Speaking of the Supreme Court: Emminent Domain?

[Aarlan]

As a political science junky, I have always been intrigued by the Supreme Court. More often than not, when I didn't agree with their decisions, I at least respected their judgement, experience and viewpoint. I have always viewed the Supreme Court with a sort of awed reverence.

That was until last month.

John Paul Stevens, Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer in their infinite wisdom somehow decided that private property rights were essentially null and void if a town/city/state decided to take a person's home. Look at the case carefully. It is without a doubt one of the single worst decisions the court has reached in its entire history.

Imagine, WalMart wants your house...you don't want to sell...mayor decides WalMart is more important...Home is condemned and out you go...Give you 'fair market value' (how is that decided, especially in New London where one couple has lived there married for 55+years, and others at 70 and 80 have lived there their entire lives?)...Viola! more tax revenues for the town, which (according to them) equates to public good, which gives them the unrestricted authority to kick you out!!!!

Imagine if I went to the Mayors home and tried to use a similar rationale: I would like to tear down his/her home and build a mansion on the property worth, say 1 million dollars more. THat would increase the property tax base, thus furnishing the town coffers with more $, thus MUST be good for the town. Right?

This decision needs to be overturned, or the state or congress has to get on the ball and legislate some common sense into this issue. If the Republicans can use their majority and actually get something done about this, I'd register as a republican TOMORROW.

This decision makes me sick, and John Paul Stevens, Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer should be ashamed of themselves.

AA

[Joann Raytar]

I think David Souter might be ashamed ...

http://www.wnd.com/news/article.asp?ARTICLE_ID=45029

A private developer contacted the local government in Supreme Court Justice David Souter's hometown in New Hampshire yesterday asking that the property of the judge – who voted in favor of a controversial decision allowing a city to take residents' homes for private development – be seized to make room for a new hotel.

[Aarlan]

I think we should start a Real Estate LLC to purchase the home of the Mayor of New London to build a similar hotel referenced in your link above Jo. Heck, if all they need is a bigger tax base to justify a taking, we should ask to have the property be given to us, and we'll build a $200,000 addition to it. That will increase the tax rolls.

Sort of a shame what our United States of America has come to...didn't we fight a decades long war to defeat communism?

AA

[chip anderson]

We didn't fight a long war, but we did elect Ronnie Reagan.

[OPTIDONN]

I heard that there is a developer who is going after the home of one of the supreme court justices. He plans to open a hotel. Instead of a bible in every room he will put a copy of an Ayn Rand book and feature a cafe called JUST DESSERTS. It will be called the LOST LIBERTY HOTEL. I guess this guy is for real and only needs to convince three people in the mayors office. It's kind of an up yours to this stupid law. I tell you it this goes through thats our next family vacation spot!!

[Spexvet]

Preface: I don't support the ruling, and I understand that everything is shades of grey.

I have not read the ruling, but what I have read indicates that the court is only saying that these actions are not in conflict with the constitution. The high court does not say that laws couldn't be made to prohibit or limit these actions.

The ruling seems to be consistent with the conservative perspective of "keep the federal govenment out of our business" and states rights activism, in that the written justification for the ruling, at least in part, was based on the idea that local governments know the specifics and their needs better than the Supreme Court does.

I think hating the supreme court is misdirected, in this case. Hate the legislators who don't take steps to change the laws, and the people who are trying to take your land.

Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said.

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including -- but by no means limited to -- new jobs and increased tax revenue," Justice John Paul Stevens wrote for the majority.

http://www.cnn.com/2005/LAW/06/23/scotus.property.ap/

I think it's also important to consider that laws that prohibit these actions may also prohibit local communities from building new sports venues, military bases, and the like. Imagine a business that would employ thousands being held up by one landowner.

It's also big companies who want to take your land without paying a premium price who lobby local municipalities to do their dirty work for them. And who is in cahoots with big business?

[chip anderson]

Spexvet: Is there any reason that a "huge business that would employ thousands" can't find other locations? Do sports stadiums really help the populace? Do they help the economics of the comunity (statistics say the cost far outway the benefits)? Any reason why if they are good "investments" they can't pay thier own way without taxpayer expense or underwriting?

Do the number of "fans" outnumber the number of "don't give a rat's ... in the community?

Chip

[Aarlan]

I have not read the ruling, but what I have read indicates that the court is only saying that these actions are not in conflict with the constitution.

