Cert Petition in Goldstein v. Pataki: How to Plead Kelo Pretext

The homeowners threatened with eminent domain for the Atlantic Yards project in Brooklyn, New York have filed a petition for a writ of certiorari in Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008).

The petition points out the schizophrenic nature of Public Use analysis after Kelo: on one hand, the Court's holding that "pretextual" takings are prohibited, and incidental public benefits are not enough, seems to invite inquiry into the motivations of the condemnor and the "actual purpose" of the taking.  On the other, the Court's continuing reliance on the sweeping language of Berman and Midkiff may suggest that any reason that is "conceivable" would insulate a taking from further judicial scrutiny.  The Second Circuit in Goldstein chose the latter path.  As I wrote here:

The crux of the issue in Goldstein was whether factual allegations of pretext could be trumped by the invocation of the Berman-Midkiff-Kelo legal standard of conceivable public use.

In other words, the appellants have effectively conceded what Rosenthal found to have been a complete defense to a public-use challenge: that viewed objectively, the Project bears at least a rational relationship to several well-established categories of public uses, among them the redress of blight, the creation of affordable housing, the creation of a public open space, and various mass-transit improvements.

Slip op. at 13-14.  Here's the Second Circuit's rationale in a nutshell:

We need not go further. As Berman and Rosenthal illustrate, the redevelopment of a blighted area, even standing alone, represents a “classic example of a taking for a public use.”

Slip op. at 15.  In other words, according the court, it doesn't matter one whit whether a taking was accomplished by ignoring or subverting the public process, whether a taking was designed to bestow private benefit on a government insider, or whether a taking was accomplished to punish a landowner for wanting to develop her property.  Under the Goldstein holding, such facts are not relevant unless some conceivable post-hoc linkage between the project and public benefit cannot be be conjured up from the record by government lawyers or a court.  Fat chance of that happening since -- as Justice Scalia once noted -- government agencies generally do not employ "stupid staffs" who cannot paper a record with some possible public benefits that may stem from just about any project or regulation. 

The Questions Presented by the Goldstein petition:

Is the Court’s statement that the Public Use Clause prohibits the taking of “property under the mere pretext of a public purpose, when [the] actual purpose [is] to bestow a private benefit,” Kelo v. City of New London, 545 U.S. 469, 478 (2005), a rule of general application, or is it limited to takings justified solely on economic development grounds?

Does the substantial deference afforded to legislative public use determinations under Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), apply to non-legislative condemnation decisions?

What are the elements of a Public Use Clause claim, and how should such a claim be evaluated on a motion to dismiss, given the tension between Kelo’s
assurance that “purpose” and “pretext” matter and Midkiff’s statement that courts should defer to a legislative taking that appears “rationally related to a conceivable public purpose”?

The petition is posted here.  A press release with background is here.

Kelo has been wielded too broadly.  It did not, as many courts wrongly assume, validate all economic development takings, or takings supported by a blight determination.  The only question presented by that case was whether economic development takings are, in all cases, violative of the Public Use Clause.  In other words, a claim of per se invalidity, i.e., they never are legal.  The Kelo opinion was careful to leave open the possibility that in individual cases, takings supported by claims of blight or economic development would not pass muster because the claims are pretextual or a subterfuge, a position expanded upon by Justice Kennedy in his concurring (and fifth vote) opinion. 

Finally, keep in mind that Goldstein is a pleadings case -- the plaintiffs' complaint was dismissed for failing to state a claim under Rule 12(b)(6) -- where the court held that even if everything the plaintiffs claimed were true, they were not entitled to go forward and muster proof.  That's stretching Kelo too far.

Comments

[Mr G. H. Schorel-Hlavka]

As a CONSTITUTIONALIST (Australia) I understood that the Supreme Court (U.S.A) some years ago ruled that the Magna Carta is applicable to the U.S. constitution.
Considering that in the Magna Carta Clause 30 it states “without his consent” & 31 it states “without the consent of the owner” then “eminent domain” clearly cannot be this all out taking of property (being it land, or other items)!
Where then Clause 39 refers to “except by the lawful judgment of his equals or by the law of the land” then this must be understood to mean that not the government but the courts ultimately impartially decide matters.
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If the government cannot taken take wood or cart for transport then considering Mitchell v. harmony, 54 U.S. 13 How. 115 115 (1851) one has to rethink if then this “EMINENT POWER” of acquisition was constitutionally valid!
While it is alleged that because of the 3rd Amendment and subsequently the 5th Amendment “EMINENT DOMAIN” powers were established, perhaps it was too large a view and one has to view it more narrowed by that it did no more but require just compensation but was not to authorise the acquisition of land that didn’t exist prior to the 3rd and 5th Amendment. Was the purpose of the Amendment to give the government acquisition powers or no more but to ensure “just compensation” and judges misconceived this.
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Also, in view of the Supreme Court having declared that the magna Carta applies to the U.S. constitution then should one revisit the “eminent domain” issue altogether and argue that if the State cannot take a persons wagon by the Magna Carta and by “eminent domain” can do so, then does this mean that the powers associated with “eminent domain” is misconceived?
It doesn’t appear logic that the state cannot take wood or a wagon but can take the land.
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Also, as is in the Commonwealth of Australia the meaning of the constitution must be interpreted as to what was applicable at the time of the creation of the constitution and as such where many current conditions then didn’t exist as such, like the high-rising building, etc, then the failure is not to restrict any “eminent domain powers to what was applicable at the time the amendments were passed.
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Upon this view it appears to me that the States lack any “eminent domain” powers to use for argument of "economic development" or other such issues as they simply didn’t exist as such at the time of the amendments to the constitution as is now being used.

[Mr G. H. Schorel-Hlavka]

Http://.www.schorel-hlavka.com
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My previsous post would not allow the inclusion of my URL and so I post it now.