PROPERTY E SLIDES

1. PROPERTY E SLIDES 2-14-13

2. Student Concerns re Meaning of “Public Use” • Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5th Amdt Govt Often Didn’t Pay) • Some Folks Tuesday Wanted to Argue Violation of Constitution b/c Not Good/Best Program • Argument Not Available If Applying Rational Basis • Under Rational Basis, Gov’t Almost Always Wins Unless Strong Evidence That Purpose is Not Legitimate • Underlying Assumption is that Remedy for Bad Program is Political, Not Judicial

3. Student Concerns re Meaning of “Public Use” • Under Rational Basis, Can’t Argue Violation of Constitution b/c Not Good/Best Program • Different from Jacque-Shack-JMB in Chapter 1 • Decision to Apply Rational Basis Usually Decides Case • Thus, Party Challenging State Govt Action Has to Argue that Rational Basis Doesn’t Apply: • Kelo Majority & Concurrence Provide Suggestions re Circumstances Where Court Wouldn’t Defer • State Constitutions May Require Different Tests

4. MIDKIFF  KELO • Midkiff decided in 1984 • Rational Basis = Test for “Public Use” in 5th Amdt • Means “Public Use” Provides Almost no Limit on Eminent Domain • However, not very controversial at time • Kelo decided in 2005: • Country more conservative; more concerned w Property Rts • USSCt very different than in 1984

5. US SCt 1984  2005& Introduction to US SCt Abbreviations • Burger, CJ (1969) (BGR) Rehnquist CJ (1986) (RNQ)* • Rehnquist (1972) (RNQ) Scalia (1986) (SCA)* • Powell (1972) (PWL)  Kennedy (1988) (KND)* • Brennan (1956) (BNN)  Souter (1990) (SOU)* • Marshall (1965) (MSH)  Thomas (1991) (THS)* • White (1962) (WHT)  Ginsberg (1993) (GIN) • Blackmun (1970) (BMN)  Breyer (1994) (BRY) • Stevens (1975) (STV)* • O’Connor (1981) (OCR)* * = Appointed by Republican President

6. MIDKIFF  KELO • Kelo essentiallybrought by Conservative NGOs [Non-Governmental Organizations] Focused on Property Rights • NGOs represented homeowners (who can’t otherwise afford to take case to US SCt) • Hoped that Change in Justices & American Politics would Lead USSCt to Overrule Or Limit Midkiff

7. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt., Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards • Poletown • Hatchcock

8. KELO : Majority Opinion • Doesn’t seem to change law very much • Reaffirms Berman & Midkiff • Talks about deference to state legislation • Although majority doesn’t explicitly use Rational Basis language, Kennedy concurrence does • Again, however, provides some suggestions about where deference [& presumably rational basis] not appropriate (went through yesterday)

9. DQ38: KELO Majority OpinionPossible Limits on Deference Include: • If purpose is purely private benefit, not OK • Transfer from one citizen to another of one parcel b/c will put to better use: suspicious w/o plan • Helpful Kelofacts listed; might get different result if not present: • State statute authorizing • Comprehensive plan • Thorough deliberation

10. KELO : Kennedy Concurrence Why is Kennedy Concurrence Especially Important?

11. DQ38: KELO Kennedy ConcurrencePossible Limits on Deference Include: • No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. (1stpara. P187)

12. DQ38: KELO Kennedy ConcurrencePossible Limits on Deference Include: • No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. • Close review of record if plausible assertion of favoritism (2d para. P187) • Triggers O’Connor’s “stupid staffer” comment

13. DQ38: KELO Kennedy ConcurrencePossible Limits on Deference Include: Showing that ED intended to benefit private party w only incidental or pretextual public benefit. (1st para. P187) • Unclear in context whether focused on intent or effect or both: • Intent: Primary Motivation v. Pretextual • Effect: Primary Benefit v. Incidental • We’ll Revisit Q with Poletown version of test

14. DQ38: KELO Kennedy ConcurrencePossible Limits on Deference Include: • No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. • Close review of record if plausible assertion of favoritism • Might be private transfers where risk of favoritism so high, need presumption of invalidity

15. DQ38: KELO Kennedy ConcurrencePossible Limits on Deference Include: Might be private transfers where risk of favoritism so high, need “presumption of invalidity” (4th para. P187) • No specific examples given • List of facts on P187-88 that are protections ag. “favoritism”; if some or all of these are missing, could argue “presumption of invalidity” should apply.

