The Kelo backlash (and yes, I know many of you do not like it when I use the word backlash) continues, with Kevin Drum highlighting another outrage:
THE BEST KELO CASE YET….For those of you who felt that I was insufficiently outraged over the Kelo eminent domain decision, I’ve got just the story for you. This isn’t about a city condemning blighted land for redevelopment. It’s not even about a city condemning good land for redevelopment. It’s about a city condemning good land for a project that’s almost identical to the project the land’s current owner wants to put up himself. The city is Union Township in New Jersey and the owner is Carol Segal:
On May 24, the five-member township committee voted unanimously to authorize the municipality to seize Segal’s land through eminent domain and name its own developer.
“They want to steal my land,” Segal said. “What right do they have when I intend to do the exact same thing they want to do with my property?”
…. Segal…signed a contract last week to sell his property to Centex Homes for about $13 million, contingent upon local approval. Centex, a nationally known developer with projects in Middlesex, Morris and Monmouth counties, would then build 100 townhouses on Segal’s property….
Florio and Capodice [the mayor and deputy mayor] said they preferred AMJM because it is a local company.
“I’ve never heard of Centex,” Capodice said. “They’re not Union County people.”
It’s worth noting that the Star-Ledger story quoted above strongly implies that there’s some fairly sleazy political corruption involved in all this, and it’s possible that this might be a bigger factor than the Supreme Court’s ruling in Kelo. Hey, this is Jersey we’re talking about.
And here is another one for you:
Florida’s Riviera Beach is a poor, predominantly black, coastal community that intends to revitalize its economy by using eminent domain, if necessary, to displace about 6,000 local residents and build a billion-dollar waterfront yachting and housing complex.
“This is a community that’s in dire need of jobs, which has a median income of less than $19,000 a year,” said Riviera Beach Mayor Michael Brown.
He defends the use of eminent domain by saying the city is “using tools that have been available to governments for years to bring communities like ours out of the economic doldrums and the trauma centers.”
Mr. Brown said Riviera Beach is doing what the city of New London, Conn., is trying to do and what the U.S. Supreme Court said is proper in its ruling June 23 in Kelo v. City of New London. That decision upheld the right of government to seize private properties for use by private developers for projects designed to generate jobs and increase the tax base.
“Now eminent domain is affecting people who never had to deal with it before and who have political connections,” Mr. Brown said. “But if we don’t use this power, cities will die.”
Jacqui Loriol insists she and her husband will fight the loss of their 80-year-old home in Riviera Beach.
“This is a very [racially] mixed area that’s also very stable,” she said. “But no one seems to care … Riviera Beach needs economic redevelopment. But there’s got to be another way.”
The city is going to confiscate 2000 homes in the name of economic development (my soulmates at Q and O covered this yesterday). For those of you who remain unconvinced, here is another tale for you:
While planning for a new Dallas Cowboys stadium, Mayor Robert Cluck said the city would use eminent domain only as a last resort to assemble the needed land.
But condemnation has become the rule rather than the exception.
The City Council has condemned or sought to condemn more than three-quarters of the properties it has acted on in the past four months, an analysis has found.
“We were hoping that this would be the last resort,” Dr. Cluck said last week. “We were hoping there would be more willing sellers.”
He said that before the land acquisition started, city officials had no idea what percentage of property owners would sell willingly.
Although the number of condemnations is much higher than he would like, Dr. Cluck said, the city is making fair offers, and sometimes eminent domain is the only option.
Glenn Sodd, an attorney representing some people in the affected area, said the high percentage of eminent domain cases shows that the city has low-balled residents and business owners and that its incentive program is inadequate.
“The offers obviously aren’t sufficient otherwise they wouldn’t be hiring lawyers and forcing condemnations to be filed,” Mr. Sodd said.
In comparable cases, he said, he would expect three-quarters or more of the property owners to sell and the rest to go to court, not the other way around.
In fairness, the last story can not be traced directly to the Kelo decision, but it is a shocking display of what governments will do- to give away land and money to billionaire sports team owners.
The good news is that you can act, you can do something, and that people are sick of this and demanding changes. Recent polling data shows the attitude of folks in New Jersey:
Overwhelming majorities of New Jerseyans said in a recent poll the local government power of eminent domain is being abused and benefits only private developers.
The widespread distaste for eminent domain, taking private land for projects serving the public good, emerged in a newly released poll by Monmouth University and the Gannett New Jersey newspapers.
For example, about nine of every 10 adults who know the issue say it is wrong to take low-value homes to build a shopping center. A similar majority — 86 percent — say it is wrong to bulldoze a low-value home in order to replace it with a higher-value unit.
