The Supreme Court decision in Kelo v. New London handed down yesterday has been widely criticized in the blogsphere. See here for blog links and here for some media links.
The decision has some interesting characteristics and possible politics behind it. See The Volokh Conspiracy for some interesting takes on the possibility that the more conservative side, O'Connor, Rehnquist, Scalia and Thomas may have started in the majority but with Kennedy moving to the Stevens opinion, making it the majority. Interesting, but beyond my point.
On reading the majority opinion by Justice Stevens, I am struck by the jump to the conclusion that the actions alleged by Mrs. Kelo and the petitioner are a public purpose. After describing the history of the use of the term public purpose as a substitute for public use (at least this definition did not arise in this case, which would have made the decision all the more outrageous), Justice Stevens says that the PROCESS by which the taking was promulgated rather than the content of the taking, made made New London's action a public use. (Note: The page numbers referred to here come from a print out from this link courtesy of Findlaw.com)
As Justice Stevens noted, "The Takings before us, however, would be executed pursuant to a carefully considered redevelopment plan." 04-108, 5. Later in the opinion, Justice Stevens writes:
It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to Citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by the petitioner can be confronted if and when they arise. Id., 7-8 (citations omitted). (Emphasis added.)
Admittedly, a direct one-to-one transfer outside of a redevelopment plan is not present in the case, but why does the mere fact that a lengthy planning a review process suddenly justify a taking? Taken to the next step, under what criteria would a taking be unjustified, if the plan was not carefully considered enough? How much is enough consideration? One year? Six months? This is a question left open by Justice Stevens reliance on the fact that the redevelopment plan was carefully considered and integrated.
But the facts of the case also undercut Justice Stevens contentions. The facts of the matter clearly indicate that the property is being taken for a one-to-one transfer. In the facts of the case, Justice Stevens noted that Parcel 3 of the New London plan would "contain at least 90,000 square feer of research and development office space" and that the parcel is located "immediately north of the Pfizer facility" nearby. A logical inference of the reference to Pfizer and the location of the parcel of land would indicate that pfizer would be using the space. Thus a one-to-one transfer, from petitioner to Pfizer. Even if Pfizer is not involved in the deal, some other private entity or entities would be, again a one-to-one transfer. But because the taking occurs within "an integrated development plan," this transfer it deemed acceptable by the court.
Approximately 1/3 of the land taken by New London under eminent domain was located in this land that would be used for the R&D facility. For this reason, the trial court refused to permit the taking. Further, "there is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happened to be located in the development area." In other words, the property was taken because the development was more valuable to the city and state as office space than someone's home.
Admittedly the Supreme Court must use the factual findings by the lower courts in formulating its opinion, but the conclusion that this activity by New London is a taking simply arrives without any factual justification. In addition to protection afforded to New London and others that so long as the taking is part of a considered and integrated development plan, the state or locality can just take land, Justice Stevens ignores the plain facts of this taking.
Despite the well considered plan, this taking is of the very kind that Justice Stevens say would raise a suspicion. The properties of Ms. Kelo and the petitioner was being taken because the city, in its considered wisdom, decided that the development plan would produce more tax revenue and thus benefit the city. I would argue that such a tax benefit is beyond what should be considered a valid public use--it is simply too remote a benefit.
Much of the development discussed in the city's plan would transfer land from the petitioner to other citizens (which included corporations and developers) for the very reason that the city has determined that Citizen B can do a better job using (read pay us more taxes) than citizen A. This is the very fact pattern that Justice Stevens noted would be suspicious and dismissed a hypothetical.
From the majority opinion, it appears as though the only protection a property owner would have would be the procedures undertaken by the taking authority. Thus a taking is valid if it is:
1. Rationally related to some governmental need,
2. Part of a integrated development plan, and
3. Subject to careful consideration by the government.
Rational Basis is Not Good Enough
Under the takings clause jurisprudence, the Court has proceeded from the review standard afforded to most economic legislation. The purpose of the state must be rationally related to the actions it took. The court is usually free to find a purpose, even absent a legislative declared one. But I would argue that a taking should be subject to a higher level of review. As pointed out by the Connecticut Supreme Court dissent, they believed that "the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce "clear and convincing evidence" that the economic benefits of the play would in fact come to pass." Kelo, at 4.
Like Justice Stevens, I don't the the reasoning of the Connecticut court is sound. Economic benefit to the City should not be a criterion for a valid taking. But I do believe a heightened standard of review is necessary. Individual property rights are being abridged here, rights that our Founders held dear (otherwise it would not have been in the Fifth Amendment). Yet, to abridge a fundamental right in this case, all the state has to do is show some rational relationship between the means and ends. This seems too low a standard and almost a rubber stamp of a taking by the courts, under just about any circumstance that would fit the test above.
Under a heightened level of review, a state or locality would have to show some IMPORTANT governmental need than cannot be attained WITHOUT the taking. The burden would be upon the government to prove that the purpose is important and cannot be accomplished without the taking of someone's property.
In other fundamental rights cases, the burden has been placed on the government to prove that a law accomplishes some important need. Free press, free speech, unreasonable searches and seizures, and other vital rights are protected by the Court from being abridged absent some important or compelling governmental need in most cases. But when it comes to takings under eminent domain, all that is needed is rational relationship.
It seems as though the Court has dropped the ball on what is important and what was enshrined as protected interests in the Bill of Rights. Taking a person's home merely because someone else can pay more taxes on that property than you is a violation of a most fundamental right, the right to be secure in one's own home.
Linked to Outside the Beltway
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