PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-13-14

2. Thursday Feb 13 Music: Michael Bublé, It’s Time (2005) Lunch Today: Meet on Brix @ 12:25 S.Gallagher, George, Giles, Halmoukos, Ireland, Schiff Arches Reminder: Critique of Rev. Prob. 2B Due Today @ 10am

3. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown • City of Seattle • Hatchcockcont’d (Sitation #3) • Kelo & Beyond

4. State “Public Use” Standards: The Three Hatchcock “Situations” Hatchcock: Public Benefit is insufficient; only 3 “situations” where property acquired by EmDom legitimately ends up in private hands: (1) Public Necessity: : Project is important & only way to do project is through Eminent Domain; --OR-- (2) Accountability: Private entity remains responsible to public for its use; --OR-- (3) Selection: Particular parcel(s) chosen based on facts of independent public significance.

5. BISCAYNE: DQ2.11-2.12 SUNRISE AT ADAMS KEY

6. State “Public Use” Standards: The Hatchcock “Situations” DQ1.11-1.12 (Biscayne) (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. • Means? Examples?

7. State “Public Use” Standards: The Hatchcock “Situations” DQ1.11-1.12 (Biscayne) (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. • Means: Can justify choice of land w/o reference to desires/ultimate uses of private entity. • Examples: Urban Renewal (Berman) • Justification: “Public” part is taking of the land, not who ends up with it. Application to facts of Midkiff?

8. State “Public Use” Standards: The Hatchcock “Situations” DQ1.11-1.12 (Biscayne) (3) Particular parcel(s) chosen based on facts of independent public significance. • Can justify choice w/o reference to desires/ultimate uses of private entity. • Application to facts of Midkiff? • Purpose seems to be to get it out of hands of land oligopoly • BUT selected by private tenants who want to reside there. • OCR in KeloDissent says Midkifffits this category. Application to facts of City of Seattle?

9. State “Public Use” Standards: The Hatchcock “Situations” DQ1.11-1.12 (Biscayne) (3) Particular parcel(s) chosen based on facts of independent public significance. • Can justify choice w/o reference to desires/ultimate uses of private entity. • Application to facts of City of Seattle? • No evidence of harm from existing use. • Fact that it would be good retail space would seem to reference desires and uses of private entities who will occupy space.

10. State “Public Use” Standards: The Three Hatchcock “Situations” (1) Public Necessity: Project is important & only way to do project is through EmDom; (2) Accountability: Private entity remains responsible to public for its use; (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. NOTE: Hatchcockoverruled Poletown& struck down use of EmDom to create 1300-acre biz/technology park, so Mich. S.Ct. must have believed that bothprojectswould fail all three tests. Poletowntests survive in other states. Qs on Hatchcock “Situations”?

11. LOGISTICS • Change in Date of Test on Estates & Future Interests • Had been 3/31; same day your brief due!! • Shifted to Mon 3/24 • Means we will shift chapter sequence • Next: Intestacy & Wills • Shift Adverse Possession to March

12. LOGISTICS • I will post later today: • Supplemental Materials from Chapter on Intestacy/Wills • Revised Syllabus & Assignment Sheet • Material on Chapter 3 added for Monday will be lecture only. • Whole class (divided alphabetically) will be up for statutory problems (DQs 3.01-3.06)beginning on Tuesday.

13. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo& Beyond • KeloMajority & Kennedy Concurrence • Facts of Kelo& Application of Earlier Tests • Legal Analysis • Application to Prior Cases • KeloDissents & Merrill • Review Problems

14. Federal “Public Use” Standards: KeloFacts of Kelo • Response to Run-Down Area/Economic Difficulties in New London • Project = Multi-Use Integrated Economic Development • 1. Incorporates Office Space, Residences, Retail, Parking, Park, Museum, Marina, Hotel/Conference Center • 2. Next to Pfizer Site, but Pfizer not Part of Project (cf. Poletown) • C. Plaintiffs are Homeowners Whose Lots are not Blighted • 1. Under plan, becoming retail, office or parking • 2. Primary claim is that shouldn’t be able to transfer from 1 private party to another if only purpose is to achieve economic development

15. Comparison of New London project (Kelo)to Westlake Mall (City of Seattle) • Much Bigger Project in New London • Both More Public & More Private Uses • More extensive planning process • Some of the area taken in New London was blighted • Explicit Legislative Approval for Projects of this Type in CT but not WA (Both cases emphasize this issue)

16. Comparison of New London project (Kelo)to Westlake Mall (City of Seattle) Legal Treatment • Both easy cases under Midkiff (as are virtually all conceivable economic development cases) • New London project is a clear loser under City of Seattle I because substantial land integral to the program will end up in private hands • Application of Poletowntests (I’ll leave specifics for you): • Similar issues for both projects; • New London is probably a stronger case to satisfy the tests b/c of size & scope of project • Kennedy references “Primary Beneficiary” test, so he presumably thinks Kelofacts meet test

17. REDWOOD: DQ 2.13 REDWOODS & FERNS

18. Application of Hatchcock Tests to Facts of KeloDQ2.13(c) (Redwood) • Public Necessity: Project is important & only way to do project is through Eminent Domain? • Accountability: Private entity remains responsible to public for its use • Selection: Particular parcel(s) chosen based on facts of independent public significance.

