Text of SCOTUS decision -- GREAT READING!!

[wtmusic]

From Stevens opinion:

"There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized."

(Can we discuss the ratio of community benefit to private profit? Didn't think so...)

"Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government's pursuit of a public purpose will often benefit individual private parties."

(I.e., the check is in the mail.)

"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...While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise."

(It's true--every homeowner can fight a Supreme Court ruling in the great US of A.)

and from O'Connor:

"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."

Which makes more sense to you? :silly:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-108

[Nikki Stone 1]

1. Sounds like our right to property is now being eroded

" 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."

So, if my single family house is only worth $200,000 on a nice parcel of land with a view, and some developer wants to put 10 little condos worth $150,000 apiece on the same land, I have to give up my house and land to the developer?

[wtmusic]

2. That's the basic idea

This is one of the worst SCOTUS decisions in recent memory.

IMO Congress would have little trouble adopting a simple Constitutional amendment which voids it.

[Nikki Stone 1]

3. I missed the vote. Who voted for and against?

?

[wtmusic]

4. Concurring:

Stevens
Souter
Ginsburg
Breyer
Kennedy

Dissenting:
O'Connor
Rehnquist
Scalia
Thomas

(Must be getting conservative in my old age.)

[cprise]

5. Why would that necessarily follow?

Your right to private property is the same as it always was: NOT ABSOLUTE.

This kind of thing doesn't happen to a lot of people because city councils are democratically elected, and inconveniencing a large number of homeowners is politically unfeasable. The potential for abuse is there, but very limited.

BTW- Making it sound like the city is turning these homeowners into homeless people doesn't add anything to the debate.

[Nikki Stone 1]

6. Self delete

:kick:

[cprise]

12. Oh, I agree.

Actually, local government can do very stupid things
Take a look at San Diego. The place is a mess. The city pension funds were looted and yet, San Diegans sent the same damned mayor back for another term. It is only the federal investigations that are finally dislodging these people. They mayor had to resign and a bunch of city bureacrats have been indicted. But, it had to get horrifically bad before anything happened and the feds had to be called in.

But expecting that private gain cannot result from an eminent domain taking leaves us with... no reason to use eminent domain. Frankly, an America without an eminent domain would suck, especially one where private property could only be converted into state property.

The reaction here is very sad and shallow: How many DUers will turn into Cato-type activists because of their anti-corporate Pavlovian response to this case?

This is how people like David Horowitz are created. And it plays right into the hands of the corporatists.

Ultimately it comes back to our failure as American progressives to create holistic planning and development policies which direct that eminent domain power in a consistently humane way.

[Nikki Stone 1]

18. Eminent domain should be about public good and the public sector

"But expecting that private gain cannot result from an eminent domain taking leaves us with... no reason to use eminent domain. "

It should not be enacted primarily for private/corporate gain, no matter how much the local government wants the tax dollars.

[smb]

29. "Public Use" = "State Property"

"one where private property could only be converted into state property"

In other words, one where the government OBEYS THE CONSTITUTION OF THE UNITED STATES OF AMERICAN AND THE COMMON-LAW TRADITIONS BEHIND IT.

[funflower]

7. This is a good point. Our city forced the sale of a portion of our land

for a "development" use, and, while we weren't thrilled, we were paid market value for it.

[wtmusic]

8. Disagree that the potential for abuse is limited

Inconveniencing large numbers of poor homeowners is actually politically very feasible. Again, those who can least afford it bear the brunt. I'm getting tired of this shit.

[Nikki Stone 1]

10. Good point--poor homeowners are often displaced

:kick:

[cprise]

14. The avatar you are wearing

...is the image of a person who I am POSITIVE wouldn't agree with you. In fact George Galloway is economically hard-left.

He is intelligent enough to know that RIGHTS like eminent domain aren't to be dispensed with because they are sometimes abused.

That ED is poorly-directed in America due to a lack of (energy/housing/environment/agricultural) policy is to be expected. Our society is in a nether-region between being socially aware and responsible on the one hand, and supremely infantalized on the other.