But 88 percent said it was OK to take vacant and run-down buildings to build a school, while 65 percent said it was OK to take land from a developer to preserve open space.
All over the country, however, municipalities and legislatures are acting to reign in eminent domain in the wake of the Kelo decision. You can check Google News every day, and you will find more and more stories like this, in Connecticut:
Cities and towns in Connecticut are taking the lead in seeking to block their own officials from seizing private property for the benefit of developers.
The U.S. Supreme Court in June allowed New London to raze a neighborhood to build a privately owned hotel and office space that officials say could add millions of dollars to the tax base. Justice John Paul Stevens wrote that states may enact additional laws restricting condemnations if residents are overly burdened.
The General Assembly has yet to act, with Republican lawmakers seeking a binding moratorium on property seizures until the state’s eminent domain laws can be reviewed. Democrats held two public hearings during the summer and called on state and municipal leaders to voluntarily halt any eminent domain proceedings.
Or this, in Ohio:
Legislation to place a one-year hold on using eminent domain for economic development could hit the Ohio Senate floor by Wednesday.
Senate Bill 167, introduced in August, calls for a moratorium on the government’s ability to seize homes and businesses for economic development in non-blighted areas. Legislators propose to use that year to examine Ohio’s eminent domain laws and recommend any changes needed to better protect private property owners.
Or this, in St. Louis:
An effort to put new restrictions on the use of eminent domain in unincorporated areas of St. Charles County began Monday night at a County Council work session.
Council Chairman Doug Funderburk and Councilman Joe Brazil submitted separate proposals after a U.S. Supreme Court ruling in June that said governments can take private property for purposes of economic development.
And Maryland:
A Maryland state senator plans to introduce legislation that would make it tougher for governments to seize private property to make way for shopping malls and condominium complexes.
Sen. James E. DeGrange Sr., an Anne Arundel Democrat, wants to keep the state from broadening its power of eminent domain as a result of a recent controversial U.S. Supreme Court decision that has pitted urban renewal proponents against private property advocates.
I could go on and on. It is important to make sure you act quickly and forcefully to protest and slow the horrible abuses listed in the first half of this post, but be mindful that pro-active steps are much more important. Push the changes in eminent domain use through local and state governments is much easier and useful than fighting case by case rear-guard actions after the abuses occur.
So, take the fight to your local government. Vote in city and state elections, because, in reality, they are more important than federal elections.
And keep your head up- we are going to win this.
Lines
Who is this “we” you speak of, white man?
All Kelo does is enable states rights in the cases of eminent domain. Don’t like it? Change it for your state and do it quick.
A real backlash will be the resulting laws that each state will pass that will change eminent domain.
Oh, and State Supreme Courts are still capable of overturning eminent domain cases, so there is some hope.
db
Thanks for the story links and call to action by voting.
I would also add that for those readers, particularly out West in municipalities with the unintended historical legacies of progressivism still in place, there are many opportunities to get involved in the decision making of local-government financing, such as citizen bond committees.
My own recent experience has opened my eyes to how brazen some large, copororate, monied interests have become in the last year in demanding that local governments direct property tax dollars to their own projects (e.g., “we’ll build a nice business center downtown if you acquire the land and sell it to us at a below-market price”). This has always gone on to a certain extent, but from some of the old-timers I have been working with, they say they have not seen so much political leveraging over local govt revenue by large corporations as they do now.
I can see why some local pols cave in to such demands when revenues are spread so thin right now in some places (and may get even thinner with a cooling off in housing prices); but a serious, active outcry from local taxpayers will lower the incentives for local pols to cave in.
Birkel
Left and right united at last against big –and little– government theft. I’ll be glad to see it happening as soon as the outrage spills into the political process to quash these invasions.
Until then it’s just hand wringing.
Oberon
(and yes, I know many of you do not like it when I use the word backlash)
Well, I like when you use the word backlash. Use it all the time, I say. At least until you get a backlash.
wilson
Seems like a superficial and emotional pitch, John. Not progressive in a positive way. You assume without proof that the government taking of land is a) without fair compensation and b) followed by “gifting” of public property to private firms. There are laws in place that require fair compensation and that prohibit giving away public property. I have seen no convincing evidence that anyone has received less than fair compensation, or that any government property has been given away. It could happen, but is it a pattern? Not anything I noticed. Since I am in the minority, at least for now, I will simply wait and bide my time. The next time we have a recession, and the real estate market spends five years in the dumps, I predict those areas that have kept condemnation options open will be thanking their law makers for maintaining a flexible system for condemnation.
Steve
It’s not the word backlash that’s a problem, John. It’s the implication that these things never could have happened before Kelo, when in fact, abuses of eminent domain happen all the time.
The New Jersey case is outrageous and I would be very surprised if it passed constitutional muster, even under the Kelo standard.
