Tuesday, October 6, 2009

First Monday in October: An Open Letter to Sonia Sotomayor about Noticing an Eminent Reality

The Supreme Court began its work in September this year, but the court traditionally commences the first Monday in October. The new Supreme Court justice Sonia Sotomayor was officially seated Tuesday, September 8, 2009 and the court met immediately thereafter on Wednesday to discuss the political campaign spending regulation and free-speech case concerning “Hillary: The Movie.” (It looks like the court is restless about making some new law in this area.)

This Monday being the first Monday in October there is speculation about how much Justice Sotomayor will influence decisions coming before the court.

We thought this was an appropriate time to speak about one particular area to which the court needs to address itself. Accordingly, we write Justice Sotomayor, the court’s newest justice, this open letter concerning the need to halt the abuse of eminent domain. We know whereof we speak because New York is quite likely the worst of all the states in the union when it comes to eminent domain abuse.

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Our Open Letter to Justice Sonia Sotomayor

Dear Justice Sotomayor,

You and I have some things in common: Now that you sit on the Supreme Court, I hope that you will remember some of what we both learned from our common experiences to bring about a justice that is grounded in reality rather than denying it. Yes, I am advocating that you should let your past personal experience affect your judicial decision-making. That may sound like I am asking you to fly head-on into what was a hot button issue during your confirmation hearings but for the sake of bringing justice to a significant issue, eminent domain abuse, I want to urge you, as a judge, to remember and let your past experiences inform your future judgement.

I do not expect or urge that you break with precedent. Not at all. I am expecting that you would, as you expressed at your confirmation hearings, faithfully adhere and be fully bound by stare decisis. Indeed, despite frequent criticisms that the Supreme Court’s decision in Kelo was flawed, the guidance in this latest pronouncement on eminent domain prescribes lots of dandy principles that we think should be properly followed to steer clear of developer-initiated, developer-driven transactions that abuse eminent domain. Among them are not picking a particular developer-transferee before a development plan exists and not concocting development plans that are “of primary benefit to ... the developer,” or “only of incidental benefit to the city.” (See: Saturday, July 19, 2008, Reality Denied!)

Given all the dandy prescriptive principles that abound in Kelo, all that remains to animate the protection of the good intentions underlying those principles is to acknowledge basic truths about real life and politics in state development agencies.

The Kelo decision was decided 5-4. When your nomination was confirmed you replaced Justice David Souter, one of the justices in the majority who voted in the Kelo decision to give the government a dangerously tricky degree of latitude to take property from one private owner and give it to another for public development. The court’s ruling in Kelo, decided without a majority opinion, was reflected in a plurality opinion of four justices (in which Justice Souter joined) and far, far more important, the skeptical, cautionary concurring opinion of Justice Kennedy.

Let’s talk about what we both know about real life, and politics in state development agencies.

Common Background

You and I are both lawyers. Beyond this we both served the State of New York Mortgage Agency: You were a board member and I ran the legal department. In our respective positions we both endeavored to guide that public agency’s development policy and keep the agency on course. Our terms did not overlap: Your tenure ended in 1992: My term formally began when I assumed responsibilities for SONYMA’s Legal Department in the summer of 1993. Though our SONYMA service was not concurrent, we both served under the same chairman, we worked on the same projects and programs; we were supported by substantially the same agency staff.

Steering to Stay On Course

One cannot do a competent job in trying to keep a development agency on course unless one recognizes the very real potentiality for its going off course, departing from good policy and practice and even from the letter of the law. There are many ways for an agency to go off course and possibly violate a statute. One way is through simple inadvertence, something I think you have witnessed firsthand.

Departures From the Law

Statutes can, of course, be complex and technical and sometimes difficult to interpret. I have had the personal experience of writing legislation that was enacted, thinking I knew what it meant and then discussing it with people who wanted to interpret it differently from what was actually intended when it was drafted. This usually comes up when people are interested in interpreting an agency to have greater powers than conferred upon it by the legislature in actual law and legislation.

I have also been in situations where the law is known and easy to interpret but there is a strong pull of temptation to ignore what it says. Temptation presents itself when you know or believe that no one will challenge an agency if it steps outside the legal boundaries of the law. Generally an agency such as SONYMA does good things: SONYMA’s mission is primarily to produce affordable housing. If an Agency goes beyond legal limitations to accomplish additional good things that generally comport with the spirit of its mission it is unlikely that someone will rise up to challenge it for overstepping of a legal boundary, or that anyone would have the desire to notice. A more insidious temptation presents itself, however, when the temptation is not to do more good but to do what is politically desired. No matter how politicians may spin things, what is politically desired is not always what is good.

