Thursday, June 23, 2005
Kelo, Poletown, and state constitutions.
I woke up late today and found the supreme court had issued half the remaining cases.
Of these, the most important seems to be Kelo v New London, in which, 5-4, the court upheld government taking peoples houses from them.
It is in some senses a defeat for IJ, the institute for justice. More of a defeat than it would have been if the dissenters had picked up one more vote, e.g. Kennedy. Still, there is a sense in which IJ wins by losing.
They have focuses public attention on the problem, shown New London to be a gang of theives, and shown that the court is very deeply split over the issue. Few local governments want their cases going to the supreme court and not knowing how they will turn out. IJ here makes some progress in their war on emmenient domain abuse.
(Kennedy joined Stevens' majority, but also concurred with reservations.)
Kelo stands for the idea that the federal constitution, just barely, does not stand in the way of the government taking your stuff. In our system of dual sovereignity, property is protected (or not) by the taking clauses of both the federal and state constitutions. Where this goes now is that IJ and its ilk can now argue Kelo type cases in 50 state courts, under state constitutions.
Poletown was a Michigan case under the Michigan constitution, which upheld GM taking over a residential suburb in Flint. Years later and quite recently,the Michigan Supreme Court reversed Poletown, and held that the Michigan constitution prohibits the taking of private property for private use - what Kelo just failed to do.
IJ, over the past couple years, has started forming a few state chapters and looking closely at state constitutions.
This session IJ won the wine shipment case, and barely lost Kelo. Gonzales v Raich, which held that the commerce clause is a police power with no limits, was also of interest to IJ, although not its case. For anybody less than Goldstein Howe, having two cases in a one Supreme Court term is pretty impressive. IJ has limited resources, and maybe it will concentrate them on getting more cases to the federal supreme court. But Kelo gives a strong push to IJ tactic of looking also to state constitutions. They won't win everywhere. But I could see 5 or 10 states reigning in emminent domain abuse by recourse to their own state consitutions.
This is what I wanted to do with state "free and equal elections" clauses. But I am both inept as a lawyer, and haven't been able to find backers to support that kind of an effort - it's more than I can do alone.
In other cases, the court made it easier to transfer class actions to federal courts, to avoid runaway juries. It's a victory for the tort reform crowd. Ah, that's several consolidated cases in one ruling.
In a case from Michigan, a poor defendant gets a free lawyer for his appeal - Gideon's trumpet sounds again.
I'm more comfortable with the result than with the reasoning - Thomas's dissent says he waived his right to counsel on appeal, and there's something to that.
The other case was a rare example of not restricting habeus corpus. The court correctly distinguished between a 60b motion, and a successive habeus motion, for determining when a one-year statute of limitations starts to run. A 60b motion is a motion to correct error in a ruling. I've only filed one, and lost. (I think i'm wrong about what a 60b motion is, and I haven't read the case..look elsewhere for informed commentary. Short version - the court got a habeus case right this time. One more habeus deadline case to be decided next week.)
update a few minutes later: as is often the case, Will Baude is way ahead of me. he wrote this morning:
Kelo loses. More to come....
More: My Land Use professor hoped for and predicted exactly what happened-- an opinion about the virtues of private property, deference, and a call to litigants to turn to the states for litigation, not the federal government.
Reading these cases took me all afternoon. Worthwhile, but it reminds me of other stuff I should be doing instead. Reading the commentary that will follow will take even another block of time, and I havent even glanced at slashdot or my usual timewasting sites. I swept the hall and stairs, and might not get much else done today. It's hot.
First observations about the commentary: there's a sense that Kelo did better than expected. Similar reactions to Gonzalez v Raich - we lost, but could have lost a lot worse. My fingers remain crossed about Van Orden, the more colorful of the two ten commandments cases.
I woke up late today and found the supreme court had issued half the remaining cases.
Of these, the most important seems to be Kelo v New London, in which, 5-4, the court upheld government taking peoples houses from them.
It is in some senses a defeat for IJ, the institute for justice. More of a defeat than it would have been if the dissenters had picked up one more vote, e.g. Kennedy. Still, there is a sense in which IJ wins by losing.
They have focuses public attention on the problem, shown New London to be a gang of theives, and shown that the court is very deeply split over the issue. Few local governments want their cases going to the supreme court and not knowing how they will turn out. IJ here makes some progress in their war on emmenient domain abuse.
(Kennedy joined Stevens' majority, but also concurred with reservations.)
Kelo stands for the idea that the federal constitution, just barely, does not stand in the way of the government taking your stuff. In our system of dual sovereignity, property is protected (or not) by the taking clauses of both the federal and state constitutions. Where this goes now is that IJ and its ilk can now argue Kelo type cases in 50 state courts, under state constitutions.
Poletown was a Michigan case under the Michigan constitution, which upheld GM taking over a residential suburb in Flint. Years later and quite recently,the Michigan Supreme Court reversed Poletown, and held that the Michigan constitution prohibits the taking of private property for private use - what Kelo just failed to do.
IJ, over the past couple years, has started forming a few state chapters and looking closely at state constitutions.
This session IJ won the wine shipment case, and barely lost Kelo. Gonzales v Raich, which held that the commerce clause is a police power with no limits, was also of interest to IJ, although not its case. For anybody less than Goldstein Howe, having two cases in a one Supreme Court term is pretty impressive. IJ has limited resources, and maybe it will concentrate them on getting more cases to the federal supreme court. But Kelo gives a strong push to IJ tactic of looking also to state constitutions. They won't win everywhere. But I could see 5 or 10 states reigning in emminent domain abuse by recourse to their own state consitutions.
This is what I wanted to do with state "free and equal elections" clauses. But I am both inept as a lawyer, and haven't been able to find backers to support that kind of an effort - it's more than I can do alone.
In other cases, the court made it easier to transfer class actions to federal courts, to avoid runaway juries. It's a victory for the tort reform crowd. Ah, that's several consolidated cases in one ruling.
In a case from Michigan, a poor defendant gets a free lawyer for his appeal - Gideon's trumpet sounds again.
I'm more comfortable with the result than with the reasoning - Thomas's dissent says he waived his right to counsel on appeal, and there's something to that.
The other case was a rare example of not restricting habeus corpus. The court correctly distinguished between a 60b motion, and a successive habeus motion, for determining when a one-year statute of limitations starts to run. A 60b motion is a motion to correct error in a ruling. I've only filed one, and lost. (I think i'm wrong about what a 60b motion is, and I haven't read the case..look elsewhere for informed commentary. Short version - the court got a habeus case right this time. One more habeus deadline case to be decided next week.)
update a few minutes later: as is often the case, Will Baude is way ahead of me. he wrote this morning:
Kelo loses. More to come....
More: My Land Use professor hoped for and predicted exactly what happened-- an opinion about the virtues of private property, deference, and a call to litigants to turn to the states for litigation, not the federal government.
Reading these cases took me all afternoon. Worthwhile, but it reminds me of other stuff I should be doing instead. Reading the commentary that will follow will take even another block of time, and I havent even glanced at slashdot or my usual timewasting sites. I swept the hall and stairs, and might not get much else done today. It's hot.
First observations about the commentary: there's a sense that Kelo did better than expected. Similar reactions to Gonzalez v Raich - we lost, but could have lost a lot worse. My fingers remain crossed about Van Orden, the more colorful of the two ten commandments cases.
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