David Rossie
Wilson,
” I have seen no convincing evidence that anyone has received less than fair compensation”
That’s because you’re not in a position to determine what’s fair when someone else’s property is being taken.
Cyrus
wilson Says:
(a) almost indisputably happened in Kelo and (b) is completely irrelevant, because he’s not assuming it at all. Do you know what the Kelo decision was about? I mean, seriously? Some guy’s property was seized under imminent domain because the local government wanted to make a [private] commercial development happen. Public property was never “gifted” to private firms, as you put it, the property never became public in the first place.
And as for “fair compensation”, that’s difficult if not impossible to reach, especially when one side can stop negotiating whenever it wants and evict the little guy. Besides, it’s very subjective. If your house had been in your family for four generations, you’re probably want more money for it than if you’d only had it for four years – or just refuse to sell it at all. Do you really think you could persuade the government to take that seriously when (they believe) your property is the last piece they need for some lobbyist/developer’s project that will “revitalize the local community”?
Put it another way. Kelo was given 2001 market value (or something from before this real estate bubble) for his place. He spent the next four years fighting his eviction in court. When he lost, the town charged him back rent for the time he spent fighting it and he couldn’t get current market value. Is that your idea of “fair compensation”?
There is a miles-wide space for debate on this problem – whose fault it is, what to do about it, what effects it will have, how bad it is. But it looks like you’re saying there is no problem, which is insane.
wilson
Let’s keep in mind that the alternative to condemnation is not too savory. Recall the City of LA secretly buying up water rights in the Owens River valley, using “straw men”. Think those sellers got fair value? They sure did not, in hind sight, once they saw the full scope of the purchases by LA. At least condemnation gets things in the open, up for discussion.
Union NJ taking property for a parking lot: Keep in mind the property owner, getting ready for jury trial, posturing to get the highest price, will claim he (or she) is about to build the parking lot (adapt the property to the highest and best use). That way the claim goes up in value.
If the landowner actually hired a contractor before the taking occurred (no evidence of that here, that I have seen), fair compensation includes whatever it takes to settle with the contractor being pushed aside.
If Union pays fair compensation, including any developoment costs incurred by the owner, I am seeing nothing immoral or unconstitutional because the existing owner now has a competing development plan (probably recently put on the table).
Lines
As I said above, the Kelo decision does not stop individual states from hearing the cases all the way up to the Supreme Court level. There is absolutely no reason to call this a Kelo backlash or connect everything to Kelo. Kelo is just a decision upholding state’s rights as far as eminent domain is concerned.
Why feign outrage when you arn’t going to get the whole story, anyway? Why blame Kelo for individual states allowing eminent domain and unfair compensation?
Defense Guy
Kelo is blamed because the USSC had a shot at reversing the trend in eminent domain, and they punted. They could have said that this kind of use is way outside of the intention of the constitution, but didn’t.
rayabacus
No one is questioning that the States have the right to invoke “Eminent Domain” – the takings clause. What Kelo did was legitimize the taking of private property, not for public use but for use by private developers for profit.
That put at risk every property owner that has a piece of property that is desirable for “other use” by corporate interests. All the corporate interests need do is convince the authorities that they (corporate) have a better use(larger tax base) than the current property owner.
That decision (kelo) opened the door for local authorities to do just that.
Slartibartfast
SCOTUS doesn’t care about black people, it seems.
David Rossie
Not just corporate interests, but any influential private interest.
Rick
No one’s blamed Bush just yet. Verily, a miracle. John, your blog’s prognosis just improved
Cordially…
Rome Again
John Cole, I don’t think you are insufficiently outraged, that you are outraged at all is a positive aspect as far as I’m concerned. More power to you for grabbing onto this issue and keeping us informed of these new cases.
Here in Naples, Florida, we’re dealing with a situation that I think may end up in Emminent Domain. We have a zoo owned by one of the most influencial founding families of our local area who were going to sell the land on which the zoo sits.
During the 2004 election, local voters were faced with a question on our ballot about whether the county should purchase the land and keep the zoo for an arbitrary figure that the county pulled out of thin air with no appraisal ($40 million). The initiative won on the ballot but then the family that owned the land got the land appraised and decided they were going to sell it for more than the listed ballot price stated ($67.5 million). As a result, the county has decided to up the ante twice (to $49 and $56 million respectively).
People here are up in arms about this. This zoo has been here for many years, and is definitely a cultural fixture of this area. Since voters here approved the sale by a ratio of about 3/1, we expected that the county would purchase; but not at the new asking price, which the county decided they can’t afford, but yet they are willing to try to negotiate a palpable deal (despite the $40 million dollar amount being on the ballot!).
