The U.S. Supreme Court has been asked to decide “[w]hat category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?” In C & J Coupe Family Ltd. Partnership v. County of Hawaii, the County of Hawaii sought to condemn private property for the purpose of constructing a highway. The property owners argued that the alleged public use – a highway bypass – was merely a “pretext” for a conferring a benefit upon a developer of a luxury residential project. The Hawaii Supreme Court rejected this argument.
The property owners filed a petition for writ of certiorari – the mechanism to have a case heard by the U.S. Supreme Court – arguing that “Since Kelo, the lower courts have been unable to
settle on consistent or clear standards for when the public purpose supporting an exercise of eminent domain is pretextual, or in what situations the ‘risk of undetected impermissible favoritism’ is such that a presumption of invalidity or a heightened standard of review is warranted.” If cert is granted, this will be the first time the Court will consider these issues since Kelo v. City of New London.