Centerfield

Of course this case should be resolved by the Supreme Court of the United States. It involves a question of federal constitutional interpretation on direct appeal from the Supreme Court of Connecticut and the parties are neither inclined to arbitrate nor obliged by law or contract to do so. There is a case in controversy, and a federal question for appellate review under 28 U.S.C. Sec. 1257(a).

The case arises, of course, from the Takings Clause of the Fifth Amendment, which has two parts. The first is the "public use" element. Here, the Court, despite the inclinations of several Justices to protect an owner of real property from the government, is bound by two precedents. The first (in logical application but not chronologically), Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), stands for the proposition that a) the government doesn't have to take title to the condemned property but can transfer title in the first instance to a private party and b) that the government doesn't have to use the condemned property itself because the condemnation is judged based on the purpose and not the method of the condemnation.

The second, Berman v. Parker, 348 U.S. 26 (1954), stands for the proposition that judicial review of "public purpose" to condemn property is very limited. In short, determining whether public policy reasons exist to justify a condemnation is question for the political branches and not the judicial branch. The Court also held that both aesthetics and money could be valid "public purposes" to justify condemnation. Moreover, the facts underlying Berman are similar to these (except the condemnation arose from federal and not state statute).

Thus bound by precedent, it seems likely that the Court will reverse the state supreme court. This doesn't address the separate question of whether or not the price paid to the plaintiffs was the proper price--the "just compensation" element of the Takings Clause.

Posted by: The Jaded JD at February 24, 2005 10:23 AM

Oops. "Likely to reverse" should be "unlikely to reverse."

Posted by: The Jaded JD at February 24, 2005 10:25 AM

JJD, just to be clear, I'm not suggesting scotus shouldn't make the decision under the current circumstances. Of course it should. It's reached their desk, and th people need a ruling,

My point was really more like "it would probably be better if it didn't have to come to this." You may well be right that it's unlikely scotus will depart from precedent, as this happens rarely. And the cases you cite sure sound relevant. It's just that I don't think the people will be very happy with rulings suggesting the government has such broad latitude, and it's at least questionable whether this was the founders' intent. They may well have meant public use to refer only to concrete use by the government, like for a park or a courthouse or a highway. My guess is that if scotus affirms broad interpretation of taking by eminent for public use as anything which results in additional public benefit than the current sate does, this will be good news for the Republicans in subsequent elections. It will reinforce their already sympathetic theme that the courts are out of step with democracy and need to be reined in.

Posted by: bk at February 24, 2005 12:00 PM

oops, I meant "current state" refering to the state of the property while in the hands of the owner prior to taking by eminent domain.

Posted by: bk at February 24, 2005 12:02 PM

Seen this up close, if not personal, with redevelopment projects where the developer gets the land for their own project with the government supplying the legal muscle. Most property owners happy to sell, but a few who tell the developer to shove off at any price. Developer calls buddy in government, government officials condemn land and hand it over to developer. The cited "benefit" to the public being an increased tax base (and little else).

Certainly can't argue the details of the law, but if "higher tax revenues" is a sufficient "public benefit" to justify just any condemnation, then the concept of private property is screwed. If someone wants your property and they're able to convince the government that their use will pay higher taxes than yours, then your property is theirs.

This is America?

Posted by: Tully at February 24, 2005 12:17 PM

Tully, what if you volunteered to pay higher taxes? :-)

Posted by: bk at February 24, 2005 12:48 PM

This whole New London case really got to me. The same thing is happening in the town adjacent to me, Coralville, IA. They condemned over 60 properties, mostly commercial (small repair shops, warehouses etc.)and some modest homes to put in a convention center with a Marriott and an environmental center that has been ridiculed as a boondoggle and has already been promised 50 million in Federal dollars if they can raise the other 100+ million. Senator Grassley, always a tightwad with public money until he became Finance committee chair was responsible for that side of pork. The chief benefit to the city is mainly more tax revenues. I'm opposed to it on principal. Sure, the riverfront will look nice, that's why the folks who live there didn't want to move.

I'm very interested to see if the Scalia/Renquist/Thomas triuvirate votes for private property rights or for government's right to take it. They are supposed to be strict constructionists, right?

Posted by: tim at February 24, 2005 01:36 PM

NPR's Nina Totenberg quoted one of the Justices/City of New London: (paraphrased)

Justice: Are you saying that the City has a right to tear down a Super-8 Motel to build a Hyatt?

Atty: Well, yes they do, Your Honor.

I'm with Tully on this one.

Posted by: EG at February 24, 2005 02:26 PM

Tim,

There really isn't a strict constructionist/textualist/originalist issue here. The Takings Clause says, "Private property [shall not] be taken for public use without just compensation." U.S. Const. amend. V. As I suggested in my comment, the real question isn't whether the government can condemn, which I think Kelo et al. lose; the question is how much must they be paid. It would be interesting to see this Court hold that a property owners may be owed a premium above market value depending on the nature of the public use giving rise to the condemnation--for example, if the Motel 6 is replaced with a Hilton, should the Motel 6 owner be given fair market value for the property plus a percentage of the increased value obtained from replacing the Motel 6 with the Hilton?

Posted by: The Jaded JD at February 24, 2005 02:41 PM

Is that all it says? Of course interpretations may vary. I'd argue that since itonly mentions takings as something that can be done for for public use with just compensation, it implies that takings can't be done for a use thats not public.

If that's all it says, it doesn't seem like it would be that hard to add another sentence as amendment.

The taking of private property by the government for uses other than public uses is prohibited.

I expect that if broad takings are approved, there will be a movement to do this....

Posted by: bk at February 24, 2005 03:22 PM

Thanks for the clarification Jaded.

