John Roberts: A Supreme Property Rights Disaster In The MakingMore Kelo on the SCOTUS horizon?...

Pacific Legal Foundation, ONe Republic Journal, Acton Institute, Enter Stage Right ^ | 8/15/05 | James S. Burling

[FReethesheeples]

A Supreme Property Rights Disaster In The Making More Kelo on the SCOTUS horizon?... [James S. Burling] 8/15/05

After a term marked by the Supreme Court’s utter contempt for property rights, those of us who happen to think there is something special about allowing old widows to keep their homes were not prepared for an even more bitter defeat. Yet, that is what President Bush handed us with the nomination of John Roberts.

The battle over property rights is not a conservative versus liberal thing. It’s more a struggle between those who believe in the power of the state to dictate how we get to use our land and homes versus those of us who believe that the state has no business destroying our right to make reasonable use of our property.

Guest Contributor James S. Burling James S. Burling is a Principal Attorney at Pacific Legal Foundation [go to Guest index]

That is because when government can go about destroying with impunity our ability to use property, none of our liberties can be safe.

As James Madison put it, “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”

This spring, the Court handed down a series of cases that stand for the proposition that today in America, no man (or widow) is safe.

In a case out of Hawaii, the Court held that courts had to defer to a legislative scheme to reduce gas prices by controlling the rents paid by gas stations--even though it was proven in federal court that the scheme would have no such economic effect.

In a case out of San Francisco, the Court held that landowners may no longer have their day in federal court when a local government has violated their rights guaranteed by the Takings Clause of the Fifth Amendment. San Francisco regularly tells hotel owners that they must pay a “fee” of hundreds of thousands of dollars for permission to rent existing rooms to tourists.

Now landowners can no longer go to federal court to argue that bizarre and extortionate policy violates the federal constitution’s proscription against “taking without just compensation.”

But the most notorious decision of this term was the 5 to 4 Kelo decision that upheld the raw power of the City of New London, Connecticut, to destroy a neighborhood of homes, including that of an 87 year old widow who had lived in her home since 1918.

So long as a “public purpose” is met, in this case by providing some aesthetic value to a large corporate headquarters project, the Court will not interfere. The language in the Constitution that property can be taken only for “public use” were just words to the Courts–words that can be shaped and reshaped to meet the needs of the state.

But if an 87 year old Connecticut widow can have her property rights destroyed, how about dozens of elderly landowners, many of them widows and widowers, near Lake Tahoe?

That is where Judge Roberts comes in.

In a notorious case in 2002, John Roberts, then a private attorney, argued that several dozen mostly elderly and middle class landowners should not receive a penny in compensation even after a local land use agency had prohibited all use of their property near Lake Tahoe for nearly 30 years.

In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation–in a way that tilts almost every time in the government’s favor. Unfortunately for the landowners, the Court agreed with him.

Of course, one might argue, Roberts was only doing what he was being paid to do as a high-priced lawyer to represent his client. But why then did he take the case for a “substantially reduced” fee as the chief of the Tahoe Regional Planning Agency admits?

More disturbingly, Robert’s representation of the agency is entirely consistent with the statist philosophy he expressed in a 1978 Harvard Law Review article on land use law. He argued against clear rules that would put boundaries on government power over property in favor of essentially the same government-friendly “balancing test” that he advocated for in the Lake Tahoe case.

Even more troubling, he proposed a scheme that would deny money to landowners whose property is taken, using the sort of rhetoric that reminds us of Bill Clinton’s prevarications over the meaning of the word “is.” Roberts wrote: “The very terms of the fifth amendment, furthermore, are sufficiently flexible to accommodate changing notions of what compensation is ‘just.’”

Put another way, what we have here is not the “living constitution” so derided by strict constructionists, but a “mutating virus” infinitely malleable in the service of the state, and undeniably threatening to the rights of property owners. Justice O’Connor was a swing vote on property; with Roberts it will be the property owners who will be twisting in the wind. tOR

copyright 2005 Acton Institute

[FReethesheeples]

One thing we do know about Tahoe is that it was a "takings case" and the landowner lost and Roberts, --- & the government, --- won.

[FReethesheeples]

Thank you for your wise words.

[Torie]

Roberts really doesn't "need" to do any of that. He will be confirmed. But of course he will be asked about this in the hearings, and I suspect he will explain what I explained, albeit perhaps with less economic jargin. The hearings should be grand. I plan to take time off to watch them.

[FReethesheeples]

I must say Amen to you @ # 35.