Now, while I am no defender of big money, I see the confusion of the Fleischmann property with regard to the ballot being a situation where Emminent Domain could possibly be exercised, and as this recent editorial states, I’m not the only one. Keep an eye on this.
Lines
Kelo upheld state’s rights to eminent domain, nothing more. The specific state laws are the ones that determine how the land can be handled, so handing it to private corp’s is up to each state law.
Kelo should be seen as an encouragement for each state to review its own eminent domain laws in a debate setting to determine the right course of action. The Supreme’s just said its not within the power of the federal government to determine individual state laws on eminent domain.
Steve
This is wrong for at least three reasons. First, the redevelopment scheme in Kelo involved plenty of public uses, including a riverwalk, a museum, a marina, and public parking facilities. Second, the purpose was not to “profit” some private developer; the developer was a non-profit, quasi-public entity chartered by the city to handle the nuts and bolts of the redevelopment. Third, numerous Supreme Court cases before Kelo upheld takings for the sole purpose of economic development, such as Ruckelshaus v. Monsanto, 467 U.S. 986 (1984).
rayabacus
There was never a question as to whether states had a right under the constitution to take private property for public use – that wasn’t the issue in Kelo that was in dispute. The issue in litigation was what exactly was public use. The ruling was that the taking for a “better use” was a part of public use. The dissenters were the ones that stated that the only remedy left for property owners was through their state and local governments.
KC
I wasn’t outright against the Kelo decision because it basically affirmed the people’s right to confirm or deny local governments’ ability to take private property for redevelopment. In other words, it left it as an issue to be decided upon locally, probably the place where the decision should be made about land use, right? That said, I live in Sacramento, and for a brief while there, the city was talking about several different proposals to put a Walmart downtown. When the news came out, everyone who, like myself, lived downtown was prepared to do whatever it took to ensure the Walmart plans were a no-go, burning down City Hall included. As far as I know, the opposition worked; any plans for an eminant domain seizure of land are dead for now (hopefully nobody sells to Walmart).
Rome Again
Here’s more about this situation:
Special Expanded Naples Zoo Stories Section
The latest, the rejection of the new offer of over 59 million dollars has not made it into the update of this page yet, but here’s that page:
Fleischmann family officially rejects latest offer for zoo land
Lines
I didn’t say the dissenters didn’t have a good point. The case had no bearing going to the Supreme Court, and never should have been granted a hearing once it did. Once in the Supreme Court, they had to rule one way or the other. To rule on the side of Kelo would have been a more more activist action, resulting in numerous contradictions between the Federal Government and the states. It would have essentially been legislation from the bench, so what would you want?
Its basically been put back to the individual state legislations to determine what is right for their represented people(s).
rayabacus
I obviously disagree with your conclusions here. The fifth amendment clearly states “public use”, to infer that that means private development is “legislating from the bench”
Here is the dissent. O’Conner says it better than I.
Rome Again
Or in the situation I mentioned, to guarantee the continued use that may cease without such litigation. I’m not saying I agree with Kelo, but that is how it may be used here.
Lines
If O’Conner had had her way, states would be more stringently limited in their abilities to govern eminent domain, being forced to measure all current laws and all current cases against the SC judgement. Kelo puts the onus back on the states allowing them to determine for themselves how they want eminent domain to work. Its closer to being decided by the citizens of the US, through legislation that is state oriented, rather than through federal.
It doesn’t say that states have to allow eminent domain for private gain, it only rules that the state law regarding eminent domain must be followed, and in the case of Kelo, the state law was weak and allowed it to be redistributed for private gain.
I still say the individual state SC’s can more effectively judge these cases than the federal SC.
rayabacus
It (Kelo) allows taking for “better use” as determined by the legislature – which is not “public use” as stated in the 5th Amendment to the Constitution. In this case if O’Conner had her way (as you put it) along with Rhenquist, Scalia and Thomas the States would be limited in taking property from private property owners to sell or lease to “different” property owners. That would be a valid interpretation of the 5th Amendment.
As she said, with the Kelo ruling, no one’s property is safe from the whims of the legislature. As she notes below, abdicating responsibility to enforce the Constitution and defering to State’s rights are two different things.
This dissent joined by Rhenquist, Scalia and Thomas, with Thomas writing further.
wilson
(a) almost indisputably happened in Kelo [Is this so? I thought there was a right to a jury trial. Was that waived? No one disputes on the record (as opposed to in the newspapers) as far as I can tell that the compensation offered to Kelo was fair. Kelo just objected in the USSCT to any duty to sell]
(b) is completely irrelevant, because he’s not assuming it at all. [If you will concede the Pfizer is paying fair value, fine. That helps my case, no?]
