This is one heck of a Supreme Court ruling!

DTechBA,

Well, no, again, not exactly. The power of eminent domain can be, and has been, conferred upon private corporations by state governments. Railroads, canal companies, water companies, power companies, and the like have long been able to condemn whatever private real estate the company deems necessary to carry out its corporate function (which admittedly is supposed to be public service and subject to public regulation).

The state's right of eminent domain is very, very broad, much broader than most people realize. This Supreme Court case (which I've finally glanced at; they pretty well followed the rationale I've described here) would hve been much more radical if it had gone the other way!

 

How is that not what I said...

The implication was that the government is the primary owner of property and that is not the case. I clarified that a government can usurp private ownership in the interest of a public good. Regardless of who is using eminent domain the reason has to be for a public purpose or in other words "for the public good". Whether or not it is being used to build a road or, as in this case, boost economic development, it has to be based on some public purpose.

Just because the purpose here benefitted a private entity does not preclude it from having a public good. For example, if a company must have a larger plant to continue operation and is unable to expand at its current location it has two options:

a. Move, taking those jobs and taxes with it. This will undoubtedly harm the community if it is the primary employer in the area.

b. Expand outwards via the cities condemning and purchasing neighboring property.

Clearly in the above the city can show it is in public interest to help out the company. However, no matter who does it, there still has to be an element of public good in the action or it doesn't fly. The trick is in defining what is in the public's interest....

 

I can understand the government having to exercise eminent domain for a highway or some other vitally important public function. But, a shopping mall?

Around here, developers have gone crazy buying single-family houses, bulldozing them, and wedging townhouse condos onto the lots. With this ruling, can it be a matter of time before houses are taken to build condos? After all, four condos generate more tax revenue than one house, on the same plot of land.

 

Some time back I started a thread to question which party or political philosophy best represents me. On this issue it would appear that I agree with the conservatives on the court. This sort of ruling is frustrating.

 

Bruce,

Well, yes and no.

You are right in thinking that your developers will win; after all, they are willing to put money into the project in the expectation of profit. But the governmental authority has determined that the community as a whole will also gain in the form of improved tax receipts and, I dunno, maybe removal of urban blight? This spares the government from having to spend tax money, so I can't quite see that the decision is exactly liberal vs. conservative.

I don't see much difference between saying that the Illinios Central Railroad can take your house to build a freight classification yard and saying that a commercial development of this sort can take your house for a parking lot.

The process is designed to be fair to the landowner; the property isn't merely assigned a value. Here in New Mexico, anyway, condemnation suits can be tried by a jury to determine value.

Mind you, I don't much like the idea of someone condemning MY house but really, there's nothing new about it all.

 

I think that this ruling by the Supremes is fair and necessary.

As some of you may know, I have relocated to Austin Texas. The city is growing immensley and at a mind blowing rate. Every day you turn around there is a new high way, office building, new housing communities (still cheap too!) and business are moving in every day from the northeast and Southern California. This is helping the economy greatly, and is turning the city into a bustling metropolis.

There is one area that the city wants however, known as East Austin. This area is known as the "poor" part of the city, and is often refeered to as a slum. The homes are most often poorly built, and over 100 years old. The city wants to tear down all of the houses and extend downtown. The people living there do want to leave however, even though in some cases, the city is offering them TWICE market value for them to leave (this would easily alow them to buy a new home that would be in many ways beautiful).

While my wife (an ULTRA-liberal) thinks this is cruel and unfair, I believe that it is necessary. It would be one thing if they were throwing these people out and not compensating them. However, they are offering them a way into a better life and a better way of living. There is plenty of new homes inthe area. They could all buy new homes, giving money to realtors andbuilder, then the city could clear out and rebuild East Austin, giving money to government workers and contractors, build new office buildings, giving money to the builders, and then when new businesses come into town, they would pay taxes to the city, and more jos would be available! Everybody wins, and the economy grows!

 

Ah, but how many of these poor people OWN their houses? Condemnation compensation doesn't extend to month-to-month renters! Does Austin's plan include replacement subsidized housing? (Knowing a little about Austin, I'd bet it does.)

 

Great thoughts/posts, everyone!

Here is hoping that all 50 US states act forthrightly to stonewall the emerging and possibly destructive tidal wave of federally-enabled eminent domain seizures to benefit the likes of Wal-Mart and Desperate Builders Co.

Thanks all.

Few to none, of course!

This is one aspect of the Supreme Court's "eminent domain" ruling that is most heinous and egregious to me and my sensibilities ........ the unregulated power of the powerful and landed classes to deny even the semblance of (land) power to the mostly powerless).

(Enough of me already, before I start pontificating and sounding like those that I now dread - self-righteous champagne glass-toting populists, godawful communists, no, anti-private property legislators, no, US Supreme Court pro-seize-the-land-for-developers justices, no ...... LOL).

