PROPERTY D SLIDES

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PROPERTY D SLIDES

• 2-10-14

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Monday Feb 10 Music Stevie Nicks Bella Donna
(1981)

• Ill update assignment sheet after class today

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PROPERTY D 2/10
Monday Pop Culture Moment

• As Valentines Day Approaches
• Too Much
• Part Two

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Every kiss begins with Kay
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Ive seen those Kay Jewelers ads

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but frankly, if I give someone a 5000 diamond
bracelet,
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Im looking for a little more than a kiss.
Thats why I shop at
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Eff Jewelers

• Taking Care
• of Your Family Jewels

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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

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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 5th Amdt
• Just Compensation as a Limit
• Democracy as a Limit
• Possible Need for Additional Limits When Money
  Not at Issue We Dont Trust Democratic Process

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Chapter 2 Eminent Domain Some Policy Concerns

• Limits on Eminent Domain Power
• Just Compensation
• Democracy Politics
• Public Use Requirement
• DQ2.03 Addresses Concern About Govt Handing Out
  Prizes to Favored Individuals
• Big Issue w British Monarchy

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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

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Chapter 2 Eminent Domain Some Policy Concerns

• Public Use Requirement Meaning
• UNCLEAR Use BY Public v. Use FOR Public
• 5th 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)

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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 isnt Personal or Corrupt
• Maybe Since EmDom is Big Interference w Property
  Rights, Only Can Use If Really for Benefit of
  Public
• QUESTIONS?

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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
• Limited Federal Review Under Berman Midkiff
• State Public Use Standards
• Kelo Beyond

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Hawaii Housing Authority v. Midkiff

1. Background Berman v. Parker
2. Challenged Hawaii Program
3. Analysis Adoption of Rational Basis Standard

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Background to Midkiff Berman v. Parker

• DC Urban Renewal Project
• Fixing Blighted N-hood
• Forced Sales of Buildings to Private Redevelopers

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Background to Midkiff Berman v. Parker

• DC Urban Renewal Project
• 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

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Hawaii Housing Authority v. Midkiff

1. Background Berman v. Parker
2. Challenged Hawaii Program
3. Analysis Adoption of Rational Basis Standard

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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

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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

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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

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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

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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 Cant Actually Use Parcels in Q

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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 Cant Actually Use Parcels in Q
• BUT Arguably All Hawaiians Benefit Indirectly
  from Improved Land Market

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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 OConnor (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?

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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 Govts in Latin America
• Redistributing Land Rights from Large Owners to
  Peasants/Small Farmers
• Generally Opposed by Reagan Administration

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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.  

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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

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Hawaii Housing Authority v. Midkiff

1. Background Berman v. Parker
2. Challenged Hawaii Program
3. Analysis Adoption of Rational Basis Standard

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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
• Same deference given to states as feds
• Govt never has to possess land itself
• No apparent limit to public use given for either
  1 or 2
• Makes very clear it doesnt want to assess wisdom
  of program.
• Role for reviewing court is extremely narrow
• Clear use of Rational Basis test

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Midkiff Adoption of Rational Basis Test Key
Language

• Court will not substitute its judgment for a
  legislatures judgment as to what constitutes a
  public use unless the use be palpably without
  reasonable foundation. (S20 top para)
• Where 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)

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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)

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Midkiff Adoption of Rational Basis Test

• BACK TO DQ2.05 Why shouldnt the Supreme Court
  strike down a state exercise of Eminent Domain
  that is unlikely to achieve its stated ends?
• The weighty demand of just compensation has
  been met (S24)
• Reasons for Deference Weve Already Discussed
• The 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)

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SHENANDOAH (DQs 2.07-2.08)
APPALACHIAN TRAIL
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(Shenandoah) Application of Rational Basis
TestDQ2.07(a) to Facts of Midkiff

• Purpose of Program?
• Legitimate? (Connected to Health, Safety,
  Welfare, Morals)
• Program Rationally Related to Purpose?

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(Shenandoah) Application of Rational Basis
TestDQ2.07(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

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(Shenandoah) Application of Rational Basis
TestDQ2.07(b) to Rev. Prob. 2A

• Purpose of Program?
• Legitimate? (Connected to Health, Safety,
  Welfare, Morals)
• Program Rationally Related to Purpose?

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(Shenandoah) Application of Rational Basis
TestDQ2.08 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?

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(Shenandoah) Application of Rational Basis
TestDQ2.08 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?

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Some Context

• 1981
• Poletown, City of Seattle,
• Pruneyard, the Road to JMB

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Chapter 2 The Eminent Domain Power the Public
Use Requirement

• Federal Constitutional Background
• State Public Use Standards
• Poletown
• City of Seattle
• Hatchcock
• Kelo Beyond

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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.
• As well see, Kelo suggests that
• stricter state rules may be appropriate given
  local concerns
• great federal deference OK given that states can
  do more

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Poletown Tests

• Used if land ends up in private hands
• Public must be primary beneficiary private
  benefit merely incidental
• Public benefit must be clear and significant
• Michigan SCt in Poletown repeatedly says tests
  are met w/o much analysis

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Significance of Poletown Tests

• Hatchcock overrules Poletown result tests
• Well 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

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Poletown Tests

• Used if land ends up in private hands
• Public must be primary beneficiary private
  benefit merely incidental
• Possible readings of primary beneficiary test
• Quantitative weighing of public v. private
  benefit
• Primary purpose
• Who is driving the deal? (raised by Poletown
  dissent)

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Poletown Tests

• Used if land ends up in private hands
• Public benefit must be clear and significant
• Assume both words have meaning
• Clear as opposed to speculative
• Significant as opposed to marginal

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SHENANDOAH (DQ 2.09)
APPALACHIAN TRAIL
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DQ2.09 (Shenandoah) Apply Poletown Tests to
Facts of Midkiff

• Public must be primary beneficiary private
  benefit merely incidental
• Possible readings of primary beneficiary test
• Quantitative weighing of public v. private
  benefit
• Primary purpose
• Who is driving the deal? (raised by Poletown
  dissent)

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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

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DQ2.09 (Shenandoah) Apply Poletown Tests to
Facts of City of Seattle

• Public must be primary beneficiary private
  benefit merely incidental
• Possible readings of primary beneficiary test
• Quantitative weighing of public v. private
  benefit
• Primary purpose
• Who is driving the deal? (raised by Poletown
  dissent)

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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