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Friday, June 24, 2005
O'Connor's lost majority/Stevens's rational basis review
Kelo | Posted by Nicole Garnett at 10:54 AM
Interesting idea. I think that Orin may be onto something. I too thought when I read the opinion -- "wow, this view almost won." I am not sure that I agree with Eric that more work needed to be done in the opinion to make it a majority. First, O'Connor wrote Midkiff, so it might be the case that she wanted to distinguish it fairly quickly and move on. Second, O'Connor is not an originalist, so I doubt that she felt obligated to mull over the historical material to the extent that Eric describes. Lost majority or not, the lawyers at the Institute for Justice deserves credit for moving the Court from 0 votes (in Midkiff) to 4 (in Kelo). Their public use effort -- only a few years old -- is a case study in how to run a public interest campaign. I have hope that it will continue to bear fruit in the lower courts.
Whether the lower courts will take an interest in these cases depends in large part on the question raised by David -- what the standard of review really is. David is right that it can't be rational basis, which only requires some "conceivable" purpose. Eminent domain is used for specific purposes. So what is it? Pretext/capture? The, Poletown flunks -- as Justice Ryan observed in dissent, GM was calling the shots in that one. But, courts usually shy away from trying to figure out legislators' motives. The next round of cases will be interesting.
I must say that I always suspected that the difficulty of coming up with some standard other than total deference would give the Court pause. If the court will not require meaningful means-ends review -- which I favor, but this view didn't get one vote -- then we're left with Stevens's "usually ok" test or O'Connor's categorical test. But, there are difficulties with "owned or used by the public" as well. What about a mall? A minor league baseball stadium?
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Comments
First of all, I want to express my thanks to my former Law School property professor, Nicole Garnett, for referring me to this blog. Personally, I wonder if a possible standard for determining whether property transferred from one private party to another private property via eminent domain satisfies the “public use” clause where such property is thereafter subject to continuing oversight by a government entity. For example, there is no dispute that private property taken by a government for a road or school satisfies the “public use” clause not only because such property is literally open to the public but also remains under continuing oversight by a government entity such as a road commission or school board. Similarly, property obtained by railroad companies via eminent domain is subject to continuing oversight by railroad commissions. By contrast, property obtained by mall owners or baseball stadium owners, although used by the public, is not subject to continuing oversight by any government entity (to the best of my knowledge) and would flunk the foregoing test. Berman and Midkiff could be distinguished on the basis that such property takings were exercised pursuant to a legislature's police power of ensuring public health and morals: I do not believe the Court's majority based its opinion on economic development qualifying as a legislature's police power.
As I understand the facts cited in the Kelo decision, once the property in question was transferred from the New London Development Corporation (“NDLC”) to the developers, I do not believe the property used for the waterfront conference hotel, “80 new residences organized into an urban neighborhood,” or “90,000 square feet of research and development office space,” was ever intended to remain subject to continuing oversight by a government commission or agency. For the foregoing reason, I would not view the property at issue in Kelo as satisfying the “public use” clause even though it is somewhat open (though not entirely) to the public at large.
On a different note, I think the timing was more than coincidental that the factual record indicates that Pfizer announced in February 1998 that it would build a $300 million research facility on a site adjacent to Fort Trumbell only one month after the State authorized a $5.35 million bond issue to support the NLDC’s planning activities. What if Pfizer had announced prior to 1998 that it wanted to locate in New London but only if New London would “develop” the surrounding area to make it more attractive? I am admittedly suspicious by nature but I would not rule out the possibility that Pfizer learned from Poletown that it is best to remain behind the curtain (I am a Wizard of Oz fan) instead of taking such a public role as GM did in Poletown.
In addition, I am curious if anyone knows whether Pfizer obtained a tax break from New London? I would be very surprised if New London did not grant such a tax break to Pfizer given the desperation of the city council to attract new employers. (A local Township board I served on while in Law School granted personal property tax breaks willy nilly to existing employers based on the mere threat that such employer would move his or her business elsewhere). If that is the case, then I think it is very interesting that the lawyers for New London would essentially argue to the Supreme Court that increasing New London’s tax base serves a "public purpose" when their client is actually decreasing the tax base by giving a tax break to Pfizer. I realize that the Supreme Court purportedly does not like to second-guess legislatures but facts do matter.
(My apologies if my paragraph breaks did not materialize as intended).
Posted by: David S. Maquera at June 25, 2005 02:49 PM