Supreme Court ruled private property can be seized

[muon2]

This was a very important decision that I've been following intently. I spent much of the afternoon reading the opinion, concurrence, and dissents, as well as some insta-analysis. All-in-all very inetersting, and not what I expected.

Let me deal with the very interesting part first. The majority made this a states' rights issue. They basically held that states and more importantly local governments know better than the Federal Judiciary what is best for their constituents. And, rather than craft a specific interpretation for CT, they articulated a new right for local governments. As others have pointed out, many states grant this right to their local governments, but a broad approval from the Federal level was at best assumed.

Now the less expected. A deference to states' rights is not an unusal position from the Court, but here that position came from the liberal members. The dissent holds that there is some deference, but only in extreme cases, and property rights should take precedence over states' rights in the less extreme cases. An interesting set of battle lines.

What is the impact? In some areas of the country I don't expect that there is much at all. The opinion allowed states to hold more restrictive standards for exercising eminent domain for economic development. Many states already have some level of restrictions, so unless the state legislatures act to relax those restrictions, the Court's ruling doesn't apply.

For instance, in IL a municipality must follow a fairly restrictive set of guidelines to establish a district where this power can exercised. Many communities throughout this state have set up economic development districts according to state guideline over the last twenty years. There has been no successful challenge to the exercise of that power within those guidelines. Property owners have been successful in challenging similar eminent domain proceding for economic development that failed to meet the state standards.

Many people now seem tremendously alarmed at policies that have been in place for a long time. Perhaps this is why we ought to spend more time understanding local government. The media spends most of its time on national issues that have less impact on day-to-day life, and the public doesn't know the standard practices at the local level.

For the record, I think the broad grant of authority in the SCOTUS decision was unnecessary given the facts of the case. The original Superior Court decision seems to be most on target, granting some of the condemnations where the public interest was clear and denying it elsewhere where it was not.

[2952-0-0]

Welcome to Zimbabwe.

[Sam Spade]

This was a very important decision that I've been following intently. I spent much of the afternoon reading the opinion, concurrence, and dissents, as well as some insta-analysis. All-in-all very inetersting, and not what I expected.

Let me deal with the very interesting part first. The majority made this a states' rights issue. They basically held that states and more importantly local governments know better than the Federal Judiciary what is best for their constituents. And, rather than craft a specific interpretation for CT, they articulated a new right for local governments. As others have pointed out, many states grant this right to their local governments, but a broad approval from the Federal level was at best assumed.

Now the less expected. A deference to states' rights is not an unusal position from the Court, but here that position came from the liberal members. The dissent holds that there is some deference, but only in extreme cases, and property rights should take precedence over states' rights in the less extreme cases. An interesting set of battle lines.

What is the impact? In some areas of the country I don't expect that there is much at all. The opinion allowed states to hold more restrictive standards for exercising eminent domain for economic development. Many states already have some level of restrictions, so unless the state legislatures act to relax those restrictions, the Court's ruling doesn't apply.

For instance, in IL a municipality must follow a fairly restrictive set of guidelines to establish a district where this power can exercised. Many communities throughout this state have set up economic development districts according to state guideline over the last twenty years. There has been no successful challenge to the exercise of that power within those guidelines. Property owners have been successful in challenging similar eminent domain proceding for economic development that failed to meet the state standards.

Many people now seem tremendously alarmed at policies that have been in place for a long time. Perhaps this is why we ought to spend more time understanding local government. The media spends most of its time on national issues that have less impact on day-to-day life, and the public doesn't know the standard practices at the local level.

For the record, I think the broad grant of authority in the SCOTUS decision was unnecessary given the facts of the case. The original Superior Court decision seems to be most on target, granting some of the condemnations where the public interest was clear and denying it elsewhere where it was not.

Excellent analysis, muon2, especially in terms of the property rights vs. states rights battle that this decision was fought in.

[??????????]

This has nothing to do with States Rights in reality. Strike up another one for communism.

[True Federalist (진정한 연방 주의자)]

Fortunately, South Carolina has stricter requirement on eminent domain than Connecticut does.  What New London is doing would be impossible for Spartanburg to do.

[muon2]

This has nothing to do with States Rights in reality. Strike up another one for communism.

I have to respectfully disagree. A clear issue is who should define "blighted" or "economically distressed" areas - the federal courts or the state and local elected bodies? Since 1954 there has been an understanding that in part the local elected officials should make the determination, and with that determination comes the power of eminent domain. This ruling extends that power beyond what many would expect, but doesn't create it entirely, since the court has granted its existence has existed for 50 years.

