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PROPERTY D SLIDES 2-10-14. Monday Feb 10 Music: Stevie Nicks: Bella Donna (1981) I’ll update assignment sheet after class today.

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Presentation on theme: "PROPERTY D SLIDES 2-10-14. Monday Feb 10 Music: Stevie Nicks: Bella Donna (1981) I’ll update assignment sheet after class today."— Presentation transcript:

1 PROPERTY D SLIDES 2-10-14

2 Monday Feb 10 Music: Stevie Nicks: Bella Donna (1981) I’ll update assignment sheet after class today

3 PROPERTY D: 2/10 As Valentine ’ s Day Approaches : Too Much Part Two

4 Every kiss begins with Kay®

5 I’ve seen those Kay Jewelers ads …

6 … but frankly, if I give someone a $5000 diamond bracelet, …

7 … I’m looking for a little more than a kiss. That’s why I shop at …

8 Eff Jewelers Taking Care of Your Family Jewels

9 Previously in Property D Right to Exclude & Parcels Open to Public Brooks & Traditional Owners’ Discretion (Limited by Civil Rights Statutes) JMB & First Amendment Access to Malls Introduction to Lawyering Qs

10 Previously in Property D Introduction to Chapter 2 Federal Court Deference to State Legislation & the Rational Basis Test The Eminent Domain Power & Its Limits Takings Clause of 5 th Amdt Just Compensation as a Limit Democracy as a Limit Possible Need for Additional Limits When Money Not at Issue & We Don’t Trust Democratic Process

11 Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power 1.Just Compensation 2.Democracy: Politics & $$$ 3.“Public Use” Requirement a.DQ2.03: Addresses Concern About Gov’t Handing Out Prizes to Favored Individuals b.Big Issue w British Monarchy

12 Chapter 2 : Eminent Domain: Some Policy Concerns Public Use Requirement: Meaning UNCLEAR: Use BY Public v. Use FOR Public Easy Cases: Both true (schools, roads, post offices) Harder Cases: One or the other Use by public (but not for): E.g., Privately-Owned Theme Park Use for public (but not by): E.g., Military Base

13 Chapter 2 : Eminent Domain: Some Policy Concerns Public Use Requirement: Meaning UNCLEAR: Use BY Public v. Use FOR Public 5 th Amdt originally limited feds not states; seems unlikely that using EmDom for military bases would violate Note that states interpreting own Constitutions can limit themselves more. E.g., can choose to adopt a “use by public” standard (See City of Seattle)

14 Chapter 2 : Eminent Domain: Some Policy Concerns Public Use Requirement (DQ2.03) Ultimate Q: When OK for Govt to Force Sales? Maybe “Public Use” Simply Trying to Ensure Benefit isn’t Personal or Corrupt Maybe Since EmDom is Big Interference w Property Rights, Only Can Use If Really for Benefit of Public QUESTIONS?

15 Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background Federal Constitutional Background Deference, Rational Basis, Heightened Scrutiny The Fifth Amdt, Eminent Domain & Public Use Limited Federal Review Under Berman & Midkiff State Public Use Standards Kelo & Beyond

16 Hawaii Housing Authority v. Midkiff 1.Background: Berman v. Parker 2.Challenged Hawaii Program 3.Analysis: Adoption of Rational Basis Standard

17 Background to Midkiff: Berman v. Parker 1.DC “Urban Renewal” Project: a.Fixing “Blighted” N-hood b.Forced Sales of Buildings to Private Redevelopers

18 Background to Midkiff: Berman v. Parker 1.DC “Urban Renewal” Project 2.US SCt. approves as “Public Use” a transfer of land from one private party to another Gives deference to plan of US Congress Once purpose w/in Congr. authority, Congr. can choose means to implement (incl. EmDom) Essentially reads “public use” to mean “benefits the public”

