The Hawaii Supreme Court declared last week that state courts ought not to simply take the government's word for it when the government claims it's condemning property for public use. Instead, courts should look into a taking to find out whether it is just a pretext for the benefit of a private party. This is (sad to say) a remarkable conclusion in today's world. As the Justices concluded, courts are "obligated to consider any and all evidence that [a property owner] argue[s] indicating that the private benefit [from a taking] predominate[s]" over the public benefit. (p. 77). Our friend Robert Thomas has more at inversecondemnation.com.
The paperback edition of Jeffrey Toobin's book The Nine has appeared, and, alas, despite the fact that Toobin was aware of many inaccuracies in his description of the Kelo case, and even invited corrections, he appears to have decided against fixing those errors. Our friend Gideon Kanner has the story.
Jacob Sullum at Reason magazine has a brief post here on the libel suit filed by millionaire developer H. Walker Royall against Carla Main, the author of the excellent book Bulldozed (available from Amazon, B&N, and from the publisher, Encounter books).
Everyone should read Bulldozed, as it is an excellent book on an issue of major public importance. It would make an excellent stocking stuffer for that liberty-minded friend or family member!
Under the First Amendment, a person who is a “public figure” is not allowed to use libel lawsuits to silence criticism. That’s from the famous Supreme Court decision of New York Times v. Sullivan. Even when you say something that isn’t exactly true about a public figure, that person is not allowed to sue, because the First Amendment protects robust, even abusive, public debate. And a “public figure,” as the Court explained in the case of Gertz v. Robert Welch, includes even private citizens who voluntarily inject themselves into matters of public controversy—including people who decide to participate in controversial redevelopment projects that involve using eminent domain to steal other people’s land. For such persons to try to stifle public criticism of their actions by filing libel lawsuits—including lawsuits against people who simply recommend that the public read a book!—is a clear abuse of the court system and a violation of the First Amendment.
This week, the Pacific Legal Foundation joined forces with the Show-Me Institute and the Missouri Ombudsman for Property Rightsto argue that the Missouri Supreme Court should reject the use of so-called “windshield surveys” to decide when to take people’s property through eminent domain. “Windshield surveys,” as the name suggests, are prepared by consultants who drive through the neighborhood, and then go back to their offices and write up a superficial analysis supporting local officials’ decision to seize people’s property and give it to private developers.
These “windshield surveys” have been repeatedly criticized by courts in California already, but they’re used in many different states. In the Missouri case, Cortex West Redevelopment Corporation v. Station Investments #10 Redevelopment Corporation, officials in St. Louis decided to take a privately owned warehouse and give the property to a development company to build an industrial park. Missouri law, of course, only allows this kind of Kelo-style taking if the property is “blighted,” so, needing to rationalize the condemnation, the city hired a consultant to drive through the neighborhood and write up a report which would cover the necessary bases.
The resulting report contains only a single page purporting to show that the buildings in the neighborhood are blighted and need to be replaced. And that page is made up of a wholly subjective “analysis,” which categorizes buildings as “good” or “poor” or whathaveyou based on the author’s observations from the street or the sidewalk.
The superficial and subjecvtive nature of these drive-by blight determinations has led several California appellate courts to reject reliance on them, noting that they cannot provide the kind of real evaluation necessary to prove that the use of eminent domain is necessary. In our brief, we urge the Missouri Supreme Court to reject their use, also. Given the fact that Missouri courts have refused for so long to enforce the “public use” requirement in the state Constitution, the only hope Missouri home and business owners have is that courts will at least require government to meet high standards when the determination of “blight” is concerned.
If they do not, and local bureaucrats can not only take property whenever it’s “blighted” but also determine without judicial oversight what property counts as blighted, then those officials will have limitless power to redistribute property at will.
Y'all remember the Freeport, Texas, eminent domain case? It was the subject of Carla Main's excellent book Bulldozed, which I reviewed here. It's a case in which the City of Freeport decided to condemn a family-owned business called Western Seafood, and give the land to a private developer to construct a shopping center. The Pacific Legal Foundation filed two briefs supporting the property rights of the Gore family, owners of Western Seafood. (You can read them here: 1,2).
Now that it looks like the Gores will be allowed to keep their land, the Texas oil millionaire who owns the development company--a fellow by the name of H. Walker Royall--has filed a lawsuit against Carla Main, the author, against her publishing company, and even against well known law professor Richard Epstein, on the grounds that Bulldozed (which, again, is an outstanding book that everyone should read) libels him! He's suing Epstein because Epstein has a blurb on the back of the book recommending that people read it!
This is an absurd violation of freedom of expression. Mr. Royall is clearly a "public figure" under the Supreme Court's decisions in cases like Gertz v. Robert Welch and New York Times v. Sullivan, which means he can't use accusations of libel to shut down criticism of him. But I suppose if you have contempt for private property rights, it isn't hard to also have contempt for freedom of expression. Mr. Royall's lawsuit is an outrage: a clear violation of the First Amendment, and a frivolous abuse of the legal process.
Our friends at the Institute for Justice have taken on the defense of Ms. Main and Prof. Epstein, and you can learn more about the case here. As Dana Berliner says, "Eminent domain for private gain is the subject of nationwide public debate.... If Walker Royall didn't want anyone to talk about him or his development deals, he shouldn't have made a deal to develop a private marina using public money and someone else's land. The Constitution protects people who talk about important issues like eminent domain abuse by governments and private developers. If developers don't want people writing about them, then they shouldn't be involved with government's abuse of eminent domain.”
PLF attorney Paul Beard spoke recently at Lewis and Clark Law School about how local governments force private property owners to pay special fees to construct public projects which ought to be paid for through taxes. These exactions violate private property rights and raise the cost of housing and the costs of businesses throughout the nation. You can watch his presentation here.