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Do Judges "Make" Law? The Sotomayor Nomination And The Beachfront Takings Case

We've been loosely following the Senate Judiciary Committee's hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say "loosely" since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.

Here's a sampling, followed by some thoughts:

• She's Lying by Paul Campos - "Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system."

• Written testimony of Lawprof Ilya Somin (Geo. Mason University) - "As President  Barack Obama has written, '[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.' The protection of property rights was one of the main objectives motivating the establishment of the Constitution. Unfortunately, the Supreme Court has often relegated property rights to second class status, giving them far less protection than that extended to other constitutional rights. I hope that the Committee’s interest in this issue will ultimately help change that. The purpose of my testimony is to analyze Judge Sonia Sotomayor’s two most important constitutional property rights decisions: Didden v. Village of Port Chester and Krimstock v. Kelly."

• A Nominee on Display, but Not Her Views by Charlie Savage (NY Times) - "Despite some 583 questions from senators amid wall-to-wall news media coverage, her hearing may prove to be as notable for what the country did not learn about her as much as for what it did. When asked what the hearings revealed about Judge Sotomayor’s legal views, the Harvard Law School professor Laurence H. Tribe, a longtime adviser to President Obama who supports her confirmation, had a simple reply: 'Nothing.'"

The meme that "judges don't make law, they just apply the law to the facts," appears fairly ridiculous to anyone who has studied the Anglo-American common law system. Of course judges "make law," especially judges who sit on courts of last resort. But the canard's origin is not as simple as Campos argues: the result of a "campaign carried out over the last generation by conservatives to convince Americans that 'activist judges' are at the root of many of our national ills," and that the "campaign has been based on the myth that there are clear lines between, for example, 'interpreting the law' and 'legislating from the bench.'"

A clear line does not exist, but the main disagreement appears to be more on the extremes, not at the blurry middle. Not, for example, when a judge interprets the meaning of the words in a statute, attempts to determine legislative intent, or when she applies the broad requirements of the constitution to policy questions frequently presented to courts; but rather when judges rely on the "invisible constitution" and inherent or implied rights to push the law where it perhaps needs to go, but hasn't quite reached. Understandably, though, Judge Sotomayor -- like Chief Justice Roberts before her -- dutifully repeated the shibboleth: the proper role of a judge is to apply the law, not legislate from the bench.

However, we probably won't have to wait long for her real views to be revealed. In Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the Court accepted for review a case presenting questions about the proper role of the courts, and whether they "make" law or simply "find" it and declare what it is. The first Question Presented by the cert petition asks:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

In the course of answering that question, the Court will likely address whether the Florida Supreme Court "made" law when it allegedly changed the legal rules applicable to the ownership of littoral accretion, or whether it was simply declaring what the law always was. The cert petition pointed out two Hawaii cases, Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) and Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978) (detailed here) which addressed the question directly, recognizing that courts make law and when they change it and upset settled expectations, compensation is required and fair process is due.

If the confirmation hearings didn't satisfy, stay tuned.

National Constitution Center Podcast On Kelo

The National Constitution Center regularly posts "We The People Stories," podcasts of "nationally recognized leaders debating and discussing the Constitution."

The latest is about Kelo and eminent domain, and is well worth a listen.

Here's the summary:

A conversation about Kelo v. City of New London four years after the Supreme Court's highly controversial 5-4 decision involving the use of eminent domain to transfer land from one private owner to another to further economic development. Since the 2005 decision, 40 states have passed legislation limiting the state government’s power of eminent domain for economic development. In practice, however, solutions have proven elusive. Guests include investigative journalist Jeff Benedict, author of Little Pink House: A True Story of Defiance and Courage, and attorneys Brian Blaesser and Scott Bullock. Veteran Supreme Court correspondent Lyle Denniston moderates. Program recorded on 06/10/2009.

The mp3 is posted here. More on Little Pink House here.

Sotomayor On Takings And Property Rights Issues

The Senate's hearings on Circuit Judge Sonia Sotomayor's nomination as an Associate Justice of the U.S. Supreme Court begin today. Here's our summary of cases in which she was involved as a circuit and district judge on the issue.

If confirmed, we may find out her thinking about regulatory takings very soon, because in its next Term, the Court will be reviewing Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), a case about the taking of littoral (beachfront) land in Florida. Our summary of the issues in that case is here.

If she is elevated to the Court, this case could prove especially interesting because her one unabashedly pro-property owner decision as a Second Circuit judge focused on procedural due process. In Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005), the court held that New York's eminent domain law deprived the property owner of adequate notice, and that when the law provides a short time frame to institute a challenge to a condemnation, the government has an obligation to provide express and conspicuous notice of the time frame. The Stop the Beachfront petition raises a procedural due process question:

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

This case is shaping up to be very interesting.

