Legal Commentary

In what might be 2009's most bizarrely underhanded defiance of the highest court's precedent, the New York appellate division just held that the New York State Urban Development Corporation's use of eminent domain to secure "Manhattanville" for Columbia University did not serve any public use under the federal constitution. The decision is bizarre mostly because the New York Court of Appeals just held in Develop, Don't Destroy Brooklyn that the New York State Urban Development Corporation's condemnation of the Atlantic Yards in Brooklyn for the purpose of creating a basketball arena for the New Jersey Nets and some fancy offices and housing served a sufficiently public purpose under Article I, § 7(a) of the New York State Constitution. Somehow, promotion of a mediocre basketball team is more of a "public use" than promotion of a non-profit university. Go figure: Given how the Nets are doing this season, I assume that their annual public attendance is considerably smaller than Columbia's student body.

Granted, a precedent interpreting the state constitution's "public use" requirement does not bind a lower court's construction of the federal constitution's analogous doctrine. But it would be an odd state of affairs if the New York state constitution's limits on eminent domain were more lenient than the very capacious constraints of Kelo, which were deliberately kept loose by SCOTUS to provide room for states to experiment with eminent domain. Moreover, the Court of Appeals' admonition to defer to UDC's findings of blight would seem to be just as applicable under the federal as state constitutional provision. Nevertheless, the appellate division coyly ignored Develop Don't Destroy, instead doggedly laboring to distinguish Kelo from Columbia's land grab, invoking the theory that the UDC was not sufficiently in the dark as to which private landowner would ultimately secure the property.

In short, the odds are that the Court of Appeals will reverse the appellate division and that the appellate division knows it. It looks as if the appellate division is nursing a forlorn hope that SCOTUS will revisit Kelo by reversing the Court of Appeals' anticipated overturning of the appellate division's federal theory. My suspicion is re-enforced by the appellate division's refusal to rely exclusively on state statutes defining "blight" and "civic purpose": The court actually found that the UDC's findings did not satisfy these statutory requirements but then decided -- gratuitously, in my view -- to resolve the case on the basis of a tenuous federal constitutional theory. Thus do state actors gravitate toward federal law, undercutting development of their own laws in an effort to undercut their immediate state superiors with federal authority. But my bet is that there will be no "buzzer shot" from the feds to save the appellate division's game here.