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Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case:

Didden v. Village of Port Chester is potentially the most important federal public use eminent domain case since Kelo v. City of New London.

I recently coauthored an amicus brief on behalf of myself and seven other legal scholars specializing in property and eminent domain, urging the Supreme Court to hear this case. The brief is available here. Among the signatories are Richard Epstein (University of Chicago), Jim Ely (Vanderbilt), Viet Dinh (Georgetown), Ben Barros (Widener); Eric Claeys (St. Louis University); Adam Mossoff (Michigan State); and my colleague Steve Eagle. Here is a brief description of the facts:

[T]wo Port Chester [New York] property owners joined with the Institute for Justice (the public-interest law firm that litigated the Kelo case) to ask the Supreme Court to look again at the issue of eminent domain abuse and ensure that lower courts do not read Kelo to completely eliminate judicial review. The case illustrates the dangerous results of the Kelo decision and asks what should be an easy question: Does the Constitution prevent governments from taking property through eminent domain simply because the property owners refused to pay off a private developer?

In 2003, private developer [Gregg Wasser] approached Bart Didden and Domenick Bologna with a modest proposal: they could either pay him $800,000 or give him a 50 percent interest in their proposed business, or he would cause the Village of Port Chester to take their property from them through eminent domain. Outraged, they refused. The Village condemned their property the very next day.

Bart and Domenick filed suit in federal court, arguing that the taking violated the Fifth Amendment of the U.S. Constitution, which only allows property to be taken for a "public use." Shockingly, the trial court threw out their case, and the Second Circuit agreed. Because their property lay within a "redevelopment area," a region the Village had designated as subject to its eminent domain power, the Constitution didn't protect them from condemnation, even though they had alleged that they were condemned solely because they resisted the developer's attempted extortion....

"What the developer and Village of Port Chester did is nothing short of government-backed extortion," said Didden. "I had an agreement to develop a pharmacy, a plan fully approved by the Village, and in the eleventh hour I was told that I must either bring this developer in as a 50/50 partner or pay him $800,000 to go away. If I didn't, the City would condemn my property through eminent domain for him to put up a pharmacy. What else can you call that but extortion? I hope the Supreme Court sets things right."

The crucial legal issue involves an ambiguity in Kelo. It's not clear whether or not Kelo permits pretextual condemnations within "redevelopment areas." Kelo held that condemnations for "economic development" purposes should get nearly absolute deference from judges so long as they are part of an "integrated development plan;" moreover, courts are not supposed to "second guess" the quality of the plan, so even very poor plans that have little chance of achieving their objectives and blatantly favor private interests can still immunize condemnations from challenge. However, Kelo also emphasized that "pretextual" takings - where the stated public interest rationale is just a cover for the true purpose of benefiting a "private party" - are still forbidden. In an important concurring opinion to the 5-4 decision, Justice Kennedy called for heightened judicial scrutiny of condemnations where there is a legitimate suspicion of "favoritism" towards a private party.

It's hard to find a more blatant example of pretextual condemnation and "favoritism than the Didden case. The plaintiffs' property was only condemned because they refused to pay $800,000 to Wasser. Had they given in to Wasser's threats and paid him the money, there would have been no public benefit, because the money would have gone into Wasser's pocket, not the Village treasury. Moreover, Wasser's planned use for the property - building a Walgreens pharmacy - is almost exactly the same as the current owners (who plan to open a CVS). So there is no potential economic gain to the community from transferring the land to Wasser; indeed, the area's taxpayers will be net losers because they will have to foot the bill for the condemnation. Nonetheless, the condemnation did occur within a designated "redevelopment area," so the Second Circuit Court of Appeals held that it is immunized from legal challenge under Kelo.

In our amicus brief, the other property professors and I argue that Kelo should not be interpreted as a blank check for pretextual takings in redevelopment areas. Otherwise, private interests across the country could follow Wasser's example and use the establishment of redevelopment areas as a tool to extort money from area property owners. There are hundreds, if not thousands, of redevelopment areas around the country, so there is a great deal of potential for abuse if the Second Circuit's approach to this issue prevails.

Even if the Supreme Court reverses Didden, it will eliminate only some of the most blatant cases of eminent domain abuse. Kelo and most of the harmful takings it authorized would still continue in place. However, overruling Didden would still be an important step forward in combatting blatantly pretextual takings.

CONFLICT OF INTEREST WATCH: The property owners in this case are represented by the Institute for Justice, the libertarian public interest law firm that also represented the New London property owners in Kelo. As I have mentioned on this blog in the past, I worked for IJ as a summer law clerk in 1998 and have done several pro bono amicus brief projects for them since then.

UPDATE: In addition to the professors who signed on to the brief, I would also like to recognize the contributions of Nazish Agha of Cadwalader, Wickersham & Taft, who helped prepare the brief and also arranged for her firm to finance the printing and filing of the brief as a pro bono project. As experienced appellate lawyers know, it costs a good deal of money to print and file a Supreme Court brief, so CWT's assistance was extremely helpful.

