Doubletalk From Justice Stevens About the Meaning of Kelo

If you haven’t done so already you might want to check out Professor Ilya Somin’s review of Justice Stevens’ latest autobiographical book in which he has some more to say about his intellectual misadventure in authoring the Kelo majority opinion. It’s available on the Reason magazine post. See https://reason.com/2019/06/08/justice-stevens-admits-error-in-the-kelo-case-but-also-doubles-down-on-the-bottom-line/

Stevens now concedes in his book that his Kelo opinion was based on a wrong interpretation of the takings clause, but hey man, he likes the Kelo result (more about that in a moment) so he is content to leave it standing. Stylistically, Somin’s review is fairly typical professortalk, but he gets his message across, and that message (conceded by Stevens) is that Kelo used the wrong legal doctrine to analyze the issue.

To a man of limited intellectual resources, like your faithful servant, all this high-falutin’ talk about relying on the Due Process doctrine as opposed to Takings law, and rearguing the selective incorporation doctrine, is pretty much beside the point. Why? Because what was at stake in Kelo (and its predecessor Berman v. Parker), was the meaning of the English language, not so much legal theory. Before you start theorizing you have to establish what you are talking about — i.e., what “public use” means in plain English.  And the Fifth Amendment phrase “public use” must mean something discernible to intelligent English-speaking people untutored in the eminent domain theorists’ double talk. Taking A’s property and handing it over to B for the latter’s private, profit-making, personal business use is not “public us” or “a public benefit” no matter how you torture the English language and no matter what legal theory you use. Such use may or may not (we’ll come back to the latter phrase presently) generate some public benefit by a collateral trickle down process, but that, like the building or enlargement of a single Target or Costco store is not public use.

Besides, many projects for which private property is taken turn out to be out-and-out failures — situations in which the proposed “public use” that the condemnor succeeds in selling to credulous judges never materializes, while the public gets fleeced. Though only one of many such failures, Kelo itself is a perfect example of the latter situation, as Somin notes in his review. The city and the court’s majority talked grandly about producing high-end shops, condos, a marina and a five-star hotel, that would be patronized by well-paid high-tech employees of nearby Pfizer pharmaceutical company, generating jobs and taxes. In reality, 19 years have elapsed but nothing has been built and no construction is in the offing. Nothing, nada, zip, bobkes. After displacing a group of faultless lower middle-class homeowners and bulldozing their unoffending homes to the ground, the subject land remains vacant until this day, generating no taxes and doing no one any good. Pfizer took full advantage of the tax benefits offered by the city, and when they ran out, sold its facility, and moved out of town, taking some 1400 jobs with it. And the cost to the public for this caper? About $100 million. Thanks a lot, Justice Stevens, for thus conferring this “public benefit” on the taxpayers of New London.

Neither Stevens nor Somin (though Somin concedes in passing that the Kelo project was a failure, of benefit only to local feral cats) say anything about all this, and they avoid any mention of the concept of accountability and civic responsibility for this fiasco. And you wonder why the American people grow ever angrier at those who govern them, increasingly providing the people with a choice between would-be Socialists and angry would-be swamp drainers.

This is important stuff. The courts never tire of evading responsibility for such capers by telling us that in deciding matters going to the right to take private property by eminent domain, they, though the guardians of the Constitution who have the last word on the meaning of the provisions in that document, are actually meek doormats who must yield to every whim of the legislatures, even though the decisions they are called upon to review are usually not really legislative but a mere say-so of unelected functionaries of a one-horse burg. Still, courts say that such decisions are “well-nigh conclusive” and as such get to trump would-be judicial interpretations  of the Constitution.

And as for bright, well informed law professors, like Somin, their efforts too often bring to mind Yale’s late, lamented Professor Fred Rodell’s acerbic observation:

“Suppose a law review writer wants to criticize a court decision. Does he say ‘Justice Fussbudget, in a long-winded and vacuous opinion, managed to twist his logic and mangle history so as to reach a result which is not only reactionary but ridiculous? He may think exactly that but he does not say it. He does not even say, ‘It was a thoroughly stupid decision.’ What he says is ‘It would seem that a contrary conclusion might perhaps have been better justified.” 48 Va. L. Rev. at 280.

