My Slogan for New Jersey
New Jersey: Gateway to America
May 7, 2006
New Jersey's Slogan Goes From New to Stale
By THE ASSOCIATED PRESS
The Associated Press
TRENTON, May 6 — New Jersey officials have said the new state slogan, "Come See for Yourself," would highlight the Garden State's true beauty.
It turns out, however, that at least one other state already had that idea.
State tourism officials said they canned the slogan after it failed to pass legal muster because some states, including West Virginia, have used it in the past.
"We are proceeding without the slogan," Karen Wolfe, a spokeswoman for the state's Commerce, Economic Growth and Tourism Commission, was quoted as saying in The Press of Atlantic City's Saturday issue. "We will revisit the next steps at the end of the year."
Former Gov. Richard J. Codey unveiled the slogan with great fanfare at a January news conference, just days before he left office.
Mr. Codey, who remains State Senate president, said at the time that the state's catchphrase "should hint at our true beauty."
The slogan was the top choice among 11,227 telephone and online votes cast by residents for five final entries in a statewide contest.
But at an annual tourism conference in Cape May County more than a week ago, the slogan was absent from state promotional materials.
Tourism officials say West Virginia used the phrase in some previous promotions, but now uses "West Virginia: Wild and Wonderful."
The slogan resulted from Mr. Codey's appeal in October for ideas after he rejected a marketing company's proposal for which the state paid about $250,000. He said that slogan, "New Jersey: We'll Win You Over," was negative and reminded him of his own self-deprecating pitch when he asked girls out on dates.
As I have lived in New Jersey for more than two years now, I feel I have the perfect state slogan: Gateway to America.
It’s catchy and happens to be true, as NJ is the a stronghold of immigrants, both now and historically, and is the state closest to Ellis Island. It is also is the state through which visitors to New York City must pass, more often than not, if they want to reach the American mainland.
Sunday, May 07, 2006
Friday, March 24, 2006
Ackman quoted by Krugman...
... alas not by name...
NEW YORK TIMES
March 24, 2006
Op-Ed Columnist
Letter to the Secretary
By PAUL KRUGMAN
Dear John Snow, secretary of the Treasury:
I'm glad that you've started talking about income inequality, which in recent years has reached levels not seen since before World War II. But if you want to be credible on the subject, you need to make some changes in your approach.
First, you shouldn't claim, as you seemed to earlier this week, that there's anything meaningful about the decline in some measures of inequality between 2000 and 2003. Every economist realizes that, as The Washington Post put it, "much of the decline in inequality during that period reflected the popping of the stock market bubble," which led to a large but temporary fall in the incomes of the richest Americans.
We don't have detailed data for more recent years yet, but the available indicators suggest that after 2003, incomes at the top and the overall level of inequality came roaring back. That surge in inequality explains why, despite your best efforts to talk up the economic numbers, most Americans are unhappy with the Bush economy.
I find it helpful to illustrate what's going on with a hypothetical example: say 10 middle-class guys are sitting in a bar. Then the richest guy leaves, and Bill Gates walks in.
Because the richest guy in the bar is now much richer than before, the average income in the bar soars. But the income of the nine men who aren't Bill Gates hasn't increased, and no amount of repeating "But average income is up!" will convince them that they're better off.
Now think about what happened in 2004 (the figures for 2005 aren't in yet, but it was almost certainly more of the same). The economy grew reasonably fast in 2004, but most families saw little if any improvement in their financial situation.
Instead, a small fraction of the population got much, much richer. For example, Forbes tells us that the compensation of chief executives at the 500 largest corporations rose 54 percent in 2004. In effect, Bill Gates walked into the bar. Average income rose, but only because of rising incomes at the top.
Speaking of executive compensation, Mr. Snow, it hurts your credibility when you say, as you did in a recent interview, that soaring pay for top executives reflects their productivity and that we should "trust the marketplace." Executive pay isn't set in the marketplace; it's set by boards that the executives themselves appoint. And executives' pay often bears little relationship to their performance.
You yourself, as you must know, are often cited as an example. When you were appointed to your present job, Forbes pointed out that the performance of the company you had run, CSX, was "middling at best." Nonetheless, you were "by far the highest-paid chief in the industry."
[SEE: Snow's CSX Was An Also-Ran by Dan Ackman; SEE ALSO Daily Kos
And the business careers of other prominent members of the administration, including the president and vice president, seem to demonstrate the truth of the adage that it's not what you know, it's who you know. So my advice on the question of executive pay is: don't go there.
Finally, you should stop denying that the Bush tax cuts favor the wealthy. I know that administration number-crunchers have produced calculations purporting to show that the tax cuts were tilted toward the middle class. But using the right measure — the effect of the tax cuts on after-tax income — the bias toward the haves and have-mores is unmistakable.
According to the nonpartisan Tax Policy Center, once the Bush tax cuts are fully phased in, they will raise the after-tax income of middle-income families by 2.3 percent. But they will raise the after-tax income of people like yourself, with incomes of more than $1 million, by 7.3 percent.
