Friday, June 24, 2005

Power To The Planners, Right On: Kelo Case Decided

With apologies to John Lennon.

The opinion of the Supreme Court in Kelo is here.

The transcript of the oral argument in the case is here.

Here is an article on Kelo by law prof Richard Epstein.

And here is an interview from Reasononline with Kelo's attorney Scott Bullock on what lies ahead for property rights in the wake of Kelo.:


Never Mind the Kelo, Here's Scott Bullock
The attorney who argued the landmark eminent domain case surveys the blightin the wake of the Supreme Court's decision. A Reason interview.

Tim Cavanaugh

Scott Bullock, senior attorney at the Institute for Justice, represented the plaintiffs before the U.S. Supreme Court in the landmark eminent domain case Kelo vs. City of New London. He spoke with Reason in the wake of yesterday's decision in favor of the city.

Reason: Are you surprised by the decision?

Scott Bullock: Well I was surprised. It was rather shocking that a majority of the Supreme Court would permit this type of abuse. We're in an America where, as Justice Sandra Day O'Connor points out, church property can be taken for a Costco, a farm can be turned into a factory, and a neighborhood can be leveled for a shopping mall. Most people cannot believe that this can happen in this country and the Supreme Court gave sanction to that with their decision.
Reason: What did you make of Justice Anthony Kennedy's vote against the plaintiffs?
SB: Yeah, it was surprising. I mean here's a guy who once wrote "individual freedom finds tangible expression in property rights." For him to be in a decision that fundamentally violates the right to own and enjoy your property, I think, is disgraceful.

Reason: Is there any recourse to the plaintiffs now?

SB: There is. There are going to be battles on two fronts. One, we're going to do everything in our power to keep these people in their homes. And we're going to explore all options to do so. But one thing that's coming out of this opinion that's very clear is that people are furious about this. And the anger comes from the left, right, libertarians, and everybody in between. People cannot believe that the court sanctioned something like this. So, I think that the growing grassroots rebellion against this is going to gain momentum. And I think that you'll see litigation about this in state courts, where the battle will largely be, at least for the time being. And you'll see a number of legislative changes though both legislatures and then also through the initiative process, as well. And we'll be there every step of the way to make sure that these abuses stop.
Reason: Given how many frivolous Constitutional amendments get proposed there days, why isn't there a serious movement for an amendment that would more narrowly define eminent domain powers?

SB: There's already discussion of doing so. And, as I said, this is a time to really think big about these issues because it's clear that a narrow majority of the Supreme Court has given the potential for businesses and local governments to work together to take people's land. And I think it was a real wake-up call to people that something has to be done about this. And hopefully we'll see some major changes.

Reason: How is this going to affect lower court decisions in other eminent domain cases, such as the Michigan Supreme Court's reversal of the Poletown decision last year?

SB: What's important to point out is that even the majority admitted that state courts are free to interpret their own provisions in a manner that's more protective of property rights. Thankfully, every state Constitution has prohibitions against private takings and a requirement that takings be for public use. And, only six states have held that economic development condemnations are Constitutional. Nine have held that they are not. And most states have not addressed it.

Reason: States that have ruled in favor include Connecticut, presumably?

SB: Connecticut, Kansas, Maryland, Minnesota, New York and North Dakota: Those are the states that have said that this is acceptable to their state constitutions. Nine states have said that it's not. And then, most states have not addressed it. So, state courts, when this issue comes before them, are free to give greater protections to property owners and hopefully stop this practice in their states.

Reason: Speaking of private economic development, the import of the decision has largely been seen as clearing the way for seizures for private economic development, but that's not really unprecedented. Even railroads were private endeavors. So are we seeing something new here or does this decision just affirm the status quo?

