Bar & Court Admissions:
- U.S. Supreme Court
- U.S. Court of Federal Claims
- U.S. Court of Appeals, Federal Circuit
- U.S. Court of Appeals, Second Circuit
- U.S. Court of Appeals, Fourth Circuit
- U.S. Court of Appeals, Sixth Circuit
- U.S. Court of Appeals, Seventh Circuit
- U.S. Court of Appeals, Eighth Circuit
- U.S. Court of Appeals, Eleventh Circuit
- District of Columbia Bar
- Missouri Bar
- Michigan Bar
- Washington University School of Law, JD, 1986
- Washington University in St. Louis, BA, 1983
Mark F. (Thor) Hearne, II
Thor Hearne has earned a national reputation for his work in complex federal and state litigation and appeals, especially matters involving property rights, constitutional law, and election issues. Thor has represented more than 1,000 landowners in federal property rights litigation arising under the Trails Act.
Thor was named one of the nation’s top Fifty Litigation Trailblazers and Pioneers by the National Law Journal and was also featured in the National Law Journal as a pre-eminent national trial and appellate attorney for his work in property rights litigation. Thor has been named a Super Lawyer in both Washington DC and in Missouri by the peer-rating system and Thor has been given the highest AV rating by Martindale-Hubbell.
In addition to representing Arizona citizens before the Supreme Court in Harris, Hearne has been the lead counsel in the United States Supreme Court for a number of amicus curiae parties in some of the Court’s most consequential property rights decisions. These cases include Brandt v. United States, 134 S.Ct. 1257 (2014), PPL Montana v. State of Montana, No. 10-218 (2010), St. Bernard Parish Government v. United States, Nos. 2016-2301, 2016-2373 (Fed. Cir. 2017).
The amici parties Mr. Hearne represented include the American Farm Bureau Federation, American Land Title Association, Cato Institute, Owners Counsel of America, National Federation of Independent Business Small Business Legal Center, Pacific Legal Foundation, National Association of Reversionary Property Owners, National Cattlemen’s Beef Association, Public Lands Council, Property Rights Foundation of America, Pioneer Institute, Southeastern Legal Foundation, American Civil Rights Union, Reason Foundation, Mountain States Legal Foundation, and Law Professors James W. Ely, Jr., Dale Whitman, Shelley Ross Saxer, Richard Epstein, and Donald Kochan.
Hearne has argued cases before the United States Supreme Court, before the United States Courts of Appeal, and before various state supreme courts, including the Florida, Missouri, Michigan, and Kansas supreme courts. Hearne argued a constitutional case before the United States Supreme Court and was joined in his argument by the Arizona Attorney General. See https://www.oyez.org/cases/2015/14-232. The Virginia Attorney General hired Hearne to be the lead counsel defending the Commonwealth of Virginia against a federal constitutional challenge to Virginia’s election law. Hearne and his litigation team successfully defended the Commonwealth of Virginia in both the federal trial court and in the United States Court of Appeals for the Fourth Circuit. See Lee, et al. v. Virginia State Board of Elections, 188 F. Supp.3d 577 (E.D. Va. 2016), affirmed 843 F.3d 592 (4th Cir. 2016).
— Before the United States Supreme Court
Thor has represented property owners and elected officials before the United States Supreme Court in the following cases:
- Harris v. Arizona Independent Redistricting Commission, 136 S.Ct. 1301 (2016). Thor represented Arizona citizens and voters in a U.S. Supreme Court challenge of the 2012 redistricting plan for Arizona state legislative districts, where the redistricting commission produced a redistricting map with a nearly 9% population deviation, diluting the votes of thousands of Arizona voters. Thor argued this case before the Supreme Court this in December 2015. Arizona Attorney General Mark Brnovich joined Thor, arguing on behalf of the Secretary of State against the redistricting plan.
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017). Thor was counsel for the National Association of Evangelicals as an amicus party in this First Amendment religious freedom case. The case challenged the Missouri state constitution’s “Blaine Amendment,” which prohibits state aid to any religiously affiliated entity. After a split decision in the Eighth Circuit, the Supreme Court granted certiorari. This was the most closely-watched religious liberties case the Supreme Court has heard in the past decade. The Supreme Court ruled in favor of the challengers’ position, holding, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
- Brott v. United States, 858 F.3d 525 (6th Cir. 2017). Thor represents a group of Michigan property owners in this Trails Act taking case, concurrently filed in both the U.S. District Court for the Western District of Michigan and the U.S. Court of Federal Claims, challenging the Tucker Act’s prohibition on filing taking cases against the United States over $10,000 in an Article III court with the right to trial by jury. The landowners petitioned for Supreme Court review and were supported by multiple amici curiae briefs filed by eminent property rights organizations and scholars, including the Cato Institute, NFIB Small Business Legal Center, Pacific Legal Foundation, National Association of Reversionary Property Owners, Property Rights Foundation of America, Pioneer Institute, Southeastern Legal Foundation, American Civil Rights Union, Reason Foundation, Mountain States Legal Foundation, and Law Professors James W. Ely, Jr., and Shelley Ross Saxer.