Field Of (Broken) Dreams In New London?

That now-cliched line from Field of Dreams, "if you build it they will come" (actually, it's "he will come," but work with us here) seemed to be the driving force behind the New London Development Corporation's plans for the Fort Trumbull neighborhood when it wanted to condemn the homes of Susette Kelo and her neighbors. If they condemned, Pfizer would come.

They condemned the hell out of it, but it turns out that it wasn't the pharmaceutical giant that came, or even Shoeless Joe and his Black Sox. According to a report in the New London, Connecticut paper The Day, birds -- killdeer, red-winged blackbirds, mourning doves and others -- have come: "Fort Trumbull Neighborhood Is For The Birds."

When Spinoza observed some 350 years ago that "nature abhors a vacuum," the Fort Trumbull peninsula hadn't seen its first fort yet, let alone any hints of the epic property-rights struggle to come as the 21st century dawned.

Now, just two years after the last house was razed by the New London Development Corp. for an as-yet unrealized new development, the former neighborhood is something of a demonstration site for the Dutch philosopher's famous insight. The empty lots once occupied by yards, porches and office buildings are turning into a meadow of wildflowers, milkweed and tall grasses, and the birds are moving in.

As Professor Gideon Kanner commented on this story last week, You Can't Make this Up. See also Eminent Domain is for the Birds, from Reason's blog.

Tuesday Round-Up

Here are items which we've been reviewing today:

• Dwight Merriam's thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor.

• A report that the "Florida Hometown Democracy" initiative has made the 2010 ballot. According to the report "[i]f the proposal gets 60 percent approval at the polls, Hometown Democracy would require local referendums on changes to city and county comprehensive plans."

• From the Willets Point United blog: "Willets Point United Hires NY State's Top Eminent Domain Attorney." (They've hired our Owners' Counsel of America colleague Michael Rikon.)

• The New York Court of Appeals (that state's highest court) will be hearing arguments in the Atlantic Yards cases. The NY Observer's report here, and the NY Times report here.

• Speaking of takings for sports facilities, Professor Gideon Kanner dishes on using taxpayer money to attract and support stadiums and arenas.

• My Damon Key colleague Mark Murakami links to a Maui News article about a different approach to beach erosion issues.

Links From ABA Condemnation Committee Conference Call

A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics discussed during today's call, and other items of interest which we didn't have time for:

• Judge Sonya Sotomayor's decisions about eminent domain and regulatory takings

• Resource page for the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009).

• On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment - our summary of Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) and Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978), two cases regarding judicial takings relied upon by the cert petition,

• Scalia and O'Connor's dissent from the denial of cert in Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) ("As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a State court chooses to denominate "background law" -- regardless of whether it is really such -- could eliminate property rights.").

• McQueen v. South Carolina Coastal Comm'n, 530 S.E.2d 628 (S.C. 2000).

• Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980) (California Supreme Court's interpretation of California Constitution's free speech clause to require a shopping center to allow handbilling on its property was not a taking).

• Another beachfront case - Severance v. Patterson, No. 07-20409 (5th Cir., Apr. 23, 2009). 

• Case to watch: Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). More here.

• Property owners entitled to damages including reasonable attorneys fees and costs for failed condemnation attempt, even if government prevails in intermediate steps. More here.

• Delegation of eminent domain power: redevelopment agency without power to take property until it enters into a development agreement when statute requires as a condition precedent. Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (Minn. Ct. App., May 19, 2009).

• Delegation of eminent domain power: statutory delegations strictly construed. Spokane Airports v. RMA, Inc., No. 26538-2-III (Wash. Ct. App., Apr. 28, 2009).

• Might Makes Blight In The New York Appellate Division - Develop Don't Destroy Brooklyn v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009).

• Determining Eminent Domain Pretext In Serial Takings - County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw., Dec. 24, 2008) (proposed Findings of Fact and Conclusions of Law on remand).

• Rose Acre Farms, Inc. v. United States, No. 2007-5169 (Fed. Cir., Mar. 12, 2009) - regulation restricting the sale of eggs was not a taking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation "was not severe" and the character of the government action "strongly favored" the government.

Eminent Domain Academic Round-Up: Pretext And Compensation

I've been reading some noteworthy law journal articles on the subject of eminent domain --  two on the issue of pretext, and one on just compensation. Worth reviewing.

• Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77 Fordham L. Rev. 3095 (2009).

  The plaintiffs in Goldstein based their pretext claims on both Justice John Paul Stevens's brief discussion of pretext in the majority opinion of Kelo and Justice Anthony Kennedy's more lengthy discussion in his concurrence. Acknowledging that "[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption . . . of invalidity is warranted," Kennedy’s fifth-vote concurrence identified the possibility of "a more stringent standard of review than [rational basis review] for a more narrowly drawn category of takings." Although the Second Circuit rejected the application of this heightened pretext standard in Goldstein, it acknowledged that "Kelo opened up a separate avenue for a takings challenge" where the plaintiff alleges the asserted public purpose is a pretext for bestowing a private benefit.