SB: It's very different from something like a railroad. A railroad typically follows a very narrow strip of land. Railroads and utilities are what are known in the law as something called common carriers. So even though they might be privately owned, they're really the equivalent of public bodies because everybody, the public, has an equal right to them. Everybody has a right to the utility line. And they're very tightly controlled by public officials, so they're really the equivalent of public bodies; that's why the court upheld them. Here, we're talking about ordinary private uses of land—taking somebody's home for a Costco, taking Church property to give to another private owner. That's why this opinion is so sweeping and it's so far removed from even what the courts did in the railroad cases, or even in the situations involving blight. Because even in those cases, the government had to show that there was some type of harmful condition to that land before it was justified for condemnation. Here, the court said, whatever land the developers happen to desire is up for grabs.

Reason: The irony is that we're in this period of resurgence for American cities. Most major cities are doing better now than they have in decades, and arguments about urban blight are a hard to make. Given yesterday's lifting of the need to prove an area is blighted, how do you expect that to play out?

SB: I think it puts more and more properties up for grabs because here it will be dependent, not on whether or not the property is blighted, but whether it happens to be desired by private parties. So you're going to see people of less economic means, poorer folks, middle class folks who happen to live in the city and live in desirable neighborhoods that are going to be targeted by these types of takings. That's the real travesty of this, and that's one of the strongest points made by Justice O'Connor and Justice Thomas, that this is going to fall hardest on people of limited financial means. And it's going to be to the benefit of the wealthy and government.

Reason: One of the disheartening aspects of this decision is that two of the four dissenters are not long for the court. Justice William Renquist is pretty ill and Justice O'Connor is said to be close to retiring. Do you have any predictions about how a change in the Supreme Court composition will affect property rights?

SB: Well, I don't know. These things are always hard to predict. Look at Justice Kennedy's track record on property rights. But this is also the case where you could have a member of the court that might be more of the left, but might come to a very different decision from what some of the more liberal members of this court decided. As I mentioned, there are a number of people who are concerned about civil liberties, concerned about decisions that affect the poor, minorities, who are outraged about this.

One point you hear from some people who are trying to defend this decision is that the government went through a planning process in this case and this is part of a well-developed plan. The idea that having a plan and going through a planning process protects property owners in any way is completely disconnected from reality. I mean, every development in this country has a planning process. You can't just show up in an open field one day and say, "Well I'm here to build my office park." Everything in this country has to go through a process, has to be announced, has to have hearings, and to think that this provides any protection for property owners who face the loss of their homes and small businesses is nonsense. And it shows how some members of this Court and how some defenders of this policy don't understand how these things really pan out in the real world.

Reason: Can you give some examples of other eminent domain abuses among the 10,000 cases you guys have cited?

SB: I'll give you one primary example that's brewing in Long Branch, New Jersey right now, where a group of people want to hang on to their working-class beach homes. They've worked very hard to get their modest bungalows along the shore. These houses were purchased just by working class folks in Newark and other places, and now many of the elderly residents live there full-time; these are their dream homes. And the City of Long Branch is just proposing taking these people's homes and transferring them to wealthier home-owners. They want to tear them down and build million-dollar condominiums for people right along the shore in northern New Jersey. And so it's a classic example of taking the property of poorer folks and giving it to wealthier folks, and using it for the same purpose. It's just a transfer of wealth between home owners. It's a classic example of eminent domain abuse and one that I think will be litigated in the very near future.

Reason: Is that going to be a new wrinkle, that the property is going to be used for the same purpose?

SB: Well, possibly. There are a number of ways to challenge these types of takings. And I'm sure there will be many issues that are brought up in that case and some of the other ongoing controversies.

Reason: Where are the real outrages happening? Is New London more typical, or is something like Washington, D.C.'s stadium grab a more characteristic situation?

SB: The problem is that there are so many examples of eminent domain abuse. It's hard to find one that captures it entirely. New London was a classic example of this, but there are several others as well. They typically fall under two categories: One, is when the government takes land just simply to produce more tax revenue. That was the situation that was going on in New London. The other thing is what we call the abuse of blight laws. An example of that is a case we were involved in in Lakewood, Ohio, where the government uses blight laws simply as a means to an end. They're not really concerned about conditions in the neighborhood; they simply want to have it declared blighted so they can get the property and transfer it to private developers. The criteria that the City of Lakewood used to get the neighborhood declared blighted included such things as that the homes were lacking central air conditioning, didn't have an attached two-car garage, or lacked full bathrooms. It was really a means to an end, and the abuse of blight laws is an ongoing controversy and also encompasses a lot of the examples we point to of eminent domain abuse.

