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State Tests for Public Use

This document examines the application of prior eminent domain tests to the Poletown and Kelo cases. It discusses the rational basis test, the legitimacy of public purposes, and the importance of identifying primary beneficiaries in property transfers. The analysis highlights the different judicial opinions surrounding these landmark cases, particularly focusing on the Michigan Supreme Court's Hatchcock decision, which overruled Poletown. It also addresses the implications of public necessity and justification for transferring land to private entities, emphasizing the tension between public benefit and private gain.

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State Tests for Public Use

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  1. State Tests for Public Use • Michigan tests as examples • ROYAL PALM: DQ84 • FICUS: DQ85-87

  2. POLETOWN & ALLENTOWN

  3. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Midkiff: Rational Basis Test • Identify Purpose • Is Purpose Legitimate? • Are Means Rationally Related to Purpose?

  4. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Majority?

  5. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Majority: Partial Analysis • Not OK if purpose is purely private benefit. (Not true in Poletown) • Suspicious if transferring from one citizen to another b/c will put to better use. (Arguably true in Poletown) • Different from Kelo b/c no comprehensive plan or thorough deliberation

  6. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Kennedy Concurrence?

  7. ROYAL PALM: DQ84APPLICATION OF PRIOR TESTS TO POLETOWN FACTS KND Concurrence: Partial Analysis • Pro: serious economic crisis; public benefit significant & arguably not incidental • Con: known beneficiary; lack of comprehensive planning • Hard Q: Is acceding to GM’s specific demands “favoritism” or sensible way to achieve big economic benefit?

  8. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS Used if land ends up in private hands • Public must be “primary beneficiary” & private benefit merely “incidental” • Public benefit must be “clear and significant”

  9. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS • Public must be “primary beneficiary” & private benefit merely “incidental” APPLY TO KELO

  10. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS • Possible readings of “primary beneficiary” test: • Quantitative weighing of public v. private benefit • Primary purpose (see KND CCR) • Who is driving the deal?

  11. FICUS: DQ85APPLICATION OF POLETOWN TESTS TO KELO FACTS (2) Public benefit must be “clear and significant” APPLY TO KELO

  12. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS (2) Public benefit must be “clear and significant” (possible meanings) • Assume both words have meaning • Clear (as opposed to “speculative”) • Significant (as opposed to “marginal”)

  13. Significance of Poletown Tests • Poletown overruled by Hatchcock • Poletown tests still used by other states (like Restatement 2d & Carpenter I) • Can still use Poletown facts as example of how the tests could be applied

  14. FICUS: DQ86-87 In Hatchcock, theMichigan Supreme Court articulates three “situations” where property acquired through Eminent Domain can legitimately end up in private hands.

  15. FICUS: DQ86-87 Hatchcock’s three “situations” • Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) • Justification: overcome high transaction costs • OCR P189: Hard to determine if really necessary • DQ87: Merrill would apply in all Eminent Domain cases (not just private recipients)

  16. FICUS: DQ86-87 Hatchcock’s three “situations” • Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) DQ86-87:Apply to facts of Kelo

  17. FICUS: DQ86-87 Hatchcock’s three “situations” • Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) DQ87:Apply to facts of Poletown

  18. FICUS: DQ86-87 Hatchcock’s three “situations” NOTE: Hatchcock • overruled Poletown & • struck down use of ED to create 1300-acre business & technology park. So must have believed that bothwould fail all three tests.

  19. FICUS: DQ86-87 Hatchcock’s three “situations” (2) Private entity remains accountable to public for its use • Could make private ownership contingent on particulars • Govt could retain say in management Justification?

  20. FICUS: DQ86-87 Hatchcock’s three “situations” (2) Private entity remains accountable to public for its use • Could make private ownership contingent on particulars • Govt could retain say in management Justification: Not entirely private use if some public control

  21. FICUS: DQ86-87 Hatchcock’s three “situations” (3) Selection of land based on public concern • Justification: “Public” part is the taking of the land itself, not who ends up with it. • O’Connor position in Kelo • True in Berman and (arguably) Midkiff • Not true in Kelo & Poletown

  22. CHAPTER FOUR REVIEW • Federal Standards • Midkiff facts & Rational Basis Test • Kelo facts & positions in all 4 opinions • State Standards • Poletown facts & tests (apply in other states) • Hatchcock tests (apply in Michigan) • Underlying Policy Concerns • Re Eminent Domain in general • Re Public Use

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