President Bush Blocks Federal Eminent Domain Abuses

[ImGod]

I wasn't clear either. The person being eminent domained has about the same mental anguish regardless of the intended use of the land. Though maybe, it would soften the blow some if you thought it was going to be a park, rather than a strip mall.

I agree with you on the Constitution part and do not wish to see additional "public use" definitions. I'd like to see a constitutional ammendment adding the essense of what I said above. So the long term public good could be served without negatively impacting the relatively short term life of someone. The Kelo decision was probably a good start because it threw it back on the states. It's much easier to get state laws and constitutions changed.

[Wholly Goats]

I assume that those familiar with the proposal by a New Hampshire architect to have a town council exercise eminent domain to acquire Justice Souter's New Hampshire home and in turn, sell it to him to convert it into a bed and breakfast type establishment known as the "Lost Liberty Hotel". The architect/developer made a compelling case that doing so would serve the public interest of creating jobs and spurring tourism to the area, much as was done in the New London project which stimulated the Kelo decision.

Kelo has provided that a private developer who manipulates a local government to obtain property, which would otherwise not be available, through the exercise of eminent domain. I seems to me that a public entity using this power to, in turn, provide a private party otherwise unavailable private property places each and every property owner, commercial, industrial, residential or otherwise, as subject to the whims of local government officials and the corrupting influences of private developers with lots of cash to affect the outcome.

I do rather wonder how "just compensation" is arrived at....does anyone know how?

[ms_ann_thrope]

Originally Posted by ImGod

I wasn't clear either. The person being eminent domained has about the same mental anguish regardless of the intended use of the land. Though maybe, it would soften the blow some if you thought it was going to be a park, rather than a strip mall.

I'll agree that being put out of one's home is being put out of one's home. That much is the same.

I agree with you on the Constitution part and do not wish to see additional "public use" definitions... The Kelo decision was probably a good start because it threw it back on the states.

See, that's where I disagree. I would have preferred that the Court be less deferential to local government on something that I think is such an important issue and have just said, "Look, New London, based on the patriotic American ideal of home = castle, what you are doing is just wrong and is a far stretch from what the Framers intended when they authored the Fifth Amendment." In other words, in ms_ann_thrope's parallel universe, SCOTUS is not deferential to the state on this issue, refuses to expand the definition of "public use," and spanks the legislature. They totally could have gone that way! That's why I was citing Lawrence earlier, because the Kennedy opinion was really an ethos/aspirational argument, and I would've like to see Kelo decided similarly.

If the choice was between throwing it back to the state or for the Court to expand the "public use" definition, then I would agree that throwing it back to the state is preferable. But really, I think that the ms_ann_thrope parallel universe was the way the court should have gone.

Originally Posted by Wholly Goats

I do rather wonder how "just compensation" is arrived at....does anyone know how?

Usually courts interpret it to mean the fair market value of the property --- in other words, roughly, if you put it on the market today, what you'd likely get for it. In CA, a property owner facing an eminent domain condemnation is entitled to have just compensation determined by a jury. I have no idea about the laws in other states...

[LionsDen]

Originally Posted by ms_ann_thrope

I'll agree that being put out of one's home is being put out of one's home. That much is the same.

I sympathize and agree with you both. Sadly, mental anguish is irrelevant to current case law. As the law now stands the state is not obligated to consider mental anguish when booting people off their land.

If we outlaw Em Domain for private use, then mental anguish would doubtless be a consideration in the ensuing lawsuits. Let that thought sustain us!

See, that's where I disagree. I would have preferred that the Court be less deferential to local government on something that I think is such an important issue and have just said, "Look, New London, based on the patriotic American ideal of home = castle, what you are doing is just wrong and is a far stretch from what the Framers intended when they authored the Fifth Amendment." In other words, in ms_ann_thrope's parallel universe, SCOTUS is not deferential to the state on this issue, refuses to expand the definition of "public use," and spanks the legislature. They totally could have gone that way! That's why I was citing Lawrence earlier, because the Kennedy opinion was really an ethos/aspirational argument, and I would've like to see Kelo decided similarly.

If the choice was between throwing it back to the state or for the Court to expand the "public use" definition, then I would agree that throwing it back to the state is preferable. But really, I think that the ms_ann_thrope parallel universe was the way the court should have gone.