Do you know what the Kelo decision was about? I mean, seriously? Some guy’s property [ not a guy, actually, a woman, who owned a house for one year. Looks to me like she knew, or her broker knew, when she bought that she was in the path of the Pfizer project]
was seized under imminent domain because the local government wanted to make a [private] commercial development happen. [ Undisputed. About creating jobs for an area that needed them.]
Public property was never “gifted” to private firms, as you put it, the property never became public in the first place. [Again, if you want to concede Pfizer got no break, good for me, in my view.]
And as for “fair compensation”, that’s difficult if not impossible to reach [not hard with experts and a jury, in my view], especially when one side can stop negotiating whenever it wants and evict the little guy [not so simple, since condemning agency has to pay for counsel and experts for both sides, plus encounter delay].
Besides, it’s very subjective. [In theory, not in practice, in my view.]
If your house had been in your family for four generations, you’re probably want more money for it than if you’d only had it for four years – or just refuse to sell it at all. [First, that was not the case in Kelo. Second, there are laws for protecting historic structures. Third, this is theoretical more than practical.]
Do you really think you could persuade the government to take that seriously when (they believe) your property is the last piece they need for some lobbyist/developer’s project that will “revitalize the local community”? [Yes, having worked with historic properties, I do think I could stop the lobbyist/developer. But I again note that was not what happened in Kelo.]
Put it another way. Kelo was given 2001 market value (or something from before this real estate bubble) for his place. [Evidence? I suspect she had no equity, or virtually no equity. She was working on becomeing a nurse. ]
He spent the next four years fighting his eviction in court. When he lost, the town charged him back rent for the time he spent fighting it and he couldn’t get current market value. Is that your idea of “fair compensation”? [Did she pay the mortgage during the time she had the property? Probably not. Why pay it? Again, I have no objection to fair compensation, and I do not concede that anyone at Pfizer or elsewhere proposes to pay less than fair compensation. The Kelo gripe on the record (as opposed to in a rumor campaign) is about private vs. public use, not what is the right dollar figure. The rest I would consider lawyerly rhetorical flourished. Let’s not get baffled by the baloney about “Kelo is not being paid enough.”]
There is a miles-wide space for debate on this problem – whose fault it is, what to do about it, what effects it will have, how bad it is. [ I agree. I note NOLA may be an interesting testing ground. I say we should keep options open, as the USSCT allowed in Kelo.]
But it looks like you’re saying there is no problem, which is insane. [This is a procedure that is not new. It is now, in my mind, no more of a problem than it was when our predecessors built railroads, canals, shopping centers, Dodger stadium, etc, with assists from ED procedures. ED is always emotionally (but not financially) distressing for a limited time period. For that reason, it is to be avoided if possible. But we need to be able to live with the sort of minor distress legitimately suffered by Kelo, for the good of our communities, in my view. Otherwise, we may end up having too much of a “no growth” attitude for the good of our country.
Are you saying that ED for private/public use just now became a problem? Is it perhaps perceived as a new problem now because real estate prices now are at bubble heights?]
guav
It’s happening right down the street from me in Jersey City also, I went to a rally last night held by the Hoboken Republicans.
Eminent Domain is being invoked to take a bar owned by a Malaysian immigrant for the last 20 years so that a Catholic prep school next door can add 7 yards to it’s football field.
http://www.hudsonissocialist.blogspot.com/
http://www.nj.com/news/jjournal/index.ssf?/base/news-0/1127207627113260.xml&coll=3
http://www.hobokenrepublicans.com/pages/3/index.htm
David Rossie
Mr. Cole,
The Ohio Supreme Court will be the first to hear an eminent domain for private benefit case after the Kelo decision.
Ohio Supreme Court Accepts Eminent Domain Abuse Case
This is an huge issue, and I’m about to go research the judicial habits and philosophies of our Ohio justices. I hope they make our state proud!
David Rossie
By “our” I mean mine of course, unless any other buckeyes frequent these pages.
Harry Atkinson
ABC Breaking News: Spy uncovered in the White House. First case of espoinage in the White House in modern history. Apparently the guy was rummaging through the computers there at will. And to top it off? The guy was on the staff of Dick Cheney.
http://abcnews.go.com/WNT/story?id=1187030&page=1
How much worse can it get for these assholes?
Steven D
Maybe this helps explain Miers–need to keep a Kelo majority intact.
http://www.bushfiles.com/bushfiles/SweetheartDeal.html
rayabacus
The problem with this case (Kelo) and its predecessors over the years has been the expansion of the meaning of “public use” as stated in the 5th Amendment. This case makes it legal for states to allow the taking of private property from owner A and transfer it to B for private use if there is any benefit to the public (higher tax base, more aesthetically pleasing, commerce vs. residences, new jobs, etc). It is now SC precedent and essentially an amendment of the Constitution. Amended by 5 judges.
