An Afterthought on the New York Kaur Case


         Predictably, major newspapers have been heard from on this one, and commentators are all over the blogosphere offering their takes on this case, and on its juxtapostion with the Brooklyn Atlantic Yards case (which allows a controversial condemnation favoring a major private developer to proceed), thus demonstrating again — if further demonstration were needed — that New Yorkers are self-centered folks who evidently believe (or at least they act on the not-so-tacit premise) that what happens in New York is the alpha and omega of all that is really important. It isn’t, though with the concentration of news media in New York, it may seem so at times.

          Eminent domain cases of major doctrinal importance, involving the right to take, were decided in recent years by the courts of Illinois, Michigan, New Jersey, Ohio, Pennsylvania, South Carolina and Oklahoma. They were commented on extensively, but none of them elicited the kind of frenzy that is going on in the wake of the New York cases, and it seems to us that by disregarding them in its Atlantic Yard opinion, the New York Court of Appeals only demonstrated its intellectual parochialism. After all, there may be some doctrinal emulation-worthy wisdom offered by courts west of the Hudson.

          It now remains to be seen whether the New York Court of Appeals (that state’s highest court) will take the Kaur case. If it does, that may provide yet another opportunity for that court to redeem itself by retreating from its extremist position of rubber-stamping anything and everything that New York condemnors come up with. This is not hyperbole. How bad can it get? Pretty bad. Recall the infamous Rosenthal & Rosenthal case in which a federal court in New York ruled that even if, as alleged by the property owner, the redevelopment project was tainted by corruption taking the form of favoritism intended to confer a windfall on politically well-connected folks, whereby project boundaries were drawn so as to include a taking of the subject property for their benefit, that would not affect the “public use” nature of the taking and would not be a proper reason to interdict the taking.

          But in the Kaur case, the New York Appellate Division did examine the unseemly facts underlying the decision to condemn and found them to give rise to a miasma of favoritism, conflict of interest, procedural mistreatment of the condemnees, and deliberate blighting of the area. What now? Can New York’s highest court now ignore these revelations, and pretend that it’s business as usual? We hope not.

          Eminent domain right-to-take law contains much judicial language to the effect that the decision to take and for what public purpose, which land to take and how much of it to take, is a decision properly made by the condemnor, not the courts. But  usually that decisional law also contains language to the effect that there is an exception to this rule: courts will intervene and will interdict the taking in cases involving fraud, bad faith or abuse of discretion by the condemnor. Judging from Justice Catterson’s forceful opinion in Kaur, the Columbia University caper would seem to give rise to just such a situation.

          So what we have here is a question of whether the increasingly questionable deferential judicial view can be stretched so far as to approve such evident misconduct, and pretend that it has not occurred when it plainly has. Wait and see.

          One more thing. We can’t help getting a chuckle out of seeing the pontifications on this subject by folks who — if Lexis is to be believed — have never handled a reported eminent domain case, but who purport to speak with the voice of authority. Mind you, there is nothing wrong with “book learning.” It’s just that in this field (as in criminal law, for example) book learning unleavened by experience and by an understanding of the practices and realities of the field can be unhelpful. As the California Supreme Court once confessed, judicial policies followed in eminent domain cases are often concealed behind a veil of concept.