Remember what happened on December 7th 1941, and take a moment to recall and appreciate the sacrifice of the Americans who gave their lives defending us.
In a 6 to 3 vote the Supreme Court struck down the federal ban on eviction moratoriums as being beyond the powers of the Center for Disease Control to enact, holding that such a moratorium, if permissible at all, would have to be enacted by Congress which has declined to do so. The usual suspects — Justices Breyer, Sotomayor and Kagan dissented.
As far as we can tell this decision did not use a taking theory as a basis for the ruling even though, it seems to us, that whoever enacts such a moratorium, whether the CDC or Congress, it would be taking the landlords’ property — i.e. the landlords’ right to collect rent on leased real estate, which — if memory serves — is an incorporeal hereditament, one of the “sticks” in the “bundle of rights” that comprise property.
Quoting from SCOTUS blog:
“The decision on the eviction moratorium was a decisive rebuke for the Biden
administration, with the majority writing that it “strains credulity to believe” that
the public-health law at the center of the case gives the Centers for Disease
Control the power to enact the moratorium. ‘If a federally imposed eviction
moratorium is to continue,’ the court stressed, ‘Congress must specifically
Steady readers of this blog — and there may be a few — may have noticed that in the recent past there wasn’t any activity here. What happened is that we were hacked by people who screwed things up and it took an effort by skilled help to get us back afloat.
The nasty part of this hack was that whoever done it inserted spurious links into our text and disguised them as parts of sentences that on quick reading appeared to be a part of our blog. Believe it or not, some of them were in Swedish and some would take you to what appeared to be home pages of law firms. So it will take a while to go through our genuine posts with a fine-tooth comb and get rid of that garbage. So please bear wit us.
On the substantive side, SCOTUS gives every indication of taking an interest of the pandemic-inspired “moratorium” on evictions for nonpayment of rents which is a crude effort to commandeer rental properties of landlords who certainly had no hand in creating this mess, by de facto seizing control of rental properties and turning them over to tenants rent free. So stay tuned; we’ll have more to say on this subject.
If you don’t, that was the 1954 case in which the District of Columbia pioneered urban redevelopment in which selected parts of cities, designated as “blighted” would be razed and turned over to private redevelopers who would build privately-owned new buildings. Doing it in Southwest Washington was exemplary of what at first was called “slum clearance.” Later, it became known as “blight clearance,” “blight” being a much more elastic term than “slum clearance. Eventually, it led to the outrageous 4 to 5 Supreme Court decision in Kelo v. New London which permitted the taking of an entire unoffending lower middle class neighborhood in order to provide higher taxes and a bunch of high-ticket shops, condos and a marina for the enjoyment of the well paid tech employees of the nearby Pfizer pharmaceutical company. But it didn’t work out. After wasting some $100 million, nothing — nothing whatever — was built on the New London site.
In the Berman v. Parker case the US Supreme Court approved the redevelopment process as the sort of “public use” referred to in the Fifth Amendment’s Taking/Just Compensation Clause of the US Constitution, even though the new, redeveloped structures would be privately owned.
In the Berman case, what became known as “slum clearance” displaced the poor folks and built expensive mid-rise apartments and townhouses. The poor folks whose plight was supposedly the justification for this process got evicted and pushed into other, worse parts of the District of Columbia where they had to pay higher rents. It was a bait-and-switch scam; the original redevelopment plan provided that the newly built, redeveloped area would be one-third affordable, charging rents of $17 per room per month. But as soon as the court gave its imprimatur to this project, that part of the plan was deleted. For the background of this story, that provides readers with the messy details, read Amy Levine, Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010). It tells all.
The legal basis for the Berman opinion (written by Justice Douglas) was just plain wrong — he explicitly confused the police power and the power of eminent domain and asserted that eminent domain was the police power.
Anyway, after the initial hoo-ha over this “wonderful” project, things went downhill. At first, Southwest Washington became the home of some rich and famous folks while the former occupants of the area, being largely month-to-month tenants got nothing or next to nothing.
