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A Questionable Taking in Milwaukee:

The Milwaukee Journal-Sentinel has an article describing what seems like a classic example of the use of eminent domain to take private property for the purpose of giving it to politically influential interests (HT: VC reader Rob Driscoll]:

Employing a rarely used provision of city code, Milwaukee officials are poised to take two commercial lots from one owner and then sell them to another developer who has made campaign contributions to a key alderman.

If the land acquisition goes through, it will dash the dreams of Rafael Cetina, whose family bought the land in 2002 with visions of building a restaurant and club that would serve spicy Mayan flavors paying tribute to his heritage on the Yucatan Peninsula....

The family that owns and operates Pete's Fruit Market would benefit from the deal. They made $2,000 in campaign contributions last year to Ald. Jim Witkowiak, who has played a major role in the city's plans to take the land from Cetina.

Witkowiak says he has known the market's owner since he first began selling fruit, and helped him acquire a permit. But he said that has not compromised his judgment.

"I definitely want to see the area redeveloped in a positive way," he said.

On Tuesday, the city's Zoning, Neighborhoods & Development Committee, chaired by Witkowiak, voted to approve the land acquisition. The ultimate decision will rest with the Common Council.

The Cetinas bought the first parcel in 2002 and spent $200,000 on everything from steel framing to lighting fixtures to eventually build the restaurant and club. He is now weeks away from losing the land to the city.

Two weeks ago, the city's redevelopment authority deemed the vacant land blighted and voted to use eminent domain to buy the property. Cetina said he has gotten a raw deal and is losing his land because the city doesn't want a nightclub there....

Milwaukee aldermen exert great influence over licensing decisions in their districts through a well-established system known as aldermanic privilege. Aldermen typically defer to the wishes of the local council member on such matters, giving the local official unofficial veto power...

Wisconsin is one of many states that has passed post-Kelo reform laws that purport to constrain these sorts of abuses, but actually provide little or no real protection for property owners. I discuss Wisconsin's statute on page 26 of this forthcoming article, which also covers many similar loopholes in other state's laws. Like many of the other states, Wisconsin forbids the use of condemnation for "economic development," but allows much the same kinds of takings to go on under the cover of alleviating "blight." As is typical of many such statutes, Wisconsin's new law defines "blight" so broadly that virtually any area can be declared blighted if the local government wants to take property located there. The city appears to be utilizing the "blight" loophole in this case, and they may well win in court on it.

I think it perfectly possible that Alderman Wytkowiak is sincere in his belief that he wasn't influenced by the fact that the condemned property will be sold to an important campaign contributor of his. Unfortunately, however, many dubious condemnations occur in part because people are very good at persuading themselves that anything that advances their self-interest also benefits the public. Such factors were a big part of the story behind the Kelo takings as well.

Steve:
Certainly looks corrupt to me! Unfortunately, no way to get any relief from the conservative wing of the Supreme Court unless you can articulate a bright-line rule that resolves any and all hypothetical situations that might arise.
6.10.2009 3:35pm
Dave N (mail):
Wow, just this week the Supreme Court held that spending $3,000,000 to unseat a state supreme court justice created appearances of impropriety.

Evidently in Milwaukee all it takes is $2000 for the fix to be in.
6.10.2009 3:37pm
pete (mail) (www):
I looked at the google street view and it does not look blighted. Just an empty lot, with no grafitti or anything.

It does look like there are a lot of houses right next to it and I would bet that the owners would not want a nightclub there, but that is more appropriately resolved through zoning.
6.10.2009 3:43pm
Allan (mail):
Well. I am convinced that the fix is not in. Just because someone donates to a campaign does not mean upgraded access or that there is a quid pro quo.

We depend on the on our elected officials, just like our judiciary, to be totally above-board.

And contributing to campaigns is free speech. It cannot be regulated. Surely there is no connection between the campaign contribution and the alderman's actions.
6.10.2009 3:44pm
AF:
If the plaintiff can prove that the taking was in fact "for the purpose of giving [the property] to politically influential interests," he will prevail in court.
6.10.2009 3:54pm
John T. (mail):
Unfortunately, no way to get any relief from the conservative wing of the Supreme Court unless you can articulate a bright-line rule that resolves any and all hypothetical situations that might arise.


So, remind me how the vote went in Kelo?

A bright-line rule would be better in eminent domain than the liberal wing's case-by-case logic that every local public official can convince himself is being followed in his case.
6.10.2009 3:57pm
FWB (mail):
Typical, public USE is "to be used by the public" NOT to benefit the public. The Framers w3ere quite "judicious" in their choice of words. [Imprimis, ....] Once more the SC can't tell their "------" from a hole in the ground. There are numerous 19th century cases that state emphatically that taking from one private party to benefit another private party is NOT legal. Too bad the judges don't bother checking out prior decisions. Stare decisis, ya know!

Dominus providebit!
6.10.2009 3:59pm
ShelbyC:
steve:

Unfortunately, no way to get any relief from the conservative wing of the Supreme Court unless you can articulate a bright-line rule that resolves any and all hypothetical situations that might arise.


Am I misremembering the Kelo tally or misunderstanding your point?
6.10.2009 4:11pm
PersonFromPorlock:
Once again, Johnson's comment on Lady Diana Beauclerk comes to mind. Making due allowance for gender and numbers, of course.
6.10.2009 4:16pm
levisbaby:

it will dash the dreams of Rafael Cetina, whose family bought the land in 2002 with visions of building a restaurant and club that would serve spicy Mayan flavors paying tribute to his heritage on the Yucatan Peninsula....

Why would anyone include information like that unless they were trying to create empathy???
6.10.2009 4:21pm
The Unbeliever:
I think it perfectly possible that Alderman Wytkowiak is sincere in his belief that he wasn't influenced by the fact that the condemned property will be sold to an important campaign contributor of his.
A $2000 contributor? What's the usual total budget of an alderman campaign?

As for the blight "loophole" in eminent domain protection, wouldn't that be a moot point if Cetina is making a good-faith effort to develop the currently vacant, arguably blighted lot? Surely there has to be some kind of development time delay consideration for owners of property if a city is going to invoke such a condemnation.

And if Cetina's building plans are being delayed by city permits, bureaucratic red tape, etc., and he loses his property before he can erect the nightclub (which would presumably remove any rationale for calling the lot blighted), does he have a cause of action against the city?
6.10.2009 4:24pm
followthelaw (mail):
The most amazing thing overlooked is how Milwaukee utterly disregards its own statutes that were passed to protect people from the Kelo decision. The new statute provides that unblighted property cannot be acquired by eminent domain under any circumstances if it is later to be sold or leased to a private entity. 32.03(6)(b).

What happened to "Green" Milwaukee? How is well-maintained vacant land blighted? It is ludicrous to suggest that vacant land (urban open space) is detrimental to the public health, safety, or welfare. When was a new standard adopted that property owners must develop their property or it will be taken away? Please contact the council members to stop this nonsense.
6.10.2009 4:26pm
David M. Nieporent (www):
If the plaintiff can prove that the taking was in fact "for the purpose of giving [the property] to politically influential interests," he will prevail in court.
Not if his suit draws a judge who has read the case, it won't. That's a concurring opinion. But Kennedy signed on to the majority opinion as well, making it controlling, and making the opinion you linked to absolutely meaningless. And the majority opinion doesn't even throw that bone to property-rights advocates. All Milwaukee officials have to do is recite formulaically that it's for a public purpose such as cleaning up blight, and the courts have to pretend to believe them.
6.10.2009 4:34pm
Putting Two and Two...:

Why would anyone include information like that unless they were trying to create empathy???


I got a kick out of the frequent and manipulative repetitions of the word "family". I suppose the author's goal wasn't to amuse me, though.
6.10.2009 4:39pm
Steve:
Am I misremembering the Kelo tally or misunderstanding your point?

My somewhat ironic point was that in yesterday's decision about the West Virginia judge, the liberals wanted to create a federal remedy in order to redress an extreme example of corruption, and the conservatives said creating a federal remedy without a bright-line rule would open the floodgates to all kinds of frivolous litigation. In Kelo, you could more or less reverse the respective positions.
6.10.2009 4:45pm
Cornellian (mail):
Apparently, Aldermen are going for bargain basement prices in Milwaukee.

Too bad, I'd much prefer the spicy Mayan flavors of that restaurant to shopping at a fruit stand.
6.10.2009 5:07pm
Allan (mail):
Steve,

Libertarians dislike the Milwaukee situation on the anti-Kelo principle.

Liberals like the Milwaukee situation because they think that government, rather than property owners will know best how to run the city.

I don't know what conservatives would think on the policy ground.

As for the quid pro quo, I think that libertarians and liberals would both be against quid pro quo. Liberals just don't like money interests getting priority. But, in this case, liberals are probably sanguine because it involves one group of people with money and another group of people with money. The preferred liberal solution would be to confiscate the land, sell half of it, and use the proceeds to either 1) build a park or 2) build single occupancy dwellings for drug addicts.

Conservatives would say that there is no connection between the free speech and the actions of the Alderman (if he were a Republican). And, even if there were, we cannot draw any bright lines, so they will let it slide under the law, although it is distasteful.
6.10.2009 5:13pm
Pyrrho:
Although the decision seems questionable, I hardly thinked it "dashed" his plans of building a night club. That spot was not the only possible place he could have built on. It isn't like somebody had their home taken away, in which case the financial compensation could not possibly be worth it. I don't see any special attachment to this land.

Not saying that is legally relevant - just questioning the way the story is written.
6.10.2009 5:17pm
AF:
Not if his suit draws a judge who has read the case, it won't. That's a concurring opinion. But Kennedy signed on to the majority opinion as well, making it controlling, and making the opinion you linked to absolutely meaningless. And the majority opinion doesn't even throw that bone to property-rights advocates. All Milwaukee officials have to do is recite formulaically that it's for a public purpose such as cleaning up blight, and the courts have to pretend to believe them

From the majority opinion:


As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development plan. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case.


Kelo v. City of New London, 545 U.S. 469, 478, (2005)(citations omitted).

Even under the majority opinion, if the plaintiff can prove an illegitimate purpose, he wins. Of course, as with any factual allegation, he loses if he cannot prove it.
6.10.2009 5:19pm
pluribus:
"[N]or shall private property be taken for public use, without just compensation." Amend V. I believe there are a lot of textualists on this board, and some who call themselves originalists. I have heard the argument made that condemning property for redevelopment is not a "public use." If private property is not taken for "a public use," what is the requirement for just compensation? Do the textualists and originalists contend that when the Constitution says "taken for public use" it really means "taken for either public or private use"? What is the textual argument against Kelo?
6.10.2009 5:30pm
levisbaby:

The Cetinas bought the first parcel in 2002 and spent $200,000 on everything from steel framing to lighting fixtures to eventually build the restaurant and club. He is now weeks away from losing the land to the city.

