Urban Lawyer

Recent Developments in Eminent Domain

by Robert H. Thomas

Robert H. Thomas is with Damon Key Leong Kupchak Hastert, Honolulu, Hawaii. Vice-Chair, ABA Section of State and Local Government Law. LLM, Columbia Law; JD, University of Hawaii.

THE FOLLOWING ARE THE SIGNIFICANT EMINENT DOMAIN CASES decided in the past year, as well as some notable inverse condemnation and property rights cases that involve issues common to eminent domain litigation.

I.   U.S. Supreme Court: Horne v. Department of Agriculture: Way More than Silly Raisin Jokes

“Separate educational facilities are inherently unequal.”
- Chief Justice Earl Warren, Brown v. Board of Education1

“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”
- Justice Oliver Wendell Holmes, dissenting in Lochner v. New York2

“. . . prejudice against discrete and insular minorities . . .”
- Justice Harlan Fiske Stone, United States v. Carolene Products Co.3

“Raisins . . . are a healthy snack.”
- Chief Justice John Glover Roberts, Horne v. Department of Agriculture4

A Supreme Court win is a win, particularly by a margin of eight-to-one, so no one ought to complain too much about the Court’s opinion in Horne v. Department of Agriculture, holding that the United States Department of Agriculture’s requirement that raisin producers physically turn over a percentage of their yearly crops to the government without being provided compensation is a taking in violation of the Fifth Amendment.5

A.   All Joking Aside

Because the case involved California raisin farmers and a regulatory scheme that was so easily subject to mockery, the case has spawned more than a few jokes and horrible puns in the popular media and commentariat. It certainly brought out the Chief Justice’s dry wit, as reflected in the above quote. No less than The Daily Show did a piece caricaturing the USDA’s regulation of raisins (“the product,” according to the investigator interviewed, with plaintiff Marvin Horne labeled “a modern day Jesse James”), and nearly every report on the case has not resisted the temptation to make very bad raisin jokes.6 Even the Court could not hold back, and in addition to the Chief Justice’s bon mot, Justice Thomas noted in his short concurring opinion that sending the case back to the Ninth Circuit for yet another try “would be a fruitless exercise.”7 And do not forget those dancing raisins.

The case was also subject to mockery on the substantive side. The Ninth Circuit’s rationale upholding the law was so transparently ridiculous that the Government did not even defend it seriously in the Supreme Court. The panel concluded that personal property is not subject to the same constitutional protection as real property, and thus the unconstitutional conditions doctrine of Nollan,8 Dolan,9 and Koontz10 was not applicable when raisins are seized.11 So, it was not that hard to predict that the Hornes would prevail in their second trip to the Court.

Although “raisins . . . are a healthy snack”12 certainly will not enter the Supreme Court Quote Hall of Fame (while clever, the phrase has not even generated an internet meme), it would be a mistake to relegate the case to the humor file, or to write-off the Court’s ruling as  a result so obvious that there was never any serious question about the outcome.

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