New York State–Carl Paladino, the World Trade Center, and eminent domain

Paladino

First, from the transcripts:

CARL PALADINO (R), NEW YORK GUBERNATORIAL CANDIDATE: “This is Carl Paladino. As governor, I will use the power of eminent domain to stop this mosque and make the site a war memorial instead of a monument to those who attacked our country.”

(video clip, Rachel Maddow Show, MSNBC, July 29, 2010)

CNN INTERVIEW WITH CARL PALADINO, REPUBLICAN NEW YORK GUBERNATORIAL CANDIDATE INTERVIEWER: RICK SANCHEZ SUBJECT: NEW YORK GUBERNATORIAL RACE; PROPOSAL TO BUILD MOSQUE NEAR WTC SITE TIME: 3:00 P.M. EDT DATE: WEDNESDAY, SEPTEMBER 15, 2010:

“MR. SANCHEZ: You say that you will use–here, let me read from your letter once again. You’re right. This is the point that you’re making and you’re correct, you’ve been very consistent on this.

“The governor”, you write, “has a legal power to use the state’s right of eminent domain to seize this site and make it a memorial of which we can be proud. That is exactly what I will do if I’m elected governor.”

So, as governor, you will go in there and take this property away from this people and turn it into a memorial because they want to use it as an Islamic cultural center.

MR. PALADINO: No. Let me correct on that, okay. That was a partial misstatement on my part. We will go in there and we will put a restrictive covenant on the property and all of the property in the Ground Zero site. Ground Zero for me is the extended site over which the dust cloud containing human remains traveled. That Ground Zero site will be protected in the memory of those who fell at the World Trade Center, as well as the memory of the thousands and thousands of soldiers, of American and allied soldiers, that fell in the ensuing wars, and 150,000 troops we still have over there defending our right to speak like this today.”

[continued]

“MR. SANCHEZ: Okay. But you just said the property for which the dust cloud–

MR. PALADINO: I’m sorry. I missed the point. Yeah, let me explain that. Eminent domain is a very broad term. You can actually take property or you can just put a restriction on property. In this case it would be the restriction on the use of a property that a zoning board would consider the issue when proposed use is introduced for any property within the district. And if the zoning board determines that it is an affront in any way to the American people to those memories, then it would be rejected, the use would be rejected.”

For more than one reason, New York Republican gubernatorial candidate Carl Paladino was sagacious to amend his initial campaign promise to ‘seize’ the World Trade Center site under eminent domain. For one, the Islamic Center to include the mosque and ecumenical chapel for religious use is not planned for the World Trade Center site itself but for a site two blocks away. As one attorney expert in eminent domain cases comments, seizing ‘Ground Zero’ would hardly prevent a mosque from being built blocks away. Widening the terrain to that hit by ‘dust’ from the attacks of Sept. 11, 2001, parries this point—although it also includes all of Lower Manhattan.

For another, hearing a GOP candidate for governor of the nation’s third-largest state aggressively proclaim the use of eminent domain to seize property—“we do it every day in zoning”—would hardly sit well with Paladino’s ‘tea party’ constituency.

Telephone and emailed questions and requests for comment placed with the Paladino campaign, whose slogan is “Paladino for the people,” have not yet been answered. Paladino’s campaign website further emphasizes, as Paladino said in the Rick Sanchez interview, that Paladino’s use of eminent domain around the World Trade Center site would be restricted–“but not by taking the property.”

Still, Paladino’s track record includes some aggressive threats to use eminent domain:

[transcript:]

“MR. SANCHEZ: So you believe that a government–a government has a right to make a decision, a property rights decision, based on its own sensibilities, how its affected. How would that stop, in the future, someone from–

MR. PALADINO: We do it every day in zoning–we do it every day in zoning law.

MR. SANCHEZ: But how–but in this case you’re–

MR. PALADINO: Zoning laws–

MR. SANCHEZ: But this case it’s a First Amendment argument that you’re deciding.

MR. PALADINO: No, we’re not.

MR. SANCHEZ: Aside from sensibilities, if the Constitution says we have a right to worship as we please, where we please, how can you go in and say I don’t want you worshiping that way there because it affects my sensibilities?

MR. PALADINO: I’ve clearly said to you that it’s my opinion that this is not a question of freedom of religion.”

Even after widening the geography to that covered by the “dust” from the attacks of September 11, 2001, and restricting the use of eminent domain to “covenant” rather than seizure, Paladino’s rhetoric raises issues that should concern his ‘base.’

The big one, of course, is the First Amendment. [ O’Donnell]

Even with the limitations or after-the-fact qualifiers, Paladino’s barn-burning rhetoric basically boils down to saying that as New York governor he would use “any means”—his words—to prevent the ‘mosque’s’ being built, including the power of eminent domain.

Setting aside any other questions, a key legal question for a lay person is, could he really do that?

Any exercise of the power of eminent domain must be based on a legitimate public purpose of the condemning authority, in this instance the State of New York. That fundamental principle raises the immediate question whether preventing a ‘mosque’ at or near the WTC site could be a legitimate public purpose.

Most lawyers would argue, to the contrary, that the expressed purpose of preventing a ‘mosque’ is a direct violation of the First Amendment.

Attorney Thomas M. Olson, of the firm of McKirdy & Riskin in Morristown, N.J., interviewed by telephone, has represented clients in numerous cases confirming that indeed First Amendment issues can arise in relation to eminent domain. Whether the First Amendment issues outweigh other concerns varies from case to case, Olson says, but the First Amendment does not automatically go down to defeat just because the state—at the federal or state level—advances other interests. Boiling it down to lay terms, sometimes the church or cemetery wins.

