Is That Legal?

These are scary times to be a federal judge.

Agreed. It must be scary indeed to know that the local town council, at the behest of some loony would-be developer, can take the nice house in which you've lived for many years, to be the centerpiece of some cockamamie development scheme, selecting you as a target based on your political views and justifying it with the sketchiest of "public purpose" justifications.

That is what you were referring to, right: the fear that judges will suffer now that their own property is subject to a Kelo-based taking?

/sarcasm

Eric, I think you seriously underestimate the degree to which many average people are outraged by the Kelo decision. Anybody who has lived in a town with a shady, mean or stupid town council, could give you chapter and verse about why those bodies are unsuitable for protecting fundamental rights, especially where cash money is involved. Their homes mean a lot to people, and the loss of protection posed by the Court's expansion of "public use" into the vague "public purpose," which expressly includes raising tax revenues appears to weigh heavily.

I agree that such an action would be mean-spirited and wrong, but I'm inclined to believe Barnett when he says that it was in jest. The "love" rhetoric is not out of place--I "loved" the idea too, purely on the level of wit and irony (and I'm not even firmly placed on one side or the other of the Kelo divide). In the "real world" so to speak, I think its an awful idea, but I can still appreciate it on a satirical level. I think that's where Barnett was coming from.

And why, pray tell, should our robed masters be shielded from the completely legal consequences of their decisions?

And Al, I think you seriously overestimate the degree to which the Kelo decision reflects a change in the law (see Midkiff, which has been on the books for a long time) and the degree to which a Supreme Court decision effectively affirming an already existing local government power will affect the actual small-town (and big city) political landscape.

Kenneth,
Well, one reason would be (as Randy Barnett pointed out in his clarification) that it's not "completely legal" to take somebody's property in order to retaliate against them for their performance of their job and their expression of their views.

I'm with you. This is completely over the line. (I've linked to you here: http://prawfsblawg.blogs.com/prawfsblawg/2005/06/is_it_unlawful_.html)

Eric,
You are suffering from ivory tower syndrome.
1. I agree that existing law was clearly pointing in the direction of this decision but it was not set in stone (and needed to be changed). As a person who just sold their home to a developer under threat of condemnation, I know that our threat to fight the taking in court was a big bargaining chip. After this ruling I wonder how credible a threat that would have seemed.
2. Remember that in the real world the court sets the boundary and people step over it until they are stopped. The Supreme Court has just assured everyone as to where the boundary is. Now developers will go a bit further and wait until some court says it's too much.
3. The language by which the court purports to limit the takings clause is functionally meaningless in the real world. It's pure semantics. Let's take Kennedy's statement in the concurrence that "[T]he determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." What does this practically mean? What takings does it really foreclose? Governments can't transfer property to "favored" private entities and the benefits to public can't be "pretextual or incidental." Well that's easy enough. We'll never call any developer "favored" and we'll make sure the public benefits seem huge. If we have ulterior motives we'll make sure to bury them deep, deep, down.
3. Let's take a practical look at trying to raise these arguments to defeat a taking. We'll take Souter's home as an example. You claim that it wouldn't be legal to retaliate against someone for doing their job by taking their property. But after the town council condemned the property it would be Souter's burden to try and prove in a court of law that the developers motive was malicious. The developer will, of course, argue that he really only has the town's interest at heart and he saw a unique opportunity in Souter's property to bring prosperity to the town. Now also remember that the first judges to hear this argument are often elected by the town that presumably stands to benefit or appointed by the same people who approved the condemnation. Also, remember the cost to Souter in having to go to Court in the first place.
Finally, the abuse of eminent domain is a growing phenomenon. The Court had a chance to put a lid on it and instead has simply encouraged it. The consequences willnot effect most but it will be dire for those few whose property happens to be in the right place at the wrong time.

[I]t's not "completely legal" to take somebody's property in order to retaliate against them for their performance of their job and their expression of their views

But that's not entirely what's being advocated here. Consider the following scenarios:

1. Angry over the Grokster decision, file-swapping fans hack into Justice O'Connor's home computer and erase her hard drive.
2. Angry over Raich, medical-marijuana supporters petition the USDA to fine Justice Scalia for his tomato garden, pointing out that his personal production and consumption of tomatoes affects the overall demand, and is therefore "interstate commerce."
3. Angry over Kelo, property-rights advocates petition the town of Weare to condemn Justice Souter's house for development of a hotel.
4. Angry over McCreary, an evangelical mechanic refuses to repair Justice Stevens' car.