Bottom line: as conceded by Stevens, the Kelo majority opinion is the most widely despised SCOTUS opinion in history. Rightly so. It does violence to the English language and to the most elemental notions of justice. Neither it nor the judges who apply it deserve the citizens’ respect. The Bill of Rights is supposed to protect Americans from government abuse, not facilitate it. And as for Justice Stevens, it’s time for him to go fishing, instead of carrying on in a vain effort to put some lipstick on his Kelo doctrinal pig.

The “Sprawl Warriors” Are at It Again

Don’t miss the message embedded in the Wall Street Journal editorial, Joe Biden’s Green Free Lunch, Wall St. Jour., 6/7/19, p. A14. Most of it is the usual political stuff, accurately described by its title. But buried in it is an interesting message of interest to us land-use mavens. The editorial describes Biden’s proposed “shopping list” of policy prescriptions that he wants the Democrats to adopt in the coming presidential election. What is of interest to us is the sixth (bulleted) item on Joe’s list, quoted as a part of Biden’s proposed platform. Ready? Here it goes:

He wants the Democrats to use “zoning as a tool to battle climate change” by “altering local regulations to eliminate sprawl and allow for denser, more affordable housing near public transit.”  In other words, Joe is plumping for the sort of new arrangement that was just rejected by the California legislature.

Will this effort succeed? We doubt it very much. If the California negative public (and eventually legislative) reaction to such an arrangement is any guide, this proposal won’t make it at the federal level either. If anything, issues of federalism stand in the way of such a proposal — the federal government is not authorized by the Constitution to regulate local land uses, and any attempt to convert Biden’s notion into reality is certain to arouse vigorous NIMBY reaction from established suburbanite home owners who like things the way they are, and are ready to go to the barricades to prevent any serious changes in the established suburban zoning practices that, among other things, have converted suburban home ownership into a bonanza for large numbers of existing homeowners who — at least in desirable coastal areas — have been enjoying exploding, six-figure home equities.

Still, these days, you can’t predict what the would-be “liberal” reformers are capable of coming up with. See for example a federal lawsuit now pending in the US Court of Appeals for the 9th Circuit, in which self-motivated “students” are suing Uncle Sam demanding a court judgment that will order Uncle to stop global warming. So far, they haven’t been laughed out of court. But the case is far from over, so who knows what their Lordships will come up with. So keep an eye on Biden’s proposal as the presidential campaign moves along. You may yet be called upon to discuss this caper seriously, or at least with what purports to be a straight face.

As you Enjoy Your Memorial Day Weekend, Remember Why We Are Celebrating It

Have a great three-day weekend. Enjoy all the picnics, barbecues, concerts, parades and sales. But as you do all that, or even if you just relax from your daily labors, spare some time for a moment’s reflection on why we are celebrating Memorial Day. Remember the sacrifices of all those young men, and increasingly women, who serve in the armed forces and whose bravery and sacrifices have made it possible for Americans to live in freedom and prosperity like no other society in the world. We owe them a debt of grtitude.

And it certainly won’t hurt if you take a moment to display an American flag as a symbol of all the great things this country has achieved and continues to stand for and which you get to enjoy.

Lowball Watch — Indiana

A Superior Court judge in Kokomo affirmed a jury verdict for $305,000 brought in in spite of the city’s claim that compensation should have been only $100,000. What divided the parties was the city’s contention that it was required to pay only for the part taken, whereas the owners also claimed compensation for severance damages caused by the taking to the remaining parcel located across the street from the part taken and housing the defendant firm’s sales showroom (a glass company).

The case was Kokomo v. Estate of Newton, Superior Court case No. 34d02-1612-PL-000937 (April 18, 2019).

See https://bloximages.chicago2.vip.townnews.com/kokomotribune.com/content/tncms/assets/v3/editorial/e/e7/ee7feac4-65eb-11e9-b845-9f11b1919010/5cbf4990d9936.pdf.pdf

California Choo-Choo — Is there Life After Death?

