Monthly Archives: January 2011

Be Still, My Heart! Governor Moonbeam Wants to Go After California Redevelopment Agencies.

The Sacramento Bee reports that newly elected Governor Jerry Brown, dubbed “Governor Moonbeam” by Chicago’s late, lamented columnist Mike Royko, has announced that as part of his drastic reform of California’s insane finances, he means to eliminate local redevelopment agencies. We can’t wait.

Here is the whole Sacramento Bee story:

Follow up. Here is an additional article on this subject from the Sacramento Bee.

Second Follow up: Predictably, the reaction of California redevelopment agencies to this bit of news has had all the subtlety of an empty trash can falling down a long flight of concrete stairs. They are committing as much money as they can, as quickly as they can to keep the state from getting its hands on it. But it appears that some of the redevelopment projects to which these funds are being committed by cities, are something less than paragons of planning. The L.A. Times characterizes this effort as “an attempted end-run around Brown’s proposal to scrap redevelopment and allow school districts, counties and the state to take the billions in property tax dollars the agencies now correct to improve blighted areas.”
Third Follow up. The saga continues. Today’s Los Angeles Times editorial takes up this topic, and its title says it all. Facing the Budget Music: Gov. Brown’s Proposal to Eliminate Redevelopment Agencies Is Controversial, But It’s Worth Considering, January 20, 2011. We will have a separate post on that one shortly. So stay tuned. For the tesxt of that editorial go to

Kelo Makes It Into Popular Culture. Sort Of.

 Many of our readers are acquainted with novels by W.E.B. Griffin, dealing with the military, spies and cops. For the benefit of readers who are not acquainted with Mr. Griffin’s work, those novels are just the thing to read on a cross-country flight – they keep you intrigued and entertained, secure in the knowledge that in the end the good guys will prevail. The latest is The Vigilantes, written by Mr. Griffin and William E. Butterworth, IV, Mr. Griffin’s son. This is another volume about the adventures of Philadelphia cops taking on the criminal element. But this one has a twist that’s of interest to us.

It involves inter alia a crooked politician named – are you ready? – Badde (what did you expect? a crooked politician named Goode?) Anyway, the book deals with a good-guy citizen driven beyond endurance by the brutal rape of his daughter, to become a vigilante who, disguised as a FedEx delivery type, travels around Philadelphia and disposes of a bunch of bad guys. But in a subplot, Badde – remember him? – is out to feather his own nest by using his influence to acquire and redevelop some old buildings, in order to make oodles of money. So what’s the problem?

The problem is that the authors, though apparently knowledgeable about Philadelphia police matters, are out of their depth when it comes to eminent domain. They confuse condemnation (in the sense of declaring decrepit structures unfit for human habitation) with condemnation (in the sense of using the power of eminent domain to transfer title from property owners to the condemnor).

In his favor,  Mr. Badde redeems himself somewhat when he refers to redevelopment documentation as “bullshit.” Who can gainsay that? But his trusty assistant, named Jan, offers an explanation of the process, that is unlikely to enlighten the reading lay public:

 Badde: “Jesus, I’m glad I hired you to deal with this bullshit. . . . Hope we don’t have any trouble with that last one. I mean, what’s the price of an abandoned building?”

Jan: “Condemned buildings,” she corrected him. “The Supreme Court fixed that for us with the Kelo v. City of New London decision. There won’t be any Fifth Amendment problem with the properties.”

Evidently, the fictional Jan was not aware of the fact that the homes taken in the Kelo case were not condemned (in the sense of being decrepit). On the contrary, much of the public outrage over that decision was inspired by the fact that the homes of Susette Kelo and her neighbors were not decrepit or substandard — they were a part of an unoffending lower middle-class neighborhood.

So maybe the authors of The Vigilantes are a bit confused on this point, but it seems significant to us that Kelo has now entered popular culture as the stuff of crime fiction. Up until now, we recall only two movies of that sort that dealt with eminent domain. One was Nadine, in which murderous bad guys do what they can to learn in advance where a new Texas freeway will go so they can buy up property in its path and get rich when the highway department buys it from them at a handsome profit (never mind that their purchase price would come into evidence, and they might have problems with the “project enhancement” rule). The other one was The Detective, the one with Frank Sinatra, not Alec Guinness, where the bad guys engage in back-and-forth sales of parcels targeted for city acquisition to each other, in order to kite their prices, so that the poor city of New York becomes just plumb unable to build hospitals. Of course, if we may borrow Mr. Badde’s expression, that’s bullshit. When crookedness of this type appears, as it does from time to time, it is usually not a case of fleecing the public officials, but the result of connivance between them and the dishonest land owners. Which is another story that we hope to get around to in this blog in the near future.

