New York Appellate Judge James Catterson: “there is no longer any judicial oversight of eminent domain proceedings”

In the past 11 months, New York’s highest court—the Court of Appeals—has had two perfect opportunities to perform its basic constitutional duty and carefully review the highly controversial use of eminent domain by the state’s powerful Empire State Development Corporation. It failed both times. First, in Goldstein v. New York State Urban Development Corporation, the high court rubber stamped New York’s land grab on behalf of real estate tycoon Bruce Ratner and his Atlantic Yards basketball stadium project. In that opinion, the majority actually admitted that eminent domain abuse might be occurring, but then declared that it had no business second-guessing the state officials who had made the dubious blight determination:

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.

So much for an independent tribunal of justice. Then, in the case of Kaur v. New York State Urban Development Corporation, the court followed this ridiculous precedent and rubber stamped the Empire State Development Corporation’s corrupt partnership with Columbia University, once again refusing to perform any sort of judicial review on the bogus blight findings that will allow the state to seize private property and hand it over to the elite private university.

All of which brings us to yesterday’s unanimous appellate court ruling in Matter of Uptown Holdings v. City of New York. As befits a lower court, the judges consider themselves bound by the precedents set by the state’s highest court. What does that mean in practice? Here’s the entirety of Judge James Catterson’s depressing and all-too-accurate concurring opinion:

In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp. (2009) and Matter of Kaur v. New York State Urban Dev. Corp. (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.

As I noted in a column last month, the victimized property owners in the Columbia University case have now asked the U.S. Supreme Court to review New York’s actions (the Court refused to hear the Atlantic Yards case in 2008). Judge Catterson’s opinion is yet more evidence why the Supreme Court needs to start paying attention to New York’s eminent domain abuse.

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  • x,y||

    He's only "compelled" to the extent he views his responsibility as a jurist as follow what the higher court says and not 1) do the right thing, or 2) follow the constitution, which in this case would lead to a different result.

  • Michael Ejercito||

    He's only "compelled" to the extent he views his responsibility as a jurist as follow what the higher court says and not 1) do the right thing, or 2) follow the constitution, which in this case would lead to a different result.
    reply to this


    That is exactly what judges of inferior courts are supposed to do.

    As Ninth Circuit Chief Judge Alex Kozinski explained in his dissent in Silveira v. Lockyer (a dissent since vindicated by McDonald v. Chicago ) "we [the Ninth Circuit] may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision."

  • x,y||

    Exactly my point. He's not "compelled" in any meaningful sense of the word. He's (arguably) following his job description; although I will say he's doing a terrible job. Someone actually doing his job would interpret the constitutional provision correctly, regardless of what higher courts have "divined," and either wallow in the minority or be overturned.

  • ||

    which in this case would lead to a different result.

    No, it would lead to exactly the same result, since this was only a concurring opinion. In the larger scheme of things, this blistering concurrence is as useful on appeal as a dissent would have been.

  • x,y||

    I wasn't clear enough, my bad. Different result = different opinion he would write. As a lawyer, I really should know better than to say that.

  • PR||

    Don't blame the judges. They're only following orders.

  • Michael Ejercito||

    When it comes to following precedent from courts up the appellate chain of command, that is exactly what judges are supposed to do.

    Right now, there are due process and equal protection challenges in a federal district court against Oklahoma's Question 711. Baker v. Nelson controls, and the judge is bound to follow Baker and dismiss those claims. ( State Oil Co. v. Khan, De Quijas v. Shearson )

  • The Thinking Man's NASCAR||

    That's one honest man, right there.

  • ||

    I think he just blew any chance of being appointed to a higher court, however.

    Although it would be nice to put him in Roberts' place on the SCOTUS.

  • ||

    If we're talking Eminent Domain, I can think of a few other Justices that ought to be replaced by him before Roberts.

    Not to say that Roberts is necessarily good on other issues.

  • ||

    He needs to replace one of the four liberals, not Roberts. Kelo was a victory of the liberals who got stupid Justice Kennedy to their side. The other four conservatives were strongly opposed to it.

  • ||

    Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp. (2009) and Matter of Kaur v. New York State Urban Dev. Corp. (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.

    That's quite the set of intellectual balls you have there.

  • ||

    All of this immoral tyranny is a direct result of Kelo v. New London,

    Fuck you, John Paul Stevens. I spit on your "legacy" as a civil rights champion.

  • robc||

    Whatever happened to the guy trying to build the hotel on top of Souter's house?

  • ||

    I'm not sure that follows. Aren't these decisions based on the NYS Constitution?

  • Barely Suppressed Rage||

    The NYS constitution cannot trump the U.S. Constitution.

    The 14th Amendment requires due process and the court has determined that states cannot take private property for public use without just compensation any more than the federal government can.

    The question is what is "public use." These decisions have stretched the comment all to hell and back such that it no longer bears any resemblance to what it originally was supposed to mean.

  • ||

    The NYS constitution cannot trump the U.S. Constitution.

    It can when it's more restrictive (in regards to restricting the powers of government).

    As much as Kelo opened the door, the NY Appellate court was free to close it based on their own interpretation of the NYS Constitution. The fact that they chose not to does not put Kelo at the heart of the blame.

  • ||

    It was Kelo v. New London, not Kelo v. the US Department of the Interior.

