Is the Conservative vs. Liberal Litmus Paper Test Reliable in Predicting Which Judges Are Likely to Rule for or Against Property Oners in Eminent Domain Cases?

          Don’t miss Professor Ilya Somin’s discussion on the Volokh Conspiracy about the fallacy of categorizing court decisions involving eminent domain, as eithet pro-business or anti-business. Go to http://volokh.com/posts/1243651525.shtml to check it out.

         In a nutshell, what is going on is that left-liberal commentators and journalists are often besotted with the idea of the government taking property from its rightful owners for some public purpose (like roads, government buildings etc.) or for some “public-private” scam like redevelopment, that is labeled a “public use” even what it plainly and primarily benefits private business interests at public expense. But Professor Somin’s point brigs to mind something else that we have had occasion to think about during our decades in the condemnation law biz.

         It is also misleading to classify court decisions in these cases as being conservative vs. liberal. Why? Because conservative judges are often authority-oriented and tend to rule for the authority figure like the government, while liberal judges ostensibly favor the individual and under the right circumstances can summon the will to rule against the government which is what they tend to do in non-condemnation cases. Thus, in California, impeccably liberal judges, like the California Supreme Court Associate Justice Stanley Mosk were capable of producing opinions that favored the condemnees’ side both on the right to take and on issues of compensation.

         Thus, on the former point, Justice Mosk was the author of the forceful dissent in the leading excess condemnation case, People v. Superior Court (Rodoni) 68 Cal.2d 206 (1968) where he objected to the state’s taking of some 50 acres of land in excess to what it concededly required for a freeway. He was proven right when a few years later the California Little Hoover Commission investigated the state’s excess land acquisition program and found that, far from saving money as claimed by the state, it was a rathole for public funds. Proceeding under it, the state had acquired some $100 million worth of land which it could neither use nor sell.

          Justice Mosk also wrote eminent domain opinions favoring the condemnees’ side in Klopping v. City of Whittier, 6 Cal. 3d 39 (1972), (owners entitled to compensation for unreasonable precondemnation government conduct),  Jones v. People, 22 Cal.3d 144 (1979 (same), Southern California Edison v. Bourgerie, 9 Cal.3d 169 (1973) (overrulimng prior precedent and making covenants running with the land compensable in eminent domain), and Nestle v. Santa Monica, 10 Cal.3d 1385 (1973) (establishing government liability for airport-caused nuisance).

         On the other hand, Frank Richardson, the leading conservative Justice on the California Supreme Court, authored the two opinions that (at least in our view) were probably the most harmful, anti-property opinions rendered by that court: Agins v. City of Tiburon, 24 Cal.3d 266 (1979) (denying compensation for regulatory takings, but overruled in First English etc. Church v. County of Los Angeles, 482 U.S. 304 (1987)), and City of Oakland v. Oakland Raiders, 32 Cal.3d 60 (1982) (giving the “public use” clause an expansive interpretation and finding that a city’s taking of an NFL franchise to prevent the Raiders from moving out of Oakland was a “public use”).

          It seems to us that the Libertarian vs. Statist test is more useful in predicting which judges will vote which way, but it too is unreliable. Also, in more recent years, we have seen the emergence of a doctrinaire segment of the judiciary that irrespective of its right-left breakdown is under almost all circumstances  opposed to private property rights when they collide with government takings, particularly regulatory inverse condemnation takings. The best example of that phenomenon is the ferocious hostility to inverse takings claimants, that is displayed by many federal judges, even nominally condervative ones — Judge Richard Posner of the 7th Circuit being the proverbial “Exhibit A.”

         The good news is that a number of state courts have been so repelled by the unabashed extremism of the U.S. Supreme Court’s Kelo decision that they have reacted by curbing their states’ taking power — e.g, Illinois, Michigan, Ohio, Oklahoma, Pennsylvania, South Carolina, and sometimes New Jersey.

Follow up. Right after finishing the above post, we came across a fascinating item on Timothy Sandefur’s blog ( http://sandefur.typepad.com/freespace/ ) in which he points to the observation of  Sharon Love  that the vaunted personal liberalism  of the left is largely focused on sexual activities, which is why it is so appealing to the young whose hormonal output tends to overcome their intellectual product. Which, if true, would also tend to explain why people tend to grow more conservative as they age.

           

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