Author Archives: Doug Mataconis

Public Rights vs. Private Contracts

The Washington Post typically devotes the back pages of its Sunday Outlook section to short articles written by local community activists and others expressing their opinion about various issues of interest to the Metro DC area. This morning, one of those articles, titled My Rights Aren’t A Matter Of Address regarding the alleged threa to individual rights posed by Homeowners Associations or, as the author refers to them Property Owner Associations.

Virginians are proud of the commonwealth’s role in the founding of the country and the formation of the ideals and rights that define us as Americans.

From George Mason’s Virginia Declaration of Rights, to Thomas Jefferson’s Statute for Religious Freedom to James Madison’s role as the father of the Constitution, Virginians have been at the forefront of declaring and protecting individual rights.

Increasingly, however, these rights are being undermined or stripped by a form of government that the Founders did not foresee: the property owners association (POA).

The Constitution and Virginia law specifically recognize and protect the display of political yard signs on a homeowner’s property, yet a POA can and often does strip people of this right to free speech. All Americans have the right to express their support for a political party or candidate in the form of a yard sign from Super Cheap Signs.

There is one problem with the entire premise of this argument. The Constitutions of the United States and Virginia to protect an individual rights to freedom of speech, but they only protect it against the action of the state. There is no such thing as a right to free speech that applies to private entities. If you are on my property, I have the right to stop you from engaging in speech that would otherwise be protected if you were on your property and I were a police officer. And this is where POA’s come in.

POA’s are entirely a creation of contract. Groups of homeowners come together and form an organization that will accomplish certain goals. Typically, this includes maintaining some standard rules of esthetics for the community, contracting for trash removal, and maintaining property that is owned by the POA members in common rather than by any one person.

When you buy a house that is part of a POA, you agree to certain rules and regulations. These rules can be as mundane as what day you put your trash can out or what color you can paint or front door. Or, they can be as rigid as telling you that you cannot put a sign of any kind in your front yard. In fact, if your front yard is actually POA property, which is true of many townhouse communities here in Northern Virginia, then the property really isn’t yours anyway.

Its evidently clear that the author of the article does not recognize this simple fact:

During holiday seasons, homeowners in my development are encouraged to decorate their homes with, say, Halloween scenes or Christmas decorations. Shouldn’t Election Day be treated as an important holiday for democracy? In my community, putting the issue to a vote has been suggested, but I disagree with this approach. What the Constitution gives, neither my POA nor my neighbors should be able to take away. Moving into a POA-ruled neighborhood should not mean moving out of America.

Property owners associations in Virginia have the legal right to prohibit homeowners from displaying political signs in their own yards. Homeowners are bound by the contracts they must sign to live in POA-regulated neighborhoods, and they agree to sacrifice some rights at the gates to the community. But it should not be within the reach of a POA to establish covenants that deny homeowners a constitutional right. Limitations on the size, number and duration of sign displays might be reasonable, but prohibition is not.

If you don’t like the rules that a particular POA has then you have several options. For one thing, you don’t have to move there to begin with. In Virginia, sellers are legally required to give buyers a copy of the POA rules and buyers are given an opportunity to review those rules and back out of the contract without penalty. If you’re in a POA and you don’t like the rules, or how they are being enforced then get involved in your community and get the rules changed. What you don’t need to do, though, is what the author of the article advocates:

To stop free-speech infringements by POAs, the Virginia General Assembly should follow the example of these states. Legislation has been introduced in both the House and Senate in Richmond, and a bill should be passed and signed into law. The efforts of our neighborhood’s founding developers to create attractive, homogeneous enclaves should not trump the efforts of the Founders to declare and protect the rights we enjoy as Virginians and as Americans.

Ah yes, if you don’t like the way the world is, just get the government involved and force everyone else to change. Unfortunately, that seems to be becoming the American way.

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Hooked On Takings

According to this report in the New York Times, the use of eminent domain to advance private development is the dirty little secret of commercial real estate.

Bank of America agreed to join the developer Douglas Durst in 2003 in building a 54-story tower in the heart of Midtown Manhattan, giving a psychological and economic lift to a city that was still reeling from the destruction of the World Trade Center.

Mr. Durst said he would not have been able to negotiate with Bank of America or other prospective tenants had the state not authorized him to use eminent domain, a redevelopment tool that is coming under fire in the wake of a United States Supreme Court ruling last June in a Connecticut case.

