Responding to the recent post on the New York Court of Appeals’ decision in Uptown Properties, George Mason U. lawprof Steven Eagle writes with his thoughts on the concurring opinion by Judge Smith that caused us some dissonance.
Here, with a little editing for layout, are Professor Eagle’s comments:
In your blog for May 20, you express confusion over Judge Smith’s concurring opinion in Uptown Properties. You ask:
Judge Smith, bless him, had the courage to be the lone dissenting voice in Goldstein, although we’ve never quite figured out how the the public use clause in the New York Constitution can provide more protection than the Fifth Amendment’s Public Use Clause as interpreted in Kelo, but at the same time allow a “blight” standard that is so deferential to the agency’s determination of blight that it renders judicial review meaningless. Is he arguing that because unlike Goldstein and Kaur that Uptown Holdings is not a blight case that the result should be different?
I take Judge Smith’s language first as yielding to the New York Court of Appeals’ extreme deference to agency determinations regarding the existence of blight in Goldstein and Kaur, as you note.
Beyond that, I suspect that Judge Smith does regard Uptown Holdings as a (trumped up) blight case. However, the particular fear in Judge Smith’s Goldstein dissent was what he regarded as the U.S. Supreme Court’s conflation of the Public Use Clause with the police power. It stated: “I am pleased that the majority does not follow the Supreme Court’s decisions in Berman, Midkiff and Kelo, which equate “public use” in the Constitution with public purpose, thus leaving governments free to accomplish by eminent domain any goal within their general power to act.” 821 N.E.2d at 189.
The Appellate Division opinion in Uptown Holdings noted plaintiffs’ argument, based on Kelo, that “there is no carefully considered, integrated development plan to which a developer is contractually bound.” “However,” it added “Kelo does not say that land may be condemned only if there is such a plan.” The Appellate Division also made some very casual comments about the existence of other public benefits that would equate to public use.
I believe that Judge Smith’s “good news” is that the Court of Appeals’ summary dismissal did not endorse this language. In short, as bad as the Court of Appeals is on blight, it has refrained from adopting what he considers the Berman–Midkiff–Kelo conflation of public use and police power, which would be even worse.
Justice James Catterson of the Appellate Division wrote an excellent opinion in Kaur, which was reversed by the Court of Appeals. His concurrence in Uptown Holdings noted: “Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Goldstein and Kaur have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.” Although its dismissal of Uptown Holdings didn’t burnish the Court of Appeals’ public use doctrine, that “good news” to Judge Smith makes little practical difference.