The debate/discussion is raging on all over the net......

Example ......

"Here in Virginia, the response to the decision has been fast and furious: within a day and a half, several state legislators vowed to introduce legislation restricting the eminent domain powers of localities."

More ….

“........ start with the observation that "the Constitution does not require the state to provide 'just compensation' when one is victimized by a thief." For those of us who start where Justice Thomas starts, that's not the happiest analogy. Rather, when a private property owner suffers a theft, the law gives her the right to elect damages or an injunction for return of the property. That injunction protects a huge range of rights for the owner--the right to say no, the right to bargain, &c. Our beef is this: When Walmart convinces a city council to order eminent domain, the city extinguishes the injunction and all the secondary rights the injunction protects. They're part of constitutional "private property." (This is where Richard Epstein's argument in Takings starts.)”

Source: http://volokh.com/

"Saturday, June 25, 2005

"[Eugene Volokh, June 25, 2005 at 8:29pm] 0 Trackbacks /

"SCOTUSBLOG'S DISCUSSION OF THE EMINENT DOMAIN CASE
is just superb — and an excellent example of the value added by the Internet. Take several top scholars and legal thinkers on the subject; have them engage each other (and outside opinion) thoughtfully, in detail, and politely, reaching far deeper than the usual sloganeering yet remaining largely acceptable for educated laypeople; present it starting hours after the decision is handed down, for free, to all interested Internet-connected readers — show me a medium that can beat that.

Search for "eminent domain" posts at this interesting legal eagles discussion site.

Thanks.

 

What you're talking about is a standard eminent domain taking. That's not very controversial. What the Supreme Court was saying--and the court in Poletown that I referred to earlier--is that the city can take private property not for building a rec center or a public park or much-needed parking garage, but give it to another PRIVATE party to use for purely private purposes, yet still call this land grab a constitutional "public purpose" taking.

Assume a priori that I live next door to you and we don't like each other much--I think your little brats broke my window with the baseball even though they won't confess; I think that mutt of yours barks too much. Under this ruling, it would be possible, at least in theory, for me, provided I had sufficient pull at city hall, to have the city condemn your property, raze your house to the ground, and give your land to me to do with as I will, so long as the city can draw some line between my intended use of your property and the public good. I guarantee, if I want you gone bad enough, I and my city council friend will I'll think up some sort of public good rationale for my private use of your land--and you'll be out on the streets, even if that grand three story victorian was in your family for generations.

 

little fauss:

So would you have the Supremes reverse their ruling in the Hawai'i case?

BTW, it IS a bit of a shock to hear you sounding so...liberal. And CHRISTIAN. My heavens, concern for the POOR? Where will you end up, I wonder?

 

Good thread, horrid ruling.

 

I know I'm shockingly ignorant here, but what's the Hawaii case? It rings a tinkling little bell in my mind, but I couldn't stand up in law school class and give a synopsis of it. Please inform me, I'm too lazy to google it.

And hey you bet, my friend, I'm quite concerned for the poor--I'm just not certain that the legacy of the Great Society is one of net benefit for them. That's a fair topic for debate, I'm sure you'll agree.

I know you're having a bit of fun--hard to miss with the wink--but allow me to use it as a springboard to get a few things off my chest. I'm almost glad I was raised in an irreligious, agnostic family. I pretty much came to Messiah a blank slate; I had no childhood memories of droning mainstream sermons, doddering, ineffective Sunday School teachers, insipid kool aid and crunchy onion/greenbean casserole in the church basement, prim matrons in the pew who looked down on "lesser" society, etc. I also missed out on a lot of the distortions that have developed in Christian practice--if not Christian doctrine, which I think largely on the mark.

I am, technically, a Christian, in that I believe Jeshua is Messiah and not only that, but one and the same with the L-rd G-d. However, I'm not mainstream Christian by practice, as I think they've gotten a good bit of it wrong for the last 18 or 19 centuries by jettisoning G-d's commandments to keep the festivals and misunderstanding or throwing out the Hebraic roots of their faith.

Christian Holidays in this culture are a mishmash of pagan ritual and distorted truth. Easter, for example, is not named after Messiah, but a pagan fertility goddess. Christmas, as celebrated, has more to do with Santa and Mithra and avarice than Messiah. And for that matter, Messiah almost certainly wasn't born in December, as according to the Scriptures, the sheep were in the fields. They don't go there in the dead of Winter--not now, not 2,010 or so years ago. And for Christians to have abandoned Pesach and replaced it with a thin little piece of cardboard-tasting wafer and a dash of cheap grape juice every few Sundays is absurd. Pesach is the most meaningful holiday, and it only took on greater, richer meaning with the coming of Messiah, as virtually every detail of the story and the Seder points in some way or another to Messiah. It's too bad what's happened, Christians forgetting that they are supposed to be spiritual children of Abraham, glossing it over in centuries of antisemitism. They don't know what they're missing.

