Wednesday, January 21, 2009

Caroline Kennedy, in Our Defense Against Eminent Domain?: The Way it Might be

We wanted to return to the subject of Caroline Kennedy (who as we previously noted worked under my supervision one summer- See: Monday, January 12, 2009, The Prospect of Caroline Kennedy as a New York Senator) and what that might mean in terms of the issues that Noticing New York feels are important, this time focusing specifically on the topic of eminent domain and its extraordinary potential for abuse. Our consideration last time was broader-themed and we did not mention that Ms. Kennedy co-authored a book, In Our Defense: The Bill of Rights in Action which has a 16-page chapter on the protection against eminent domain “takings” under the Fifth Amendment of the Constitution “Nor shall private property be taken for public use, without just compensation.” (The chapter begins with a picture on page 189 and runs to page 205.)

Update: What Others Have Been Saying, Wayne Barrett

As an update, we should perhaps first mention what others have been writing about Ms. Kennedy’s possible appointment to the New York senate seat to replace Hillary Clinton. Atlantic Yards Report evaluated the prospect of a Kennedy appointment in, The Power Broker, 2009: Mayor Mike Bloomberg (Thursday, January 15, 2009), which is largely a review of points raised by a Wayne Barrett Village Voice piece, Bloomberg Maneuvers to Crown a Kennedy: Who's Caroline's daddy? (January 13th 2009). The Atlantic Yards Report piece also writes about a Henry Stern New York Civic piece (Why Not the Best?: Let New Yorkers Elect New U.S. Senator in 2010 Like Moynihan, Hillary; Based on Achievements, Not 2-Year Incumbency, January 14, 2009), which in turn also writes about the Barrett Piece.

The Stern piece says of the Barrett piece: “Wayne Barrett has written an article in today’s Village Voice that deserves more attention than it will receive.”

Kennedy and Bloomberg: More Concern

In our own piece we wrote about our concerns about Kennedy-Bloomberg connections. Perhaps we should describe that as a concern about Bloomberg contamination. We wrote:

. . . if Ms. Kennedy is not in the end able to recognize how bad Bloombergian style is for what ails America, we have a problem. There is also the question of recognizing how Bloombergian billionaire maneuvering on term limits was antithetical to fair play and respect for the rules by which the elected officials are supposed to honor and be accountable to the public. It represents, once again, making additional accretions of power by the privileged and powerful a priority over the common decency and respect the general public deserves.
Concern about along these lines is exactly where the Barrett piece forcefully starts out:

When I see Caroline Kennedy, I think Mike Bloomberg. In the contest for Hillary Clinton's Senate seat, Kennedy is to Bloomberg what the City Council was to the mayor in his term limits battle—a partner in the spoils, yes, but, ultimately, little more than a pawn in his power grab.
Chess: Pawns & Queens

We do not vouchsafe for Ms. Kennedy, (we noted that we did not get to know her very well), but we note that when a game of chess is played and you allow a pawn to advance all the way to the other side of the board, that pawn becomes a queen.

Barrett Piece’s Strengths: Bloomberg Weaknesses

The Wayne Barrett piece is a must read, mostly because of his persuasive arguments that Mr. Bloomberg is strongly interested in having Ms. Kennedy be his pawn and because of its multiple reminders of how desperately interested Mr. Bloomberg is in power to the extent that truth and principle fall by the wayside. Barrett comments that Bloomberg is “now just another player, moving from evasion to spin to falsehood.” For instance, he reminds us of Bloomberg’s support + avowed trust for Bush and his Iraq War and how he “declared with Laura Bush at his side at the dedication of a 9/11 downtown memorial that the Iraq War ‘started not very many blocks from here,’” (and points out for good measure that Bloomberg’s "only national Democratic endorsements in 2006 were Joe Lieberman and Rod Blagojevich.”)

Bloomberg’s manipulative Bush-endorsing falsity about the destruction of the World Trade Center bookends nicely with Mr. Bloomberg’s cavalier attitude toward addressing actually remedying things at the Ground Zero site; specifically diverting $2 million in federal recovery funds to the funding of his pet New York Waterfalls project. (See: Wednesday, October 15, 2008, Self-Congratulation “Befalls” a Man Who Would Know No Limits.)

