Kelo: The Unintended Consequences

 | 

I chuckle whenever I hear Rush Limbaugh warn that the reasoning behind the Supreme Court’s Obamacare decision (National Federation of Independent Business v. Sebelius)can now lead to legislatures mandating the eating of broccoli. No more. The July 21 issue of the Economist reports how one California jurisdiction is taking the Kelo v. City of New London decision where few imagined it would go. And it is well to remember that where California innovates, the rest of America often follows.

In Kelo, the Supreme Court held that eminent domain could be used to transfer land from one private owner to another as a permissible "public use” to further economic development for the general benefits of a community under the “takings” clause of the 5th Amendment of the Constitution. It was a 5-4 decision, with Justice Kennedy providing the swing vote.

Traditionally, the power of eminent domain had been interpreted to justify the taking of private property only for direct government use — for roads, railways, government buildings, and such. But this concept had been undermined over the years, first by Berman v. Parker (1954), which allowed the taking of private property to combat “blight” (in the broadest sense), then by Hawaii Housing Authority v. Midkiff (1984), which allowed takings to break up oligarchies. Both concepts were vague, and subject to pure demagoguery. Subsequently, scores of in flagrante takings were never properly contested — until Kelo.

The majority opinion’s reasoning was based on the concepts of “minimum scrutiny,” the idea that government policy need bear only a rational relationship to a legitimate government purpose; and “judicial restraint,” the idea that judges should hesitate to strike down laws that are not obviously unconstitutional (though what counts as obviously unconstitutional is itself a matter of debate). Precedent also plays a major role in the application of “judicial restraint.” Even though a law may seem a clear breach of constitutional precepts, if it’s the result of a long-established and generally accepted trend, then “judicial restraint” can be used to uphold it — a curious, priority-reversing application of the principle. Applied in this manner, “judicial restraint” becomes a recipe for specious reasoning and sophistry. The same applies to “minimum scrutiny,” but with fewer qualifications.

In response to the Kelo decision, many states passed laws limiting or prohibiting the use of eminent domain to take private property for conveyance to another private owner. California, however, was not one of those states.

When housing prices burst in 2008, California took the biggest hit, and San Bernardino County was punched particularly hard. Entire neighborhoods were “blighted” by foreclosed properties, with boarded-up windows and unkempt facades. Property values plummeted, in some cases by 50% or more. Nearly half the mortgages in the county are now “underwater,” meaning that the value of the outstanding loan exceeds the market value of the properties.

“So,” the Economist explains, “the county and two of its cities (including Ontario) are considering an innovative proposal: to use the powers of eminent domain to seize underwater mortgages from investors and chop them down to size.”

The scheme was hatched by Mortgage Resolution Partners (MRP). As theEconomist elaborates, this is what would happen:

MRP would work with officials to identify mortgages ripe for seizure; at first, only homeowners who were up-to-date on their repayments would be eligible. MRP would drum up private investment to finance the mortgage purchases at prices determined in court (as in all eminent-domain cases). Once the loan is bought, the principal would be cut and the repayment terms eased. A win for the homeowner; a win for the local economy, thanks to growing consumer spending and (with luck) a revived construction industry; and a win for MRP, which earns a juicy fee from each transaction.

But there would be losers: mortgage providers and investors in mortgage-backed securities. If the scheme were implemented, the American Securitization Forum (the industry’s round table organization) fears it would choke off credit and depress house prices. And there are other problems.

As the Economist notes, “Thomas Merrill at Columbia Law School thinks MRP might struggle to convince a court that it has satisfied the ‘just compensation’ clause of the Fifth Amendment.” Additionally, affected mortgage providers could sue San Bernardino County and MRP for interference with valid contracts. It could be a costly nightmare for the municipalities that implement the proposed plan.

For these reasons the plan may go nowhere. County officialshave emphasized that no decision has been made, and there are signs that the process is stalled. However, merely the concocting of such a plan may open a door for some very ingenious applications of the already broad Kelo decision.

Are these really “unintended consequences”? No. Something like them could easily be predicted. To judicial originalists they are — with a nod to Donald Rumsfeld — unwelcome “known unknowns.” That is why, anticipating them, originalists advocate parsimony in the interpretation of law. To modern-liberal jurists, the consequences might also be “unknown unknowns,” but they are unknowns redolent with creative possibilities for increasing the power of the state to provide what modern liberals regard as social justice.




Share This


In the Cloakroom

 | 




Share This


Breaching the Perimeter

 | 

The Grays Harbor County Superior Court building in Montesano, Washington, has a stately profile that you can see from Highway 12 as you drive past. The vibe of the courthouse is low key. It wasn’t so very long ago that petitioners and respondents could represent themselves in civil disputes. As long as they showed respect for the proceedings, litigants could count on some help from the clerks and judges; and everyone would work to craft reasonable solutions to disagreements.