19 Hawaii Housing Authority v. Midkiff 1.Background: Berman v. Parker 2.Challenged Hawaii Program 3.Analysis: Adoption of Rational Basis Standard

20 Midkiff: Challenged Program Perceived Problem: Market for Land Skewed Immense landholding by few owners (S20) Yields high prices; few transactions Many lease who want to buy Govt partly responsible: tax consequences discourage sales

21 Midkiff: Challenged Program Perceived Problem: Market for Land Skewed Immense landholding by few owners (S20) State Wants More Active Land Market Affects Labor Market State Prefers Owners to Renters Usually More Investment/Upkeep Usually Greater Ties to Community

22 Midkiff: Challenged Program & DQ2.04 Program Designed to Aid Land Market Forced Sale of Land: Landlords to Tenants In practice, funds come entirely from Tenants. Requirements/Limitations Sufficient # of tenants apply from same residential development Public Hearing re furthering purpose of program Eligibility Requirements for Buyers to prevent misuse by commercial developers

23 Midkiff: Challenged Program & DQ2.04 Forced Sale of Land: Landlords to Tenants DQ2.04: Relation to Purposes of Eminent Domain & Public Use? (1) Avoids Transaction Costs Breaks negotiation deadlock Allows sales that might take place if no tax consequences

24 Midkiff: Challenged Program & DQ2.04 Forced Sale of Land: Landlords to Tenants DQ2.04: Relation to Purposes of Eminent Domain & Public Use? (1) Avoids Transaction Costs (2) How “Public Use”? End Users Private Individuals Not Everyone Eligible; Relatively Few Directly Benefit Public Can’t Actually Use Parcels in Q

25 Midkiff: Challenged Program & DQ2.04 Forced Sale of Land: Landlords to Tenants DQ2.04: Relation to Purposes of Eminent Domain & Public Use? (1) Avoids Transaction Costs (2) How “Public Use”? End Users Private Individuals Not Everyone Eligible; Relatively Few Directly Benefit Public Can’t Actually Use Parcels in Q BUT: Arguably All Hawaiians Benefit Indirectly from Improved Land Market BUT: Arguably All Hawaiians Benefit Indirectly from Improved Land Market

26 Midkiff: Challenged Program & DQ2.06 “After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies. Courts have never doubted that such statutes served a public purpose.” --FN5 DQ2.06: Assume Justice O’Connor (OCR) got this info from the briefs of the State of Hawaii or of one of the Amicus Curiae supporting the state. Why would the lawyers use valuable space in briefs to give the Court a history lesson?

27 Midkiff: Challenged Program & DQ2.06 DQ2.06: Why would lawyers use valuable space in briefs to give the Court a history lesson? Meaning of “Land Reform” in 1984 Practice of Leftist Gov’ts in Latin America Redistributing Land Rights from Large Owners to Peasants/Small Farmers Generally Opposed by Reagan Administration

28 Midkiff: Challenged Program & DQ2.06 DQ2.06: Why would lawyers use valuable space in briefs to give the Court a history lesson? Cf. Latin American “Land Reform” in 1984 Lawyers Providing Another Way for SCt to See Program Evidence that OCR Buys Characterization (S19 2d para): “feudal land tenure system” (S22 middle para): “The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.”

29 Midkiff: Challenged Program & DQ2.06 (S22 middle para): “The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.” Statue of King Kamehameha

30 Hawaii Housing Authority v. Midkiff 1.Background: Berman v. Parker 2.Challenged Hawaii Program 3.Analysis: Adoption of Rational Basis Standard

31 Midkiff: Adoption of Rational Basis Test Upholds Hawaii Program; Again Interprets “Public Use” to Simply Mean Benefit to Public Extends/Explains Berman v. Parker in Two Ways 1.Same deference given to states as feds 2.Govt never has to possess land itself No apparent limit to public use given for either 1 or 2 Makes very clear it doesn’t want to assess wisdom of program. Role for reviewing court is “extremely narrow” Clear use of Rational Basis test