In terms of Bloomberg strongly wanting to see Kennedy appointed Barrett writes:

Initially, Kennedy's candidacy rapidly gained traction, but when a backlash of negative media swelled in late December, a chagrined Bloomberg complained at one press conference that things had gotten "out of control," which was his way of saying that things had gotten out of his control. A panicky Bloomberg said Paterson should make a decision immediately, which was contrary to the single public promise the governor had repeatedly made: He wouldn't select a new senator until the old one was confirmed as secretary of state.
Barrett Pins “Nothing” on Kennedy

Barrett’s take on Kennedy is mostly about listing the things that Kennedy has not done so in the end she remains somewhat of a cipher, leaving it difficult to predict what we might expect her to do as a senator. (Gee, in minimizing her resume Barrett didn’t mention her summer internship working with us on housing for the homeless- As one of my former bosses was wont to exclaim: “What am I, chopped liver?”- Perhaps, indeed.) His well-made points about Ms. Kennedy’s previous lack of involvement with politics are in the nature of the following:

She even failed to vote in 1994 for her in-law Mario Cuomo, when at least four other Kennedys campaigned for Cuomo in the race of his life.
Window On the Question: Kennedy and Eminent Domain Abuse

So here is the question, addressing New York’s rampant eminent domain abuse is important to Notice New York: Does the fact Caroline Kennedy has written as book with a chapter about the Constitution ’s Fifth Amendment protection against eminent domain provide a window of insight into how Ms. Kennedy, as a senator, might position herself on this important issue?

We acknowledge at the outset that we are reading tea leaves. Truth to tell, though there may be a whole chapter in Ms. Kennedy’s book, more than most people have ever written on the subject, there is not much to read in these tea leaves.

Not easy to know. . .

Here are the problems. The book, In Our Defense, is co-authored by Ellen Alderman and Caroline Kennedy so it is difficult to tell how much of the book represents Ms. Kennedy’s own input. Ms. Kennedy’s co-author, Ms. Alderman, is a legal scholar. Next, the book is copyright 1991. Though our copy is a 2002 reprint and although a lot has changed affecting emient domain law since the time of the book’s original writing, our edition has not been updated to deal with significant changes. Among other things, the writing of the book antedates the U.S. Supreme Court’s critical 2005 Kelo v. City of New London case and the Michigan case that the book focuses on, Poletown Neighborhood Council v. City of Detroit, has since been reversed.

The Poletown case involved the City of Detroit’s judicially sanctioned eviction of an entire neighborhood in order to, at the behest of General Motors, turn over the neighborhood’s land for the construction of a new 70-acre automobile manufacturing plant. Notwithstanding that in 2004 the Michigan Supreme Court, in County of Wayne v. Hathcock subsequently overruled the Poletown case, the current edition of the Alderman/Kennedy book concludes: “The state’s highest court has held that in this city, at this time, and under these circumstances, at least, such a taking is legal” This conclusion immediately follows the observation that City of Detroit was preparing to replicate its feat so as to destroy another neighborhood and give the land to Chrysler, noting that “this time no one is yelling that it is not for public use.”

Not easy to know. . .Views Undisclosed

The New York Times, recently writing about all of Ms. Kennedy’s multiple publishing efforts, noted how her books on political topics do not disclose her own political views. (See: In Book World, Caroline Kennedy Is a Powerhouse, by Nicholas Confessore, January 16, 2009):

She and her co-author, Ellen Alderman, completed two books about constitutional issues, “In Our Defense” and “The Right to Privacy,” . . . . . Together, the women profiled ordinary people whose legal battles had shaped constitutional rights, avoiding even a glimpse of Ms. Kennedy’s personal views. . .

* * * *

When Ms. Kennedy turned to more political topics, she stuck to a similar format. “A Patriot’s Handbook,” published in 2003, offers few clues to Ms. Kennedy’s political views.
The Authors’ Note that begins In Our Defense informs us, in part:

The stories were chosen for many reasons. Some illustrate why the Founding Fathers protected thee individual rights against the powers of the governments, and why we still need them today. Others show how far we have come in two hundred years. Still others raise difficult questions for the future.
While the note goes on to say that “It is a subjective slice of an enormous subject,” it is very difficult in reading the eminent domain chapter to discern the particular subjectivity the authors are bringing to the subject. The chapter works at balancing the viewpoints on both sides of the questions raised by Poletown. We can understand the effort toward balance, but we also have significant problems with the inadequacy of this kind of he said/she said, journalism.