But the picture accompanying the newspaper article shows the aggrieved owner standing on a vacant lot with grass on it.

Let me guess, they allegedly bought 200K of building materials so they want to be paid for that too?
6.10.2009 5:44pm
John T. (mail):
My somewhat ironic point was that in yesterday's decision about the West Virginia judge, the liberals wanted to create a federal remedy in order to redress an extreme example of corruption, and the conservatives said creating a federal remedy without a bright-line rule would open the floodgates to all kinds of frivolous litigation. In Kelo, you could more or less reverse the respective positions.


No, you couldn't. You're completely wrong. In Kelo, the conservatives argued that a bright-line rule was necessary, where the liberals argued that a bright-line rule would be too strict but one could decide on a case by case basis, and that the particular case was okay. In yesterday's decision, the conservatives argued that a bright-line rule was necessary, whereas the liberals argued that it could be decided on a case-by-case basis and that the particular case was wrong.

The "conservative" bloc on the SCOTUS is mostly a formalist, "bright line rule" bloc, where individual rules and rights are absolute where they exist (and where they do not) whereas the "liberal" bloc prefers to balance many rights that all exist at the same time and rule on a case-by-case basis.
6.10.2009 5:47pm
Dilan Esper (mail) (www):
Not if his suit draws a judge who has read the case, it won't. That's a concurring opinion. But Kennedy signed on to the majority opinion as well, making it controlling, and making the opinion you linked to absolutely meaningless.

I've won this sort of argument before, David. Some judges can be convinced to read such a concurrence as imposing an implicit limitation on the majority opinion in a 5-4 case.
6.10.2009 5:50pm
John T. (mail):
If private property is not taken for "a public use," what is the requirement for just compensation? Do the textualists and originalists contend that when the Constitution says "taken for public use" it really means "taken for either public or private use"? What is the textual argument against Kelo?


The textual argument is simple. The sentence "[N]or shall private property be taken for public use, without just compensation" can be interpreted in two ways. One is the way that you have stated, that just compensation is required when private property is taken for public use, but if it's taken for plain old private benefit to help out a campaign contributor, no just compensation is required. While syntactically valid, this reading is taken to be absurd on its face. There is no plausible reason to treat takings for private benefit more leniently than takings for public benefit.

So, an alternate explanation presents itself. The clause could instead be implicitly granting the power to take private property "for public use," and setting terms (just compensation) on such at the same time. In this case taking private property for any other purpose is not authorized under the government's limited powers.

Now, one would have a case that this does seem a somewhat less natural syntactic reading of the clause than yours, but because your reading is so inherently absurd, it remains the textually preferred one.
6.10.2009 5:51pm
rosetta's stones:

The "conservative" bloc on the SCOTUS is mostly a formalist, "bright line rule" bloc, where individual rules and rights are absolute where they exist (and where they do not) whereas the "liberal" bloc prefers to balance many rights that all exist at the same time and rule on a case-by-case basis.


...if true, then thus the need for empathy, and wise old Latinas, to make law case-by-case.
6.10.2009 5:53pm
Dilan Esper (mail) (www):
Libertarians dislike the Milwaukee situation on the anti-Kelo principle. Liberals like the Milwaukee situation because they think that government, rather than property owners will know best how to run the city.

It's worth noting, as Prof. Somin has on several occasions, that a lot of liberals don't think very much of Kelo (though it is probably accurate to say that most of these liberals would still allow a somewhat more broad eminent domain power than many libertarians would). It offends the sensibilities of plenty of liberals that the government can go into some neighborhood of working class, hard working black homeowners and declare the whole area "blighted", kick them out, and hand all their property to some developer that makes campaign contributions. Some of us even had praise for Justice Thomas' observations in his Kelo dissent about how "urban blight" is often used as a codeword for "black neighborhood".

Unfortunately, none of us are on the Supreme Court.
6.10.2009 5:54pm
John T. (mail):
It's worth noting, as Prof. Somin has on several occasions, that a lot of liberals don't think very much of Kelo (though it is probably accurate to say that most of these liberals would still allow a somewhat more broad eminent domain power than many libertarians would)


Yes, and part of this is because, really, "empathy" doesn't play that large of a role in judging. A lot of liberals on the basis of empathy disagree with Kelo. Liberal justices on the Supreme Court, who generally have a fairly consistent judicial philosophy, found it difficult to sign on to the arguments of the dissent without contradicting otherwise held opinions on balancing tests and how to read the Constitution's text.
6.10.2009 6:00pm
nr (mail):
Just to be clear, the guy has owned the land for 7 years and done nothing to develop it. (Buying $200K of steel, but not even moving it to the land hardly counts as taking steps to develop the land.) He's held the land despite receiving reasonable offers to buy it from people who would put the land to good use, or any use.

Now, I have no idea if this particular exercise of eminent domain is corrupt, that is, in the sense that it's being used to pay back political favors. If it is, that's bad. And illegal. But if it's being used to force the owner to sell the land to somebody who is going to make productive use of the land, such a move is clearly good for society as a whole.

That doesn't mean that it's good for society to allow the City to do such things. Perhaps such exercises of eminent domain are problematic because of the way they devalue the right to personal property. That's what the Kelo debate is really about. But, like a lot of anti-Kelo "arguments," this blog post tries to trick the pro-development folks into joining their side by pretending that eminent domain produces inefficiency in every context, when, in reality, it is an essential tool in the efficient use of land.
6.10.2009 6:01pm
David M. Nieporent (www):
Even under the majority opinion, if the plaintiff can prove an illegitimate purpose, he wins. Of course, as with any factual allegation, he loses if he cannot prove it.
The problem is that what the majority gave with that sentence, it took away with the next. It says that there's no evidence of an illegitimate purpose, but that's because it defined away the very notion of illegitimate purpose. Under the majority's opinion, unless -- perhaps -- the Alderman actually announces, "I'm arranging this taking because he gave me a campaign contribution," the court will "defer" to the alleged governmental judgment that it's necessary.
6.10.2009 6:03pm
Dilan Esper (mail) (www):
<i>Yes, and part of this is because, really, "empathy" doesn't play that large of a role in judging. A lot of liberals on the basis of empathy disagree with Kelo. Liberal justices on the Supreme Court, who generally have a fairly consistent judicial philosophy, found it difficult to sign on to the arguments of the dissent without contradicting otherwise held opinions on balancing tests and how to read the Constitution's text.</i>

I don't think it's that. Rather, Kelo didn't come out of nowhere-- it was broadly consistent with prior precedent; the result was just more extreme.

What you have is liberals on the Court-- and conservatives (remember, only Thomas proposed junking the prior precedents) who don't want to completely rewrite the Court's takings law for various institutional as well as ideological reasons.
6.10.2009 6:04pm
Kirk:
pluribus, I suspect that the concept that the government might justly take your property for private purposes was so unthinkable to the founders that literally no one thought to ban it. Under the original, limited-powers understanding of the federal government, this was not such a serious oversight as it turns out to be today.
6.10.2009 6:11pm
Steve:
Under the original, limited-powers understanding of the federal government, this was not such a serious oversight as it turns out to be today.

But of course, it's not the federal government doing the taking in all these scenarios, it's the state and local governments. In fact, the people who usually support federalism are the ones who want to expand federal power in this instance to be able to do something about state and local abuses.
6.10.2009 6:17pm
John T. (mail):
Dilan--

Yes, stare decisis is part of it too, and Justice Thomas is the justice most willing to overturn existing precedent. Look at his comments in Red Lion and Pacifica as well. But philosophical consistency plays a role as well.

In fact, the people who usually support federalism are the ones who want to expand federal power in this instance to be able to do something about state and local abuses.


Well, it gets back to an incorporation doctrine question. What rights are incorporated by the Fourteenth Amendment? Since incorporation began as a liberal idea (and has generally remained so), it's unsurprising that the rights considered most dear and fundamental by liberals have been the ones incorporated first. I'm not trying to accuse anyone of too much bias there; it's just natural.
6.10.2009 6:25pm
Oren:

I've won this sort of argument before, David. Some judges can be convinced to read such a concurrence as imposing an implicit limitation on the majority opinion in a 5-4 case.

Then those judges are idiots. The Opinion of the Court is controlling and if the concurring Justice wanted his to limit the majority, he should have concurred in judgment only.
6.10.2009 6:25pm
AF:
Under the majority's opinion, unless -- perhaps -- the Alderman actually announces, "I'm arranging this taking because he gave me a campaign contribution," the court will "defer" to the alleged governmental judgment that it's necessary.

I think you are confusing two types of deference. The Court did not defer to the government's assertion that its purpose was what it said it was. On that issue, it relied on the lower courts' factual findings. What the Court deferred to was the government's judgment that the development plan (which had been found to be non-pretextual) was in fact beneficial to the public.

If a plaintiff can prove corruption or pretext, he wins. But if he's challenging the merits of the development plan, he loses.

Now, in the wake of Twombly and Iqbal, plaintiffs are going to have trouble getting discovery on the question of corruption or pretext. E.g., Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008). I'm sure Mr. Nieporent will join me in lamenting those decisions and their deleterious effects on property rights.
6.10.2009 6:28pm
Dilan Esper (mail) (www):
Then those judges are idiots.

I guess it is really easy to flatly conclude that accomplished sitting judges are "idiots" without knowing anything about the factual context of their decisions.

Further, Oren, I am pretty sure that the Supreme Court has never precisely said that concurrences cannot be used to interpret the scope of a majority opinion. If you have a citation for where they have condemned this practice, maybe you can share it with us rather than calling people who are almost surely smarter and more accomplished than you are "idiots".
6.10.2009 6:29pm
pluribus:
John T.:

While syntactically valid, this reading is taken to be absurd on its face. . . . Now, one would have a case that this does seem a somewhat less natural syntactic reading of the clause than yours, but because your reading is so inherently absurd, it remains the textually preferred one.
Be assured, this is not "my reading." I quoted the precise language of the amendment and asked for a textualist (or original meaning) reading of it. You tell me that the literal language of the text is "absurd on its face," or "inherently absurd." I agree it would be absurd to permit a government to take private property without just compensation. It would be unjust. It would perhaps be beyond the enumerated powers of the government. It might well be a denial of due process. But I do not agree that this result is required by a literal reading of the text of the fifth amendment, and I find it interesting that textualists find it necessary to condemn the text as "absurd" to justify their anti-Kelo arguments. All Supreme Court justices have to do, we are told, is apply the plain language of the Constitution, and cases will be decided correctly. Don't think about consequences. Don't consider the actual effects of decisions on litigants. Above all, don't be "empathetic." I suggest that something more must be done than merely reading the text and running it through a computer. It is often necessary to fill in the spaces that the framers left unfilled.