- Brandt v. United States, 134 S.Ct. 1257 (2014). Thor was counsel for amici curiae Cato Institute, American Farm Bureau Federation, American Land Title Association, National Cattlemen’s Beef Association, Public Lands Council, and Property Law Professors James Ely, Jr., Richard Epstein, Donald Kochan, and Dale Whitman in a case filed by the U.S. government against a Colorado ranching family. The decision set a major precedent with regard to Trails Act litigation involving the General Railroad Right-of-Way Act of 1875, which affects thousands of acres of property across the United States.
- Bay Point Properties, Inc. v. Mississippi Transportation Comm’n, No. 16-1077. Thor represented amici curiae Cato Institute, NFIB Small Business Legal Center, Southeastern Legal Foundation, National Association of Reversionary Property Owners, Property Rights Foundation of America, and Law Professors James W. Ely, Jr., Shelley Ross Saxer, and Ilya Somin. This case challenged a Mississippi statute enabling the state transportation department to redefine an easement for highway purposes to deny compensation to the landowner when the use of the easement was changed from highway purposes to public recreation.
- West Chelsea Buildings, LLC v. United States, No. 14-102 (2014). Thor represented property owners in New York City in takings litigation regarding the High Line, a popular elevated recreational park on the West Side of Manhattan. Those landowners sought to appeal their claims for compensation under the Fifth Amendment for the taking of their property to the U.S. Supreme Court. Thor represented another landowner in a related case (see, below, Romanoff Equities, Inc. v. United States).
- Crawford v. Marion County Election Board, 553 U.S. 181 (2008). Counsel for leadership of United States Senate and House of Representatives (Senators Mitch McConnell, Robert Bennett, Christopher S. “Kit” Bond and United States Representatives Roy Blunt, Lamar Smith and Vernon Ehlers) as amici curiae before the United States Supreme Court in support of Indiana election officials on issues of federal preemption and the federal Help America Vote Act
- PPL Montana v. State of Montana, No. 10-218 (2010) U.S. Supreme Court amicus brief on behalf of Cato Institute and Montana Farm Bureau Federation.
— Before Federal and State Trial and Appellate Courts
Thor is nationally recognized for his practice before state and federal trial and appellate courts. Over the past two decades, Thor has been (or is currently) lead counsel representing more than one thousand landowners in sixteen states whose property the federal government took when the government invoked section 8(d) of the Trails Act. Typical of Thor’s litigation practice is that, in a recent two-month period, Thor argued cases before the US Court of Appeals for the Federal Circuit, the Kansas Supreme Court and the Missouri Court of Appeals. Thor’s argument before the Missouri
Court of Appeals was highlighted as part of the Washington University Appellate Advocacy Program, and his argument before the Federal Circuit involved a class-action case against the federal government that is of national importance that was also featured in the National Law Journal.
Federal and State Court Decisions
Thor has more than 20 years of experience successfully representing clients in federal and state trial and appellate litigation. Many of these cases involve significant issues of constitutional law in which a state or the federal government is the opposing party. Thor has successfully represented clients before the US Supreme Court, state supreme courts, and other trial and appellate courts. The following representative cases illustrate his experience.
- St. Bernard Parish Government v. United States, Nos. 2016-2301, 2016-2373 (Fed. Cir. 2017). Lead counsel for amici curiae NFIB Small Business Legal Center, Reason Foundation, Southeastern Legal Foundation, National Association of Reversionary Property Owners, Property Rights Foundation of America, and Professor James W. Ely, Jr., pending in the U.S. Court of Appeals for the Federal Circuit. This complex, decade-long litigation resulted in a landmark decision by the U.S. Court of Federal Claims, holding the government liable for a taking for the flooding of New Orleans landowners’ property caused by the government’s construction and operation of the Mississippi River Gulf Outlet.