Politically Pulled

The pull of the political could be for something the public at large knows about and wants. Just as easily it could be for something relatively obscure. If an applicable law hasn’t been written (or revised and rewritten) to permit the acts in question it is possible those acts may lack broad-based support. That doesn’t mean that the temptation to go beyond the law for political reasons vanishes. What strengthens the temptation to go beyond the law is that irrespective of what the law actually says it has gotten to be extremely difficult to challenge public agencies. The courts often find that citizens do not have the “standing ” (a legal concept) that entitles them to legally challenge an agency. Further, the courts give a special (we would say questionable) degree of deference to public agencies’ interpretations (or misinterpretations) of their own statutes.

I have just been speaking above, in the most legal sense- in terms of statutes and case law-, but what I am saying has wider application. While most of what we have just been saying applies to keeping agencies on course to operate within the actual law, the same concepts also apply to keeping an agency on course in following what is good policy. When it comes to policy, public agencies can, for the wrong reasons, veer very far off and this is important to remember before weakening fundamental rights in deference to what is pronounce to be “good policy.”

Fundamental rights need to be protected by a fair process of fact-finding and impartial review. Neither of these exist in New York when public agencies pursue eminent domain. Increasingly, eminent domain is being abused in New York for private benefit rather than the public good.

Heart Svelt: Valuing Judicial Impartiality Over Empathy

The Senate hearing on your confirmation dealt extensively with whether your life experience should be allowed to color your judgment as a judge. To an extent, there were disavowals on your part of the potential value of life experiences. You were pressed during the hearings about your past statements regarding the extent that your past personal experiences would be relevant to the wisdom that could be expected from you on the bench. Senator Jeff Sessions of Alabama reportedly said that:
allowing background to affect a judge’s decision “goes against the American ideal and oath that a judge takes to be fair to every party.”
(See: Republicans Press Judge About Bias, by Peter Baker and Neil A. Lewis, July 14, 2009. More from this New York Times article follows below.)

You qualified and otherwise retreated from your quoted statements about how a “wise Latina woman” might reach better conclusions than white males without the same experiences. You made statements about putting feelings aside. For instance, you said:
“It was bad because it left an impression that I believe that life experiences command a result in a case,” . . “But that’s clearly not what I do as a judge.”

. . “Life experiences have to influence you. We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings, and put them aside. That’s what my speech was saying.”
You also reportedly repudiated a statement by President Obama (made as a senator in 2005, before he voted against confirming Mr. Roberts to the court), that “what is in the judge’s heart” is critical in the toughest cases. You said:
“Judges can’t rely on what’s in their heart,” she said. “They don’t determine the law. Congress makes the laws.”
“Empathy,” sometimes considered its own virtue, had few defenders in the course of your confirmation hearings. The New York Times in its editorial recommending your confirmation said: “We wish she had spoken out forthrightly in favor of empathy, a quality President Obama has said he is looking for in his judicial nominees.” (See: The Sotomayor Nomination, July 20, 2009.)

“Empathy” lacked defenders at the hearing because it was being trumped by the value of “judicial impartiality” which took a preeminent place in the discussions. The New York Times did one of their intriguing word frequency charts for the opening statements of the Senate Judiciary Committee and the topic of impartiality predominated far over anything else, especially for Republicans but also for Democrats. (See image of chart below. Click to enlarge.)
Boiling Experience Down to “Just the Facts, Ma’am” (With Empathy Set Aside)

You explained that feelings and personal views must be subordinated to the impartiality of the law. (See: Transcript: Sotomayor Confirmation Hearings, Day 2, Published: July 14, 2009) You said:
As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. . . I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.
But there is a distinction. While feelings and personal prejudices are to be put aside, that is not the case with facts. When Senator Sessions asked you whether it is could be “appropriate for a judge ever to say that they will choose to see some facts and not others” you responded:
It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that. And in the wider context, what I believe I was -- the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.

But in the end, you're absolutely right, that's why we have appellate judges that are more than one judge, because each of us, from our life experiences, will more easily see different perspectives argued by parties. But judges do consider all of the arguments of litigants. I have.

