In the eyes of the law

On December 11, 2009, a Motion to Reargue Appeal was filed in the New York Court of Appeals (highest court in New York – like a Supreme Court in other states) in the case of Goldstein v. New York State Urban Development Corporation, No. 178 (November 24, 2009) which decision had upheld the condemnation of a number of residential and commercial properties in order to make way for a private corporation to develop the land for high-end residential purposes as well as the building of a sports stadium. The condemned property was claimed to be “blighted” in a study introduced as evidence in the case (which label the residents and business owners who live there would most certainly take issue). The court indicated that the condemnation was permitted under New York law under the guise of economic development. You will remember that the 5^th Amendment of the U.S. Constitution states that private property cannot be taken by the government for public use without just compensation. The 14^th Amendment expands this limitation to state and local governments. Typically, this power of condemnation may only be exercised through delegation from the appropriate legislature to either an agency (for public parks, etc.) or a private corporation (for purposes of providing a public service, such as utilities or transportation).  What worries me, besides the very poorly worded opinion in Goldstein, is that the New York Court of Appeals seems to be taking the much-maligned approach in Kelo v. City of New London, 545 U.S. 469 (2005) a step further away from the Constitution.

In Kelo, a U.S. Supreme Court case, a bare majority of 5 Justices — Stevens, Kennedy, Souter, Ginsberg, and Breyer, ruled that private property could be taken for redevelopment by a private corporation when new jobs and taxes are created.  O’Connor, Rehnquist, Scalia, and Thomas dissented.  Kelo had further expanded the holdings in two previous cases, Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which allowed condemnation to eliminate “blight.”  The pathetic end to this matter outside of the court is that in November 2009, Pfizer, the private corporation whose promises prompted the condemnation action, announced that not only would it not be developing the property, but that it would be closing the existing New London facility.  Thus, the promised jobs and taxes that were the stated reason for people being removed from their land will never come about anyway.  Talk about adding insult to injury.

In response to Kelo, in 2006, an executive order was issued limiting the federal government’s use of condemnation proceedings  “…for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.”  Although this only applied to federal proceedings, many states did change their condemnation laws to follow more closely the Executive Order than the Kelo Supreme Court ruling.  Obviously, New York was not one of them.

If this Goldstein case does make its way to the U.S. Supreme Court, what would be interesting to see is whether Souter’s replacement, Sotomayor, sides with the previous dissent making way for an effective reversal of Kelo?  I have no doubt that the framers of the “takings” clause of the Constitution did not intend it to be used to force landowners off their land for the benefit of private corporations.  What will Sotomayor do if given the chance?