But as BK points out, if that's ALL it says, then public use is up to interpretation. I read the precidents you listed which would make a good case for the takers if precident is important. But wasn't Plessey vs Ferguson a precident too?

Obviously I'm not a lawyer. But it galls me when the government can spend millions in tax payer money to take private property, just to end up keeping it as more expensive private property. Then, the Iowa case they spin off some of it as public property if they can get millions more in federal subsidies to do it. If they don't get the contributions the federal money is contingent on, they'll end up cutting the best deal they can at some future date for some unknown future use. And for this they forced dozens of business and homeowners off their property.

That's a lot to read in to that one simple sentence in the 5th amendment.

Posted by: tim at February 24, 2005 04:32 PM

This case concerns me also but as I watch the conversation I wonder is this a liberal/conservative situation? I think not because the poor folks could have their houses torn down for a new shopping mall (liberal resonance) or the small business owner could have his property taken away for the businessman in "cohoots" with the government.

On top of all that, this has been an issue for a real long time. Did past generations just accept it as fact?

Posted by: Chris at February 24, 2005 05:40 PM

Well, it's not new, but it's a creeping problem. Seems like ever since pols discovered it was a good sell to talk about "creating jobs" its been easier to pull the wool over the people's eyes in the name of doing what's "good for the economy."

Posted by: bk at February 24, 2005 08:17 PM

To compare Midkiff and Berman to Plessy is, I think to put it mildly, hyperbole. After all, I as point out (with no small part of the credit due to Justice Kennedy, whose line of questioning in oral argument in Kelo highlights as quite likely the turning point for this case), there's a lot of room on the "just compensation" element for the Court to work with. We may not be talking about, for example, adding an extra grand onto the price the government pays when they condemn your property; we may be talking about an innovation in the law of eminent domain that makes the sort of condemnations blessed in Berman prohibitively expensive by requiring the government to pay the original owner "just compensation" based on the improvement of the property after condemnation.

In other words, don't think of this just as, "great, I get more for my house but they can still throw me out;" rather, think of this as "I have to pay him so much to throw him out it doesn't make economic sense for me to do it."

I'm not committing the Court to that position, or suggesting Justice Kennedy hinted at taking that position himself. But I suspect that that position be more persuasive among the members of this Court than "overrule Berman as bad law." Remember, stare decisis is the only thing saving Roe v. Wade, which, I suspect, is a key element of the "socially liberal, economically conservative" vein of centrism most of Centerfield supports. And Roe is on a lot less stable ground for jurisprudential reasons than Berman is.

Posted by: The Jaded JD at February 24, 2005 11:20 PM

whether or not the court does hold that just compensation requires a much larger value than currently understood, i think that there does need to be serious increases in compensation.

if you can just expropriate and then quibble over the value, no big deal. but if condemnation becomes a serious cost, people will use it less, and only in cases where it is strictly necessary. condemn for military use, or roads, or whatever but condemnation for development stinks very badly. either several times market value, several times npv of tax payments, or several times benefit to private developers, serious countervailing rules are needed to constrain this.

Posted by: hey at February 25, 2005 01:00 AM

JJD, you seem to know alot about scotus and legal issues and I value your input tremendously. I'm guessing here that I'm not the only one who has no clue what "stare decisis" means. Hope you're not offended by my asking that you run latin checks on your posts or just make a little more effort to screen out those latin phrases that go over the head of legal laymen. I bet most of us only know the latin holas, de nadas, s'il vous plaits, etc. like quid pro quo and so on.

Speaking only for myself, if you are posting and want to use a phrase like stare decisis and also give us a paragraph primer on it, I'd love to see it.

Posted by: bk at February 25, 2005 10:06 AM

Hyperbole? Me?

But seriously, if the court were to rule as you think possible, how do they word it so as not to be accused of legislating from the bench?

I can't imagine they could say something like:

"We rule for the government but they must pay the landowners 10 times the current market value at the time of the taking." That sounds like something only a legislative body could do.

I think "stare decisis" refers to the role of precident, but I never went to law school, only watched Law and Order.

Posted by: tim at February 25, 2005 04:02 PM

Hope you're not offended by my asking that you run latin checks on your posts or just make a little more effort to screen out those latin phrases that go over the head of legal laymen.

Sorry. It's not intentional or snobbish. I tutor first-year law students and they occasionally give me glassy looks as well.

Stare decisis, "let the decision stand," is the Anglo-American common law principle that once a superior court has issued its holding on a question of law, all inferior courts are bound to comply with that holding and the originating court itself will depart from that holding only in exceptional cases. The benefit of stare decisis is that precedent forms a benchmark for future legal and legislative action. In fact, whether or not there has been subsequent reliance on a prior holding is often a major factor in a decision of the originating court to overrule or sustain the holding.

Posted by: The Jaded JD at February 25, 2005 05:10 PM

It seems to me (complete laymen) that there are real potential downsides to an over-reliance on "Stare Decisis". It's true that if precedence is given too little value then the justice system is in danger of becoming chaotic and overburdened.... with laws being adjucated inconsistantly, courts endlessly re-fighting issues that have been decided countless times, and people uncertain of exactly what is legal and what is not.

However, all human institutions are subject to error and SCOTUS is no exception. An over-reliance on precedence means that once a mistake or miscarriage is made by the Court it is repeated in perpetuity for all time. Obviously that's not good either....and Society can pay a serious cost for it. There has to be a balance.

In this ordinary, non-legaly trained citizens opinion, it seems like SCOTUS has been a little too reluctant to re-examine past decisions and over-turn them when mistakes may have been made in the past.

Posted by: cengel at March 2, 2005 03:20 PM