Transcript Document

PROPERTY A SLIDES
2-19-15
Thursday Feb 19 Music:
Michael Bublé, It’s Time (2005)
Lunch Today: Meet on Brix @ 11:55
Ayoub; Duke; Esmaili; Garcia; Kaleel
Pecorella; Rodriguez; Usman
Arches Reminder:
Critique of Rev. Prob. 2B Due Today @ 10am
Chapter 2: The Eminent Domain Power
& the Public Use Requirement
• Federal Constitutional Background
• State Public Use Standards
• Kelo & Beyond
• Kelo Majority & Kennedy Concurrence
• Facts of Kelo & Application of Earlier Tests
• Legal Analysis
• Application to Poletown
• Review Problem2D
• Kelo Dissents & Merrill
• Review Problem 2G
Facts of Kelo
Response to Run-Down Area/Econ. Difficulties in New London
• Project = Multi-Use Integrated Economic Development
1. Incorporates Office Space, Residences, Retail, Parking, Park,
Museum, Marina, Hotel/Conference Center
2. Next to Pfizer Site, but Pfizer not Part of Project (cf. Poletown)
Facts of Kelo
Response to Run-Down Area/Econ. Difficulties in New London
• Plaintiffs = Homeowners Whose Lots are not Blighted
1. Under plan, becoming retail, office or parking
2. Primary claim is that shouldn’t be able to transfer from 1 private party
to another if only purpose is to achieve economic development
BISCAYNE: DQ2.12
SUNRISE AT ADAMS KEY
DQ2.12(a) (Biscayne)
Legal Treatment of New London Project under Midkiff
• Purpose?
• Legitimate (Tie to HSWM)
• Project Rationally Related to Purpose?
DQ2.12(a) (Biscayne)
Legal Treatment of New London Project under Midkiff
• Purpose?
• Legitimate (Tie to HSWM)
• Project Rationally Related to Purpose?
Easy case under Midkiff (as are virtually all conceivable
economic development cases).
DQ2.12(b) (Biscayne)
Legal Treatment of New London Project under Poletown Tests
I’ll leave specifics for you, BUT
• New London probably a strong case to satisfy the tests b/c:
• Great size & scope of project
• Serious economic problems
• Comprehensive planning
• Kennedy references “Primary Beneficiary” test, so he
presumably thinks Kelo facts meet test
DQ2.12(c) (Biscayne)
Legal Treatment of New London Project under Hatchcock
1. Public Necessity: Project is important & only way to do
project is through Eminent Domain?
2. Accountability: Private entity remains responsible to public for its
use
3. Selection: Particular parcel(s) chosen based on facts of independent
public significance.
DQ2.12(c) (Biscayne)
Legal Treatment of New London Project under Hatchcock
1. Public Necessity: Project is important & only way to do
project is through Eminent Domain
• Importance of Project easy to defend
• Only Way to Do?
• Hard to assemble Project this big w/o EmDom unless it could work with
gaps.
• P172: Case says most of land already purchased directly so EmDom is
being used only for “unwilling owners.”
• BUT: Hatchcock itself addressed a 1300-acre site and court said didn’t
meet test. [Maybe OK to have gaps in industrial park?]
DQ2.12(c) (Biscayne)
Legal Treatment of New London Project under Hatchcock
1.
Public Necessity: Project is important & only way to do project is through
Eminent Domain
2. Accountability: Private entity remains responsible to public
for its use. No evidence of this in case; seems
unlikely.
3. Selection: Particular parcel(s) chosen based on facts
of independent public significance?
DQ2.12(c) (Biscayne)
Legal Treatment of New London Project under Hatchcock
1. Public Necessity: Project is important & only way to do project is
through Eminent Domain
2. Accountability: Private entity remains responsible to public for its
use.
3. Selection: Particular parcel(s) chosen based on facts of
independent public significance?
• OCR says not.
• A lot of land in Q wasn’t blighted and was chosen simply to put to
a better economic use.