So while you can do worse entertainmentwise than to read The Vigilantes, it is unlikely to enhance your knowledge of eminent domain.

It’s January, So It Must be Time for the Chief Justice’s Annual Lament

With rhythmic regularity of the tides, the first of the year is followed by the Chief Justice’s “state of the judiciary” statement in which the Chief provides the country with a snapshot of the federal courts’ condition. That has come to mean that we are treated to a lament over the fact that the Senate is not confirming judicial nominees and the President is not nominating them fast enough to fill the vacancies on the federal courts (which at the moment stand at 96). It’s a bummer, all right. Over the years judicial case loads have gone up so that means that fewer judges must dispose of more cases.

So why aren’t those Senators speeding things along? Answer: because they are often bogged down in partisan fights over the ideological and political predispositions of the candidates for the bench. The upshot is that the judicial selection process has grown more idelogical and more confrontational. No, there weren’t any “good old days” when only wise men were selected to mount the woolsack. Judges have always been selected by the appointing authorities (Governors, Senators and Presidents) with an eye on their place in the ideological and political spectrum. That’s patronage, folks, and it has been with us from the beginning. But even if you acknowledge that, things have changed. The judicial nomination and confirmation process has grown more partisan and nastier, and its partisan nature more open.

It started in its modern form in the 1930s, when FDR threatened to pack the Supreme Court with additional judges who would give him the majority necessary for approval of New Deal legislation that up to then was not faring well in the Supreme Court on constitutional grounds. It never came to that, because in the infamous “switch in time that saved nine” the Supreme Courtt backed down and began approving the new New Deal laws. The rest, as they say, is history. But the harm had been done. A popular President of the United States had placed his seal of approval on the idea that what the country should resort to is a government of men, not of laws, as the politically incorrect terminology of the day put it.

In more modern times, the villain was Teddy Kennedy. His scurrilous attack on Judge Robert Bork who was up for confirmation as a U.S. Supreme Court Justice, set a new low in judicial politics. It made it bluntly clear that when it came to nominations to the U.S. Supreme Court, the brave, new Senate confirmation process would turn, not  on  the quality of the nominee, but on plain, openly voiced partisan politics.

What to do about all this? There is not a hell of a lot that can be done, the way things are now. One of Parkinson’s Laws has it that it’s easier to get into things than out of them. How true. As long as judges, whether on the Supreme Court or lower courts, act as setters of public policy, and as long as they choose on ideological grounds which constitutional provisions to enforce, which not to enforce, and which to make up as they go along, the people will have a legitimate claim to exercising increased control over who gets to rule them from the bench. After all, this country was founded on the premise that only that government is legitimate that governs with consent of the governed. That does not mean that judges should stand for election, or that their decisions should be subject to popular vote. Judicial independence is a good thing. But so is the other i-word: judicial impartiality. As long as judges enforce explicit provisions of the Constitution, they have a strong claim to protection from public ire, when those provisions turn out to be unpopular. But when they find stuff in the Constitution that no intelligent, English-speaking person could discern by reading its language, that’s another story. Ditto when they simply ignore constitutional provisions they don’t like. Like that “public use” clause in the Fifth Amendment, to use a familiar example in our field of law.

When courts claim that “public use” need not be public or use, but rather a benefit to private individuals whose prosperity will hopefully trickle down to the community, they are asking for trouble. Add to that the judge-made rule whereby a determination of “public use” is properly made, not by the courts interpreting the Constitution but by local, self-serving politicians whose decisions are said to be “well nigh conclusive,” and what you have on your hands is a disregard of the checks and balances doctrine, that facilitates excesses and eventually leads to public revulsion. The idea that any one-horse burg’s unelected redevelopment agency may just kick people out of their unoffending homes and businesses, so their properties can be turned over to  more favored, wealthier folks who are politically connected to city hall, is a prescription for  trouble. Under these circumstances, the people have every legitimate reason to scrutinize judicial candidates with an eye on their politics and ideology, not just their wisdom and legal learning. This isn’t good, folks. As Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit once put it in one of his opinions, “When we act as politicians, we will be treated like politicias.”