aclu coa amicus brief-1

8/11/2019 ACLU COA Amicus Brief-1

1/12

COMMONWEALTH OF KENTUCKY

COURT OF AfPEALS

CASE NO. 2014-CA-000517

BJ"UEGRASS PIPELINE COMPANY, LLC APPELLANT

v.

Appeal from Franklin Circlli Comt

13-CI-1402

KENTUCKIANS UNITED TO

RESTRAIN EMINENT DOMAIN, INC.

MICUS CURIAE

BRIEF

OF

Al\1ERICAN CIVIL LIBERTIES UNION OF

KENTUCKY

Sllbmitted

by:

vG l-7'-t-----C

\

~ \

William Sharp

Randal

A.

Strobo

j

W.H. Graddy Associates

APPELLEE

Legal Director

ACLU

OF KENTUCKY

315 Gllthrie Street, Sllite 300

Louisville, Kentucky 40202

(502) 581-9746

[email protected]

ACLU

OF KENTUCKY

Cooperating Attomey

Post Office Box 4307

Midway, Kentucky 40347

(859)-879-0020

[email protected]

Certificate

required by

CR 76.12(6)

The undersigned certifies that copies

of

this Brief were served upon the following

named individuals by first class mail on August

13

2014: Hon. Phillip Shepherd, Chief

Circuit Judge, Franklin County Courthouse, 222 st Clair Street, FrankfOli, Kentucky

40601; Hon. Thomas

J.

fitzGerald, KENTUCKY

R E S O U R E ~

COUNCIL, INC., 213

st

Clair Street, Suite 200, Post Office Box 1070, Frankfort, Kentucky 40602-1070; Hon. '

Gregory Parsons, STITES HARBISON, 2300 Lexington Financial Center, 250 West

Main Street, Lexington, Kentucky 40507; and Hon. Chadwick McTighe, STITES

HARBISON, 400 West Market Sheet, Suite 1800, Louisville, Kentucky 40202. The

undersigned further certifies that the record on appeal was not withdrawn from the

Cferk's office in the preparation of this r i e f ~ ~

rf I I ;

_ ~ \ r ~

Ran

al A.

Stro

0


2/12

STATEMENT OF POINTS AND AUTHORITIES

STATEMENT OF POINTS AND AUTHORITIES ...........................................................

.i

STATEMENT OF THE CASE

.....................................................................

1

SUMMARY OF THE ARGUMENT............................................................. 1

ARGUMENT..........................................................................................2

I THE KENTUCKY CONSTITUTION REQUIRES

THAT

EXERCISES

OF EMINENT DOMAIN MUST BE FOR A PUBLIC USE ................... 2

A. Ky. Const. 13

and

242 Impose a Public Use Requirement .

.................

2

God's

Ctr

Found., Inc.

v

Lexington Fayette Urban Cnty. Gov't,

125

S.W.3d 295 (Ky. Ct. App. 2002) ................................................. 2 3

Boom

v

Patterson,

98 U.S. 403 (1878)

............................................................

2

Ky.

Canst. 13 ..................................................................................... 2 4

Ky. Canst. 242

..................................................................................

2-3, 4

Rabourn

v

Commonwealth,

2006 Ky. App. Unpub. LEXIS 137

(Ky. Ct. App. July 14 2006)

................................................................

3

Profitt v Louisville Jefferson Co.,

850 S.W.2d 852 (Ky. 1993) ............................

3

KRS 278.502

........................................................................................

.3

Chesapeake Stone Co v Moreland, 104

S.W. 762 (1907) .................................. 3-4

B. Kentucky s Public Use Requirement Is

More

Protective of

Individuals

Property

Rights

Than

Is

The

United States

Constitution

............................................................................

.4

U.S. Canst., Amend.

V

.........................................................................

.4,

5

MICHAEL

A.

RUH,

JR and

MATTHEW T. LOCKABY, Balancing Private Property Rights

With

Public Use : A Survey o/Kentucky Courts' Intelpretation

0/

he Power

O/Eminent Domain,

32 N. Ky. 1 Rev. 743 (2005) .................................... 4

Berman

v

Parker,

348 U.S. 26 (1954) ............................................................4


3/12

Hawaii Housing Auth. v Midkiff

467 U.S. 229 (1984) ........................................ .4

Kelo v City o New London Conn.

545 U.S. 469 (2005)

..............................

4-5,6-7

KRS 416.675

........................................................................................

5

City o/Owensboro v McCormick 581

S.W.2d 3 (Ky. 1979)............................. 5-6 7

Miles

v

Dawson 830 S.W.2d 368 Ky. 1991)

...................................................

6

Prestonia Area Neighborhood Ass

/1

v Abramson

797 S.W.2d 708

(Ky.

1990)

............

6

Decker v Somerset

838 S.W.2d 417

(Ky.

