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Ben Barros on O'Connor, Midkiff, and Kelo:

Intersting post by Ben Barros looks at the SCOTUS conference notes on Midkiff and Justice O'Connor's effort to retreat in Kelo from the sweeping language she used there. An excerpt:

In light of the recent furor over Kelo v. New London, Justice O'Connor's opinion in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), seemed like a good place to start. Midkiff was the Court's leading pre-Kelo statement on the meaning of "public use" in the eminent domain context. The Court's thought-process in Midkiff is interesting because Justice O'Connor's opinion for a unanimous Court articulates a broad conception of public use that O'Connor later came to regret in Kelo.

***

Justice O'Connor came to regret the broad language of Midkiff, noting in her Kelo dissent that "There is a sense in which this troubling result follows from errant language in Berman and Midkiff. . . . [W]e said in Midkiff that '[t]he "public use" requirement is coterminous with the scope of a sovereign's police powers.' This language was unnecessary to the specific holdings of those decisions." I will address the rest of Justice O'Connor's dissent in a future post, but this particular statement rings very true. The broad concepts articulated in Berman, and strongly reinforced in Midkiff, arguably mandated the result in Kelo. Had Midkiff in fact been decided in a narrow fashion based on its unique facts (among other things, unlike most exercises of eminent domain, it did not displace the people in possession of the homes being taken), Kelo may have come out differently. Or it may have come out as it did, but Justice O'Connor's dissent wouldn't have been weakened by the need to eat her own words.

Midkiff therefore contains a moral that the Justices and their clerks would do well to heed -- the full consequences of grand statements of principle are rarely clear when articulated. They therefore should be used with great caution, because they might come back to bite you.

The most amusing hypothesis that I have heard to explain O'Connor's "evolution" from Midkiff to Kelo is that she knew she was retiring at the end of this term, and Kelo represented her transition from Washington beltway cocktail parties to Arizona ranchers cocktail parties so she wanted to make sure that her personal popularity remained intact with the relevant constituencies. Talk about legal realism!

Nobody Special:
I assume that by "Arizona ranchers cocktail parties" you mean "Arizona ranchers ice chest full of bud light" parties.
10.12.2005 11:57am
Dave Hardy (mail) (www):
1. At Arizona rancerhs' parties, Bud Light is for wussies.
2. I'm now trying to work around another of O'Connor's lapses into overly broad languge. In the McConnell case, dealing with campaign finance and ads, she rejected a facial challenge to one definition and unfortunately stated "we uphold the definition in all its applications." Most likely, the reference was to the fact that the definition is applied in three different sections of the statute. Some commentators, and a 3 judge court (from whose ruling the Supremes just noted prob. jurisdiction) have, however, read that to rule out any future as-applied challenge. That is, read the opinion as binding regarding facts not before the Court and utterly unforeseeable by the Court.
10.12.2005 12:06pm
Gordon (mail):
Actually, in Arizona they would still be cocktail parties, except that the attendees would be Phoenix Republican elites and all the men would be wearing bolo ties.

There aren't many real ranchers like Harry Day left in Arizona.
10.12.2005 12:23pm
Marcus1:
I'd say that in Midkiff she probably liked the government purpose, and in Kelo she didn't. I like the cocktail party explanation though.

A question, if I may: I just read through Midkiff, which I haven't looked at in a couple years. It seems to say that the public use requirement began with Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403 (1896). So I looked that case up, and was interested to see that it apparently rested not on the eminent domain clause, but on Due Process grounds:

"The taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the fourteenth article of amendment of the constitution of the United States."

Is that right? Did the court at some point just switch its rationale? Is this well known?
10.12.2005 12:36pm
Thorley Winston (mail) (www):
I'd say that in Midkiff she probably liked the government purpose, and in Kelo she didn't.


There's probably more than a grain of truth to that. In Midkiff the government purpose was "land reform" to force an oligopoly of landowners to sell property to tenants who might not otherwise have been able to afford it. In Kelo, it was to take the property of a middle class family to give it to a private corporation for purposes of economic development. Some day people will learn that when you say it's okay to use the force of government to steal from the "wealthy," you're paving the way for the day when governmental force can be used to steal from you.
10.12.2005 12:54pm
Ben Barros (mail):
Marcus, cases from that era (including Mahon) tend to talk about takings as substantive due process violations, not as violations of the JCC. Part of the problem is incorporation -- it wasn't tremendously clear in that era that the JCC applied to the states. It is interesting to note that O'Connor wrote Lingle v. Chevron last term, which stands for the proposition that takings and due process analyses shouldn't be mixed. SDP analysis got mixed up with takings in part because more modern takings cases cite the early SDP cases without thinking about whether the Court was asking exactly the same questions.
10.12.2005 12:56pm
Nunzio (mail):
Marcus,

Maybe that case had to do with the embarrasing fact that the 14th Amendment doesn't have a takings clause (just like the 5th Amendment doesn't have an equal protection clause). So even in Kelo and Midkiff, the technical textual basis would have to be the "life, liberty and property" without due process of law clause from the 14th Amendment interpreted to mean can't have an uncompensated taking and the taking must be for "public use." Just as Bolling v. Sharpe was a "life, liberty and property" without due process of law clause interpreted to ban racial segregation.

Kelo (or any of them) would have been an easy case for a strict textualist. As long as the gov't body passed a law before taking your property, no Constitutional violation.
10.12.2005 12:59pm
cfw (mail):
"Some day people will learn that when you say it's okay to use the force of government to steal from the "wealthy," you're paving the way for the day when governmental force can be used to steal from you."