[wtmusic]

16. Not so sure

Galloway is a people's advocate and I don't believe he would support a ruling which *usually* benefits the rich.

FWIW, I don't believe in dispensing with eminent domain at all. But despite all the admonitions of the concurrers to use the law the "right" way, there is absolutely no legal obligation for local governments to do so.

[cprise]

22. Do you even read the UK dailies?

The way the Blair government gets directly involved not just in housing, but in community development? It is some of the most intelligent planning I have ever read about. It also goes a long way toward preventing this kind of conflict from arising in the first place.

What "obligation" do you think municipalities should be held to in this case?

Look... there is a monetary calculous involved showing a gain for New London if they use ED here. There is ALSO no public policy that takes other factors or qualities of life into account. Has the city zoned to ensure a minimum level of local ownership? Feh, I think not! The real question is whether SCOTUS or the other entities are thwarting the establishment of such policies.

[wtmusic]

27. I'm very happy for New London's gain

but this is an overextension of the principle. What's the "monetary calculus" for the people who's houses are being taken away? You can be sure there's a big minus sign in it somewhere.

The obligation that municipalities should be held to is a sticky issue. It's not public vs. private ownership, because a precedent has already been set for ED being used to take private property for railroad tracks, which is then bought by the railroad.

ED should be used only for:

- Utilities
- Transportation
- Government use

with all three meeting a strict requirement of necessity. The idea that your town can take your house away because they feel it doesn't look nice doesn't appeal to anyone's sense of fair play.

[cprise]

35. ..."taken away"... they also got PAID.

There is NO minus-sign among the metrics allowed by US political values. But those values do suck.

SCOTUS decided that the city has a plausible cause for public gain, and therefore was not going to risk instating a specific precedent at the national level with restrictive definintions.

In other words, it's Connecticut's problem.

Otherwise, SCOTUS would have to do something that would trigger a legislative response in D.C. Talk about an unhealthy prospect...

[AirAmFan]

9. Yes, and that's very likely a GOOD thing. Much more is at stake

here than meets the eye. The case pitted government against property, and government won. Whom would a victory for property have helped more, big corporations or ordinary working people?

The ruling upholds the presumption that local eminent domain decisions serve a public purpose, and puts the burden on property owners to show otherwise. Clearly, corporations can corrupt governments. But had the court ruled the other way, in favor of expansive property rights under the Fifth Amendment, THAT could have benefited corporations even MORE.

The USSC circumscribed corporations' exercise of power through their ownership of property, which is arguably much more pervasive than their corruption of governments. See http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=1881274&mesg_id=1881274

[wtmusic]

11. Oh come on

when will this ever affect large corporations negatively? There is only one way this ruling will be (ab)used:

"Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946."

"In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later...the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to "complement the facility that Pfizer was planning to build..."

(from O'Connor's opinion)

Who benefitted more, Wilhelmina Dery or Pfizer?

[AirAmFan]

13. Re-interpretation of the Fifth Amendment to favor property owners

over elected governments would have implications far beyond local zoning cases. Over the last couple of decades, far right foundations have given millions to legal researchers who seek to overturn just about all regulatory legislation since the New Deal through radical USSC decisions on the Fifth Amendment. Justice Kennedy's concurring opinion referrred to this issue explicitly. See the link I posted in #9.

[wtmusic]

15. Attempting to rationalize regulation as "taking"

just seems nutty to me. I think Epstein has been in a room with a blackboard for two long. It doesn't seem like this idea could ever gain popular acceptance, but maybe I'm wrong.

[AirAmFan]

19. It HAS acceptance among four Justices of the USSC, which is

one justice short of all that's needed for it to prevail.

The local zoning issue can be compared to the "partial birth abortion" ploy. It's one step in a carefully-orchestrated disinformation campaign to help unleash radical right judicial activism.

In the other thread, I cited a 200K article from The Nation (at http://are.berkeley.edu/courses/EEP131/Gieder.pdf ). It quotes Democratic constitututional lawyers who believe this is no longer a joke, because there's a series of USSC decisions that have defeated Epstein's agenda. by just one vote.

[wtmusic]

21. Good link -- thanks for the info

will have a look in the AM.

