Eychaner v. Chicago

1 Cite as: 594 U. S. ____ (2021)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
FRED J. EYCHANER v. CITY OF CHICAGO,
ILLINOIS
ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE
COURT OF ILLINOIS, FIRST DISTRICT
No. 20–1214. Decided July 2, 2021
The petition for a writ of certiorari is denied. JUSTICE
KAVANAUGH would grant the petition for a writ of certio-
rari.
J
USTICE THOMAS, with whom JUSTICE GORSUCH joins,
dissenting from denial of certiorari.
Fred Eychaner owned a tract of land in Chicago’s River
West neighborhood. Two blocks south stood a factory,
owned and operated by the Blommer Chocolate Company.
The company wanted Eychaner’s land to create a buffer
with nearby residential areas, so it offered to purchase the
property for $824,980. Eychaner declined.
Eychaner’s refusal to sell, however, did not end the mat-
ter. Two months later, the city of Chicago notified Ey-
chaner that it was considering whether to take his property.
As formalized later, the city planned to invoke its eminent
domain power to transfer Eychaner’s property to the com-
pany.
At face value, this plan conflicted with the settled consti-
tutional rule that a “sovereign may not take the property of
A for the sole purpose of transferring it to another private
party B, even though A is paid just compensation.” Kelo v.
New London, 545 U. S. 469, 477 (2005); see also Calder v.
Bull, 3 Dall. 386, 388 (1798). Governments can take prop-
erty only “for public use.” U. S. Const., Amdts. 5, 14; see
also Kelo, 545 U. S., at 507 (T
HOMAS, J., dissenting).
So Chicago identified an ostensible “public use”: The city
needed to transfer the land to the factory because otherwise

2 EYCHANER v. CHICAGO
T
HOMAS, J., dissenting
it “may become a blighted area.” Ill. Comp. Stat., ch. 65,
§5/11–74.4–3(b) (West 2018). Although Eychaner argued
that stemming speculative future problems is not a public
use, the Appellate Court of Illinois disagreed, holding that
the city “may use the power of eminent domain to prevent
future blight.” 2015 IL App (1st) 131883, ¶69, 26 N. E. 3d
501, 521.
We should grant certiorari for two reasons.
First, this petition provides us the opportunity to correct
the mistake the Court made in Kelo. There, the Court found
the Fifth Amendment’s “public use” requirement satisfied
when a city transferred land from one private owner to an-
other in the name of economic development. See 545 U. S.,
at 484. That decision was wrong the day it was decided.
And it remains wrong today. “Public use” means something
more than any conceivable “public purpose.” See id., at
508–511 (T
HOMAS, J., dissenting). The Constitution’s text,
the common-law background, and the early practice of em-
inent domain all indicate “that the Takings Clause author-
izes the taking of property only if the public has a right to
employ it, not if the public realizes any conceivable benefit
from the taking.” Id., at 507–514; see also id., at 479 (ma-
jority opinion) (acknowledging that “many state courts in
the mid-19th century endorsed ‘use by the public’ as the
proper definition of public use”). Taking land from one pri-
vate party to give to another rarely will be for “public use.”
But see id., at 513–514 (T
HOMAS, J., dissenting). The ma-
jority in Kelo strayed from the Constitution to diminish the
right to be free from private takings. See generally id., at
505–523 (same).
Second, even accepting Kelo as good law, this petition al-
lows us to clarify the Public Use Clause and its remaining
limits. Kelo weakened the public-use requirement but did
not abolish it. In fact, the Kelo majority favorably cited an
opinion that had concluded that a taking to prevent “future
blight” violated the Public Use Clause. Id., at 487, and n. 17

3 Cite as: 594 U. S. ____ (2021)
T
HOMAS, J., dissenting
(citing 99 Cents Only Stores v. Lancaster Redevelopment
Agency, 237 F. Supp. 2d 1123 (CD Cal. 2001)). This Court
should not stand by as lower courts further dismantle con-
stitutional safeguards.
Failure to step in today not only disserves the Constitu-
tion and our precedent, but also leaves in place a legal re-
gime that benefits “those citizens with disproportionate
influence and power in the political process, including large
corporations and development firms.” Kelo, 545 U. S., at
505 (O’Connor, J., dissenting). This case is a prime exam-
ple. Blommer is purportedly the largest cocoa processor
and ingredient chocolate supplier in North America and
worth $750 million dollars.* And Chicago has decided to
use the coercive power of the government to give the com-
pany a valuable parcel of not-yet-blighted-land. According
to the court below, this forcible transaction is permissible,
in part, because “[r]ecognizing the difference between a
valid public use and a sham can be challenging.” 26 N. E.
3d, at 521. I think that, if our doctrine makes it difficult to
discern public use from private favors, we should grant cer-
tiorari to provide some much needed clarity.
——————
*See Elejalde-Ruiz, Blommer Chocolate To Be Sold to Japanese
Company, The Chicago Tribune, Nov. 19, 2018, www.chicagotribune.com/
business/ct-biz-blommer-chocolate-sale-20181119-story.html.