As reported in the book, the Poletown case involved a neighborhood of thirty-five hundred, “mostly elderly, mostly Polish first-generation Americans” who had “lived in Poletown for three-quarters of a century.” It involved the use of a new “quick removal” statute so that:

. . within months the mayor and his staff had devised a plan to buy and bulldoze 16 churches, 2 schools, 1 hospital, 114 small businesses, 1,300 houses and to relocate 3,500 people in the process.
This was because Detroit was in dire economic straits and General Motors which was closing two plants, had offered to relocate a new replacement plant in Detroit only if the city provided the land. General Motors specified what it wanted in the way of a new site and reportedly the city selected the neighborhood that would be sacrificed. Reportedly out of the 3,500 residents, there were about 300 unwilling to be bought out.

Clearly the case involved the taking of one owner’s private property for what was ultimately another private owner’s proposed use. It was not for “public use” in the classic sense, but was instead being justified in one of the opining court’s words “to accomplish the essential purpose of alleviating unemployment and revitalizing the economic base of the community.”

Emotions . . Are Not Principles- Who is Principled?

On one side of the equation the two authors of In Our Defense paint an affecting emotional portrait of those who sought legal protection against having their property seized. If the angst of having their property rights abridged were what governed, then the authors’ depiction would surely carry the day for them. But really this is not the point because whether the removal is finally justified or unjustified, removals will clearly always involve such angst. Such seems to be part of the point the authors make in the “balance” they offer. Depicting the city officials, they paint them as acting in good faith and competently something we view as very much in question in current situations such as Brooklyn’s Atlantic Yards megadevelopment or Columbia’s proposed takeover of West Harlem.

The City of Detroit is even depicted as generous:

Mayor Young felt that under the Poletown plan, the residents were receiving
generous sums for their homes which would enable them to improve their standard of living.
Just Compensation

The authors mention early on, but essentially dispense with, the critical question of just compensation. The question is critical because, irrespective of justice, the less the compensation, the greater the windfall and the greater the attraction of abusing eminent domain. This is what the authors offer:

Much of the controversy surrounding the takings clause concerns the question of how much compensation is “just.” This issue is largely fact-specific, presenting difficult but localized questions about how much one’s home or business is worth.
Principles for Condemnees

As for the principles that might be important to the condemnees’ side of the case, the authors’ writing acknowledges whether the action is driven by the public and its government or by a private entity is important to analysis of the issue:

. . . It was, as one judge who eventually heard the case noted, “a most impressive display of government efficiency.”

That same judge, however went on to say, “Behind the frenzy of official activity was the unmistakable guiding and sustaining hand of the General Motors Corporation.” It was this issue that Ron Peosti, on behalf of the Poletown Neighborhood Council, brought to court.”
Countering Principles With a Majority

Countering this, the authors later quote one of the court’s conclusions that in light of the economic goals of the community “the benefit to the private corporation is merely incidental.” All that was required was that the economic benefit be “clear and significant.” (Not a test the Brooklyn Atlantic Yards would likely meet.)

Here is where the authors write what might be most telling of their subjective point of view:

In upholding the Poletown plan, the court wrote “The most important consideration in the case of eminent domain is the necessity of accomplishing some public good which is otherwise impracticable. . . The abstract right [of an individual] to make use of his own property in his own way is compelled to yield to the general comfort and protection of the community.” In effect, the court was saying, the law of eminent domain is a microcosm of the democratic principle of majority rule.
We consider the last characterization in the authors’ own words, (In effect, the court was saying, the law of eminent domain is a microcosm of the democratic principle of majority rule.), the most telling because this is a book about the Bill of Rights. Though the Bill of Rights is about individual rights there is no accompanying mention by the authors that the rights of the minority in the face of the majority are not about “majority rule.” If it were all about majority rule, the entire Bill of Rights would have no effect.

Admitting of No Principles

Though the full title of book Ms. Kennedy coauthored is“In Our Defense: The Bill of Rights in Action,” when it come to the Fifth Amendment’s taking clause, the chapter the authors provided does not make clear that the Fifth Amendment would ever provide a defense against a government taking. This is perhaps slightly addressed when the authors quote a dissenting justice.

He denounced the majority’s “clear and significant public benefit” standard as too ambiguous. “The state taking clause has now been placed on a spectrum that admits of no principles and therefore no limits.” he wrote.
The authors did not point out where we might draw the lines which might not be crossed.