[bobsunshine]

Here is the case and reaction from Lake Tahoe:

Tahoe planner recalls Roberts as 'impressive'
The nominee's win on agency's behalf was one of several before high court.
By Michael Doyle -- Bee Washington Bureau
Published 2:15 am PDT Saturday, July 23, 2005
Story appeared on Page A6 of The Bee

http://www.sacbee.com/content/politics/local_government/story/13282647p-14124962c.html

And I think this is the actual ruling on the case:

TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al. v. TAHOE REGIONAL PLANNING
AGENCY et al.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-1167

[FReethesheeples]

Amen to you at # 31. (To zendari), who sid he "trust"-ed Pres. Bush's vetting of Roberts:

Or to quote Ronald Reagan:

"TRUST," ---

[Bush's vetting of Roberts (up to a point)],

--- "but VERIFY."

[FReethesheeples]

Thanks for the legal citation on the Tahoe case that Roberts argued and the associated links. (Note to Chuck54, who correctly asked for the case citation, here it is, below):

Your (bobsunshine's) statement: "Here is the case and reaction from Lake Tahoe:

"Tahoe planner recalls Roberts as 'impressive'
The nominee's win on agency's behalf was one of several before high court."
By Michael Doyle -- Bee Washington Bureau
Published 2:15 am PDT Saturday, July 23, 2005
Story appeared on Page A6 of The Bee

http://www.sacbee.com/content/politics/local_government/story/13282647p-14124962c.html

You further stated that:

"And I think this is the actual ruling on the case:

TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al. v. TAHOE REGIONAL PLANNING
AGENCY et al.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-1167


Many thanks, Bobsunshine!

[HKMk23]

This does NOT sound good. Not at ALL.

The odor of justice Souter wafts faintly on the breeze...

[elbucko]

And with that, I must be implacably opposed to Roberts ever serving as a judge in any court, let alone the US Supreme Court.

I agree. The US is overpopulated with lawyers who do not know the definition of justice or that the word "Just" represents the = sign in the legal affairs of men.

Roberts is beginning to appear as "just" (='s) another Souter on steroids.

[FReethesheeples]

Heads up!

[FReethesheeples]

Ping & re-ping

[FReethesheeples]

Ping

[FreeReign]

In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation–in a way that tilts almost every time in the government’s favor. Unfortunately for the landowners, the Court agreed with him.

Why not cite Robert's argument? Why must we have somebody interpret and tell us what Roberts argued?

[FReethesheeples]

Ping. Heads up!

[elbucko]

So, if you want to take into account externalities, then take into account all known ones. As soon as you include that which stems from the owner's uncertainty about his rights to the property in his possession, it will outweigh any other positive ones you may come across.

Well said.

[bobsunshine]

If the link to the news article goes to login, go to politics,archives,local gov, July 23, 2005 article

[FreeReign]

But why then did he take the case for a “substantially reduced” fee as the chief of the Tahoe Regional Planning Agency admits?

Who was the chief of the Tahoe Regional Planning Agency at that time? No name is given.

[FReethesheeples]

Most damning of Robert's position in the Regulatory Takings case was that Justice Stevens wrote the majority opinion and goes who dissented: Rehnquist, Thomas and Scalia!

I quote from the Opening paragraphs of C.J. (Chief Justice) Rehnquist's (joined by Justices Scalia & Thomas) Dissent (as follows):

"Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting.


" For over half a decade petitioners were prohibited from building homes, or any other structures, on their land. Because the Takings Clause requires the government to pay compensation when it deprives owners of all economically viable use of their land, see Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), and because a ban on all development lasting almost six years does not resemble any traditional land-use planning device, I dissent."

I


" "A court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes." MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 348 (1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922)).1 In failing to undertake this inquiry, the Court ignores much of the impact of respondent's conduct on petitioners. Instead, it relies on the flawed determination of the Court of Appeals that the relevant time period lasted only from August 1981 until April 1984. Ante, at 7, 9. During that period, Ordinance 81-5 and Regulation 83-21 prohibited development pending the adoption of a new regional land-use plan. The adoption of the 1984 Regional Plan (hereinafter Plan or 1984 Plan) did not, however, change anything from the petitioners' standpoint. After the adoption of the 1984 Plan, petitioners still could make no use of their land."

[fatima]

Is he a looser?Pro-life is my concern.

[FreeReign]

It appears from this link that Roberts worked with this same James S. Burling of the Pacific Legal Foundation defending Florida property owners against the Endagered Species Act.

It was LLOYD A. GOOD, JR. v. UNITED STATES in the U.S. Fed Circuit Court of Appeals in 1999.