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State Tests for Public Use

State Tests for Public Use. Michigan tests as examples ROYAL PALM: DQ84 FICUS: DQ85-87. POLETOWN & ALLENTOWN. ROYAL PALM: DQ84 APPLICATION OF PRIOR TESTS TO POLETOWN FACTS. Midkiff : Rational Basis Test Identify Purpose Is Purpose Legitimate? Are Means Rationally Related to Purpose?.

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State Tests for Public Use

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  1. State Tests for Public Use • Michigan tests as examples • ROYAL PALM: DQ84 • FICUS: DQ85-87

  2. POLETOWN & ALLENTOWN

  3. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Midkiff: Rational Basis Test • Identify Purpose • Is Purpose Legitimate? • Are Means Rationally Related to Purpose?

  4. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Majority?

  5. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Majority: Partial Analysis • Not OK if purpose is purely private benefit. (Not true in Poletown) • Suspicious if transferring from one citizen to another b/c will put to better use. (Arguably true in Poletown) • Different from Kelo b/c no comprehensive plan or thorough deliberation

  6. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Kennedy Concurrence?

  7. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS KND Concurrence: Partial Analysis • Pro: serious economic crisis; public benefit significant & arguably not incidental • Con: known beneficiary; lack of comprehensive planning • Hard Q: Is acceding to GM’s specific demands “favoritism” or sensible way to achieve big economic benefit?

  8. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS Used if land ends up in private hands • Public must be “primary beneficiary” & private benefit merely “incidental” • Public benefit must be “clear and significant”

  9. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS • Public must be “primary beneficiary” & private benefit merely “incidental” APPLY TO KELO

  10. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS • Possible readings of “primary beneficiary” test: • Quantitative weighing of public v. private benefit • Primary purpose (see KND CCR) • Who is driving the deal?

  11. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS (2) Public benefit must be “clear and significant” APPLY TO KELO

  12. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS (2) Public benefit must be “clear and significant” (possible meanings) • Assume both words have meaning • Clear (as opposed to “speculative”) • Significant (as opposed to “marginal”)

  13. Significance of Poletown Tests • Poletown overruled by Hatchcock • Poletown tests still used by other states (like Restatement 2d & Carpenter I) • Can still use Poletown facts as example of how the tests could be applied

  14. FICUS: DQ86-87 In Hatchcock, theMichigan Supreme Court articulates three “situations” where property acquired through Eminent Domain can legitimately end up in private hands.

  15. FICUS: DQ86-87 Hatchcock’s three “situations” • Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) • Justification: overcome high transaction costs • OCR P189: Hard to determine if really necessary • DQ87: Merrill would apply in all Eminent Domain cases (not just private recipients)

  16. FICUS: DQ86-87 Hatchcock’s three “situations” • Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) DQ86-87:Apply to facts of Kelo

  17. FICUS: DQ86-87 Hatchcock’s three “situations” • Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) DQ87:Apply to facts of Poletown

  18. FICUS: DQ86-87 Hatchcock’s three “situations” NOTE: Hatchcock • overruled Poletown & • struck down use of ED to create 1300-acre business & technology park. So must have believed that bothwould fail all three tests.

  19. FICUS: DQ86-87 Hatchcock’s three “situations” (2) Private entity remains accountable to public for its use • Could make private ownership contingent on particulars • Govt could retain say in management Justification?

  20. FICUS: DQ86-87 Hatchcock’s three “situations” (2) Private entity remains accountable to public for its use • Could make private ownership contingent on particulars • Govt could retain say in management Justification: Not entirely private use if some public control

  21. FICUS: DQ86-87 Hatchcock’s three “situations” (3) Selection of land based on public concern • Justification: “Public” part is the taking of the land itself, not who ends up with it. • O’Connor position in Kelo • True in Berman and (arguably) Midkiff • Not true in Kelo & Poletown

  22. CHAPTER FOUR REVIEW • Federal Standards • Midkiff facts & Rational Basis Test • Kelo facts & positions in all 4 opinions • State Standards • Poletown facts & tests (apply in other states) • Hatchcock tests (apply in Michigan) • Underlying Policy Concerns • Re Eminent Domain in general • Re Public Use

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