The Courts and the The Courts and the Takings ClauseTakings Clause

Kelo v. City of New LondonKelo v. City of New London, 545 , 545 U.S. 469 (2005).U.S. 469 (2005).

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JUDGESJUDGES

If you were responsible for If you were responsible for selecting all of the judges in selecting all of the judges in Florida, what would you look Florida, what would you look for?for?

KnowledgeKnowledgeSkillsSkillsDisposition/QualitiesDisposition/Qualities

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JUDGESJUDGES

How are judges different How are judges different from other elected from other elected officials such as officials such as legislators?legislators?

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JUDGESJUDGES

Should judges be influenced by Should judges be influenced by political pressures when deciding a political pressures when deciding a case?case?

Would you want a judge to make a Would you want a judge to make a decision based on the law decision based on the law oror how how the public might react to the the public might react to the decision?decision?

Should judges do what is legally Should judges do what is legally right or should they do what is right or should they do what is popular?popular?

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JUDGESJUDGES

JUDGES MUST FOLLOWJUDGES MUST FOLLOW::

FEDERAL CONSTITUTIONFEDERAL CONSTITUTION

STATE CONSTITUTIONSTATE CONSTITUTION

STATUTESSTATUTES

RULESRULES

HIGHER COURT DECISIONS HIGHER COURT DECISIONS (PRECEDENT)(PRECEDENT)

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JUDGESJUDGES

So, a judge cannot decide So, a judge cannot decide a case based on how a case based on how he/she he/she feelsfeels about an about an issue.issue.

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JUDGESJUDGES

If a judge does not follow the If a judge does not follow the existing law, his/her decision is existing law, his/her decision is subject to subject to reviewreview by an appellate by an appellate court.court.

All courts are subject to review by a All courts are subject to review by a higher court higher court exceptexcept for the highest for the highest court in the country: the Supreme court in the country: the Supreme Court of the United States.Court of the United States.

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Today, you will be a Today, you will be a justice on the U.S. justice on the U.S. Supreme Court and Supreme Court and decide a real case decide a real case involving the Fifth involving the Fifth Amendment.Amendment.

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FIFTH AMENDMENTFIFTH AMENDMENT

But first –But first –

You need to know about You need to know about the Fifth Amendment to the Fifth Amendment to the U.S. Constitution the U.S. Constitution and eminent domain.and eminent domain.

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Takings Clause of the Takings Clause of the Fifth AmendmentFifth Amendment

The TextThe Text

““[P]rivate property [P]rivate property [shall not] be taken [shall not] be taken for public usefor public use, , without just compensation.without just compensation.””

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But what do each of these phrases mean?

““Taken”Taken”

Three factors to determine whether a Three factors to determine whether a “taking” has occurred:“taking” has occurred: Economic impact on propertyEconomic impact on property Interference with investment backed Interference with investment backed

expectationsexpectations Character of the governmental actionCharacter of the governmental action

Penn Central Transportation Co. v. Penn Central Transportation Co. v. New York New York CityCity, 438 U.S. 104 (1978)., 438 U.S. 104 (1978).

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Lucas v. South Carolina Coastal Lucas v. South Carolina Coastal CouncilCouncil, 505 U.S. 1003 (1992), 505 U.S. 1003 (1992)

In 1986, petitioner David H. Lucas paid In 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the $975,000 for two residential lots on the Isle of Palms in South Carolina on which he Isle of Palms in South Carolina on which he intended to build single-family homesintended to build single-family homes

In 1988, the South Carolina legislature In 1988, the South Carolina legislature passed the Beachfront Management Act, passed the Beachfront Management Act, which had the direct effect of barring which had the direct effect of barring Lucas from erecting any permanent Lucas from erecting any permanent habitable structures on his two parcelshabitable structures on his two parcels

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Lucas v. South Carolina Coastal Lucas v. South Carolina Coastal CouncilCouncil, 505 U.S. 1003 (1992), 505 U.S. 1003 (1992)

The United States Supreme Court held that The United States Supreme Court held that “[w]here the State seeks to sustain “[w]here the State seeks to sustain regulation that deprives land of all regulation that deprives land of all economically beneficial use,” it can avoid economically beneficial use,” it can avoid compensation only if the lost economic right compensation only if the lost economic right was not part of the owner’s title to begin was not part of the owner’s title to begin withwith

The High Court held that the property The High Court held that the property waswas “taken,” and that Lucas was entitled to just “taken,” and that Lucas was entitled to just compensationcompensation

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Compare with…Compare with…

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Tahoe-Sierra Preservation Council, Inc. v. Tahoe Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning AgencyRegional Planning Agency, 535 U.S. 302 (2002), 535 U.S. 302 (2002)

California and Nevada created the Tahoe California and Nevada created the Tahoe Regional Planning Agency (TRPA) to help Regional Planning Agency (TRPA) to help develop the Lake Tahoe basin, which falls develop the Lake Tahoe basin, which falls within both stateswithin both states