  Article available here from the Fordham Law Review. (In the section on Goldstein and Twombly, this inversecondemnation.com post is cited.)

• Daniel B. Kelly, Pretextual Takings: Of Private Developers, Local Governments, and Impermissible Favoritism, 17 Sup. Ct. Econ. Rev. (forthcoming Summer 2009).

  Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm’s credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site for an assembly, the government may need to rely on a private party to identify, as well as develop, a particular site. However, when the government itself possesses information regarding the site, precondemnation private involvement, as well as post-condemnation involvement by a preferred developer, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that a burden-shifting framework, analogous to Title VII’s test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

  Available here from SSRN.

• Matthew Cory Williams, Restitution, Eminent Domain, and Economic Development: Moving to a Gains-Based Conception of the Takings Clause, 41 Urban Lawyer 183 (Winter 2009) (25th Smith-Babcock-Williams Student Writing Competition Winner).

Post-Kelo, those recognizing the value of eminent domain to aggregate property for redevelopment have suggested that the real focus should not be on whether economic development is a public purpose, but on the amount of compensation given to the takees. Indeed, assuming takees werec compensated at the takee’s subjective value, the problem of forcing takees to "sell" their property to the government would be a much less divisive issue. However, current measures of "just compensation" are based on the "fair market value" of the property. In response to this "under compensation," several suggestions have been made on how to raise the level of compensation, and some states have enacted measures aimed at increasing compensation levels. Proposed solutions seek to award some of the benefit of the reaggregation and development of the land, called "after value," to the takees. This article examines whether awarding after value to takees complies with the major purposes of the Takings Clause. While it examines a few of the many proposed ways to award takees a portion of this after value, this article focuses more on whether the general idea of after value complies with the philosophies underlying the Takings Clause.

Article available here for ABA members.

NY Times On Judge Sotomayor And Property Rights

Adam Liptak reports Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings in the June 14, 2009 edition of the New York Times, comparing SCOTUS nominee Sotomayor's decision in an infamous (at least in eminent domain circles) case with the positions of the two Justices most recently confirmed to the Court, Chief Justice Roberts and Associate Justice Alito on a similar issue.

Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.

Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its wisdom and consequences. The decision, a 5-to-4 ruling in 2005, allowed local governments to take private property for business development and provoked outrage across the political spectrum. 

The article details the events which resulted in the Second Circuit's unreported summary decision in Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006), noting that the issue will likely be raised in Judge Sotomayor's upcoming confirmation hearings. As explained in the Times piece:

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser's company could put a Walgreen’s in the same place. 

The Second Circuit's unsigned panel order disposed of the case in a mere 1 1/2 pages, agreeing with the district court's dismissal of Didden's challenge for being brought too late, and holding that even if not time-barred, that Kelo "obliges us to conclude that they have articulated no basis upon which relief can be granted." Order at 3.

These type of summary orders by an appellate court are especially frustrating for the parties and their attorneys, because they provide no clue as to the court's rationale, no guidance for future cases, and appear to blow off worthwhile arguments without explanation. The lack of an opinion setting forth the court's rationale also makes it difficult for the losing party to seek further review (the Supreme Court denied cert in this case).

We've summarized Judge Sotomayor's property rights-related decisions in this post, and if she is confirmed, we won't have long to wait to find out her views on regulatory takings since the Court recently accepted review of a case from Florida on takings of beachfront property. That case won't be heard until next term when the new Justice presumably will be on the Court.

New Article On Redevelopment And "Blight" - Proposal For Reform

I just finished reading a recently-published law review article by Missouri Court of Appeals Judge Harold L. Lowenstein, Redevelopment Condemnations: A Blight or a Blessing upon the Land?, 74 Mo. L. Rev. 30 (2009) (available here).

Despite the efforts of legislatures to reform eminent domain, the exercise of eminent domain for private redevelopment still confers a concentrated benefit on a few while imposing the costs of such redevelopment on a discrete set of property owners. To remedy this imbalance, and to prevent developers and development agencies from abusing this power, this article proposes that property owners be accorded remedies at the beginning as well as at the end of the eminent domain process.

The article recommends redefining blight in "concrete and measurable terms," and allowing courts to undertake "meaningful judicial review" of blight determinations. The article also suggests that precondemnation blight cover damage to property for the "pall cast" by the establishment of a redevelopment district.

Worth a read.

Video Of Kelo's New London Neighborhood With Author Jeff Benedict

A short video with Jeff Benedict, author of Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009), which tells the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005) (available from Amazon here).

More on the book here.