The federal government has announced — reasonably so in our opinion — that inasmuch as California is now not building a “bullet train” line running between Los Angeles and the San Francisco Bay area, the feds want to claw back the $929 million grant given to California to help finance such a railroad line. But now California has cancelled the “bullet train” and is only going to build a fraction of it in the Central Valley, between Bakersfield and Modesto, or some such boondocks. The feds feel taken advantage of and charge California with pulling a “bait and switch.” See Ralph Vartabedian, Bullet Train Agency Sues Feds Over Loss of Grant, LA Times, 5/22/19, at p. B1.

Anywhere else such chutzpa would be fodder for humorists. But hey, man. This is California. So the state is now suing the feds, claiming a legally enforceable  right to keep the federal money even though it means to spend it on a project not like the one for which that money was obtained from the feds. Only in California — which by now has filed umpteen lawsuits against the feds over all sorts of Trump’s policy decisions. Bottom line — at least as discerned by us — is that California Democrats (which means pretty damn near all folks in California’s state  government) hate Trump and this is their way of engaging in “resistance” to his policies. 

It remains to be seen whether the federal courts in California will play along with this game, or whether some federal judges with cojones will tell California that the federal courts are not a political arena, and to cut it out. We shall see.

Afterthought. A sharp-eyed reader reminds us that the irony in this California Choo-Choo caper has no bounds. He reminds us that the “bullet choo-choo” was a pet project of our former Governor (Jerry Brown) but our current Governor (Gavin Newsom) never liked it. But now he has wound up suing the feds to get funding for a railroad project that he didn’t really want built to begin with, and that he has no intention of building in its original, promised form. Ain’t politics just grand?

Lowball Watch — New York

The Rockland/Westchester Journal News of May 7, 2019, reports that in the taking of a privately owned child care center, the condemnor offered $90,960, but the trial court awarded $469,111 plus $233,391 in additional  fees. The Appellate Division affirmed.

See https://www.lohud.com/story/news/local/rockland/spring-valley/2019/05/07/spring-valley-day-care-payment/1130260001/

Lowball Watch — Kansas

Scripps Media reports on line that In Overland Park, Kansas, a local condemor offered the owners $9000 for a small taking to improve a road. When the owner rejected the offer, appraisers awarded $19,000. The bone of contention was a large sycamore tree on the taken land for which the condemnor offered nothing.

See Sarah Plake, Homeowner Wins Lawsuit, Doubles Award in Overland Park, Scripps Media, Apr. 24, 2019, https://www.kshb.com/news/local-news/homeowner-wins-lawsuit-doubles-award-in-overland-park-eminent-domain-case

Remember Kelo?

In 2005 — that’s some 14 years ago — the US Supreme Court held 5 to 4 that the city of New London, Connecticut, could use eminent domain to take Suzette Kelo’s home, and her entire unblighted neighborhood in order to raze it and turn it over to a private developer, to be replaced with privately-built, profit-making upscale condos, shops and a marina — not for anything that a reasonably intelligent, English-speaking person, would describe as a “public use” required by the Constitution. No, it was to benefit highly paid hi-tech employees of the nearby Pfizer pharmaceutical company, and by a trickle-down process to increase local taxes. The court’s majority bought into this nonsense by accepting the city’s phony assurances that its plan was sound and thoroughly vetted. But it wasn’t. It turned out not to be worth the paper it was written on.

After blowing some $100 million in public funds, nothing was built on the taken site. Nothing, as in bobkes, zip, nada. Pfizer, for whose benefit this was done waited until its tax benefit were used up, and then sold its nearby facility, and moved out of town, taking some 1400 jobs with it. You can find the pictures of the vacant site where the home of Kelo and her neighbors once stood, in the Volokh Conspiracy blog. Check it out.

Taking the Preakness Horse Race by Eminent Domain?

Here we go again, folks. The city of Baltimore, evidently unchastened by its unsuccessful attempt of a couple of decades ago to take the Colts NFL franchise, is trying to take the Preakness horse race (and the rights thereto) by eminent domain. If that strikes you as absurd, join the club. But absurd as it may sound, there is a precedent of sorts for this attempt to abuse the power of eminent domain. A few years back, the city of Oakland, California, tried to take the NFL franchise of the Oakland Raiders in order to prevent them from moving to Los Angeles. We wrote about it at the time. The California Supreme Court held that doing so met the “public use” constitutional limitation on the power of eminent contained in the Fifth Amendment. But eventually, California courts came to their senses and held that “public use” or not, the taking was impermissible because it would be a violation of, of all things, the Interstate Commerce Clause of the Constitution.