Side note: Purely anecdotally, it used to be a truism that Constitutional Law was the law school course that law school students took least interest in, the one on which they typically placed least priority. The constitution being the terrain only of future constitutional law profs or a smaller handful of future Supreme Court Justices, the conventional wisdom went, Con Law was perceived as offering little payback to the prospective lawyer who wanted to go out and land a well-paying job at one of the big burnout law firms. Indeed, in this (surely) over-cynical and oversimplified view, a well-grounded regard for the constitution was something of a handicap to be reticent about, not a selling point in a job interview with Gordon Gekko.

Back to the phone interview–Olson clarifies that the government does have power to use eminent domain in regard to private property—but not for free: when a property is condemned, for example, the property owner still has to be compensated. The government does have power to seize land for public use—a freeway, a school. But whether the government has the right in a particular case depends on what purpose they would seize it for. An unquestioned public use such as a school is much more solid ground for eminent domain; a quasi-private use such as redevelopment is more of a gray area.

Olson’s firm, McKirdy & Riskin, generally represents property owners in eminent domain matters in New Jersey. The religious issue, “a very interesting issue,” Olson comments, “has never been finally resolved by the courts” in an across-the-board way.

When you want to run a road through a church, it can be difficult. There are rights on both sides. A church versus a cemetery might be even tougher.

To deal with the First Amendment issue, Paladino’s rebuttal is simply to deny it:

“MR. SANCHEZ: They may very well be, sir, and I understand your perspective. But what you can’t get away from, and I guess what I’d like to ask you because we’ve got to get a break in and we’ll continue but maybe it gives us a chance to think about this a little bit. How do you get away from the fact that there is a constitutional argument here that seems to say that you can’t deny someone–

MR. PALADINO: There is no constitutional argument because it’s not freedom of religion.

MR. SANCHEZ: It’s not? Okay–

MR. PALADINO: If it was freedom of religion they’d put their mosque someplace else.

MR. SANCHEZ: Okay. Let’s continue that part–

MR. PALADINO: And enjoy their religious experience.”

According to Paladino, the building is “ideological,” not religious. Set aside the point that ideology might be protected by the First Amendment and that religious denominations have their ideological components. Set aside that the building is being called ‘ideological’ and is being opposed because some people do not like it. Set aside the point that people could be prevented from enjoying their religious experience anywhere other people were minded to prevent it, on whatever grounds. Set aside even the sad possibility that Paladino may not consider Islam a religion to begin with. Even giving him all these set-asides, his argument pretty much boils down to a statement that the building is not religious because he (speaking ex officio as hypothetical governor) says it’s not.

It is a given that media attention to Paladino’s statements will dwindle because nobody foresees that he poses much threat to Andrew Cuomo. But his is a worrisome train of thought for a chief executive, and should be seen as such by tea partiers as well as others.

Cuomo, Ackerman

A better argument for Paladino to have made as gubernatorial candidate would have been the common-sense reminder that the First Amendment is not absolute and government can abridge constitutional freedoms, within reasonable limits, to serve other legitimate purposes such as curing blight to foster the health, safety and welfare of a community. 

Back when he was talking about ‘seizing’ the property, he could also have reminded the audience that any property seized would have to be paid for. So the taxpayers would be on the hook for any property abruptly picked up by the State of New York, including the footprint of the twin towers.

Back—again—to when Paladino was talking about seizing the World Trade Center site, it is intriguing to note that he was talking about using eminent domain in order to create a “public memorial.” This would be his concept of the public use under which eminent domain could be used—a memorial, rather than a road or bridge, etc. A memorial park might indeed be such a public use, or public purpose, but once again it would have to be paid for. It would be interesting to run this one by the deficit hawks among the tea partiers. Fair market value for the property, as paid by the State . . .?

Another legal issue, perhaps a future project for legal research, is whether New York State has power to seize property owned by the Port Authority of New York & New Jersey for any purpose. 

btw a memorial on the 9/11 site is already under construction. Paladino’s proposal to exercise eminent domain ‘restriction’ or ‘covenant’ could overlap significantly with—i.e. come into conflict with—the memorial underway. Thus the argument of a legitimate public purpose would have to be weighed against, again, fiscal costs–the large public maintenance obligation and presumably the loss of tax revenue.

But the fundamental concern is that eminent domain must have a legitimate public purpose. The purposes of government are defined by the constitution and by statute. A governor cannot simply declare that something is a public use in order to justify taking private property. This is a Tea Party candidate?

Final note: The Corpus Juris Secundum, the encyclopedia of American law, devotes 752 pages to eminent domain, plus suppl., give or take, which is what eminent domain is all about. See vol. 29A.

Pages 167 and 168 of the CJS deal with cemeteries as public use of land. Page 189 deals with cemeteries as property appropriate for the exercise of eminent domain.

The CJS makes clear that land, including private property, may be taken by the government—federal or state—for public use, with two conditions: 1) the use has to be public, i.e. open to all, as for example roads and bridges; and 2) the property owner has to be fairly compensated (paid).

Any land taken for use as a cemetery or, presumably, as a memorial, must be for public use. It cannot be an exclusionary private cemetery.

[This article, deleted by the system among hundreds of articles and blog posts in summer 2011, is re-posted using archives and Word files.]