Harry Atkinson
If you guys have a problem with Harriet Miers, why don’t you show some guts and tell it to her face. She has a blog, you know.
http://harrietmiers.blogspot.com/
rayabacus
Which assholes? Apparently he worked for Gore, Clinton and Rice too.
Harry Atkinson
Heh. If you didn’t have Clinton to blame, what would you do with your time? The guy was a spy in the Bush White House, a member of Dick Cheney’s staff.
Word has it he once worked for Mickey D’s as well. But does that make Aragoncillo’s Bush White House spying the fault of fault of Ronald McDonald?
rayabacus
According to the article I read (that you linked to) it did not say when he was spying. He worked for Gore in 1999 in the WH. So…..maybe he was spying when he worked for Gore and Cheney’s staff caught him. Or maybe he was spying when he worked for Clinton? Or Rice? Apparantly another one of those Clinton Administration hold overs.
Stormy70
The idiots who live in Arlington voted to approve the stadium. I would have voted hell to the no! but I don’t live there.
wilson
“The problem with this case (Kelo) and its predecessors over the years has been the expansion of the meaning of “public use” as stated in the 5th Amendment.”
How does one define “public”? No school or road is used by every member of the public. Is a stadium public? A big theater? Where do we draw the line and say “not public enough”?
How long does condemned property need to stay public? 100 years? 20 years? 5 years? 1 year? If the New London condemns land, does that mean it can never sell it?
Does this mean no ED for a hospital to be run by Yale? Why, if Yale is in the best position to run the facility? If we are going to have NLDC hold bare title and lease the facility to Yale, is that public use? Does it make a difference if 80% of the Yale hospital patients are private?
I can see why, for over 100 years, as far as I can tell, the USSCT has not tried to read much in to the “public use” idea. As in phrases like “cruel and unusual punishment”, it appears the framers were intentionally vague. Hence, I am not seeing Kelo as inconsistent with stare decisis, or with a fair reading of the 5th Amend.
Basically, in my view, the Pfizer project is “public use” because it is a use endorsed by the NLDC, as a properly chartered entity with ED powers, and no “gifting” of public property (for less than fair market value) to Pfizer is alleged or proven.
“This case makes it legal for states to allow the taking of private property from owner A and transfer it to B for private use if there is any benefit to the public (higher tax base, more aesthetically pleasing, commerce vs. residences, new jobs, etc).” [I agree. But I do not call this a change in the law.]
“It is now SC precedent and essentially an amendment of the Constitution. Amended by 5 judges.” [I disagree that there is an amendment, but would be willing to hear any evidence about what the framers must have meant by “public use,” especially in connection with the Yale hospital ideas.]
Harry Atkinson
Rayabooboo: You know, you’re right. Thank God the Bushies are in the White House. Not only did they catch that spy, but they did it in less than 6 years!
rayabacus
Wilson,
Obviously you have not read the actual opinion. With your view, you are with the majority of the Supremes. I am in the dissenting view. Here is the acutal opinion with dissents.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108&friend=nytimes
Thomas answers your questions re use. Kennedy punts to the states.
wilson
Thomas came out in the minority of one. He does not even attempt to answer the practical questions about what is public enough.
Is a stadium public enough? Is a Yale hospital with 80% private patients public enough? Is it ok for a public entity to hold title to ED property and lease for private use? Can ED property be “flipped” after a year or three or five to a private company? None of these practical issues are even touched on by Thomas. Thomas ducks the hard questions.
The only cite from the time of the framing of the 5th Amendment is the dictionary. Any legal document that leads with a cite to a dictionary is immediately suspect as “opinion in search of authority.”
With all due respect, Thomas and his clerks did not approach the issue as practical real estate lawyers, public agency lawyers, or defenders of ED actions. The dissent is a puff piece, and not much more.
The weight of authority is against the Thomas position, and has been trending away from his nebulous, indefinite approach for decades if not centuries.
jobiuspublius
If “Kelo” allows government to view and use private property as a source of revenue, then, a downward preasure on spending might emerge to curb the governments appetite or justification for taking property, perhaps the end of property taxes.
If “Kelo” allows government to view and use private property as a source of revenue, then, doesn’t the government owe compensation whenever it extracts revenue from the property owner? That’s absurd. Take note Bennett.
And what is property? Are investments property? What if the government wants your antiques collection, a portion of your income, or your cats(muahaha)? Imagine you are dressed smartly for a job interview. On the way to the job interview, a police officer pulls you over and purchases your shoes. Then sells them to a strange figure in a light beige trench coat. At the job interview, everyone is dressed in plastic bags. You lose the job to someone who dressed appropriatly. On the way out a mob of employees stampede in from lunch. You look around and see a city employee emptying a trash receptcle by the curb. You blink and his broom is gone.