“Clear and Significant Public Benefit” Evaporates

The authors do note, without connecting the dots for readers breezing along too fast, that while, as they reported, the court found that there was a "clear and significant public benefit" those benefits that were anticipated did not fully materialize. 6,000 jobs were projected. They report that only 3,000 materialized. Looking outside the four corners of the book (and with the hindsight of the additional years that have passed), it is now reported that though the GM plant is still in operation, it is significantly less successful than anticipated and that not even the 3,000 figure job level mentioned in the book was never actually achieved. It is also questionable whether the building of the plant (and the questionable economics of eminent domain) did anything to reverse Detroit’s decline.

And as for General Motors, the Poletown caper did it no good in the long run. After consuming a fortune in public funds and years of shirking its duty to pay property taxes on the same basis as all other Detroit property owners, GM abandoned its hearquarters building, and moved to the Renaissance Center on the waterfront. In spite of its Poletown Cadillac plant,GM is now on the ropes, facing bankruptcy – some of its bonds are selling for around fifty cents on the dollar, yielding over 20%, ten times the fed funds rate.
(See: Gideon’s Trumpet, Poletown: In the Short Run it Was Outrageous - In the Long Run It was for Nothing, Saturday, September 13th, 2008.)

Kelo and Drawing Lines

Though Alderman and Kennedy do not point out where the lines which should not be crossed might be drawn, the fact of the matter is that the case they wrote about was reversed in Michigan before Kelo was even decided by the U.S. Supreme Court. Kelo may actually go too far and draw the line in the wrong place (See: Saturday, June 28, 2008, Kelo case drew the line in the wrong place, Re: Pols Remain Masters of Domain.) but Kelo actually draws many lines that should not be crossed (See: Saturday, July 19, 2008, Reality Denied!). It is highly likely that if New York State’s eminent domain practices (which would not pass muster in Michigan) are reviewed at the Supreme Court level, say if the Supreme Court had granted certiori to the Atlantic Yards case, current New York practices will be disallowed.

Stopping Things at State Level

Whether or not a federal court disallows the practices that are currently going on in New York, it is important that they be stopped and they can be stopped at the state level, judicially or by our politicians. That is why the way Ms. Kennedy views things and her willingness to point out these distinctions is so important. Though distinctions such as these do not trouble the likes of Mayor Bloomberg they are distinctions to which we hope Ms. Kennedy would be attentive precisely because we rely upon state government for best practices in this area.

Interestingly, the already reversed, and therefore stricter, Poletown case was clearly before the U.S. Supreme Court as an example when Kelo was considered and it was mentioned several times in Kelo’s citations. About the stricter standards at state level which the Poletown case then represented, Justice Stevens, writing the U.S. Supreme Court majority opinion, specifically concluded in his opinion could have stricter standards, saying:

. . We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. . .
Looking to Kennedys to Draw Lines

We look mostly to the concurring opinion of Justice Kennedy (Ah, there’s that Kennedy name again, though unrelated) to serve “in our defense” when we need the protection under the Fifth Amendment’s taking clause: It sets forth many grounds for restricting the use of eminent domain for economic development. (Kennedy’s rules are an essential part of Kelo since without his fifth- vote concurrence Kelo would not have become law.) But we also pay attention to Justice Stevens and therefore would also look to the other Kennedy, our New York State Caroline, if she were appointed to represent us, just as we would look to anyone elected or appointed our senator. This is why it nags at us that, Bloomberg, who surely wants to use her as his pawn, cannot be trusted.

New York, Atlantic Yards and Poletown

When the Poletown case was reversed in 2004, even though it was in another jurisdiction, there was hope for what it would mean in New York and perhaps with respect to the Atlantic Yards eminent domain abuse. (See: August 7, 2004, ‘Poletown’ ruling could hurt Ratner’s plan for Downtown, by Deborah Kolben, The Brooklyn Paper.)

New York State style eminent domain abuse currently exceeds that which happened in Poletown and is no longer allowed in Michigan.

Proposed West Harlem Columbia Expansion and Poletown

If we have a current New York example that might be close to Poletown, it could be the Columbia University expansion where a neighborhood is being turned over in toto to a single entity to further its particular enterprise and perhaps thereby economically assist the city. The difference is that, in Poletown, what was to be built was a single facility. In the case of Columbia it will be multiple facilities that are to be built unless “a campus,” built over many years, is viewed as the equivalent of a single manufacturing plant built all at once . . . notwithstanding that it was originally planned and recommended to be built as separate facilities integrated into the neighborhood. Unlike in what was reported Poletown, it was Columbia that picked out the neighborhood they wanted to acquire and evict.

