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Posted on 08/19/2005 8:41:48 PM PDT by FReethesheeples
A Supreme Property Rights Disaster In The Making More Kelo on the SCOTUS horizon?... [James S. Burling] 8/15/05
After a term marked by the Supreme Court’s utter contempt for property rights, those of us who happen to think there is something special about allowing old widows to keep their homes were not prepared for an even more bitter defeat. Yet, that is what President Bush handed us with the nomination of John Roberts.
The battle over property rights is not a conservative versus liberal thing. It’s more a struggle between those who believe in the power of the state to dictate how we get to use our land and homes versus those of us who believe that the state has no business destroying our right to make reasonable use of our property.
Guest Contributor James S. Burling James S. Burling is a Principal Attorney at Pacific Legal Foundation [go to Guest index]
That is because when government can go about destroying with impunity our ability to use property, none of our liberties can be safe.
As James Madison put it, “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”
This spring, the Court handed down a series of cases that stand for the proposition that today in America, no man (or widow) is safe.
In a case out of Hawaii, the Court held that courts had to defer to a legislative scheme to reduce gas prices by controlling the rents paid by gas stations--even though it was proven in federal court that the scheme would have no such economic effect.
In a case out of San Francisco, the Court held that landowners may no longer have their day in federal court when a local government has violated their rights guaranteed by the Takings Clause of the Fifth Amendment. San Francisco regularly tells hotel owners that they must pay a “fee” of hundreds of thousands of dollars for permission to rent existing rooms to tourists.
Now landowners can no longer go to federal court to argue that bizarre and extortionate policy violates the federal constitution’s proscription against “taking without just compensation.”
But the most notorious decision of this term was the 5 to 4 Kelo decision that upheld the raw power of the City of New London, Connecticut, to destroy a neighborhood of homes, including that of an 87 year old widow who had lived in her home since 1918.
So long as a “public purpose” is met, in this case by providing some aesthetic value to a large corporate headquarters project, the Court will not interfere. The language in the Constitution that property can be taken only for “public use” were just words to the Courts–words that can be shaped and reshaped to meet the needs of the state.
But if an 87 year old Connecticut widow can have her property rights destroyed, how about dozens of elderly landowners, many of them widows and widowers, near Lake Tahoe?
That is where Judge Roberts comes in.
In a notorious case in 2002, John Roberts, then a private attorney, argued that several dozen mostly elderly and middle class landowners should not receive a penny in compensation even after a local land use agency had prohibited all use of their property near Lake Tahoe for nearly 30 years.
In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation–in a way that tilts almost every time in the government’s favor. Unfortunately for the landowners, the Court agreed with him.
Of course, one might argue, Roberts was only doing what he was being paid to do as a high-priced lawyer to represent his client. But why then did he take the case for a “substantially reduced” fee as the chief of the Tahoe Regional Planning Agency admits?
More disturbingly, Robert’s representation of the agency is entirely consistent with the statist philosophy he expressed in a 1978 Harvard Law Review article on land use law. He argued against clear rules that would put boundaries on government power over property in favor of essentially the same government-friendly “balancing test” that he advocated for in the Lake Tahoe case.
Even more troubling, he proposed a scheme that would deny money to landowners whose property is taken, using the sort of rhetoric that reminds us of Bill Clinton’s prevarications over the meaning of the word “is.” Roberts wrote: “The very terms of the fifth amendment, furthermore, are sufficiently flexible to accommodate changing notions of what compensation is ‘just.’”
Put another way, what we have here is not the “living constitution” so derided by strict constructionists, but a “mutating virus” infinitely malleable in the service of the state, and undeniably threatening to the rights of property owners. Justice O’Connor was a swing vote on property; with Roberts it will be the property owners who will be twisting in the wind. tOR
copyright 2005 Acton Institute
From Bobsunshine: "Here is the case and reaction from Lake Tahoe:
"Tahoe planner recalls Roberts as 'impressive'
The nominee's win on agency's behalf was one of several before high court."