* * * *

I don't stand by the understanding of that statement, that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging -- they help you to understand and listen -- but that the law requires a result. And it will command you to the facts that are relevant to the disposition of the case. (Emphasis added)
Facts Don’t Escape Judicial Notice

In other words, whatever check is to be put on feelings and sympathy in order to achieve aspired- to impartiality, life experience still helps us to perceive facts, and neither facts nor the help of life experience in perceiving them should be set aside. This is consistent with the rule that some facts are allowed to be validated in our judicial system by “judicial notice,” which means that the facts need not be “proved” by litigants if the truth of them is sufficiently well known or notorious by common experience (including the judge’s) so that they cannot be refuted.

The judiciary may not yet have taken official “judicial notice” that there is corruption and politics in government but the recognition that government agencies engage in pretense rather than performing as promised or advertised is almost as commonly known (perhaps more so) as things which are readily subject to judicial notice by the courts, things like the rising and setting times of the sun.- -

Judicial Impartiality - With a Certain Added Appeal

- - Actually, the judicial system has, in effect, taken judicial notice that human systems are imperfect and that impartiality is hard to achieve: Your remarks above make specific reference to the importance of the fact that the judicial system has “appellate judges.” The reason “why we have appellate judges” is not merely because their additional“ life experiences” contribute additional perspective. Extra layers of review are a check and balance on the system designed to encourage care and impartiality.

Impartial Judicial Appointments vs. Political Development Agency Appointments

We are speaking here of the judicial system where your own confirmation hearings and the tradition of adhering to precedent demonstrate that impartiality is highly valued and reinforced. We normally think of our rights and the protections we have under the Constitution as being entrusted to the judicial system.

The world of development agencies in which we both participated is notably different. New York development agencies, particularly the uppermost levels, are traditionally staffed in large part in the most important positions by political appointees. The very top positions are, in fact, always political employees.*

(* For the astute this likely raises the question whether I was a political appointee. Although I ran the legal department at SONYMA and the other affiliated state finance agencies for more than a decade, I was not a political appointee and because I did not want to be misconstrued as being in a politically held postion I did not agree to permanently ascend to the level of Counsel. Accordingly, I ran the legal department alternately as acting counsel during the multiple interregnums between politically appointed counsels or in the number two capacity position of first deputy.)

Adjudication of Rights by Political Agencies?

New York is a state where issues of whether eminent domain should be used are adjudicated (to the extent they are at all), by politically-run agencies and not in the more impartial environment the courts could, and in fact should, provide. The process is mostly internal. There is no impartial arena for fair fact-finding. This ought to be surprising if you think about it: Remember, what is being adjudicated is a fundamental right protected by the Constitution’s Bill of Rights. The core theory of that right is to provide protection against excesses of the government. But the government is being given the right to totally control the process so as to negate any protections. The situation is actually worse, because in New York the public agencies have privatized and sold eminent domain so that it is now used for developer-initiated ,developer-driven projects. In so doing, the agencies have set it up so that it is the private developers who now ascend to this remarkable immunity from review when they violate the intent of Fifth Amendment’s protections to seize the property of their neighbors.

Tenacious Politcality

The acknowledged flat-out politcality of our New York agencies was especially in evidence recently as both the New York State governor and the mayor of New York fought against public authority reform, not wanting that politcality in any way diluted. When the governor and the mayor ran for their political offices they campaigned for public authority reform. Finally confronted with a long labored over bill to enact such reform they have opposed it. (See: Wednesday, August 19, 2009, Brodsky, Perkins fire back at objections to public authority reform raised by Paterson aide; are authorities really checked by elected officials?) The governor and the mayor are arguing that public authority board members do not, and should not, have a fiduciary duty to hew to and serve the public purpose of their agencies rather than simply taking direction from the politicians who appoint them. They also argue that when board members do wrong and breach the fiduciary duty which the board members owe to the public they should not be accountable to anyone except the politicians they are serving. It hardly makes sense: The breach of fiduciary duty we are concerned about is, after all, the bending of the purpose of public agencies to the political will of those who appointed them.

Unappealingly Political

Not only are New York citizens’ Bill of Rights protections adjudicated in the political environment of these agencies rather than what is intended to be the more impartial environment of the courts as ought to be expected, but the right to meaningfully appeal the bias of these agencies is virtually nil.

