Once More Into the Breach!

A tip of our hat to Reason.com for its summary of the issues presented in the petition for certiorari filed recently by one of the property owners in the Kaur case. That’s the infamous New York eminent domain case in which the city took land in the Manhattanville neighborhood in order to turn it over to Columbia University for an expansion of its campus. The problem was, however, that as explained in the devastating opinion of the New York Appellate Division, the studies and findings underlying the decision to take those properties were a tissue of conflict of interest and other improprieties that the court’s opinion laid bare. In spite of that, on further appeal the New York Court of Appeals (that state’s highest court) reversed, and permitted the condemnation to proceed.

For a summary of the arguments presented to the U.S. Supreme Court in the current petition for certiorari, go to http://reason.com/archives/2010/09/29/holding-justice-kennedy-to-his

Now it’s up to the U.S. Supreme Court to rein in this abuse of government power. On the one hand we hope the court will grant certiorari, and fix this mess. But then again, if it takes the case, it may only make things worse. Whether you ascribe the court’s performance in the eminent domain field to its [mis]interpretation of the Taking Clause of the Fifth Amendment, or to wrongheaded judicial policy, or to a misunderstanding of the realities of eminent domain, or to ideological factors, the court’s intellectual and moral performance has been abysmal both in terms of results and in terms of the reasoning used by the justices to reach those results. Nor has the court ever confronted the moral implications of its handiwork whereby faultless people are forcibly evicted from their homes and businesses, paid less than true market value of their land, paid nothing for their incidental losses, only to see their property turned over to some well-connected fat cat free of charge. Or, after wasting millions in public funds,  left to rot, without being put to any useful purpose.

For one thing, the court never explained why the right to take by eminent domain should receive such dramatically low standards of judicial review — why decisional law is replete with judicial statements to the effect that the exercise of the power of eminent domain is an overarching legislative prerogative of such weight that it leaves little or no room for meaningful judicial review, and that it is sufficient that the condemnor’s purpose be merely “rationally related to the conceivable.” Whatever that means, it is no standard at all. Under it, a taking for low cost housing for invisible Martians lliving among us, for example, would be OK because, such a thing is conceivable. After all, as science fiction writers have demonstrated time and again, anything, anything at all is conceivable. See 40 Loyola of L.A. Law Review at 1080-1081, footnote 68.

Interestingly, in the only case known to us in which the court actually examined the nature of judicial review in eminent domain cases, it reached the opposite conclusion, and explained that the power of eminent domain is no more endowed with “sovereign prerogative” than a host of other government powers; see Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 191-192 (1959). Go figure.

Nor has the Supreme Court ever explained why condemnees, alone among all litigants, are not entitled to due process of law — why their property may be seized without notice, hearing, or prior judicial order — why, as the U.S. Court of Appeals once put it, the government may simply seize their land and then say “Sue me!” See Stringer v. U.S., 471 F.2d 381, 384 (5th Cir. 1973)

Our own, hopefully overly pessimistic, assessment is that for all the brave talk about being the fount of “the supreme law of the land,” the Supreme Court has been so scalded by the public reaction to its inept handiwork in this field that it is reluctant to get into it again in the foreseeable future. Whatever the reason, we will have to stay tuned on that one and see how it all turns out.

We get much talk about judicial independence and judicial courage, but in eminent domain law, there is an evident shortage of these attributes when it comes to standing up to government abuses of faultless American property owners. Too bad.