Explicit in the just compensation clause of the constitution (which I thought is what the Sup Court was supposed to interpret) is the requirement that the taking of private property be for a PUBLIC USE. The Court has long accepted the principle that one is deprived of his property in violation of this guarantee if a State takes the property for any reason other than a PUBLIC USE. Historically a PUBLIC USE has been such projects as public utilities, railroads, bridges, highways, schools...these are all promoting a valid public purpose.

By ruling in this manner ANY activity that generates more tax revenue must be, by definition, a public good. Which in turn means I can theoretically ask your town to seize your home so I can build a Bigger mansion on it (and claim that I will hire some housekeepers, landscapers, butlers etc...more jobs=more tax revenue) which will have a higher taxable value, which results in more tax revenue.

This ruling guts the constitution limitaion of taking someone's private property and makes that part of the constitution meaningless. The courts job is to uphold the constitution (or so I thought).

...local governments know the specifics and their needs better than the Supreme Court does.

Oftentimes the Federal Government has PROTECTED US from state and local governments when they blatently violated the constitution. What would have happened if the Supreme COurt had deemed in Brown v Bd of Ed that localities knew more about the needs of black children, so they should butt out?

In New London, by the way, there is another area close by that was taken by emminent domain earlier. This was different, as the area was abandoned and run down. There was a private developer who was given a sweet deal...Yet today, years later, the development sits empty and is generating little to no income.

Just because the developer has a fancy business plan, and can swindle the mayor to kick, doesn't mean it will generate more money for the town. Besides, if this project can generate this much money, the developers need to get the land like everyone else...purchase it. IF the owners don't sell, RAISE YOUR BID. This ruling sets a dangerous precedent that if you don't do what the rich greedy developer wants, he'll bribe the government to throw you out.

. Imagine a business that would employ thousands being held up by one landowner.

If this project can generate that much money, the developers need to get the land like everyone else...purchase it. That is sort of how capitalism works. IF the owners don't sell, RAISE YOUR BID.

When I visited Vegas 12 years ago, there was a small house in the middle of of one of the parking lots of one of the major casinos. It was a private owner who decided she did not want to sell. THAT IS HER DECISION TO MAKE not the towns. So they built around her. No reason these folks can't do the same

It's also big companies who want to take your land without paying a premium price who lobby local municipalities to do their dirty work for them. And who is in cahoots with big business?

IF you mean republicans, I think you will find it interesting that in CT, we have a Democratically dominated state Gov. The Repubs tried to get a law passed to protect these homeowners, but the Dems didn't allow it to go through.

AA

[shanbaum]

John Paul Stevens, Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer in their infinite wisdom somehow decided that private property rights were essentially null and void if a town/city/state decided to take a person's home. Look at the case carefully. It is without a doubt one of the single worst decisions the court has reached in its entire history.

Imagine, WalMart wants your house...you don't want to sell...mayor decides WalMart is more important...Home is condemned and out you go...Give you 'fair market value' (how is that decided, especially in New London where one couple has lived there married for 55+years, and others at 70 and 80 have lived there their entire lives?)...Viola! more tax revenues for the town, which (according to them) equates to public good, which gives them the unrestricted authority to kick you out!!!!

I wonder which aspect of the reasoning in that case you find so appalling.

The case does not, by any means, carry the implications you assert, Justice Thomas' representation notwithstanding. In fact, there's really nothing particularly new here, which is why Thomas had to argue, in his dissent, that the line of cases on point going back to 1896 were all flawed. It certainly doesn't establish a rule that any economic benefit constitutes a "public benefit" (which has been the legal meaning of "public use" since the late 1800's).

The law has been pretty much right where it is at least since 1984, when Hawaii Housing Authority v. Midkiff was decided, which comprised a vastly more egregious instance of using eminent domain to effectuate a change in ownership - there, it was argued that the change in ownership in and of itself conferred a public benefit (a case which, interestingly, O'Connor does not mention in her dissent).

Now, we may think that this is fundamentally wrong, and that the law should therefore be rolled back to where it was in the 19th century, before we thought up stuff like zoning. There are legal scholars who believe that (Richard Epstein comes to mind).

Personally, I like zoning. There's a sense in which I don't like the outcome of this case - but it's simply that I don't like the fact that these people are being forced to sell their homes. I can't really come up with a practical reading of the Constitution that prohibits it, so that leaves two solutions: one, amend the Constitution; two, elect a different New London town council. Thomas' solution - let's just pretend it's 1789 - I find kinda pathetic, but then, there's probably going to be a surfeit of pathos in the upcoming years.