- Lee, et al. v. Virginia State Board of Elections, 188 F. Supp.3d 577 (E.D. Va. 2016), affirmed 843 F.3d 592 (4th Cir. 2016). Thor was appointed by Virginia’s Attorney General as special counsel for the Commonwealth of Virginia to defend the state’s photo-voter ID law. As lead trial and appellate counsel Thor successfully defended the Virginia election law in a two-week trial in the Eastern District of Virginia brought by challengers of Virginia’s statute. Thor then successfully defended the Commonwealth on appeal in the Fourth Circuit despite negative circuit precedent. This case has had national implications for upcoming elections.
- Palmer Ranch v. Commissioner of Internal Revenue Service, T.C. Memo 2014-79 (US Tax Court 2013), affirmed, 812 F.3d 982 (11th Cir. 2016). US Tax Court trial involving an $83 million dollar dispute with the IRS. A wealthy family donated property for a conservation easement and public park. The IRS disallowed the donation. After a two-week trial the IRS lost. After an appeal to the Eleventh Circuit, the IRS lost again. On appeal, the 11th Circuit Court of Appeals granted additional relief to Palmer Ranch over and above what the Tax Court awarded.
- Zoltek Corp. v. United States, 815 F.3d 1302 (Fed. Cir. 2016). Retained as lead counsel to replace former counsel and represent Zoltek, Inc., and conclude a twenty-year-old patent infringement lawsuit against the United States. The Zoltek litigation had endured more than twenty years in the Court of Federal Claims with several appeals to the Federal Circuit, including an en banc reversal of a prior panel decision. This litigation concluded with a successful mediation overseen by the Court of Federal Claims.
- Childers v. United States, 116 Fed. Cl. 486 (2013). Successful representation of property owners at trial in the U.S. Court of Federal Claims to determine property valuation resulting in a $5.7 million favorable ruling.
- McCann Holdings, Ltd. v. United States, 111 Fed. Cl. 608 (2013). Successful representation of Florida property owners at trial in the U.S. Court of Federal Claims, resulting in a $3.2 million favorable ruling.
- Behrens v. United States, No. 1:15CV421 (U.S. Court of Federal Claims). Lead counsel for amici curiae Law Professors Dale A. Whitman and James W. Ely, Jr., currently pending in the U.S. Court of Federal Claims. This case relates to Missouri courts’ interpretation of railroad right-of-way deeds and the scope of the easements they conveyed. Professor Whitman is one of the nation’s premier experts on property law, especially Missouri property law. Professor Ely is a renowned property law expert and legal historian and is the co-author of the leading property law text, The Law of Easements & Licenses in Land (revised ed. 2017).
- Ladd v. United States, 713 F.3d 648 (Fed. Cir. 2013). Counsel for class of Arizona property owners in Fifth Amendment taking claim against federal government. Appealed and successfully reversed two erroneous decisions of the U.S. Court of Federal Claims, setting a major precedent in Trails Act cases that a Fifth Amendment taking pursuant to the Trails Act takes place at the time of the issuance of the Notice of Interim Trail Use by the Surface Transportation Board. The Department of Justice unsuccessfully attempted to overrule this precedent in Caquelin v. United States, 2017 WL 2684180 (Fed. Cir. 2017).
- Shoemaker v. Kander, 464 S.W.3d 171 (Mo. 2015). Thor successfully represented Missouri Farmers Care, a coalition of agricultural groups, in defense of Missouri Constitutional Amendment 1, the “Right to Farm Amendment” in a statewide recount and state supreme court election contest.
- Romanoff Equities, Inc. v. United States, 815 F.3d 809 (2016) (Supreme Court petition for certiorari filed in October 2016). Appeal from the US Court of Federal Claims denying landowner relief under the Fifth Amendment for the taking of its property. This appeal is of national interest because it raises property law and federalism issues in that the US Court of Appeals for the Federal Circuit decided a novel question of New York state property law without certifying that state law question to New York’s highest state court.
- Biery, et al. v. United States, No. 16-316 (U.S. Supreme Court petition for certiorari filed). Case of national interest regarding attorney fee reimbursements to landowners who successfully pursue Fifth Amendment takings claims against the federal government. This appeal followed ruling by the U.S. Court of Federal Claims of a certified question referred to Kansas Supreme Court. Amici curiae, including Kansas Farm Bureau, filed briefs in support due to precedential importance of issue. Argued before Kansas Supreme Court in October 2009. The Court of Federal Claims ruled in favor of the landowners on the taking issue.