Tim Cavanaugh is Reason's web editor

Monday, June 20, 2005

7th Circuit College Student Speech Case

From How Appealing:

En banc U.S. Court of Appeals for the Seventh Circuit announces ruling in Hosty v. Carter: You can access today's 7-4 ruling at this link. The Student Press Law Center previously referred to this case as "The Latest Battle for College Press Freedom."

A unanimous three-judge Seventh Circuit panel had ruled in favor of the student-plaintiffs in a decision you can access here, thereby affirming the federal district court's ruling in the case. Today's en banc majority reaches the opposite conclusion, holding that the U.S. Supreme Court's ruling in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), applies in the setting of a university.

Friday, June 10, 2005

Oral Argument in 9th Circuit School Speech Case

From How Appealing:

Access online the audio of the Ninth Circuit's oral argument in appeal filed by high school student suspended for wearing T-shirt condemning homosexuality: You can download the oral argument audio (Windows Media format) in this interesting case by right-clicking on this link and saving the audio file to your computer.

Thursday, June 09, 2005

Supreme Court Nomination Blog

Check it out here. Here is a recent post analyzing possible Bush Supreme Court nominees and the probable degree of opposition from the Democrats:

Wednesday, June 08, 2005
The Most Often Mentioned Candidates And The Prospects For A Senate Fight
Posted by Tom Goldstein at 06:45 AM

Here is my previous list of potential nominees, sorted into categories reflecting my sense of whether they would produce a moderate, substantial, or severe confirmation fight. Note that the premise of these categories is that each of the widely discussed potential nominees is likely to produce Democratic opposition - some, very substantial opposition - because each is quite conservative.

In the Judiciary Committee, I expect that all these nominees would be successfully recommended to the floor, although in a few instances with very considerable difficulty and under great pressure from the Senate leadership. Those in the Mild category would receive a few Democratic votes; Substantial would receive a few (and perhaps none); Severe would receive none.

On the Senate floor, I expect that all these nominees would receive a majority vote, although again in a few instances with some difficulty and as a consequence of loyalty to party. Those in the Mild category would not be subjected to an attempted filibuster; Substantial would be subjected to the discussion of a filibuster and possibly an attempt, with the outcome uncertain except that Republicans would regard the recent pact as having been violated and would successfully impose the nuclear option; and Severe would be subject to a successful filibuster with the outcome regarding the nuclear option uncertain.

To reiterate, because the blog is new, the list doesn't represent any view on whether a particular nominee should be supported or opposed. Rather, it represents my prediction of what would occur.

Moderate

Alberto Gonzales - Attorney General

John Kyl - U.S. Senate

Larry Thompson - General Counsel, PepsiCo (former Deputy Attorney General)



Substantial

Samuel Alito - Third Circuit

Edith Brown Clement - Fifth Circuit

John Cornyn - U.S. Senator

Emilio Garza - Fifth Circuit

J. Michael Luttig - Fourth Circuit

Michael McConnell - Tenth Circuit

Ted Olson - Gibson, Dunn & Crutcher (former Solicitor General)

John Roberts - D.C. Circuit

J. Harvie Wilkinson - Fourth Circuit



Severe

Janice Rogers Brown - California Supreme Court (soon to be on the D.C. Circuit)

Edith Jones - Fifth Circuit

No (Free Speech in) Canada

The CBC has this report about "hate speech" laws in Canada.


