Judge Amy Coney Barrett was nominated, for a reason, to replace the late Justice Ruth Bader Ginsburg as an Associate U.S. Supreme Court Justice.  As other commenters have noted, a Justice Barrett is expected to move the Court to the right on a wide range of issues, including health care, gun control, and abortion.  But what is far less clear at this point is how a Justice Barrett would influence or alter the Court’s property rights jurisprudence.

At this point, Judge Barrett’s record on property rights is thin.  A Seventh Circuit Court of Appeals opinion decided on August 21, 2020, Protect Our Parks, Inc. v. Chicago Park District (Case Nos. 19-2308 & 19-3333), is likely the best evidence on the subject.  Protect Our Parks addresses the plaintiffs’ efforts to halt construction of the Obama Presidential Center in Chicago’s Jackson Park.  First developed as the site for Chicago’s World Fair in 1893, Jackson Park is public land that must be dedicated to a public purpose.  The City of Chicago and the Chicago Park District decided that hosting a center devoted to the achievements of America’s first black President, who has a longstanding connection to Chicago, was consistent with that purpose.

Disagreeing with the City’s decision, the plaintiffs sued to stop the project.  They asserted several federal and state claims, all premised on the theory that the Obama Presidential Center does not serve the public interest but rather the private interest of its sponsor, the Obama Foundation.

Of particular interest here, the plaintiffs alleged that the defendants took their property in violation of the Fifth and Fourteenth Amendments.  Writing for the court, Judge Barrett readily recognized that “[n]either of these claims can get off the ground unless the plaintiffs prove that they have a private property interest in Jackson Park.”  To get there, the plaintiffs’ relied principally on a novel argument involving the “public trust” doctrine, which limits the government’s ability to transfer control or ownership of public lands to private parties.

The plaintiffs contended that the defendants’ use agreement with the Obama Foundation violates the public trust doctrine because it transfers control of public land in Jackson Park to the private Foundation for a purely private purpose.  Analogizing to the law of trusts, the plaintiffs asserted they are “beneficiaries” of Jackson Park.  And, according to the plaintiffs, this “beneficial interest” is private property protected by the United States Constitution.

Writing for the court, Judge Barrett explained that the plaintiffs’ theory is “easily dispatched” because they have no protectable property interest under Illinois caselaw holding that those owning land adjacent to or in the vicinity of a public park possess no property right in having the park put to a particular use.  Judge Barrett reasoned that, “[i]f adjacent landowners have no protected interest in public land, then the plaintiffs don’t have one either.  Although the plaintiffs wish it were otherwise, the Illinois cases make clear that the public trust doctrine functions as a restraint on government action, not as an affirmative grant of property rights.”

Judge Barrett also explained an additional key defect in the plaintiffs’ case: they sought injunctive relief but not money damages, contrary to the relief available under the Takings Clause.  In an interesting final paragraph on the issue, Judge Barrett explained:

“Although the plaintiffs don’t spell out their argument, the request for injunctive relief suggests that their complaint is that the Center does not qualify as a “public use” rather than that the City has failed to pay them “just compensation.”  U.S. CONST. amend. V.  This is a losing argument.  Even assuming that the City’s use agreement with the Foundation qualifies as a transfer to a private party, the Supreme Court held in Kelo v. City of New London that a transfer to a private owner can still be constitutional if it is done for a “public purpose.”  545 U.S. 469, 483–84 (2005).  What’s more, the City’s judgment that a particular transfer and use has a public purpose is entitled to deference.  Id. at 488–89.  It’s hard to see, then, how we could “second-guess the City’s determination[]” that building the Center—with its museum, public library branch, auditorium, athletic center, gardens, and more—is a use with public benefits.  Id. at 488.”

Protect Our Parks is a carefully-written and easy to read opinion that respects precedent and defers to a high-profile local government decision.  There is little or nothing in the opinion to suggest that Justice Barrett has any particular vision on property rights, much less a different vision than the late Justice Ginsburg, author of Arkansas Game & Fish Commission v. United States, an 8-0 opinion that held that the Takings Clause protects against all government invasions of private property, even if the intrusion is not permanent.  It is simply too early to tell whether a Justice Barrett would ultimately be a champion of property rights, or otherwise.  But it is perhaps noteworthy that Judge Barrett went beyond addressing the issue of the plaintiffs’ lack of property interest—which sufficed to fully resolve the takings claim—to address the relief the plaintiffs sought, relying on Kelo, a highly disputed eminent domain case from 2005 in which the late Justice Ginsburg was in the 5-4 majority.  There have been many calls to overturn Kelo, and Judge Barrett elected to cite that case affirmatively when she could have stopped short of addressing it.

And the one thing that would be virtually certain with a Justice Barrett-written takings opinion: a lucid decision that clarifies a famously muddled area of the law.  As Justice John Paul Stevens correctly observed in his Nollan v. California Coastal Commission dissent, “[e]ven the wisest of lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence . . . local governments and officials must pay the price for the necessarily vague standards in this area of the law.”  Setting aside the circumstances surrounding the controversial replacement of the late Justice Antonin Scalia, when Barack Obama was still president, as well as the prognostications about how a Justice Barrett would rule on certain kinds of cases, there are good reasons to be optimistic about her role in property rights cases, which in our view should not be considered a liberal or conservative issue.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.