Related Posts (on one page):

  1. Your Money or Your Land II - The Pacific Legal Foundation Amicus Brief in Didden v. Village of Port Chester:
  2. Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case:
David Matthews (mail):
"What else can you call that but extortion?"

These are the sort of cases that frustrate us non-lawyers no end. I can't even imagine this sort of thing happening in any but the most corrupt countries in the world, and even in those countries there would be no one to pretend that it is ethical.

In fact, I actually saw a similar situation in Cameroun (perennially on the list of most corrupt countries in the world) in about 1996, where the attempted extortion was blocked once it was brought to light. And that's fricking Cameroun. How can it even be possible that this is a Supreme Court issue in the United States?

You may be loathe to admit it, Ilya, but you're doing the Lord's work. Property rights, especially ones as elementary as this case appears, are an area that needs serious fixing. Do well.
12.8.2006 8:30pm
Stacy (mail):
Two things:

1.) I don't see the connection to Kelo here. My understanding of the ruling (as distinguished from my opinion of it) is that it leaves it up to local government to determine what "public interest" means in the context of eminent domain. If they decide it means increasing the tax base, that's their (and the voters') call.

2.) I would think that extortion is extortion, regardless of the context in which it takes place. The plaintiffs ought to have an action on that basis, not to mention the apparant collusion between the developer and the government.
12.8.2006 9:11pm
David Sucher (mail) (www):
"The plaintiffs' property was only condemned because they refused to pay $800,000 to Wasser."

That is undisputed as a fact? I don't actually doubt it but I would be curious to hear Mr. Wasser's spin.

Do you have any links to reports which support the reality of such an outrageous action?
12.8.2006 9:16pm
John Noble (mail):
<blockquote>I was told that I must either bring this developer in as a 50/50 partner or pay him $800,000 to go away. If I didn’t, the City would condemn my property through eminent domain for him to put up a pharmacy. What else can you call that but extortion?</blockquote>

I wouldn't call it anything but extortion. I sure wouldn't call it an occasion to substitute the Court's judgment for the legislature's judgment as to whether the property's redevelopment would serve the public interest -- at least not without knowing more about whether and how the developer made the legislature do his bidding in less than 24 hours. I'll have to go back to the trial court and 2d Cir. opinion for a fuller account, but it looks an awful lot like the developer got wind of the imminent taking, and showed up looking for a half-interest in the windfall that the owner was about to extract as just compensation, having (coincidentally?) planned his own development of the property for the very same highest and best use envisioned by the village. Of course, if the property owner gave the developer his 50% or $800K, he wouldn't have been in any position to complain about the failure of his own attempted corruption of public officials when the taking went ahead as planned the next morning. (If the developer really pulled it off overnight, and it wasn't on the agenda for the next day's village council meeting, there's probably a due process claim based wholesale violations of the village charter provisions governing notice of legislative acts. And if the developer had the taking wired, why would he expose himself on the eve of success to the kind of official corruption charge that makes an ambitious DA's or AUSA's mouth water. This doesn't sound cert-worthy unless there's fuller record than Prof. Somin's brief description suggests.)

But on the facts presented, without more, you sure do have extortion, and that's a predicate crime under RICO, which gets you a conspiracy claim against the developer and the public officials he appears to be in cahoots with for treble damages (3 x FMV?).

John Noble
12.8.2006 9:18pm
Glenn W. Bowen (mail):
In NY, the person whose property is condemned rarely knows about it until it's too late. A notice is placed in a newspaper- where the "I'm no longer responsible for the debts of-" ads are. The newspaper doesn't have to be local to the property or it's owner. The owner finds out when he is served. His recourse is to take it to court within a certain amount of time. For practical purposes, the owner is always served after the deadline has passed.

The utter dishonestness and chicanery of this process has been run through the NY courts before, and the courts have always found for the governments, state and local.

As far as I can recollect.

The persons cited in the article were at least lucky enough to know it was going to happen, even by means of a thug extorting them.
12.8.2006 9:24pm
Ilya Somin:
"The plaintiffs' property was only condemned because they refused to pay $800,000 to Wasser."

That is undisputed as a fact? I don't actually doubt it but I would be curious to hear Mr. Wasser's spin.


My understanding is that it is undisputed. However, the legal rule is that it has to be assumed as true at this stage of the litigation (a motion to dismiss). In such situations, the Federal Rules of Civil Procedure require that all possible factual inferences be made in favor of the party that is trying to take the case to trial.
12.8.2006 10:07pm
arbitraryaardvark (mail) (www):
It costs a good deal of money to print and file a Supreme Court brief
Not to hijack the important kelo-related post, but I've had that problem before of having a cert-worthy case, no paying client, and trouble complying with the printing format. Is there a low cost provider of printing supreme court briefs, maybe just for pro bono type cases? It would be a good market niche, either for an entrepreneur or as an open source project.
12.8.2006 10:43pm
Hans Bader (mail):
By permitting pretextual takings as long as a hypothetical (rather than actual) valid public purpose is advanced by a taking, the Second Circuit has construed the public-use provision of the Takings Clause (and the Kelo decision) so broadly as to be absurd.