Kirk:

pluribus, I suspect that the concept that the government might justly take your property for private purposes was so unthinkable to the founders that literally no one thought to ban it. Under the original, limited-powers understanding of the federal government, this was not such a serious oversight as it turns out to be today.

This argument seems to me more plausible than the argument from the text of the Fifth Amendment. Perhaps a taking under those circumstances would just be ultra vires and thus, as you say, unthinkable. I would argue, however, that the argument that taking private property to sell it to a developer and thus complete a large development project that will benefit the community generally is not a taking for a public use finds no support in the text of the Fifth Amendment. As you suggest, perhaps there is no ban on this. So those who argue that taking private property under these circumstances cannot be a "public use" are not basing their argument on the text, but on some other considerations. My point is that Supreme Court justices must consider many factors other than the literal language of a particular constitutional provision when they make decisions, the arguments of textualists and originalists to the contrary notwithstanding.
6.10.2009 6:43pm
pluribus:
Oren:

Then those judges are idiots.

When anybody uses words like "idiot" in an argument, I immediately think it is because they cannot frame a more reasonable argument. And making an argument despite the inability to frame it in a reasonable way is--well, let's just say it's idiotic.
6.10.2009 6:49pm
Jess:

He's held the land despite receiving reasonable offers to buy it from people who would put the land to good use, or any use... if it's being used to force the owner to sell the land to somebody who is going to make productive use of the land, such a move is clearly good for society as a whole.


This would be ridiculous in any context and is especially so in a contracting rust-belt city. It isn't as though Milwaukee is running out of real estate. As the population is shrinking, it actually has more than it needs. This is corruption and racketeering, plain and simple. If these poor innocent fruit-sellers (who just happen to have $5.7M earmarked for building on the site) had offered the property owner a decent price for his land, especially after their minions in city government had denied his intended use, he would certainly have sold. It just seemed cheaper for them to slip the alderman some change they found in their couch. (Seriously, this Witkowiak guy needs to raise his fees!)

Leave aside the unsavory local situation, however. Do we really want to say that all vacant land is wasted and so subject to government seizure? I'm sure that building contractors would approve, but what about urban residents? Are they best served by requiring every square foot to be covered by consumerist crap? Why would owners of dilapidated structures renovate them (which I hope we can agree would be a good thing) when the city is intimidating owners of vacant property to build more new structures than the market will bear? What about real estate as an investment? Maybe I'm not building now because in my estimation (as lawful property owner) a much better opportunity will arise five years from now? Who do you think should be making that decision? A moron like Witkowiak who doesn't even know how much to demand in bribe money?
6.10.2009 7:10pm
ReaderY:
Not sure from these facts. It's entirely possible that the city really doesn't want nightclubs, or more nightclubs. Nightclubs tend to have problems, and people who live near them tend to complain.

From this evidence, the city's reasons may not be legitimate public use from a Kelo-dissent perspective, but it's not clear that they are corrupt. There is, after all, a difference between the two.

Why are the other Aldermen -- the ones who didn't get the campaign contributions, going along?
6.10.2009 7:11pm
ReaderY:
I would recommend not making charges of corruption without considerably more evidence than this, if for nothing else than for respect for ones own credibility.
6.10.2009 7:14pm
Daniel Chapman (mail):
This is a milwaukee city alderman we're talking about. The same office where you can get re-elected from jail while facing charges of having people's knees broken.

This is nothing =P
6.10.2009 7:29pm
Jess:
1) The fruitsellers gave the government official money.

2) The official took arbitrary official action that benefited the fruitsellers while harming a different constituent.

One who requires more than this justify that terrible word, "corruption", is painfully naive. I'm not saying that this situation is illegal or even that it should be, but it is the essence of corruption.
6.10.2009 7:30pm
Daniel Chapman (mail):
Well I'd at least have to know whether the different constituent also contributed to the government official... Seems like a relevant data point to your evaluation.
6.10.2009 7:35pm
themighthypuck (mail):
I think the essence of corruption is when the fruitsellers hand over the money in a brown paper bag.
6.10.2009 7:48pm
rosetta's stones:
Government that forces private property to be transferred to other private owners invites corruption. Simple as that.

Eliminate these forced transfers, and this corruptive avenue is foreclosed.

Limited government has its advantages.
6.10.2009 7:51pm
Oren:

Not sure from these facts. It's entirely possible that the city really doesn't want nightclubs, or more nightclubs. Nightclubs tend to have problems, and people who live near them tend to complain.

I've always found that complaint dubious -- there are tens of thousands of people that patronize those nightclubs and so obviously they support their continued existence. Why are those customers never counter against the complainers?
6.10.2009 7:52pm
Oren:
s/counter/counted/
6.10.2009 7:53pm
Tatil:

there are tens of thousands of people that patronize those nightclubs and so obviously they support their continued existence. Why are those customers never counter against the complainers?

Usually clubgoers do not care about the location that much as long as there are a few in reasonably close and safe locations. However, homeowners care a lot and oppose loudly if there is a proposal to build one close by.
6.10.2009 7:56pm
Oren:


When anybody uses words like "idiot" in an argument, I immediately think it is because they cannot frame a more reasonable argument. And making an argument despite the inability to frame it in a reasonable way is--well, let's just say it's idiotic.

Indeed. My comment was rash. Those judges are not idiots but it does anger me that they disregard the absolutely explicit, make-no-mistake-about-it, direction from the Supreme Court about how to interpret their own opinions.

But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . ."

This is pretty tame stuff, I though no one argued about it anymore. Believe me, I want Kennedy's concurrence in Kelo (and Alitos in Morse) to be binding. The problem is that it just ain't so.
6.10.2009 8:02pm
Oren:

Usually clubgoers do not care about the location that much as long as there are a few in reasonably close and safe locations. However, homeowners care a lot and oppose loudly if there is a proposal to build one close by.

(1) The former are quite a bit more numerous, and so their (combined) tepid support carries comparable weight to the loud opposition of the few.

(2) Clubgoers might not care where it is, but they will get upset if NIMBYciles create a situation in which the club cannot be put anywhere. That is, an debate over where to put a fixed number of clubs is quite a bit different than a debate over rules that might drastically curtail the number of clubs.
6.10.2009 8:05pm
Oren:

Further, Oren, I am pretty sure that the Supreme Court has never precisely said that concurrences cannot be used to interpret the scope of a majority opinion.

First off, it's one thing to interpret the majority opinion -- that is, to give meaning to the operative phrases and context to the reasoning -- and quite another to use "interpret the scope" to mean adding something that was not in the original. A concurring opinion can do the former, but not the latter.

The language in Marks make it clear (at least to me, I thought this was uncontroversial but I was clearly quite in the wrong) that they are expounding an exception to the general rule. That is, if there was a general rule that a concurrence could add to or modify the Majority Opinion, then the rule in Marks would be surplusage -- it would scarcely be necessary to note that concurring opinions can be binding in a narrow set of cases if they are actually binding in all cases.
6.10.2009 8:15pm
pluribus:
rosetta's stones:

Government that forces private property to be transferred to other private owners invites corruption. Simple as that.

Eliminate these forced transfers, and this corruptive avenue is foreclosed.


Forclosed? What if a private property owner wants the city to buy his property for a public park, but the park would only work if an adjoining parcel of private property were also purchased and added to it. The property owner bribes an alderman to vote for condemnation. The private poperty owner takes his money (as does the adjoining property owner), and the property is put to a incontrovertibly public use. No corruption? There are countless public uses that invite as much corruption as private uses in such a context.
6.10.2009 8:23pm
Dilan Esper (mail) (www):
Government that forces private property to be transferred to other private owners invites corruption. Simple as that. Eliminate these forced transfers, and this corruptive avenue is foreclosed. Limited government has its advantages.

It's worth noting-- and I say this as someone who thinks Kelo was wrongly decided-- that overturning Kelo wouldn't necessarily mean more limited government. Rather, it might force governments to do the redevelopment themselves rather than transferring the property to other private owners. So you might end up with larger government, i.e., government-owned shopping malls, mixed use development, and the like.
6.10.2009 8:28pm
Dilan Esper (mail) (www):
But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . ."

Oren, you are being disingenuous here. You called judges "idiots" for holding that where there IS a majority opinion, a concurring opinion can nonetheless be used as an interpretation device to help elucidate the scope of the majority's holding.

In response to being called out, you cite a case that holds that where there is NO majority opinion, the courts should look at the position taken by the concurring justices who concurred on the narrowest grounds. But that's a completely different situation.

What you need to provide is a Supreme Court case that holds that courts may not use concurrences to interpret the scope of a Supreme Court holding when there is a majority. And you won't find that case because as far as I know, it does not exist.
6.10.2009 8:31pm
Oren:
Dilan, I can't find anything more on point from the SCOTUS, but how about the CA-DC expressly rejecting an attempt to use a concurrence to limit the majority opinion. Quote is from IN RE: GRAND JURY SUBPOENA, JUDITH MILLER, No. 04-3138, Consolidated with 04-3139, 04-3140, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT,
438 F.3d 1141; 370 U.S. App. D.C. 4; 2005 U.S. App. LEXIS 29476.

[ It's a hard case to find!]



Justice Powell's concurring opinion was not the opinion of a justice who refused to join the majority. He joined the majority by its terms, rejecting none of Justice White's reasoning [***21] on behalf of the majority. He wrote separately "to emphasize" what seemed to him "to be the limited nature of the Court's holding." 408 U.S. at 709 (Powell, J., concurring). Justice White's opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.

.... [ Discussion of what Powell may have intended in his concurrence here ] ....
In any event, whatever Justice Powell specifically intended, he joined the majority. Not only did he join the majority in name, but because of his joinder with the rest of a majority, the Court reached [***23] a result that rejected First Amendment privilege not to testify before the grand jury for reporters situated precisely like those in the present case. As we noted above, there is no factual difference between Branzburg and the present case. If Justice Powell in any way meant to afford more protection than was afforded by the rest of the majority, that protection cannot possibly extend to appellants as Branzburg is directly on point and reached a result in which Justice Powell joined, rejecting the applicability of constitutional privilege.
6.10.2009 8:33pm
Dilan Esper (mail) (www):
First off, it's one thing to interpret the majority opinion -- that is, to give meaning to the operative phrases and context to the reasoning -- and quite another to use "interpret the scope" to mean adding something that was not in the original. A concurring opinion can do the former, but not the latter.