In time, things did not work out; as the author of the relevant part of Wikipedia’s writeup put it “However, urban renewal did not fully succeed in Southwest for many of the reasons that plagued other Modernist renewal efforts. Areas of the neighborhood remained run-down, low-income, and somewhat dangerous. This situation intensified in the 1980s and the 1990s, when Washington had among the lowest per capita incomes and highest crime rates in the nation. The Southwest urban renewal has been called ‘a case study of everything urban renewal got wrong about cities and people.'”
We can personally attest to much of this story because back in 1963-1964 your faithful servant lived in the project area, in one of those aluminum and glass domed townhouses put up in the “old Southwest.” But as time went on things didn’t work out, and as the above quote makes clear, the Southwest redevelopment project grew worse. So now a new, new redevelopment project is going up in its place. Will it work this time? Who knows? Stay tuned.
Back when exactions were still new, two professors wrote a law review article about them, in which they ventured a prediction of how high these exactions (or impact fees, as they are sometimes referred to) would or could go. (see Heyman & Gilhool, The Constitutionality of Imposing of Increased Community Costs on New Suburban Residents Through Subdivision Exactions, 73 Yale L. J. 119, 1156 (1987)). There, they estimated that $500 per unit would be the uppermost amount that would be charged, and voiced the naïve belief that “legislative and judicial pressure will tend to require the establishment of a reasonable ceiling.”
Fast forward to today. The New York Times reports that a Montgomery County, Maryland, developer estimates that “he pays $50,000 to $60,000 a unit in impact fees.” See Emily Badger, Developers, the Indispensable Antiheroes of an Urban Drama,” N.Y. Times, Aug. 3, 2019, at p. B3.
Apart from that gem, we suggest you read that NY Times article because it provides a good insight into the problems that face developers when they set out to build housing.
Yesterday’s LA Times reported that “California lawmakers” have decided to divert the funds remaining from the ill-fated California “bullet train” that was supposed to be built to run between the San Francisco Bay area and LA (and beyond), to improvement of rail service facilities in Southern California.
No mention of the reaction — if any — of the snookered California voters who were persuaded a few years back to approve billions for the “bullet train” that now has been given up for dead.
Sic transit . . . etc.
And as you enjoy your barbeque or shopping or whatever floats your boat today, remember that you live in the greatest place on earth, where for all its warts and pimples people enjoy the greatest degree of personal, political and economic freedom.
So put up a flag — even a little one — and take a moment to reflect on your good fortune in being able to live here.
As predicted, the commentary on the Knick case is flowing like a flood-stage river. For example, Robert Thomas’ commentary in his blog www.inversecondemnation.com alone is filling pages with analysis and commentary. Good stuff that. Check it out. We stand in awe of his prodigious exertions, but we wonder if Mr. Roberts is able to do what he has done, and still have time to accomplish other things we all must do in life to survive. More power to him.
But so far, we haven’t seen much said in defense of Justice Kagan’s over-the-top dissent. Why over the top? Apart from its “chicken little” the-sky-is-falling tone (or, the-sky-has-fallen, if you prefer) we are amazed that so little is being said about the content of her dissent. She has risen up like an angry giant in defense of — are you ready? — stare decisis. And what might be wrong with that? Nothing, actually, so long as one stays within the bounds of reason. But stare decisis must make sense. Your faithful servant is an old geezer, which is to say of the generation during which the sainted Earl Warren presided over the Supreme Court where he and his merry men wielded the powers of precedent-breaking and precedent-making with a mighty hand. Justice Kagan seems to have forgotten that during the Warren era precedents were being broken like so much kindling. We need only mention familiar landmark rulings like Brown, Miranda, Roe and all those others which were then Johnny-come-lately precedent breakers.
So if we reflect a bit on that past and look at the Kagan dissent in Knick, we come up with the proposition that if you’re up there and you decide to chop up some old precedents like so much kindling, you’re a hero, provided your deeds of precedential derring-do are on the liberal side of the legal ledger. But if, as in Knick, your intellectual/doctrinal precedent-chopping favors the conservatives, then you’re an icky-poo bad guy. Instead, says Justice Kagan, you should go supplicate the legislature to change the law — even if that law is judge-made, works a bizarre constitutional injustice and violates the explicit constitutional rights of folks you disfavor. But no overruling Holy stare decisis and declaring the constitutionally offending legislation (or precedent) unconstitutional in order to bring some rationality into the lives of constitutionally aggrieved Americans. Sorry, your Honor, that isn’t our idea of good law or justice, or for that matter, what we were taught in law school.