And those calculations don't take into account the indirect effects of tax cuts. If the tax cuts are made permanent, they'll eventually have to be offset by large spending cuts. In practical terms, that means cuts where the money is: in Social Security and Medicare benefits. Since middle-income Americans will feel the brunt of these cuts, yet received a relatively small tax break, they'll end up worse off. But the wealthy will be left considerably wealthier.
Of course, my suggestions about how to improve your credibility would force you to stop repeating administration talking points. But you're the secretary of the Treasury. Your job is to make economic policy, not to spout propaganda. Oh, wait.
NEW YORK TIMES
March 24, 2006
Op-Ed Columnist
Letter to the Secretary
By PAUL KRUGMAN
Dear John Snow, secretary of the Treasury:
I'm glad that you've started talking about income inequality, which in recent years has reached levels not seen since before World War II. But if you want to be credible on the subject, you need to make some changes in your approach.
First, you shouldn't claim, as you seemed to earlier this week, that there's anything meaningful about the decline in some measures of inequality between 2000 and 2003. Every economist realizes that, as The Washington Post put it, "much of the decline in inequality during that period reflected the popping of the stock market bubble," which led to a large but temporary fall in the incomes of the richest Americans.
We don't have detailed data for more recent years yet, but the available indicators suggest that after 2003, incomes at the top and the overall level of inequality came roaring back. That surge in inequality explains why, despite your best efforts to talk up the economic numbers, most Americans are unhappy with the Bush economy.
I find it helpful to illustrate what's going on with a hypothetical example: say 10 middle-class guys are sitting in a bar. Then the richest guy leaves, and Bill Gates walks in.
Because the richest guy in the bar is now much richer than before, the average income in the bar soars. But the income of the nine men who aren't Bill Gates hasn't increased, and no amount of repeating "But average income is up!" will convince them that they're better off.
Now think about what happened in 2004 (the figures for 2005 aren't in yet, but it was almost certainly more of the same). The economy grew reasonably fast in 2004, but most families saw little if any improvement in their financial situation.
Instead, a small fraction of the population got much, much richer. For example, Forbes tells us that the compensation of chief executives at the 500 largest corporations rose 54 percent in 2004. In effect, Bill Gates walked into the bar. Average income rose, but only because of rising incomes at the top.
Speaking of executive compensation, Mr. Snow, it hurts your credibility when you say, as you did in a recent interview, that soaring pay for top executives reflects their productivity and that we should "trust the marketplace." Executive pay isn't set in the marketplace; it's set by boards that the executives themselves appoint. And executives' pay often bears little relationship to their performance.
You yourself, as you must know, are often cited as an example. When you were appointed to your present job, Forbes pointed out that the performance of the company you had run, CSX, was "middling at best." Nonetheless, you were "by far the highest-paid chief in the industry."
[SEE: Snow's CSX Was An Also-Ran by Dan Ackman; SEE ALSO Daily Kos
And the business careers of other prominent members of the administration, including the president and vice president, seem to demonstrate the truth of the adage that it's not what you know, it's who you know. So my advice on the question of executive pay is: don't go there.
Finally, you should stop denying that the Bush tax cuts favor the wealthy. I know that administration number-crunchers have produced calculations purporting to show that the tax cuts were tilted toward the middle class. But using the right measure — the effect of the tax cuts on after-tax income — the bias toward the haves and have-mores is unmistakable.
According to the nonpartisan Tax Policy Center, once the Bush tax cuts are fully phased in, they will raise the after-tax income of middle-income families by 2.3 percent. But they will raise the after-tax income of people like yourself, with incomes of more than $1 million, by 7.3 percent.
And those calculations don't take into account the indirect effects of tax cuts. If the tax cuts are made permanent, they'll eventually have to be offset by large spending cuts. In practical terms, that means cuts where the money is: in Social Security and Medicare benefits. Since middle-income Americans will feel the brunt of these cuts, yet received a relatively small tax break, they'll end up worse off. But the wealthy will be left considerably wealthier.
Of course, my suggestions about how to improve your credibility would force you to stop repeating administration talking points. But you're the secretary of the Treasury. Your job is to make economic policy, not to spout propaganda. Oh, wait.
Stung Cabbies Sting Back - Padberg v. McGrath-McKechnie
On March 6, 2006, on the eve of trial, the City of New York and its Taxi and Limousine Commission announced a settlement of a class action lawsuit brought by 500 cabbies concerning the TLC’s so-called “Operation Refusal.”
The cabbies alleged that the New York City Taxi and Limousine Commission, led by Rudolph Giuliani and its chairwoman Diane McGrath-McKechnie, suspended hack licenses unconstitutionally and revoked them illegally during the course of the TLC’s so-called “Operation Refusal,” the sting operation ordered by the mayor and the chairwoman in the wake of a highly publicized complaint by the actor Danny Glover.
