Monthly Archives: February 2012

Some Animals Are Less Equal than Others, and Condemnees Are Least Equal of All

It is hardly news that what passes for the law of eminent domain is replete with instances of gross unfairness directed at condemnees. Over the years, courts and legislatures have saddled us with “rules” that are no rules of law at all, but rather contrived, result-oriented assertions that work for the benefit of the condemnor at the expense of condemnees. We even wrote a law review article about it, although space limitations prevented us at the time from listing all instances of this sort of unblushing lack of judicial even-handedness. See Unequal Justice Under Law, etc., 40 Loyola L. Rev. 1065 (2007).

Now, while perusing the New York Times over our morning coffee, we came across a doozy. Possibly, you may find this one hard to believe, but it’s true just the same (the NY Times wouldn’t lie, would it?). It illustrates, possibly better than anything else we can think of at the moment, just how shabby is the treatment meted out by courts to condemnees as compared to others. Bear with us, dear reader — it takes a little explaining.

It seems that in far off Washington, D.C., the “occupy sometyhing-or-other” crowd has seized a park, and has refused to budge. Judge Says Notice Must Be Given for Park Eviction, N.Y. Times, February 2, 2012, at p. A15. Unsurprisingly, the local government wants them to remove themselves and their junk and give up possession of the “occupied” public space. But so far, that has been just talk. “Officials have not said when or if they will clear the park of protesters, though a lawyer for the federal government said in court Tuesday that she was unaware of any imminent plans to do so.”

If you are an untutored civilian who doesn’t understand bobkes about takings law, that may actually sound reasonable, although a moment’s reflection should make it clear that there is something odd — to put it mildly — about a notion that before conceded trespassers can be evicted from [public] property they do not and cannot own, and in which they have no conceivable interest, are entitled to full-bore due process notice before their trespass can be terminated and they can be removed. If nothing else, to get due process you first must have a constitutionally protected interest, like life, liberty of property that the government threatens to deprive you of without due process of law. Right? No, not right, at least not right according to a federal judge in D.C. who has ruled that the occupiers of a public park in Washington must be given proper notice before being evicted, even though what their rights of occupancy of the public park in question may be, is — shall we say? — obscure.

But that is not really our point. What we mean to do here is compare the treatment required by the constitution due processwise when possession of a good-guy citizen’s property is required by the gummint. Like, say, the gummint wants to drive a bulldozer through your granny’s home and put a swamp (pardon us, a “wetland”) in its place. We know that they usually acquire granny’s homestead by choosing to file an eminent domain action, giving her due process, paying her, and then taking her land. If they did all that this would be no problem, would it?

But what if the gummint ignores all that procedural folderol, kicks old granny physically out on her keester, and drives a bulldozer through her home with neither notice or hearing?  Would that be OK as far as the constitution is concerned? In some states, all you get is a letter from the government informing you that your property has already been taken, the title transferred to the governmemt, but leaving you responsible for mortgage payment on a property you no longer own. Our saying so may come as news to you, but not to us eminent-domain-hardened mavens. SCOTUS says that’s perfectly all right. If you don’t believe us, we won’t be offended. A half century in practicing eminent domain law teaches one to grow a tough skin and to believe anything — anything at all. So here is what SCOTUS had to say on the subject:

“Broadly speaking, the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings.” United State v. Dow, 357 U.S. 17 (1958), emphasis added.

Even where the government does file a condemnation action it can use the Declaration of Taking Act whereby with no notice to the property owner it files a declaration of taking in court, and thereby instantly transfers title to itself.

So it all boils down to this: if you’re a good-guy Joe Citizen, minding your business, paying your taxes, and dwelling in your own home in the sight of the Lord, like other good folks, your government can just boot you out with no notice, no hearing, no contemporaneous payment, and then bulldoze you home into kindling. Your remedy then is to hire a lawyer and an appraiser, and to sue Uncle Sam under the Tucker Act  in the U.S. Court of Federal Claims in far off Washington, in search of your constitutionally guaranteed “just compensation” — a process that will likely take several years during which you will have neither your home, nor its fair market value that is said to be the measure of just compensation.

But now it turns out that if you are a “protester” (read “trespasser”) occupying land that concededly isn’t yours, contaminanting it with your junk, and crapping it up (figuratively and litrerally) with your detritus, you can’t be kicked off without notice, in spite of your concession that you are wilfully trespassing on and occupying land that isn’t yours.

Is that all? Not on your life. The question that also arises here is how did those Washington protesters ever get into federal court? As we recall, under the Williamson County case, before you can sue in federal court for either the taking or deprivation of your property rights (which we assume the “protesters” are asserting, since to the best of our knowledge there is no right to trespass) there first has to be a final government decision to invade those rights, and (b) you first have to sue in state court (that would be the DC courts, in this case) before bringing your action in federal court. Neither of these conditions appears to be present here. So how did these folks get into the local federal court to begin with?

Presumably, minds greater than ours may be able to explain all this, and if so, we wish they would. For now, we are left with the wit and wisdom of Napoleon — no, not that Napoleon — we mean that big, fat pig in Orwell’s “Animal Farm,” who famously observed that all animals are equal, except that some are more equal than others.

Hey man, it’s the law, isn’t it?

 

Like We Always Said: Redevelopment is Not Municipal Revival — It’s All About Money

Word has just reached us about a symposium on redevelopment that will be put on by USC Law School on March 8, 2012. There will be lots of speakers on lots of topics. But what we find of particular interest is the squib  describing the session on Redevelopment Redux: Brave New World. Maybe we better quote from that one.

“The issue is always money, and how to get your project financed. Until recently, redevelopment agencies could be counted on to make those difficult projects feasible by providing subsidies and tools for site acquisition.”

“Site acquisition.” It has a ring to to it, doesn’t it. Those folks wouldn’t happen to mean “eminent domain,” would they, whereby you get to take the property you want and undercompensate its owners? Sounds that way to us.

So here you have it, folks. From the horse’s mouth. Never mind all that civic-minded stuff about city revitalization. “The issue is always about money.” And so it is, or more accurately in California, and so it was until the legislature abolished redevelopment.

New London Apologizes to Susette Kelo and Neighbors

We don’t know what good it does to anybody, but The Day, the local newspaper, reports that the City of New London, speaking through its Mayor, has apologized to the people whose homes it took in the infamous Kelo case. No word as to whether any of them accepted the apology.

For the Day story, click here.

Note the cute, bureaucratic newspeak touch. The New LondonDevelopment Corporation (NLDC) has changed its name to Renaissance City Development Association. No indication was given whether the new, new, improved NLDC/RCDA has foresworn the use of mass eminent domain for “economic redevelopment,” or whether all this is merely the same ol’, same ol’ PR BS.