Its interpretation flouts longstanding principles of constitutional interpretation by interpreting the constitution’s public-use requirement as adding nothing to what other provisions of the constitution, such as the due process and equal protection clauses, already require (since those provisions, under rational basis review, already require that any government action serve a hypothetical valid public purpose).

But as the Supreme Court pointed out in one of its most famous rulings, Marbury v. Madison (1803), no “clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible unless the words require it.”

(Kelo itself came close to making the public-use clause duplicative of the due process and equal protection clauses, and thus meaningless, but the Second Circuit goes even further to make it entirely duplicative, and thus absolutely meaningless).
12.8.2006 10:57pm
Ilya Somin:
Is there a low cost provider of printing supreme court briefs, maybe just for pro bono type cases? It would be a good market niche, either for an entrepreneur or as an open source project.

I wish I could help you here, but I don't think I can. I have worked with a couple different printers in the past, but in each case it cost $1000-1500. In both cases (including this one) I had outside funding for the printing costs. Otherwise, I might not have been able to do it.
12.8.2006 11:02pm
Richard Riley (mail):
I second David Sucher's point even with Ilya's explanation. It would be nice to see some actual findings of fact on a full record as opposed to deemed admissions in a motion to dismiss context, since the facts are so crucial on this "pretextual taking" question. Is it really true that Wasser admits acting in a way that seems so close to criminal or at least tortious extortion?
12.8.2006 11:30pm
John Noble (mail):
As to whether the extortion demand was disputed, it's fair to say that the same facts might be recharacterized as an offer by the developer to give the incumbent property owner a 50% participation in the redevelopment of his property for $800,000. The Second Circuit's opinion throws a different light on the facts, and it's short enough, I hope, to provide here for the benefit of the non-lawyers amongst us:

**1 Plaintiffs-Appellants appeal from a May 24, 2004 decision and order of the United States District Court for the Southern District of New York (Colleen McMahon, J.) dismissing their complaint alleging various constitutional violations under 42 U.S.C. § 1983 against the Village of Port Chester and others. We assume the parties' familiarity with the facts and procedural history in this case. We review the District Court's decision to grant a motion to dismiss a complaint pursuant to Fed.R.Civ.P. 12(b)(6) de novo. Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002).

In April 1998, Defendant-Appellee G &S Port Chester, LLC, (“G &S”), entered into a development agreement with Defendant-Appellee Village of Port Chester that named G &S as the designated developer of a marina redevelopment project. On July 14, 1999, after a public hearing, the Defendant-Appellee Village Board of Trustees adopted a resolution in which it made a finding of public purpose for condemnation of the properties located in the redevelopment district. In March 2003, Appellants discussed with representatives of a pharmacy chain the possibility of constructing a pharmacy on their property. A portion of Appellants' property adjoined *933 the redevelopment district and another portion lay within the redevelopment district. According to Appellants, at a November 2003 negotiation session with Defendants-Appellees G &S and Wasser, Wasser demanded $800,000 from them in order to avert a condemnation proceeding of their property within the redevelopment district, and offered to allow them to proceed if Defendants-Appellees were given a partnership interest in the project. Appellants refused both demands and, two days later, they received a petition seeking to condemn their property. On appeal, Appellants advance constitutional claims based on the Fifth and Fourteenth Amendments asserting, inter alia, that they have a right “not to have their property taken by the State through the power of eminent domain for a private use, regardless of whether just compensation is given.”

[1] The statute of limitations applicable to § 1983 claims in New York is three years. Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004). “While state law supplies the statute of limitations for claims under § 1983, federal law determines when a federal claim accrues.” Connolly v. McCall, 254 F.3d 36, 41 (2d Cir.2001). Under federal law “a cause of action generally accrues ‘when the plaintiff knows or has reason to know of the injury that is the basis of the action.’ ” M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir.2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir.1993)). Appellants had reason to know of the basis of their injury when the Board announced its public purpose finding on July 14, 1999. Appellants, however, brought suit in January 2004, more than three years after the date their claims accrued, and thus their claims are time-barred. We reject Appellants' contention that their injury actually accrued in November 2003 when G &S and Wasser “first utilized their de facto eminent domain power against [them] in an effort to exact a cash payment or partnership interest” in the pharmacy project.

**2 [2] Moreover, even if Appellants' claims were not time-barred, to the extent that they assert that the Takings Clause prevents the State from condemning their property for a private use within a redevelopment district, regardless of whether they have been provided with just compensation, the recent Supreme Court decision in Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), obliges us to conclude that they have articulated no basis upon which relief can be granted. See id. at 2668 (“Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project.”); see also Rosenthal &Rosenthal Inc. v. New York State Urban Dev. Corp., 771 F.2d 44, 46 (2d Cir.1985). Finally, we agree with the district court that Appellees' voluntary attempts to resolve Appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.

