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DC Court of Appeals Decision on Pretextual Takings After Kelo:

The District of Columbia Court of Appeals (DC's highest Court) has issued its opinion in Franco v. National Capital Revitalization Corp., an important decision on the status of "pretextual takings" claims in the wake of Kelo v. City of New London (hat tip: PropertyProf Blog). The DC Court of Appeals ruled that a property owner could challenge the condemnation of his property as "pretextual," even though the condemnation was part of a plan to alleviate "blight" in an area formally designated as blighted by the DC government. The case raises two important post-Kelo issues:

1. Can a property owner can challenge a taking as "pretextual" even if it is part of a redevelopment plan? The DC Court of Appeals implicitly held that the answer is "yes."

2. What kind of evidence is needed to prove that a taking is pretextual after Kelo?

I think that the court decided the first issue correctly, though its reasoning is flawed. The Court's answer to the second question is maddeningly vague.

I. Pretextual Takings Within a Redevelopment Plan.

In Kelo, the Supreme Court decided that the Public Use Clause of the Fifth Amendment does not forbid condemnations that transfer property to new private owners in order to promote "economic development," and that decisions to condemn for such purposes should receive virtually absolute deference from courts so long as they are part of an "integrated development plan" (Kelo is unclear about what the constitutional rules are for economic development takings adopted without a plan). Courts were forbidden to "second-guess" the quality of the plan in question, even if that plan were seriously flawed (as was the one in Kelo itself). For more detailed analysis, see Part III of my article on Kelo. The constitutionality of "blight condemnations was upheld by the Court in its 1954 decision in Berman v. Parker, which upheld the forcible displacement of some 3000 mostly poor and African-American Washington DC residents in order to promote "urban renewal" in the area. Kelo's very broad deference to the planning process is extremely important because nearly all blight and economic development takings are enacted as part of a plan of some kind.

At the same time, however, Kelo reiterated the longstanding principle that the Public Use Clause forbids "pretextual" takings - takings where the ostensible "public use" was just a pretext for an effort to benefit a private party. This raises the question of whether property owners can raise pretext challenges to condemnations adopted as part of a redevelopment plan.

In Franco, the DC Court of Appeals implicitly answers this question in the affirmative. Unfortunately, however, the persuasiveness of its reasoning is weakened by the court's failure to consider the pro-planning reasoning in Kelo itself, or even to recognize that Kelo seems to require far greater deference to condemnations undertaken as part of a plan than to those enacted without one.

The court also fails to discuss Didden v. Village of Port Chester, a recent Second Circuit case that decided the same issue the other way. Along with six other property law professors, I filed an amicus brief urging the Supreme Court to grant cert in Didden and overrule it; unfortunately, however, we were unsuccessful. In my view, the DC Court of Appeals reached the right decision on this issue. But their discussion of it is not nearly as thorough as it should be.

II. Proving Pretext after Kelo.

Assuming that a property owner can raise a pretext challenge, what kind of evidence does he need to win? As I see it, there are three types of pretext claims that need to be considered:

1. The owner shows that the government intends to use the property for a completely different purpose than it claims (e.g. - it claims that the land is being taking in order to build a highway, but actually transfers it to a private developer).

2. The government is telling the truth about what will happen with the property after it is taken (e.g. - it really will be given to Developer X, just as they say). But the owners proves that the government is lying about its motives for deciding to go forward with the condemnation (e.g. - it claims that the general public will benefit from the taking, but in actuality doesn't really believe this and is only condemning the property in order to benefit a private interest).

3. Government officials genuinely believe that the public will benefit (perhaps they are engaging in self-deception), but in reality the evidence proves that any such benefits are unlikely and most of the benefits of the taking will be captured by the new private owner of the condemned land.

Virtually everyone agrees that Scenario 1 would be an unconstitutional pretextual taking; but that scenario is not what's at issue in Franco. The hard question is what to do about Scenarios 2 and 3. In my view, Kelo probably precludes Scenario 3 claims. Scenario 2 claims are probably permitted, but it's very hard to tell how much evidence you need to prove that the government's motives were illegitimate.