In recent years, the approach has become more formal. A growing number of methamphetamine-related drug cases has made the place more tense; and the growing role of state agencies in the affairs of troubled families has made the proceedings more bureaucratic. But the clerks are still friendly. And, if you’re not sure where you’re supposed to go to file paperwork or pay a fee, the person who shows you the way to the proper office might be one of the judges.

On the morning of Friday March 9, a man named Steven Kravetz was hanging around on the first floor of the courthouse. He was dressed “business casual,” in slacks and a blue button-down shirt; and he was carrying a briefcase, so some of the courthouse staff assumed he was there on business and went about theirs. Eventually, though, one of the judge’s secretaries thought the man was acting a little strangely and asked the county corrections officer working security that morning to find out why Kravetz was in the building.

If reports be true, and there’s no reason to doubt them, this is what happened next. The officer, a woman named Polly Davin, approached Kravetz and asked his name and whether he had business in courthouse. He gave her a false name and mumbled something about a hearing. Davin pressed for more details — and Kravetz lashed out, stabbing her repeatedly with a small knife he’d been hiding in one hand.

Kravetz lashed out, stabbing the officer repeatedly with a small knife he’d been hiding in one hand.

County Judge David Edwards, whose secretary had first noticed Kravetz, saw the scuffle from his office on one of the building’s upper floors. He rushed downstairs to Davin’s aid — separating her momentarily from Kravetz. This infuriated Kravetz, who stabbed Edwards several times in the neck and shoulder.

Davin drew her service weapon, a .45 semiautomatic pistol, and ordered Kravetz to stop. He didn’t. Having disabled the judge, Kravetz climbed back toward Davin and grabbed her pistol. He fired twice, hitting her once in the shoulder, and fled the building.

Courthouse staff responded quickly. Paramedics arrived in minutes to tend to Davin and Edwards and moved them to the country hospital a few miles away. Sheriff’s deputies and local police assembled to search the surrounding area for the shooter.

There were a few early missteps in the manhunt. At one point, the cops and deputies got a tip that Kravetz was hiding in a private home a few streets away from the courthouse. They surrounded the house, flooded it with teargas, and entered forcibly. It was empty.

Then, working from a report that included the false name Kravetz had given Davin, sheriff’s deputies in nearby Thurston County arrested a man named Michael Thomas. It quickly became evident that he had nothing to do with the shooting.

Back in Montesano, the cops ordered lockdowns of local public schools because someone had suggested that Kravetz might be a domestic terrorist, bent on attacking public buildings. Initial media reports on local radio and online picked up on this excitable theme, stating that “several people” had been shot and that the violence might have been politically motivated.

Rather than a method of last resort, courts have become the front line determining what the state can do and how it can do it. And they are overwhelmed.

Meanwhile, Kravetz had walked from the courthouse to a nearby lawyer’s office, where he asked to borrow a phone to call his mother — with whom he lived, about half an hour away in the suburbs of Olympia. While law enforcement agents were following SWAT procedures and ordering school lockdowns, the shooter’s mother came and picked him up in her late-model Ford Focus. She was unaware that her son had done anything wrong.

At the hospital, the news for Davin and Edwards was good. Their injuries were not life-threatening. The knife wounds weren’t deep and Davin’s bullet wound had gone “through and through” soft tissue near her shoulder. Both were examined, stitched up, and released by the early evening.

Local law enforcement eventually pieced together Kravetz’s real identity from the courthouse staff who’d seen him. Some remembered seeing him in the courthouse before. He had a history of minor run-ins with law — mostly related to his reputed bipolar disorder and a few episodes of petty violence against himself or his mother. During one hearing on his mental condition, Kravetz had submitted a 50-page “manifesto” that raved about the collapse of society and the inherent inferiority of women.

Friday evening, having muddled through the earlier miscues, the Grays Harbor County Sheriff’s office posted a picture of Kravetz (who was 34 years old but looked and moved like a man at least a decade younger); they confirmed he was the main suspect in the attacks.

Kravetz’s mother saw the pictures the next morning and immediately contacted the authorities to cooperate. Her son was arrested without incident later Saturday.

In the wake of the attacks, several media outlets noted that Judge Edwards had previously warned the Grays Harbor County Commissioners that the courthouse lacked sufficient security systems to protect staff from the growing number of defendants, convicts, and other troublesome sorts being processed every day. He’d even filed a lawsuit — on behalf of himself and his two fellow judges — to force the county to reconsider state-mandated budget cuts that would deny the courthouse basic security.

In his lawsuit, Edwards had made the point that the court was stressed by the growing number of complex cases involving issues like drug distribution, domestic violence, heated custody battles, mental health disorders, etc. Specifically:

Within the past two years, two attorneys were physically assaulted in the Superior Court: A defendant charged one of the judges in a courtroom; a man came to the courthouse armed with a knife and asking for directions to the office of a judge; and there was inadequate security protection available when a judge received a death threat during a trial. . . . The Superior Court is the only superior court in Washington state with more than one judge that is totally without courtroom security.