The district court properly dismissed the complaint on the ground that the Appellants' claims are time-barred. Accordingly, the judgment of the district court is hereby AFFIRMED.
12.8.2006 11:41pm
David Matthews (mail):

"the same facts might be recharacterized as an offer by the developer to give the incumbent property owner a 50% participation in the redevelopment of his property for $800,000,"



or face confiscation of the property if he declines. Still sounds like an offer you can't refuse.


According to Appellants, at a November 2003 negotiation session with Defendants-Appellees G &S and Wasser, Wasser demanded $800,000 from them in order to avert a condemnation proceeding of their property within the redevelopment district, and offered to allow them to proceed if Defendants-Appellees were given a partnership interest in the project. Appellants refused both demands and, two days later, they received a petition seeking to condemn their property.


But to complicate matters, there is also the issue of the statute of limitations.



"Appellants had reason to know of the basis of their injury when the Board announced its public purpose finding on July 14, 1999."



I find that reasoning troubling, at a minimum. "You should have seen, at the 1999 meeting, that someone was already threatening to confiscate your property, so was quite possibly going to try to extort money from you, and acted to prevent the confiscation/extortion. The fact that the action occured in 2003 does not excuse you from failing to anticipate the action, and the statute of limitations applies to the time at which you should have foreseen the action, rather than the time at which the action occurred."
12.9.2006 12:09am
David Matthews (mail):
Oh, and:


Finally, we agree with the district court that Appellees' voluntary attempts to resolve Appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.

I guess it must be a constitutional exaction in the form of extortion. Because it's cleary some type of exaction in the form of extortion.
12.9.2006 12:32am
Ilya Somin:
As to whether the extortion demand was disputed, it's fair to say that the same facts might be recharacterized as an offer by the developer to give the incumbent property owner a 50% participation in the redevelopment of his property for $800,000.

Not true. There property was going to be "redeveloped" no matter what. Whether they continued to own the property or Wasser got it, a drugstore was going to be built. The condemnation merely transferred the ownership rights to the redevelopment from one private party to another. Second, Wasser and the Village had no right to take his property unless for a public use, and it's not a public use if the only reason for the taking is the refusal of Wasser's demand for money.

As for the statute of limitations issue, for those interested, it is addressed in Section I.D of our brief, in some detail. The key point is that the Village can't prevail on this issue unless they can also prevail on their substantive argument that the mere possiblity of condemnation for "development" (which was always that was known in 1999) is the same thing as the actuality of condemnation for refusing an extortionate demand for money by a private party (which did not happen until NOvember 2003, after which the owners filed an action almost immediately).
12.9.2006 12:33am
Ilya Somin:
It would be nice to see some actual findings of fact on a full record as opposed to deemed admissions in a motion to dismiss context,

The only way to get these findings is to overrule the Second Circuit's decision and allow the case to get past the motion to dismiss and go to trial. That is all the plaintiffs (and our amicus brief) ask for.
12.9.2006 12:35am
Ilya Somin:
it looks an awful lot like the developer got wind of the imminent taking, and showed up looking for a half-interest in the windfall that the owner was about to extract as just compensation, having (coincidentally?) planned his own development of the property for the very same highest and best use envisioned by the village.

No, there was no "coincidence." Wasser was the developer the Village hired to redevelop the area, and they essentially delegated the power of eminent domain in the redevelopment area to him.
12.9.2006 12:37am
Yosef Ibrahimi (mail):
I'm fairly anti-Kelo, and even admitting for the sake of argument that the legislature could validly deem this a public use, there has to be as John Noble noted toward the top of the thread a due process problem. The Supreme Court has required actual notice in all sorts of legal proceedings where the effected parties identities are known. I don't see how constructive notice by publication would be sufficient in this circumstance.

Furthermore, while deference should be accorded to legislative determinations of fact, the Court hasn't given any deference to clearly erroneous determination of facts on other issues. We don't have a robust record here since the district court 12(b)(6)'ed the case, but based on the information presented here it seems that Didden had a good chance of establishing an actionable claim. The 2d Cir. didn't mention due process at all. Did the attorney for Diddle forget to incorporate a due process violation into the claim? I can't think of any reason the 2d Cir. wouldn't take up the issue if it was briefed.
12.9.2006 12:41am
Ragerz (mail):
First of all, you shouldn't call it "eminent domain abuse" simply because you disagree with it. Or should I call this post an abuse?

Anyway, the idea that there should be a "public use" requirement mangles the Constitution. Were the founders to incompetant to say, "No property shall be taken, unless for public use and with just compensation" instead of saying, "nor shall private property be taken for public use, without just compensation." Are the founders really morons? I mean, weren't they smart enough to make a "public use requirement" explicit??

It is not exactly clear that this language was meant to be a license for the judiciary to invalidate takings it doesn't like. Indeed, I think the language here simply reflects the assumption that if the government takes the property, by definition it is for a public use. Who better represents the public, the legislature, or the Supreme Court?? The real "eminent domain abuse" is the Supreme Court aggrandizing itself and increasing its power by reading requirements into the Constitution based on the assumption that the Founders were too dumb to clearly say what they meant.