Ct. App. 1992)

.....................................

6

Bernard

v

Russell County

Air

Board 718 S.W.2d

123

(Ky. 1986) ...........................6

II

CONCLUSION

............................................................................

7

Ky.

Const.

2

.........................................................................................

7

Ky. Const. 13

.......................................................................................

7

Ky.

Const. 242

......................................................................................

7


4/12

STATEMENT

OF TH

CASE

Appellee Kentuckians United to Restrain Eminent Domain ( KURED ) is an

organization consisting

of

members who are united to protect Kentuckians from the ...

exercise [of] eminent domain

by

entities not

n

public service to Kentuckians. KURED

filed this action seeking declaratory relief regarding the claimed eminent domain

authority asserted

by

Appellant Bluegrass Pipeline Co., LLC ( BGP ) in its negotiations

with landowners as it sought to purchase land for the development of a pipeline to

transpOli natural gas liquids ( NGLs ). Following briefing and oral argument, the

Franklin Circuit Couti awarded summary judgment to KURED finding that BGP lacks

eminent domain authority because:

1

BGP is not a utility regulated

by

Kentucky's Public

Service Commission [Opinion Order, 12]; and 2) even

if

eminent domain were

available to unregulated utilities, BGP is not in public service as required by statute.

[ld at 15.]

SUMJVIARY

OF TH ARGUMENT

This appeal implicates, but does not squarely address, fundamental questions

about the limits upon eminent domain authority (and, by necessity, the concomitant

protections for individuals' property rights) found in the Kentucky Constitution.

Specifically, the Kentucky Constitution is more protective

of

individuals' property rights

than is the United States Constitution because it imposes a strictly-construed public use

requirement upon the exercise

of

eminent domain authority. Because Kentucky's coutis

have remained faithful to this constitutional language by constlUing it as a meaningful

limitation upon eminent domain authority, Kentuckians have been able to be secure in

their ownership of propeliy free from arbitrary and unconstitutional interference. Here, a

1


5/12

narrow construction

of

the purpotied bases for eminent domain authority at issue is

consistent with that historical approach and therefore suppOltive of the judgment below.

Thus, the ACLU

of

Kentucky urges this Couti to affirru the grant

of

summary judgment

to KURED.

ARGUMENT

I

THE KENTUCKY CONSTITUTION REQUIRES THAT EXERCISES OF

EMINENT

DOMAIN MUST

BE FOR A PUBLIC USE.

A Ky. Const. 13

and

242 Impose A Public Use Requirement.

The power

of

eminent domain - also commonly refel1'ed to as the power

of

condemnation - is an attribute

of

sovereignty that authorizes the taking

of

one's

propetiy even though that person may object. God's

Ctr. Found.

Inc. v Lexington

Fayette Urban Cnty. Gov't, 125 S.W.3d 295, 306 n.8 (Ky. Ct. App. 2002) (quoting Boom

v Patterson, 98 U.S. 403 (1878)). The state may delegate its power of eminent domain to

others tln'ough various statutory grants

of

authority. And in doing so, it is

of

no

consequence whether the person or entity to whom the authority is confell'ed is a private

or public entity.

But, even though the state's power to exercise eminent domain is not dependent

upon authority conferred by the Constitution, it is nonetheless constrained

by

constitutional limitations. God's Ctr.

Found.

Inc., 125 S.W.3d at 306 n.8 (emphasis

added). Specifically, Section 13 of the Kentucky Constitution states that No person

shall, for the same offense, be twice put in jeopardy

of

his life or limb,

nor shall any

man's property be taken or applied

to

public use without the consent

o

his

representatives, and without just compensation being previously made

to

him.

(Emphasis added). Similarly, Section 242 provides:

2


6/12

Municipal and other corporations, and individuals invested with the

privilege of taking private property for public use shall make just

compensation for property taken, irifured or destroyed by them; which

compensation shall be paid before such taking, or paid or

secm-ed,

at the

election

of such corporation or individual, before such injury or

destruction. The General Assembly shall not deprive any person

of

an

appeal from any preliminary assessment of damages against any such

corporation or individual made by Commissioner or otherwise; and upon

appeal from such preliminary assessment, the amount

of

such damages

shall, in all cases, be detelmined by a jury, according to the com-se of the

common law.

Ky.

CONST.,

242 (emphasis added);

see also Rabourn

v.

Commonwealth,

2006 Ky.

App. Unpub. LEXIS

137

(Ky. Ct. App. July 14, 2006) ( [TJhe legislature's delegation of

the power

of

eminent domain is limited only

by

the constitutional requirements that

private property may only be taken for public use, that the condenmee receive just

compensation ' and that exercise of that authority may not be arbitrary. ). Thus, the

exercise of eminent domain authority in Kentucky (whether by public or private entities)

must, inter alia, satisfy the constitutional requirement that it

be

for a public use. See

Profitt

v.

