Come at me!
(Bolick, J., dissenting)
We have a Wexis alert for "Kelo," because that's one of the ways we keep up on the latest developments in this area. That alert doesn't ping all that often, so we were all excited when yesterday, we received an alert notifying us of the Arizona Supreme Court's opinion in State of Arizona v. City of Tucson, No. CV-20-0244-SA (Apr. 14, 2021)? Was it a case of government-to-government takings? Prior public use?
So imagine our disappointment when in reading the opinion, it turns out to be a question of municipal home rule, and election law. Now don't get us wrong: we are muni law nerds as well as takings nerds, so we dig any opinion in which a court is looking at a local government's power to frame its own "constitution" and how (or whether) it conflicts with state law. But Kelo? What's eminent domain and public use got to do with this one?
It was only when we got to Justice Bolick's solo dissent that our patience paid off. Turns out that Kelo wasn't cited for its public use holding (good or bad, but knowing Justice Bolick, probably bad), but as an example of a court ignoring the plain text of the constitution:
In Kelo v. City of New London, the U.S. Supreme Court faced a similar dilemma in deciding whether to extend a line of cases that contravened constitutional text. 545 U.S. 469 (2005). Specifically, the Court long ago decided to abandon a literal application of the “public use” requirement of the Fifth Amendment’s Takings Clause, reasoning that “it proved to be impractical given the diverse and always evolving needs of society.” Id. at 479. Instead, the Court “embraced the broader and more natural interpretation of public use as ‘public purpose.’” Id. at 480. In dissent, Justice Sandra Day O’Connor, joined by three colleagues, warned that the practical impact of the Court’s opinion was to reduce the public use commandment to “hortatory fluff.” Id. at 497 (O’Connor, J., dissenting).¶62 Also dissenting, Justice Thomas remarked that the Court “relies almost exclusively on . . . prior cases to derive today’s far-reaching, and dangerous, result.” Id. at 523 (Thomas, J., dissenting). “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” Id.¶63 The current Court did not create the jurisprudential muddle that surrounds article 13, section 2. We inherited it. We should renounce that legacy in favor of the far richer inheritance bestowed upon us by the Arizona Constitution. For the foregoing reasons, and with great respect to my colleagues, I dissent.
Slip op. at 20 (Bolick, J., dissenting).
And we just can't leave without first noting this, the anecdote/joke that Justice Bolick starts off with on pages 15-16:
¶36 The Court’s convoluted jurisprudence over many decades brings to mind a story. A carpenter needed a new blade for his saw and set forth on foot toward a general store only a mile away down a straight road.¶37 Shortly thereafter, a neighbor farmer pulled alongside in a wheezing, rusted pickup truck. “Where you headed?” he asked.¶38 “General store,” replied the carpenter.¶39 “Want a ride?” asked the farmer.¶40 Somewhat doubtful about the old truck, the carpenter nonetheless agreed, opening the creaking door and sitting on a bench seat with torn upholstery and springs jabbing his rear. “How long have you had this truck?” the carpenter asked.¶41 “Bought it new in ’51,” the farmer answered. “Never ran right; still doesn’t.”¶42 The farmer pressed the accelerator to a loud backfire, then pulled the wheel sharply to the left, coaxing the old truck up a steep hill away from the nearby general store. “Where are we heading?” asked the puzzled carpenter.¶43 “Don’t rightly know,” replied the farmer. “I go a different way every time. Never really know where I’ll end up ’til I get there.”¶44 The carpenter felt it unneighborly to complain, even as the ride grew ever more bumpy and uncomfortable. The truck meandered up and down hills and around curves, belching exhaust fumes and kicking up dust. Minutes turned into an hour. An hour turned into two.¶45 Finally, they arrived at a general store about fifty miles from where they started. The carpenter went inside, only to find the store did not stock the blade he needed.¶46 Angry now over wasting so much time in a futile endeavor, the exasperated carpenter returned to the truck and asked the farmer, “Why did you drive fifty miles out of our way instead of just going a mile down a straight road?”¶47 To which the farmer replied, “Because that’s the way I’ve always done it.” And then with a sly grin, he added, “You owe me for gas.”
That's something you don't see every day in a judicial opinion.
State of Arizona v. City of Tucson, No. CV-20-0244-SA (Ariz. Apr. 14, 2021)