Chapter 2: The Eminent Domain Power
& the Public Use Requirement
• Federal Constitutional Background
• State Public Use Standards
• Kelo & Beyond
• Kelo Majority & Kennedy Concurrence
• Facts of Kelo & Application of Earlier Tests
• Legal Analysis
• Application to Poletown
• Review Problem2D
• Kelo Dissents & Merrill
• Review Problem 2G
Federal “Public Use” Standards: Kelo
Recap: MIDKIFF  KELO
• Midkiff decided in 1984
• Rational Basis = Test for “Public Use” in 5th Amdt
• Means “Public Use” Provides Almost no Limit on Eminent Domain
• However, not very controversial at time
• Kelo decided in 2005:
• As noted, US more conservative & more concerned w Property Rts
• USSCt very different than in 1984
US SCt 1984  2005
& Introduction to US SCt Abbreviations
• Burger, CJ (1969) (BGR)* Rehnquist CJ (1986) (RNQ)*
• Rehnquist (1972) (RNQ)*  Scalia (1986) (SCA)*
• Powell (1972) (PWL)*  Kennedy (1988) (KND)*
• Brennan (1956) (BNN)*  Souter (1990) (SOU)*
• Marshall (1965) (MSH)  Thomas (1991) (THS)*
• White (1962) (WHT)  Ginsberg (1993) (GIN)
• Blackmun (1970) (BMN)*  Breyer (1994) (BRY)
• Stevens (1975) (STV)*
• O’Connor (1981) (OCR)*
* = Appointed by Republican President
Federal “Public Use” Standards: Kelo
Recap: MIDKIFF  KELO
• Kelo essentially brought by Conservative NGOs [NonGovernmental Organizations] Focused on Property Rights
• NGOs represented homeowners (who can’t otherwise afford to
take case to US SCt)
• Hoped that change in Justices & American politics would lead
USSCt to overrule or limit Midkiff
Federal “Public Use” Standards:
Kelo Majority Opinion
NARROW HOLDING
• Upholds Specific New London Development Plan
• Rejects Plaintiffs’ Claim that There Should Be Blanket
Exception to Public Use Deference when EmDom Used for
Economic Development
• Rest is Dicta (Dicta, Schmicta)
Federal “Public Use” Standards:
Kelo Majority Opinion
Largely Reiterates Points from Earlier Cases
• Reaffirms Berman and Midkiff
• “Public Use” just means Public Purpose (P175)
• Assess plan as a whole; don’t look at individual parcels
• Ending up in private hands not bar to “Public Use”
• Private Ownership may be good way to accomplish public goals (P178)
• Actual use by public (e.g., RR) constitutes Public Use, but not required
Federal “Public Use” Standards: Kelo Majority Opinion
DQ2.13 & Deference
Kelo majority gives legislatures “broad latitude in determining
what public needs justify the use of the takings power.”
• Arguments we’ve seen supporting deference include:
• Democratic Theory
• Institutional Competence (See OCR P181-82: courts ill-equipped to
evaluate efficiency of programs or necessity of using EmDom)
• Federalism/Local Control: States can choose to have stricter rules if
they want/need to better control their own municipalities (P178; see
also Federalism Discussion on P176-77)
Federal “Public Use” Standards: Kelo Majority Opinion
DQ2.13 & Deference
Kelo majority gives legislatures “broad latitude in determining
what public needs justify the use of the takings power.”
• Dangers/concerns re broad deference include:
• Corruption
• Power of $$$/Lobbyists/Special Interests/Politically Connected
• Arguably Renders Public Use Clause Meaningless
• OCR Dissent: “Hortatory Fluff”; Redundant w Due Process Clause
• THS Dissent: “Nullity”
Federal “Public Use” Standards: Kelo
DQ2.14: Limits on Deference
Kelo majority gives legislatures “broad latitude in determining
what public needs justify the use of the takings power.”
• Today: I’ll go through limits suggested by Majority and by Justice
Kennedy, then show how they might apply to facts of Poletown.