As recounted in the DC Court of Appeals opinion, Franco's evidence against the DC authorities in fact amounts to some combination of these two possibilities. The Court ultimately decided that his evidence was good enough to enable his case to go to trial in the trial court. Unfortunately, however, it gives the trial court very little guidance as to how to decide whether or not the evidence is enough to prove that the taking was pretextual:

We conclude that a reviewing court must focus primarily on benefits the public hopes to realize from the proposed taking.13 If the property is being transferred to another private party, and the benefits to the public are only "incidental" or "pretextual," a "pretext" defense may well succeed. On the other hand, if the record discloses (in the words of the trial court)that the taking will serve "an overriding public purpose" and that the proposed development "will provide substantial benefits to the public," the courts must defer to the judgment of the legislature. Harder cases will lie between these extremes.

This standard is extremely vague, and fails to distinguish between Scenarios 2 and 3. I suspect that whoever loses in the trial court will appeal the case, and the Court of Appeals will have to explain its approach more fully in the future.

godelmetric (mail):
Ilya, I think you're constructing something of a strawman here. While the majority opinion in Kelo is indeed maddeningly vague, Kennedy's opinion is controlling, and, while brief, is dedicated almost solely to the issue of pretextual takings. His reading of Berman and Midkiff strikes me as entirely accurate, as does the test he articulates.

More importantly, he rightly points out that the position of the homeowners in Kelo advocated an initial presumption against any government taking that putatively served a private interest, which was a ridiculous argument. I find it telling that nowadays, I rarely hear anyone try to seriously argue that point, though it was the entire basis of the petitioners' argument and the minority opinion in the actual case.

Your argument seems to acknowledge this -- so is your point simply that courts are misreading Kelo by not giving proper weight to Kennedy's controlling opinion, which fairly clearly counsels against the results in many of these cases? If that's so, then I think that you're mischaracterizing your claim by phrasing it in terms of "Kelo" proper, as opposed to an erroneous reading of Kelo, which is an entirely different beast.

And honestly, while I think we can agree that Kennedy's position in Kelo sets out an acceptable standard and doesn't get nearly enough credence, part of me feels that the IJ made the strategic error by cherry-picking a very sympathetic case in order to advocate a radical recasting of Takings Clause doctrine -- it ended up backfiring on them because, as you point out, many courts took Kelo to mean that if that heartstring-pulling story couldn't overcome the pro-development-plan presumption, not much could.

While I find that reading of the case disappointing, at the same time, I don't feel a lot of sympathy for the failure of what was a pretty transparently manipulative judicial strategy in the first place. It's not as if there were some desperate need to overrule Midkiff.

(In fact, the Kelo challenge might have been on better ground under the old standard -- as I recall, it turned out that the Pfizer deal was rotten, but rather than challenge the development plan on pretext, the IJ tried to shoot the moon with the radical anti-Takings argument and bit off more than they could chew.)
11.11.2007 2:08am
Ilya Somin:
Kennedy's opinion is controlling, and, while brief, is dedicated almost solely to the issue of pretextual takings. His reading of Berman and Midkiff strikes me as entirely accurate, as does the test he articulates.

Kennedy's opinion is NOT controlling because he signed on to the majority as well as writing his own concurrence. Thus, the majority controls, and Kennedy's opinion represents only himself. Moreover, Kennedy's opinion is in many ways even more vague than the majority's, as I discuss in the my article on Kelo that I link in the post.

You are also mistaken about many aspects of IJ's legal strategy (e.g. - they did raise pretext in their briefs; amd their main argument was not what you claim, but rather the positoin that economic development takings should be categorically forbidden - the argument accepted by the 4 dissenting justices).

And honestly, while I think we can agree that Kennedy's position in Kelo sets out an acceptable standard and doesn't get nearly enough credence, part of me feels that the IJ made the strategic error by cherry-picking a very sympathetic case in order to advocate a radical recasting of Takings Clause doctrine -- it ended up backfiring on them because, as you point out, many courts took Kelo to mean that if that heartstring-pulling story couldn't overcome the pro-development-plan presumption, not much could.

If you think that I (and most other critics of Kelo) accept Kennedy's position, you haven't been following the issue at all closely. As for the strategy "backfiring," They did lose the case. But the pre-Kelo law was even worse, and they gained a lot by winning 4 votes for the strong position that economic development takings should be categorically forbidden.
11.11.2007 2:16am
godelmetric (mail):
Kennedy's opinion is NOT controlling because he signed on to the majority as well as writing his own concurrence. Thus, the majority controls, and Kennedy's opinion represents only himself.

I'm not aware that this is a definitive interpretation of the Marks v. United States rule, but this is a semantic objection anyway. As you yourself pointed out, "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." You discussed this briefly in your article as well. This at least implies that he would be the Justice most willing to reverse his Kelo vote in the event of possible impropriety.

