Supreme Court ok's Property Seizures

[Doc]

Aye.

Pre-Thursday
"Hi! I'm an crazy Texas oil tycoon who makes eccentric purchases of homes in order to expand my burdgeoning empire of squirrel-racing tracks. I'd like you buy your 2-bedroom, 1 bath ranch home to complete the southeast corner of my latest complex."

Homeowner: "Sure! Three hundred thousand!"

Tycoon: "Sold! Here's three-twenty five. Buy yourself something with sequins and bull-horns. Yeehaw!"

Post-Thursday
"...the southeast corner, next to the nut shuffler."

Homeowner: "Sure! Three hundred thousand!"

Tycoon: "By golly! Hold on a moment" *makes a quick call on a cellphone*

Bulldozers roll in, and a car pulls up. Guy in a suit pops out.

Official: "In the interests of promoting the civic economy, we are seizing this home on a claim of eminent domain. Here's your check for one-hundred thousand dollars, and now our friendly 'relocation assistants' will transport you and your belongings to the nearest Motel 6."

Bulldozers start crunching away

Official (turning to tycoon): "My master?"
[right][snapback]81608[/snapback][/right]

Well the math might be a little off, I figured 30k tops, but that sounds about right.

[Rhydderch Hael]

Well the math might be a little off, I figured 30k tops, but that sounds about right.
[right][snapback]81610[/snapback][/right]

You obviously don't live in California. :blush:

[Doc]

You obviously don't live in California.  :blush:
[right][snapback]81613[/snapback][/right]

Well, 10% of 300,000 is 30k.

Meh.

[Rhydderch Hael]

We've been focusing on homes. There's another potential victim out there: small businesses.

Why bother driving the small Mom 'n Pop shops out of business when you can outright buy their property to plant your next Wal-Mart megacomplex?

If the small shop even bothers to relocate, how much business will they lose with the move and a mega-competitor under-cutting them? The mere threat that the megastore presents would compel the small business not to even bother losing money by opening a new shop somewhere else.


This spoken from a man who can give you precise locations to three GameStop locations all within two miles of each other.

[whyBish]

It looks like no-one owns a house... they are all just rented until further notice from the state
[right][snapback]81466[/snapback][/right]

Nicely put! :)
[right][snapback]81549[/snapback][/right]
[/quote]

Amusingly (even though it's not a topic to be amused about) China has been experimenting with private property ownership over the last decade, and here is the U.S. heading in the Communist direction :huh:

Without private property ownership (or at least very long term rental) no-one will be willing to invest in improvements to land/buildings (Why improve something if someone else will gain the benefit of it soon?). Reduced capital expenditure lowers long term growth rates... weakening the economy. Isn't this something that the U.S. would not want... with India, China etc. breathing down their necks? (--edit-- I'm referring to the small business here, improvements to residential properties don't affect growth).

[whyBish]

Just thinking out loud...

Legal judo...

If this ruling can be used for private business, can't it also be used against them (and a demonstration of such would be a good way to get it kicked out...)

Image a state with environmentally minded politicians declaring industrial areas with 'excess' emissions as 'blighted' and acquiring them for 'the public good'

Obviously just a daydream...

[Doc]

Press Release
For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.

# # #

Logan Darrow Clements
Freestar Media, LLC

[jahcs]

Press Release
For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

*<SNIP>*

[right][snapback]81952[/snapback][/right]

I hope this case goes to court. All the way to the Supreme Court! B)

[goldfish]

Sigh. Where to begin?

Let's see.

1. The compensation required under the Takings Clause is "fair market value." So if your house is worth $300k on the market, that's what you're entitled to.

It doesn't necessarily fully compensate property owners. Many people internally value their property at a price far higher than fair market value. But Kelo does not authorize takings for less than fair market value. And given the rock-solid jurisprudence on takings clause compensation, I think it's highly unlikely that FMV will ever be abandoned.

2. What Madison or whoever thought the takings clause meant in 1791 is completely irrelevant. In 1791, the takings clause didn't apply at all to actions by the states.

In the first half of the twentieth century, the Supreme Court ruled that, like most of the Bill of Rights, the Takings Clause was incorporated by the 14th amendment. It has only been since that time that the federal takings clause provided any protection at all against state actions.

(Of course, various state constitutional provisions provided varying levels of protection prior to that time).

3. Kelo is consistent with a century of case law. Kelo is not the first case to say that purposes like economic development or job-creation satisfy the "public use" prong of the takings clause.

In fact, post-Kelo, property owners are probably in a better position than they were previously. The previous decision, Midkiff in 1984, was a unanimous Supreme Court decision that contained broad language to the effect that the public use requirement would be satisfied by whatever the legislature said:

The "public use" requirement is thus coterminous with the scope of a sovereign's police powers.&nbsp; There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. TVA v. Welch, which emphasized that "[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields." In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation."

Midkiff, 467 U.S. at 240-41.

Kelo moves backwards significantly from that position.

(See also further discussion of the existing case law, at http://prawfsblawg.blogs.com/prawfsblawg/2...o_of_overr.html ).

4. Kelo is a 5-4 decision with a concurrence, which suggests that Kennedy's concurrence is what many lower courts will look to in interpreting and applying it.

Kennedy's concurrence focused on the extensive hearings and administrative proceedings that the city did before deciding, through a transparent process, what to do with which properties. Kennedy's concurrence strongly implies that, absent a lengthy administrative proceeding with transparency and opportunity for input by community members, such a taking would not be upheld.