Between 1981-1984, the TRPA issued two Between 1981-1984, the TRPA issued two moratoriums that severely restricted moratoriums that severely restricted residential development within the basinresidential development within the basin

The plaintiffs, a group of individuals that The plaintiffs, a group of individuals that owned property in the area, sued, alleging owned property in the area, sued, alleging the moratoria constituted a “taking”the moratoria constituted a “taking”

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Tahoe-Sierra Preservation Council, Inc. v. Tahoe Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning AgencyRegional Planning Agency, 535 U.S. 302 (2002), 535 U.S. 302 (2002)

The United States Supreme Court held that the The United States Supreme Court held that the restrictions did restrictions did notnot constitute a “taking” constitute a “taking”

The Court explicitly distinguished the facts from The Court explicitly distinguished the facts from those in those in LucasLucas, reasoning that the property at issue , reasoning that the property at issue cannot be considered to have lost all economic cannot be considered to have lost all economic value because as soon as the restrictions are lifted, value because as soon as the restrictions are lifted, the landowners will recover all economic valuethe landowners will recover all economic value

The High Court reasoned that mere fluctuations in The High Court reasoned that mere fluctuations in value during the process of governmental decision value during the process of governmental decision making, absent extraordinary delay, are incidents making, absent extraordinary delay, are incidents of ownership. They cannot be considered a ‘taking’ of ownership. They cannot be considered a ‘taking’ in the constitutional sensein the constitutional sense

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““Public Use”Public Use”

““[T]he public use requirement of the [T]he public use requirement of the Takings Clause is coterminous with the Takings Clause is coterminous with the regulatory power, and the Court will not regulatory power, and the Court will not strike down a condemnation on the strike down a condemnation on the basis that it lacks a public use so long basis that it lacks a public use so long as the taking ‘is as the taking ‘is rationally related to a rationally related to a conceivable public purposeconceivable public purpose.’ ” .’ ” National National R.R. Passenger Corp. v. Boston and R.R. Passenger Corp. v. Boston and Maine Corp.Maine Corp., 503 U.S. 407, 421 (1992)., 503 U.S. 407, 421 (1992).

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““Just Compensation”Just Compensation”

““[Just] compensation means the full and [Just] compensation means the full and perfect equivalent in money of the property perfect equivalent in money of the property taken. The owner is to be put in as good taken. The owner is to be put in as good position pecuniarily as he would have occupied if position pecuniarily as he would have occupied if his property had not been taken.” his property had not been taken.” U.S. v. MillerU.S. v. Miller, , 317 U.S. 369, 373 (1943).317 U.S. 369, 373 (1943).

““The Court has repeatedly held that just The Court has repeatedly held that just compensation normally is to be measured by compensation normally is to be measured by ‘the market value of the property at the time of ‘the market value of the property at the time of the taking contemporaneously paid in money.’ ” the taking contemporaneously paid in money.’ ” U.S. v. 50 Acres of LandU.S. v. 50 Acres of Land, 469 U.S. 24, 29 (1984)., 469 U.S. 24, 29 (1984).

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Application to the StateApplication to the State

Does the Takings Clause apply to the Does the Takings Clause apply to the States?States?

Prior to 1897, the answer was noPrior to 1897, the answer was no In In Chicago, Burlington & Quincy Chicago, Burlington & Quincy

Railroad Co. v. City of ChicagoRailroad Co. v. City of Chicago, 166 U.S. , 166 U.S. 226 (1897), the United States Supreme 226 (1897), the United States Supreme Court incorporated the takings clause Court incorporated the takings clause of the 5th Amendment into the Due of the 5th Amendment into the Due Process Clause of the 14th AmendmentProcess Clause of the 14th Amendment

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Eminent DomainEminent Domain

““The inherent power of a The inherent power of a governmental entity to take privately governmental entity to take privately owned property, especially land, and owned property, especially land, and convert it to public use, subject to convert it to public use, subject to reasonable compensation for the reasonable compensation for the taking.”taking.”- Black’s Law Dictionary (9th ed. 2009)- Black’s Law Dictionary (9th ed. 2009)

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The The KeloKelo Case Case

NOW THE CASE:NOW THE CASE:

Read and highlight or circle the Read and highlight or circle the important facts.important facts.