What’s good for the goose should be likewise good for the gander, goes the old proverb, and Justice Kagan should reflect on its message.
Bottom line: the Williamson County rule denying American property owners access to federal courts (or at times any courts) to protect their federal constitutional property rights was raw injustice that stunk to high heaven. Good riddance to it. By defending it, Justice Kagan has not covered herself with glory. Quite the contrary.
FOLLOW UP. As we write this follow-up it is the beginning of Novemeber, and a few defenses of Justice Kagan’s over-the-top dissent have begun to appear. Mostly, they try to rise in defense of her worshipful treatment of precedent, not of any substantive defense of the fairness of the result of the case she would like to see. Small wonder. The pre-Knick result of the Williamson County/San Remo Hotel rule was absurd on its face, and it was a blot on the Supreme Court’s stature while it lasted.
In case our meaning is not at your fingertips, let us remind you what that result was. Under it the constitutionally aggrieved property owner, unlike any other Section 1983 plaintiff, had to sue “first” — so the court said — in state court, and only after losing there would the plaintiff’s case be ripe for litigation in federal court. But if the owner followed that requirement, the state court decision would be deemed preclusive and — “ripe” or not — the owner’s case invoking the protection of the US Constitution could never be invoked in any court. This is what Justice Kagan wants to inflict on the country? This is what her supporters still want? Stuff and nonsense!
NBC Chicago reports that plans for a large Foxconn electronics plant for which land was acquired by eminent domain in Wisconsin, is slow in getting started and it appears that the numbers of people to be employed there will be smaller than those promised at the time of the land’s acquisition by eminent domain.
Here are the details in the NBC story: https://www.nbcchicago.com/news/local/one-year-later-wisconsin-residents-question-foxconn-commitment-511973031.html
Most of the current writing about the Knick case has concentrated on the opinions’ contents — notably, the property owners’ victory embodied in the 5 to 4 majority opinion that finally got rid of the intellectual excrescence that was the now-overruled Williamson County case. Slice it anyway you like, but Williamson County’s bizarre ruling that American property owners, unlike any other species of constitutionally aggrieved Americans, are not allowed access to federal courts to vindicate their federal rights under the federal Constitution and statutes, was, well, bizarre. So it was a great day when the Supreme Court’s Knick opinion finally took care of things by overruling Williamson County.
But court opinions don’t just write themselves. We know well because we spent our professional life crafting the raw material used in the making of judicial opinions — the appellate briefs. Writing legal prose that is understandable, clear and persuasive is usually a skill that takes a dollop of innate talent by the writer and is honed by practice. In this case the Chief’s majority opinion certainly meets these criteria. It is lucid, straightforward and does not leave the reader puzzled as to what the court meant to say. Oh sure, we are certain that some lawyers — those on the short end of the Chief Justice’s majority opinion — will find something to kvetch about. But that will be hard to do in this case because the Chief’s majority opinion leaves no doubt what he meant to say. One commentator aptly characterized the Chief’s writing in this case as “simple elegance.” That it was, and more. It also contained a hint of judicial distaste for the overruled precedent’s denial of justice to people who hadn’t done anything wrong but were nevertheless being abused by the very judicial/constitutional system that was supposed to protect their rights. Good show, Your Honor!
And last but not least, a tip of our hat to those anonymous court clerks who (at least for now) have toiled in obscurity, assisting the Justices in the sometimes tedious task of legal research and initial opinion drafting that is essential in the production of the living law of which court opinion are made. Yes, we know. We occasionally kvetch at the clerks’ lack of a specialized experts’ knowledge of the fine points of matters that few lawyers — even after years of experience — get to know and understand.
So Hail to the Chief and to his “sorcerers’ apprentices” who have helped make the Knick majority opinion the masterpiece that it is.