Spexvet has a good point about deference to legislatures - this is a great example of the conservatives on the court taking the activist position (that is, let's overrule the Connecticut General Assembly as well as the Connecticut courts). No doubt, they will not shrink from invoking the principle of deference in the future, as they have in the past, when doing so produces outcomes they like.

That alone makes it a really interesting case.

[Aarlan]

I wonder which aspect of the reasoning in that case you find so appalling.

The case does not, by any means, carry the implications you assert, Justice Thomas' representation notwithstanding. .

It is my understanding that the 14th amendment allows taking of private property only with 1) just compensation, and 2) there must be a public purpose.

I would think that a superhighway, public school, or something in that neighborhood would qualify as a public purpose. By including a private developer into the catagory of Public purpose (due to a possiblility, but not guarantee, of increased tax revenue and more jobs) the court has effectively made the taking clause of the 14th amendment empty. There is now no limit on a local governments ability to take any property for any commercial enterprise as long as the stated purpose of said venture is increase value of the current real estate and/or create jobs. If this is the case, then this instance does carry the implications I asserted previously.

AA



Property rights are at the very foundation of our freedom.

[shanbaum]

It is my understanding that the 14th amendment allows taking of private property only with 1) just compensation, and 2) there must be a public purpose.

I would think that a superhighway, public school, or something in that neighborhood would qualify as a public purpose. By including a private developer into the catagory of Public purpose (due to a possiblility, but not guarantee, of increased tax revenue and more jobs) the court has effectively made the taking clause of the 14th amendment empty. There is now no limit on a local governments ability to take any property for any commercial enterprise as long as the stated purpose of said venture is increase value of the current real estate and/or create jobs. If this is the case, then this instance does carry the implications I asserted previously.

AA

Well, in the first place, it's the Fifth Amendment, not the Fourteenth. But my point was - sorry if it wasn't clear - that economic benefit has long been held to constitute "public use", going back to rulings involving the use of eminent domain to allow railroads to have rights-of-way and (more to the point) mine operators to have access routes to their mines.

Your characterization appears to be lifted from O'Connor's dissent; perhaps you should read the majority opinion as well: http://caselaw.lp.findlaw.com/cgi-bi...0&invol=04-108

Would it make a difference to your analysis if, instead of deeding the property to developers, New London were to maintain ownership of the land, and lease it to developers? What if New London actually did the development itself? What if that development included a new library or other public building, in addition to retail and housing (think Adrien's Landing)? What if the town exercised its power of eminent domain in order to build a public park, and then, for some reason didn't (say, a new town council was elected that decided not to proceed)? Could it sell the land?

Property rights are at the very foundation of our freedom.

Does that mean if I don't own anything, I can't be free?

[Aarlan]

oo

[Spexvet]

Spexvet: Is there any reason that a "huge business that would employ thousands" can't find other locations? Do sports stadiums really help the populace? Do they help the economics of the comunity (statistics say the cost far outway the benefits)? Any reason why if they are good "investments" they can't pay thier own way without taxpayer expense or underwriting?

Do the number of "fans" outnumber the number of "don't give a rat's ... in the community?

Chip

Chip,
In your case, it might be bass fishing hole, NASCAR track, monster truck arena, CSA museum, or whatever.

[Aarlan]

Well, in the first place, it's the Fifth Amendment, not the Fourteenth.

The fifth amendment applies to the federal government, while the 14th amendment (comes into play with the due process clause), 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law', has been used to apply the fifth amendment (as it applies to eminent domain) at the state and local level, not just the federal level.

my point was - sorry if it wasn't clear - that economic benefit has long been held to constitute "public use", going back to rulings involving the use of eminent domain to allow railroads to have rights-of-way and (more to the point) mine operators to have access routes to their mines.

Roads, Highways, Railroads...Yes. Railroads and Highways and the like serve a public purpose and property can be taken for such a purpose (as long as all other options are exhausted before they attempt to seize other's private property).

Community Development...Yes. In the case of the Dudley Street Initiative a community group in Boston attained the right to eminent domain and used it to reclaim vacant properties in the purpose of positive community development. That is also something I would consider to be of public benefit.

PRIVATE DEVELOPMENT?!?!? The Michigan Supreme COurt in '81 allowed a GM plant to be built on an existing neighborhood, citing the '54 decision Berman v Parker, But since that decision, the Michigan Supreme Court has since REVERSED that decision and stated that, in fact this type of taking SHOULD NOT BE ALLOWED. The New London case is the first to sanction the taking of NON BLIGHTED, owner occupied homes for purely private commercial use.

