Civil Liberties

"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.