High court OKs personal property seizures

David M. Wagner daviwag at regent.edu
Thu Jun 23 10:10:33 PDT 2005


Remarkably, O'Connor today (in dissent) criticizes her own opinion for the
Court in Midkiff, arguing that it ought not to have accepted the Berman
equation of eminent domain with the police power.

Thomas's lone dissent, as ever, goes back to first principles and implicitly
calls for overruling Berman and Midkiff.  Perhaps more remarkably, the
O'Connor dissent, signed by all four dissenters, plays a strong natural law
card at the outset, quoting Chase's "I cannot call it a law" dictum from
Calder v. Bull.

Notice that Kennedy, in his separate concurrence, continues to polish his
new hobby horse, heightened rational basis review.


David M. Wagner
Regent University School of Law
Virginia Beach, VA
http://ninomania.blogspot.com



> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Strang, Lee
> Sent: Thursday, June 23, 2005 11:57 AM
> To: sghosh2 at buffalo.edu; Dr. J. Michael Bitzer
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: High court OKs personal property seizures
> 
> 
> That's right.  Michigan, in Wayne v. Hathcock, 684 N.W.2d 765 
> (2004), ruled that a development project very similar to the 
> one at issue in Kelo  violated the Michigan Constitution's 
> public use clause.  The Michigan Supreme Court relied on the 
> original meaning of Michigan's takings clause  to rule that 
> public use includes three categories of public action: 
> "public necessity of the extreme sort otherwise 
> impracticable," such as highways; where the "the private 
> entity remains accountable to the public in its use of that 
> property"; and where there are "facts of independent public 
> significance," such as slum clearance. 
> 
> Lee Strang
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of 
> sghosh2 at buffalo.edu
> Sent: Thursday, June 23, 2005 11:45 AM
> To: Dr. J. Michael Bitzer
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: High court OKs personal property seizures
> 
> 
> My quick read is that the Court held that economic development goals 
> constitute a public use under the Takings Clause even if the state 
> takes from A to give to B.  Justice O'Connor would draw the line on 
> Midkiff (an opinion she authored) at property transfers from 
> one group 
> of citizens to another.
> 
> I guess state courts will see more activity on this issue.  Michigan 
> overruled Poletown a few years, I think, under the Michigan 
> constitution.  
> 
> Quoting "Dr. J. Michael Bitzer" <jmbitzer at catawba.edu>:
> 
> > The USSC just issued its ruling on the local govt eminent 
> domain case.  
> > So does this basically allow local govts cart blanche to declare 
> > anything for "public use"?
> >   
> > High court OKs personal property seizures
> > Majority: Local officials know how best to help cities 
> >   
> > WASHINGTON (AP) -- -- The Supreme Court on Thursday ruled 
> that local 
> > governments may seize people's homes and businesses -- even against 
> > their will -- for private economic development.
> >   
> > It was a decision fraught with huge implications for a country with 
> > many areas, particularly the rapidly growing urban and 
> suburban areas, 
> > facing countervailing pressures of development and property 
> ownership 
> > rights.
> >   
> > The 5-4 ruling represented a defeat for some Connecticut residents 
> > whose homes are slated for destruction to make room for an office 
> > complex. They argued that cities have no right to take their land 
> > except for projects with a clear public use, such as roads 
> or schools, 
> > or to revitalize blighted areas.
> >   
> > As a result, cities have wide power to bulldoze residences for 
> > projects such as shopping malls and hotel complexes to generate tax 
> > revenue.
> >   
> > Local officials, not federal judges, know best in deciding 
> whether a 
> > development project will benefit the community, justices said.
> >   
> > "The city has carefully formulated an economic development that it 
> > believes will provide appreciable benefits to the 
> community, including 
> > -- but by no means limited to -- new jobs and increased tax 
> revenue," 
> > Justice John Paul Stevens wrote for the majority.
> >   
> > He was joined by Justice Anthony Kennedy, David H. Souter, 
> Ruth Bader 
> > Ginsburg and Stephen G. Breyer.
> >   
> > At issue was the scope of the Fifth Amendment, which allows 
> > governments to take private property through eminent domain if the 
> > land is for "public use."
> >   
> > Susette Kelo and several other homeowners in a working-class 
> > neighborhood in New London, Connecticut, filed suit after city 
> > officials announced plans to raze their homes for a 
> riverfront hotel, 
> > health club and offices.
> >   
> > New London officials countered that the private development plans 
> > served a public purpose of boosting economic growth that outweighed 
> > the homeowners' property rights, even if the area wasn't blighted.
> >   
> > Justice Sandra Day O'Connor, who has been a key swing vote on many 
> > cases before the court, issued a stinging dissent. She argued that 
> > cities should not have unlimited authority to uproot 
> families, even if 
> > they are provided compensation, simply to accommodate wealthy 
> > developers.
> >   
> > The lower courts had been divided on the issue, with many 
> allowing a 
> > taking only if it eliminates blight.
> >   
> > "Any property may now be taken for the benefit of another private 
> > party, but the fallout from this decision will not be random," 
> > O'Connor wrote. "The beneficiaries are likely to be those citizens 
> > with disproportionate influence and power in the political process, 
> > including large corporations and development firms."
> >   
> > She was joined in her opinion by Chief Justice William H. 
> Rehnquist, 
> > as well as Justices Antonin Scalia and Clarence Thomas.
> >   
> > Copyright 2005 The Associated Press.
> > 
> > ====================================
> > "The liberally educated person is one who is able to resist the easy
> > and preferred answers, not because he is obstinate but because he
> > knows others worthy of consideration." 
> > Allan Bloom, The Closing of the American Mind (1987) 
> >   
> > J. Michael Bitzer, Ph.D.
> > Assistant Professor of Political Science 
> > Catawba College 
> > 2300 W. Innes Street 
> > Salisbury, NC 28144 
> > Office Phone: 704.637.4117 
> > faculty.catawba.edu/jmbitzer/index.html 
> > 
> >   
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