Atlantic Yards’ Insignias of Abuse

In the case of Atlantic Yards, not only won’t there be a single facility, there will be mostly no change of use as there was in Poletown. Perfectly sound and recently developed housing will be torn down to build housing. Mostly it is the change of ownership (a change to monopolistic ownership) that will be effected and most everything being done through the use eminent domain could have been accomplished by zoning changes. Further, in Atlantic Yards you have perhaps the clearest possible example of a developer-initialed and -driven megadevelopment. In Atlantic Yards there is ample evidence of bad faith and incompetence on the part of the government in assisting that private enterprise and putting a particular private entity’s goals ahead of the public. That includes the way in which competitive bidding was avoided and the accommodations in structuring the project to make it the maximum possible subsidy sponge, despite what that means in terms of poor design and oppressive density. Since so much is being torn down and left vacant for so long, and since the subsidies are so great, the argument of any economic benefit is conspicuously undermined or totally nonexistent.

Knowing the Kennedy Stand: The Twin Towers

It would be nice if we knew where Caroline Kennedy stands on such abuses. If she stands where Bloomberg stands, which is probably what Wayne Barrett would warn us to suspect, we have a problem. That is not, however, as indicated in our previous post, what you would expect from a Kennedy family member.

One clue to whether Ms. Kennedy might make the necessary distinctions may be found in the endnotes to the Poletown chapter in her book. In endnote 201 the authors compare the facts in the Poletown controversy to the “condemnations to make way for New York’s World Trade Center. . . . As the Twin Towers will attest, the defendants prevailed in that case as well.” The facts are different though: The World Trade Center was a governmentally-owned and -developed complex. What may be similar is the extent to which the style of megadevelopment used at the Trade Center site was not viewed as a success. Bloomberg’s effectiveness in redeveloping the Ground Zero site over the past seven years has been criticized, but part of the extra time it has taken to redevelop the site has been time spent on avoiding (not altogether well) the mistakes of the original development. For instance, restoring streets and eliminating superblocks. That in turn has made it particularly difficult to squeeze the same density back into the site. (See: Tuesday, August 5, 2008, TWO, AND FRO?)

Kennedy Competitor; Let’s Talk Family

The most frequently talked about alternative to a Kennedy senatorial appointment is Andrew Cuomo. In fact, the public prefers Mr. Cuomo over Ms. Kennedy according to recent polls:

31 percent of voters said they supported Mr. Cuomo, 24 percent Ms. Kennedy, 6 percent Representative Carolyn B. Maloney of Manhattan, 5 percent Representative Kirsten E. Gillibrand of the Albany area, and 2 percent Representative Steve Israel of Long Island.

(See: Poll Finds Support for Cuomo Over Kennedy as Senate Choice, by Sewell Chan, January 14, 2009.)

Since our last post dealt with qualities of Ms. Kennedy’s family which, if she has them, would make her suitable for the senatorial office (from a Noticing New York point of view) and since we are focusing in this post on eminent domain abuse, perhaps we should mention the family of Mr. Cuomo (with whom we also once worked- on the homeless housing we mentioned): Mr Cuomo’s father, former Governor Mario Cuomo, is credited with having started his career defending the neighborhood of Willets Point against eminent domain, something it now needs to be defended against again. (See: Part III of our Willets Point series, December 5, 2008, Will It Come? What the Bloomberg Administration Wills at Willets Point.)

A Not So Silver Lining for Mr. Cuomo

While there are those who feel Andrew Cuomo would make a fine senator, they are the same people who feel Cuomo is currently doing an excellent job as Attorney General. They are almost all also exceedingly wary of Assembly Speaker Sheldon Silver (who also has a culpable history on Atlantic Yards) and wary about what kind of attorney general Mr. Silver might appoint if Mr. Cuomo leaves that office.

In Chess, the Moves Are Complicated

As we said when analogizing this to chess, the moves are complicated. Who is to say that Ms. Kennedy, though she starts out as an apparent Bloomberg pawn, won’t become a queen in our defense when she safely crosses to the other side of the board?

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