Oh this will help: Supreme Court Rules Cities May Seize Homes for private companies

-- Alex in SF

no, it seems totally backward to me. the conservative wing all sided against this, the moderate to liberal wing went for it. I can't understand why.

or will they go on about how the Gubmint is coming in to take their land?

....take a guess which one they'll pick.

this is why i'm reserving judgment till i actually read the case -- there's a whole line of cases under the Takings Clause that has been given mad props by conservative judges which, essentially, if taken to its logical extension would pretty much vitiate government regulation of private property (i.e., bringing us back to pre-New Deal jurisprudence).

LANDOWNERS LOSE [Jonathan H. Adler]
The Supreme Court upheld the use of eminent domain by local governments for the purpose of economic development, 5-4.

Doesn't sound like they were happy.

Conservatives are very much in favor of limiting government takings because, to them, nothing is more sacred than property rights. The government taking your shit away is the essence of tyranny.

This is a case of that belief coinciding with the rights of average or even poor people.

PROPERTY RIGHTS CIVIL WAR CONTINUES FOR TENTH STRAIGHT YEAR

I wish I could agree. Sure, the right-wing justices are for 'limited government' but that applies to Federal power too, and that means gun laws, right-to-privacy cases (most notably abortion rights), and other 'overreaching' powers that the Feds have now. It's mixed bag and I don't care for all of the contents.

hell, even the people in the original lawsuit didn't want their homes going to non-public use.

After that brainwashing episode and everything, who knows what else might happen...

This is excellent advice to the Republicans. Substance over style.

There is a federalism spin to this case that appears to be being missed. I wonder if that is what motivated Kennedy to vote with the majority.

that said, this is gonna get played as "oh no! poor people are getting kicked outta their houses by liberals!! OH NO!!!" never mind that said poor folks were prob. get shafted anyway, and are being used as a stalking horse for the right (to intervene in state economic decisions that they don't like). the righties aren't always dumb.

exactly -- this case is really about whether the US Supreme Court should substitute its judgments about how states and municipalities should determine what "public uses" are proper (and ergo not impermissible 5th amendment Takings) as opposed to the states and municipalities themselves. it's a bedrock federalist principle that such decisions are traditionally made by states and municipalities, and that the federal courts are to subject such decisions to a "rational basis" analysis (i.e., they can only be overturned if made for arbitrary or capricious reasons). thomas's dissent would make such decisionmaking per se out-of-bounds (which is why i say that he's fulla shit, and that these people are being used as stalking horses for folks w/ another agenda).

i will say this much about the thomas dissent, then -- at least he's honest about their being a philosophical difference b/w his view and the majority. thomas's view being that the Takings Clause explicitly overrides the caselaw as a matter of constitutional principle (which is why he cites blackstone, among other things). but it's a pretty controversial view among constitutional scholars and it would go against the legal precedent here.

that said, i'm certainly not a fan of how eminent domain plays out -- in reality, local boards like the one here are often dominated by real estate development interests and can be dens of petty self-interest, outright bigotry, and corruption. i also think that the developers and pfizer were in a "heads we win, tails you lose" situation here -- they would've gotten what they wanted regardless of how the Court decided. but all of that doesn't mean that what happened to these people was unconstitutional, or that this use of eminent domain is per se unconstitutional as a matter of principle.

It's not at all a stretch to apply Berman and Midkiff, if all you're searching for is outright legitimacy to apply private utility to public use. And there's also nothing wrong with Thomas pointing out his philosophical problem with it either, not only because it's a common part of judicial comments but especially given the nature of the case and how it would neatly fit an ideaologue.

but it's a pretty controversial view among constitutional scholars and it would go against the legal precedent here.

that's a mighty wide statement you're making Eisbar. There's no real reason to ask for which scholars you refer to, and saying it goes against legal precedent doesn't hold that much water, given the Court's history of ignoring precedence and the facts in this case. Are you saying that if city lost this case that the Court was going against legal precedent?

And as much as I love playing the tyrannical libertarian nutball on ILX, it's an absolute fact that local boards, if not dominated by individuals with real estate concerns, are at the very least heavily influenced by developers and old-boyz networks of land movers and banks and everyone else with a hand in the pocket. I mean, how on earth can we blindly watch the taking away of someone's house--not in a blighted area, not in an area that needs a new strip mall--by imperial force so lightly? And we're supposed to wash the pain away with hush money in an amount that the State deems "fair"?

(x-post)

The bedrock principle you refer to is more aligned with public use and not (in this case) the interference of private use when granted by State authority

I see, we should leave it up to Don Weiner to decide what is public or private, rather than the legislature. The law is that a use ordered by an act of a public body is pretty much inherently public in nature, unless a lower (and state) court finds that the public body can't make this claim with a straight face because it is unreasonable to believe that it is not intended to benefit only a particular private party or parties. The lower court here did not so find, and the Supreme Court didn't rewrite the law in accordance with the petitioners' desire that takings not be allowed if the public purpose also constitutes "economic development" (whatever that is). Thus, the prevailing principle is that if you don't like what the planning board does, the court isn't where you turn. It's your responsibility to change the regulatory outcome by seeking to pressure the board to be more responive to your interests, to pressure those in power to change the composition of the board, or to vote out of office those responsible for its composition. This is basic stuff for anyone skeptical of judicial power, as most contemporary conservatives claim to be.