Messiah was a Jew: He looked like a Jew, spoke like a Jewish rabbi, used Jewish imagery, used Jewish idioms, and was thorougly Jewish from head to foot. And I believe He still is and always will be. I worship a Jewish Messiah, not an emaciated pacifistic European with piercing blue eyes, flowing brown hair and neatly-trimmed beard.

 

Hawaii Housing Authority v. Midkiff

I just looked through my old class notes and found it.

Here is a "case brief" (awesome feature!) synopsis from Lexis....

Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)

PROCEDURAL POSTURE: The United States Court of Appeals for the Ninth Circuit held the Land Reform Act of 1967 (Act), Haw. Rev. Stat. § 516, unconstitutional in a suit brought by appellee landholders against appellant Hawaii Housing Authority (HHA). The act permitted the HHA to condemn residential tracts and transfer ownership of the condemned fees simple to existing lessees.

OVERVIEW: The HHA had enacted the Act after the Hawaiian legislature discovered that only a small number of landholders owned the state's land. The legislature concluded that concentrated land ownership was responsible for skewing the state's residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. The HHA held a public hearing concerning the acquisition of the landowner's property and made the statutory finding that the acquisition of the property effectuated a public purpose under the Act. The HHA then ordered the landowners to submit to compulsory arbitration, to which the landowners responded with the lawsuit. The Court found the Act constitutional by limiting the number of lots any one tenant could purchase and authorized the use public funds to ensure that the market dilution goals were achieved. The Court held that the HHA enacted the Act not to benefit a particular class of individuals but to attack certain perceived evils of concentrated property ownership in Hawaii, which was a legitimate public purpose, and that condemnation was not an irrational power to achieve that purpose.

OUTCOME: The Court reversed the judgment of the appeals court and remanded for further proceedings in conformity with the Court's opinion.

 

Re: Hawaii Housing Authority v. Midkiff

Yes, of course, how could I have forgotten that one? We discussed that in Constitutional Law II, I believe. To answer Nosborne, yes, of course, I do think it should be overturned. Would you expect any less of me? Now, I have a question: if collusion could've been shown between the land owners to inflate the prices, would there have been a way of attacking it from a different angle, say antitrust? Is there anything about the Sherman Act, Clayton Act, et. al. that would preclude its application to real property? Or am I missing something fundamental?

 

Thing is, Hawai'i was just about the ONLY state where serious land reform was socially essential. The Bishop Estate Trust and a handful of other ENORMOUS corporate landowners. Something really had to be done.

When I first read the case, though, I was very, very troubled by it. Still am, really.

 

You're not going George Will on me, are you?

I don't want to lose my most worthy liberal adversary. You make me think, sometimes even make me re-think my views, which is more than I can say for most liberals with whom I've sparred.

 

Thing is, little fauss, I'm not really a liberal or a conservative. I am a modernist. I am opposed to all faith, emotion, or superstition based decision making. (I am also opposed to more than the bare minimum government involvement.)

Naturally, that doesn't mean I don't do these things MYSELF; a purusal of my postings on our ongoing War Against the Muslim World will show that, I'm afraid.

But at least I'm willing to admit it!

 

So, you're a libertarian, eh? I have libertarian leanings, but could never see myself tipping all the way. I agree with most everything except your reference to faith as an invalid ground for decision-making. At least you said "faith...or superstition" rather than collapsing the two.

 

No, I acknowledge that there's a difference between faith and superstition but the two ARE often the same thing in those who are unwilling to subject the tenents of their faith to critical scrutiny. Claiming, for example, that the Earth is 6,000 years old because someone interprets the Bible as saying so (it doesn't) and deliberately ignoring all scientific evidence to the contrary as a required expression of faith is superstition.

Realizing that science and observation cannot yield answers and explanations for all of human experience and following a faith path to make sense of these things is by no means superstitious.

 

The Supremes are not supreme, after all.

Congress to the rescue!

The US House votes to soften the recent blow inflicted on the nation via the recent US Supreme Court's ruling that essentially gave (or tried to give) to economic behemoths like Rapacious Gargantuan Builders and the Waller-Marts of the world, free rein to your property and mine, .......... via an expanded interpretation of eminent domain largesse, whereby localities could seize your property, compensate you as they see fit, and hand over the lease to another private entity - all for the good of "economic development."

Yeah, right.

Source:

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/30/AR2005063001082.html

"House Votes To Undercut High Court On Property
"Federal Funds Tied To Eminent Domain

"By Mike Allen and Charles Babington
"Washington Post Staff Writers
"Friday, July 1, 2005; Page A01

"The House voted yesterday to use the spending power of Congress to undermine a Supreme Court ruling allowing local governments to force the sale of private property for economic development purposes. Key members of the House and Senate vowed to take even broader steps soon."

More .......

Who says that this is a do-nothing Congress?



Thanks.