[7,052,770]

well it's already happened here with the Nissan plant, so it's nothing new to me.

[Emsworth]

The standard implicitly imposed on the states by the Fourteenth Amendment is the same as that imposed on the federal government by the Fifth. (Assuming we follow precedent and leave aside, for now, the issue of whether incorporation is a valid doctrine in the first place.)

Thus, private property may only be taken for "public use." I interpret these words strictly: the property must be taken for actual use by the government, e.g. for a military base or for a highway. If the property is being used by a corporation rather than the government, then the use is not public but private. Private use may entail incidental benefits for the public, but that does not make it public use. There is no constitutional justification for siezing property in this case. Therefore, the majority is, in my opinion, gravely mistaken in making this ruling.

[Sam Spade]

The standard implicitly imposed on the states by the Fourteenth Amendment is the same as that imposed on the federal government by the Fifth. (Assuming we follow precedent and leave aside, for now, the issue of whether incorporation is a valid doctrine in the first place.)

Thus, private property may only be taken for "public use." I interpret these words strictly: the property must be taken for actual use by the government, e.g. for a military base or for a highway. If the property is being used by a corporation rather than the government, then the use is not public but private. Private use may entail incidental benefits for the public, but that does not make it public use. There is no constitutional justification for siezing property in this case. Therefore, the majority is, in my opinion, gravely mistaken in making this ruling.

Agreed. 

Besides, it is a false assumption to maintain that the seizing of property by the local government in this case will lead to a better "public purpose" in terms of economic development in the area.

There is nothing that says that this development will be successful and that the public will be better served by its development.  I can think of a number of cases where this public/private development has made things worse for the area.

[muon2]

The standard implicitly imposed on the states by the Fourteenth Amendment is the same as that imposed on the federal government by the Fifth. (Assuming we follow precedent and leave aside, for now, the issue of whether incorporation is a valid doctrine in the first place.)

Thus, private property may only be taken for "public use." I interpret these words strictly: the property must be taken for actual use by the government, e.g. for a military base or for a highway. If the property is being used by a corporation rather than the government, then the use is not public but private. Private use may entail incidental benefits for the public, but that does not make it public use. There is no constitutional justification for siezing property in this case. Therefore, the majority is, in my opinion, gravely mistaken in making this ruling.

Even 3 of the 4 dissenters would disagree with this view. Since the 14th amendment was applied to the states over 100 years ago, the SCOTUS has interpreted public use to include a broader mandate than actual use by the government. Before that most states had also made the same determination, particularly with private railroads, canals, and mills.

[Dave from Michigan]

so states can have stricter interpertations of  public use and taking property, like here in Michigan.  Last year the Michigan supreme court overturned the 1981 Poletown decision (which allowed the city of Detroit to condemn 1000 homes, and give the land to GM to build a plant.) last year in Wayne county vs. Hathcock (wayne county wanted to take land and and give it to a private company to build a bussiness and technology park)

In Wayne county vs. Hathcock, the court ruled transfer of condemned property to a private entity would be appropriate in only three limited circumstances:

Where public necessity of the extreme sort requires collective action, such as where long corridors of land must be obtained for the construction of a highway, railroad, canal or other instrumentality of interstate commerce;
 
Where the property remains subject to public oversight after transfer to a private entity, such as where lands are condemned for a petroleum pipeline that will be pledged for use in intrastate commerce and which will remain subject to the control and oversight of the state; and
 
Where the property is condemned because of facts of independent public significance, such as for the purpose of clearing slums or dilapidated and blighted housing.

so under these guidelines what happen in connecticut would be illegal here?

[Emsworth]

The standard implicitly imposed on the states by the Fourteenth Amendment is the same as that imposed on the federal government by the Fifth. (Assuming we follow precedent and leave aside, for now, the issue of whether incorporation is a valid doctrine in the first place.)

Thus, private property may only be taken for "public use." I interpret these words strictly: the property must be taken for actual use by the government, e.g. for a military base or for a highway. If the property is being used by a corporation rather than the government, then the use is not public but private. Private use may entail incidental benefits for the public, but that does not make it public use. There is no constitutional justification for siezing property in this case. Therefore, the majority is, in my opinion, gravely mistaken in making this ruling.

Even 3 of the 4 dissenters would disagree with this view.