Louisville Jefferson

Co.

850 S.W.2d 852, 854 (Ky. 1993) ( It has long been

held that

in

every case in which the power of eminent domain is invoked, it must appear

that the property is desired for a public use and will be reasonably necessary for the

use .. . ). Moreover, the public use must be the primary or principal use for the

condemned property, not merely secondary to a private use. See e.g., God's Ctr. Found.,

Inc.,

125

S.W.3d at 302.

The constitutional limitation upon eminent domain authority represents the

minimum requirements. But, as the trial court

cOlTectiy

noted, the General Assembly is

free to enact more stringent limitations upon the exercise of that authority. [Opinion

Order, 15 (noting that Kentucky, in 1948, nalTowed the scope of KRS 278.502 by

shifting from a broader 'public use' standard to a more

nalTOW

'in public service'

standard. J

3


7/12

In

construing the public use requirement, Kentucky courts have stated:

Public use means use

by

the public; and this,

it

seems

to

us, is the

construction the words should receive in the constitutional provision in

question. The reasons which incline us to these views are, first, that it

accords with the primary and more commonly understood meaning of the

words; second, it accords with the general practice in regard to taking

private property for public use in vogue when the phrase was first brought

into use

in

the earlier constitutions; third, it is the only view which gives

the words any force

as

a limitation, or renders them capable of any definite

or practicable application. If the Constitution means that private property

can

be

taken only for use by the public, it affords a direct guide for both

the legislature and the courts.

Chesapeake Stone

Co

v. Moreland,

104 S.W. 762, 765 (1907) (internal quotations and

citation omitted). As is more fully explained below, Kentucky's public use limit upon the

exercise

of

eminent domain is

more

protective

of

individuals' property rights than is

found under the analogous provision

of

the United States Constitution.

B.

Kentucky s

Public Use

Requirement

Is

More

Protective Of

Individuals

Property

Rights Than

Is The

United States Constitution.

The text of the Fifth Amendment to the United States Constitution, like 13 and

242

of

the Kentucky Constitution, requires that exercises

of

eminent domain

be

in

furtherance of a public use. U.S. CaNsT., Amend.

V (

nor shall private propeliy

be

taken for public use, without just compensation. ). But in construing this provision, the

United States Supreme Court has broadened its ... interpretation of the 'public use'

provision ... to include 'public purpose' as may

be

characterized

by

local legislatures.

MICHAEL

A. RUH JR

and

MATTHEW

T. LOCKABY Balancing Private Property Rights

With Public Use : A Survey

o

Kentucky Courts' Intelpretation

o

he Power

o

Eminent

Domain,

32 N. Ky.

L

Rev. 743, 755 (2005) (citing

Berman v Parker,

348 U.S. 26

(1954); Hawaii Housing Auth.

v

Midkiff, 467 U.S. 229 (1984.

4


8/12

The Supreme Court further confirmed its expansive interpretation of the Fifth

Amendment's public use requirement in Kelo v City o New London Conn. 545 U.S.

469, 480 (2005). Specifically,

Kelo

involved an assertion

of

eminent domain authority to

condemn and purchase residential property from unwilling homeowners for the purpose

of economic redevelopment in which the condemned land would

be

leased to another

private paliy,

not

by the public.

d.

at 478-79. In upholding the exercise

of

eminent

domain authority, the Court noted that it had long ago rejected any literal requirement

that condemned propeliy be put into use for the general public. ld. at 479. Instead, the

Court held that the Fifth Amendment's Takings Clause only requires that the exercise of

eminent domain serve a public purpose. ld. at 480. And under that view, the

COUli

noted that its cases defIne[) that concept broadly, reflecting our longstanding policy

of

deference to legislative judgments in tltis field.

d.

y contrast, the Kentucky General Assembly, in response to the Kelo decision,

adopted KRS 416.675 in which it made clear that in order to take property in Kentucky,

the taking must

be

for a public use and not merely for a public purpose. Specifically,

KRS 416.675 states in pertinent part:

(1) Every grant

of

authority contained in the Kentucky Revised

Statutes to exercise the power of eminent domain shall be subject to the

condition that the authority be exercised only to effectuate a public use o

the condemned property.

(2) Public use shall mean the following:

(d) The use of the property for the creation or operation of public

utilities or common carriers; or

( e) Other use of the property expressly authorized

by

statute.

5


9/12

3) No provision in the law

of

the Commonwealth shall be construed

to authorize the condemnation

of

private property for transfer to a private

owner

for

the pU/pose of economic development that benefits the general

public only indirectly, such as

y

increasing the tax base, tax revenues, or

employment, or

y

promoting the general economic health

of

the

community

..