Moreover, Kennedy's opinion is in many ways even more vague than the majority's, as I discuss in the my article on Kelo that I link in the post.

Yes, I've read it. There is one sentence making this suggestion. It seems to me that since Stevens doesn't really address this issue on-point, the question of whether Kennedy's proposed test is "vague" or not is only really relevant to Kennedy's opinion, not the majority's.

You are also mistaken about many aspects of IJ's legal strategy (e.g. - they did raise pretext in their briefs; amd their main argument was not what you claim, but rather the positoin that economic development takings should be categorically forbidden - the argument accepted by the 4 dissenting justices).

I said that -- in my admittedly uninformed opinion -- they might have made a strategic error in advancing this case in the way that they did and on the basis that they did. You're making a statement about tactical judgment.

And to the extent I was discussing tactics, I respectfully disagree. It was clear after-the-fact that the Kelo taking was, in fact, pretextual, and my feeling is that shining more light on that aspect of the case had a better chance of leading to a victory for petitioners; however, IJ was clearly focused on effecting a major change in Takings Clause doctrine, and, as you say, that was the main argument they advanced.

If you think that I (and most other critics of Kelo) accept Kennedy's position, you haven't been following the issue at all closely.

I have been following this issue -- but perhaps not as closely as you -- and you indeed have said that Kennedy's concurring opinion was "important" because it "called for heightened judicial scrutiny of condemnations where there is a legitimate suspicion of 'favoritism' towards a private party." In fact, you say quite straightforwardly in your article that "Justice Kennedy's opinion, more so than Stevens' majority opinion, leaves open the door for
a retreat from judicial deference on public use issues."

You'll note that I said that I thought "Kennedy's position in Kelo sets out an acceptable standard" -- if I wasn't being clear that I wasn't referring to his opinion as a whole, I apologize; nevertheless, it's clear that you do agree that if Kelo accomplished anything positive, it's in the increased emphasis on the dangers of pretextual takings, and that issue is highlighted more strongly in Kennedy's opinion than either Stevens' or O'Connor's.

As for the strategy "backfiring," They did lose the case. But the pre-Kelo law was even worse, and they gained a lot by winning 4 votes for the strong position that economic development takings should be categorically forbidden.

Well, I think this is an arguable position at best, and one best saved for another day -- however, I'll restate my position again; it seems to me that many of the post-Kelo problems could be characterized as courts interpreting Kelo to mean that all takings that occur under the aegis of a development plan are legitimate, which I don't think is a fair reading of the case -- in fact, I don't think the issue was squarely addressed in the case at all. This strikes me as substantially similar to your argument.

My reading of the situation is that IJ picked a very sympathetic case to advocate, but their arguments ran so strongly against the grain of previous takings doctrine that Stevens' opinion was able to easily brush them aside by pointing to the development plan -- and the problem with the development plan was not that it involved private parties, but that it was an honest-to-god scummy deal, a fact which got lost in the issues addressed in the case.

As I see it, the result has been a series of decisions that, as you say, look to the existence of a development plan as a per se demonstration of legitimacy even in the fact of pretextual takings, which is, if anything, the opposite of the teaching in Kelo. But the sympathetic facts in Kelo seem to set a high bar for pretext even though that really wasn't the issue at all. So while I disagree with the minority opinion (and incidentally, I think it was also huge strategic error to have O'Connor write it), to a large extent I agree with you about the outcome of the decision, though perhaps for different reasons.
11.11.2007 4:14am
godelmetric (mail):
Also, just to be clear, I acknowledge that I am to some extent second-guessing IJ's motives, and my intent wasn't to denigrate their intent or abilities. However, they are an avowedly libertarian advocacy group, and as you say, they took on a very, very broad and well-established doctrine of takings law, when subsequent developments in the New London case itself demonstrated that the more significant problem wasn't economic takings per se, but pretextual takings by local development boards.

(Though really, I think IJ got hammered on oral argument trying to explain why the court should overturn Midkiff and Berman. They missed gimme questions about pretext, regardless of whether that was mentioned in the briefs. They didn't do a very good job of distinguishing Midkiff and Berman (it took them a couple tries before they got any traction at all), which was a threshold issue for any potential 5th vote. And when they got some of the liberal judges ready to listen to a possible heightened-scrutiny test they explained it as an economic-effectiveness inquiry! Um, not what Breyer was looking for.)