Police investigating Christian activist for hate crimes

Last Updated Wed, 08 Jun 2005 12:52:47 EDT
CBC NEWS


Two thousand leaflets attacking gays and lesbians have put a Christian activist in western Canada under investigation by Edmonton police for hate crimes.
The flyers by Bill Whatcott of Regina refer to gay marriage as "sodomite marriage" and use graphic language to describe the alleged sex practices of homosexuals.
The handouts also used derogatory terms to describe federal Defence Minister Bill Graham.
Whatcott stuffed his pamphlets into mailboxes in the riding of Deputy Prime Minister Anne McLellan, and some recipients complained to police.
"The material is offensive and it's an affront on the basic tenets of our society, which is about multiculturalism, tolerance and peaceful co-existence," Const. Steve Camp, of the Edmonton police hate crimes unit, said.
The Pride Centre of Edmonton said it would take the case to the Alberta Human Rights and Citizenship Commission if no criminal charges arise from the police investigation.
Whatcott has led protests across Saskatchewan and Alberta against abortion and gays.
He says he was a gay prostitute until age 18 to pay for a drug habit, then became leader of a small group called the Christian Truth Activists.
Last month, the Saskatchewan Human Rights Tribunal fined Whatcott $17,500 for handing out similar material.
But he has refused to pay the fine, calling the tribunal a "kangaroo court."
Whatcott doesn't sidestep responsibility – he prints his name and telephone number on his material – and he says he's had at least 50 angry callers.
But he says he won't stop because he has a right to free speech.
He told opponents: "Tough, you live in a democracy."

Query: If "peaceful co-existence" is one of Canada's basic values, shouldn't the law permit speech from all points of view on issues of public concern (such as gay rights and same-sex marriage)?

Or should the violence of the law be employed against some groups that engage in peaceful expressive activities that other groups find offensive?

Do these kinds of "hate speech" laws codify intolerance in the name of tolerance? In other words, do these laws effectively say "everyone must tolerate everyone else, and if you disagree and say something critical about someone else, you will go to jail, you miserable, Bible-thumping cretin"?

Is Canada truly a "tolerant" country that respects "diversity" and pluralism? Or does it merely tolerate certain subgroups (those it likes) while suppressing others (those it dislikes)?

Tuesday, June 07, 2005

Important 11th Circuit RLUIPA Case

Konikov v. Orange County. The opinion is here. And here is a local newspaper article on the case. Here is a key excerpt from that article:

A rabbi who angered his neighbors by holding religious services in his south Orange County home has won a temporary, but empowering victory, thanks to a federal appeals court decision.

On Friday, the U.S. Court of Appeals for the 11th Circuit decided that the case involving Rabbi Joseph Konikov and Orange County zoning officials should head back to federal court in Orlando.

The decision could prolong a case that places religious freedoms at odds with the rules governing strictly residential neighborhoods in Florida. The issue could even head to the U.S. Supreme Court.

But, for now, Konikov and his lawyer are savoring the court's ruling.

"Today, with the help of God, the matter has been resolved," Konikov said Monday.

"Yes, as a peaceful, law-abiding citizen, I do have the right to worship. I do have the right to assemble. I do have freedom of speech -- all in the privacy of my home," he said in a prepared statement.

Three years ago, the Orange County code-enforcement board slapped Konikov with fines for refusing to stop religious services at his home in the Sand Lake Hills subdivision. Neighbors had complained the services caused traffic and parking problems.

After Konikov started getting fined in 2002, he filed a lawsuit challenging the county's zoning code and calling it unconstitutional.

A federal court in Orlando issued a summary judgment in the case, siding with Orange County and dropping Konikov's complaint. But Konikov appealed. Friday's appellate court decision partially reverses the lower court's ruling and notes potential problems with the county's code.

The appellate court found that nonreligious gatherings, such as biweekly scout meetings or regular parties to watch sports on TV, would not violate the county code, while Konikov's gatherings would.

"In other words, a group meeting with the same frequency as Konikov's would not violate the code, so long as religion is not discussed," the court's opinion states. "This is the heart of our discomfort with the enforcement of this provision."

In another part of the 31-page decision, the court stated that by applying different standards for religious and nonreligious gatherings with the same effects on the neighborhood, the code enforcement board "impermissibly targets religious assemblies" under federal law.