It is kind of like the Second Amendment. "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Do you think there is a "well regulated militia" requirement for the Second Amendment to mean anything, or is this merely a background language?? A well regulated militia is just background language. It is the "people" who have a right to bear arms, not merely militias.

Despite this, I agree that this particular case should be reviewed and overturned, if we are going to have a "public use" requirement. But only because I think that the Supreme Court should do motive inquiries to search for legislative pretext in the general case. That idea, from Marbury v. Madison, was a good one. To bad it hasn't been followed more consistently.
12.9.2006 12:58am
Ilya Somin:
Are the founders really morons? I mean, weren't they smart enough to make a "public use requirement" explicit??


Both the Founders at the time and every court decision since (including the Kelo majority, by the way) viewed this language as requiring a public use for a taking. Otherwise, you get the absurd result that takings for "private" use don't require compensation, while public uses do. Moreover, as regards state government takings, the relevant understanding is that of the Framers and ratifiers of the 14th Amendment in 1868 who incorporated the Bill of Rights against the states. At that, the language of the Fifth Amendment (and similar provisions in state constitutions) was even more clearly understood to forbid private takings than at the time of the Founding.
12.9.2006 1:10am
Dan Simon (mail) (www):
I'm a completely naive outsider to this whole debate, but it all seems rather bizarre to me. Why all the emphasis on "public use", which judges really shouldn't be asked to determine the validity of, rather than "just compensation", which is the kind of thing that judges have to determine all the time?

I can sort of understand the sentimental outrage at Kelo having her house taken away. But this guy's a developer out to make a buck on the property--presumably he'd be happy to walk away from it if offered what it was worth, no? And if he wasn't offered what it was worth, then wouldn't that have been unconstitutional even if it had been the Defense Department appropriating his land for a vital national security-related installation? (And if there's a mismatch between the Constitutional and commercial notions of "what the property's worth", then isn't that the problem--again, regardless of how justified the government's "public use" is or isn't?)

In other words, isn't it just the price we're haggling over here?
12.9.2006 1:10am
Ilya Somin:
I'm a completely naive outsider to this whole debate, but it all seems rather bizarre to me. Why all the emphasis on "public use", which judges really shouldn't be asked to determine the validity of, rather than "just compensation", which is the kind of thing that judges have to determine all the time?

It's a good question. Some scholars do indeed claim that instead of enforcing "public use" limitations, courts should just force the government to pay increased compensation. I answer this argument in great detail in this forthcoming article.

To greatly oversimplify, the key problems with the argument are 1) figuring out what is "just compensation" is actually just as complicated as figuring out what is a "public use," 2) there is a great danger of either undercompensating or overcompensating, because it's often impossible to know the right amount, and 3) Even setting the right level of compensation won't fully deter abusive or inefficient takings because the public officials who make the decision to condemn don't themselves pay the compensation costs, and monitoring by voters is often ineffective because the voters don't know what is going on.
12.9.2006 1:41am
nick:
...
12.9.2006 2:11am
Ragerz (mail):
"Both the Founders at the time ... this language as requiring a public use for a taking."

Which Founders? Do list them along with quotes.

By the way, I thought originalism has moved away from "original intent" to "original public meaning."

It seems highly unlikely that the Federal government transferring private property from private party A to private party B was a big concern for the Founders and state ratifiers. After all, the Federal government was one of limited and enumerated powers. Under which powers would it be necessary and proper to transfer title from one private party to another? During war? I just don't see this as a big concern for what is supposed to be a limited government of enumerated powers. There is a reason that the document doesn't use the simple word "unless" or "except," and it isn't because the Founders were incapable of clarity. So, I guess your thesis is that they really did intend this, they just weren't smart enough to express it. Is that supposed to be convincing. Are state ratifiers who depended on the actual language used in the Constitution instead of their ability to read minds, supposed to be tossed aside.

Your alternative horrible, that "private takings" don't require just compensation but "public takings" do is rendered invalid when we consider that ANY taking, is, by definition, for public use. There is no such thing as a "taking for private use."

I think we have to keep in mind what the most important protection for liberty was supposed to be in our Constitution. That is the right to vote. This is well illustrated by the Alien and Sedition Acts. The fact is, when you really need it, the Supreme Court is not going to save you.

We don't need the Supreme Court to save us. This is well illustrated by the various referendums and state statutes that have arisen in response to Kelo, limiting the power of eminent domain at the state level. That IS as it should be. What is wrong with different states having different rules? If some states end up with horrible urban blight, and others eliminate it, that tells us something. Why should the laboratory of democracy be eliminated??

You, are, of course, free to disagree. But I do have a problem with you using the term "abuse" to describe the position of those who disagree with you.
12.9.2006 3:03am
David M. Nieporent (www):
Your alternative horrible, that "private takings" don't require just compensation but "public takings" do is rendered invalid when we consider that ANY taking, is, by definition, for public use. There is no such thing as a "taking for private use."
Not only does that "definition" exist only in your mind, but if they really thought that this was obvious, it makes the words in the amendment completely superfluous. Why not just say, "Private property shall not be taken without just compensation"?