[cprise]

17. The state can and does use ED against abusive monopolists and polluters

...to give two examples.

Would you deprive city councils the right to remove a polluting industry from their own land, and sell the land to a less-polluting private party?

[wtmusic]

20. Yes

because there are a wealth of environmental laws which can be brought to bear.

The whole idea of ED is repugnant to me, although I understand it's necessary in certain circumstances.

[cprise]

23. This whole thing reminds me of Grey Davis

Now there's someone who SHOULD have become "repugnant" to the power utilities.

Gotta be "business friendly" though.

[smb]

31. That Has Nothing To Do With Eminent Domain

"Would you deprive city councils the right to remove a polluting industry from their own land, and sell the land to a less-polluting private party?"

Puh-leeze.

Governments already have the ability to stop (or remove, if that's what it takes) polluters using their existing police powers. Similarly, they have the power to condemn genuinely blighted property using police powers to clean up the fire and health hazard posed by such buildings.

There is just no legitimate scenario for using eminent domain to transfer property from one private citizen/corporation to another.

[smb]

30. Simple

"Whom would a victory for property have helped more, big corporations or ordinary working people?"

In your world (what color is the sky there?) where governments are just as likely to forcibly uproot a millionaire as to forcibly uproot a pauper, I guess it's a tossup.

Here in the reality-based world, it's clear that this decision is an endorsement of Corporate Statism.

[AirAmFan]

33. Much more is at stake here than just local eminent domain

and zoning cases--you're seeing individual trees but ignoring the forest.

It's true that corporations sometimes can corrupt elected governments. But does that mean corporate economic power should go unchecked by Fifth Amendment government regulatory powers?

We've got a "Hobson's choice" here. The case pitted elected government against property. Elected government won, and so corporations will prevail some of the time--whenever they can corrupt elected government. Had the case gone the other way, corporate economic power would have moved a step closer to prevailing EVERY time.

[AirAmFan]

24. Nikki--When I replied 'YES' in #9, I was responding to your heading

("Sounds like our right to property is now being eroded"), not to the question at the end of your post ("I have to give up my house and land to the developer?"). Here's my reply to that question.

Your example is unrealistic--though ingenious--and leaves out a couple of steps.

Property values don't ordinarily jump from $200,000 to $1.5 million instantaneously. And, if they did, developers would be willing to offer you several times more than what you paid for your house. You'd be very likely to sell out to them voluntarily long before they were forced to the trouble of corrupting local government into using eminent domain to force you out. For one thing, unless you could rely on California Prop 13-like unfair tax laws, you'd move in fear of the reassessment of your property that would make property taxes unaffordable.

Finally, even if you held out until eminent domain was exercised against you, as I understand it the developer would be forced to pay you market value, which would be far above your $200,000 historical cost.

[welshTerrier2]

26. "forced to pay you market value"

i've been initially supportive of the Court decision although i am currently re-evaluating my position ...

but one point i find somewhat troubling with the decision is the whole notion of the "just compensation" clause in the Fifth Amendment ...

which leads me to your statement that the developer would be "forced to pay you market value" ... that's a very interesting phrase that's worth poking at a bit ...

take the example being discussed ... i'm not sure if anyone actually stated a market value in the example but we started with a $200K initial cost and a $1.5 million "potential" future selling price for the developer ... let's say similar properties in the area were recently sold for $500K and we'll use that as the current "fair market value" ...

under the Court's ruling, my understanding is that the local government could force you to abandon your residence and they would have to compensate you for the $500K ... this would fulfill their obligation under the "just compensation" clause according to conventional thinking ...

but does it really pay you the "market value" ... a real market results from the interaction of a buyer and a seller ... consider, in lieu of eminent domain, that the homeowner refuses to sell ... and then consider, that the "buyer" (in this case the developer) increases the offer to $600K ... and the homeowner still refuses ... so the "buyer", realizing the profit potential in the property, agrees to increase the offer again to $750K ... let's say the homeowner now accepts this offer for $750K ...

do you still agree that "the developer was forced to pay you market value" in an eminent domain seizure that resulted in a purchase price of only $500K ???

which is the better determinant of the fair market value: the "comps" (i.e. the price of recently sold similar properties in the area) or the actual negotiated market price arrived at through the negotiations of one buyer and one seller?

most of the discussions i've seen on DU have focussed on the "public use" clause of the Fifth Amendment ... i think the points you raised, and i raised, regarding "just compensation" are also worthy of more discussion ...