Who says? Justice Oren? The Supreme Court has certainly never said anything on this subject.

Look, if a majority opinion explicitly says X, the fact that a concurrence or dissent claims it doesn't say X wouldn't be relevant.

But if a majority opinion does not explicitly address issue X, and the concurrence-- especially the concurrence of a justice or justices necessary to form the majority-- says that the majority opinion does not foreclose "not X" or even explicitly that "not X" is the law, you won't find a shred of Supreme Court authority that this cannot be used to interpret the scope of a majority opinion.

Some lower court judges won't do it, but that's because of their own views, not because the Supreme Court has told them not to. And neither group of lower court judges are "idiots" as you first claimed.
6.10.2009 8:34pm
Dilan Esper (mail) (www):
Oren, your example (1) is not from the Supreme Court and (2) is actually very controversial-- at least 5 other Circuits DO use Justice Powell's concurrence in Branzburg as the basis of a journalists' shield doctrine. It certainly doesn't "prove" that anyone who interprets Branzburg in this matter is an idiot.

And there are in fact examples of concurrences (such as Justice Jackson's Youngstown concurrence) that basically are cited as the controlling law in particular matters.

Again, you said that anyone who does this is an "idiot". Care to retract?
6.10.2009 8:37pm
pintler:

He's held the land despite receiving reasonable offers to buy it from people who would put the land to good use, or any use... if it's being used to force the owner to sell the land to somebody who is going to make productive use of the land, such a move is clearly good for society as a whole.


If I may ask, what is it about productive use, land, and eminent domain? I get eminent domain when you need to build a pipeline or road - land is special in that regard.

But I don't get the 'society has a right to maximize the productivity of property' argument. If I own the Hope Diamond or a 1963 Mustang, I'm not obligated to accept reasonable offers. Even in the case of purely utilitarian objects, I can keep a milling machine mostly idle in my basement, and a local factory owner can't succeed in arguing that it would be more productive for society on his factory floor. It's like we view land as completely fungible and without sentimental value in a way that my milling machine isn't. Why is that?
6.10.2009 8:38pm
Oren:

Oren, you are being disingenuous here. You called judges "idiots" for holding that where there IS a majority opinion, a concurring opinion can nonetheless be used as an interpretation device to help elucidate the scope of the majority's holding.

(1) I've already apologized for the rash outbreak. If you'd like me to apologize again, I will do so, but that's sort of silly.

(2) To "elucidate" is to make something clear -- that is to explain something. Your use of Kennedy's concurrence (or Alito in Morse) does not merely explain something, it adds an entirely new constraint to the majority opinion that was not there. It's no longer an act of interpretation, it's a wholesale revision.


In response to being called out, you cite a case that holds that where there is NO majority opinion, the courts should look at the position taken by the concurring justices who concurred on the narrowest grounds. But that's a completely different situation.

The rule in Marks is the exception that would scarcely be necessary if concurrences were already binding. The exception proves that the rule holds in all other cases -- concurrences had to specially be made valid in fragmented opinions because of the general rule that only the majority opinion is binding.


What you need to provide is a Supreme Court case that holds that courts may not use concurrences to interpret the scope of a Supreme Court holding when there is a majority. And you won't find that case because as far as I know, it does not exist.

Assuming no such cite exists, why should your position be default one?
6.10.2009 8:40pm
Dilan Esper (mail) (www):
Your use of Kennedy's concurrence (or Alito in Morse) does not merely explain something, it adds an entirely new constraint to the majority opinion that was not there. It's no longer an act of interpretation, it's a wholesale revision.

You are being way too simplistic, but I am afraid to get into this is going to get deep into the weeds as to what interpretation is.

To answer this as simply as possible, the usual situation is that the majority announces a rule and doesn't talk about possible exceptions. The concurrence says there is a possible exception or clarification or reservation. The concurrence didn't get 5 votes. But if the majority had placed language rejecting the exception/clarification/reservation into the opinion, it wouldn't have gotten 5 votes either. That's actually what happened in Branzburg, NY Times v. United States, and Youngstown Sheet &Tube.

Not all lower courts will put much stock in the concurrence. But some will. And there is no controlling Supreme Court case that says they can't. It happens all the time, and they aren't idiots for doing it.

If the Kelo majority had specifically said "this exception does not exist", then you would be right, whatever Kennedy says in the concurrence doesn't matter. But the Kelo majority did not say that. Many courts would therefore consider Kennedy's concurrence to be legitimately clarificatory about the scope of the Kelo rule.
6.10.2009 8:45pm
Dilan Esper (mail) (www):
Assuming no such cite exists, why should your position be default one?

I never said it was my position or that it should be. I said that there is no Supreme Court case that says that judges can't do this, and that some judges (who are not idiots) feel that it is a proper means of interpretation of Supreme Court decisions.
6.10.2009 8:47pm
Oren:

Oren, your example (1) is not from the Supreme Court and (2) is actually very controversial

Fair enough. If I'm wrong, at least I'm wrong in decent company.
6.10.2009 8:48pm
Oren:

To answer this as simply as possible, the usual situation is that the majority announces a rule and doesn't talk about possible exceptions. The concurrence says there is a possible exception or clarification or reservation. The concurrence didn't get 5 votes. But if the majority had placed language rejecting the exception/clarification/reservation into the opinion, it wouldn't have gotten 5 votes either.

An clarification and an exception/reservation are very different things. I do not think you should compound them as you do.


Not all lower courts will put much stock in the concurrence. But some will.

This is why, IMO, it's folly for the 5th Justice to concur in the opinion as opposed to concurring only in judgment when he want to place substantive restrictions -- he doesn't know whether they will be applied.

At some level, this wouldn't be a big deal if the lower courts were consistent either way -- I happen to think my method is cleaner but I would not object to concurring opinions that attempt to limit the scope if the lower courts consistently gave that appropriate weight.

The intolerable middle ground (again, IMO), is a situation in which a concurring opinion purports to limit the opinion but lower courts selectively apply them.

[ Incidentally, this is why I support Sotomayor in Didden -- I do not think she should have given AMK's concurrence in Kelo as much as weight as many wanted her to ].
6.10.2009 8:57pm
Oren:

Not all lower courts will put much stock in the concurrence. But some will. And there is no controlling Supreme Court case that says they can't.

On the other hand, there is no controlling Supreme Court case that says that concurrences can create binding vertical precedent. My position (tenuous though it may be) is that, in the absence of such guidance, lower courts may not invent a rule that says that concurring opinions give rise to binding vertical precedent.
6.10.2009 8:59pm
DeezRightWingNutz:

"[N]or shall private property be taken for public use, without just compensation." Amend V. I believe there are a lot of textualists on this board, and some who call themselves originalists. I have heard the argument made that condemning property for redevelopment is not a "public use." If private property is not taken for "a public use," what is the requirement for just compensation? Do the textualists and originalists contend that when the Constitution says "taken for public use" it really means "taken for either public or private use"? What is the textual argument against Kelo?


I'd like to take a crack at this, although IANAL. The federal government has limited, enumerated powers. I'm guessing that some article (I don't know which one) gives the federal government the ability to take private property for public use (maybe the necessary and proper clause, I don't know).

I'm guessing that anti-Kelo textualists would argue that nothing in the Constitution gives the federal government a right to take private property for a non-public use. Therefore, the Fifth Amendment doesn't need to address what compensation, fair or otherwise, is required to be paid for these takings. I do agree with you, that if the government has the right to take private property for a non-public use, then the fifth amendment doesn't even address what compensation must be paid, and I hope textualists would agree, too.

The prior commenter who said, "Of course people must be paid just compensation, because it would be absurd to have a higher standard for public-use takings than non-public use takings," didn't really answer the question from a textualist perspective. He just said, it would be absurd to have the result set forth by a fair and literal reading of the text, so it is incorrect.
6.10.2009 9:02pm
Dilan Esper (mail) (www):
My position (tenuous though it may be) is that, in the absence of such guidance, lower courts may not invent a rule that says that concurring opinions give rise to binding vertical precedent.

The issue isn't binding vertical precedent. The people who follow Powell's concurrence in Branzburg aren't saying it's binding. They are saying that it evidences that Branzburg didn't slam the door on the type of privilege that Powell suggests could be recognized, because otherwise Powell wouldn't have signed onto it. They are using the concurrence to interpret Branzburg.

And the problem with saying that the Court shouldn't do this is that many times you end up with no majority opinion at all unless the Court does it. It's a way of rounding up 5 votes in a situation where you have different members of the majority taking different provisions.
6.10.2009 9:18pm
einhverfr (mail) (www):

I'd like to take a crack at this, although IANAL. The federal government has limited, enumerated powers. I'm guessing that some article (I don't know which one) gives the federal government the ability to take private property for public use (maybe the necessary and proper clause, I don't know).


Establishing post roads might do this to some extent, correct?
6.10.2009 9:34pm
Bama 1L:
The guy probably ought not lose his land, but what on earth is taking him so long to start his restaurant? There is usually restaurant space available in Walker's Point just a few blocks from this guy. I'm amazed this guy wants to build his own. It's great he has a dream, but plenty of others have made the same dream a reality.

If you want a good Yucatan meal in Milwaukee today, I recommend Cempazuchi on Brady Street or Riviera Maya on Kinnickinnic. Riviera Maya is the Xel-ha with a new name and larger location across the street from where it used to be.
6.10.2009 9:38pm
Oren:

The issue isn't binding vertical precedent. The people who follow Powell's concurrence in Branzburg aren't saying it's binding. They are saying that it evidences that Branzburg didn't slam the door on the type of privilege that Powell suggests could be recognized, because otherwise Powell wouldn't have signed onto it. They are using the concurrence to interpret Branzburg.

Well, that goes back to what precedent means -- I'm a firm believer in the very narrowest interpretation of stare decsis -- one that explicitly excludes any attempt to stare rationibus decidendi. In this meaning, precedential value attaches only to the decision rendered and the legal conclusions absolutely necessary to reach it.

In this view (and in converse to the quote in the Miller decision), Branzburg doesn't say what it doesn't say and so lower courts are not bound by cases that do not fall within its ambit. That case, as it happens, fell almost squarely in line with the fact pattern of Branzburg and so there was no need to distinguish it.

To those with broader notions of stare decisis, of course, we'll have to disagree.


