tag:blogger.com,1999:blog-20743459.post116414133373837174..comments2024-03-28T05:19:17.215-04:00Comments on Atlantic Yards/Pacific Park Report: Eminent domain case gets day in court; public use, legislative process at issueNorman Oderhttp://www.blogger.com/profile/07618087999719667586noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-20743459.post-1164407789128241182006-11-24T17:36:00.000-05:002006-11-24T17:36:00.000-05:00I discuss Atlantic Yards in my book, which is why ...I discuss Atlantic Yards in my book, which is why I am leaving this somewhat acerbic comment (The Eminent Domain Revolt, New York: Algora Publishing, 2006).<BR/><BR/>I. THE HEARING<BR/><BR/>This skirmish shows how little prepared lawyers are to deal with government purpose as a question of fact for the trier of fact. Time and time again in these comments, it is obvious that these lawyers do not know that if a reasonable juror could find no public purpose on the basis of the alleged facts, the complaint cannot be dismissed. Why does there need to be so much discussion of this point? Also, it is obvious that they cannot distinguish between an ALLEGATION by government of a government purpose, and a government purpose in FACT. <BR/><BR/>This shows how deformed the bar has been by minimum scrutiny, which is supposedly what they are arguing about. That is, the eminent domain use can go forward if there is a rational relation to a legitimate government purpose. Government purpose is a question of fact for the trier of fact.<BR/><BR/>But lawyers, litigants and judges have been so oppressed for so long, that the idea that government purpose is a question of fact, simply blows their minds. Can you believe how inept BOTH sides are when it comes to arguing this? The idea that the complaint could be denied is utterly ridiculous, and if this fumbling judge is dumb enough to dismiss it, guess what?<BR/><BR/>These lawyers are so out of touch (so, by the way, is the judge), that there is some discussion as to whether Justice Kennedy's remarks are the majority, when all he is doing is explicating (without in any way expanding), what any intelligent lawyer would do in discovery, on the basis of the idea that government purpose is a question of fact for the trier of fact.<BR/><BR/>And isn't it ludicrous that everyone, the judge included, seem to believe that Kelo expanded the range of eminent domain, when Justice Stevens himself (the mendacious rascal who wrote the majority opinion, conniving with Ruth Ginsburg to bring off the gambit) said that there is NO LOGICAL CONTENT to the notion of economic development as an eminent domain use. I mean, doesn't anyone in the Atlantic Yards case (including the judge) actually READ the case they all cite? But let's move on past these bozos.<BR/><BR/>The dismissal will be overturned on appeal, just as the MTOTSA case in New Jersey, has, in effect, just been. That case just produced a stay in the eminent domain proceedings pending appeal.<BR/><BR/>And by the way, why haven't the clumsy Atlantic Yards plaintiff attorneys asked for a stay? What is their problem? Come on guys, start THINKING. I know it's hard--but try! You might even get to ENJOY it.<BR/><BR/>They are going to have even bigger problems when they win, which, much to their astonishment, they will. I assume they filed this complaint because they read my comment in nolandgrab a few months ago saying that they should sue on the basis of no government purpose. Otherwise it never would have occurred to them.<BR/><BR/>II. THE RELIEF<BR/><BR/>So let's move on. Speaking of equitable relief, when the Atlantic Yards plaintiffs win, the issue will be, what relief? And there, the Court will ask them to SUPPLY the government purpose which was wanting in the case. <BR/><BR/>So you have to ask yourself, what, in fact, is government purpose? This will blow the attorneys' minds even more, because, before I got involved in this little issue, no one had the SLIGHTEST idea how to answer that question.<BR/><BR/>Here is the answer:<BR/><BR/>You can only shape the relief once you answer that question. Both Euclid v. Ambler, which is a pre-scrutiny regime case (1926), and West Coast Hotel v. Parrish (1937), which established the scrutiny regime, make it clear that government purpose is the maintenance of important facts. It is undisputed, in Atlantic Yards, that housing is an important fact. So you don't have to worry about that. But what does it mean to maintain housing? The two cases also make it clear that important facts are maintained by sustaining the community. And what, in fact, is the community? It is the interrelation of important facts. <BR/><BR/><BR/>So let's get over rational, relation and purpose, and start using the new terms you will need: maintenance, community and interrelation. For both Euclid and West Coast, maintenance and community are the dominant concepts, as you will see if you read them. These somewhat clueless lawyers will have to go back and read those cases again--this time carefully, unlike when they were in law school.<BR/><BR/>How do we interrelate important facts? A good example is at hand: the Abbott v. Burke New Jersey cases, in which the Court elevated education--as laid out in the New Jersey Constitution's education right--to a very high level. How high? Well, that is the trouble with Abbott v. Burke, and the reason it is still in litigation after thirty years.<BR/><BR/>BOTH the litigants AND the Court, in Abbott, STILL believe that government purpose involves discretion in government with respect to education. However, that is an error. Government purpose has NO relation to government discretion. Oooh! I can sense the heart attacks lawyers on both sides of the Atlantic Yards case will have once they read that remark. Interrelation of important facts is purely objective.<BR/><BR/>These naive lawyers are going to be dragged much further into this case than you would ever imageine. It was hoped, after the reaction to Kelo, that eminent domain cases would be "clean," that litigants would simply stop eminent domain and then go back to their lives.<BR/><BR/>Norwood v. Horney--the Ohio case in which the Supreme Court recently invalidated an eminent domain use AFTER most of the subject property had been destroyed--shows that attorneys and litigants cannot simply walk away. They are required to supply the relief criteria, which means they must interrelate ALL the facts (including government's pretextual, sham purpose) in order to maintain the facts at issue. <BR/>What happens is that winning an eminent domain case exposes all the ways in which government interacts with facts in the use of eminent domain. The more you learn, the more you have to address in the relief. For example, is a 501(c)(3) entity used? Well, that has to have a government purpose. So you have to turn that into a maintenance agency. Are tax exempt bonds used? Well, under the Code, those bonds must have a government purpose as well. That money has to be redirected to maintenance. What about tax increment financing (TIF)? Well, TIF must have a government purpose as well. The tax system must be restructured to maintain.<BR/><BR/>So, you will find yourself simply rewriting government policy AND monitoring it. That is what has happened with Abbott. For example, you will want a permanent injunction FORBIDDING government from doing all the things which, you demonstrated, substituted private for government purpose. You will want constant disclosure to your client whenever government participates in similar acts relating to your clients' property. Your victory means that government will be PRESUMED to have no government purpose in relation to your clients' property. So permanent vigilance is a necessary part of the relief. <BR/><BR/>Also, you will want remedies for the full range of injuries: the 1983 violations, the economic injury sustained by the unconstitutional eminent domain cloud as just from the moment the facts show government contemplated eminent domain with respect to your clients' property. And what about property already sold under threat of eminent domain? Now it will turn out that those sales were invalid because they were under duress? Undo those sales? What rights do the "sellers" now have? <BR/><BR/>In short, the Atlantic Yards property owners will wind up supervising a lot of municipal, and even state government. <BR/>Finally, what about the Federal government? Why wasn't the United States named as a defendant? Why wasn't RICO alleged?<BR/><BR/>Time to wake up from our middle class dream. Reality is knockingJohn Ryskamphttps://www.blogger.com/profile/06154989992538796409noreply@blogger.com