LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

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Kelo: Public Use = Legit Public Purpose - But what is legitimate?

The headlines are all ablaze with news that the US Supremes have radically expanded the authority to take property. Well, that's an ill-informed and extreme position, but the Court did apply its past precedents to a more broad kind of public program in Kelo v. City of New London - here's the link.

I don't want to delve into the property rights issues here. I think what's more interesting is the basis of Justice Kennedy's concurrence - the "swing" vote on this case.

Justice Kennedy's position is that the use of eminent domain would be improper under a "rational basis" type of test if the record demonstrated that the power was being used to benefit a particular person or corporation, rather than the public. He found that the record here - including the statements made by the dissenting Connecticut justices below - indicated that the purpose was to benefit the City and not Pfizer (the entity that will end up with the land). The fact that the taking was in conjunction with a comprehensive redevelopment plan seems to have loomed large in his consideration.

What's interesting is that his position would require the court's to scrutinize the actual record far more than in due process type rational basis cases. In other words, the actual facts and history, rather than post-hoc rationalizations, would be scrutinized. Flash back to his concurrence in Lingle, where he also opined that he wasn't stating that the statute there could pass due process tests.

SO - I think the big question may be this: Is Kennedy trying to get the Court to establish a new "hard look" type of test for substantive due process issues? If so, will he be able to get some of the conservative/moderate faction on board? The problem is that Scalia, Rhenquist and Thomas are generally legislative power hawks and Breyer - the putative liberal-- is generally with them on such issues. Souter is the skeptic; O'Conner (former state att'y general) tends not to like the substantive due process approach, and Bader-Ginsburg hasn't led on these issues. But it might be interesting to see if a Kennedy/Souter/Ginsburg wing, could swing two of the others to a more stringent view of due process.

It's important to note that Kennedy's view of the facts in Kelo is somewhat at odds with Justice O'Connor's recitation of the facts, which indicate that the redevelopment plan was generated from the point when Pfizer expressed interest in locating there. Seems to me that this indicates that the plan was to accommodate Pfizer. So one wonders what kind of record would "flip" Kennedy - would this case have gone the other way if the facts were more egregious or the public need of New London for redevelopment less obvious? If the four dissenters had taken up the intermediate scrutiny approach resulting in a remand for further factual inquiry into the public vs private benefits of the taking instead of trying to establish a harder line on what "public use" could mean (more principled but less flexible), might Kennedy have joined them?

But on the substance - a majority says that paid takings for "public use" are satisfied where there is a legitimate public purpose for them, even if that purpose is sale to a different private party for building a Ritz Carlton instead of a Motel 6, as Justice O'Connor described.

Personally, I'm a due process and review hawk, and I believe that effective judicial review creates real improvements to the results. In other words, when the government knows that it has to really justify its actions on public policy grounds and the facts, it is a better government. So I'm disappointed that the intermediate scrutiny proposal made by some of the amici didn't fly, because I think that would have better results, regardless of how the substantive standard is articulated. But I'm intrigued by Kennedy's due process arguments in two out of the three takings cases this year -- maybe there's some hope for meaningful review on the horizon if the right case presents itself.

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