During your confirmation hearings, you mentioned the importance of the ability to appeal in ensuring fair results, but in New York the right to contest a political agency’s eminent domain policy determinations and fact-finding is highly circumscribed. Is this the way to treat the protections against abuse that are stated in the U.S. Constitution as part of the Bill of Rights and in comparable provisions of the New York State Constitution? Remember that the developers who are buying the right to use eminent domain from the state make massive political contributions to the politicians who run the political agencies.

Contesting the Notion of Popularity as a “Right” Thing

The Bill of Rights is meant to afford protections to individuals against the majority. The rights of individuals can never be protected if all it takes to snuff out those rights is deference to a political decision issuing from someone elected by the majority. With certain rights this ought to be even more self-evident than with others, eminent domain principally among them. What could protection against eminent domain abuse possibly consist of if it isn’t the ability of the individual to be protected against government, since governments generally take office via elections involving populous majorities. By definition, the individual right will always be snuffed if the political trumps principle. Ownership rights could be routinely and regularly reassigned by publicly held popularity contests.

Favoring Missed-Popularity

Frequently though, eminent domain is not driven by popularity contests but by unpopular political favoritism. The Atlantic Yards megadevelopment in Brooklyn is an infamous example of eminent domain abuse and it is exceedingly unpopular with the community.

When political favoritism drives projects we wind up with developer-driven projects, the kind of projects that according to much of the key guidance in the Supreme Court’s Kelo case should be unlawful. Justice Kennedy in his concurring opinion permitting the taking in Kelo expressed the rule that for such taking to be permitted there shouldn’t be discernable evidence of “impermissible favoritism.”

Politicians Multiple Constituencies: Voters vs. the Monied

There is political analysis that observes that politicians have more than one constituency. Politicians not only have their “voting constituencies” resident in the districts from which they must be elected; politicians also have their “dollar constituencies” and sometime only a fraction of those dollars are coming from within their districts. (See:Dollar Politics: Who Has Access To Max Baucus? by Andrea Seabrook and Peter Overby, All Things Considered, July 22, 2009) If we recognize that dollar constituencies can be a driving force in politics and we see situations where that is happening, how hard should we have to look for the discernable evidence of “impermissible favoritism” that disqualifies the legitimacy of a taking? Atlantic Yards in New York is a very strange situation indeed, where New York agencies are propping up a financially feeble Cleveland-based developer whose future, by their own reports, now rests on doing only two projects, Atlantic Yards and one other. In order to survive, the developer has invested heavily in the local political landscape.

The Stevens Plurality Opinion in Kelo

Some people think that "The majority decision in Kelo v City of New London written by Justice Stevens was wrong, wrong in its holding and wrong on its facts."

Justice Stevens did not actually write a “majority decision.” He wrote a plurality opinion. The most important opinion in Kelo is Justice Kennedy's, which was essential to the holding.* The Stevens’ opinion, distressingly superficial, is relatively weak on the law and weak on guidance but it still contains guidance which is inconsistent with the support New York State politicians give for projects like Atlantic Yards.

The Kennedy Opinion in Kelo

The pivotal Kennedy opinion in Kelo is much stronger on the law* but it was weak on the facts. In essence, Justice Kennedy, despite superior legal reasoning, was snookered because the facts upon which the court decided things, the facts he assumed, were not the actual facts in real life. This is a mistake all the Supreme Court justices can avoid in the future. Unfortunately, deciding cases on facts that do not represent real life has opened a door where, more and more prevalently, New York agencies believe that they can have the latitude to take property as Justice Kennedy allowed in the particular instance of Kelo if they can state the facts of their case as other than they are in real life. In other words, if they can tell a good pretextual story.

(* Civil rights attorney Norman Siegel was right on the law when, in the September 8, 2009 Public Advocate debate preceding the primary for Public Advocate, he said the Kennedy decision sets forth the current limitations on takings. For those struggling to understand why the Kennedy opinion is pivotal, consider this: Four justices signed onto Justice Stevens’ plurality opinion, not enough to uphold the taking. Exactly the same number, four, were prepared, without arguing the facts under discussion, to overturn and disallow the way eminent domain was used. The taking was upheld only because Kennedy voted in accordance with the reasoning of his separate opinion to uphold rather than overturn it. Kennedy voted to uphold it only because, based on his understanding of the facts, the precepts he expressed were not being violated. It can be argued that Kennedy’s precepts are not binding precedent because the exact facts relating to his precepts were not determined to be present in the case. But that dismissal of his guidance is weak since his precepts hewed so close to the actual facts of the case as opposed to being “dicta” (obiter dictum) that related to something highly hypothetical. )