Given the fact that Kelo actually did involve a pretextual taking, and that Kennedy's opinion seemed to turn on that issue, I often wonder whether IJ missed a golden opportunity to expose the real dangers of private-party takings (pretextual takings) by concentrating so broadly on the legitimacy of private takings in general, which was a very tall order. To the extent Kennedy does propose any sort of test, he seems to advocate an increased civil discovery process, which in New London probably would have been enough to reveal the inappropriate contacts with Pfizer and thus come out with a win. That's the essence of my point.

I also have a feeling that a victory exposing Pfizer in Kelo would have been a stronger stepping stone to the outcome IJ was aiming for, rather than trying to flip Midkiff in one fell swoop, which was a tall order to begin with.
11.11.2007 4:50am
Duffy Pratt (mail):
It looks to me like the court is saying that the trial court, in deciding whether the taking is pretextual or not, has to look at the record and decide whether the the taking was for a public purpose, or whether the public purpose was merely a pretext. And, gasp, it said there might be close cases. Do you really think this standard is too vague for a trial court to apply?
11.11.2007 4:53am
Ilya Somin:
It looks to me like the court is saying that the trial court, in deciding whether the taking is pretextual or not, has to look at the record and decide whether the the taking was for a public purpose, or whether the public purpose was merely a pretext. And, gasp, it said there might be close cases. Do you really think this standard is too vague for a trial court to apply?

It is definitely vague if the higher court doesn't explain what you have to show in order to prove that it was a pretext.
11.11.2007 5:17am
Ilya Somin:
Me: Kennedy's opinion is NOT controlling because he signed on to the majority as well as writing his own concurrence. Thus, the majority controls, and Kennedy's opinion represents only himself.

I'm not aware that this is a definitive interpretation of the Marks v. United States rule, but this is a semantic objection anyway. As you yourself pointed out, "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." You discussed this briefly in your article as well. This at least implies that he would be the Justice most willing to reverse his Kelo vote in the event of possible impropriety.

Yes, Kennedy's opinion may be "important" and he may be the justice most willing to change his vote on Kelo. But that does NOT mean that his opinion is controlling in anyway. THe Marks doctrine is very clear that a majority opinion that has 5 or more votes (as the Kelo majority written by Stevens did) DOES control. The issue is far more than just "semantic" unless and until the Supremes reverse or limit Kelo.

If you think that I (and most other critics of Kelo) accept Kennedy's position, you haven't been following the issue at all closely.

I have been following this issue -- but perhaps not as closely as you -- and you indeed have said that Kennedy's concurring opinion was "important" because it "called for heightened judicial scrutiny of condemnations where there is a legitimate suspicion of 'favoritism' towards a private party." In fact, you say quite straightforwardly in your article that "Justice Kennedy's opinion, more so than Stevens' majority opinion, leaves open the door for
a retreat from judicial deference on public use issues."



Yes, I said that Kennedy's opinion is "important" and that it's better than the majority opinion. I also said that I thought his position was seriously flawed and ultimately wrong. There's no contradiction there.

Given the fact that Kelo actually did involve a pretextual taking, and that Kennedy's opinion seemed to turn on that issue, I often wonder whether IJ missed a golden opportunity to expose the real dangers of private-party takings (pretextual takings) by concentrating so broadly on the legitimacy of private takings in general, which was a very tall order.

Maybe. But IJ did raise the pretext issue in its briefs, and the issue was also discussed in the lower court decisions. Ultimately, the courts at all levels simply didn't accept the evidence of pretext because 1) they set a high bar for proving pretext, and 2) not all the evidence of pretext was available until after the case was decided. In fact, all 9 justices of the Supreme Court claimed to endorse New London's claim that the taking wasn't pretextual. IJ came far closer to victory on its argument for banning economic development takings (4 votes in the Supreme Court) than on its pretext arguments.

I also have a feeling that a victory exposing Pfizer in Kelo would have been a stronger stepping stone to the outcome IJ was aiming for, rather than trying to flip Midkiff in one fell swoop, which was a tall order to begin with.

