property e slides 2-14-13. student concerns re meaning of “public use” takings clause is limit...

34
PROPERTY E SLIDES 2-14-13

Upload: candace-heath

Post on 18-Jan-2018

216 views

Category:

Documents


0 download

DESCRIPTION

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

TRANSCRIPT

Page 1: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

PROPERTY E SLIDES

2-14-13

Page 2: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 3: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 4: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 5: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 6: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

MIDKIFF KELO• Kelo essentially brought 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

Page 7: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 8: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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)

Page 9: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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 Kelo facts listed; might get different result if not present:– State statute authorizing– Comprehensive plan– Thorough deliberation

Page 10: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

KELO : Kennedy Concurrence

Why is Kennedy Concurrence Especially Important?

Page 11: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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. (1st para. P187)

Page 12: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 13: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 14: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 15: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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.

Page 16: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

KELO : Kennedy Concurrence

Kelo Facts: Protections against “Favoritism”

a.Comprehensive planb.Serious city-wide economic crisisc.Real economic benefitd.Identity of beneficiaries mostly unknown

(like Midkiff)e.Elaborate procedures to produce

reviewable record

Page 17: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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)

Page 18: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

KELO : Kennedy Concurrence

Qs on Concurrence?

Page 19: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 20: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI: Kelo Dissents & DQ39-41

Denali Caribou

Page 21: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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?

Page 22: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI DQ39: O’Connor Dissent

• Justice O’Connor wrote majority opinion in Midkiff. Distinguishes Kelo b/c Govt Purpose/ Public Benefit…– Was Purchase Itself in Midkiff– Was Resulting Private Ownership in

Kelo

Is distinction convincing?

Page 23: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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?

Page 24: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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?

Page 25: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI DQ40: Thomas Dissent• (P192) Refers to Carolene Products 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 Kelo Dissents?

Page 26: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 27: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

Public Use Under State Constitutions• States often have stricter tests than feds:– Already seen in JMB/Pruneyard re 1st Amdt– Allows states to craft rules based on different balance of

interests given forms of local govt, needs of state etc. • Kelo suggests 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.

Page 28: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

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

Page 29: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI: Poletown & DQ42-43

Denali Caribou

Page 30: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI: DQ42 Apply Federal Cases to Facts of

Poletown

Remind us of key facts from Poletown

Page 31: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI: DQ42 Apply Federal Cases to Facts of

Poletown

Midkiff: Rational Basis Test

• Identify Purpose• Is Purpose Legitimate?• Are Means Rationally Related to Purpose?

Page 32: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI: DQ42 Apply Federal Cases to Facts of

Poletown

Arguments Under Kelo Majority?

Page 33: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

DENALI: DQ42 Apply Federal Cases to Facts of

PoletownKelo 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

Page 34: PROPERTY E SLIDES 2-14-13. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th

Poletown Primary Beneficiary Test: Possible Readings

Public must be “primary beneficiary” & private benefit merely “incidental”

•Possible readings of “primary beneficiary” test:1. Quantitative weighing of public v. private benefit2. Primary purpose (see KND CCR)3. Who is driving the deal?

For Monday 2/18: DENALI: DQ43: APPLY TO KELO

GLACIER Apply as part of Rev Prob 2C