Kelo Not Necessarily Emboldening

Not everyone in the development community was instantly emboldened by Kelo. Consider this 2005 advice to real estate professionals from two Chicago real estate lawyers in the Chicago office of Seyfarth Shaw LLP. law firm as they promise a brave new world where they can take advantage of broader use of eminent domain:
The challenge to real estate professionals will be conforming to the Supreme Court’’s test in Kelo, which requires that a development/condemnation plan be comprehensive, carefully considered, and not tailored to favor any one group over another.
(See: Eminent Domain: a Legal Look at the Ruling, The recent Supreme Court ruling has far-reaching implications for commercial real estate. By Jay Gitles and Scott Buser, August 2005.)

The concept above of a “comprehensive, carefully considered” development/condemnation plan is from Justice Stevens’ opinion which calls for a “carefully formulated” “ economic development plan.” We don’t have these in New York, where in ad hoc fashion the development plans for a project like Atlantic Yards are in continual flux with the only thing not changing is the opportunity to give more benefit and a monopoly to one particular politically- connected developer.

The idea expressed above that the eminent domain project shouldn't be “tailored to favor any one group over another” is from the more thoughtful Kennedy opinion. Kennedy says flatly at the outset that “transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.” Kennedy expresses the precept that “Benefitting” the developer should not be "the primary motivation or effect of this development plan" and that the benefits to the city should not be “only incidental to the benefits that will be confined on private parties.” He won’t allow “impermissible favoritism” (unless perhaps the political agencies lie well enough about it?).

Kennedy’s opinion indicates that it would importantly be a key concern if “the development plan is of primary benefit to ... the developer” or “only of incidental benefit to the city.” Rather than permit the development to originate with the private parties that will benefit, his opinion specifically looks to find, not only that the development didn’t so originate, but that substantial government funds were committed “before most of the private beneficiaries were known,” with “evidence that respondents [the government] reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand.”

Kennedy also suggests that certain takings may require a “more stringent standard of review” for a subcategory of takings where “the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.” (Emphasis supplied.) In his conclusion he refers to “categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose.”

New York political officials have certainly gotten to that stage where the eminent domain procedures are “prone to abuse,” the transfers “so suspicious” and the “purported benefits are so trivial or implausible” that the “that courts should presume an impermissible private purpose.” The New York political officials just don’t know that they have crossed the line because they think they will be able lie well enough to disguise how they are handling the impermissible favoritism of developer-initiated, developer-driven, developer-designed megadevelopments.

Making Up the Facts

Notably, the advice of the Chicago lawyers about Kelo’s brave new world of eminent domain opportunities quoted above is restrained, so restraining that it would not permit the current practices in New York. Note, also, that the advising lawyers did not, in the 2005 article, advise real estate professionals that they could simply make up and decide to tell a fact-compliant story. But real estate professionals are smart, and astute real estate connivers can quickly deduce that making up facts might be a viable tactic from the advice the lawyers provided next in their article:
In providing guidance, it is helpful to review the plan and process approved in Kelo.
Connivers in the real estate industry almost certainly got extra encouragement for the making up of stories when word started getting around that in the case of Kelo “the official story wasn’t exactly true.” Whatever the debatable flaws of the Kelo decision are, the most calamitous of its flaws is the way door it opens to the telling of false stories that misrepresent government motivations.

Anyone the least bit familiar with a mega-project such as Atlantic Yards knows that it is developer-initiated and developer-driven and that the political public authorities and agencies, (the Empire State Development Corporation, the Metropolitan Transportation Authority and the City of New York) that have hosted the developer and his ambitions relinquishing their authority to him have all compliantly molded themselves to all the developer’s impulses. That among, other things, accounts for the very strange and inappropriate design of the project and for its use of eminent domain.

What happens when a developer is allowed to dictate what a project should be and to define what its benefit to the public should be considered to be?