I feel that such an interpretation would be much, much too broad and expansive. Moreover, it would plainly contradict the meaning of the actual language in the Constitution. If the property in question is being owned privately but operated for the public benefit, I could see that there is some reason behind the view that this is public use. In this case, however, the property is being operated for profit, and does not directly benefit the people as a railroad or canal might. The benefit is indirect: through tax revenues. There are, consequently, in my opinion, no grounds for the seizure of this property.

[muon2]

The standard implicitly imposed on the states by the Fourteenth Amendment is the same as that imposed on the federal government by the Fifth. (Assuming we follow precedent and leave aside, for now, the issue of whether incorporation is a valid doctrine in the first place.)

Thus, private property may only be taken for "public use." I interpret these words strictly: the property must be taken for actual use by the government, e.g. for a military base or for a highway. If the property is being used by a corporation rather than the government, then the use is not public but private. Private use may entail incidental benefits for the public, but that does not make it public use. There is no constitutional justification for siezing property in this case. Therefore, the majority is, in my opinion, gravely mistaken in making this ruling.

Even 3 of the 4 dissenters would disagree with this view.

I feel that such an interpretation would be much, much too broad and expansive. Moreover, it would plainly contradict the meaning of the actual language in the Constitution. If the property in question is being owned privately but operated for the public benefit, I could see that there is some reason behind the view that this is public use. In this case, however, the property is being operated for profit, and does not directly benefit the people as a railroad or canal might. The benefit is indirect: through tax revenues. There are, consequently, in my opinion, no grounds for the seizure of this property.

As I posted earlier, before 1954 this would have been the prevailing interpretation. In the Berman decision the court recognized that economic development of a blighted area was a "public use". O'Connor's dissent (signed by the other dissenters) affirms that principle, but believes that a higher standard for determining economic distress should prevail than the opinion of the court allows.

I agree with that view that there are clear economic redevelopment needs of the public that constitute the broader public use as defined over the last 100 years. I also agree with the prevailing dissent that there are limits to which a unit of government may claim economic distress. I disagree with the notion that we should return to a strict public use standard as existed in the 1700's (this is the essence of Thomas' lone dissent).

[J. J.]

I believe that there was also a precedent in the case of the Bishop Estate in HI.

[Dan]

Thomas Jefferson was a very out spoken critic of the Supreme Court and felt it was a danger to our country. It will be up to we, the people, to change it. Here are just a few of his quotes:

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[muon2]

I believe that there was also a precedent in the case of the Bishop Estate in HI.

There was a 1984 decision from a HI case. It also affirmed municipal eminent domain, and was relied upon in the New London descision. The decision dealt with the economic distress due to oligarchal control of the residential market. O'Connor's New London dissent also supported that decision because the circumstances were so extreme that eminent domain was the only remedy left.

[Fmr. Gov. NickG]

(I'm repeating my post from another thread, because this seems to be where the discussion is.)

There really doesn't seem to be a lot of support for this decision among people online, but I think it's basically a necessary one.

We need to remember that we give our government(s) quite a few powers that we hope they will use only in extreme circumstances.  Just because a government could conceivable abuse these powers doesn't mean a court should step in deciding individual cases.  There's nothing in the Constitution stopping the United States from declaring war on China...we put our trust the public to elect a rational president and Congress who won't do stupidly abuse their war powers, and who will be defeated for reelection if they screw up.  Similarly, we need to rely on the our elected officials, not the courts, to only use the power of eminent domain when necessary.

Haven't conservatives argued that courts should not substitute their judgment for the will of the American people?  If you don't think your local government officials should seize property to build a shopping mall, then vote for candidates who won't do this.  It seems to me that people who disagree with the court here should really take up their argument with their local politicians and the special interests who have so much sway over them.

[The Duke]

It should be pointed out exactly how ludicrous this decision is, past Supreme Court decisions being merely somewhat ludcirous.

The 5th Amendment reads as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The Constitution not only requires that property seizures be converted to public and not private use, it does not even consider the possibility of a government seizing private property for transfer to another private citizen as a serious enough prospect to explicitly reject it!  The Constitution leaves the distinct impression that the only time a rational government would even consider taking private property is for purely public use.

And no, Justice Stevens, a use that generates additional tax revenue is not "public".

To substantiate the idea that The Constitution prohibits the seizure of private property for the private use of another, Justice O'Connor quotes the opinion of Justice Samuel Chase in 1798:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it."

Chase's opinion is particularly relevant because Justice Steven's arrogantly asserts that "Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek."  Steven's can't say that precedent goes back any further than that, because if he tried to trace his logic and connect it to the text of the Fifth Amendment and the intent of the authors of that Amendment, he'd fail miserably as there is no reasonable connection.  He only credits himself 100 years of precedent because there is 120 years of precedent stretching back before that contradicts him!