IJ could have won in Kelo without overruling Midkiff, though the Court would have had to limit Midkiff's more expansive reasoning. But that would have been necessary for IJ to win ANY kind of victory in Kelo (even one based on the pretext rationale), since Midkiff's language would permit almost anything.
11.11.2007 5:26am
NI:
Maybe next the Court could address the issue of pretextual traffic stops. (Sorry, I know that's off topic but I couldn't resist.)
11.11.2007 9:07am
Rock Chocklett:
What about a fourth type of pretext claim: The government officials do not genuinely believe the taking will benefit the public, but the evidence proves that it actually does. Why shouldn't "public use" be determined by an objective test?
11.11.2007 9:10am
Rock Chocklett:
Now that I look again, I suppose my suggested "fourth type" is just a different way of phrasing your second scenario. But my question about objective vs. subjective remains.
11.11.2007 9:13am
PersonFromPorlock:
At the risk of being too theoretical, isn't the real problem (generally, not just in takings) that the Court, although sworn to uphold the Constitution, has invented a supervening obligation to uphold the Legislature? 'Deference' may be a defensible doctrine in an imperfect world, but 'leaning-over-backwards deference' is kind of hard to distinguish from giving away the store.
11.11.2007 9:16am
Anderson (mail):
Changing the subject, it appears to be time for another Judge Kent post.

This is McBroom's account of what happened in March as told to friends and her mother in conversation and in written notes:

McBroom was summoned to the judge's chambers on Friday, March 23, at about 3 p.m.

Her hands were full of legal papers when the judge — a former high school athlete who is more than 6 inches taller and at least 100 pounds heavier — asked for a hug.

She told him she didn't think that was appropriate, but reluctantly approached.

The judge grabbed McBroom, pulled up her blouse and her bra and put his mouth on her breast. Then, Kent forced her head down toward his crotch.

As McBroom struggled, Kent kept telling the married mother of three what he wanted to do to her in words too graphic to publish. The papers fell to the floor. The pet bulldog Kent kept in his chambers began to bark.

The incident was interrupted by the sound of footsteps from another staff member in the corridor, and the judge loosened his grip. As she left, the judge said McBroom was a good case manager and then made suggestions about engaging in a sexual act.


The guy should be suspended pending investigation. This is very, very bad. Maybe the accusations are lies, but apparently she's got witnesses she told about the incident at the time, and the 5th Circuit has got to take this more seriously.

And what's with keeping a dog in your chambers, anyway?
11.11.2007 11:02am
Guest0987654:
As an important side issue, Berman v Parker could easily be challenged. The often cited passage,

...If Congress decides that the Nation's Capital shall be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way...

is clearly subversive. Regulating beauty (and spirituality) would be challenged on first amendment grounds, not fifth. The question then becomes, "In constitutional terms, what is 'blight'?" If it is a matter of public health and safety, that is one thing. But if blight includes personal preferences in architectural style - or if decisions to regulate visual aesthetics are based on Berman v Parker - that is something else.
11.11.2007 1:33pm
godelmetric (mail):
Maybe. But IJ did raise the pretext issue in its briefs, and the issue was also discussed in the lower court decisions. Ultimately, the courts at all levels simply didn't accept the evidence of pretext because 1) they set a high bar for proving pretext, and 2) not all the evidence of pretext was available until after the case was decided. In fact, all 9 justices of the Supreme Court claimed to endorse New London's claim that the taking wasn't pretextual. IJ came far closer to victory on its argument for banning economic development takings (4 votes in the Supreme Court) than on its pretext arguments.

I realize all that -- I don't think I'm being clear about what I'm suggesting here. As I recall, it became apparent soon after the case was concluded that there had, in fact, been improper contacts between Pfizer and the development corporation. My suggestion was that if IJ had concentrated more heavily on that issue -- and maybe pushed discovery there a bit harder -- then they might have been able to reveal that contact.

Now, that's to some extent hindsight reasoning, of course, but at the same time, part of the reason the case was selected was that the deal was exceedingly fishy, and everyone knew that the entire time; my point is that demonstrating that pretext would be an inroad into the real meat of the case -- limiting Midkiff, as you say, Ilya -- by demonstrating the need to raise the bar in the way that Kennedy suggests in his opinion.

By letting the pretext issue slip through like they did -- and again, while this was briefed, IJ practically ignored it in oral arguments, at least as far as my reading shows -- IJ conceded the tactical high ground. Pretext is the barb that makes purely economic takings a problem, because it's axiomatic that a development plan, with nothing else, is accorded deference no matter how fishy it might seem. Asking the court to second-guess the decision on that basis was always a losing argument, as all the judges conceded (though it's certainly a testament to IJ that they still managed to get the votes they did).

