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August 3, 2006

Community Commentary: John Ryskamp, Open Letter to The Village Voice

VillageVoiceCoverBall-sm.jpgImmigration attorney and frequent eminent domain commentator John Ryskamp follows up this week's Village Voice cover story on residents in the Atlantic Yards footprint with a letter to the editor that outlines the legal case against eminent domain for Bruce Ratner's private development plans.

John Ryskamp concludes:

I don’t think it will take a genius to find out that private purpose has been substituted for government purpose in the Atlantic Yards case. There is already so much evidence of it in the press that it seems impossible that a judge would not grant an injunction—even at this relatively early stage—against the project on the basis that it violates minimum scrutiny because there is no government purpose, only private purpose.


Your article on the Atlantic Yards project mentioned the fact that in the Kelo case, the Court said the project could not be developer driven. My book on the response to the Kelo case, The New Constitution: The Eminent Domain Revolt and the Fourth Constitutional Epoch, will be published this fall by Algora Publishing. It contains a discussion of this important point, and perhaps your readers will find it useful for me to describe the legal struggle going on over the notion of a project being “developer driven.”

Eminent domain can be used if there is

  1. a rational
  2. relation
  3. to a legitimate government purpose.

That is, eminent domain need only pass this “minimum scrutiny” test. In the past, “government purpose” was construed so broadly by the Court that people felt they could never use it as a defense against eminent domain. In the 1984 Hawaii Housing Authority v. Midkiff case, the Court said that the purpose need be “conceivable.” This led people to conclude that there did not, in fact, have to be a government purpose, that if government did not even have a purpose, the Court would step in and supply a government purpose.

However, the Court then realized that if there is in fact no government purpose, there is in fact no government, and the famous case of Marbury v. Madison established that under the Constitution people have a right to government. Not wanting to overrule Marbury and destroy the Constitution, the Court rethought the idea.

The Court then indicated that, in fact, there had to be a government purpose. It began in two 1996 cases. In U.S. v. Virginia the Court said that government purpose “must be genuine, not hypothesized or invented post hoc in response to litigation.” In Romer v. Evans, the Court expanded on this idea, saying that the government purpose must be “an independent and legitimate legislative end....”

Your article indicated that in the otherwise unfavorable Kelo case, there might be wording favorable to Atlantic Yards residents. There is. It is in Justice Kennedy’s concurring opinion. Here’s how to determine if there is in fact government purpose. It is a list of evidence those opposed to Atlantic Yards will now obtain by deposition and document subpoenas:

“A court confronted with a plausible accusation of impermissible favoritism to private parties should [conduct]….‘a careful and extensive inquiry into ‘whether, in fact, the development plan [chronology]

[1.] is of primary benefit to . . . the developer…, and private businesses which may eventually locate in the plan area…,

[2.] and in that regard, only of incidental benefit to the city…[.]’”

Kennedy is also interested in facts of the chronology which show, with respect to government,

“[3.] awareness of…depressed economic condition and evidence corroborating the validity of this concern…,

[4.] the substantial commitment of public funds…before most of the private beneficiaries were known…,

[5.] evidence that [government] reviewed a variety of development plans…[,]

[6.] [government] chose a private developer from a group of applicants rather than picking out a particular transferee beforehand and…

[7.] other private beneficiaries of the project [were]…unknown [to government] because the…space proposed to be built [had] not yet been rented….”

In the Kelo case, the New London newspaper The Day discovered that none of these conditions had been met and, several months AFTER the Kelo decision, published an account which showed that Pfizer—the drug company which wanted the land—had approached New London and THEN New London announced it wanted to “redevelop” the area. In short, New London had simply abrogated government purpose and substituted Pfizer’s purpose.

What difference does that make? Justice Kennedy is concerned about government entities substituting private purpose for government purpose. That is why he wants litigators to go back and find out such things as, who contacted who first, what facts went into the decision-making process, and so on. Substituting private purpose for government purpose is so common now that it even has a name in political science: “capture theory,” in which private actors simply do whatever is necessary to prompt government officials to adopt their purpose. But just because it is common, doesn’t mean that it is Constitutional. When it substitutes private for government purpose, it violates minimum scrutiny and cannot be allowed.

I don’t think it will take a genius to find out that private purpose has been substituted for government purpose in the Atlantic Yards case. There is already so much evidence of it in the press that it seems impossible that a judge would not grant an injunction—even at this relatively early stage—against the project on the basis that it violates minimum scrutiny because there is no government purpose, only private purpose.

However, when attorneys defending the Atlantic Yards residents go into court to make that motion, they better come prepared to show that they have done their homework: they better take the depositions and subpoena the documents implied by Justice Kennedy’s remarks. Attorneys have become so lazy under the former lazy definition of government purpose, that they don’t do their work. The Atlantic Yards residents should bring heavy pressure on their attorneys to do the work Justice Kennedy demands.

Cordially yours,
John Ryskamp
Berkeley, CA.

Posted by lumi at August 3, 2006 10:37 AM