So, after providing lots of employment to a bunch of lawyers (including inter alia  your faithful servant) the Raiders moved to Los Angeles. But it didn’t work out — after a while the Raiders moved back to Oakland thus demonstrating that the market, not the folks in city hall, has the last word when it comes to running a successful NFL team. See Gideon Kanner, Revisiting Baltimore’s Failed Hail Mary, LA Daily Journal, April 2, 2009, at p. 6.

Baltimore also talked a good game about taking the Pimlico/Preakness horse race back in 2009. See Gideon Kanner, Maryland’s Bad Track Record, LA Daily Journal, April 17, 2009, at p, 6. But that effort went nowhere.

Now Baltimore is trying it again. You can get the detailed legal story on the Volokh Conspiracy of March 26th, 2019, wherein Professor Ilya Somin goes into the legalities (or illegalities of the matter, as the case may be) in some detail. We recommend that you read his piece if you have an interest in this fershluggeneh field of law.

What puzzles us is that in all these cases the avowed purpose of the attempted taking was to prevent the Raiders (and Colts) from moving out of town. But no one, to the best of our recollection, based the opposition to these attempted takings on the constitutional right to travel. Though the law is plain that Americans have every right to move across the fruited plain as they wish, no one, to the best of our recollection raised that legal point as a defense to the taking of the Raiders NFL franchise in order to keep them in Oakland, even though the city was candid about its desire to prevent the Raiders from moving to Los Angeles. Which is academic because the Raiders won on another theory. But who knows, maybe that defense will be raised now.

So stay tuned and see how it all turns out.

Honolulu Choo-Choo

No sooner did the California planned “bullet train” between the San Francisco bay area and points  south meet its demise at the hands of our new Governor, that word reaches us of an even greater planning, engineering, environmental and fiscal disaster. This one comes to us from   Hawaii. If you have any interest at all in the construction of public works and the acquisition of land for them, you must read the front-page story in today’s Wall Street Journal. See Dan Frosch and Paul Overberg, Rail Line Runs into Trouble in Paradise, March, 23-24, 2019, p. A1.

It’s a story that defies our efforts to sum it up concisely, but fortunately, the authors have done it for us, so we will have to be content with just quoting the pertinent part of the Wall Street Journal article, starting on the front page:

“Among the cascade of problems Honolulu pushed ahead before fully planning the project, and nearly 100 contracts had to be reworked, causing delays. The city began construction before fully checking Native Hawaiian burial grounds, and a judge halted  the project for over a year. Planners built too close to power lines, so Honolulu must shell out hundreds of million of dollars to move them.

“Dogged by such blunders, the project has seen its price tag soar to more than $9 billion from about $5 billion. The cost overruns are among the largest that transportation experts say they’ve ever seen. The cost has led to an extra excise tax on businesses, which can affect the price of goods and services, and it has hit tourists through an expanded hotel tax.

“The federal government has suspended payment of its share of the budget. And a recent state audit said officials misled the public about the train line’s shaky finances.

“A federal grand jury is now looking into the project. Last month, the municipal body overseeing it received three subpoenas from the U.S. Attorney for Hawaii, demanding files on consultant contracts, correspondence with agencies, relocation payments and other records. Federal officials haven’t disclosed the focus of the sweeping probe.

“Honolulu elevated rail line shows how badly municipalities can stumble in tackling giant infrastructure project, especially when they are powered by political urgency. . . .”  *  *  *  “Others wonder how well will a commuter line befits island life, since stations won’t be within easy walk of celebrated destinations  such bas Waikiki Beach and Diamond Head park.”


We could go on and on, but we won’t. Suffice it to note (in addition to the above missteps) that “steel cables inside precast concrete sections that form the trackbed will be monitored for20 years because some failed during construction.” (emphasis added). You don’t need an engineering degree to reflect of this one.

Once upon a time America was noted and admired for its engineering prowess in designing and building massive infrastructure projects. This was done with primitive 19th century technology and largely with the power of human muscles. But now, it would appear, we can’t even install steel-cable reinforced  concrete structures without them failing even as they are being installed.