Now under construction at 42nd Street and the Avenue of Americas, the Bank of America Tower at One Bryant Park, as the project is known, was decades in the making as the Durst family assembled the site. Ultimately, only two buildings remained, but their owners kept raising the price, Mr. Durst said.

Eventually, the state told Mr. Durst that if he found an anchor tenant the buildings could be condemned even though the site was not in a blighted neighborhood. That threat alone was enough to break the impasse. “Once we had that ability, we were able to quickly come to a resolution on the two properties and meet Bank of America’s schedule,” Mr. Durst said.

Let’s be clear about what happened hear. While not as well-known or flamboyant as Donald Trump, the Durst family is one of the largest commercial real estate developers in New York City, if not the nation. When they ran into two building owners who realized that the laws of supply and demand gave them an advantage, thus refusing to sell at a rock-bottom price, they called on their cronies at Gracie Mansion and in Albany to forcibly take their property from them. Now, I’m sure that the owners of those buildings are quite different from the Kelo’s and other citizens of New London who were the subject of last year’s Supreme Court decision, but theft is theft and that’s exactly what this is and it doesn’t really coincide with how this guide on Inboundrem talks about prospecting for real estate clients should be done correctly in today’s market.

What is more interesting, though, is the extent to which the use of eminent domain has become common place in the commercial real estate development business. With the backlash that has come from Kelo, however, the article goes on to point out the delicate situation that developers and government officials find themselves in:

Using eminent domain for private projects has long been a divisive issue, but never more so since the Supreme Court upheld the right of officials in New London, Conn., to condemn homes and businesses to increase the tax base of one of the state’s poorest cities.

That decision, coupled with reports of abuses in places like the predominantly African-American community of Riviera Beach, Fla., where plans called for replacing thousands of homes with upscale condos, has prompted a onslaught of legislation, both federal and state.

In other words, when Kelo was handed down, ordinary Americans began to realize what was happening and what could happen to their property. They responded by pressuring their elected representatives to do something about it:

In November, the House of Representatives approved a bill by F. James Sensenbrenner Jr., Republican of Wisconsin, that would penalize government agencies for using condemnation powers for private projects by denying them economic development funds for two years. Legislation has been introduced in 27 states, and more is coming, said Larry Morandi, the director of the environment, energy and transportation program of the National Conference of State Legislatures

That hasn’t stopped them from trying to justify what they’ve done, of course:

But around the country, developers and city officials say weakening or destroying the power to condemn property will seriously undermine efforts to rehabilitate decaying cities and might even hinder the rebuilding of New Orleans. Without eminent domain, the Inner Harbor, which played an essential role in Baltimore’s success in building its tourist industry, could not have been redeveloped, said Ralph S. Tyler, the city solicitor.

The fact that you stole someone’s property to do it doesn’t matter does it ? Apparently not.

One business group that has opposed restrictions on eminent domain is the Partnership for New York City, whose members include most of the city’s top developers. Kathryn S. Wylde, the president and chief executive of the group, said her members opposed any efforts to alter condemnation procedures through federal or state legislation. “When you add restrictions on development, you are never quite sure what the results are going to be,” she said. “We want to avoid political reaction to an issue that adds more problems and obstacles to economic growth.”

Hmmm, and when you create a legal environment where people’s property can be taken away from them on the whim of a government official who happens to be in the pocket of a big developer what kind of result will that create Ms. Wylde ?

If one thing is clear from this article it is that these commercial developers have become dependent upon the government to get them the land they need to build their projects, and politicans have become dependent on campaign contributions from the developers. The end result is a world where your property isn’t really yours anymore.

Cross-Posted at Below The Beltway

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A Clear Victory

The new Roberts Court has handed down its first significant opinion of the term and it is a clear victory for federalism and individual rights, and a defeat for the Federal Government

The Supreme Court delivered a rebuff to the Bush administration over physician-assisted suicide today, rejecting a Justice Department effort to bar doctors in Oregon from helping terminally ill patients end their lives under a 1994 state law.

In a 6-3 vote, the court ruled that then-U.S. Attorney General John D. Ashcroft overstepped his authority in 2001 by trying to use a federal drug law to prosecute doctors who prescribed lethal overdoses under the Oregon Death With Dignity Act, the only law in the nation that allows physician-assisted suicide. The measure has been approved twice by Oregon voters and upheld by lower court rulings.