19. Application of Hatchcock Tests to Facts of KeloDQ2.13(c) (Redwood) • Public Necessity: Project is important & only way to do project is through Eminent Domain • Importance of Project easy to defend • Hard to assemble project this big w/o EmDom unless it could work with gaps. Case says most of land already purchased directrly (P181) so case is about folks who have already said no. • Accountability: Private entity remains responsible to public for its use. No evidence of this; seems unlikely. • Selection: Particular parcel(s) chosen based on facts of independent public significance?

20. Application of Hatchcock Tests to Facts of KeloDQ2.13(c) (Redwood) • Public Necessity: Project is important & only way to do project is through Eminent Domain • Accountability: Private entity remains responsible to public for its use. • Selection: Particular parcel(s) chosen based on facts of independent public significance? • OCR says not. • A lot of land in Q wasn’t blighted and was chosen to put to a better economic use.

21. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo& Beyond • KeloMajority & Kennedy Concurrence • Facts of Kelo & Application of Earlier Tests • Legal Analysis • Application to Prior Cases • KeloDissents & Merrill • Review Problems

22. Federal “Public Use” Standards: Kelo Recap: 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: • As noted, country more conservative & more concerned w Property Rts • USSCt very different than in 1984

23. 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

24. Federal “Public Use” Standards: Kelo Recap: 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

25. Federal “Public Use” Standards:Kelo Majority Opinion NARROW HOLDING • Upholds Specific New London Development Plan • Rejects Plaintiffs’ Claim that There Should Be Blanket Exception to Public Use Deference when EmDom Used for Economic Development • Rest is Dicta (Dicta, Schmicta)

26. Federal “Public Use” Standards:Kelo Majority Opinion Largely Reiterates Points from Earlier Cases • Reaffirms Berman and Midkiff • “Public Use” just means Public Purpose (P183) • Judge plan as a whole; don’t look at individual parcels • Ending up in private hands not bar to Public Use • Private Ownership may be good way to accomplish public goals (P185-86) • Actual use by public (e.g., RR) constitutes Public Use, but not required

27. REDWOOD: DQ 2.14-2.15 REDWOODS & FERNS

28. Federal “Public Use” Standards: KeloMajority OpinionDQ2.14 & Deference (Redwood) Kelomajority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.” • Arguments we’ve seen supporting deference include: • Democratic Theory • Institutional Competence (See OCR P189: courts ill-equipped to evaluate efficiency of programs or necessity of using EmDom) • Federalism/Local Control: States can choose to have stricter rules if they want/need to better control their own municipalities (P186; see also Federalism Discussion on P184) • Dangers/Concerns re Broad Deference?

29. Federal “Public Use” Standards: KeloMajority OpinionDQ2.14 & Deference (Redwood) Kelomajority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.” • Dangers/concerns re broad deference include: • Corruption • Power of $$$/Lobbyists/Special Interests/Politically Connected • Renders Public Use Clause Meaningless • OCR Dissent: “Hortatory Fluff” • THS Dissent: “Nullity”

30. Federal “Public Use” Standards: KeloDQ2.15: Limits on Deference Kelomajority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.” • I’ll go through limits suggested by the majority and by Justice Kennedy, then show you how they might apply to facts of Poletownand City of Seattle. • Monday, you’ll do analysis for Rev. Prob. 2C: • Identify Facts that Majority or Kennedy Might Say Suggest Rational Basis Inappropriate • Discuss Whether, Overall, Enough Reasons for Concern to Forego Deference/Rational Basis

31. Federal “Public Use” Standards: KeloMajority OpinionDQ2.15: Limits on Deference • If sole purpose is private benefit, not OK (P182) • BUT OCR: Complicated determination; hard to tell (P190) • Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if outside of integrated development plan (1st full para. P186) • List of Helpful Facts (P185) (maybe problematic if not there): • State Statute authorizing EmDom for economic development • Comprehensive Plan • Thorough Deliberation

32. Federal “Public Use” Standards: KeloMajority OpinionDQ2.15: Limits on Deference QUESTIONS ON MAJORITY OPINION?

33. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference Overview of Concurrence • KND seems to suggest more serious examination than ordinary deference: “meaningful rational basis review.” (P187) • Long discussion on P187-88 of possible considerations. • BUT refuses to articulate a specific set of rules or procedures, and OCR chides him for “lack of guidance” for future cases (P190).

34. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference (Redwood) Why is Kennedy Concurrence Especially Important?

35. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference KND’s Articulated Concerns/Limits • No deference if clear showing that EmDom intended to favor a particular private party w only incidental or pretextual public benefit. (P187) • Really arguing purpose is illegitimate b/c benefit to public is either: • Incidental = Trivial OR • Pretextual = False or Implausible • Like primary beneficiary test looking at both effects and purpose • OCR argues that this test is not helpful because public and private benefits so intertwined in economic development cases (P181)

36. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference KND’s Articulated Concerns/Limits (2) If plausible accusation of impermissible favoritism: • Close review of record required • Although presumption that govt acted reasonably remains • Trigger’s O’Connor’s “stupid staffer” comment; means record can be managed by officials to hide problems.

37. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference KND’s Articulated Concerns/Limits • (3) Might be private transfers where risk of favoritism so high, need presumption of invalidity • As opposed to (2), where he says even plausible accusation of favoritism doesn’t create this presumption. • No specific examples given!! • He follows this statement with 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.

38. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference KND’s Articulated Concerns/Limits • (4) Facts constituting protections against favoritism (P187-88) a. Comprehensive plan b. Serious city-wide economic crisis c. Real economic benefit d. Identity of beneficiaries mostly unknown (like Midkiff) e. Elaborate procedures to produce reviewable record

39. Federal “Public Use” Standards: Kennedy ConcurrenceDQ2.15: Limits on Deference KND’s Articulated Concerns/Limits • 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 • Private transfers where risk of favoritism so high, presume invalidity • Facts from Keloconstituting protections a. Comprehensive plan b. Serious city-wide economic crisis c. Real economic benefit d. Identity of beneficiaries mostly unknown (like Midkiff) e. Elaborate procedures to produce reviewable record Qs on Concurrence?

40. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo& Beyond • KeloMajority & Kennedy Concurrence • Facts of Kelo & Application of Earlier Tests • Legal Analysis • Application to Prior Cases • KeloDissents & Merrill • Review Problems

41. Federal “Public Use” Standards:Limits on Deference Applied to Facts of State Cases Majority’s Articulated Concerns/Limits • If sole purpose is private benefit, not OK: P & CS • Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if outside of integrated development plan: P & CS • List of Helpful Facts (maybe problematic if not there): • State Statute authorizing EmDom for econ. development: P & CS • Comprehensive Plan & Thorough Deliberation: P & CS

42. Federal “Public Use” Standards:Limits on Deference Applied to Facts of State Cases KND’s Articulated Concerns/Limits • No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. P & CS • Close review of record if plausible assertion of favoritism P & CS • Risk of favoritism so high, presume invalidity: P??? & CS • Facts from Keloconstituting protections (P187-88) a. Comprehensive plan: CS not P b. Serious city-wide economic crisis: P not CS c. Real economic benefit: P & CS d. Identity of beneficiaries mostly unknown (like Midkiff): CS not P e. Elaborate procedures to produce reviewable record: Unclear

43. Federal “Public Use” Standards:Limits on Deference Applied to Facts of State Cases City of Seattle Probably Fine Hard Q re Poletown: Is acceding to GM’s specific demands “favoritism” or sensible way to achieve big economic benefit?

44. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo& Beyond • Kelo Majority & Kennedy Concurrence • KeloDissents & Merrill • Review Problems

45. ARCHES: DQs 2.16-2.18 DELICATE ARCHES

46. Kelo Dissents: DQ2.16 (Arches) OCR Dissent joined by RNQ SCA THS • Justice O’Connor wrote the majority opinion in Midkiff. How does she distinguish that case in her dissent in Kelo?

47. Kelo Dissents: DQ2.16 (Arches) OCR Dissent joined by RNQ SCA THS • Justice O’Connor wrote the majority opinion in Midkiff. How does she distinguish that case in her dissent in Kelo? • Govt Purpose/ Public Benefit… • Was Purchase Itself in Midkiff (& Berman) • Was Resulting Private Ownership in Kelo • Test implicitly is Hatchcock Situation #3

48. Kelo Dissents: DQ2.16 (Arches) OCR Dissent joined by RNQ SCA THS • (P191) If economic development counts as a public use, “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory ….” How would majority likely respond?