In each case, critics of a decision are reacting by trying to punish the justices for their decision. The difference is the means used to do it, and I believe this to be an important difference. 1 and 2 are plainly wrong, but not because the intent is to punish a justice for a decision, but because they are either criminal or a selective enforcement of the law. I can't imagine there would be any objection to 4, even though it is an act punishing a justice for their vote.

But where does 3 fall? Unlike 2, it's not a selective application of the law. Sure it's ironic that it would have been one before Kelo, but it still isn't selective — in fact it would be more selective if the town were to refuse to give the hotel builders the same consideration it gave any other developer.

The tragedy is not that people want the Kelo majority to be subject to their own ruling. It's that the majority in Plessy and Dred Scott never stood any chance to suffer the effects they imposed on the public.

Getting all het up about this is a good way to look humorless, out-of-touch, and paranoid, as previous commenters have pointed out.

I would like for Eric to tell us why "retaliating" against a judge is such a bad idea -- provided the "retaliation" is completely legal.

Is "retaliating" against a judge for his decisions by exercising your First Amendment rights -- carrying signs and picketing speeches, or writing a letter to the editor -- OK? If so, why is a town exercising its (now lawful) Fifth Amendment right to condemn property to give it to a developer any different? Does Eric think there is some kind of logic to a rule that retaliating under the First Amendment is OK but under the Fifth Amendment is bad?

(And, BTW, I think Barnett's explanation that such a taking would violate Kelo is just wrong -- the taking of Souter's house for a proposed hotel would increase tax revenue AND retaliate. That seems to me to be just fine, as it would only be problematic if there isn't any nexus at all with a public benefit.)

Frankly, this is an extremely weak post by Eric -- no explanation whatsoever of why he thinks this is such a bad idea.

If Justice Souter had endorsed retaliatory takings, then this might be fair game.

They didn't. So it's not.

Surely it's the local officials whose intent matters; as long as they aren't the ones acting with retaliatory intent it doesn't matter why the developers would act that way.

Of course, when the local council says "um, no", there's not much room for judicial review...

Having read Barnett's post, I think the suggestion that it was serious is absurd and irresponsible. There is a lesson here, however, which is that in an environment of mutual distrust there is considerable merit to always playing it straight in order to avoid possible misunderstandings.

Eric, I think that the use of the term "expression of their views" is interesting. I thought that judges were supposed to interpret and apply the law. It seems that now they're exercising their right to free speech instead.

if kelo permits them to take the house, and a democratically elected local government votes for it, why should he complain? well, he should complain because it is very unfair. But not because it is unconstitutional (assuming again, that kelo can be used to take the house). souter was, we hope, trying to interpret what the constitution means, not impose his personal preferences.

taking the house would be a disturbing example of how kelo could be used by the "majority" to deprive individuals of their house without constitutional barriers. maybe that is good - states can decide to pass laws or state const. amendments to prevent this from happening.

Eric,

For the benefit of the (rapidly?) growing number of agitated folks out there like me, who don't pretend to be expert in constitutional law, would you consider the following scenario:

You become enchanted with the pastoral setting of my home, on 7 acres of hardwoods, 5 minutes from town. The house is a modest one and you envision building a magnificent place to live after tearing mine down. I decline your generous offer to buy. You convince the Planning Board that such a project would not only add greatly to the beauty of the county, but create a significant boost to the tax base and the revenues generated because you'd be paying three times the property taxes I am. Condemnation proceedings begin.

Is there language in Kelo which you will guarantee protects me (and all the rest of them out there)?

Barry

I'm interested in what makes you think the question of whether developer's proposal of a taking is "retaliatory" is at all relevant. From my reading of Kelo, the dispositive issue is whether the taking would serve a "public purpose." I imagine increasing tax revenue is pretty clearly a public purpose. Assuming Justice Souter's local planning authorities conclude that replacing his house with a hotel would increase revenue, who cares what the developer's motives are?

Pfizer's motives in the Kelo case were strictly private (making a buck). I don't see that their private motives are any purer than those of the proponent of the Lost Liberty Hotel.