I believe the best and only fix is by constitutional amendment. Otherwise the liberal activist judges will seize upon any chance to overturn or ignore any law we get passed. Only an amendment will prevent judicial activism.

Translated into plain English that means don't vote for Democrats! Only one political party is responsible for judicial activism in support of eminent domain.

Usually courts interpret it to mean the fair market value of the property --- in other words, roughly, if you put it on the market today, what you'd likely get for it. In CA, a property owner facing an eminent domain condemnation is entitled to have just compensation determined by a jury. I have no idea about the laws in other states...

In California it doesn't work as it should. If it did then the magnitude of compensation would be much, much greater. I am thinking of a case involving land owned by a church in the San Diego area. The county wanted it for the benefit of a Costco (a store chain favored by liberal democrats). We stopped them in court. The petty amount the country offered was pitiful.

.
.
.Don't like Eminent Domain for private use? Vote Republican.

[D. Scarlatti]

Originally Posted by LionsDen

[T]he liberal activist judges will seize upon any chance to overturn or ignore any law we get passed. Only an amendment will prevent judicial activism.

Kelo affirmed a state court upholding the actions of a local municipality, you blithering idiot.

[LionsDen]

Originally Posted by erimir

I also don't particularly care for the Kelo decision, but note the issues that ms_ann brought up.

I suppose LionsDen thought that we (being mostly "liberals") would support the decision.

Quite the opposite. I had hoped there were some civil libertarians here who would agree with the President that Kelo is a bad decision. That has proven to be true.

So for whom shall I vote if not big spending liberal Democrats? I cannot support the Losertarian Party. It would be a waste of my vote, and I am civil libertarian, not libertine!

[Adam]

Originally Posted by D. Scarlatti

Kelo affirmed a state court upholding the actions of a local municipality, you blithering idiot.

Now, now, Scarlatti. What do we know about facts and liberal pussies?

[Adam]

Regarding the difference between using eminent domain to take land for explicit public use as opposed to more general public benefit, I would think a big part of the difference is potential for abuse. While the former doesn't preculde abuse, the latter actually creates a great deal of incentive for it.

[LionsDen]

Leading internet posters worldwide have found it to be a wise practice to actually READ the post to which one attempts to reply!

Originally Posted by D. Scarlatti

Kelo affirmed a state court upholding the actions of a local municipality,

Affirming an unconstitutional act is an example of judicial activism.

Taking private land for private use is new to American legal history. It was an unconstitutional action by an activist city council.

A mere law won't fix the problem. Activist judges will just ignore a law.

Only a constitutional amendment will force the lower courts to rule against more eminent domain abuses.


I, D. Scarlatti, am a blithering idiot.

Don't be too hard on yourself. I am sure you'd have answered better if only you had read the original post!

[D. Scarlatti]

Originally Posted by LionsDen

Affirming an unconstitutional act is an example of judicial activism.

You're an example of a complete idiot.

Kelo is an example of judicial restraint, the antithesis of activism.

Taking private land for private use is new to American legal history.

Oh, is that right? First of all, no land was taken for private use. It was taken for public use. That's the whole point. Have you even read this opinion, or the opinion of the Connecticut Supreme Court? I don't think so.

As for the taking in Kelo being "new to American legal history," tell that to the Connecticut Supreme Court, which rested much of its analysis of that state's legislative framework on a Connecticut eminent domain case from 1866, not to mention several decades of the U.S. Supreme Court's broad interpretation of the federal takings clause.

It was an unconstitutional action by an activist city council.

What does that make you, an activist moron?

How exactly do you square your condemnation of Kelo with the little happy dance you did when the California Supreme Court extended constitutionally protected freedom of speech for teen preachers into privately-owned shopping centers?

Where was your crying about "judicial activism" in that case? That was a textbook example of activism: discovering a new right where one had never existed before. But you congratulated that judicial activism, didn't you? Because there was a cute little Christian teen preacher involved.

You're such an idiot.

[Wholly Goats]

Yeah....And the most egregious exercise of "judicial activism" was Bush v. Gore, when five of the most conservative justices on the SCOTUS violated their own principles of judicial restraint and federal non-involvement in state issues in order to assure that George W. Bush was appointed as president.

In my opinion, those five justices should have been impeached and stood trial for perpetrating a judicial coup.