And the problem with saying that the Court shouldn't do this is that many times you end up with no majority opinion at all unless the Court does it. It's a way of rounding up 5 votes in a situation where you have different members of the majority taking different provisions.

I prefer the Marks rule in that case -- if the Supreme Court cannot agree then minimal precedent should be made. This seems better, IMO, that creating precedent that can be abused (Kelo, Morse) because those provision were not agreed to by the majority.

IOW, the plurality ought to be interpreted to mean that the court is unable to articulate a general rule and therefore what they do say should not be interpreted as articulating a general rule.
6.10.2009 9:55pm
DeezRightWingNutz:


I'd like to take a crack at this, although IANAL. The federal government has limited, enumerated powers. I'm guessing that some article (I don't know which one) gives the federal government the ability to take private property for public use (maybe the necessary and proper clause, I don't know).



Establishing post roads might do this to some extent, correct?



Yes, among other examples, I'd imagine. The key would be finding a clause that gave the government the power to take private property for non-public use (postal roads being a public use) in the first place. 5A obviously contemplates takings for public use would happen. If there's a provision authorizing takings for non-public use, then I'd agree with the earlier commenter that just compensation for these takings isn't mandated by the 5A.
6.10.2009 10:04pm
Dilan Esper (mail) (www):
I prefer the Marks rule in that case -- if the Supreme Court cannot agree then minimal precedent should be made.

You may prefer it, but the problem with the Marks approach is that it makes it hard for stare decisis to function effectively in areas of the law where there is widespread disagreement.

By allowing everyone to sign on to an opinion that is generally acceptable, the Court is able to give more guidance to lower courts.

As long as there are 9 very smart and ideologically diverse people on the Supreme Court, this problem is going to crop up, and there really isn't a very good solution to it. As of now, the Court handles it with a mix of some cases with splintered opinions and other cases where a majority opinion is "clarified" by concurrences.
6.10.2009 10:06pm
gabriel (mail):
pintler:


But I don't get the 'society has a right to maximize the productivity of property' argument. If I own the Hope Diamond or a 1963 Mustang, I'm not obligated to accept reasonable offers.


It's a bit picky, though clearly that is no disqualification for comments in this particular thread, but there were no 1963 Mustangs. The first Ford Mustangs came off the production line in what Ford denominated the year "1964 1/2."
6.10.2009 10:48pm
pintler:

The first Ford Mustangs came off the production line in what Ford denominated the year "1964 1/2."


I not only don't understand the law, I don't know cars either :-(.
6.10.2009 11:19pm
David M. Nieporent (www):
Oren, your example (1) is not from the Supreme Court and (2) is actually very controversial-- at least 5 other Circuits DO use Justice Powell's concurrence in Branzburg as the basis of a journalists' shield doctrine. It certainly doesn't "prove" that anyone who interprets Branzburg in this matter is an idiot.
I wouldn't say "idiot." I would say dishonest. (I think Posner dealt with them very clearly in McKevitt.) There is no way to read the majority opinion to create a privilege; it clearly rejects such a possibility. Powell's concurrence can't be read to clarify the majority opinion to say the opposite of what it said.

Now, Douglas's dissent in Branzburg is just plain ol' nutty.
6.10.2009 11:53pm
Oren:

You may prefer it, but the problem with the Marks approach is that it makes it hard for stare decisis to function effectively in areas of the law where there is widespread disagreement.

Perhaps that disagreement is sign that the Supreme Court should not be making strong binding precedent.



By allowing everyone to sign on to an opinion that is generally acceptable, the Court is able to give more guidance to lower courts.

That's disingenuous, since it's guidance with caveats attached but not really attached. More like appended.


As long as there are 9 very smart and ideologically diverse people on the Supreme Court, this problem is going to crop up, and there really isn't a very good solution to it. As of now, the Court handles it with a mix of some cases with splintered opinions and other cases where a majority opinion is "clarified" by concurrences.

This results in cases like Didden -- where the limiting that Kennedy set (the pretextual public-use) get lost in translation.

Let me turn it around, do you think Sotomayor &company on the 2CA should have picked up Kennedy's concurrence in Kelo and engaged in the analysis that he calls for [1] or do you think she should have stuck within the 4 corners of the majority opinion, which directs no such inquiry.

[1] "A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."
6.11.2009 12:34am
Dilan Esper (mail) (www):
Let me turn it around, do you think Sotomayor &company on the 2CA should have picked up Kennedy's concurrence in Kelo and engaged in the analysis that he calls for [1] or do you think she should have stuck within the 4 corners of the majority opinion, which directs no such inquiry.

I don't know how I would handle this-- probably on a case-by-case basis. But I am not taking the strong position that courts must engage in this analysis; only that it isn't improper to do so.

One thing I will say more generally is that rigid judicial philosophies are actually quite overrated. Some statutes and constitutional provisions lend themselves to textualism, some to originalism, some are deliberately left vague to encourage common law development (e.g., Fed. R. Evid. 501; the Eighth Amendment), and sometimes it's proper to follow precedent even if you don't agree with it. There isn't one way to interpret every legal text. This is ONE thing a court can do when interpreting a Supreme Court precedent. It is not mandatory.

I wouldn't say "idiot." I would say dishonest. (I think Posner dealt with them very clearly in McKevitt.) There is no way to read the majority opinion to create a privilege; it clearly rejects such a possibility. Powell's concurrence can't be read to clarify the majority opinion to say the opposite of what it said.

David, I actually do think Posner has the better of that argument. But that wasn't what I was arguing with Oren; I was simply saying that you can't make a strong claim (as Oren did) that courts find the use of concurrences to interpret the implicit limitations in majority opinions to be illegitimate. They don't-- even now, a majority of the circuits that have spoken do recognize a qualified reporter's shield privilege.

I would suggest more generally that way too many people throw epithets at court decisions they don't like. For instance, many 2nd Amendment advocates, not content with their victory in Heller, have gone to great length to portray every single case that rejected their position over the years not only as wrong but as completely unreasonble, as if a plethora of respected and intelligent federal judges didn't know what they were doing. Judging is A LOT harder than what partisans would portray, and most of the time, even when courts get it wrong, they aren't being unreasonable or beyond the pale.
6.11.2009 1:54am
pluribus:
DeezRightWingNutz:

The key would be finding a clause that gave the government the power to take private property for non-public use (postal roads being a public use) in the first place. 5A obviously contemplates takings for public use would happen. If there's a provision authorizing takings for non-public use, then I'd agree with the earlier commenter that just compensation for these takings isn't mandated by the 5A.

I appreciate your comments on this subject, which doesn't seem to be of much interest to most posters here. Since the City of New London was not the federal government, its power to condemn private property would derive from other sources. Generally, states (and their instrumentalities, the local governments) have great power than the federal government, which is deemed a government of enumerated powers, while the states are not generally limited in the same way. Under the necessary and proper clause, however, the enumerated powers of the federal government can give rise to other exercises of power. For example, the power to raise and support armies combined with the necessary and proper clause gives the federal government the power to condemn private property for the erection of forts and similar military installations. Similarly, the power to constitute tribunals inferior to the Supreme Court would, as expanded by the necessary and proper clause, undoubtedly give the federal government the power to condemn private property for the erection of federal courthouses. Instead of reading the fifth amendment to say what it clearly doesn't say--that is, that no private property may be taken for private uses--it might make more sense simply to conclude that any governmental taking of private property is by definition a taking for public use. That is, when the government takes private property it is doing so for public use, because it is the government that is doing so. What that public use will be is to be decided by the government that takes the property. Private property owners are protected by the provision that they must receive just compensation for the taking. Now, this is not what the Supreme Court has held. I am not arguing that this is, or should be, the law. It would, however, be a more strictly textualist reading of the amendment. All of this is, in my opinion, merely a commentary on the limitations of the textualist approach. In many instances, the text simply doesn't provide an adequate answer. There are questions that the Constitution doesn't address, or some answers that it gives that are not adequate. In such cases, the Court must look elsewhere for answers. General principles of constitutional law, and precedents, are important. Sometimes the Court must look to the common law approach to adjudication of constitutional questions. Anathema, perhaps, to adherents of strict textualism, but not to others.
6.11.2009 8:25am
rosetta's stones:


"Government that forces private property to be transferred to other private owners invites corruption. Simple as that.

Eliminate these forced transfers, and this corruptive avenue is foreclosed."







"Forclosed? What if a private property owner wants the city to buy his property for a public park, but the park would only work if an adjoining parcel of private property were also purchased and added to it. The property owner bribes an alderman to vote for condemnation. The private poperty owner takes his money (as does the adjoining property owner), and the property is put to a incontrovertibly public use. No corruption? There are countless public uses that invite as much corruption as private uses in such a context."


Yes, but you use the magic words, pluribus. Your example is for a public use, a public park, and condemnations limited to that alone, foreclose any corruption involved in forcing private transfers.

We remove an entire body of corruption by foreclosing the avenue. Simple.

Now, will there also potentially be corruptive influences involved in condemnations for public uses, as you mention? Of course, and we likely all know the machinations of land speculators, and I suspect Mr. Mayan Restaurant owner is one of those, and got caught on the wrong side of the payoff bazaar, in this case. Reading between the lines here, both parties to this case were likely gaming the system.

That should give you pause.

Eminent domain is an area of the law that should be exercised very gingerly, and rarely used, for a whole lot of reasons. Kelo and other decisions seem a clear departure from historical precedent, and seem to have loosed any "Downtown Development Authority" to rampage around a city, and favor their buddies. Promiscuous exercise of eminent domain invites political corruption.

The creation of extra-governmental DDA's, "authorities", "associations", etc, are troublesome. The courts really need to be mindful of how their decisions expand the power and complexity of government, and open up avenues for corruption which go even beyond those of eminent domain.

Again, limited government has its advantages.
6.11.2009 8:48am
Oren:
Dilan -- I concur in your last comment in its entirety. No reservations, clarifications or exceptions needed. ;-)
6.11.2009 8:54am
rosetta's stones:


Government that forces private property to be transferred to other private owners invites corruption. Simple as that. Eliminate these forced transfers, and this corruptive avenue is foreclosed. Limited government has its advantages.




It's worth noting-- and I say this as someone who thinks Kelo was wrongly decided-- that overturning Kelo wouldn't necessarily mean more limited government. Rather, it might force governments to do the redevelopment themselves rather than transferring the property to other private owners. So you might end up with larger government, i.e., government-owned shopping malls, mixed use development, and the like.


Dilan, nobody's forcing the government to become a developer... of shopping malls, mixed use, or anything else. In fact, limited government principles would certainly imply that government would not take on that role.

You're blurring the lines between the private and the public. There is a bright line to be drawn here, but you seem against drawing it.