Kelo and Eminent Domain illustrate exactly where the real divide in America is. The state and local governments can now blatantly enter the real estate business, in grand corrupt or crony style no less.
jobiuspublius
Edit: delete state and local in the last sentance.
Barbar
When the issue is gay rights or abortion, conservatives are quick to point out the virtues of local and state governments, even when the results aren’t what they personally want. “Hey I don’t think gays should be thrown in jail for having sex, but I think that’s up to the legislature to decide. Power to the people, man. Activist judges shouldn’t be imposing their views on everyone, it makes a mockery of democracy.”
But now apparently democracy is bad. The people’s voice shouldn’t count, 9 people on the Supreme Court need to save everyone from the bad decisions they make. Hasn’t anyone been paying attention? You can’t trust legislatures to make good decisions.
I wonder what the difference is.
Defense Guy
Harry
As was already pointed out stop being such a partisan prick, this catch makes both parties look bad.
jobiuspublius
Wrong thread?
Anyway, you simply don’t understand the man’s subtle soft spoken sense of humor. MUAHAHAHAHAHHA
Defense Guy
His link to the spy nab. The one who worked for the last 2 administrations. Yet simply pointing this out leads to a ‘always comes back to Clinton’, as if things that went on under his administration suddenly get passed to Bush.
Yeah, wrong thread.
Bruce Moomaw
It’s useful for cliche-busters to keep in mind that this particular thievery was enabled by a 5-4 LIBERAL Supreme Court majority — something Brad Delong has pointed out, to his credit.
jobiuspublius
Oh oh. For every season, turn turn turn …
jobiuspublius
Reading “Kelo”, I’m wondering what’s to stop clever individuals from conspiring to take property by drawing up a multi-use plan for a broad area that includes the prized land. A park and transportation hub there, some residential and commercial space here.
jobiuspublius
Interesting that public use was boiled down to public purpose. A use is an implementation of a goal. A purpose is a goal. Restriction to public use would imply that the property be made to achieve it’s goal.
So, if the land is taken to create a public park, then unless there is a locust infestation, the park will be implemented. Revenue is not so predictable.
Without “Kelo”, New London could have all that land for a park, AFAIK. So, it’s a portion of the taking that is counterintuative. But, it is that portion that prompted the taking. The park mearly enhances the main purpose, economic developement.
It’s one thing to take for national interest, that is normally thought to be indispensable. But, is the fate of a municipality that crucial? What ever happened to free enterprise?
cfw
As Stevens said, a policy of favoring free enterprise over ED makes sense.
But we are way past any sort of pure free enterprise system. Recall that NL has or had a huge risk of loss of 10,000 jobs or so from closure of a sub base. In that context, facilitating a 2000-3000 job influx from Pfizer, at the cost of 6 condemnations (5 of absentee landowners) seemed reasonable. 2500 jobs came from Pfizer – the positive ripple effect was probably huge.
Kelo insisted that must stop (or be cut back) because her peace of mind should trump the good of the community, as perceived by NLDC. If you were in her shoes would you feel that bad about giving up your pink house with a stone wall that you bought and painted a year before the proceedings began, to help facilitate the prosperity of NL? Not sure that she will feel that “gyped” 1-5-10-20 years from now, assuming she is paid fair compensation.
Despite the turmoil, I suspect NLDC and Pfizer were well advised. Time will tell. Maybe Pfizer will not succeed and the property the spent $250 million developing will promptly return to its pretty blighted condition in 3 years. I doubt that will happen, but it could.
NLDC acted to replace public payroll sub depot jobs with private industry jobs. That at least trends toward free enterprise. Pfizer was not being cheap, in my view, but it needed the certainty that ED as an option provided.
Shygetz
Kelo (and many of the less popularized precursors) was a terrible decision that eroded individual rights in favor of the rights of the government.
The Bill of Rights is supposed to protect individuals (and their property) from the tyranny of the majority. Kelo now eliminates the protection for a person’s property (and as was pointed out earlier, no where is it stated that property is confined to real estate).
It’s not Thomas’ job to approach this issue as a real estate lawyer–his job is to approach this issue as a constitutional scholar. Somehow, public use got transformed to public purpose, which got transformed to public benefit. I would say, if it were up to me, that the public must hold title and make use of the property for the foreseeable future in order to exercise public domain. A county could own and operate a public hospital, or a road, or a school (and could contract out management duties if it desired). A city could not seize property to sell (or lease or transfer) to private businesses for private use; the use must be wholly public.