I'm aware that eminent domain has been used for most of the duration of American history...for public purpose. I honestly don't see that a local government exercising eminent domain in order to advance the interests of private parties is a legitimate use of the power. Can you provide me that rationalization, Scarlatti? Can you then tell me why it can't, or shouldn't, be used as in the instance proposed in the case of Justice Souter's New Hampshire home? Where is the restraint?

Lastly, I'm not quite sure to what extent the federal government is actually involved in exercising eminent domain. It seems to me that eminent domain is usually the purview of states and local governments, rather than the feds. Isn't Bush's move largely an ineffective and pointless (in terms of actual 'eminent domain exercise' effect) manuever, which makes him look good in the eyes of those who have problems with governments (local and states) who use this mechanism? He really doesn't need to worry about alienating his buddies who scrape up all sorts of windfall revenues thanks to eminent domain, because it's unlikely that states and local governments are going to change their mode of operation. Particularly now.

It's grandstanding, isn't it?

[D. Scarlatti]

Originally Posted by Wholly Goats

I honestly don't see that a local government exercising eminent domain in order to advance the interests of private parties is a legitimate use of the power. Can you provide me that rationalization, Scarlatti?

If it was solely to advance the interests of private parties, which in this case it clearly wasn't, then I can understand you not seeing a legitimate use of power.

Perhaps a better question might be, "When does the exercise of eminent domain for public use not benefit a private party?" Even building a highway is going to benefit private parties (contractors).

Can you then tell me why it can't, or shouldn't, be used as in the instance proposed in the case of Justice Souter's New Hampshire home?

Because that is textbook frivolousness, barely reasonable and purely designed for harassment.

eta:

I'm not interested in defending the outcome in Kelo, but I'm more than happy to defend its reasoning. The only reason I posted in this thread was to point out the absurdity of labelling it an "activist" decision.

It's easy to condemn (no pun intended) the outcome, but not so easy to deconstruct the internal logic, which involves decades, if not centuries, of precedent.

More to the point, I think, is that judges don't simply pull these things out of their collective asses. The Connecticut Supreme Court opinion that the USSC reviewed is 138 pages long, and goes into excruciating detail on the specifics of the local project, public policy, deference to legislative findings, analysis of the legislative framework against both state and federal constitutional provisions, etc., etc.

One of the ironies is that Justice O'Connor, who dissented in Kelo, wrote one of the opinions* that both the Connecticut courts and the USSC relied on in reaching their determinations, which essentially set the table for Kelo.

* Hawaii Housing Authority v. Midkiff.

[Wholly Goats]

Originally Posted by D. Scarlatti

Because that is textbook frivolousness, barely reasonable and purely designed for harassment.

Excuse me, but it was indeed frivolous, but eminently reasonable. Would not Justice Souter's home provide a greater public benefit as a hotel than as his private home? The same arguments apply here as to condemning private property in New London for the building of a shopping center. It was designed to make a point, and I think it made it quite well.

And when was the last time a public road was turned over to a private for-profit organization to raise revenue? Can you cite me a real example?

[Angakuk]

Originally Posted by WG

And when was the last time a public road was turned over to a private for-profit organization to raise revenue? Can you cite me a real example?

Chicago Skyway

Chicago Mayor Richard M. Daley recently signed a $1.82 billion deal with a consortium of foreign investors to privatize the Chicago Skyway, a nearly eight-mile tollway system that links the City of Chicago with northwest Indiana.

The Chicago City Council voted 45-0 in favor of the 99-year lease on October 27. Minutes later, Daley signed the deal with the Cintra-Macquarie Consortium, a Spanish/Australian group that operates more than 30 tollroads worldwide.

Proposed Indiana Toll Road Lease

The state House approved a 75-year lease of the Indiana Toll Road Wednesday, casting a 52-47 party-line vote that ended four hours of meandering debate.

Both of these stories are about long-term leases, not sales. They do, however, fit the description of "turning over" a public road to a private for profit enterprise.

[D. Scarlatti]

Originally Posted by Wholly Goats

Excuse me, but it was indeed frivolous, but eminently reasonable.

But if it's reasonable, then it isn't frivolous.

Would not Justice Souter's home provide a greater public benefit as a hotel than as his private home?

I don't think so. It will be a far greater public benefit in a few decades when it's opened to the public as a memorial to Justice Souter's legacy. Future use is part of the eminent domain/public use calculus as well.

