(no subject)

[tagryn]

Kerry Country (via Rand Simberg) has a good take on the Kelo-New London SCOTUS ruling that municipalities may use eminent domain to sieze private property for economic development reasons alone:

This has to be a godsend for towns and cities that have been stymied so far in their attempts to shut-down any businesses, corporations, or private groups of which they disapprove. Private gun ranges, airfields, RV tracts, hunting preserves, fishing resources, minority religious congregations, newspapers -- all are now fair targets for seizure and closure "for the economic benefit of the people."

There's a little glimmer of hope in what Kennedy wrote in his opinion. Still, as Hold the Mayo says, starting today you no longer own a house or property; you're just temporarily occupying it until such time as developers decide they want to have the local government take it.

I note that the five justices ruling for the expanded eminent domain were Stevens, Kennedy, Souter, Ginsburg and Breyer, while Scalia, Thomas, O'Connor, and Rehnquist were dissenting. Sorry, but this one can't be blamed on the conservatives - this was done by the "moderates" of the court, God help us.

Comments

[erikred.livejournal.com]

This decision really boggles my mind, and I can't think of anything to support it.

That said, I'd like to point you (and other faithful readers out there) to a PDF version of the Connecticut State Supreme Court's decision on the appeal:
http://csua.org/u/che (300k)
(This is LONG, and I'm not going to summarize. It bears reading, as the appellants' challenge has a lot to do with interpretation of the phrasing of state law.)

And the large number of documents filed on the SCOTUS case:
http://csua.org/u/chf (Findlaw.com)

The slimmest possible defense of the SCOTUS decision (and the CT State SC decision) may be that the appellants based their appeal on language designed to make ANY use eminent domain unlawful; I'm not sure that this is true, but it does bear looking into.

Still, support of eminent domain based on economic development is an astoundingly bad idea as it is open to the sort of abuse usually reserved to military juntas in failed African states.

[tagryn]

Thanks for the links. Reading the SCOTUS brief, I don't find a lot of support for the position that it was designed to nullify all forms of eminent domain, just for cases not designed to counter "blight". Not sure where that would leave more 'traditional' uses of ED such as for building highways, but I don't get the impression that whole law of ED was what was being targeted.

I don't understand all of the specific legalese involved, but I agree that it seems like ConnSCT summary has a lot of material on exactly what phrases in the law are interpreted as meaning. That's probably par for the course at that level.

Something else I read in another blog: add abortion clinics to the list of possible "undesirables" which could be a target for this, should the local gov'ts be so inclined.

I think its important to keep in mind there's always a temptation to overreact when guessing exactly how particular rulings will play out in the real world. This ruling could spark a reaction in the legislative branch to counter any significant abuses of this, or the Supreme Court could overturn it once the court's composition changes. We just have to hope the worst doesn't happen in the time it'll take to undo this.

[erikred.livejournal.com]

Your words of caution concerning overreaction are well-said. A recent post I read suggests that a number of states have already enacted self-limiting legislation concerning eminent domain that would preclude this sort of thing from ever happening. California is certainly not one of them.

California

[tagryn]

Yup. Justice Stevens' opinion of the court included this:

"We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised."