1. PROPERTY E SLIDES 2-14-13

2. Student Concerns re Meaning of “Public Use” Takings Clause is Limit on Eminent Domain, Not Grant of Authority (Prior to 5 th 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

3. 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

4. MIDKIFF  KELO Midkiff decided in 1984 – Rational Basis = Test for “Public Use” in 5 th 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

5. 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

6. 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

7. 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

8. 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)

9. DQ38: KELO Majority Opinion Possible 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

10. KELO : Kennedy Concurrence Why is Kennedy Concurrence Especially Important?

11. DQ38: KELO Kennedy Concurrence Possible Limits on Deference Include: No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. (1 st para. P187)

12. DQ38: KELO Kennedy Concurrence Possible 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

13. DQ38: KELO Kennedy Concurrence Possible Limits on Deference Include: Showing that ED intended to benefit private party w only incidental or pretextual public benefit. (1 st 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

14. DQ38: KELO Kennedy Concurrence Possible 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

15. DQ38: KELO Kennedy Concurrence Possible Limits on Deference Include: Might be private transfers where risk of favoritism so high, need “presumption of invalidity” (4 th 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.

16. KELO : Kennedy Concurrence Kelo Facts: Protections against “Favoritism” 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

17. DQ38: KELO Kennedy Concurrence Possible 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)

18. KELO : Kennedy Concurrence Qs on Concurrence?

19. 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

20. DENALI: Kelo Dissents & DQ39-41 Denali Caribou

21. 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?

22. 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?

23. 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?

24. 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?

25. 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?

26. 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

27. 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. 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.

28. 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

29. DENALI: Poletown & DQ42-43 Denali Caribou

30. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Remind us of key facts from Poletown

31. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Midkiff: Rational Basis Test Identify Purpose Is Purpose Legitimate? Are Means Rationally Related to Purpose?

32. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Arguments Under Kelo Majority?

33. DENALI: DQ42 Apply Federal Cases to Facts of Poletown Kelo 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

34. 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 benefit 2.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