We don't need the Supreme Court to save us. This is well illustrated by the various referendums and state statutes that have arisen in response to Kelo, limiting the power of eminent domain at the state level. That IS as it should be. What is wrong with different states having different rules? If some states end up with horrible urban blight, and others eliminate it, that tells us something. Why should the laboratory of democracy be eliminated??
The only thing this "well illustrates" is how much less respect property rights have since 1848 than other rights do. Few people still argue that, for instance, the states should be free to experiment about how much Jim Crow we ought to have, or how severe the punishment -- execution, or merely torture -- ought to be for truthfully criticizing the government. But when it comes to whether people are entitled to keep their own property or whether a politically connected developer can get local government to take it and give to him, suddenly people want to let the states experiment.
12.9.2006 3:50am
John Thacker (mail):
It seems highly unlikely that the Federal government transferring private property from private party A to private party B was a big concern for the Founders and state ratifiers. After all, the Federal government was one of limited and enumerated powers. Under which powers would it be necessary and proper to transfer title from one private party to another? During war? I just don't see this as a big concern for what is supposed to be a limited government of enumerated powers.

It was highly unlikely that it was a big concern because it's highly likely that they considered it outside the powers of government and a violation of common law and unenumerated rights to take property other than for public use.

I agree that it's certainly not necessary and proper to transfer title for person A to person B. Yet you seem to think that it would be Consitutional to do so, because the imprimatur of the local government approving the action makes it a public use.
12.9.2006 10:18am
John Thacker (mail):
Your alternative horrible, that "private takings" don't require just compensation but "public takings" do is rendered invalid when we consider that ANY taking, is, by definition, for public use. There is no such thing as a "taking for private use."

By this logic, one might as well say that no lawfully approved punishment can be "cruel and unusual," since the very fact of it's passage by the legislature makes it "usual" and deemed reasonable and non-cruel for the crime for which it is imposed, and that thus "cruel and unusual" punishment is limited to jailers imposing punishments outside those specified in the law.
12.9.2006 10:21am
Hans Bader (mail):
Construing "public USE," as required by the Takings Clause, to mean any asserted "public PURPOSE" (hypothetical or actual), as Ragerz appears to do, renders the public use provision of the Takings Clause entirely duplicative, and without effect, since the due process and equal protection clauses have already been interpreted (under rational basis review) to require that any government action be related to a (hypothetical or actual) valid public purpose.

That interpretation flouts longstanding principles of constitutional interpretation by interpreting the constitution’s public-use requirement as adding nothing to what other provisions of the constitution, such as the due process and equal protection clauses, already require.

But as the Supreme Court pointed out in one of its most famous rulings, Marbury v. Madison (1803), no “clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible unless the words require it.”
12.9.2006 11:51am
Elliot123 (mail):
I am struck by the last sentence of Prof. Somin's original post:

"As experienced appellate lawyers know, it costs a good deal of money to print and file a Supreme Court brief,..."

Well, as an economist, I lack such experience and am curious as to what the costs are. I can understand the labor involved in researching and writing a brief. But printing and filing? Is the printing and filing anything more than a few Xerox runs, an envelope, and a postage stamp? I presume it isn't. Could someone explain?
12.9.2006 2:30pm
David M. Nieporent (www):
Elliot: Check out the rules here; specifically rules 24-26 and 29-34. Start with the simple number of copies one needs:

The petitioner or appellant shall file 40 copies of the brief on the merits

and then look at the requirements for what the appendix must contain.

Keep in mind that this isn't like getting the powerpoint presentation to look the way the boss wants it to look; the clerk can bounce papers that aren't properly prepared.
12.9.2006 3:55pm
dsesq67 (mail):
The entire disposition of this case is bizarre. If the public officials in Port Chester conspired with Wasser, as alleged, then if anything Didden and Bologna should have approached the prosecuting attorney's office with the allegations under a quo warranto action.

In addition, if Port Chester's corporate authorities acted as alleged, these acts would be criminal and not protected under their legislative immunity. The criminal bases could include sanctions under conspiracy, extortion, and possibly fraud.

Kelo's holding was simply a continuation of long standing federal eminent domain law originally announced in Berman. I have said and continue to say that the overreaction to it was much adieu about nothing. The Didden/Bologna matter is an isolated act and--as I think noted by someone above--it would be interesting to hear the other side's story. I do not think it would mark a watershed moment whereby electred local officials would use lawfully enacted redevelopment plans as "pretext" for criminal behavior of the type alleged here.

The legal ambiguity cited is nothing but a red herring to take another whack at getting a perhaps more friendly USSC, with Alito and Roberts on board, to overrule Kelo and thereby open to question Berman and its progeny. Justice Kennedy's comments regarding the use of a redevelopment plan as pretext for an eminent domain action designed to favor one private property owner over another is, to put it mildly, among the more obvious legal points and one that I think can readily be inferred from Justice Stevens' opinion.

