Kennedy: A limit on Kelo’s reach
Justice Anthony M. Kennedy, in a separate opinion in the property rights case (Kelo v. New London, 04-108), appears to have put city governments on notice that they can go too far in using the added power that the Court seems to have given them to seize land for economic development.
The majority opinion by Justice John Paul Stevens sought to put off to the future any correction in the breadth of the new decision. Stevens dismissed “hypothetical cases” raised by property-owners, saying those “can be confronted if and when they arise.” Those concerns, Stevens added, “do not warrant the crafting of an artificial restriction on the concept of public use.”
Kennedy was not so reticent. Although he joined the Stevens opinion in full, it is clear from his concurring opinion that he sensed that the prospect of abuse was more evident than Stevens had acknowledged. Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.
According to Kennedy, if an economic development project favors a private developer, “with only incidental or pretextual public benefits,” that would not be tolerated even by applying the minimum standard of “rational basis review.”
His opinion elaborated: “There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.” He called it a “demanding level of scrutiny,” thus indicating that it was something like “rational basis-plus.”
He did not spell out such a heightened standard further, saying the Kelo decision “is not the occasion for conjecture as to what sort of cases might justify a more demanding standard.”
Kennedy was employing a technique raised to the level of a science by the late Justice Lewis F. Powell Jr. — join a majority opinion, but then add a concurrence that softened the edges somewhat. It is a technique that Justice Sandra Day O’Connor is also good at deploying now and then.
No doubt, land-use lawyers trying to protect existing property users will now spend considerable time and energy developing arguments to exploit the opening that Kennedy’s opinion appears to have created. At the same time, lawyers for city governments bent on calling in private developers no doubt will be giving their clients stern advice on how to proceed in order to avoid running afoul of Kennedy’s presumption of “an impermissible private purpose.”
Kelo v. City of New London, Decision!
After writing so much about Kelo v New London here and here and After writing so much about Kelo v New London here and here and
Comment by Mover Mike — June 23, 2005 @ 1:29 pm
After reading their decision, I’ve never been so embarassed and scared about being an american.
The US Supreme Court Justices should be ashamed. How dare they say its okay for the local govenments to seize land and property for the almight dollar. Most local governments are more corrupt than the federal.
Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said. Yet they seem to know better than the Doctor who prescribe medical marijuana for their patients.
Comment by Judy — June 23, 2005 @ 2:30 pm
Even with the softening the Kennedy concurrence places upon Kelo v. City of New London, future landowners will have to overcome high hurdles in challenging an eminent domain taking for the purpose of urban renewal where the land in question is not blighted.
Kennedy’s concurrence would put the following burden on a landowner: show that the eminent domain taking, in its entirety, “confer[s] benefits on particular, favored private entities, and with only incidental or pretextual public benefits.” What result if none of the beneficiaries are known when the taking occurs? If a municipality takes land “in the context of a comprehensive development plan meant to address a serious city-wide depression” and solicits tenants or potential purchasers after the taking occurs (it does not have a pre-taking tenant, as in Kelo), I cannot see how a landowner would meet this burden. As the Court recognized, some of the potential beneficiaries were not known. In my hypothetical, none of the beneficiaries are known. If a city proceeds in this fashion, I find no constitutional (federal) barrier to its exercise of the eminent domain power (assuming it pays just compensation). This result seems strange.
Comment by Domingos R. Santos Jr. — June 23, 2005 @ 3:30 pm
Not quite so fast Judy — Raich merely said that Congress, not the State Legislature, gets to decide whether marijuana is a controlled substance or has any medical value. The argument was Congress’ Commerce Clause powers shouldn’t reach to cover ‘purely intrastate’ activities involving that substance. Raich simply held what ought to be a relatively uncontroversial fact: Congress can legitimately make marijauna an ‘outlaw’ in commerce, & declare that for its nationwide ban in interstate marijuana commerce to be effective, the federal government needs to be empowered to seize & prosecute _any_body who possesses the perfectly fungible drug.
All that is long-windedly saying that Raich wasn’t the Justices declaring they knew better than local doctors — it was the Justices declaring _Congress_ knew better/is empowered to get the final say…
Comment by Reader — June 23, 2005 @ 3:34 pm
The Slaughter-Rights Cases
Here are my hasty stitches about the Supreme Court’s ruling in Here are my hasty stitches about the Supreme Court’s ruling in <…
Comment by A Stitch in Haste — June 23, 2005 @ 3:54 pm
This is a terrible decision and does real damage to private property rights in our Country.
We need a Supreme Court that understands the diffrence between socialism/communism and the republic set up by my Constitution. Clearly, this one does not, and is as anti-American as was the old USSR.