[AirAmFan]

32. I think the key here is that Nikki's example of such a huge

discontinuous jump in property values is very unrealistic.

[kentuck]

25. It was a victory for capitalism over democracy...

If the "rights" of an individual is in direct conflict with the right of a business or a capitalist, guess who wins? That is America in 2005.

[smb]

28. Stevens Is Senile

"There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized."

Traditional and Constitutionally acceptable use of eminent domain is for facilities owned and operated by the government, you jackass.

[Hidden Stillness]

34. Now All Law and Government Serves Corporations

It seems to me, although I don't pretend to be an expert on the decision, that the real threat of it is that it now extends Eminent Domain from the needs of Government to the whims of capitalists and Republican contributors. It has been used by Government only, up to this time--for public projects that needed a lot of space, such as highways, etc., or to purchase unsaleable properties, to destroy them. It is often used to purchase old, closed-down polluter-factory sites that cannot sell, the site then levelled and cleaned up, or even to purchase abandoned homes that have become crack houses, fire hazards, or other threats to the neighborhood, then tearing them down.

This is a whole new step, though, and seems to extend the "right" of land grab to any Friend of Bush who even pretends to make a case for corporate usurpation of citizen rights. This seems to be as big a "Supreme Court corporate personhood" case as the famous, original one that introduced that fiction, and just another step down that road where the corporate Republican approach to life will eventually replace everything else that ever existed. It is another example of capitalist interests riding in surreptitiously on previously available language.

Despite some snide, DLC-style posts on this thread confusing some of the issues, I think we will eventually realize that everything that was allowed to happen during this neo-con Republican era, was a nightmare and a disaster, no matter how it was packaged.

[dzugashvili]

36. flexibility for gov't on land use

The net effect of this may be an opportunity for local gov'ts to clear up problem areas and bring in development.

I would think that things that create jobs would be a plus.

raze a crack house and put in productive stuff.

I would presume that voters have some control over their gov't (local variety) and would work to improve their local economy.

Yosip

[Hidden Stillness]

37. Hi, Plant!

You are confusing the issue (deliberately, "1 Post"?). Governments already had the ability before this new decision to purchase land, buildings, etc., and raze them for the public good. This new decision extends the presumptive "right" to confiscate property from individuals, now, to corporations and commercial/moneymaking interests. This is unheard of, and unfathomable. The idea that "voters" would have some control over their own local governments and could therefore overturn a Federal/national Supreme Court decision is incoherent. Re-read your RNC Talking Points--this one didn't turn out right. .."Create jobs.."? What?

[AirAmFan]

38. 130 posts aren't very many either.

[dzugashvili]

39. not plant just bin lurkin for a bit.

Hidden,

It just seem to me after (extend lurking) that the general tenor of DU is that Gov't has in effect all the answers or gov't is the answer.

All this does is gives local gov't a bit more leverage.

One presumes that informed voters would address the more vile aspects of this with their elected representatives.

I've shipped off missives to fed reps and my state reps asking for

specificly

alter the fed court rules to forbid ED on for profit ventures.
(congress can set fed court rules and jurisdictions)

the takings clause historicaly was for public use. not for profit

a long term view of this (if it stands) will be drastic shake outs in the real estate markets as it goes from the 'greater fool' auction market to 'at what price point will a developer decide it is easier to buy a planning and zoning commission (see San Deigo's new sporting complex) than buy out parcel at a time the area they want'.

I asked my state mis reptile to sponsor state legislation to specifily forbid ED on for profit projects for the reasons listed above.

again trying to avoid getting banned (again)

when you poist gov't as the solution/'living document' interpretations of the constution you will get bs decisions like this one.

Carl Drega may only have been a bit of a leading indicator.

Yosip