Also, tab up the cost of all this litigation, and the recent legislation and citizen initiatives.

Limited government has its advantages, and cost and simplicity and transparency are among them.
6.11.2009 9:00am
Ben P:

Yes, but you use the magic words, pluribus. Your example is for a public use, a public park, and condemnations limited to that alone, foreclose any corruption involved in forcing private transfers.

We remove an entire body of corruption by foreclosing the avenue. Simple.




Suppose the city puts the park into place and 5 years later decides that the property is of better use as a development, and sells the land out to a developer. Does that transform the earlier taking into a private use? What if it's one year?

What if the motive to build a park is to give the park construction contract to an influential developer? What if there's some other motive. In my parents hometown there's a divided roadway with trees blocking the view from both sides of the road (a space of about 60 yards) Kohl's built a department store on one side of the roadway, Simultaneously the city constructed a "Park" between the roadway and cleared out the trees for a quarter mile section. The effect was obvious, it's so people driving the oppisite direction can see the Kohls, and the park is in such an inconvenient place I've never seen anyone use it.

Is that a private taking?

I'm just pointing out that that there's a lot of grey area here. I don't think anyone would agree that when a city exercises eminent domain it's irrevocably and eternally binding itself to use the land for a public purpose, but on the other hand, most seem to agree that a condemnation for the pruposes of selling directly to a buyer is pretty shady.

The poblem is drawing the line between the two.
6.11.2009 9:40am
Sid the warmonger (mail) (www):
Caveat - I am not a lawyer. I am a frequent reader of the various contributers. Also, I am not being lazy but just making an admission that I cannot decipher some of the more technical parts of this issue.

Who can clearly articulate a bright line rule for eminent domain use?

It seems to me that this should be a commercial transaction. Prospective buyer tries to find magic number that is sought by Property Owner. There may be reasons for government intervention, but none of those seem to apply. The owner has complied with all applicable ordinances. The site is not overrun with vermin and he installed a fence. The site is not derelict or "blighted". He is just a stubborn owner who does not want to sell. How in the hell does this become a government matter?

I am not trying to say that eminent domain should never occur. Please articulate a reasonable framework for the use of ED. As an outsider, this appears to be government meddling. From what I can tell, the major political players seem to want to judge the use of ED from the outcome each instance achieves rather than from a policy of use.
6.11.2009 10:12am
rosetta's stones:

Suppose the city puts the park into place and 5 years later decides that the property is of better use as a development, and sells the land out to a developer. Does that transform the earlier taking into a private use? What if it's one year?


If the public has redefined how it wishes to use its property, and the property transfer takes place at arm's length, preferably at bid, then I see no issues with your transfer, public to private. One year? That's likely a game, and if unsupported within the city's master planning process, could be demonstrated as such. But yes, as mentioned, there are many games to be played with eminent domain, including public takings, and that might be one of them.






What if the motive to build a park is to give the park construction contract to an influential developer?


Presumably, a proper competitive bid process forecloses this hypothetical. But yes, you're describing a scenario that arises when you get into DDA's, authorities, etc, and combine them with eminent domain and your average politician. It becomes an unhealthy brew, which the courts better be mindful of.






"The effect was obvious, it's so people driving the oppisite direction can see the Kohls, and the park is in such an inconvenient place I've never seen anyone use it."

Is that a private taking?



You're describing land in the median, which is likely a public ROW, so no, I wouldn't consider this a private taking. Speculating here, they may have bypassed the local tree huggers in creating that park, so they could cut down those trees.






I'm just pointing out that that there's a lot of grey area here.


I don't think so. I think it's a pretty bright line. Forcing private property transactions is on one side of that line, certainly.
6.11.2009 10:26am
Alan Miller (mail) (www):
This may tie into an attempt to get better grocery options into the neighborhood, particularly if it's an area where people are walking or taking public transportation rather than driving. Looking at the area on Google Maps, most of the "food markets" in the area are small storefronts that on Street View look like they're half the size of a typical 7-11, though there's a Pick 'n Save at the edge of walking distance if you're carrying groceries.

I haven't looked at the census demographics data, but if it's poor to lower-middle-class neighborhood then much as in Chicago it's well worth getting more shopping options in. This may not apply to the Milwaukee area, but around here many "fruit stands" have grown to become full-service grocery stores - generally with better fruit, vegetable and deli selections and a more "international" focus than the chain stores. That can mean better service for ethnic neighborhoods - the fruit markets that I do most of my grocery shopping in have entire aisles of Polish, Bulgarian, Hispanic, etc.
6.11.2009 11:31am
David M. Nieporent (www):
As long as there are 9 very smart and ideologically diverse people on the Supreme Court, this problem is going to crop up, and there really isn't a very good solution to it. As of now, the Court handles it with a mix of some cases with splintered opinions and other cases where a majority opinion is "clarified" by concurrences.
Well, one solution is to not do that. Make clear in your concurrence that you're not trying to rewrite the majority opinion that you signed on to. In other words, the approach Scalia chose in Gant:
No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned. It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice Stevens. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court.
In other words, yes, Scalia wishes the law were different, but since he doesn't have the votes, he'll sign on to an imperfect opinion that provides clear guidance rather than muddy the waters.
6.11.2009 11:40am
David M. Nieporent (www):
I would suggest more generally that way too many people throw epithets at court decisions they don't like. For instance, many 2nd Amendment advocates, not content with their victory in Heller, have gone to great length to portray every single case that rejected their position over the years not only as wrong but as completely unreasonble, as if a plethora of respected and intelligent federal judges didn't know what they were doing. Judging is A LOT harder than what partisans would portray, and most of the time, even when courts get it wrong, they aren't being unreasonable or beyond the pale.
Well, I agree that many cases are hard. As much as I dislike what the majority did in (to pick a topical example) Caperton, I don't think anybody was being dishonest. But sometimes, it's an unavoidable conclusion. When one reads Branzburg, which explicitly says no privilege in a decision that 5 justices signed on to, to say that there is a privilege, I can't find any other word to describe it.

I don't call everyone who disagrees with Heller dishonest. There is more than one possible reading of the second amendment, although some are more plausible than others. But when someone -- judge or not -- says that Miller found that there was no individual right, when it clearly said no such thing (*), I can't find any other word for it.


(*) There are lots of things it said which are unclear, to be sure, but it's clear that there are some things it didn't say.
6.11.2009 11:45am
David M. Nieporent (www):
Instead of reading the fifth amendment to say what it clearly doesn't say--that is, that no private property may be taken for private uses--it might make more sense simply to conclude that any governmental taking of private property is by definition a taking for public use.
But that would render the words "for public use" in the clause to be mere surplusage.

And I think it's clear that at no point (even including Kelo) has any court held that there's no distinction between public use and private use. I think the historical record shows that a distinction was always understood.
6.11.2009 11:48am
David M. Nieporent (www):
It's worth noting-- and I say this as someone who thinks Kelo was wrongly decided-- that overturning Kelo wouldn't necessarily mean more limited government. Rather, it might force governments to do the redevelopment themselves rather than transferring the property to other private owners. So you might end up with larger government, i.e., government-owned shopping malls, mixed use development, and the like.
It's possible, but it doesn't seem very plausible. What incentive would the government have to do such a thing? (If such an incentive existed, wouldn't it have said incentive currently? After all, it can do that under Kelo. But it never does. Unless a private developer 'bribes' a town, said town never seizes land to develop it, no matter how much 'blight' there is.) Indeed, it seems the incentives would work against that happening, as the private shopping malls would be strongly opposed.
6.11.2009 11:54am
einhverfr (mail) (www):
Dilan Esper:

You may prefer it, but the problem with the Marks approach is that it makes it hard for stare decisis to function effectively in areas of the law where there is widespread disagreement.


The fundamental question is how much leeway appellate courts should be given to differentiate current cases from past precedent. I.e. was the appellate court in Grokster wrong when they followed the Betamax precedent? Or should they have ruled the way that the Supreme Court did and differentiate the cases, finding that although Betamax was binding precedent, that the case was sufficiently different to reach a different conclusion?
6.11.2009 12:12pm
Smooth, Like a Rhapsody (mail):
If this has already been mentioned I apologize, but:

Did the alderman in question recuse himself from the decision to take the property?
6.11.2009 12:26pm
Oren:
David, I too appreciated the candor of Scalia's concurrence in AZ v. Gant.

Same from AGAG v. Carhart too (especially ripping into CJJR).

We know that judges are thinking about these tactical matters, it's nice that Scalia puts it all out up front where we can see it.
6.11.2009 1:19pm
NickM (mail) (www):
David M. N. - think sports stadia.

Nick
6.11.2009 1:25pm
pluribus:
I wrote:

Instead of reading the fifth amendment to say what it clearly doesn't say--that is, that no private property may be taken for private uses--it might make more sense simply to conclude that any governmental taking of private property is by definition a taking for public use.

David M. Nieporent replied:

But that would render the words "for public use" in the clause to be mere surplusage.

I understand that Thomas made that argument. Perhaps he is right. But what if the so-called "surplussage" was stricken. Then the applicable text would read:

[N]or shall private property be taken, without just compensation.

Would this make any sense at all? What does the word "taken" mean without the added words "for public use"? Would it be at all clear that a taking by a governmental agency is what is proscribed? The phrase "taken for public use" seems to me to be entire and closely related. "Taken" satanding alone would be strangely uncertain. But my point is not that it is incorrect to distinguish between taking for public use and taking for private use, simply that the distinction is not clear on the basis of the text alone. Add in general constitutional principles, principles of limited powers, and precedents and the result is defensible. I submit this merely shows the limits of textualism, limits that many textualists refuse to admit.

Nieporent added:

And I think it's clear that at no point (even including Kelo) has any court held that there's no distinction between public use and private use. I think the historical record shows that a distinction was always understood.

I believe I made this very point when I discussed precedents. But where in the amendment does it say that a taking by a governmental agency is not ipso facto a taking for a public use? Again, the text is not adequate to reach your desired conclusion. Other principles must be resorted to.
6.11.2009 1:33pm
Dilan Esper (mail) (www):

Dilan, nobody's forcing the government to become a developer... of shopping malls, mixed use, or anything else. In fact, limited government principles would certainly imply that government would not take on that role.


Rosettas, you missed my point. Let's say that the government of Suburbopolis decides that the central business district needs renovation and that a new shopping mall there would be a nice way to bring people into the city. But Sam Smallbusinessowner and Mary Momandpop don't want to sell their businesses and are holding out.