16. KELO : Kennedy Concurrence Kelo Facts: Protections against “Favoritism” • Comprehensive plan • Serious city-wide economic crisis • Real economic benefit • Identity of beneficiaries mostly unknown (like Midkiff) • Elaborate procedures to produce reviewable record

17. DQ38: KELO Kennedy ConcurrencePossible Limits on Deference Include: • No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. • Close review of record if plausible assertion of favoritism • Might be private transfers where risk of favoritism so high, need presumption of invalidity (cf. Kelo listed facts)

18. KELO : Kennedy Concurrence Qs on Concurrence?

19. Applying KELO Majority & Kennedy Concurrence Review Problem 2B (Monday Everglades) • Apply Rational Basis Test • Identify Facts that Majority or Kennedy Might Say Suggest Rational Basis Inappropriate • Discuss Whether, Overall, Enough Reasons for Concern to Forego Deference/Rational Basis

20. DENALI: Kelo Dissents & DQ39-41 Denali Caribou

21. DENALI DQ39: O’Connor Dissent • Justice O’Connor wrote the majority opinion in Midkiff. • How does she distinguish that case in her dissent in Kelo?

22. DENALI DQ39: O’Connor Dissent • Justice O’Connor wrote majority opinion in Midkiff. Distinguishes Kelob/c Govt Purpose/ Public Benefit… • Was Purchase Itself in Midkiff • Was Resulting Private Ownership in Kelo Is distinction convincing?

23. DENALI DQ40: Thomas Dissent • Justice Thomas advocates rule in his dissent: • Govt Must Own -OR- • Public Must Have A Right to Use • Strengths of that approach? • Weaknesses of that approach?

24. DENALI DQ40: Thomas Dissent • Why does Justice Thomas believe that the interests of poorer citizens and people of color are particularly threatened by the majority’s approach? • Convincing?

25. DENALI DQ40: Thomas Dissent • (P192) Refers to CaroleneProducts FN4 • “discrete & insular minorities” • Suggests less deference appropriate • Not clear how he would apply in practice • To get Heightened Scrutiny because of these concerns, normally would need strong evidence of discriminatory purpose by govt (hard to do) Qs on KeloDissents?

26. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt., Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards (Generally) • Poletown • Hatchcock

27. Public Use Under State Constitutions • States often have stricter tests than feds: • Already seen in JMB/Pruneyardre 1stAmdt • Allows states to craft rules based on different balance of interests given forms of local govt, needs of state etc. • Kelosuggests that • stricter state rules may be appropriate given local concerns • great federal deference OK given that states can do more • DQ41: (Leave for you) I tend to agree w Kelo, but you don’t have to. Regardless, should try to formulate pro & con arguments.

28. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt., Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards • Poletown • Hatchcock

29. DENALI: Poletown & DQ42-43 Denali Caribou

30. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Remind us of key facts from Poletown

31. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Midkiff: Rational Basis Test • Identify Purpose • Is Purpose Legitimate? • Are Means Rationally Related to Purpose?

32. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Arguments Under Kelo Majority?

33. DENALI: DQ42 Apply Federal Cases to Facts of Poletown KeloMajority: 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

34. Poletown Primary Beneficiary Test: Possible Readings Public must be “primary beneficiary” & private benefit merely “incidental” • Possible readings of “primary beneficiary” test: • Quantitative weighing of public v. private benefit • Primary purpose (see KND CCR) • Who is driving the deal? For Monday 2/18: DENALI: DQ43: APPLY TO KELO GLACIER Apply as part of Rev Prob 2C