Does that mean if I don't own anything, I can't be free?

I would responde that if you don't have the right or opportunity to own anything, you probably aren't free.

[shanbaum]

The fifth amendment applies to the federal government, while the 14th amendment (comes into play with the due process clause), 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law', has been used to apply the fifth amendment (as it applies to eminent domain) at the state and local level, not just the federal level.

Yeah, I understand how that works. It was your reference to the "taking clause of the 14th amendment" that threw me, and made me think you might have been confused.

Roads, Highways, Railroads...Yes. Railroads and Highways and the like serve a public purpose and property can be taken for such a purpose (as long as all other options are exhausted before they attempt to seize other's private property).

Well - highways are publicly-owned property, so that's one thing. Railroads are a different story, because they're privately owned. Undoubtedly beneficial (I suppose), but way private. So, running a train through Trumbull Park would've been OK?

And what about those access roads to those mines? They were pretty privately-owned, too.

Community Development...Yes. In the case of the Dudley Street Initiative a community group in Boston attained the right to eminent domain and used it to reclaim vacant properties in the purpose of positive community development. That is also something I would consider to be of public benefit.

OK, so, property rights only really apply when you occupy your property. So, stick close to home.

PRIVATE DEVELOPMENT?!?!? The Michigan Supreme COurt in '81 allowed a GM plant to be built on an existing neighborhood, citing the '54 decision Berman v Parker, But since that decision, the Michigan Supreme Court has since REVERSED that decision and stated that, in fact this type of taking SHOULD NOT BE ALLOWED. The New London case is the first to sanction the taking of NON BLIGHTED, owner occupied homes for purely private commercial use.

So, you think the U.S. Supreme Court erred in not following the ruling of the Michigan Supreme Court? Doesn't work that way, sorry. The MI Supremes were interpreting the MI constitution, and did indeed reverse themselves in County of Wayne v. Hathcock (in 2004), overruling Poletown Neighborhood Council v. Detroit (1981), and did so in an interesting way, holding that "the primary objective of constitutional interpretation is to realize the intent of the people by whom and for whom the constitution was ratified." Now that's an interesting notion, which is not too awfully problematic for Michigan, since it last ratified a new constitution in 1963. If applied to the U.S. Constitution, however, it's pretty hard to imagine that folks in 1789 would have intended to allow eminent domain to be used to secure right-of-ways for railroads, or public utilities.

I would responde that if you don't have the right or opportunity to own anything, you probably aren't free.

Yeah, well, I was just teasing; sometimes I can't help it. Life, liberty, property; no question, they're all big, very big. In fact, I've been exercising my freedom all afternoon, working on my property; but I have to admit, it didn't really feel like freedom, somehow.

Another thing that I notice in this case - because it involves a "rational basis test", it cites a case from the 50's. Williamson v. Lee Optical, which was my father's company.

It's also interesting, after the recent brouhaha about "looking to foreign law", that Justice Thomas begins his dissent in Kelo with this:

"Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone)."

Not just England, but oppressive, brutal, pre-revolution England! I, for one, am incensed!

[Joann Raytar]

When I visited Vegas 12 years ago, there was a small house in the middle of of one of the parking lots of one of the major casinos. It was a private owner who decided she did not want to sell. THAT IS HER DECISION TO MAKE not the towns. So they built around her. No reason these folks can't do the same

Doris Gagnon, "The Chicken Lady," held up Silver Sands construction for a long time. The trailer/miny farm she lived in after they bulldozed the houses was half tourist attraction half eyesore but she stuck it out.

http://www.connpost.com/charleswalsh/ci_2842144
"It took nearly 40 years for [Silver Sands State Park] to be completed, thanks to the 'Chicken Lady' [the late Doris Gagnon] who demanded 'squatters rights' for most of those years. In reality the developer who built [some nearby] condos wanted the beach houses destroyed so that the new condo owners would have an unrestricted and pleasant view of the water and Charles Island.

[ziggy]

I just cant help but feel that its "redistrabution of welth", but in reverse. here in Cincy, a developer went to court and won the rights to take a bunch of homes for a new shoping plaza. What does not makes sense to me is that while the property is zoned residential it is only worth, lets say for discussion, 150K. All the developer has to pay for the land and the home is 150K. The developer removes the home the land is zoned business and the land alone is worth 200K. At least pay poor joe 6-pack a fair price.:finger:

[chm2023]

Let's not forget the example of the Texas Rangers et al grabbing private land to build their stadium. Who was the owner back then? It's right on the tip of my tongue.....;)