Shygetz
cfw–The cost was not 6 condemnations. The cost was 6 condemnations plus that fact that it is now legal and proper to sieze the property of law abiding citizens on the flimsiest of pretexts. An endemic problem with the “ends justifies the means” crowd is that they can never see all of the ends.
Lines
The cost is that the individual states must amend their constitutions to define ED as their citizens want it.
jobiuspublius
If the government can view your property as a source of revenue then you are a renter of said property, not, the owner.
jobiuspublius
I’m reading Kelo. All the arguments seem reasonable to some extent. Thomas’ argument seemed unconvincing at first, simplistic. But, further into his argument it appears better thought out. His argument seems to stand most in contrast to Kennedy’s. Kennedy quotes a case where public use is replaced by public purpose. At the point I’m at now in Thomas’ dissent, Thomas doesn’t address that case. But, he doesn’t seem to agree with it.
Forgot the name of the case, but, it could be a linch pin in SCOTUS rulings. That case may be one that people wish to overturn. It would be an interesting topic of discusion in a SCOTUS nomination. And more intelligant then all the stupid buzz words.
Shygetz
Lines, it is not the role of the individual states to protect its minorities from the will of the majority. That is the job of the Constitution, and the reason that the we are a constitutional republic, and not just a republic.
Jack Roy
Would it kill you to call it “fallout” instead of “backlash”?
jobiuspublius
I can’t help guessing that Roberts would have sided with Kennedy. Kenndy’s opinion seems so simple and mechanical.
Lines
Why would ED be the will of the majority?
wilson
I think Kelo opponents must concede the “public use” phrase does not tell us how long the condemned proeprty must be held (1 year, 3 years, 5 years) before it can be sold. It does not tell us if the public can own bare title and have the facility managed by a private entity (say a hospital managed by Yale but owned by NLDC). It does not tell us what is or is not public enough (stadium? large theater?). If we put gloss on that language, are we calling balls and strikes or making law?
Thomas cites to Blackstone (a prominent English commentator writing in years before 1787), who blesses a mill owner flooding upstream land, with fair rcompensation for the upstream onwers, since a mill is privately owned but helps the public.
Guess what, Pfizer is publicly owned and its products (on balance) help the public. So even if we conflate Pfizer with NLDC, original intent (and reflections on legal history) do not work in favor of Kelo here, which is probably why Thomas got no votes in support of his opinion, and had to cite a dictionary as his “authority.”
Here, the framers look to have been intentionally vague. What has developed since 1787 is the idea that a public entity, properly constituted and given ED powers, can declare something a public use. So long as the Pfizers of the world pay fair value, and the Kelos of the world receive fair compensation, and the NLDCs are properly responsive to the electorate (ultimately), the public is using the property.
Hair-splitting about how much of the public must use the property at one time (or ever) is gloss on the public use language, not supported by history, at least as far as I can see. Obviously not all of the public can use any property at one time, eh?
Here, the NLDC people did what they could to bring 2000+ jobs from Pfizer alone to New London, knowing the sub base was slated to close (eliminating thousands of area jobs). What is so sinister and despicable about the NLDC iniative?
Shygetz
Lines–ED requires that the representatives of the majority exercise their power to the detriment of the rights of the minority. As such, it represents a tyranny of the majority, and is why it was limited in the Bill of Rights.
wilson–
If that is so, then why did the framers put the phrase “public use” in there at all? If you gloss over “public use” to mean whatever the government wants it to mean at that moment, then the phrase is meaningless and should have been left out. I don’t believe that to be true; there must be no plans to sell or transfer the land when the land is seized. The courts must ensure that the government acts in good faith (a role that the court has assumed in many other instances). The property could be managed as the government sees fit, but it must be for a public use. But the NLDC is a private organization, and as such could not own the property.
Pfizer is publically traded, but it is not a public entity. It exists to generate profit for its investors, and does so by generating products to sell for profit. As such, any conflation of Pfizer with public use is foolish; Pfizer exists by law to provide profit to its investors.
As such, why put the phrase “public use” in at all? No, the framers meant something by public use other than whatever the government at the time wants it to mean.
All of the public can have the right to use a facility at one time. As it stands, this is not for public use, it is for private transfer. NLDC determined that, in order to bring in 2000 jobs, it was worth it to eliminate private property rights. It is not worth it to me, it is not in keeping with the Constitution or the idea of individual rights, and I dissent (strenuously).
goonie bird
lets do a entimate domain on the liberal judges lets teardown the fancy homes of liberal hollywood celeberties and build a museum dedicated to our constitutional right which we are slowly losing becuase of the incompetent judges
Weight
Why do we give our power away to the liberal judges. Is there any other method of our rights that we can demand back?
Anna