It should also be noted, and Stevens admits to this, that the property being seized is NOT a blighted area.  He writes, "Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area."

Rules that subject blighted areas do NOT apply here, as no one claims that these are blighted areas.  The Majority decides to cover up this fact by repeating that New London has been designated a "Distressed Municipality".  But this is a very general designation, and does not mean that all land in New London is distressed.  They try to generate the impression that the Pfizer plant (Its not even a shopping mall tehy're building, its a goddam Pfizer plant!) will replace a blighted neighborhood, when the facts (as the Justices are forced to admit) are quite different.

[Filuwaúrdjan]

Correct me if I'm wrong (not been following this all that much) but does the ruling mean that it's legal for whatever layer of government to seize private property and develop it itself or that it's now legal for whatever layer of government to seize private property and hand it over to private developers?

[The Duke]

Correct me if I'm wrong (not been following this all that much) but does the ruling mean that it's legal for whatever layer of government to seize private property and develop it itself or that it's now legal for whatever layer of government to seize private property and hand it over to private developers?

Governmetn can now hand private property over to another private owner if it believes that the new owner can produce something that is, in the state's view, more beneficial to society.  In this case, private homeowners will lose their homes to make way for a pharmaceutical research facility owned by Pfizer.  Justice Stevens justifies this on the grounds that Pfizer will create jobs and produce more tax revenue than the current owners do.

[Filuwaúrdjan]

Governmetn can now hand private property over to another private owner if it believes that the new owner can produce something that is, in the state's view, more beneficial to society

No... I don't really like that. Well intentioned I'm sure, but misguided.

[Fmr. Gov. NickG]

Not permitting eminent domain creates all sorts of hold-out problems that impede progress.  If a government want to initiate a revitalization project in a blighted area of a city, they need to have the power to seize existing property at its correct value.  The current owners should be compensated for this value as well as all other associated expenses.  That is, they should be left no worse off than before the property was seized. 

If it were up to existing owners to sell their property at whatever price they could get from the city or the developers, this would give a huge advantage to whatever owners were the last to hold-out; they could extort an completely exorbitant price, and the city would have no choice but to pay it, because they've already purchased the surrounding property.  This in turn gives all the property owners a disintentive to ever sell, because they want to be the ones to hold out for an extortionary price.   

Urban renewal would be basically impossible with eminent domain.  Again, if you don't agree with a particular project, then vote against the officials who are advocating it.  But this is a question of political policy and not constitutionality.

[Emsworth]

Not permitting eminent domain creates all sorts of hold-out problems that impede progress.  If a government want to initiate a revitalization project in a blighted area of a city, they need to have the power to seize existing property at its correct value.  The current owners should be compensated for this value as well as all other associated expenses.  That is, they should be left no worse off than before the property was seized. 

If it were up to existing owners to sell their property at whatever price they could get from the city or the developers, this would give a huge advantage to whatever owners were the last to hold-out; they could extort an completely exorbitant price, and the city would have no choice but to pay it, because they've already purchased the surrounding property.  This in turn gives all the property owners a disintentive to ever sell, because they want to be the ones to hold out for an extortionary price.   

Urban renewal would be basically impossible with eminent domain.  Again, if you don't agree with a particular project, then vote against the officials who are advocating it.  But this is a question of political policy and not constitutionality.

The use of the property may be greatly beneficial to the public. The project may be an admirable effort to benefit society. But that does not make it constitutional. In this case, the property is being taken for private use, not public use. As long as this point is not addressed by the opposition, I will continue to hold that this ruling was a terrible one.

Arguments relating to how important urban renewal is, how necessary revitalization is, etc., are absolutely irrelevant.

[DanielX]

Outrageous. If the Government actually follows through with the full extent of this, then we are lost. I'm inclined to think we've got 5 justices that need impeaching.

Incidentally, one more reason why Thomas should be the new Chief Justice. Of late, he has become more then the Scalia-clone many leftists say he is.

[Fmr. Gov. NickG]

It is the job of the Supreme Court to interpret the constitution.   I don't see a definition of "public use" in the document itself, so however the Supreme Court interprets it is the definition.   So you can't say that what the Supreme Court has done it unconstitutional.  There's room for reasonable disagreement here about what the definition should be, but neither side is obviously wrong.  The Court could have decided either way, and ultimately, made the decision which is far more beneficial to the public.