- Kinder v. Geithner, 695 F.3d 772 (8th Cir. 2012). Counsel to Missouri’s Lieutenant Governor challenging provisions of the Patient Protection and Affordable Care Act (Obamacare).
- Evans v. United States, 694 F.3d 1377 (Fed. Cir. 2012). Successful reversal of two district court decisions following the Federal Circuit’s decision in Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010). The court expressed frustration at the government’s actions and clarified the law according to plaintiffs’ requests.
- Ingram v. United States, 105 Fed. Cl. 518 (2012). Counsel to South Carolina landowners in their Fifth Amendment takings claim, successfully determining method of valuation of their property interests.
- Whispell v. United States, 106 Fed. Cl. 635 (2012). Counsel to Florida landowners in their Fifth Amendment takings claim, successfully determining method of valuation of their property interests.
- Douglas R. Bigelow Trust v. United States, 107 Fed. Cl. 490 (2012). Counsel to Michigan landowners’ class action claim asserting Fifth Amendment taking of land subject to railroad right-of-way.
- Thompson v. United States, 101 Fed. Cl. 416 (2011). Counsel to Michigan landowners in Fifth Amendment takings claim successfully determining that landowners had reversionary rights to property underlying an abandoned railway triggering Fifth Amendment’s “just compensation” requirement.
- Hodges v. United States, 101 Fed. Cl. 549 (2011). Counsel to Michigan landowners successfully determining that abandoned railway right-of-way conversion to a public trail constituted a taking under the Fifth Amendment.
- Rogers v. United States, 101 Fed. Cl. 287 (2011). Counsel to Florida landowners in a class action Fifth Amendment takings claim, successfully determining method of valuation of property.
- Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010). Counsel in class-action Fifth Amendment taking case brought against the federal government. Successfully overturned adverse decision by Court of Federal Claims. The National Law Journal noted this case “could dramatically change the rules for plaintiffs across the country who file big-money class actions against the federal government.” Mike Scarcella, “Broken Trails,” National Law Journal (June 22, 2009). U.S. Justice Department touted the government’s lower court win as one of the DOJ’s most significant accomplishments in 2009. In a unanimous decision issued May 3, 2010, the Federal Circuit overturned the Court of Federal Claims and issued a decision that broadly affirmed the use of class action procedure in cases against the federal government. The Federal Circuit’s broadly written rejection of the Justice Department’s argument is a landmark victory for the plaintiffs in this and more than 30 other pending class action cases.
- Rogers v. United States, 90 Fed. Cl. 418 (2009). Earlier decision in Rogers case representing more than 350 Florida property owners in Fifth Amendment lawsuit against federal government for taking property without paying compensation. Court of Federal Claims ruled in favor of landowners “are entitled to just compensation under the Fifth Amendment.”
- St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 301 S.W.3d 549 (Mo. Ct. App. 2009). Successful trial and appeal involving a commercial lease dispute. Appellate argument selected for Appellate Advocacy Program at Washington University School of Law.
- Weinschenk v. State of Missouri, 203 S.W.3d 201 (Mo. 2006). Counsel for citizens intervening to uphold Missouri’s voter registration law requiring photo identification in the Missouri Supreme Court.
- Miller v. United States, 67 Fed.Cl. 542 (2005). Counsel for class of Missouri landowners (including municipalities and school districts) in successful Fifth Amendment takings litigation against federal government. Successfully concluded with judgment for landowners in excess of $8.1 million in total compensation and won landmark decision on rate of interest due property owners under the Fifth Amendment.
- Grantwood Village v. United States, 45 Fed. Cl. 771 (2000). Counsel for Town of Grantwood Village, in Fifth Amendment takings litigation against United States. Successful verdict for full amount of claim sought and attorney fees and expenses. Decision on government’s liability established significant legal precedent finding United States liable for paying “just compensation” for Trails Act takings of landowners’ “reversionary” interest in land.
- Lowe v. American Standard (E.D. Mo. 2005). Counsel for former senior executive in employment contract dispute. Lowe won with jury verdict in full amount of demand — in excess of $500,000 — after multi-day federal jury trial.
- Bush-Cheney, 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000). Counsel for President Bush and Bush-Cheney presidential campaign in successful emergency appeal overturning trial court order holding polls open beyond legal closing hour. Court of appeals decision established significant election law precedent.
- Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002). Lead counsel for Plaintiffs in the successful federal civil rights redistricting litigation of St. Louis County, Missouri. Represented individuals including minority plaintiffs and worked closely with the local NAACP in achieving a successful reapportionment of St. Louis County government. Counsel for the NAACP said, “[Mr. Hearne carried] the burden of a substantial amount of the NAACP’s case…. [Mr. Hearne] provided great help to counsel for the NAACP during this fast-paced redistricting litigation. [And Mr. Hearne took] the leading role in this action and in incorporating the NAACP’s objectives.”
- McCurdy v. St. Luke’s Episcopal Presbyterian Hospitals, 265 S.W.3d 286, (Mo. Ct. App. 2008). Successfully represented property owner in trial court and court of appeals by preventing condemnation of private road easement across property owner’s land.
- In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. July 18, 2007). Counsel for amicus curiae before Michigan Supreme Court in support of constitutionality of provisions.
- McNary v. Akin, Cause No. 00CC-002969, (Cir. Ct. St. Louis Cty, Div. 10, 2000). Counsel for U.S. Congressman in successful defense of primary election recount challenge.
Political and Election Law
Thor is one of the nation’s preeminent political and election law attorneys. Among the highlights of his practice:
- President Bush’s national election counsel in the 2004 presidential re-election campaign where he oversaw more than 75 different lawsuits in state and federal court, including appeals to the US Supreme Court, various state supreme courts, and federal courts of appeal.
- President Bush’s legal counsel in Missouri in 2000 where he won the landmark case Bush-Cheney v. Baker which overturned a trial court’s order holding polls open beyond legal closing time.
- Legal counsel to a number of state and federal officials, including governors, members of the Senate and US House of Representatives and their campaign committees.
- Special Counsel to Commonwealth of Virginia. Successfully defending Virginia’s voter identification law against constitutional challenge.
- Represented federal and state candidates in successful election contests and recount litigation. Most recently, Thor represented Missouri Farmers Care, a coalition of agricultural groups, in defense of Missouri Constitutional Amendment 1, the “Right to Farm Amendment” in a statewide recount and state supreme court election contest.
- Counsel for leadership of the US House and Senate in their amicus brief in the landmark US Supreme Court Crawford case and also counsel for Democrat and Republican election officials in separate amicus brief in Crawford.
- Nationally recognized authority in election law, he was advisor to the Carter-Baker Commission on Federal Election Reform and has testified on election law matters before the US Senate, US House of Representatives, US Commission on Civil Rights, and the US Election Assistance Commission.
- Has written numerous articles on various topics of constitutional and election law and has appeared on NPR, CNN, Fox News, and other national media and has been quoted in the Wall Street Journal and USA Today.
Publications / Presentations / Recognitions
- “The Fifth Amendment Requires the Government to Pay an Owner Interest Equal to What the Owner Could Have Earned Had the Government Paid the Owner the Fair-Market Value of Their Property on the Date the Government Took the Owner’s Property,” Brigham-Kanner Property Rights Conference Journal, Vol. 1, September 2012.
- “The Trails Act: Railroading Property Owners and Taxpayers For More Than a Quarter Century,” Real Property, Trust and Estate Law Journal, Vol. 115, Spring 2010.
- “The Missouri Voter’s Protection Act — Real Election Reform for All Missouri Voters,” Bar Association of Metropolitan St. Louis — St. Louis Lawyer, June 2006.
- “The New Federal Lobbying Regulations, and What In-House Counsel Need to Know About Them,” Bloomberg Corporate Law Journal, Vol. 3, Winter 2008.
- “Is There Life after the Clean-Air Act,” In-Form: Journal of The American Oil Chemists Society, May 1995.
- “Legal Aspects of Doing Business in Missouri, Kluwer & West,” Chapter on Missouri and annual updates, Doing Business in North America Series, July 1990.
- “Missouri Tightens Regulations of Underground Storage Tanks,” St. Louis Business Journal, April 1991.
- “When Retirement Homes are Ad Valorem Tax Exempt,” Missouri Bar Journal, May-June 1994.
Testimony Before Congress and Federal Agencies
- United States Commission on Civil Rights — Testimony on Voter Fraud and Voter Intimidation, October 10, 2006.
- Testimony before US Senate Judiciary Committee, Subcommittee on Constitution, Civil Rights and Property Rights, July 2006.
- Testimony before US House Administration Committee, March 21, 2005. The Help America Vote Act and the 2004 Presidential Election.
- Testimony before Federal Election Assistance Commission, December 7, 2006.
- Academic Advisor — Commission on Federal Election Reform (Carter-Baker Commission), 2005. Senior legal advisor to former Secretary of State James Baker, Jr.