Supreme Court how eminent domain can destroy lives and livelihoods and why courts must be able to inquire into the hidden, unconstitutional purpose behind takings.
“The town of Southold says that, so long as the government lies about why it’s taking your property, it can take it for any reason at all—even because town officials just don’t like you,” said IJ Senior Attorney Jeffrey Redfern. “That’s wrong, and a diverse coalition of amici explain why.”
The brief of the Southern Christian Leadership Conference of Southern California (SCLC) relates the sad story of Bruce’s Beach, a Black resort in Manhattan Beach, California, in the early 20th century. A few decades after emancipation, Willa Bruce and her husband moved to Los Angeles County to earn a living by operating a small seaside business where guests could buy lunch, change into bathing suits, and swim.
But this developing Black community was full of disfavored property owners, and Manhattan Beach officials, responding to complaints by white property owners, resorted to eminent domain to snuff it out in 1924. The city claimed that the property would be used for a public park, but that was mere pretext—the property instead stayed vacant for over three decades. The real purpose of the taking was to drive out Bruce’s Beach and the surrounding community. The SCLC brief, authored by Gibson, Dunn & Crutcher LLP, also points to several other bad faith takings that upended Black communities, including where Santa Monica used eminent domain to take homes and businesses.
Susette Kelo is perhaps the most well-known victim of eminent domain abuse this century. Her fight for her little pink house in New London, Connecticut, was the last major U.S. Supreme Court case to consider eminent domain abuse. The narrow 5-4 decision in Kelo permitted the city to take her property not for public use, but rather private redevelopment. That property and much of the entire neighborhood remains vacant as the city’s plans for redeveloping it fell through. But Susette and her neighbors are gone.
Ms. Kelo’s brief, authored by Sullivan & Cromwell LLP, explains how the decision by the 2nd U.S. Circuit Court of Appeals in the Brinkmann case parts ways with several state supreme courts. In the state cases, the courts did the exact opposite of the federal appellate court in Brinkmann: the judges examined the true purpose for the government’s use of eminent domain and held the takings unconstitutional when there was bad faith and pretext involved. In Brinkmann, a split federal appellate court refused to inquire into allegations of pretext and bad faith and rubber-stamped the taking of the hardware store’s property.
The National Association of Realtors and the New York State Association of Realtors also filed an amicus brief, authored by Hilgers Graben PLLC. Their brief explains that if “eminent domain could be employed at any time … to shut down a law-abiding development because the government disfavors it (or the developer), a crippling uncertainty would reign supreme in the real estate industry.” The predictable result of giving local governments this much power over private property would be that only political insiders would be able to develop property.
The Brinkmanns’ cert petition will be considered by the Supreme Court at its first conference of the term on September 30.