It's a scary time to be a citizen if law professors are seriously suggesting that our judges shouldn't bear the consequences of their decisions along with everyone else.

Good question Barry,
I think what you describe is precisely what's been happening in many eminent domain cases. The only difference is that the new developer usually wants to put something grander on the property than his own private residence. Often its a stadium.

To quote from Kelo, "[I]t is equally clear that a State may transfer property from one private party to another if future 'use by the public'is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example." Kelo at 7. The decision goes on to note that to "operate like common carriers" means "making their services available to all comers." Id.

As I it, the plan under which the Souter home would be condemned would create (a) a hotel that would be open to the public and (b) a museum that would not only be open, but also FREE to the public.

Kelo does not even completely close the door on a taking being permissible even if the state's only object is to increase its tax base. See Kelo at 16 ("such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot").

It seems to me that the proposed Souter taking is in the "easy" class that Stevens disposes of right away--takings for the actual use of the public. There's no need to even consider the question of whether it would be a valid taking for "public purposes."

What I think alot of people are forgetting is Kelo does not foreclose State legislation banning eminent domain implementation for purely economic purposes. Further, many State constitutions offer more stringent property right protection than the Federal Constitution offers and (while I don't know if there are any State cases that have already done so) could possibly find such implementation to be unconstitutional. State legislatures and courts will be able to provide the property protection anti-Kelo advocates want if they put in the time and effort to make the changes through their State's political and judicial processes.

Kelo and the decades of precedents before it stand for nothing more than the proposition that land use and zoning have always been regarded as local issues and that the federal Constitution really has little to say on the subject of placing substantive limits on the eminent domain power.

People who would normally oppose all forms of "judicial activism" and substantive due process analysis are suddenly lining up to demand that the Supreme Court read into the Constitution some sort of judicially-created test for which takings are permissible.

The real answer, if your state actually permits eminent domain takings all the way to the outer boundaries set by the federal Constitution, is to petition your state legislature for stricter protections. This won't get you as much publicity as trying to condemn a judge's house, but it might prove more worthwhile in the end.

The US constitution contains any number of enumerated limits on state power; the uproar over this decision is clearly an indication that citizens do not trust their states to limit themselves and were hoping that the Constitution would, as it has in so many other cases, provide a guideline that isn't local and vulnerable to gaming.

This proposal is a brilliant move: it gives a Supreme Court Justice an opportunity to see how a decision works in practice, to demonstrate how he thinks the system is supposed to work (how often have you lawyers wanted to sit down with a decision's author and ask "what am I supposed to make of this?"?), to prove that the system affects high and low equally. Why should the law be an abstraction to the Supreme Court, when it's a reality for the rest of us?

And I would argue that targeting Souter's house is not retaliatory, but fundamental to the value of the project: if it were just any old Conneticutter, the hotel would be viewed as a crank curiousity of libertarian architecture (there's a category we don't hear much of) and wouldn't actually attract enough traffic to be a public value; But by using Souter's land, the hotel/museum becomes a monument to the law, a fantastic attraction.

For the record, I've always liked Souter: he generally makes more sense to me than most of the rest of the court put together. Nobody's perfect.

Last year, the Michican Supreme Court overruled itself in a condemnation case. It said its 1981 opinion that allowed Detroit to condemn a 500-acre area and sell it to GM was a mistake. Possibly that overruling has now been overruled, or maybe not, depending on Michigan law, which I'm not familiar with.

It's true, as Dan said, that states can enact stricter laws. I'm not sure that's how the wind is blowing, though. North Carolina readers take note: when we narrowly passed Amendment One ("self-financing bonds" a/k/a tax increment financing) last year, we also passed this

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SECTION 17. G.S. 160A-512(6) reads as rewritten:
“(6) Within its area of operation, [the governing body of any municipality has the power] to purchase, obtain options upon, acquire by gift, grant, bequest, devise, [by] eminent domain or otherwise, any real or personal property or any interest therein, together with any improvements thereon, necessary or incidental to a redevelopment project . . .

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"Necessary or incidental": I think that takes us to the limits of Kelo.

The Michigan court's holding in the 2004 case expresses a standard that I think the Supreme Court could have adopted.