Today, we filed the Reply Brief (also available below) in the case that asks: after Kelo, when is eminent domain pretextual?
Last month, we filed a cert petition asking the Supreme Court to review the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (Haw. 2010). In that case, the Hawaii court upheld the taking of land on the Big Island, holding that the asserted public use was not a pretext to the overwhelming private benefit to the developer of the luxury Hokulia project.
On August 17, 2011, the developer and the County filed their joint brief in opposition. Our brief responds:
After reviewing the Oceanside/County brief, it would be easy to forget why this case is here: they argue the Hawaii Supreme Court correctly applied the rational basis standard for pretext established in Kelo v. City of New London, 545 U.S. 469 (2005). However, pretext was not presented in Kelo, and this Court concluded that standards governing pretext claims "can be confronted if and when they arise." Id. at 487 (footnote omitted). Thus, the petition is premised on the question that Kelo did not reach and this Court should now address, since there are cases where the rational relationship test is insufficient and stricter scrutiny or burden shifting is required.
The Kelo majority foretold of the case at bar when it noted "[n]or would the [government] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," id. at 478, and that a "transfer of property, executed outside the confines of an integrated development plan . . . [would be] an unusual exercise of government power [and] would certainly raise a suspicion that a private purpose was afoot." Id. at 487. Justice Kennedy also presaged that "[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted." Id. at 493 (Kennedy, J., concurring). But in the intervening years, courts nationwide have been unable to decide whether these standards actually govern pretext claims. Unable to address the petition’s central argument – that post-Kelo, courts have been unable to settle on a pretext standard and that "[i]t seems unlikely that any consensus will emerge in this area any time soon, unless the Supreme Court decides to review a case that settles the dispute" – the joint brief of Oceanside and its Development Agreement partner County of Hawaii instead wrongly assumes Kelo held that pretext claims are evaluated under the rational basis standard, and that the courts below properly examined the factual record. These claims are neither correct, nor relevant.
This Court’s intervention is plainly needed, and the petition should be granted.
Reply at 1-2 (footnote omitted). The case will be distributed to the Court shortly, and it is scheduled to consider the petition at its September conference.