I will. The opinion does a good job of showing that precedent undoubtedly supports the "public purpose" doctrine. It then argues that the integrated development plan here is clearly for a public purpose based upon its multi-use development qualities, and its non-specification of private transferees, etc. This is a rather fact-pattern-based decision in this respect. It does not say "anything goes," simply "deference is due here." I think Adler at NRO has that aspect correct. I think the decision does a good job of showing that previous opinions are not truly focused on the remedy for blight or public harm--majority makes an argument that the redevelopment plan in Berman was not to eliminate blight but to promote future improvement, just as the case here. Also, the redistribution of land in Hawaii, the easing of economic barriers to market entry in Monsanto--these are forward looking economic rationale underlying those decisions. It does a good job showing that incidental benefits to private parties are also part of precedent. The opinion just does a better job than the O'Connor dissent with harmonizing to precedent. Of course, Thomas' doesn't even try to do that. Anyway, Eisbar OTM that as a matter of law this is a consistent decision.

The outcome for the plaintiffs here is not the one most people feel great about, myself included. As a matter of narrower public policy, disposessing people of homes is not a winner. I think the comment that local redevelopment boards are stacked in favor of developers is OTM. To say that the redevelpment authorities do not know to whom the benefits would accrue, even if not specified in the plan, may be unrealistic--there's only so many developers situated as to provide services to the project in many cases. But again, the Court was deciding the case before it--no one mentioned evidence that showed that developers here had rigged this up.

Maybe it would be a misinterpretation of precedent in stripping out prior recognition of future economic benefit as undergirding Berman and Monsanto.

You really can't stop yourself, can you Gabbneb, from making this personal and dripping with condescension. To the second part of this clip, your assertion is what the Court was pondering. And the bedrock principle, as parroted by Thomas, is what's in the Fifth Amendment. Is there room for interpretation of the Fifth, including noting precedence? Sure, and I've noted that.

As for your little lesson on the prevailing principle, it's specious given the circumstances.

gabb can argue for himself, don. but his point is valid -- that is, that the point that you are arguing comes down to substituting the judgment of the public body w/ that of a third party who is not otherwise connected w/ the decision made by that body (whether that 3d party is yerself or the U.S. Supreme Court). what myself and gabb are arguing, however, is that this is a question that HAS been settled as an issue of constitutional law. and those principles are that (a) the U.S. Supreme Court will not substitute its judgment on economic issues unless it can be shown that the public body acted in an arbitrary and capricious manner; and (b) even if this isn't seen as an economic issue but instead one of a state's police powers, again the Supreme Court won't disturb the decision absent a showing of arbitrary or capricious behavior or U.S. congressional preemption of such powers. you may not like that very much (and yer entitled to that view, which is shared by some constitutional scholars), but as it stands it IS the law right now. in fact, if you read the opinion and especially kennedy's concurrence, they seem to be acknowledging that such decisionmaking can be abused and that they will decide upon such questions if they come up in the future.

To the second part of this clip, your assertion is what the Court was pondering. And the bedrock principle, as parroted by Thomas, is what's in the Fifth Amendment. Is there room for interpretation of the Fifth, including noting precedence?

but the thing here is, don, that there ISN'T an agreement as to what that bedrock principle in the Fifth Amendment precisely is. saying that the Takings Clause should be interpreted literally or according to its "original meaning" are respectable arguments (as opposed to saying, for example, that teaching intelligent decision is permissible under the 1st amendment). but such a reading is at odds w/ legal precedent, both generally and in this case.

As you note, Kennedy's concurrence is revealing because it elaborates on the skepticism that I (and he, apparently) have on this decision--maybe not by outright ideology but certainly on grounds of Public Use. Seems like he'd rather wait for more specific circumstances than appear to challenge legal precedent--a fine position that but a position that the minority distinctly disagrees with and notes that it might require some sort of unimagined test to apply. You noted a bedrock principle and it's interesting what the minority said: Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void."

O'Connor's dissent is particularly revealing. She takes a broader outlook and attempts to predict the impact of the outcome in her alligator tears. She more or less asserts that even if the Court is following precedence in certain elements, that it's setting up a broader definition of the Takings Clause, that it's expanding the State's police powers. More importantly, she directly addresses Gabbneb's point by referencing Cincinnatti vs. Vester:
("An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U. S. 439, 446 (1930) ("It is well established that ... the question [of] what is a public use is a judicial one").

Indeed, her final paragraph is particularly critical of the legislative process in this context: If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court's rule or in Justice Kennedy's gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one.