Loopy Problems: Why It Doesn’t Make Sense To Let an Industry Self-Certify What Is In the Public Good
Why doesn’t it make sense to turn over initiation, design and the basic concepts of “desirable” project elements to a developer? Because, when it comes to making a profit, the private sector, if left entirely to its own devices, will self-certify as beneficial to the public virtually anything that garners them a high profit margin. Case in point (to make a point): sugary breakfast cereal. Analysts of the American food industry have pointed out that our supermarket shelves are disproportionately crowded with highly processed unhealthy food because there are high profit margins associated with each additional processing step. The New York Times recently reported that under a “new food-labeling campaign called Smart Choices, backed by most of the nation’s largest food manufacturers” Froot Loops cereal now has a prominently displayed label saying that it is a “smart” nutritional choice. 41 percent of the Froot Loops cereal, measured by weight, is sugar. (See: For Your Health, Froot Loops, September 4, 2009.)

The Times article quotes Walter C. Willett, chairman of the nutrition department of the Harvard School of Public Health to make the obvious point that “These are horrible choices,” representing “a blatant failure of this system” that he says “makes it, I’m afraid, not credible.” Michael Jacobson, executive director of the Center for Science in the Public Interest, an advocacy group, who quit the industry’s self-certification panel explained that “the panel was dominated by members of the food industry, which skewed its decisions.”

Add Vitamins to Poison And You Get. . . The NYC Development Analogy
Taking the analogy one step further we should note the industry was willing to self-certify Froot Loops as a good nutritional choice no matter how bad they actually are simply because vitamins were dumped into the processed mix. Quoting Mr. Jacobson explaining how bogus the basis for these panel decisions could be:
“The criteria allow foods to carry the Smart Choices seal if they contain added nutrients, which he [Mr. Jacobson] said could mask shortcomings in the food.

* *

“You could start out with some sawdust, add calcium or Vitamin A and meet the criteria,” Mr. Jacobson said.
“Affordable housing” is to New York City development and eminent domain abuse what the tossed-in vitamins are to Froot Loops. Say the magic words “affordable housing” and a pernicious to the public project like Atlantic Yards gets a pass, even if the only way that “affordable housing” would ever wind up in that mega-project is for the public itself to pay for it at a far higher cost per unit than other developments, diverting subsidy away from those more cost-efficient affordable housing ventures (that could provide a much greater number of units) that better projects and better developers can provide.
(“Smart Choice” Development? Some blessed it as such because the magic words “affordable housing” were mentioned even if that housing might not be built. Rendering by the Municipal Art Society showing the teardown of the neighborhood the Ratner project plan involves. At this point, even some of the replacement buildings shown above next to the arena probably won't come in the near future either. -Original Aerial Photograph by Jonathan Barkey.)

Escaping the Lasso of the Loop

The situation is worse though. Froot Loops are being provided through the private enterprise system where there is at least a reasonable amount of competition. In theory, this is an example of where private enterprise is working and the public is getting more or less what it wants. If you are a consumer, you don’t have to buy Froot Loops or shop in the candied cereal aisle. Not so with an eminent domain project like Atlantic Yards. Atlantic Yards and its use of eminent domain is first and foremost about monopoly. It’s about precluding competition and the options of others. The Atlantic Yards site is adjacent to other property of Forest City Ratner, thereby giving the developer unchallenged control over 30 acres of some of Brooklyn’s most valuable real estate. (In fact, jumping over to the nearby subway stops just up the line you find that Forest City Ratner’s monopolistic ownership of Brooklyn real estate continues.)

Atlantic Yards was birthed through the preclusion of allowing other developers to bid against Forest City Ratner for the site. Without that first step it never could have proceeded. The abuse of eminent domain was just a next step that was similarly about removing competition to complete the FCR monopoly. And, unlike Froot Loops, the public cannot walk away.

Ada Louise Huxtable is one of those who has described architecture as “the art we must live with.”
If you want to experience painting or sculpture it’s an option. But there is absolutely nothing optional about your experience of architecture. . . . We see an awful lot of bad buildings and I guess my life has been devoted, or a good part of it, to trying to say, `We have entitlements; we deserve better than this’
(See: Wednesday, December 10, 2008, Times Coverage of Landmarks Preservation Commission: The Pieces Needing to Fall Into Place.)

Megadevelopment mega-monopolies created through the abuse of eminent domain is an example of inescapable architecture writ large. It is not just one building whose architecture you can’t escape but swaths of buildings. And it is not just the architecture you can’t escape; it is also the commandeering of the subways, streets and avenues (in the case of Atlantic Yards those streets and avenues are literally vanishing into developer ownership), it is all the skewed planning, marketing, landlord and retail decisions made to enrich the developer at the public expense.