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Judicial LadderJudicial Ladder The New London Development Corporation The New London Development Corporation

(NLDC), a (NLDC), a privateprivate nonprofit entity, was nonprofit entity, was created to assist the City of New London in created to assist the City of New London in planning economic developmentplanning economic development

The city council of the City of New London The city council of the City of New London authorized the NLDC to acquire property by authorized the NLDC to acquire property by exercising eminent domain in the City’s nameexercising eminent domain in the City’s name

The property at issue was to be taken to The property at issue was to be taken to accomodate a “global research facility” for accomodate a “global research facility” for Phizer, an international pharmaceutical Phizer, an international pharmaceutical companycompany

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Judicial LadderJudicial Ladder

Kelo, the plaintiff, along with other property Kelo, the plaintiff, along with other property owners, sought an owners, sought an injunctioninjunction in a in a ConnecticutConnecticut trial court to prevent the NLDC trial court to prevent the NLDC from taking their homes under the City’s from taking their homes under the City’s eminent domain powereminent domain power

After a 7-day trial, a single trial court judge After a 7-day trial, a single trial court judge denieddenied Kelo’s request for an injunction with Kelo’s request for an injunction with regard to properties intended for office regard to properties intended for office space, but space, but grantedgranted an injunction with an injunction with regard to properties intended for car and regard to properties intended for car and boat parking. boat parking.

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Judicial LadderJudicial Ladder

On a direct appeal to the Supreme Court On a direct appeal to the Supreme Court of Connecticut, bypassing Connecticut’s of Connecticut, bypassing Connecticut’s intermediary appellate court, both parties intermediary appellate court, both parties appealed portions of the trial court’s appealed portions of the trial court’s rulingruling

In a 4-3 decision, the Supreme Court of In a 4-3 decision, the Supreme Court of Connecticut held that all of the property Connecticut held that all of the property in question could be taken under the in question could be taken under the City’s eminent domain power, reversing, City’s eminent domain power, reversing, in part, the decision of the trial courtin part, the decision of the trial court

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Judicial LadderJudicial Ladder

Kelo then appealed the decision Kelo then appealed the decision directly to the Supreme Court of the directly to the Supreme Court of the United States…United States…

Now you are Justices Now you are Justices on the U.S. Supreme on the U.S. Supreme Court.Court.

Here is the question Here is the question before the Court…before the Court…

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Legal QuestionLegal Question

Can private property be taken in Can private property be taken in furtherance of economic furtherance of economic

development development benefiting a private benefiting a private corporation?corporation?

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Is the property in question “Private Is the property in question “Private Property”?Property”?

Is the City looking to “take” the Is the City looking to “take” the private property?private property?

Will the property be taken for “public Will the property be taken for “public use”?use”?

Is the private property owner being Is the private property owner being provided “just compensation”?provided “just compensation”?

Other Key QuestionsOther Key Questions

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The The KeloKelo Case Case

Individually answer the Individually answer the questions – questions –

Yes or No – based on the facts of Yes or No – based on the facts of the case, the constitution, and the case, the constitution, and case precedent.case precedent.

-Give 3 reasons in writing.-Give 3 reasons in writing.

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• Form groups of 5Form groups of 5

• Choose a Chief JusticeChoose a Chief Justice

• Chief Justice Maintains OrderChief Justice Maintains Order

• Poll the Justices. How did each one of you answer Poll the Justices. How did each one of you answer

the questions and why?the questions and why?

• Try to reach to a unanimous decision. Does the taking in Try to reach to a unanimous decision. Does the taking in

question violate the Takings Clause of the Fifth question violate the Takings Clause of the Fifth

Amendment?Amendment?

• You have You have 10 minutes10 minutes to discuss then take a final to discuss then take a final

poll.poll.

The The KeloKelo Case Case

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The The KeloKelo Case Case

After each Court decides:After each Court decides:

Bring the Chief Justices to the Bring the Chief Justices to the front of the room to report on front of the room to report on the decision of each group.the decision of each group.

Tally results and announce.Tally results and announce.

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The The KeloKelo Case Case

What did the real U.S. What did the real U.S. Supreme Court decide Supreme Court decide and why?and why?

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Kelo v. City of New LondonKelo v. City of New London, 545 U.S. , 545 U.S. 469 (2005)469 (2005)

In a 5-4 decision, a slim In a 5-4 decision, a slim majority of the majority of the Supreme Court of the Supreme Court of the United States held that United States held that private private property can be taken in furtherance of economic development benefiting a private corporation, ruling in , ruling in favor of the City of New favor of the City of New LondonLondon TM

AftermathAftermath

After the decision, the City of New After the decision, the City of New London demanded residents who London demanded residents who challenged their condemnation challenged their condemnation proceedings to pay hundreds of proceedings to pay hundreds of thousands of dollars in rent dating back thousands of dollars in rent dating back to the year 2000to the year 2000

The City eventually reached an The City eventually reached an agreement with Kelo, agreeing to pay her agreement with Kelo, agreeing to pay her $442,000 for her property and to relocate $442,000 for her property and to relocate her pink house less than two miles awayher pink house less than two miles away

AftermathAftermath

In September 2009, Pfizer merged In September 2009, Pfizer merged with another pharmaceutical with another pharmaceutical company, Wyeth, and abandoned the company, Wyeth, and abandoned the New London project in late 2010New London project in late 2010

As of April 2011, the land is still As of April 2011, the land is still undeveloped and its only residents undeveloped and its only residents are feral catsare feral cats