Also, even to the extent that the pretext evidence wasn't available -- and assuming it couldn't have been unearthed during trial -- I'd also argue that pushing the argument harder could have made a huge difference. As you say, Ilya, 4 of the justices were willing to vote solely on the basis of economic taking, which was a huge achievement in itself. The question, then, is what could have been done to get the one more vote. It's clear that Kennedy was just waiting to vote based on the pretext argument, and even some of the other majority justices pressed IJ on it during oral, and IJ almost completely blew them off. I think that was a huge, huge mistake.

To come around to my original point, the reason that I see this as a huge strategic error is that by bringing up a case that had such a compelling pretextual argument, but concentrating instead on a much broader anti-economic-takings argument at trial, IJ clouded the issue -- now courts are ignoring pretextual problems because really, if Kelo didn't meet the pretext standard, what could? Of course, that wasn't really the basis for decision in Kelo, but that's not the lesson that was learned.

And part of that, again, was due to IJ's overall strategy -- they were using a very sympathetic case because it let them put the broad, anti-economic-takings argument in play without actually having to argue pretext seriously (hence the political backlash against the case), and that ended up backfiring, because now equally pretextual cases can't get through the Kelo hoop due to the subsequent confusion of the pretext and economic-takings issues.
11.11.2007 6:56pm
godelmetric (mail):
--Another point before I go--

Despite that IJ ended up winning their bright-line argument with 4 justices, the issue-confusion still ended up hurting them in the end. As you say, Kennedy's opinion doesn't go far toward raising the bar for pretext, which would have been the real winner in this case -- strict-scrutiny for economic-takings cases instead of rational-basis, for example, was a very winnable position, and would have been a substantial improvement over the Midkiff status quo, in addition to being a possible springboard to an even stronger standard.

Frankly, I think that the O'Connor dissent, while it does advocate the bright-line position, is a Pyrrhic victory at best. It's a horrible opinion. Not only is the reasoning bad (it's even more vague than Kennedy's opinion) the tests she does propose are completely contrary to precedent -- worse yet, they're contrary to precedent that O'Connor herself wrote in Midkiff for a unanimous court.

Frankly -- and Stevens points this out repeatedly in his opinion -- if you read the two next to each other, Midkiff O'Connor absolutely blows Kelo O'Connor out of the water. (And as I alluded to earlier, that's also why I think it was a mistake to have O'Connor write the Kelo opinion.)

If the minority really wanted to go the bright-line route, they should have taken the tack that Thomas did and confront the issue head-on, rather than trying to distinguish precedents that were as sweeping as Midkiff was. Midkiff simply doesn't make the police-power or affirmative-harm distinctions that O'Connor discusses in Kelo -- if those arguments were going to be made (and they're not horrible positions), they shouldn't have been read into the decision like that. As a direct result of that tactic, Stevens absolutely broadsided the minority opinion in a way that makes me doubt that the bright-line test will ever gain much traction in a future case, and that strikes me as a net loss for the cause IJ was championing.
11.11.2007 7:15pm
Duffy Pratt (mail):

It is definitely vague if the higher court doesn't explain what you have to show in order to prove that it was a pretext.


In order to prove that it was a pretext, you have to show that it was a pretext. I fail to see why that is any vaguer than a host of legal concepts that trial courts apply all the time.

Personally, I would prefer the higher court to remove any vagueness one case at a time, in the old common law fashion. It sounds to me like you would prefer them to make some legislative pronouncement, purporting to resolve all future cases beforehand, without actually considering the facts of those cases. No doubt, this would be a perfect place for a six or seven factor balancing test.
11.11.2007 7:32pm
David M. Nieporent (www):
As you say, Ilya, 4 of the justices were willing to vote solely on the basis of economic taking, which was a huge achievement in itself. The question, then, is what could have been done to get the one more vote. It's clear that Kennedy was just waiting to vote based on the pretext argument, and even some of the other majority justices pressed IJ on it during oral, and IJ almost completely blew them off. I think that was a huge, huge mistake.
I don't understand your argument here. If IJ's goal was solely to stop the New London development plan, then they may have been able to "get the one more vote" by adopting your strategy. But IJ's goal was to stop economic takings, and clearly they weren't going to pick up Kennedy's vote for that. The most they could have gotten was an opinion banning pretextual takings, which wouldn't have accomplished anything.



The problem, godelmetric, is that the pretext argument is inherently a loser from the point of view of libertarians (such as IJ), simply because the only thing that banning pretextual takings gets you is a ban on economic takings by idiots. Any government entity that can't come up with a plan that is at least superficially non-pretextual isn't even trying. If you can't find some consulting firm to draw up a plan claiming that there will be economic benefits from a proposal, you're incompetent.