(Emphasis added). As evidenced by its plain language, this statute specifically rejects the

Supreme Court's broader interpretation o public use under the Fifth Amendment

miiculated in

Kelo

in favor o a nan-ower, and more explicitly defined, public use

requirement.

Moreover, the Legislature's statutory expression nan-owly defming the public use

requirement is also consistent with Kentucky courts' judicial interpretation o the

constitutional language. For exmnple, the Kentucky Supreme Court has concluded that

equating public use with public purpose under the Kentucky Constitution - as is the case

under the United States Constitution - would be an alarming concept.

City of

Owensboro

v

McCormick,

581 S.W.2d 3, 7 Ky. 1979).

n McCormick,

the Court

explained that the opportunity for tyranny, particularly by the self-righteous, exists in

condemnation o private property to a vastly greater degree than in the levying o taxes

and the expenditure o public funds, thus the constitutional provisions involved clearly

require that finding o 'public purpose' does not

satisfY

the requirement o a finding o

'public use.' ld. The Court wamed that should public use be expansively interpreted to

include public purpose or public benefit, there would be no restrictions on the

govemment's ability to take private propeliy. n an oft-quoted passage, the Court

explained:

Naked and unconditional govemmental power to compel a citizen to

sun-ender his productive and attractive property to another citizen who will

use it predominantly for his own private profit just because such

6


10/12

alternative private use is thought to be preferable in the subjective notion

of

governmental authorities is repugnant to our constitutional protections

whether they be cast

in

the fundamental fairness component

of

due

process or in the prohibition against the exercise of arbitrary power.

ld. at

5

See also Miles

v.

Dawson, 830 S.W.2d 368, 370 (Ky. 1991); Prestonia Area

Neighborhood Ass

n v.

Abramson, 797 S.W.2d 708, 711 (Ky. 1990); Decker

v.

Somerset,

838 S.W.2d 417, 422 (Ky. Ct App. 1992).

Kentuckians' respect for the rights of property owners and their appropriate

recognition

of

the potential for abuse inherent in the exercise

of

eminent domain

authority are why [t]he power to condenm is not to

be

taken lightly. Bernard v. Russell

County Ail Board, 718 S.W.2d 123 (Ky. 1986). Thus, we have long recognized the need

to circumscribe the eminent domain power even before Justice O'Connor warned in her

Kelo dissent:

Any property

m y

now be taken for the benefit

of

another pllvate patty,

but the fallout from this decision will not be random. The beneficiaries are

likely to

be

those citizens with disproportionate influence and power in the

political process, including large corporations and development firms. As

for the victims, the government now has license to transfer property from

those with fewer resources to those with more. The Founders cannot have

intended this perverse result.

Kelo at 505 (O'Conner, dissenting).

Because Kentucky'S courts and the General Assembly have strictly construed the

public use requirement as a material limitation upon the eminent domain power, this

COUlt

should do the same and affirm the judgment below.

2

2

The threat for potential abuse in condenmation proceedings is particularly acute

given the parties' relative unequal bargaining strength. n many instances, an individual

property owner is threatened with eminent domain during negotiations for the sale

of

her

property

before

proceedings are commended. Thus, property owners frequently face a

Hobson's choice - sell their property for a valuation that may be skewed in favor of the

condenmor or risk incurring litigation costs associated with a condenmation lawsuit.

7


11/12

II

ON LUSION

Kentuckians enjoy meaningful limitations upon the state's eminent domain

authority that enable them to be secure in their ownership ofproperty. McCormick supra

at 5. This includes that private property may only

be

taken for public use, that a

condemnee receive just compensation, and that exercise

of

eminent domain authority

may not be arbitrary. Ky. CONST.

2 13 242. Furthermore, public use

as

used in the

Kentucky Constitution has been distinguished from public purpose , and the meaning of

public use should be nall'owly construed. Because the Franklin Circuit Court's analysis

properly construed

BGP s

claimed eminent domain authority narrowly (and thus

consistent with Kentucky's constitutional and

statutOlY

framework), this Court should

affirm the grant of summary judgment to KURED and hold that BGP does not enjoy

eminent domain authority to take property for its proposed Natural Gas Liquids pipeline.

BGP asserts, however, that [ s ]ince the court is required to decide the petitioner's

condemnation authority at the outset of any condemnation action, the landowner will not

incur litigation costs associated with the valuation phase

of

the case unless a court

determines the right to condemn. [Br. for Appellant, 8.] But that assertion disregards the

fact that if a property owner chooses to challenge the would-be condemnor, she must

invest a substantial amount

of

time and money to litigate the case

before

any valuation

phases occurs because the right to condemn phase can (and often is) more expensive to

litigate. These costs often dissuade property owners from challenging the right to

condemn particularly given that they are unable to recover those substantial litigation

costs whether they win or lose.

8


12/12

aclu coa amicus brief-1

Documents