In other words, Ashcroft tired to use a law that had nothing to do with the right to die issue to override the will of the people of Oregon. Kudos to the Supreme Court for saying no.

At issue was whether the federal Controlled Substances Act, enacted in 1970 to combat drug abuse and trafficking, allowed the attorney general unilaterally to prohibit doctors in Oregon from prescribing regulated drugs for use in physician-assisted suicide, despite state law permitting them to do so.

Writing the opinion of the court, Justice Anthony M. Kennedy said the federal law bars doctors from using prescriptions to engage in illicit drug dealing but that “the statute manifests no intent to regulate the practice of medicine generally.” Moreover, the Controlled Substances Act (CSA) relies on “a functioning medical profession regulated under the states’ police powers,” he wrote.

“In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession, it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide,” Kennedy wrote.

Here is a link to the text of the majority opinion.

Joined by Clarence Thomas and Chief Justice Roberts, Antonin Scalia delivered one of his usual stinging dissents:

Writing in dissent, Scalia attacked the finding that the attorney general “lacked authority to declare assisted suicide illicit” under the federal law. “This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence,” he wrote.

Scalia backed the government’s position that assisting in suicide was not a “legitimate medical purpose.” Saying that the court’s decision “is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business,” Scalia wrote that “it is easy to sympathize with that position.” However, the government has long been able to use its powers “for the purpose of protecting public morality,” he said.

“Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible,” Scalia said. “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”

As much as I respect Scalia, I think he misses the point here. The laws intent and purpose was aimed solely at illegal drug use and trafficing. It is silent on the question of what is and is not a legitimate medical procedure. In fact, it should be for the doctor, not the government to determine the appropriateness of a medical procedure. More importantly, though, if the Federal Government is going to intrude into one of the most personal, gut-wrenching decisions a person can make, it needs to (attempt) do so directly and not engage in the kind of creative legal maneuvering that Ashcroft tried here.

More importantly, this is a victory for federalism. There is nothing in the Constitution that gives the Federal Government the right, power, or authority to regulate this area of human life. If any such authority exists, it resides solely within the states. The people of the state of Oregon have chosen to allow physician assisted suicide within their borders. John Ashcroft had no right to try to override their judgment, and the Supreme Court did the right thing by telling him so.

Update: I have not had time to read through the entire opinion, but one section of Antonin Scalia’s dissent, highlighed in Ann Althouse’s post on the decision stuck out to me:

The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality — for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321-323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death

This is one of those times when Scalia’s deference to precedent gets the better of him. There is no such thing as a Federal police power, and never has been. The Federal Government is a government of limited powers; the things that it can do are set forth in Article II of the Constitution. If a power is not listed there, it does exist. By accepting without question a series of obviously wrongly-decided cases, Justice Scalia forces himself to endorse a point of view that ignores the meaning of the Constitution and would unjustly expand the power of the Federal Government over the states and the people.

Update 1/18/06: UCLA Law Professor Stephen Bainbridge takes a look at what Scalia’s dissent in this case means in answering the question of just exactly what his judicial philosophy is:

Some will condemn Scalia for abandoning originalism in this line of cases. Yet, I think these cases actually reveal something more interesting about Scalia, which is that he is not purely an originalist. Instead, Scalia’s jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn;t seem to have a hierarchy for choosing between the three.

(….)

There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.

In other words, don’t place your faith in one Supreme Court Justice any more than you would place it in one Senator.

Cross-Posted at Below The Beltway

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More On Regulating Anonymous Internet Speech

I wrote yesterday , as did Chris in a post here, about a provision attached to the Violence Against Women Act which appears to outlaw anonymous “annoying” speech on the Internet. Not surprisingly, it has been the subject of much discussion today, and a little bit of second-guessing.

At The Volokh Conspiracy, Orin Kerr takes a skeptical look at the alleged threat to online liberty and comes away unimpressed. First, Kerr says, the existing law isn’t as bad as it sounds:

It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court’s First Amendment test in United States v. O’Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.

Under cases like Popa, 47 U.S.C. 223(a)(1)(C) is broad on its face but narrow in practice. That is, the text looks really broad, but prosecutors know that they can’t bring a prosecution unless doing so would comply with the Supreme Court’s First Amendment cases.

