Defining Ideas

When Judges Make Law

Wednesday, July 9, 2014
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Mark Redlund

What happens when judges act as policymakers rather than interpreters of the law? This essay looks at two major U. S. Supreme Court decisions where the judges stepped beyond a strict interpretation of the law to help out a sympathetic litigant. After these cases were decided, unintended consequences emerged. The upshot is that judges should leave the policymaking to lawmakers.

 Kelo v. City of New London (2005)

The city of New London, Connecticut approved a plan in 2000 that would create 1,000 jobs, increase tax revenues, and revitalize the economically distressed city. Because of the closure of a federal facility and other economic reasons, the city’s population was the lowest it had been since 1920 and the unemployment rate was nearly double that of the state. The city’s agent selected a site for economic revitalization and purchased property from willing sellers and planned to use the powerful tool of eminent domain to acquire property at a just price from unwilling owners. The emphasis here is on the word “unwilling.” An obstacle to the acquisition by eminent domain is found in the Takings Clause of the Fifth Amendment to the U. S. Constitution (“[N]or shall private property be taken for public use, without just compensation.”) The key words are “public use” (e. g., to construct a public highway or dam).

The pharmaceutical company Pfizer Inc. announced it would build a $300 million research facility on the site. The city hoped that would draw business to the area. The development plan envisioned, among other things, a hotel, restaurants, stores, recreational areas, new residences, a state park, a marina, office and retail space, and a pedestrian river-walk. The plan was approved and condemnation proceedings commenced against the properties. Several owners, one of whom was born in her home in 1918 and had lived there her entire life, were unwilling to sell. They brought action in state court, claiming that taking their properties would violate the “public use” provision of the Takings Clause. After proceedings in lower courts, the Connecticut Supreme Court held that the proposed takings qualified as a valid “public use.” The case then moved to the U. S. Supreme Court. The sole issue was whether taking property from unwilling owners was for a “public use,” and thus valid, or invalid because it was a transfer of land to a private party for a “public purpose.” There could be no doubt that the city had its eye on increased tax revenue.

In 1954, the Supreme Court held that the Takings Clause did not prohibit the government from taking blighted property that was beyond repair and using it to build schools, streets, public facilities, and provide for redevelopment. The key was that the property was blighted. The property in New London was not blighted. Nevertheless, the Court, in a 5-4 decision, maneuvered its way through the legal nuances and supported the public policy decision of the city of New London and held that the Takings Clause includes “public purpose” in addition to the stated “public use.” In essence, the Court stretched the meaning of the Takings Clause to support the city’s scheme of increasing tax revenues and improving its social conditions. The Court opinion noted that the states are free to amend their own laws to place further restrictions on the exercise of the eminent domain and the takings powers.

The dissenters claimed that the majority in effect deleted the words “for public use” from the Takings Clause. Justice O’Connor wrote that the Court did nothing to “prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

So the Court gave New London what it wanted, the city fulfilled its public policy decision, business boomed, people got jobs and condos, bicycle paths appeared, and tax revenues flowed. Right? No. A developer, who was to get a large tract of land for $1 a year, could not get financing and the project was abandoned. Pfizer changed its mind, chose a different location, and the city lost 1,000 jobs. The promise of more jobs and large tax revenues never materialized. The site is now vacant.

As a result of this case, a large majority of states have changed their laws to limit the use of eminent domain and protect private ownership of property. Millions of dollars were wasted on this project, but the end result is that private property owners emerged with more protections. Unfortunately, the unwilling property owners in New London did not benefit from this saga.

United States v. Denedo (2009)

This case, unlike the Kelo decision, drew little media attention. Jacob Denedo came to the United Sates from his native Nigeria, enlisted in the Navy in 1989, and subsequently became a lawful permanent resident. In 1998 he was charged with conspiracy, larceny, and forgery in violation of the Uniform Code of Military Justice (UCMJ). He entered into a beneficial bargain to plead guilty to lesser charges before a special court-martial. He was convicted and sentenced to three months’ confinement, reduction in grade, and a bad-conduct discharge. He appealed and the intermediate military court affirmed his conviction and sentence. He did not seek review before the Court of Appeals for the Armed Forces (CAAF) and was discharged in 2000. It was settled law that the case was final.

Military courts are Article I courts, creatures of Congressional legislation, as distinguished from Article III courts which are creatures of the Constitution. Military courts have limited jurisdiction and do not possess the broad authority granted to Article III courts.

In 2006, the Department of Homeland Security commenced removal proceedings against Denedo based on his court-martial conviction. To avoid deportation, he decided to challenge his conviction, even though it had been final for eight years. He filed a writ of coram nobis (a power to correct a previous error) with the intermediate military court, alleging that his defense counsel had been ineffective. He claimed his counsel erroneously assured him that if he was convicted at a special court-martial, he would not be deported. The intermediate military court denied relief. On appeal, CAAF held that military courts have jurisdiction to issue a writ of coram nobis and remanded the case to the intermediate court to determine whether Denedo’s claim had merit. CAAF issued this ruling even though there is no express statutory authority granting coram nobis power to military courts in such circumstances. Furthermore, the UCMJ, which is a federal law, provides that after appellate review, as occurred in Denedo’s case, a court-martial judgment is “final and conclusive” and “binding upon all departments, courts, agencies, and officers of the United States.” In other words, the law provided that the case was final. It can be inferred that CAAF viewed Denedo as a sympathetic figure and stretched the law to throw him a lifeline.

The case moved to the Supreme Court. In a startling 5-4 decision, the Court strained and stretched the law to find that military courts have the power to issue a writ of coram nobis after the case is final. In a spirited dissent, Chief Justice Roberts construed the law strictly and wrote that there is no lawful authority to support the majority’s decision.

So Denedo gets a hearing, his counsel admits that he gave bad advice, and his conviction is reversed. Right? No. Following the Supreme Court’s decision, the Navy conducted a hearing to obtain the testimony of the civilian counsel who allegedly gave the erroneous advice. He testified that he did not tell Denedo he would not be deported based on the court-martial conviction. The intermediate court again denied coram nobis relief. His counsel appealed to CAAF, but he failed to do so within the time limit set forth in CAAF rules. He was twenty-seven days late. CAAF denied a request to suspend the rule and denied a request for reconsideration. Denedo’s conviction remained valid.

The result is that the door is now open for convicted military personnel to challenge their convictions long after they are final. This does not mean the sky is falling, but it reflects that making policy is not within a jurist's job description.

These cases teach two lessons. Jurists should resist making policy decisions to throw lifelines to sympathetic parties. Second, unintended consequences can ruin the best laid plans.