More from the Kelo Decision: they owe rent to the government now

[Imran Siddiqui]

Originally posted by SpencerH
It would have still been decided the same way if it was for a strip mall (with the same 4 dissenting) but this decision pushed the boundary of 'public use' to new extreme levels that most anyone can see.

Um.. Spencer? Did you read the dissent? If it was a strip mall with many different private interests only Thomas would have voted against. It would have been 8-1 in favor of the condemnation.

I hope as I believe it was Imran pointed out that this makes people pay more attention to their local elected officials.

I've always wondered why people don't pay that much attention to the local guys. They hold IMMENSE power over their constituents. Eminent domain being a small piece of that pie.

[SpencerH]

Originally posted by Imran Siddiqui


Um.. Spencer? Did you read the dissent? If it was a strip mall with many different private interests only Thomas would have voted against. It would have been 8-1 in favor of the condemnation.

Um, yes I did.

Here's the opening para'a from O'Connors dissent.

Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

last 3

It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.” Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

I would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse the judgment of the Supreme Court of Connecticut, and remand for further proceedings.

Reading that, I wonder if you read the dissent? There are reasons why these three would have upheld the property transfer but I doubt that a strip mall would have been reason enough.

[Mr. Harley]

As well as property taxes, routinely appointment of the head of local police force (if you don't think that appointment influences the entire behavior of the force and who gets hired and their attitude, you are nuts), appointments to the zoning commision - IMHO truly critical, and often appointments to the local prosecutorial office (who can destroy your life in a heartbeat). Add in the the Superintendant of Schools, contracting out local road work (whose street get's fixed and how well it's done), and relationships with the state party and state government. It is all very important.

[Imran Siddiqui]

Um.. Spencer?

Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use–such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407 (1992)

A strip mall, or other open businesses, are obviously making the property available for the public's use, as much as any stadium or railway station.

[SpencerH]

Originally posted by Imran Siddiqui
Um.. Spencer?

Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use–such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407 (1992)

A strip mall, or other open businesses, are obviously making the property available for the public's use, as much as any stadium or railway station.

Um... Imran?

Not at all. That's the opinion taken by the majority.

The dissent makes it clear that they dont consider tearing down perfectly good houses in a nice neighborhood in order to build anything else a valid reason to transfer ownership.

The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28—29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.

I may as well post a link to entire dissent .

[SpencerH]

Kennedys concurrance seems to stem from his opinion that this is similar to the situation in Berman and Midkiff i.e. this transfer "comes up to the line of unconstitutionality but doesnt cross it".

[Vesayen]

Originally posted by Dis


makes you want to overthrow the goverment (both federal and local)

More so then before, yes.

To your tents, oh Israel.

[Imran Siddiqui]

Not at all. That's the opinion taken by the majority.

Um... Sprayber? I took that line directly from the dissent (Section II). A stadium or strip mall is private property that being made available for the public's use (in a strip mall, for shopping by the public). Though that line is often used for common carriers (like bus stations or railway)

In fact, the dissent says that that line is one of two, which is uncontroversial.

[SpencerH]

Originally posted by Imran Siddiqui

Not at all. That's the opinion taken by the majority.

Um... Sprayber? I took that line directly from the dissent (Section II). A stadium or strip mall is private property that being made available for the public's use (in a strip mall, for shopping by the public). Though that line is often used for common carriers (like bus stations or railway)

In fact, the dissent says that that line is one of two, which is uncontroversial.

No, its Spencer and I know where the quote came from.

A strip mall is not a stadium, railroad, or public utility. In any case (and as I cited above), for the dissenting judges 'public use' is not simply based upon whether there is a tax benefit.

Adieu, you'r not paying attention and this is not a discussion.

[Imran Siddiqui]

A strip mall is not a stadium, railroad, or public utility. In any case (and as I cited above), for the dissenting judges 'public use' is not simply based upon whether there is a tax benefit.

Adieu, you'r not paying attention and this is not a discussion.

I am most definetly paying attention, you are just not getting it. A strip mall is an area of shopping where the public is invited. As such it is available for public use, just like a stadium.

The public use has nothing to do with tax benefits at all, but being available to the community, allows the community to benefit by having a semi-public shopping space. You don't even have to get into taxes, because as O'Conner stated that taking is uncontroversial.

[Whoha]

Originally posted by mrmitchell
What did New London want the land for anyway?

This sounds like it's getting ridiculous.

Its excellent beach front property that developers wanted but didn't want to actually have to pay for.

[Tattila the Hun]

Not pay? Seizure? Did they actually get ANY compensation? The bare minimum?

[Whoha]

the first offer was quite a low ball one.