Without showing actual bribery -- not campaign contribution bribery, but dollar bills in the freezer bribery -- a plaintiff's never going to prevail on pretext grounds.


As a larger point, I'm sympathetic to people like Ilya who want to try to read the Kelo decision narrowly in an attempt to limit its expansive scope, but I think it's lousy constitutional reasoning. The fifth amendment bans takings for private use; the Supreme Court said that economic development is a public use. Therefore, takings for economic development are constitutional. "Redevelopment plans" may be a good idea, but the requirement for them surely can't be found in the constitution. A single ad hoc taking for economic development is still a taking for economic development.
11.11.2007 9:36pm
godelmetric (mail):
Personally, I would prefer the higher court to remove any vagueness one case at a time, in the old common law fashion. It sounds to me like you would prefer them to make some legislative pronouncement, purporting to resolve all future cases beforehand, without actually considering the facts of those cases. No doubt, this would be a perfect place for a six or seven factor balancing test.

First of all, that doesn't resolve the difficulty of what test to apply even conducting an inquiry in the first place. Takings are ubiquitous, e.g. in the form of zoning. The operative questions are (a) at what point the court should undertake to scrutinize the opinions of a legislative body in making those decisions (the argument that you wouldn't want every zoning decision litigated is, I think, a persuasive one), and then (b) what test you apply in the event that the threshold for scrutiny is passed.

The initial, overarching problem is that zoning and development decisions have little in the was of unifying justifications -- whether the issue is urban blight or Hawaiian oligarchs, every case presents a different problem, and every legislative decision proposes a different solution on a different basis. Additionally, the record for many of these decisions is scant at best.

The courts have been historically reluctant to set any broad judicial baseline for such decisions, but even if the trigger question is resolved, the case-by-case review you propose is not that much of a solution; it provides no guidance as to, e.g., (1) what problems are amenable to such legislative solutions, (2) what solutions are legitimate in response to a particular problem, (3) what record is necessary or adequate to allow review of those decisions, and (4) what recourse the court is to give in the event that any of those standards is not met.

It's probably also worth mentioning that in many of these situations, the initial delegation of authority (e.g. to a zoning board or development corporation by a municipality)
11.11.2007 9:46pm
godelmetric (mail):
Yeah, my argument is that IJ's eyes were bigger than their stomachs. The Midkiff rational-basis standard gives no window whatsoever into the redevelopment-plan process, so there's no inroad for any sort of review.

But even an intermediate standard of review would allow some insight into the process, and some record, which is a prerequisite to challenging development plans in the first place. Midkiff and Berman both would have passed a stricter test than rational-basis, as would Kelo; that was a goal that Kelo could have attained without having to completely scuttle the prior decisions.

But by trying to shoot the moon with a bright-line test, IJ got nothing at all. Just putting some sort of restraint on Midkiff's "do whatever you want" test -- which offers no restraint at all -- was a necessary a stepping-stone to their goal, because it would have allowed that window into the process that doesn't exist right now. Ilya even points this out above, saying that limiting Midkiff in some way was necessary to any sort of result in Kelo. My argument is that the two goals -- limiting Midkiff and questioning economic takings -- didn't need to be in one case, and trying to cram them into one case backfired.
11.11.2007 9:54pm
godelmetric (mail):
(David, as an example, I think IJ could have argued Kelo for a rule that purely economic, private-party-to-private-party takings should be treated something like formal rulemaking or adjudication under the APA. That wouldn't necessarily conflict with Berman or Midkiff, but it would at least set the stage for something more ambitious. I realize that they wanted the no-economic-takings bright-line rule, but if wishes were horses...

...well, maybe that's not the best aphorism to use in this case, but you get the point.)
11.11.2007 10:06pm
Duffy Pratt (mail):

the case-by-case review you propose is not that much of a solution; it provides no guidance as to, e.g., (1) what problems are amenable to such legislative solutions, (2) what solutions are legitimate in response to a particular problem, (3) what record is necessary or adequate to allow review of those decisions, and (4) what recourse the court is to give in the event that any of those standards is not met.