Unfortunately, because this matter found its way up to the Second Circuit and the Second Circuit curiously used Kelo as a basis for its decision, this gives the Institute for Justice and other property rights absolutists a chance to collaterally attack Kelo with the hope of trigger its slow death through successive decisions.

We shall see.
12.9.2006 3:58pm
Ragerz (mail):
David M. Nieporent writes:

"Why not just say, 'Private property shall not be taken without just compensation'?"

Indeed, maybe the Second Amendment should say: "The right of the people to keep and bear arms, shall not be infringed." Instead of adding, "A well regulated militia, being necessary to the security of a free state." The Constitution does in fact include extraneous words reflecting background assumptions. Or do you advocate a "well regulate militia requirement." And if that, why not a "free state" and "security" requirement?

David writes:
"Few people still argue that, for instance, the states should be free to experiment about how much Jim Crow we ought to have, or how severe the punishment -- execution, or merely torture -- ought to be for truthfully criticizing the government."

Are you really comparing Jim Crow, murder, and torture with the taking of property?? Last time I checked, the government was never able to torture or murder you for "public use" as long as it provided just compensation. So, I guess life has ALWAYS been considered above property, because the government has always been able to take property with just compensation. Anyway, comparing property rights with basic human rights is just plain ridiculous. There is a hiearchy here. Always has been.
12.9.2006 4:01pm
Ragerz (mail):
John Thacker nicely concedes my point that a "public use" requirement should not be read into the 5th Amendment. He writes:

"It was highly unlikely that it was a big concern because it's highly likely that they considered it outside the powers of government."

"Yet you seem to think that it would be Consitutional to do so, because the imprimatur of the local government approving the action makes it a public use."

Guess what, the 5th Amendment, like the entire Bill of Rights, was originally meant to apply to the Federal Government, not the states. Having agreed that a "public use" requirement would not be on the minds of those who ratified the 5th Amendment, you have made the case for why a "public use requirement" should not be applied against the states. Or are you going to not only apply the Bill of Rights to the states, but then change from it's original meaning also??

"[A] violation of common law and unenumerated rights to take property other than for public use."

If you all want to admit that the "pubic use requirement" comes from the 9th Amendment rather than the 5th Amendment, I will be perfectly satisfied. Thanks for the license to read my own favorite set of rights into the Constitution.
12.9.2006 4:11pm
Ragerz (mail):
Thacker writes:

"[S]ince the very fact of it's passage by the legislature makes it 'usual'"

That makes no sense. Legislatures are elected by the public. There acts can be said to reflect the public will and they pass laws concerning the public. That doesn't mean that when they do things that haven't been done before, that the adjective "unusual" cannot be applied.
12.9.2006 4:15pm
Ragerz (mail):
Hans Bader writes:

"But as the Supreme Court pointed out in one of its most famous rulings, Marbury v. Madison (1803), no 'clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible unless the words require it.'" (emphasis added by me).

The three words, "for public use" do not constitute a clause. In Marbury v. Madison, the clause that Marshall insisted on giving meaning to was the following: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."

Indeed, in Marbury v. Madison, rather than having an obsession with individual words, Marshall actually misquotes the Constitution.

From Marbury v. Madison:

In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction."


But what Article III actually says is this:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction...



Far from an obsession with the idea that every word must change the meaning of the document as a whole, this quote indicates that Marshall was instead interested in overall meaning. In his incorrect quote of the Constitution's language, the words "before mentioned" are left out entirely. Clearly, Marshall does not think that these particular words are critical to the meaning of the Constitution. Indeed, if these words had been omitted, it would not change the meaning of Article III. So, yes, Marshall insists on giving every clause some sort of meaning. But clearly, not every word.

Guess what, Marbury v. Madison does not support you. In fact, just the opposite.
12.9.2006 4:50pm
Ragerz (mail):
I am curious what meaning Hans Bader thinks should be attached to the following language:

"A well regulated militia, being necessary to the security of a free state..."
12.9.2006 4:58pm
Mark Field (mail):
The words "privileges and immunities" don't seem to have much meaning either. Nor do the 9th and 10th Amendments.
12.9.2006 5:47pm
Dan Cole (mail):
The 2d Circuit's opinion in this case is so analytically weak as to constitute judicial negligence. The court may (or may not) be right on the statute of limitations issue, but its conclusion under Kelo is supported by a single, ambiguous quote from that case. And its conclusion that the case did not involve an attempted exaction or extortion is supported by no analysis at all. Given the lack of analysis, it seems to me that a petition for rehearing en banc would be in order before a petition for certiorari.
12.9.2006 5:56pm
Dan Cole (mail):
One more interesting point about Didden for fans of public choice theory: the three judge panel included Sotomayor, a Clinton appointee (although George HW Bush first appointed her to the federal district court), Raggi, a Regan appointee, and Hall, a George W. Bush appointee.