Okay, that sounds somewhat reassuring, but what about the new portion of the law ?

The new law simply expands the old law so that it applies to the Internet as well as the telephone network. It does this by taking the old definition of “telecommunications device” from 47 U.S.C. 223(h), which used to be telephone-specific, and expanding it in this context to include “any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet.”

Kerr also points to this article which asserts that the new provisions of the law are about applying the existing law to Voice Over IP (VOIP) technology, nothing more and nothing less. Therefore, Kerr believes that much of the reaction to the new legislation is, in fact, over-reaction.

At the same time, however, Kerr’s fellow conpsirator Eugene Volokh isn’t quite as sanguine about the situation.

[O]n balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.

Who’s right ? I’m not sure, but I tend to fall into Eugene’s camp on this one. And I personally wonder why harrassment over the telephone needs to be the subject of a federal law to begin with.

Originally posted at Below The Beltway

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A Post-Kelo Test In Ohio

The Ohio Supreme Court is hearing arguments today in what is being called the first significant eminent domain case to be argued since the U.S. Supreme Court’s decision last June in Kelo v. City of New London. As with the Kelo case, the case being argued this morning in Columbus involves a homeowner facing the loss of their property at the hands of a government that wants to hand that property to private developers.

COLUMBUS, Ohio — Joy and Carl Gamble say they just want to retire peacefully in the dream home where they’ve lived for more than 35 years. But the Cincinnati suburb of Norwood has other plans for the property.

Using its power of eminent domain, the city wants to take a neighborhood that it considers to be deteriorating and boost its fortunes by allowing a $125 million development of offices and shops.

And the city’s justification for taking a home that the Gamble’s have owned for 35 years ?

The city and a private developer contend that Norwood had the right to acquire the property. They also argue that eminent domain applied not because the area is “blighted,” but because it is “deteriorating.”

How the Ohio court deals with the issue of blight has important ramifications for municipalities around the country, said Steven Eagle, a George Mason University law professor who studies property rights.

“Every jurisdiction allows condemnation to relieve blight,” Eagle said. “If blight is going to be vaguely defined, then it could be open season for condemnations for redevelopment.”

Like many jurisdictions, Ohio is studying the possibility of passing a law that would limit the right of municipalities to use eminent domain to give property to private developers.

In Ohio, a new law stops local governments from seizing unblighted private property for use by private developers while a committee studies the issue. The Gambles’ lawsuit was filed before that law was passed and before the U.S. Supreme Court ruled.

Though not mentioned in the article, it appears that the Gambles cannot take advantage of this moratorium since they filed suit before the law was passed.

And, not surprisingly, the Gamble’s are upset:

The Gambles, in their 60s, hoped to live comfortably in the home they had bought in 1969. They sold their small Cincinnati grocery store, Tasty Bird Poultry, and retired five years ago.

Instead of a comfortable retirement, however, they watched their neighborhood disappear as neighbors sold willingly to developer Rookwood Partners. The Gambles temporarily left their home to live with a grown daughter in Kentucky but vow to return should they win the case.

Joy Gamble speaks bitterly about the couple’s ordeal and what it meant to see their home of 35 years, purchased after years of savings, in danger of demolition.

“When the municipalities and the people that have lots of money decide they want what you have, you don’t own it,” Gamble said. “You bought it, you paid for it, you kept the taxes up, you kept the appearance up, but it wasn’t yours.”

Jacob Sullum at Hit & Run has this to say about the importance of this case:

This is the most important state eminent domain case since the U.S Supreme Court last year upheld condemnations for private development in Kelo v. New London. The Ohio Supreme Court has declared that “the power of eminent domain may not be exercised merely or primarily to take private property for private purposes,” and it has never ruled on the condemnation of “deteriorating,” as opposed to “blighted,” property. A victory for the owners would provide further evidence that state courts are prepared to interpret state constitutions so as to curtail eminent domain abuse, meaning that new legislation is not the only solution to the land grabs encouraged by Kelo.

Keep your eyes on this one.

Update 1/12/05: Via Todd Zywicki at The Volokh Conspiracy, here are online resources related to the case:

Copies of all briefs filed in the case can be found here.

Archived video of Ohio Supreme Court arguments are available here and the direct link to the Norwood argument, in Real Media format, is available here.

Cross-Posted at Below The Beltway

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