Change "steal" to "buy at fair market value, decided by a jury" and I agree. As written, this is rhetoric without substance, yes?
10.12.2005 1:41pm
Thorley Winston (mail) (www):
Change "steal" to "buy at fair market value, decided by a jury" and I agree. As written, this is rhetoric without substance, yes?


Um no it's not. What constitutes "fair market value" is determined by markets where buyer and seller mutually agree on a price not when one party is forced to "sell" against their consent. But thanks for playing.
10.12.2005 2:07pm
Shelby (mail):
Some day people will learn

Alas, no they won't.
10.12.2005 2:23pm
NickM (mail) (www):
The Fifth Amendment's Takings Clause contains no inherent limitation of its reach to only federal takings. True textualism applies its restrictions to every level of government without the need for incorporation by any other provision of the Constitution or Amendments thereto.

Nick
10.12.2005 2:32pm
Penta:
Thorley (and others): Midkiff had to be decided in the State's favor.

I don't think the owners would have given up the land, period. They knew full well that *nobody* would be able to afford the fair market value.

However, I do think that anything involving land in Hawaii necessarily doesn't really apply to anywhere on the Mainland, for the simple reason that there's nowhere else that there's such an extreme scarcity of usable land (and massive amount of historical baggage) as there is in Hawaii (and particularly on Oahu).

Keep in mind that for most purposes, the only really usable island in the islands is Oahu. Hawaii has Kilauea destroying property wherever the lava decides to flow; Maui is too small for most people to afford. Lanai is too remote.

Which leaves (since the other islands aren't really inhabited) Oahu.
10.12.2005 3:46pm
Harpo:
Some day people will learn that when you say it's okay to use the force of government to steal from the "wealthy," you're paving the way for the day when governmental force can be used to steal from you.

Corporate welfare is a hardly a neoteric concept.

Certainly not for Republicans.
10.12.2005 4:05pm
Gordon (mail):
Thorley Winston says:


Um no it's not. What constitutes "fair market value" is determined by markets where buyer and seller mutually agree on a price not when one party is forced to "sell" against their consent. But thanks for playing.



If that's your objection, then you must object to ANY eminent domain actions, even if it is for a legitimate public purpose such as a highway

And, by the way, snotty condescension doesn't win arguments.
10.12.2005 4:22pm
yclipse (mail):
If the "Arizona ranchers" hypothesis is true, that is just as appalling as the jurors who found in favor of the plaintiff in the first Vioxx in order, reportedly, to ensure that they would be invited to appear on Oprah.
10.13.2005 8:36am
corngrower:
Gordon

Yes the fair market value is the agreed to price between buyer and seller. Thats it, there is no other deffinition.

Emminent domain? Yes. But, The Kelo ruling changed the words 'for public use' to 'for public good'.

You are just wrong. there is only one way to determime what fair market value is. The market. Take market out of that three word statement is ceases to have meaning.
10.13.2005 12:52pm
corngrower:
Penta

How do you veiw the Constitution as a geographicale document? Last I checked all 50 states were involved. How do you make a difference, on a constitutional basis, between Kelo vs Wyoming? Just a question.
10.13.2005 1:02pm
Penta:
Corngrower:

A valid question.

I don't. However, I don't think that a decision made on Hawaii land use has much applicability anywhere else in the US, even as precedent.

Why?

1. Look at the linked post.

For several historical reasons, land ownership in Hawaii was unusually concentrated. On Oahu, for example, 22 landowners owned 72.5% of the fee simple titles. Many of these landowners were hesitant to sell parcels of their property because of potentially large federal tax liabilities. The result was that most people leased, rather than owned, their homes.


For those who don't know (not necessarily you, corngrower), fee simple titles are complete ownership of the subject of the title, typically land. There are no restrictions in the title to land use. Most commonly used form of title, so its synonymous w/ land ownership.

So, 22 people own 72.5% of the land on Oahu. That does not happen anywhere else in the US.

Now, that means that most people on Oahu, and hence in Hawaii, leased their homes.

It may be a 99-year lease, but it is still a lease.

When you lease your home, you cannot mortgage it. You cannot use it as collateral.

Your continued occupancy of it may even be in question, long-term.

2. Why does all that matter?

Because most people have the vast majority of their assets in their home. Actually, their home is the vast majority of their assets.

If you do not own your home, you have very little in assets. Which means that things like credit are difficult to get, if not impossible. (Most lenders require you to own your home.)

If nobody owns their home, and can *never conceivably* own it (recall that due to tax liabilities, the landowners were unlikely at best to sell), you've just created a near-permanent underclass.

That is a security issue.

Land tenure is a cause of revolutions, most spectacularly in Latin America, which had the same concentration of ownership.

Additionally, the reality that most people had few assets to their name basically put a roadblock on Hawaii's economic development.

3. Why is that unique and not applicable to Hawaii?

This is a situation that doesn't exist in the rest of the US.

In the other 49 states, land is much more widely owned. Also, in most cases, all of the land is potentially usable; We just choose not to use it.

Neither applied in Hawaii pre-Midkiff.

The second, due to geographic and similar factors, still does not.
10.15.2005 2:12pm
corngrower:
Hi penta

All of your points are well reasoned. It's just that the Constitution adresses not a single one of your points.

SCOTUS can (should) only apply statute in reference to the Constitution. And even though the points you raise are all valid, it would be impossible for a state to write a statute that would allow what SCOTUS did, to do.

While I do not doubt your numbers on land ownership the same could be said of areas of greater size on the mainland. there areas that are larger in area and controlled by only one land owner. That one landowner would be Uncle Sam

So the rules (laws) would also apply?
10.17.2005 11:40am
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10.25.2005 7:13am