“The majority is much too deferential to the self-serving determination by Empire State Development Corporation”

Earlier today New York’s highest court upheld the state’s controversial use of eminent domain on behalf of real estate tycoon Bruce Ratner and his Atlantic Yards/basketball stadium project. Not only does this disastrous 6-1 decision put every property holder in the state at risk, it represents the court’s utter failure to serve as an independent tribunal of justice. Rather than judging the facts and, if necessary, voiding an illegal state action, the court punted, arguing that determining whether or not the properties in question were actually blighted—as New York dubiously asserts—is not “primarily a judicial exercise.”

In fact, the majority even admits that the properties might not be blighted and that their ruling might set a dangerous precedent:

It may be that the bar has now been set too low -- that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses.  But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.

In his excellent dissent, Judge Robert Smith takes a very different view of the court’s role, reminding his colleagues in the majority that they have a fundamental responsibility to protect individual rights from state abuse:

The right not to have one's property taken for other than public use is a constitutional right like others.  It is hard to imagine any court saying that a decision about whether an utterance is constitutionally protected speech, or whether a search was unreasonable, or whether a school district has been guilty of racial discrimination, is not primarily a judicial exercise. While no doubt some degree of deference is due to public agencies and to legislatures, to allow them to decide the facts on which constitutional rights depend is to render the constitutional protections impotent.

That is exactly right. It’s also essential to remember that the Empire State Development Corporation (the state agency empowered to seize property via eminent domain) didn’t even start talking about blight until two years after the project was first announced. By that point, developer Bruce Ratner had already acquired many of the properties in the neighborhood (thanks to the state’s threat of eminent domain) and then left them empty, thus creating much of the unsightly neglect visible today. Moreover, the ESDC’s highly controversial blight study cited things like “weeds,” “graffiti,” and “underutilization” in the holdout properties, none of which actually constitute blight. Once again, Judge Smith’s dissent gets it right:

Choosing their words carefully, the [blight] consultants concluded that the area of the proposed Atlantic Yards development, taken as a whole, was "characterized by blighted conditions."  They did not find, and it does not appear they could find, that the area where petitioners live is a blighted area or slum of the kind that prompted 20th century courts to relax the public use limitation on the eminent domain power....

The whole point of the public use limitation is to prevent takings even when a state agency deems them desirable. To let the agency itself determine when the public use requirement is satisfied is to make the agency a judge in its own cause. I think that it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use.

It's a sad day for the New York judiciary when six of the state's seven highest judges can't be bothered to do their basic constitutional duty.

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  • ||

    It may be that the bar has now been set too low -- that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.

    Chickenshit cocksuckers.

  • ||

    I hope the Plaintiffs appeal and that the US Supreme Court agrees to hear it. Better a slim chance of having this overturned than to give up.

  • ||

    [...]arguing that determining whether or not the properties in question were actually blighted—as New York dubiously asserts—is not “primarily a judicial exercise.”

    No, they are absolutely right - defining the term "blight" is not up to the courts, but that's a cop-out: the issue at hand is if the State had the right to take property from individuals to give it to a third private interesty, notwithstanding the State's excuse.

  • ||

    That's "interest", not "intersty". Sorry.

  • Mister DNA||

    Who needs constitutional protections when there's jobs, housing, and hoops on the line?

  • Dammit||

    Onward to the Supreme Court

  • ||

    After New London v. Kelo?

    I'd laugh if it didn't hurt so much.

  • Howdy||

  • ||

    I'd like to shake Judge Smith's hand and buy him a drink. His dissent was exactly on point.

    As for the others, as the old saying goes, "I wouldn't spit on them if they were on fire"

  • ||

    I like my version, "I would piss on them unless they were on fire" better.

  • ||

    I think they're taking this whole "Empire State" moniker a wee bit too seriously. It's supposed to be a nickname, not an ethos, for the love of Christ's bleeding anus...

  • ||

    "good" imagery/referential treatment/"in vain" of Jesus Christ.... good luck explaining THAT one at the end where we ALL get to answer for what we did in this life......
    "Good" Reason editors too......

  • Another Phil||

    For the love of Christ's bleeding anus.... Lighten up.

  • ||

    If the worst thing that someone has on their conscience at Judgment Day is that particular image, then I think that's a life well spent. Seriously, God has better things to worry about than offensive imagery. And maybe all sins are equal in God's eyes, but they sure as hell aren't in man's eyes, so focus on things that are actually bad, rather than calling people out for "taking the Lord's name in vain" (which has a different meaning than you think anyways).

  • Attorney||

    I once had a matter with the dissenter here, Bob Smith, when he was still a partner at Paul Weiss. Smart guy, and nice too.

  • Jozef||

    It really sucks for the people involved. For the rest of us, it helps to determine what state not to live in.

  • Mad Max||

    In Soviet People's Republic of New York, property condemns *you!*

  • million||

    trumpeted and approved by ACORN and the local trade shops/unions. i guess property thievin's alright when it's someone else's. disgraceful.

  • /*-||

    I once took a shit on the Empire State, from the Empire State Building. Talk about yr velocity!

  • Paul||

    6-1 decision. You don't say? And I'm late to this blogpost, and there's only 14 comments. Tell me libertarians aren't becoming more despondent and depressed. Tell me. I dare you. I double dare you.

    Hey let's talk about legalizing Marijuana now!

  • Paul||

    the court punted, arguing that determining whether or not the properties in question were actually blighted—as New York dubiously asserts—is not “primarily a judicial exercise.”

    The court punted, because the United States Supreme Court basically said that it's not the role of the judiciary to determine the quality of the plan, or to second guess local authorities. There only needs to be a plan. Whether the outcomes reflect the plan's stated goals are irrelevant.

    At this point, we're fucked. This is now going to require "judicial activism" to turn this around.

  • ||

    Enjoy your 0-13 New York Nets, New Yorkers. You're paying to give them (underachieving millionaire athletes and thieving dickhead billionaire owner) luxurious new digs. You're stealing the land from your fellow citizens from right under them so they'll have a place to play.

    Go to the polls and re-elect the incumbents because that's what stupid fucking American voters do sans a live boy/dead girl scenario.

  • ||

    It's a sad day for the New York judiciary when six of the state's seven highest judges can't be bothered to do their basic constitutional duty.

    Judge Robert S. Smith is easily the most conservative member of the NY Court of Appeals, at least when it comes to being a judge. As an advocate, he took cases on all sides, and was very well regarded.

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