    If Kelo went the other way, Atlantic Yards and the Columbia land grab do not happen. That pretty much defines "direct result" doesn't it?

    Sheesh!

  • ||

    The NYS Appellate decisions could (and would very likely) have happened in the absence of Kelo. Kelo only said that SCOTUS was too chickenshit to put up judicial barriers. The Appellate court could have easily ignored Kelo and relied on its own reasoning.

  • ||

    Wasn't the ruling an acknowledgement that the courts don't have a say in it -- that it's up to the legislature to formulate laws regarding eminent domain?

  • Barely Suppressed Rage||

    And it's up to the courts to prevent or remedy unconstitutional laws or actions of the government.

  • West Texas Boy||

    Unfortunately, this is the way our system works. If the principle at hand has already been decided, his hands are tied.

    That said, he wrote his opinion to give the appeal a better chance at higher levels. He's basically saying, "this is fucked up but I can't do anything about except point it out and call you clowns out who did this to me."

    Eventually this ends up at Scotus, which is where the real action will be.

  • Barely Suppressed Rage||

    Baaaaallllkoooo!!!

    Oh, oops. Not Balko.

    Sorry; I felt the nut kick and just naturally assumed...

  • ||

    It may be that the bar for GUILT has now been set too low -- that what will now pass as "lawbreaking," as that expression has come to be understood and used by prosecutor appointees to courts relying upon "evidence" accrued by the dishonorable for political advancement and careerism, should not be permitted to constitute a predicate for the abrogation of constitutional rights and the imprisonment of the innocent.

    But any such limitation upon the sovereign power of the state as it has come to be defined in the law and order context is a matter for the Legislature, not the courts.

    GROW SOME TESTICALS

  • ||

    TESTICALS

    So, fresnodan is a chick?

  • Jigga Wha?||

    So I have a serious question: Are we doomed to lose more freedoms forever because of these rulings? Kelo, Wickard v Filburn and its ilk, etc. Giving the government vast powers that it didn't use before.

    Is there any way to turn that around? Can a future court say: smoke it if you grow it? Does something slightly different go to the SC that lets them "clarify" previous reasonings?

    It makes me so sad to think that farmers will never have an inalienable right to use their property for personal use.

  • ||

    """Giving the government vast powers that it didn't use before."""

    The government's authority to take property is in the US Constitution. It's not new. How blight, just compensation, and public use are defined is a different story.

  • Jigga Wha?||

    Right. My point. "Blight" and "economic development" introduced in one case. Local gov'ts increase ED, push the limits a bit. "Blight" expanded to "blight is nearby" or "we're already taking so much around you that you're screwed". Again, a bit more pushing. Then "economic development" turns into "vague promises there might be taxes in the future".

    It seems to be a one way street. Is there any going back on any of those?

  • ||

    Slippery Slopes Are a Myth. Slippery Slopes Are a Myth. Slippery Slopes Are a Myth. Slippery Slopes Are....*wheeeeeeeeeeeee*

  • ||

    ""Is there any going back on any of those?""

    State legislatures can redefine those words to tighen the process. Not that they have a interest in doing so.

  • prolefeed||

    Thus, I am compelled to concur with the majority.

    No, you can fucking dissent, say the higher court ruled wrongly, and refuse to behave unconstitutionally.

    That judge needs to grow a pair.

  • Michael Ejercito||

    No, you can fucking dissent, say the higher court ruled wrongly, and refuse to behave unconstitutionally.


    It is not the role of inferior courts to tell superior courts that superior court precedent is wrong.

  • zoltan||

    Then how the hell does anything change?

  • ||

    Via the legislature.

  • Michael Ejercito||

    Or by amending the state constitution or the U.S. Constitution.

  • West Texas Boy||

    Then how the hell does anything change?

    Higher level courts disagree and overrule the lower level courts.

    But, just as this guy is subordinate to the New York Court of Appeals, the NYCA is subordinate to the Supreme Court, so it could change there, too.

    The Supreme Court also has the luxury of occasionally changing its mind, too.

  • robc||

    Did the inferior court judge take an oath to uphold the consitution (federal or state)? If so, then he MUST dissent if the superior court precedent is wrong, or be in violation of his oath.

  • cynical||

    What if the constitution requires that he obey superior court precedent?

  • ||

    Judge Catterson’s opinion is yet more evidence why the Supreme Court needs to start paying attention to New York’s eminent domain abuse.

    I assume Attorney General Holder will investigate these transactions, and the relationship between the Empire State Development Corp and both Ratner and Columbia.

    Because this administration is all about equal justice under the law, and keeping the playing field level.

  • ||

    You really should cut down on the hallucinogen usage.

  • Virginia||

    so basically, "this is how it is. meh." and he keeps his job.

  • ||

    So, we're agreed then? Overreliance on precedent makes courts essentially redundant or obsolete, right?

  • Michael Ejercito||

    So, we're agreed then? Overreliance on precedent makes courts essentially redundant or obsolete, right?


    No.

    Precedent only applies to the legal provisions they interpreted.

    For example, Dred Scott v. Sandford was an interpretation of constitutional provisions that existed in 1857. It does not serve as precedent in interpreting the 13th or 14th Amendments, for example.

    Minor v. Happersett was an interpretation of the 14th Amendment. It is obviously not binding on 19th Amendment cases.

  • jtuf||

    I decided to never buy land in America as a result of the Kelo vs New London ruling.

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