Now, under Kelo (which I don't support, as I said), Suburbopolis can declare the are blighted and use eminent domain to transfer the properties to Dave Developer to build and operate the mall.

If you overturn Kelo, the people of Suburbopolis will still want their shopping mall. But since they can't turn the property over to Dave Developer, they may very well decide to have the government build and operate the mall.

What I am saying is that if you reverse Kelo, there is a very plausible scenario in which it will end up INCREASING the size of government as governments take on functions that in the past they would have delegated to private developers.
6.11.2009 2:49pm
Dilan Esper (mail) (www):
Well, one solution is to not do that. Make clear in your concurrence that you're not trying to rewrite the majority opinion that you signed on to. In other words, the approach Scalia chose in Gant:

Nothing wrong with that approach. It should be mentioned, however, that Scalia doesn't always follow it (for instance, he flatly refuses to apply Miranda in federal cases, he flatly refuses to apply the Lemon test, etc.).
6.11.2009 2:51pm
Piano_JAM (mail):
Would a wise Latina judge reach the same decision?
6.11.2009 3:53pm
rosetta's stones:

Rosettas, you missed my point. Let's say that the government of Suburbopolis decides that the central business district needs renovation and that a new shopping mall there would be a nice way to bring people into the city. But Sam Smallbusinessowner and Mary Momandpop don't want to sell their businesses and are holding out.


Dilan, right here, in these few statements, you've positioned the government to be a developer. Not just an urban planner, zoning properties and planning, which is generally considered a proper role of government (although not by hardcore libertarians, perhaps), but rather a developer. You've conceptualized, scoped and sized your final development, prepared preliminary site plans, costed it all out, and prepared work plans for the first phase relocations required. You're not a government... you're a developer. Except, you're about to hand the whole shebang over to one of your buddies!





Now, under Kelo (which I don't support, as I said), Suburbopolis can declare the are blighted and use eminent domain to transfer the properties to Dave Developer to build and operate the mall.


You've here nicely encapsulated the evil of what's about to happen to Sam Smallbusinessowner and Mary Momandpop in your example above, courtousy of Kelo. It's evil.

And the "blighted" tag is a travesty. You likely know its origins, and you also know its abuse in this eminent domain process.





If you overturn Kelo, the people of Suburbopolis will still want their shopping mall. But since they can't turn the property over to Dave Developer, they may very well decide to have the government build and operate the mall.


No, they won't very well decide that, and who says they want a shopping mall? If that property is zoned commercial, and the community is vibrant and desires business development as you're positing, then somebody will be in there developing businesses of some sort, just not the ones the aldermen can get greased for. Do you really think communities jump in to support this stuff... shopping malls? I don't. And I certainly don't believe the people'd have the mayor operating a shopping mall... not in any town I've ever been around. You're extrapolating too far here, and we'll not wind up where you fear we will, me thinks.






What I am saying is that if you reverse Kelo, there is a very plausible scenario in which it will end up INCREASING the size of government as governments take on functions that in the past they would have delegated to private developers.


In the past, private developers weren't delegated the right to profit from forced private property transfers, this is a recent phenomenon... court induced... so it's not as if government will be forced to pick up a ball that's been dropped.

Yes, I believe we've got some railroad ROW skeletons in our judicial closet somewhere, but in general, I don't believe this Kelo thing to be historical precedent. So, no, I don't believe it at all "plausible" that dumping Kelo will cause government to grow. I believe it to be a pure limited government principle that will limit government. Period.

Plus, it reaffirms the property right, and I still can't believe a court in this country so casually dismissed that. It's a darn good thing Souter didn't live in some state more militant, because those folks very well might have condemned his house for a museum, as that rump group postured in CT. The initiatives passed in various states show people didn't like this nonsense, I'd say.
6.11.2009 5:11pm
Dilan Esper (mail) (www):
<i>Do you really think communities jump in to support this stuff... shopping malls? I don't.</i>

Yeah, having lived in suburbs for much of my life, I do. You seem to think that suburban residents are closet libertarians just waiting to throw off their big government shackles. I can tell you with quite a fair amount of certainty that they are not. They love urban planning, they love dickering over land use issues, they love having a voice in these sorts of decisions, and the last thing they want is property owners having anything close to unfettered rights.

<i>Plus, it reaffirms the property right, and I still can't believe a court in this country so casually dismissed that.</i>

Look, as I said, I don't support Kelo. I just think you are on much stronger ground arguing that it is an unjustifiable intrusion on property rights (and that the "urban blight" label is so often a cover for racism and discrimination) than you are claiming that its overturn will necessarily return us to a state of limited government. Many of these projects that rely on eminent domain are "public-private partnership" projects with a big component of central and community planning supported by residents and politicians. If they have to have the government do it by itself instead, they quite likely will.
6.11.2009 5:39pm
rosetta's stones:


Do you really think communities jump in to support this stuff... shopping malls? I don't.




Yeah, having lived in suburbs for much of my life, I do. You seem to think that suburban residents are closet libertarians just waiting to throw off their big government shackles. I can tell you with quite a fair amount of certainty that they are not. They love urban planning, they love dickering over land use issues, they love having a voice in these sorts of decisions, and the last thing they want is property owners having anything close to unfettered rights.


Dilan, I've lived in suburbs for much of my life, as well, and have acted on both the business side and the planning side of work out there, for a fair amount of suburban development, in which I've yet to come across the use of eminent domain exercised for a private development. That's an urban law exercise, as you should know, and suburbs and exurbs can be readily developed without it. Extra wild cards aren't sought after, certainly not by rip-and-run developers, as most are. They want certainty, and cash out time well defined. Recalcitrant property owners are wild cards.

The more appropriate analogy is a zoning change out there in the 'burbs, which the 'burban governments get greased for of course, but that's a whole 'nother story. Eminent domain as exercised on private property out in the 'burbs is just about always if not exclusively exercised for historically recognized public uses, I'd say. I've taken houses for roads, for example. Private developers have plenty of options out there in the cornfields, if they can get the zoning squared away. Let's put aside the suburban analogies to Kelo, because it's a distraction. This is a big government urban issue in practice, even if we're arguing theory.





Look, as I said, I don't support Kelo. I just think you are on much stronger ground arguing that it is an unjustifiable intrusion on property rights (and that the "urban blight" label is so often a cover for racism and discrimination) than you are claiming that its overturn will necessarily return us to a state of limited government. Many of these projects that rely on eminent domain are "public-private partnership" projects with a big component of central and community planning supported by residents and politicians. If they have to have the government do it by itself instead, they quite likely will.


No, they will not "quite likely" become developers and/or owner-operators, and I simply disagree with you that government will be forced or even allowed to get into those roles. The people aren't clamoring for this, it comes about in a smoky backroom. A few politicians and their buddies collaborate. And, they always find ways to drain the government treasury in executing these developments. Like I say, this is a witch's brew, once governments get into these DDA's and authorities. If they stood alone, I doubt they happen. The courts shouldn't be facilitating that brew.

Take urban government out of the equation, and we have the Palace of Auburn Hills. Private money. Out in the cornfields. Profitable. And its existence outside Detroit certainly limits the Detroit government, as we know.

Urban stadiums are money losers, but all in recent times use the methods you're suggesting here. Bill Davidson rejected the City of Detroit precisely because he saw the evil of their acting as a developer, even if Detroit insiders pushed for that action.

I think you're tilting at windmills here. Limits on government limit government.
6.11.2009 6:58pm
Dilan Esper (mail) (www):
That's an urban law exercise, as you should know, and suburbs and exurbs can be readily developed without it.

That's strange. A great majority of suburban shopping districts or malls here in Southern California, and a boatload of other projects such as sports arenas, concert halls, etc., were built using eminent domain powers. In the town of my birth, the city condemned 41 acres in downtown and left it vacant for years while arguing over which developer to give the land to. True story. There's a mall there now.

No, they will not "quite likely" become developers and/or owner-operators, and I simply disagree with you that government will be forced or even allowed to get into those roles. The people aren't clamoring for this, it comes about in a smoky backroom.

"Clamoring" isn't the right word. But there are huge entrenched interests in support of these projects-- construction companies, future tenants, local movers and shakers, etc.-- and they will lobby for a public project if they can't lobby for a public-private partnership. Here in Los Angeles, Tudor-Saliba is just as interested in constructing public buildings like Walt Disney Concert Hall as they are in constructing private buildings like Staples Center.

Take urban government out of the equation, and we have the Palace of Auburn Hills. Private money. Out in the cornfields. Profitable. And its existence outside Detroit certainly limits the Detroit government, as we know.

Funny that you mention sports arenas. 95 percent of them are either constructed as pure public projects or public/private projects, and they are a boondoggle. And lots of them use eminent domain to take the land.

And if you believe that overturning Kelo will cause local governments to stop building them, you are nuts.
6.11.2009 7:38pm
rosetta's stones:
SoCal is one big urban area, to my understanding, so we're likely talking about 2 different scenarios. Redevelopment of previously developed areas would define urban development, and the classic suburban development takes place in a green field. Eminent domain is used in these urban areas, in the redevelopment process.

The "huge entrenched interests" are precisely what I'm talking about... they definitely want big government involvement, as they are the politicians and their buddies who profit from these projects. Their buddies include constructors as you mention, they are major players in the smoky backroom. They'll pay, but I don't think they speak for the public, who would likely be anti this stuff if they were ever exposed to the total tab up front.

Stadiums are slowing down a bit, if you notice. The Palace was one of the first to reject the old model, and I suspect that as money gets tight at the federal level, and the bonds are taxed a bit more (some feel this has been the driver for all these stadium boondoggles), these will go over to the private sector more often. Government has encouraged this stadium boom, and the courts' sanction of the promiscuous use of eminent domain has contributed.

So, the courts and the taxing authority both encourage this behavior. Limit them... limit government... and you reap the benefits. There will still be Palaces. There will still be businesses in that 41 acres you mentioned... they just won't be owned by the alderman's brother in law.
6.11.2009 8:16pm
Dilan Esper (mail) (www):
SoCal is one big urban area, to my understanding, so we're likely talking about 2 different scenarios. Redevelopment of previously developed areas would define urban development, and the classic suburban development takes place in a green field.

That's only if you define a suburb as not a suburb anymore once its backbone is built.

They'll pay, but I don't think they speak for the public, who would likely be anti this stuff if they were ever exposed to the total tab up front.

Doubtful. As I said, I've lived in suburbs all my life, and I've yet to see the public rise up against this sort of thing. The public LIKES having control over these things. People in bedroom communities HATE the thought of large scale developments without their input and political control.