Thomas' dissent magnifies this point by discussing the slide away from a natural reading of the Fifth Amendment, the apparently slipperly slope that now leaves us at a junction where it's no longer "Public Use" but now defined by the Court as "Public Purpose." There's a large caveat to legislative deferrence, which Thomas elaborates on at B, which is, of course, why the Court intervenes from time to time--if this decision would have gone the other way, it certainly would have established different precedent but it hardly would have reversed the flow of the Taking Clause.

I'll note first that Don didn't explicitly say these things. But he didn't deny them either. And he did talk about a "natural" reading of the text. To respond - these arguments are not respectable in my book. "literal meaning" is a useless buzzword, and original meaning isn't much better. i would think it quite easy to argue that the literal or natural meaning of the takings clause holds that the court is not empowered to evaluate at all whether a use ordered by a public body is public, only whether the compensation is just. the only basis for even nominal judicial searching of the quality of the use to determine whether it is public in nature is in the non-originalist caselaw.

To the second part of this clip, your assertion is what the Court was pondering. ... As for your little lesson on the prevailing principle, it's specious given the circumstances.

I really have no idea what that means, if anything.

like he'd rather wait for more specific circumstances than appear to challenge legal precedent--a fine position that but a position that the minority distinctly disagrees with and notes that it might require some sort of unimagined test to apply

oh i see, the judiciary should get into the business of legislating, rather than deciding cases or controversies.

she directly addresses Gabbneb's point by referencing Cincinnatti vs. Vester

gabbneb's point is that the "external judicial check" O'Connor wants is found in the lower and highest courts of the State of Connecticut, to which the supreme court defers. your argument would mean that if the Supreme Court of Wyoming determined that a kicking someone out of their home to put an oil well in the ground was a non-public use, the Supreme Court of the United States should feel less restricted in allowing the taking nevertheless.

If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court's rule or in Justice Kennedy's gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one.

exactly right. that's the law. the only thing contrary to law are property transfers for a private purpose. i'm sorry that some people who grew up in Arizona think that the individual precedes the political entity and have a general dislike for the public sphere when it's not catching banditos.

I'll make it personal when the person I'm arguing with does not have expertise, and I do. Part of my being a jerk about it is argumentative advantage, but part of it is as much frustration (that everyone doesn't have a legal background) as anything else, and is not directed at you individually. In that respect it's sarcasm rather than condescension.

If you want a much better and longer version of my argument, you can find a link here to the amicus brief (PDF) filed on behalf of the American Planning Association.

1. It's in the interest of broad constitutional principle to disallow takings with a substantial possibility of redistributing property in favor of politically and economically influential parties. Now, is this a basis for applying heightened scrutiny? That would be a change, despite the fact that its neighbors in the Bill of Rights are deemed fundamental.
2. If the line for deference to local authority is to be based upon harm to the public, or instead upon assertions of future economic benefit, the factual basis of the former test is at least based on actual conditions, rather than economic projections (which frequently overstate the beneficial impact of projects for both innocent and dubious reasons).

I think her criticism that the majority fails to provide a test for where the line between public economic benefit and private benefit lies is BS. SCOTUS opinions kick the can down this road all the time. Here, majority simply pronounced that economic justifications are presumptively due deference.

I can understand if you live in a city that's prone to wanting to PAVE TEH HOMES for more IKEAs and Targets... but if you do, well, you're already semi-fucked anyway.

Otherwise, cities generally -- and I stress "generally" -- don't like to be known (i.e. can't afford to be known) for bulldozing bought houses over to make way for big outlet centers.. not really an attractive way to get people to move to, buy, and subsequently support your local economy.

Obviously, this has happened everywhere on occasion, even before the ruling, but people are reacting as if, now, every single residential neighborhood is going to become an outlet store city!

Between the pandemic scare/avian flu thing and the Long Emergency/future oil crisis, this thing is really just a persistent gnat in comparison. I'm not happy with the decision, but I can't get overwhelmed with anger over it either... especially in lieu of the far more imminent dangers of the former two.

(tho i do wish more surgeons posted)

(i mean generally not re this case)

later he becamse BARON WEM:
http://www.shropshiretourism.info/wem/map/images/wem_map.jpg

Thus my inclusion of the last name as a desperate attempt to filter.

yes!

"haha here i am just intubating the myocardial chamber* and wowzers this nu registrar is HOTTT"

*disclaimer: surgery lingo may be gibberish

GAGAGAGAGAHAHAHAHAH

For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.

# # #

Logan Darrow Clements
Freestar Media, LLC

Phone 310-593-4843
logan@freestarmedia.com
http://www.freestarmedia.com

read the article for extra-folksiness from people trying to run for governor of certain states.

nice.

http://www.nytimes.com/2009/11/13/nyregion/13pfizer.html?_r=3&hp=&adxnnl=1&adxnnlx=1258326014-vc3HOHF0PQRp4P3MCdCnUA