Compared to Midkiff, which was the leading case prior to Kelo, this is a huge benefit to property owners.

5. Kelo determines only the reach of the constitutional provision. It is entirely within the powers of Congress and/or appropriate state legislatures to pass laws further restricting the use of eminent domain within their respective spheres.

[goldfish]

And the "Souter hotel" thing -- which has been circulating around the internet -- is a REALLY BAD, REALLY STUPID idea.

(Well, perhaps it's prank, in which case it may not be a bad one. But as a real idea, it's incredibly bad).

Let's see:

1. That kind of seizure is not authorized by Kelo. Pretextual seizures or seizures intended to benefit one party are not allowed.

A public body is allowed to make decisions for public purpose, that may have some incidental private effects. But the Kennedy concurrence and the Kelo decision itself are very clear. Intent to take property away from one person and give it to another is not allowed, at all.

2. Did the morons who drafted this even read the Kelo decision? It wasn't authored by Justice Souter. The decision itself was authored Justice Stevens. Souter, along with Kennedy, Breyer, and Ginsburg, joined the decision. The focus on Souter is . . . bizarre. (Except insofar as he's a favorite target of the Limbaugh crowd).

3. Are we really stopping to this? The King of England threw judges and juries into prison for decisions that he didn't like. The Founders decided that that was a bad idea, and did everything that they could to establish an independent judiciary, one that could rule on cases according to how it viewed the correct interpretation of the law.

But apparently for some people it's more fun to play King-of-England and go after judges for rulings that one disagrees with. What a load of &*^&.

[jahcs]

Supreme Court website: Kelo Question

04-108 KELO, ET AL. V. NEW LONDON, CT, ET AL.
Decision Below: 843 A.2d 500 (Conn. 2004)
QUESTION PRESENTED
What protection does the Fifth Amendment's public use requirement provide for
individuals whose property is being condemned, not to eliminate slums or blight,
but for the sole purpose of "economic development" that will perhaps increase tax
revenues and improve the local economy?
Cert. Granted 9/28/04

This is the central issue most folks are focused in with this case. Can the State sell my property to a 3rd party without my consent? If the State were to take ownership directly (after due compensation) we wouldn't be squaking so loud.

From your post on the 1984 Midkiff decision:

...[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function...

I would contend that the generation of tax revenue is not a function of Government. The levy and collection of tax revenue is. The redistribution of property to a 3rd party on the promise of increased tax revenue is not a proper justification of "public use," in my opinion.

Reading through some of the transcripts of the Kelo hearings:
Kelo transcript 04-108 Opening Arguments Page 9:

11 JUSTICE SOUTER: Well, I'm not interested
12 in the label. I'm just saying if the government says
13 we need to increase the tax base because we have a
14 depressed city, so we are going to take some of our
15 tax money now, and we are just going to buy up
16 property that people are willing to sell to us, and
17 we are going to assemble parcels. And when we get a
18 big enough one, we are going to sell them to a
19 developer for industrial purposes. And that will,
20 that will raise the tax base. Is there anything
21 illegitimate as a purpose for governmental spending
22 in doing that?
23 MR. BULLOCK: No, Your Honor...

The item on lines 15 and 16 is a key feature of the case that was glossed over in the decision. If the owner does not want to sell, and the land will be sold to a 3rd party, Eminent Domain should not be in effect.

[goldfish]

. . .&nbsp; If the owner does not want to sell, and the land will be sold to a 3rd party, Eminent Domain should not be in effect.
[right][snapback]82000[/snapback][/right]

But Jahcs, that's not the dividing line in Kelo at all.

Prior to Kelo, a number of major cases already approved the eminent domain seizure of property and subsequent transfer of that property to other private entities.

See, e.g., Midkiff (seizing property from large landholders in Hawaii and redistributing to poor Hawaiians pursuant to state law), Berman (seizing property in a section of DC and transferring to developers pursuant to urban renewal plan), Poletown (seizing property and transferring to company to build a new plant).

The question in Kelo was whether the public use requirement of the takings clause included economic development, not whether or not taken property could be given to another private recipient.

[jahcs]

But Jahcs, that's not the dividing line in Kelo at all.

...

The question in Kelo was whether the public use requirement of the takings clause included economic development, not whether or not taken property could be given to another private recipient.
[right][snapback]82006[/snapback][/right]

Right. The issue as cast was whether economic development was just cause for excercise of eminent domain. Public Use and Public Benefit are being confused by the court, IMHO. I have brought this up numerous times.

[Occhidiangela]

But Jahcs, that's not the dividing line in Kelo at all.

Prior to Kelo, a number of major cases already approved the eminent domain seizure of property and subsequent transfer of that property to other private entities.&nbsp;

See, e.g., Midkiff (seizing property from large landholders in Hawaii and redistributing to poor Hawaiians pursuant to state law), Berman (seizing property in a section of DC and transferring to developers pursuant to urban renewal plan), Poletown (seizing property and transferring to company to build a new plant).&nbsp;

The question in Kelo was whether the public use requirement of the takings clause included economic development, not whether or not taken property could be given to another private recipient.
[right][snapback]82006[/snapback][/right]

Many many thanks for clearing that up. :D

Occhi

[whyBish]

Press Release

That's the type of legal judo I like :P