[LionsDen]

Originally Posted by Wholly Goats

Yeah....And the most egregious exercise of "judicial activism" was Bush v. Gore, when five of the most conservative justices on the SCOTUS violated their own principles of judicial restraint and federal non-involvement in state issues in order to assure that George W. Bush was appointed as president.

You might want to revist this subject. Even other demcrats admit Gore lost. Newpapers counted the chads various ways and Gore always lost.

So who is saying President Bush stole an election now? Only democratunderground and moveon.org types... and Cindy Sheehan! HeHe


I'm aware that eminent domain has been used for most of the duration of American history...for public purpose. I honestly don't see that a local government exercising eminent domain in order to advance the interests of private parties is a legitimate use of the power. Can you provide me that rationalization, Scarlatti? Can you then tell me why it can't, or shouldn't, be used as in the instance proposed in the case of Justice Souter's New Hampshire home? Where is the restraint?

Good point! On wonders is Al Gore would have opposed eminent domain abuse as President Bush does? Maybe that is another reason to be glad George Bush was elected. Just an encouraging thought!


Lastly, I'm not quite sure to what extent the federal government is actually involved in exercising eminent domain. It seems to me that eminent domain is usually the purview of states and local governments, rather than the feds. Isn't Bush's move largely an ineffective and pointless (in terms of actual 'eminent domain exercise' effect) manuever, which makes him look good in the eyes of those who have problems with governments (local and states) who use this mechanism?

Yes, he looks good! And his example is helpful to local governments... especially those run by Republicans. I believe the state of MN has a republican governor and house and divided senate and recently it passed eminent domain reform. I see that as the wave of future reform.

Would it have happened under a President Gore or Kerry? Maybe or maybe not.



It's grandstanding, isn't it?

If it is grandstanding, let's have more!

[Wholly Goats]

Originally Posted by D. Scarlatti

But if it's reasonable, then it isn't frivolous.

It was frivolous because I'm fairly sure that anyone who read the prospectus regarding the "Lost Liberty Hotel" would have known that it was done in jest. But that does not exclude it from the bounds of common sense...in other words, it was a potentially reasonable request, given the powers which the SCOTUS had assured with the Kelo decision.

And don't tell me one cannot make a valid point with humor, as you engage in it with some frequency.

I don't think so. It will be a far greater public benefit in a few decades when it's opened to the public as a memorial to Justice Souter's legacy. Future use is part of the eminent domain/public use calculus as well.

Whoa! And you think that as many people would pay good money to visit the home of some fusty old SCOTUS justice at some indefinite date in the future? Hell, I live in the PNW and I still have no idea where Justice Douglas' home is or whether they even offer tours. And I'm just an slightly better educated member of the non-legal professional masses. But a chance to rent a room in the "Lost Liberty Hotel"? Wacka! Even if the rubes didn't have a half a brain (like Lyin'Dan), they might still take the opportunity to pay good money to stay in a nice B&B type hotel in New Hampshire. Particularly if they had decent muffins at breakfast.

Your calculus sucks, Scarlatti. The future use as a fusty, musty old memorial to some obscure justice just doesn't rate with a booming B&B hotel. Get with the program, man!

[Wholly Goats]

Originally Posted by LionsDen

Well, to be exact, he didn't "steal" it, he was given it by a cabal of Supreme Court justices who violated the Constitution to do so. Those five justices should have been impeached years ago...and one is now gratefully dead.

Dumbya should have been impeached and tried for completely different reasons. Along with Dickhead Cheney.

I'm aware that eminent domain has been used for most of the duration of American history...for public purpose. I honestly don't see that a local government exercising eminent domain in order to advance the interests of private parties is a legitimate use of the power. Can you provide me that rationalization, Scarlatti? Can you then tell me why it can't, or shouldn't, be used as in the instance proposed in the case of Justice Souter's New Hampshire home? Where is the restraint?

Good point! On wonders is Al Gore would have opposed eminent domain abuse as President Bush does? Maybe that is another reason to be glad George Bush was elected. Just an encouraging thought!

I'm not going to argue this, Lyin'Dan. I didn't care for either of them, but I distrusted Bushit even more than Gore. And subsequent events have strongly reinforced that distrust. I believe this nation would be in a lot better position in terms of world trust and integrity had Gore been the candidate who had taken office.