Why would such a panel render such an analytically skimpy ruling in a post-Kelo case, particularly in the present climate of post-Kelo scrutiny of eminent domain cases? I am not a fan of conspiracy theories, but I cannot help wondering whether the judges might have intentionally issued a bizarrely under-analyzed opinion in order to give the Supreme Court a quick second bite at the Kelo apple. Just a thought.
12.9.2006 6:22pm
Tom Holsinger (mail):
The facts here show a possible RICO pattern (predicate act of extortion - 18 USC 1951). I suspect that the developer and public entity here have engaged in other similar acts such that the petitioners' counsel might be liable for malpractice if he/she/they have not included an 18 USC 1961 civil RICO claim with their adminstrative mandamus petition. That would win the petitioners treble attorney fees (the mandamus attorney fees as business damages, then trebled) if the taking is overturned.
12.9.2006 7:32pm
JonC:
Dan Cole: Judge Raggi is a George W. Bush appointee to the 2d Circuit, although she was originally appointed to the district court by Reagan.

I don't see what kind of inferences you can draw about the opinion based on the makeup of the panel; my guess is that the panel probably just didn't think the matter was worthy of a long-winded disposition, given that A) the Supreme Court in Kelo made clear, at length, which way the wind is blowing on this issue, and B) as someone suggested above, it seems likely that under current precedent (no matter how erroneous) that this was a matter for the criminal courts to sort out. And I say that having great sympathy for the petitioner's argument.
12.10.2006 10:44am
John Noble (mail):
As to whether the extortion demand was disputed, it's fair to say that the same facts might be recharacterized as an offer by the developer to give the incumbent property owner a 50% participation in the redevelopment of his property for $800,000.

Not true. There property was going to be "redeveloped" no matter what. Whether they continued to own the property or Wasser got it, a drugstore was going to be built. The condemnation merely transferred the ownership rights to the redevelopment from one private party to another.
...

"Merely"? Title to the property and control of the redevelopment is pretty significant in the context. You say a drugstore was going to be built "no matter what," but the only evidence we have is that "Appellants discussed with representatives of a pharmacy chain the possibility of constructing a pharmacy on their property." Indeed, it's unlikely that anyone but Wasser could obtain financing for the construction of a pharmacy so long as the property was within the designated redevelopment district and subject to taking by eminent domain at the apparent drop of a hat.

Second, Wasser and the Village had no right to take his property unless for a public use, and it's not a public use if the only reason for the taking is the refusal of Wasser's demand for money...

The public use is to build a pharmacy. The taking is required to give the village the ability to enforce the commitment to build a pharamacy. The typical objection to FMV as just compensation is that it denies the property owner the profit potential of the highest and best use -- the public use that justifies the taking. Whether or not the numbers are fair in the particular circumstances, the offer of a participation interest in lieu of a one-time cash payment is a creative approach that isn't obviously as heinous as it's portrayed.
12.10.2006 9:51pm
Dan Simon (mail) (www):
To greatly oversimplify, the key problems with the argument are 1) figuring out what is "just compensation" is actually just as complicated as figuring out what is a "public use," 2) there is a great danger of either undercompensating or overcompensating, because it's often impossible to know the right amount, and 3) Even setting the right level of compensation won't fully deter abusive or inefficient takings because the public officials who make the decision to condemn don't themselves pay the compensation costs, and monitoring by voters is often ineffective because the voters don't know what is going on.

But these aren't problems with takings for economic development purposes--they're problems with takings, period. Do you believe that the courts should have a general veto over takings that it suspects aren't for a legitimate "public use", whether the pretext is economic development or something more directly related to government functions? Why do you draw the line at the economic development pretext in particular?
12.10.2006 11:29pm
luagha:
As I am contractually required to point out whenever and whereever there is a discussion of the clause, "A well regulated militia, being necessary to the security of a free state..."

When the term 'regulated' is applied to a militia, it means 'well-trained and disciplined.' When the term 'regulated' is applied to a machine gun or set of machine guns, it means, 'capable of firing to the same point of aim.'

A hastily assembled group of citizens into a militia who have never trained together are called 'irregular troops.' 'Irregular troops' are commonly known for being of limited effectiveness except under conditions of surprise assault. Regular troops can march together without getting in one another's way, and all fire on a desired target on command.

Teddy Roosevelt's 'Rough Riders' were the irregular 1st volunteer cavalry.
Also, one of the most popular uses of this phrasing is Sherlock Holmes' "Baker's Street Irregulars." It was his cadre of slingshot-armed street urchins and informants.
---
So it's better put in terms of, "In the interest of having people who know how to shoot straight, the right of the people to keep and bear arms shall not be infringed."
12.11.2006 1:32pm
Kevin Murphy:
As I understand the arguments, the 2nd Circuit is holding that even if you proved bribery motivated the taking, the fact that the property lay within a redevelopment zone would prevent judicial review under Kelo. Slaughterhouse 2005 if you will.
12.12.2006 12:32pm