By Michael Doyle -- Bee Washington Bureau
Published 2:15 am PDT Saturday, July 23, 2005
Story appeared on Page A6 of The Bee
http://www.sacbee.com/content/politics/local_government/story/13282647p-14124962c.html
And I think this is the actual ruling on the case:
TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al. v. TAHOE REGIONAL PLANNING
AGENCY et al.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-1167
Ping
From your Link | certiorari to the united states court of appeals for the ninth circuit | Excerpt : Respondent Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area.Respondent Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area.Respondent Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area.
Seems to be a contradiction. Was the case about a 30 year moratorium or a 32 month moratorium?
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Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
From your Link | certiorari to the united states court of appeals for the ninth circuit | Excerpt : Respondent Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area..
Seems to be a contradiction. Was the case about a 30 year moratorium or a 32 month moratorium?
Ditto ping to freepatriot32.
does it suprise anyone here that a total globilist whore that created a trillion dollar prescription drug program and signed the biggest pork laden farm bill and highway bill in history and who is 100 percent behind nafta gat and cafta would only apoint someone to the supreme court who is nothing but a big governemt supporting whore himself?
bush made damn sure ahead of time that roberts would not make any ruling that would every shrink the size or scope of the federal government or hamper big business against the little peons in flyover country.After all he has a legacy to protect.
But Pacific Legal Foundation does not have an entirely pristine record, as much as I support many of its efforts. I recall attending a fund-raising affair some years ago at which speakers discussed their various sterling efforts. After the public discussions, I asked their legal counsel how they could support seizure of property (forfeitures) by law enforcement so the agencies could get the money/value from the properties taken. He replied something along the line that police and law enforcement are supporters of the PLF, so they don't want to take sides against them.
Take the example just now in the news about the seizure of Duke Cunningham's home, allegedly purchased with money obtained as a bribe. Yes, a grand jury is allegedly hearing evidence against Cunningham, but the feds decided to go ahead and seize his home. Automatically it no longer belongs to Cunningham and he must sue to prove his right of ownership. If he fails, he will never get it back or any part of the money he put into it. Guilt first; charges, trial, etc., later - maybe. That is law in the U.S. affecting ordinary people everyday. In Cunningham's case, it makes the news because he is/was a public figure.
Want me to put you on my property rights list?
"In a notorious case in 2002, John Roberts, then a private attorney, argued that several dozen mostly elderly and middle class landowners should not receive a penny in compensation even after a local land use agency had prohibited all use of their property near Lake Tahoe for nearly 30 years.
"In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulationÖin a way that tilts almost every time in the governmentÒs favor.
"Unfortunately for the landowners, the Court agreed with him.
[My note here: ominously, Justice Stevens wrote the majority deicison (joined by the liberal (Souter, Ruth Bader Ginsberg & teh "Interenational Law" guy) and 2 the "swing(-er)" Justices, O'Connor and Kennedy, while, --- You got it, --- Rehnquist, Scalia, and Thomas DISSENTED from Roberts' otherwise winning argument.]
Of course, one might argue, Roberts was only doing what he was being paid to do as a high-priced lawyer to represent his client. But why then did he take the case for a Ósubstantially reducedÔ fee as the chief of the Tahoe Regional Planning Agency admits?
"More disturbingly, RobertÒs representation of the agency is entirely consistent with the statist philosophy he expressed in a 1978 Harvard Law Review article on land use law. He argued against clear rules that would put boundaries on government power over property in favor of essentially the same government-friendly Óbalancing testÔ that he advocated for in the Lake Tahoe case.
"Even more troubling, he proposed a scheme that would deny money to landowners whose property is taken, using the sort of rhetoric that reminds us of Bill ClintonÒs prevarications over the meaning of the word Óis.Ô Roberts wrote: ÓThe very terms of the fifth amendment, furthermore, are sufficiently flexible to accommodate changing notions of what compensation is Ñjust.ÒÔ
"Put another way, what we have here is not the Óliving constitutionÔ so derided by strict constructionists, but a Ómutating virusÔ infinitely malleable in the service of the state, and undeniably threatening to the rights of property owners. Justice OÒConnor was a swing vote on property; with Roberts it will be the property owners who will be twisting in the wind."
--- James Burling is a principal attorney with Pacific Legal Foundation, the nationÒs oldest and largest public interest legal organization dedicated to defending private property rights. This commentary appeared in the August 15 issues of Enter Stage Right and The One Republic Journal.
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