The judge’s stab wounds and the deranged man who’d caused them would certainly underscore that argument. In the days after the incident, the County Commissioners agreed to move courtroom security to the top of its budget priorities list. They were said to be looking into metal detectors and closed-circuit video systems.

This story brings together two troubling trends in public policy, which conflict with each other — and will likely conflict with each other more intensely as this country’s finances grow weaker.

The first trend is the use of litigation as the ultimate tool of public policy. This trend serves as a kind of ideological parent to its subset, the criminalization of broad categories of private behavior. When the U.S. legal system was first developed, criminal cases were relatively rare things. Most legal actions were civil; and they were designed to serve as a formal process for resolving disputes that couldn’t be resolved informally by free citizens and their local . . . non-governmental . . . institutions.

This has changed. Rather than a method of last resort, courts have become the front line determining what the state can do and how it can do it. And they are overwhelmed.

Because our courts are, by design, the branch of government least responsive to the whims of the voter, feckless legislators and executives pass the buck to the judges. They pass laws and promulgate policies that are often imprecise, internally contradictory, and intentionally vague — all capped with the cynical qualification that “the courts can decide” the final outcomes.

In some of these cases, with no other father figure to rebel against, damaged people like Steven Kravetz lash out against officers of the court.

This pass-the-buck mentality trickles down to all levels of the statist bureaucracy. Faced with impossible or conflicting orders, some government agencies sue — literally, file lawsuits — for permission and instruction on how to proceed. This means job security for the armies of lawyers (specifically exempted from ethics rules against lying) employed by government agencies; but it’s bad news for everyone else.

Just as the Grays Harbor courts have become more bureaucratic and stressed, so has the entire American court system. Simply said, we count on courts to do too much: review (and, in some cases, finish writing) thousand-page laws; settle intensely personal family problems like domestic violence, divorce, and child custody; enforce poorly-conceived legal prohibitions against drug use and other behaviors; allocate dwindling resources among ambitious government agencies.

A side note: as a result of this overreliance, courts and judges become the main authority figure in the lives of some of our weakest citizens — the criminals, lunatics, and impaired ones who cannot fend for themselves and no longer have nongovernment institutions to look after them. In some of these cases, with no other father figure to rebel against, damaged people like Steven Kravetz lash out against officers of the court.

The second trend is the looming insolvency of the American government.

As I’ve noted above, one of the major responsibilities weak legislators and executives have ceded to the courts is allocating dwindling public-sector financial resources. As the federal government’s debt soars and the dollar loses value, the fight over scarce money inside the walls of the state will get fierce. Broke public-employee pension plans will sue to get money instead of underfunded welfare agencies . . . which will sue to get money instead of over-committed regulatory agencies.

Here, Judge Edwards’ suit against the County Commissioners over security resources for the courthouse is a harbinger.

Judges tend to be smarter than most government employees — they see the coming battles over government money. They know that they’re going to have to make hard and unpopular decisions. And what then? If nutters and irate divorcees are grievous security threats to the men in robes, what will we call hundreds of public-school teachers and government-employee unionists whose promise of gilded pensions has been reduced to a reality of threadbare 401(k)s? There aren’t enough metal detectors and CCTV systems in the world to secure against that threat.

Judge Edwards’ suit is also something like an M.C. Escher drawing. It’s an example of the very sort of action that will create more security risks courts in the future. Americans have lived by the sword of rampant litigation as our economy expanded; we may very well die by that sword as our economy contracts.

Edwards is a decent man (and I say that with some insight; he’s one of my neighbors) in an impossible situation. He tried to do the right thing when a deranged man attacked a courthouse staffer; and he’s trying to do the right thing by demanding additional resources to secure his courthouse.

When he grappled with Steven Kravetz, Edwards underestimated the violent capacity of a lone madman. As he fights the County Commissioners for more security budget, the judge may be underestimating the violent capacity of a growing line of angry litigants passing through the hard-won metal detectors.

Americans have lived by the sword of rampant litigation as our economy expanded; we may very well die by that sword as our economy contracts.

Security is a difficult thing to achieve and even more difficult to maintain. It’s situational — and can be lost when circumstances change even slightly; in times of social upheaval, it’s practically impossible. This is one reason that some experts argue security is most effectively established for individuals, not large groups or institutions.

Maybe judges should be armed in their courtrooms. As they were a hundred years ago, when the Grays Harbor County courthouse was built.




Share This
Syndicate content

© Copyright 2017 Liberty Foundation. All rights reserved.



Opinions expressed in Liberty are those of the authors and not necessarily those of the Liberty Foundation.

All letters to the editor are assumed to be for publication unless otherwise indicated.