• Tomorrow: Analysis for Rev. Prob. 2D (BISCAYNE):
• Identify Facts that Majority or Kennedy Might Say Suggest Rational Basis
Inappropriate
• Discuss Whether, Overall, Enough Reasons for Concern to Forego
Deference/Rational Basis
Federal “Public Use” Standards: Kelo Majority Opinion
DQ2.14: Limits on Deference
• If sole purpose is private benefit, not OK (P174)
• BUT OCR: Complicated determination; hard to tell (P182)
• Transfer from one citizen to another of one parcel b/c latter will
put to more productive use: suspicious if outside of integrated
development plan (Middle para. P178)
• List of Helpful Facts (P177) (maybe problematic if not there?):
• State Statute authorizing Local Gov’ts to Use EmDom for Economic
Development
• Comprehensive Plan
• Thorough Deliberation
Federal “Public Use” Standards: Kelo Majority Opinion
DQ2.14: Limits on Deference
QUESTIONS ON
MAJORITY OPINION?
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference
Overview of Concurrence
• KND seems to suggest more serious examination than ordinary
deference: “meaningful rational basis review.” (P179)
• Long discussion on P179-80 of possible considerations.
• BUT refuses to articulate a specific set of rules or procedures,
and OCR chides him for lack of guidance for future cases (P182).
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference (Biscayne)
Why is Kennedy Concurrence
Especially Important?
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference
KND’s Articulated Concerns/Limits
(1)No deference if clear showing that EmDom intended to favor a
particular private party w only incidental or pretextual public
benefit. (P179)
• Really arguing purpose is illegitimate b/c benefit to public is either:
• Incidental = Trivial OR
• Pretextual = False or Implausible
• Like primary beneficiary test looking at both effects and purpose
• OCR argues that this test is not helpful because public and private
benefits so intertwined in economic development cases (P183)
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference
KND’s Articulated Concerns/Limits
(2) If plausible accusation of impermissible favoritism:
• Close review of record required
• Although presumption that govt acted reasonably remains
• Triggers O’Connor’s “stupid staffer” comment; she means savvy
officials can manage/manipulate record to hide problems.
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference
KND’s Articulated Concerns/Limits
• (3) Might be private transfers where risk of favoritism so high,
need presumption of invalidity
• As opposed to (2), where he says even plausible accusation of
favoritism doesn’t create this presumption.
• No specific examples given!!
• He follows this statement with list of facts on P180 that are protections
ag. “favoritism”; if some or all of these are missing, could argue
“presumption of invalidity” should apply.
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference
KND’s Articulated Concerns/Limits
• (4) Facts constituting protections against favoritism (P180)
a. Comprehensive plan
b. Serious city-wide economic crisis
c. Real economic benefit
d. Identity of beneficiaries mostly unknown (like Midkiff)
e. Elaborate procedures to produce reviewable record
Federal “Public Use” Standards: Kennedy Concurrence
DQ2.14: Limits on Deference
KND’s Articulated Concerns/Limits
• No deference if clear showing that ED intended to benefit particular private
party w only incidental or pretextual public benefit.
• Close review of record if plausible assertion of favoritism
• Private transfers where risk of favoritism so high, presume invalidity
• Facts from Kelo constituting protections
a. Comprehensive plan
b. Serious city-wide economic crisis
c. Real economic benefit
d. Identity of beneficiaries mostly unknown (like Midkiff)
e. Elaborate procedures to produce reviewable record
Qs on Concurrence?