And, yet, had the Constitutional processes proceded as they should have, I'd have bet good money that Bushite would still have been selected as the new president. The makeup of the House of Representatives, with the excess of shit-for-brains Repugnatcans in the majority, would have pretty much assured that. Instead, the corrupt and venal Supreme Court members impugned their integrity, violated their own judical principles and acted in a completely unConstitutional manner to do what they did with Gore V. Bush. Most respectable law school deans agree....I do continue reading, and from what I've seen, Gore v. Bush is seen a potentially setting a very dangerous precedent.

Originally Posted by Wholly Goats

Lastly, I'm not quite sure to what extent the federal government is actually involved in exercising eminent domain. It seems to me that eminent domain is usually the purview of states and local governments, rather than the feds. Isn't Bush's move largely an ineffective and pointless (in terms of actual 'eminent domain exercise' effect) manuever, which makes him look good in the eyes of those who have problems with governments (local and states) who use this mechanism?

Yes, he looks good! And his example is helpful to local governments... especially those run by Republicans. I believe the state of MN has a republican governor and house and divided senate and recently it passed eminent domain reform. I see that as the wave of future reform.

Would it have happened under a President Gore or Kerry? Maybe or maybe not.

No, he doesn't look good at all. He looks like a desperate man scratching and scrambling for any handhold he can find, licit or otherwise. The man has shit for brains...oh...that'd be Rove, wouldn't it?

As for MN...what'd they do, require that one be a Repugantcan to get a contractor's license? "Reform" can go a helluva lot of ways, and when the Repugnantcans are in the driver's seat, you can usually bet it will end with a fleecing of the public, a raid on the public coffers, or the creation of a whole shipload of special provisions for their Repugnantcan buddies in the private sector. Or, any two, or all three.

Originally Posted by Wholly Goats

It's grandstanding, isn't it?

If it is grandstanding, let's have more!

You really want him to continue looking this desperate?

I guess that's good for the Dummycrats.

[Stephen Maturin]

The text of the executive order is available here. To paraphrase one of the more renowned (also one of the more drug addled, blubber butted and impotent) members of the Reactionary Right Wing Talk Radio Scream Machine, the order is long on symbolism and short on substance. Kelo-type uses of eminent domain happen pretty much exclusively at the local level. This order applies only to federal agencies under the executive branch's control.

Originally Posted by LionsDen

Don't like Eminent Domain for private use? Vote Republican.

Now there's a GRAND idea! All one need do is turn a blind eye to the indisputable fact that Republican state and federal government officials created this issue, virtually from whole cloth, via their reckless and dogmatic adherence to demonstrably ridiculous economic policies.

[Wholly Goats]

Oh... ManM?

Thanks for the cites.

I guess I was wrong and we can look forward to the great day when you have to pay a toll to enter the street in front of your house, because it's operated by a private operator under lease to the city in which you live. Of course, they'll probably act to maximize their revenue and install a toll where you enter the neighborhood arterial, and then one where you enter the major city arterial before you get to the toll road that used to be the "freeway" (HA! Now there's a misnomer if I've ever seen one!). Of course, once you get off the major tollroad, you'll have to pay another arterial toll, another neighborhood arterial toll and and another local street toll before you get to the parking lot where you have to pay to park.

Great day in the morning! We'll finally have all those drivers paying for the actual cost of road construction and maintenance.

Or...they'll take the bus.

Finally.

[erimir]

It seems that while a highway will obviously benefit some members of the public more than others, the developer will benefit more than any other person by a huge margin.

I think that a public use should actually be for the public and have a more even distribution of benefit.

Maybe those businesses should not be allowed to kick people off their property - after all, it was taken for public use.

[Angakuk]

Originally Posted by WG

Oh... ManM?

Thanks for the cites.

Uh, that would be Angakuk you are thanking. And you are welcome.

Angakuk

[Wholly Goats]

Originally Posted by Angakuk

Uh, that would be Angakuk you are thanking. And you are welcome.

Angakuk

Whoops!

My apologies to both.

[D. Scarlatti]

Originally Posted by Wholly Goats

Your calculus sucks, Scarlatti. The future use as a fusty, musty old memorial to some obscure justice just doesn't rate with a booming B&B hotel. Get with the program, man!

I can't tell whether you're being facetious or not, but the calculus is not mine, it's the Supreme Court's.

[Wholly Goats]

Originally Posted by D. Scarlatti

I can't tell whether you're being facetious or not, but the calculus is not mine, it's the Supreme Court's.

Then they've got an over-inflated sense of self-importance.

Not surprising, considering.