In the space of about 45 minutes, I heard about the Supreme Court’s decision in Kelo v. City of New London (pdf) from 4 sources both in person and online. Mostly the breathless comments had something to do with “the concept of private property has been abolished by the Supreme Court.” So, I went ahead and read the majority opinion. By way of full disclosure, I have not read the dissents, so maybe there are compelling rebuttals. I still think the court went a little further than I’m comfortable with, but from what I’ve read, it’s a lot closer call than I’d previously thought.

First of all, in the U.S. it has always been the law that the government could take your land so long as it was taken for a public use and so long as the government pays you the market value of the land. I suspect that the people who will be the angriest about this decision are the people who didn’t like that basic fact of U.S. law to start with. The government could always take your land, pay you the market value, and build a road where your house used to be. It’s certainly a fair argument that this shouldn’t be the law, but it wouldn’t be fair to beat the Court up about this aspect of the law.

What’s a little new here is that the government isn’t taking the property to build a road. It’s taking the property to implement an economic development plan for an area of the city. The city was able to negotiate sales with most of the property owners, but there were a few holdouts. Specifically, the plan called for the following:

The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a small urban village that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian riverwalk will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses.

I think the crux of the decision is this:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

The question, I guess, comes down to whether the court can second guess the legislature and city officials in their conclusion that the economic development plan constitutes a public use. The court deferred to the city officials’ use of a state statute. This doesn’t strike me as being too different from the government seizing your property and giving it to a railroad or a utility company to build track or utility lines.

I’m a little uncomfortable with this case, but I don’t see it as that big a stretch from existing law.

Update I’m really disappointed with the news coverage I’ve seen on this case. All of it seems determined to report the decision in the most breathless terms possible. GOVERNMENT CAN SEIZE WORKING CLASS HOMES FOR SHOPPING MALL! I think the scope of development is really critical here. If the government were going to take the home and turn it over to Simon Properties solely to turn the property into a mall, that would have been unconstitutional, even if it did create jobs and produce tax revenue. This case involved a project that was wide in scope that seems to have involved creation of a park, a museum, a river walk, a housing development that fit the economic plan, support for the marina, as well as a Pfizer plant development.

So, out there in the blogosphere, I find myself in an odd position. I’m luke warm at best on the decision, but I’m just really unhappy with the characterization of the opinion out there. It’s almost as if — prepare to be shocked — people haven’t even read the decision.

In the case of In the Matter of U.M. the Indiana Court of Appeals considered the case of “U.M.” who had been convicted of being a juvenile delinquent by reason of committing the offense of disorderly conduct.” Basically U.M. was in a car that had been stopped in the course of an officer’s investigation of a graffiti incident. He was sitting next to another individual who wasn’t keeping his hands up during the stop. The officer yelled at that individual to keep his hands up, U.M. said “F*** you, he can’t keep his arms up, his arms hurt.” U.M.’s discourse continued with such observations as, “You guys are all racists, f*** the police.” (Apparently citing N.W.A. as relevant authority.)

The Court of Appeals weighed the disorderly conduct statute (IC 35-45-1-3) against the free speech provision of Indiana’s Constitution (Art. 1, Sec. 9).

First, the reviewing court must determine whether state action has restricted a claimant’s expressive activity. Second, if state action has restricted the claimant’s expressive activity, the court then must decide whether the restricted activity constituted an “abuse” of the right to speak. When making this determination, the reviewing court is typically only required to find that the conclusion is rational.

With regard to the second prong of the analysis, a claimant may show that the expressive activity was not an abuse of his right to free speech by showing that his expression was political. Id. If the claimant is able to meet this burden, the State must demonstrate that it did not materially burden the claimant’s opportunity to engage in political expression. Id. The State can do this by producing evidence that the expression inflicted particularized harm analogous to tortious injury on readily identifiable private interests. In order to demonstrate this particularized harm, the State must show that the expression caused actual discomfort to persons of ordinary sensibilities or that it interfered with an individual’s comfortable enjoyment of his privacy. Evidence of mere annoyance or inconvenience is not sufficient.

The Court of Appeals went on to conclude that U.M.’s speech constituted “political” speech under the Indiana Constitution and that the State failed to meet its burden of showing U.M.’s expression inflicted any particularized harm.

I seem to be on an alcohol theme today. The Ft. Wayne Journal Gazette has a story entitled Ban on out-of-state wine shipments unconstitutional.

According to the article:

The 5-4 decision overturns laws in New York and Michigan, which supporters said were aimed at protecting local wineries and limiting underage drinkers from purchasing wine without showing proof of age. In all, 24 states have laws barring interstate shipments. The court said the state bans are discriminatory and anticompetitive. “States have broad power to regulate liquor,” Justice Anthony Kennedy wrote for the majority. “This power, however, does not allow states to ban, or severely limit, the direct shipment of out-of-state wine while simultaneously authorizing direct shipment by in-state producers.”