A proclomation resolving all those issues would be a legislative solution, not a judicial one. Basically, what you are saying is that you don't like common law very much. That's fine. But do you really think that courts should make up all of this "guidance" in the abstract?
11.12.2007 3:34pm
godelmetric (mail):
No, I think that the "no baseline" rule reiterated in Kelo is the correct one, and that the major failing in takings issues is the legislative refusal to set actual binding rules on the subject. (This is maybe a bit improved post-Kelo, but not by much.)

Nevertheless, I also think that a higher scrutiny standard in the case of private-to-private takings would be legitimate as well. It's at least an defensibly result following from Kelo, since it only raises the standard for review, not the ultimate standard for reversal.

In other words, I think that the problem in Kelo is that the court conflates the issues -- the "no baseline" maxim only means that the court can't substitute its judgment for the legislature's, not necessarily that it can't ask the legislature to disclose its rationale.
11.12.2007 4:23pm
Dilan Esper (mail) (www):
I don't understand your argument here. If IJ's goal was solely to stop the New London development plan, then they may have been able to "get the one more vote" by adopting your strategy. But IJ's goal was to stop economic takings, and clearly they weren't going to pick up Kennedy's vote for that. The most they could have gotten was an opinion banning pretextual takings, which wouldn't have accomplished anything.

I don't have a formed opinion about the IJ's litigation strategy, but I do know that this analysis is just wrong.

The IJ was representing clients. When you represent clients, their needs come first, and you have to figure out how to serve your institutional prerogatives while also protecting your clients' interests.

So if, indeed, the Kelo case was one where it appeared that the winning argument was pretext and the losing argument was that all economic takings were unconstitutional (an issue I take no position on), then the IJ would have the responsibility to their client to either advocate the winning strategy or withdraw from the case so somebody else could.
11.12.2007 6:02pm
godelmetric (mail):
I don't have a formed opinion about the IJ's litigation strategy, but I do know that this analysis is just wrong.

The IJ was representing clients. When you represent clients, their needs come first, and you have to figure out how to serve your institutional prerogatives while also protecting your clients' interests.


IJ's strategy could be colorably correct while still being sub-optimal. They advertise themselves as, "A Libertarian Public Interest, Non-Profit Law Firm That's In Court On Behalf Of Individual Rights--mainly Economic Liberty," so it's not unreasonable to conjecture that they might have legitimately believed that the more purely libertarian argument (no economic takings) was more defensible, or that they would be able to more effectively defend that position. There's nothing wrong with a firm choosing a strategy that best fits that firm's particular specialties.

It's also worth noting that we can talk about this case with the benefit of hindsight -- at the time (as I recall), the deal merely looked very fishy, but there was little hard evidence to that effect. It wasn't until afterward that it became more clear that there had been improper contacts.

I argue that, because there actually was pretext, that would have been a winning argument here, and that in retrospect, the political win from exposing Pfizer's back-room deal would have been a broader victory for IJ and a stepping-stone.

However, I don't think it was unreasonable for them to evaluate the cost-benefits in the way that they did given the realities of the case. I would have adopted a different tactic and said so at the time, but that by no means demonstrates that the tactic IJ chose was "wrong" -- there's no reason why their political goals couldn't have aligned with the litigation; that's probably much of the reason they took the case, and I'm sure that their clients were well aware of it.
11.12.2007 6:50pm
Seamus (mail):
It's not quite a clear case of pretextual taking, but the way Fairfax County, Virginia, got hold of Sully Plantation was a little crooked. The property, on Route 28 near the site of Dulles Airport, was owned by Frederick Nolting (who served a few years later as ambassador to (South) Vietnam). The Federal Aviation Administration condemned the property on the grounds that it was needed for what later was named Dulles Airport. Local historic preservationists raised an outcry, saying that it was outrageous that the 18th-century farmhouse would be torn down, and they prevailed: instead of being used for the airport, the house was given to the Fairfax County Park Authority, while the FAA kept title to the underlying land. (Title to the land was later transferred to the Washington Area Airports Authority, when that agency acquired Dulles and Washington National Airports from the FAA.) All very nice for the preservationists, but pretty raw for Ambassador Nolting and his family, whose home was taken from them by a government asserting that they needed it for airport purposes, when in fact it turned out not to be needed or used for those purposes at all. By rights, as soon as the FAA determined they really didn't need the property, they should have returned it to Ambassador Nolting. If the Fairfax County Park Authority wanted the property, then they should have negotiated a voluntary sale, or exercised their own eminent domain power (assuming they had any--and if they didn't, then the injustice is even more obvious).
11.13.2007 10:23am