Chapter 2: The Eminent Domain Power
& the Public Use Requirement
• Federal Constitutional Background
• State Public Use Standards
• Kelo & Beyond
• Kelo Majority & Kennedy Concurrence
• Facts of Kelo & Application of Earlier Tests
• Legal Analysis
• Application to Poletown (Setting Up Rev Prob 2D for Tomorrow)
• Review Problem2D
• Kelo Dissents & Merrill
• Review Problem 2G
Federal “Public Use” Standards:
Limits on Deference Applied to Facts of Poletown
Majority’s Articulated Concerns/Limits
• If sole purpose is private benefit, not OK: P
• Transfer from one citizen to another of one parcel b/c latter will
put to more productive use: suspicious if outside of integrated
development plan: P
• List of Helpful Facts (maybe problematic if not there):
• State Statute authorizing EmDom for econ. development: P
• Comprehensive Plan & Thorough Deliberation: P
Federal “Public Use” Standards:
Limits on Deference Applied to Facts of Poletown
KND’s Articulated Concerns/Limits
• No deference if clear showing that ED intended to benefit
particular private party w only incidental or pretextual public
benefit. P
• Close review of record if plausible assertion of favoritism P
• Risk of favoritism so high, presume invalidity: P???
Federal “Public Use” Standards:
Limits on Deference Applied to Facts of Poletown
KND’s Articulated Concerns/Limits
• Facts from Kelo constituting protections (P180)
a. Comprehensive plan: Not P
b. Serious city-wide economic crisis: P
c. Real economic benefit: P
d. Identity of beneficiaries mostly unknown (like Midkiff): Not P
e. Elaborate procedures to produce reviewable record: Unclear
Federal “Public Use” Standards:
Limits on Deference Applied to Facts of Poletownm
Hard Q re Poletown:
Is acceding to GM’s specific demands
“favoritism” or sensible way to achieve big
economic benefit?
Chapter 3 Materials Posted on Course Page
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Supplemental Material (Whole Chapter)
Updated Syllabus
Updated Assignment Sheet
Updated List of Available Sample Exam
Qs for Me to Review
• I’ll Lecture Through Chapter Intro Tomorrow; You Can
Skim Assigned Readings for Now
Chapter 2: The Eminent Domain Power
& the Public Use Requirement
• Federal Constitutional Background
• State Public Use Standards
• Poletown
• Hatchcock
• Review Problems 2B & 2C
• Kelo & Beyond
Review Problem 2C
Redwood (Landowners)
v. Arches (City)
• VH is a run-down neighborhood in city of Kirkland.
• Almost all the buildings in VH contain functioning businesses and residences
• BUT highest rate of prostitution and drug-related crime in the city.
• City would like to open a drug rehab center in VH, but cannot afford to do so.
• Between DF Sessions, David runs chain of pvt drug rehab centers.
• D tried unsuccessfully for several years to buy land in VH to open a center.
Review Problem 2C
Redwood (Landowners)
v. Arches (City)
• D proposed that city use EmDom to buy an appropriate lot in VH:
• Then resell lot to D (at fair market value)
• D would use lot to open one of his rehab centers.
• He suggested six possible sites (twelve square city blocks each).
• The city agreed to the proposal; chose the suggested site …
• furthest from any school
• and that had the highest crime rate.
Discuss Application of Hatchcock Criteria to These Facts
Critique of Review Problem 2C
(Shenandoah)
• See General Instructions @ Bottom of Assignment Sheet
• Paragraphs 1 & 2: Address Arguments Favoring the Landowners
(involving any of the three “Situations”)
• Paragraphs 3 & 4: Address Arguments Favoring the City (involving
any of the three “Situations”)
• Paragraph 5: Your Choice
• Written Submission Due by E-Mail Saturday 2/21 @ 10 a.m.
• E-Mail me if Qs
Review Problem 2C
Redwood (Landowners)
v. Arches (City)
Public Necessity:
Project is important &
only way to do project is through EmDom?
Review Problem 2C
Redwood (Landowners)
v. Arches (City)
Accountability:
Private entity remains responsible
to public for its use?
Review Problem 2C
Redwood (Landowners)
v. Arches (City)
Selection:
Particular parcel(s) chosen based on
facts of independent public significance?
Review Problem 2C
Redwood (Landowners)
v. Arches (City)
1. Public Necessity: Project is important & only way to do project is through
Eminent Domain?
2. Accountability: Private entity remains responsible to public for its use
3. Selection: Particular parcel(s) chosen based on facts of independent public
significance.
Strongest “Situation” for City?
[I’ll Leave for You]