Comment by Fred — June 23, 2005 @ 3:54 pm
The guvmint’s coming for your stuff
Well, maybe not, but in a 5-4 decision today, the Supreme Court ruled that local governments can invoke eminent domain and seize land for ” rel=”nofollow”>Via Rand Simberg, here another angle on what the fallout from Kelo can reasonably be expected to be. In addition to my thinking about what it could do to the real estate market, there is the possibility of using this decision to take out previously …
Comment by Life and Deatherage — June 23, 2005 @ 4:33 pm
I’m outraged! Mr. Santos, your comment was well thought out, well written and what I fear the most. The range of abuse possible with this decision is one of the reasons the American Revolution was fought. Thomas Paine and George Washington would roll over if they read this dishonorable decision. Mr. Stevens, please have someone read a history book to you as well as our Constitution. You’ve missed the entire meaning.
Comment by Outraged — June 23, 2005 @ 4:40 pm
Municipalities may regret this decision because the reasoning could be used in inverse condemnation proceedings. Presently, the “test” for inverse condemnation is 1. a taking, 2. by a municipality and 3. for a public purpose. The change of definition for “public purpose” to include private development could be interpreted to mean that any private developer causing a taking while operating pursuant to a municipal permit would make the municipality liable under the principles of inverse condemnation, right?
Comment by Martin — June 23, 2005 @ 5:05 pm
Supreme Court to Property Owners: “Fuck You”
It’s gone too far - as you can read on SCOTUS blog, the recent 5-4 decision by the Supreme Court in “Kelo v. New London” holds that local government can seize private property for PRIVATE development, even against the owner’s will. Eminent Domain for …
Comment by absurder — June 23, 2005 @ 5:59 pm
Silver Linings and Eminent Domain
Apparently, only 4 1/2 of the Supreme Court Justices are smoking crack….
Comment by Little Miss Attila — June 23, 2005 @ 11:18 pm
Out here in “Catoland”
Here in “Catoland,” as the Nashville Scene’s Bruce Barry calls it (which I take as a compliment, but I’m not sure he meant it as one), I personally feel that private ownership of property is one of the cornerstones of…
Comment by NashvilleFiles Blog — June 24, 2005 @ 12:55 am
SCOTUS to Kelo: Drop Dead
It’s a sad day for America. The US Supreme Court severely restricted the property rights of ordinary citizens in its decision in the Kelo v. New London case:
Comment by Don't Let Me Stop You — June 24, 2005 @ 9:39 am
US Supreme Court hands down decision from surreal parallel universe
The US Supreme Court decision in Kelo v. New London is viewed as a set back for private property owners nationwide. The decision gives the green light for cities and states to make the claim that economic development to revitiliize…
Comment by No Land Grab — June 24, 2005 @ 9:41 am
I think the comments are really stretching here in the outrage being fomented. I think that when you look at this case and the specific situation in which it arose, you see the logic and fidelity to our history and laws.
A hypothetical was thrown out where there were no ascertained recipients post-takings and I think that is where we hit the distinguishable situations. The comprehgensive plan the city had was to anchor a revitalization of the entire town and there were significant commitments to this plan in many different forms. A City taking land and then putting it up for auction to private companies sounds exactly like what Kennedy was warning against and the evidence there that the taking has only incidental public benefit is apparent.
Also, this was predicated on a CT State law that authorized takings for economic development. States may have a stronger protection for property in the State constitutions, especially if they lack a law like CT where economic development is considered to be a valid reason for a takings. There is still a requirement that we see compensation, lets not jump overboard and where this may go.
Comment by Joel — June 24, 2005 @ 9:59 am
Confiscation, Inc…
The labyrinth of bureaucracy can conceal innumerable injustices. And there is very little recourse in the courts with the SCOTUS decision offering a shield of legal precedent. What is afterall the nature of “public use?” By the time you litigate t…
Comment by My Sandmen — June 24, 2005 @ 1:46 pm
I say impeach those judges who did this!
SIGN THIS PETITION:
http://www.petitiononline.com/lp001/petition.html
Comment by This is Outrageous! — June 25, 2005 @ 10:37 am
As much as I think this case was wrongly decided, I think impeachment may be a little too rash, but I do think back to Justice Scalia’s analogy from County of Riverside v. McLaughlin:
The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, “when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done.” I sometimes think that is an appropriate analog to this Court’s constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not).
Comment by Simon — June 26, 2005 @ 2:56 pm
“Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.”
I continue not to understand how this oft-floated idea can be correct. Kennedy joined Stevens’s opinion, so Stevens got five votes. Kennedy got one vote (his own). End of story. If Kennedy wanted his rationale to be controlling, he shouldn’t have joined Stevens; instead, he should have concurred only in the judgment. Powell, in Bakke (for example), controlled the Court’s judgment because he didn’t join anyone else’s opinion, and no one else got 5 votes. (Indeed, Stevens’s opinion in that case notes at n.1 that “It is hardly necessary to state that only a majority can speak for the Court or determine what is the ‘central meaning’ of any judgment of the Court.”) Undoubtedly, Kennedy’s opinion gives litigators rhetorical ammunition, but I do not see how it has any legal effect whatsoever. If I am wrong about this, I wish someone would explain why.
Comment by David — June 27, 2005 @ 8:59 am
Perfect: http://www.cafepress.com/dissentingop.25419797
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