Stadiums are slowing down a bit, if you notice. The Palace was one of the first to reject the old model, and I suspect that as money gets tight at the federal level, and the bonds are taxed a bit more (some feel this has been the driver for all these stadium boondoggles), these will go over to the private sector more often.

Actually they are only slowing down because just about everyone has a new stadium now. But it hasn't stopped. The latest trend is to build separate basketball and hockey arenas (e.g., the Nets and Devils) and to replace recently built structures (the new Orlando Magic arena and the American Airlines Center in Miami).

Trust me, as long as there are local politicians who want to lure sports teams, they will build these things, and they will make the government owned if they have to.
6.11.2009 8:31pm
rosetta's stones:

People in bedroom communities HATE the thought of large scale developments without their input and political control.


Fixed it for you. The public doens't clamor for large scale developments... the insiders do, and do whatever they can to bring them about, and control them to their advantage. We're seeing this here in Detroit, with the Cobo Center expansion. Put to a vote, it goes down hard. The politicians are scrambling for a way to avoid public involvement... and retain control, and get it done despite the people.

Presumably, and without checking, the word "suburban" has roots in "urban", and is commonly used for newly developed properties, not those previously developed, and already urban... as SoCal. So rather than get tangled up in semantics, let's use this practical definition of the type of development in which eminent domain is commonly (and mostly problematically) used... redevelopment of previously developed areas.

I think you're being a bit presumptuous in speaking for the "public". I've seen these authorities go down, when they're put to the vote. Thus, politicians avoid votes, and the messy public involvement, whenever they can. They'd rather deal with their buddies in the smoky backroom.

That's also why you've seen pro sports franchises moving so often over the last 20 years. Local governments don't always drink the koolaid. The Red Wings will stomp the Penguins tonight, a team that was a hair away from moving because Pittsburgh was blocking their new stadium. And that team is very popular... Wings fans are telling me that they wear more Penguin gear around town than they do Wings' gear, and that's quite a statement. But, the public drove a harder bargain than in past years.

This may be more a flyover v. coastal urban difference. I suspect you have a soft spot for the promiscuous use of eminent domain, despite your stated objections to Kelo, and are presuming that the public has one as well. I question that they do, of course. In any event, as times get tight, these things will inevitably slow down, as the public cash is all that makes them go, and they're unprofitable for the public as we know. The courts and the government cash are prime enablers... not the public, which isn't even always consulted.

Get them involved, and the government will be more limited. Get the courts and government money out of it, and even more limitation comes about.

Limited government has its advantages.
6.12.2009 9:48am
Dilan Esper (mail) (www):
I think you're being a bit presumptuous in speaking for the "public". I've seen these authorities go down, when they're put to the vote.

I am not saying they never do. But they pass a lot more often than you are admitting.

That's also why you've seen pro sports franchises moving so often over the last 20 years. Local governments don't always drink the koolaid. The Red Wings will stomp the Penguins tonight, a team that was a hair away from moving because Pittsburgh was blocking their new stadium. And that team is very popular... Wings fans are telling me that they wear more Penguin gear around town than they do Wings' gear, and that's quite a statement. But, the public drove a harder bargain than in past years.

It happens you are picking just about the only 2 teams left in the NHL who don't have new arenas-- and Pittsburgh is getting one in the near future. As has just about every NFL team, NBA team, and MLB team. Your claim about sports stadiums is just loopy-- while every once in awhile, a taxpayer funded one gets voted down, most of the time these things pass and local politicians see them as a road to popularity and reelection. I wish it wasn't so, but it clearly is.

And teams move because someone DID build them a new arena. If nobody will build you one, you are stuck. But, for instance, the Sonics moved to Oklahoma City because Oklahoma City built a new NBA-style arena and lured them in. So even the teams moving doesn't evidence what you think it does.
6.12.2009 12:05pm
women4justice (mail):
I have to say... that i find it ironic that the Milwaukee Journal Sentinal would mock and criticize the Tsiders(sp?) family(owners of Pete's Market) for freedom of speech. Giving a campaign contribution is in the very essence is freedom of speech. Here we have a journalists exercising his freedom of speech criticizing someone else's freedom of speech! What Bigots the Milwaukee Journal Sentinal has employed there. Seems to me like the Milwaukee journal Sentinal is on a witch hunt! How about the countless others, Gwen Moore, Governor Doyle, Pedro Colon, Mayor Barret...... who all receive campaign contributions!. Witkowiak has done nothing wrong.... This area does not need more clubs..... we need food for the people who live in this partial residential area, one of the most density places in the city of Milwaukee. I applaud witkowiak for his decision.......His courage has prevented a man who has spent years getting his act together from holding the community hostage... If he cant get it together now, what does this tell us about how he will act and respond to the community once he has his club in a mostly residential area... If he can't get his act together now... im sure he wouldn't do a good job later. By the way Witkowiak has never, never, gone unopposed. This is the most sought after aldermatic district in the City. It is also the district with the most businesses in it.
6.12.2009 2:17pm
rosetta's stones:


I think you're being a bit presumptuous in speaking for the "public". I've seen these authorities go down, when they're put to the vote.




I am not saying they never do. But they pass a lot more often than you are admitting.


Governments do not always or even often offer these projects up for a public vote, because when they do the insiders lose control... and it's the insiders who drive these... for their own benefit. When they do put them to a vote, they often go down, and I sense more and more of this is happening, and will continue to do so in the new economic environment. As mentioned, Cobo Center is prime example. SoCal, too, is now experiencing the fruits of this new environment. People are leaving. The government's cash flow is down. Because they refused to limit government by choice, their choices will now be limited for them.





"Your claim about sports stadiums is just loopy-- while every once in awhile, a taxpayer funded one gets voted down, most of the time these things pass and local politicians see them as a road to popularity and reelection. I wish it wasn't so, but it clearly is."


Again, I'm not convinced you're sincere in your wishes, and still reserve for government a promiscuous use of eminent domain. You're certainly doing your best to make a strong case for it, or at least an excuse, as local governments slouch towards bankruptcy.

In any event, these things are going down more and more lately, whereas in the past they never did, and sports franchises were extremely stable, and in fact expanding regularly. Now, we seem to be seeing at least one per year moving, and this occurring even before the recent economic downturn. I expect the bottom to drop out, now. Let me know the next time a local government approves one of their pet projects like this. This Milwaukee case is likely over a decade in the making. Cases involving the new environment won't be ripe for another 10 years, I suspect. I'd (boldly) predict those cases'll involve land speculators, suing to force projects that their inside influence hasn't been capable of bringing to fruition.



And teams move because someone DID build them a new arena. If nobody will build you one, you are stuck. But, for instance, the Sonics moved to Oklahoma City because Oklahoma City built a new NBA-style arena and lured them in. So even the teams moving doesn't evidence what you think it does.


Of course it does. A local government doesn't drink the koolaid, and makes the first steps toward limited government, and you're discounting this. Remember, these are urban areas making that decision, very much prone to the big government schemes that we're discussing here, and it is they who turn down these projects. This is evidence... significant evidence. It marks the end of an era, and these eras occur over generations... not 5 or 6 franchises, or 5 or 6 years.

The era that's ending was predicted by some decades ago, when the feds approved these types of bonds, for these projects. Liberals and conservatives alike, some anyway, predicted what we've seen, and that these projects wouldn't pay off for the communities. They haven't. And now they are unaffordable. Really, they always were, just that the insiders succeeded in driving them home. Now, they're out of cash to support these manipulations.


We're getting a bit off track here, talking about sports stadiums, but it is instructive as to the global issue of government acting as developer, and as to examples of failed public policy and the use of eminent domain in government's execution of them. Now that this era is ending, I think you're about to see that your point is mistaken. Not because you want it to end, because I don't think you do. These urban governments are and will be forced to drop their grand (and often corrupt) schemes.

Government will be limited for them, not because of them. And it's happening in those urban areas, most prone to this nonsense. It's happening right here in Detroit. It will happen in SoCal. It has to. The money ain't there.

Be nice if the courts would also jump on this, rather than enabling the previous era's madness.

And keep in mind, both parties to this Milwaukee case were likely in on a scam, a scam based upon that previous era.

I just have one question. Is Obama going to attempt to complete the circle, and take us back to the era of "urban renewal", which first spawned this madness? 30-40 years ago, "urban renewal" was a running joke, and indicative of the failures of big government, and even liberals thought so. But, they jumped on it as regards these types of projects you seem to favor... as long as they and their buddies could profit. So, we transitioned to the current era, which is now also shown to be failing as public policy.

Will Obama push for return to that previous era, 2-3 eras back? This article seems to harken back to that time. All we need is for a few minorities to be declared blights, and thrown out of their homes, and we're in business.

But, he has to run the printing presses in order to pay for this, because it's a new era, all the way around. Will he?
6.13.2009 10:13am
Victor Ray (mail):
I want to thank you for passing on material that concerns the Area of
Walkers Point or things we can do to improve our city. I am not pleased
at all with the letter of Commendation given by Dr.Baezin in regards to
the taking of property via the 'legal' classification of eminent domain.
I do not agree with this in regards to a person who pays their taxes and
have a dream for their lives. Because this person wants to build a night
club and we do not agree....it gives us the right to take his property?
Our esteemed Alderman is again abusing his power in my opinion.....the
same abuse he used when he was giving those licenses to McGee when he
sat just two years ago on the License Committee- Aldermanic privilege it
was called then....Instead of sound moral judgment. And if the accounts
in the newspaper are correct, Jim again took money for his legal ruling
on eminent domain, this time the donations appears in his records.

Alderman Witkowiak has sat as the head of the Licensing Committee for 8
years; he approved many businesses for liquor and denied a few. Why
could he of not denied Mr. Catena's his dream of a liquor establishment
and worked with him to build a new dream, instead of taking his
property? To my knowledge this man has done no wrong or committed any
crime worthy to strip him of his property.

In the area of Walkers Point sits a home boarded up on 5th Street.
Alderman Witkowiak continues to break the law and leaves that house
boarded up. In an article in the paper....he said....its easier to just
pay the fines than put windows into house. Walkers Point suffers due to
another abandoned house owned by Esteemed Alderman keeps boarded up.

Michael instead of commendation to our Esteemed Alderman....I think he
should be investigated for political fraud. Something does not feel
right nor smell right in yet another position this man holds again.
6.15.2009 12:24pm
Jess:

The Red Wings will stomp the Penguins tonight...


Just in case anyone here doesn't watch hockey, this didn't happen. As a long-suffering Blues supporter, I can't say I'm sad about it. I don't know if this undermines any of rosetta's other points; I'm certainly in favor of limited government.
6.15.2009 1:18pm

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