With Froot Loops you can avoid the abuse in the pursuit of profit by walking away from the candied cereal aisle. But with Atlantic Yards you can’t nourish yourself by instead patronizing a competitor who is more attentive to the public good: Those competitors get eliminated when a mega-monopoly developer gets to wield the weapon of eminent domain.

It must Be Presumed That Developer-Initiated, Developer-Driven, No-bid Mega-monopolies Are So Suspicious. . . .

Justice Kennedy’s opinion is clear enough. The guidance is there and there should be no problem in adhering to precedent to do the right thing. Developer-initiated, developer-driven, no-bid mega-monopolies should be so suspicious that the courts “should presume an impermissible private purpose.” Especially when, as in Atlantic Yards (as no one should be surprised), the purported “implausible” public benefits are so “trivial” as to actually be negative, representing substantial identified “net losses.” (The public agencies are incapable of producing anything resembling true and legitimate cost benefit analyses.) It should be especially suspicious when the eminent domain process, conducted by biased political agencies, is so prone to abuse that it is entirely devoid of fair fact-finding forums and involves no opportunity for impartial review.

Knocking the Less Advantaged Off the Up-Escalator in Improving Neighborhoods

One last point should be made about this kind developer-initiated, developer-driven use of eminent domain to stifle competition. Justice Thomas in his dissenting Kelo opinion observed that:
. . . extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.
Justice Thomas is right about this but he did not foresee the full extent of the injustice that would flow from developer-initiated, developer-driven takings such at Atlantic Yards or Columbia University’s expansion into West Harlem. When developers push for developer-initiated, developer-driven takings of private property they are attracted to neighborhoods that are not poor neighborhoods, per se, but to neighborhoods that are already on their way up economically, neighborhoods that are gentrifying or “unslumming,” as Jane Jacobs would say. Consequently, this kind of opportunistic condemnation winds up knocking the existing community off the up escalator so that opportunities belonging to them are seized by those doing the condemnation. The community’s opportunities can be more readily seized by the opportunistic developer when, as Justice Thomas predicts, the victims in these communities have unequal political power.

Ideological Commonality

Some have predicted that there will be little change with your arrival on the court, summarizing that you are merely a “moderate liberal replacing a moderate liberal on the court.” But we are not talking in this case about issues or principles that should divide conservatives and liberals. This is where ideologies should find common ground. All it takes is applying the Kennedy precepts to the reality of what is happening and Kennedy’s precepts should be attractive to anyone at any either end of the political spectrum. Yes, when the Supreme Court decided Kelo there was a division, which in retrospect actually seems a strange one, with conservative justices voting against an unfettered latitude on the part of government to take private property for private use and liberal justices voting the other way. Nevertheless, polls showed that most Americans disagreed with this unfettered latitude, some polls showing that the number who disagreed exceeded 90%. Such near unanimity is only possible when the ideological common ground is substantial.

Skepticism vs. Pretextual Tales

The precepts of the Kennedy opinion, handy and dandy as they are, can be meaningful only if the reality of what is happening is recognized. If political public agencies are allowed to tell pretextual tales with impunity there will be no justice and no protection of fundamental constitutional rights. If eminent domain determinations are entirely in the hands of biased political agencies and receive no impartial review as is happening in New York, the process will be deeply prone to ever-escalating abuses.

Recognizing reality takes a practical skepticism about the extent to which public agencies can be depended upon always to stay on course when politics and monied interests would pull them elsewhere. Further, without the check and balance of a review by an impartial and robust judiciary, those political agencies will, as we now see in New York, likely veer substantially.

Justice Sotomayor, having shared common agency background, I believe that you, from your own experience, therefore also share the practical skepticism about public agencies that I recommend to anyone interested in ensuring justice. Our agency, SONYMA, faced far lesser temptations than some of the other state agencies. We did not have the same opportunity for massive mischief as those agencies that wield (and now sell) the power of eminent domain. We were in an environment that was less political and did proportionateley more good than other agencies, but I am sure that you, like me, learned enough about human beings and their frailty to believe in the essential need for strong checks and balances to protect fundamental constitutional rights.

You have an opportunity. When the time comes all you need to do is recognize the reality of what is happening in our home state of New York.

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