“If a state chooses to allow direct shipments of wine, it must do so on evenhanded terms,” he wrote in an opinion joined by Justices Antonin Scalia, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The Supreme Court opinion is available here (pdf document). The case name is Granholm v. Heald

The Journal and Courier reports on a mental giant. Chad Byrd, convicted of in March of battering a law enforcement officer, showed up for his sentencing with a BAC of .14. He had been free on bond between conviction and sentencing. Judge Milligan revoked his bond and sent him to jail where he will wait until his sentencing.

Just expanding a bit on a previous post in which I mentioned an article in the Sun Times on a Harvard report on personal bankruptcies.

“A new Harvard study of bankruptcy cases shows . . . [m]edical bills and
illnesses are a major cause of roughly half ofthis country’s personal
bankruptcies, according to the study published today on the Web site of the
journal Health Affairs.

Touted as the first in-depth analysis of medical causes of bankruptcy, the
study looked at 1,771 court records of people who filed for bankruptcy in
2001 in five federal districts, including one in Illinois. More than half
of those bankruptcy filers were interviewed in detail about their finances
and health. The researchers determined that 46.2 percent to 54.5 percent of
the nearly 1.5 million personal bankruptcy filings in 2001 could be chalked
up, in large part, to medical problems.

“Unless you’re Bill Gates, you’re just one serious illness away from
bankruptcy,” said Dr. David Himmelstein, lead author of the study and
associate professor of medicine at Harvard. “Most of the medically bankrupt
were average Americans who happened to get sick. Health insurance offered
little protection.””
. . .

The study found that the majority of medical bankruptcy filers nationwide
were middle-class homeowners with some college education. They usually had
health insurance, too. More than 75 percent of people in medical bankruptcy
were insured when they first got sick.

Good catch by Kemplog.

A report is out that confirms what a lot of folks in the business already suspected. A good chunk of personal bankruptcies are caused directly or indirectly by medical expenses.

Wired: Lessig on Copyright Extensions: Lawrence Lessig makes the sensible argument that the public gains nothing from the extension of copyright for existing works. (When granting Congress the power to confer intellectual property rights, the Framers envisioned the incentive of a limited period of exclusive rights as a means to induce authors and scientists to create works that would ultimately enter the public domain.) After the works are created, an extension offers no extra inducement for the creation of past works.

Full text – Daylight Saving Time – United States Law – 15 USC 6(IX)(260-7): Text of the Daylight Saving Time law ( 15 USC 260 et seq. ):

If a state lies entirely within 1 time zone, it can exempt the whole state from DST.

If a state lies over two time zones, it can exempt the entire state or the part of the state in one time zone.

The Dept. of Transportation has responsibility for determining the bounds of the various time zones.

The Department of Transportation adopted rules that set the division between Eastern and Central in Indiana at 47 CFR 71.5(b). It winds along and puts Lake, Porter, LaPorte, Newton, and Jasper, Gibson, Posey, Vanderburgh, Warrick, and Spencer counties in the Central Time Zone.

Under IC 1-1-8.1 , Indiana has indicated that its Eastern time zone territory will not follow DST and its Central time zone territory will follow DST.

It could be a failure of mine, but under 15 USC 260, IC 1-1-8.1, and 47 CFR 71.5(b), I cannot see any authority to allow Clark, Dearborn, Floyd, and Harrison counties to follow eastern daylight time. If I’m right, those counties could be in violation of federal law.

Introduced Version, Senate Bill 0174: Increases the Marion County small claims jurisdiction from $6,000 to $12,000 in contract claims except for landlord-tenant contracts.

Those dollar amounts seem rather high for small claims rules of evidence and procedure to apply. Maybe they work things differently in Marion County, but the small claims courts I practice in are pretty loose in terms of evidence and you don’t have much of a chance to flesh out the case prior to trial. That is entirely appropriate for claims that are, in fact, small. But, I’d be awfully mad if I lost a $10,000 case because of a legal theory raised at the last minute I hadn’t had time to research or because of hearsay evidence I was unable to rebut because I had no idea it was coming. On the other hand, I guess a Defendant can always get the case bumped up to the plenary docket if he or she is willing to pay the extra filing fee and acts quickly enough. And, the risk probably isn’t as large in contract cases as it would be in tort claims. (Landlord-tenant cases are always a headache.)

Old Romney v. Tippecanoe County I always like having my name on the winning side of a published opinion.

The case isn’t very interesting, I’m afraid. It was an inverse condemnation suit against Tippecanoe County alleging that there had been a “taking” when the state and the county closed an intersection for a new U.S. 231. The property owner complained that they had sold the right of way based on an understanding that there would be an intersection to the new road about a half block from where their property accessed the cross-road that would run
into new U.S. 231. If such a representation was ever made, it was oral and it was made by the state. Anyway, Indiana is pretty clear that, with a few exceptions, it’s not a taking if closing a nearby intersection makes your access to the public roads more circuitous. None of the exceptions applied, much as the property owner tried to shoe-horn.

For a more interesting case in which I came out on the winning side of a published opinion, take a look at Severson v. Purdue University, Tippecanoe County, et al (That involved a tragic situation wherein a dormitory resident with a drug problem entered a dorm with a shotgun and murdered his resident advisor. I represented the county against a claim that the sheriff’s department should be held liable for not protecting the resident advisor from the murderous student.)

             STEVE CARTER

            Attorney General of Indiana