32 Midkiff: Adoption of Rational Basis Test: Key Language “Court … will not substitute its judgment for a legislature’s judgment as to what constitutes a public use ‘unless the use be palpably without reasonable foundation.’” (S20: top para) “[W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” (S20: first full para)

33 Midkiff: Adoption of Rational Basis Test: Key Language Rationally Related = Very Deferential Standard “Of course, this Act, like any other, may not be successful in achieving its intended goals. But ‘whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if... the... [state] Legislature rationally could have believed that the [Act] would promote its objective.’” (S22: last para)

34 Midkiff: Adoption of Rational Basis Test BACK TO DQ2.05: Why shouldn’t the Supreme Court strike down a state exercise of Eminent Domain that is unlikely to achieve its stated ends? “[T]he weighty demand of just compensation has been met” (S24) Reasons for Deference We’ve Already Discussed: “[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia... or the States legislating concerning local affairs.... This principle admits of no exception merely because the power of eminent domain is involved....” --(S21 first block quote from Berman)

35 SHENANDOAH (DQs 2.07-2.08) APPALACHIAN TRAIL

36 (Shenandoah) Application of Rational Basis Test… DQ2.07(a): … to Facts of Midkiff Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

37 (Shenandoah) Application of Rational Basis Test… DQ2.07(b): … to Rev. Prob. 2A Texan Virtues” = Courage, Forthrightness and Moral Strength (Q for you: What are “Texan Vices”?) TX Legislature creates Virtuous Texan Commission Chooses 3 Texans/Year who best embody Texan Virtues. Winners choose private property in TX worth up to $500,000 (more value in 1989 when I wrote Problem) TX purchases chosen land for them at market value. Problem designed to push limits even of Rational Basis Test

38 (Shenandoah) Application of Rational Basis Test… DQ2.07(b): … to Rev. Prob. 2A Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

39 (Shenandoah) Application of Rational Basis Test… DQ2.08: … to Facts of Poletown Remind us of key facts from Poletown Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

40 (Shenandoah) Application of Rational Basis Test… DQ2.08: … to Facts of City of Seattle Remind us of key facts from City of Seattle Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

41 Some Context 1981: Poletown, City of Seattle, Pruneyard, & the Road to JMB

42 Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards State Public Use Standards Poletown City of Seattle Hatchcock Kelo & Beyond

43 Public Use Under State Constitutions States often have stricter tests than feds: Already seen in JMB/Pruneyard re 1 st Amdt Allows states to craft rules based on different balance of interests given forms of local govt, needs of state etc. As we’ll see, Kelo suggests that stricter state rules may be appropriate given local concerns great federal deference OK given that states can do more

44 Poletown Tests Used if land ends up in private hands (1)Public must be “primary beneficiary” & private benefit merely “incidental” (2) Public benefit must be “clear and significant” Michigan SCt in Poletown repeatedly says tests are met w/o much analysis

45 Significance of Poletown Tests Hatchcock overrules Poletown result & tests We’ll go through new Michigan tests later Poletown tests still used by other states Can still use Poletown facts as example of how tests from case could be applied

46 Poletown Tests Used if land ends up in private hands (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

47 Poletown Tests Used if land ends up in private hands 2) Public benefit must be “clear and significant” Assume both words have meaning “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”

48 SHENANDOAH (DQ 2.09) APPALACHIAN TRAIL

49 DQ2.09 (Shenandoah): Apply Poletown Tests to Facts of Midkiff (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

50 DQ2.09 (Shenandoah): Apply Poletown Tests to Facts of Midkiff Public benefit must be “clear and significant” “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”

51 DQ2.09 (Shenandoah): Apply Poletown Tests to Facts of City of Seattle (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

52 DQ2.09 (Shenandoah): Apply Poletown Tests to Facts of City of Seattle Public benefit must be “clear and significant” “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”


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