The former mayor and the TLC pretended that cabbies whose licenses were suspended were acting out of “bigotry” or racial bias. Evidence unearthed during discovery proved that this claim was a con. The overwhelming majority of alleged service refusals – then and now – are based on destination and economics, not race. TLC officials, of course, were well aware of this fact.
The cabbies alleged that the revocation of their licenses violated city law, and that the policy was enacted illegally and in secret, without public notice or hearings of any kind. They also allege that McGrath-McKechnie pursued her scheme despite clear warnings that what she was doing is illegal.
The penalties were enforced by TLC judges, in the TLC’s own kangaroo court. That court was systemically biased against drivers, the cabbies allege. The judicial bias claim would have been the key issue for the jury, had the trial gone forward.
Of course, with the settlement, the trial will not go forward.
The settlement, though, is pretty good:
--Cabbies whose licenses were suspended will be paid $121.50 per day for the duration of their suspensions. About 500 cabbies were suspended and the average suspension lasted 62 days.
--Cabbies whose licenses were revoked will be paid an additional $26,000 each.
--The TLC will refund all fines paid during the course of Operation Refusal.
--The City will pay the cabbies attorneys’ fees and court costs.
The settlement received some press attention, both locally and nationally via the AP.
Here is a compendium of the coverage:
NEW YORK DAILY NEWS
Hacks pick up 7M in ride-bias battle
The city agreed yesterday to a $7 million settlement with more than 500 cabbies who charged their licenses were improperly suspended for refusing to pick up minority passengers.
A federal judge in Brooklyn had already ruled the policy of confiscating the hack licenses of medallion cab drivers without a hearing was unconstitutional.
After actor Danny Glover publicly complained in November 1999 that he had trouble hailing a cab because he's black, the NYPD launched a crackdown against drivers, using undercover cops trying to hail cabs.
"They threw out the Constitution so they could look good on a hot-button issue," said cabbies' lawyer Daniel Ackman.
Under the settlement, the city will pay drivers $121.50 for each day they were suspended and $26,000 to each driver whose license was revoked while the policy was in effect from November 1999 to April 2002.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Taxi and Limousine Commission Chairman Matthew Daus said in a statement.
He noted that recent tests found a 97% driver-compliance rate in pickups.
John Marzulli
NEW YORK POST
'STUNG' HACKS WIN
By JEREMY OLSHAN
After letting the meters run for six years, the city yesterday agreed to settle a federal class-action lawsuit and pay 100 cabdrivers whose hack licenses were revoked during an aggressive sting operation.
The drivers were targeted as part of Operation Refusal, in which undercover agents posed as minority passengers trying to hail a cab.
Each driver will get $26,000 as part of the settlement.
The lawsuit accused the city's Taxi and Limousine Commission of removing their licenses without a hearing.
But that punishment is normally reserved only for a third offense. Another 500 drivers, whose licenses were suspended an average of 62 days, will receive $121.50 per day, making the total settlement worth $6.3 million.
Beginning in 1999, after actor Danny Glover complained about bias among cabbies, the penalty enforcement was changed to include instant revocation.
"A fair hearing was impossible, as the judges were hired, fired, and paid for by the TLC," said Daniel Ackman, attorney for the drivers.
Operation Refusal is still in effect, although the penalties are now fines for the first two offenses.
NEW YORK SUN
City To Settle Lawsuit Brought by Cab Drivers Caught in TLC Stings
By JOSEPH GOLDSTEIN - Staff Reporter of the Sun
March 7, 2006
The city will pay more than $6 million to settle a lawsuit brought by about 500 cab drivers who claim they were punished unfairly amid allegations they avoided black customers and refused fares.
Former and current cab drivers are represented in the class action lawsuit brought in U.S. District Court in Brooklyn yesterday. The settlement, which has yet to be filed with the court, comes six years after the city's Taxi and Limousine Commission expanded existing sting operations to identify drivers who were avoiding minority customers.
The legal complaint does not dispute that it is often difficult for black men to get a cab. It contends that the TLC courts stripped cab drivers of their constitutional rights.
"I would say there are some racial biases among cab drivers like there are among all people," the attorney representing the drivers, Daniel Ackman, told The New York Sun. "But they never proved anybody had a racial bias. They never attempted to prove it."
The cab drivers had their taxis impounded and their licenses pulled after they allegedly ignored black investigators posing as customers or refused to drive to specific destinations, the complaint accompanying the lawsuit states.
The power exercised by investigators who seized cabs and took licenses exceeded the penalties permitted by New York City law, the complaint states. And the courts of the Taxi and Limousine Commission were stacked against cab drivers, according to the complaint. The TLC legal department held sway over TLC-paid judges who ruled against cab drivers protesting their suspension, the complaint states.
Mr. Ackman estimates that only 15% of his clients were prosecuted in TLC courts after allegedly passing by a black investigator hailing a cab for a white investigator doing the same. The rest were prosecuted for other fare refusals.
The ongoing Taxi and Limousine Commission sting operation, called Operation Refusal, was expanded following a complaint by actor Danny Glover. Mr. Glover, who is black, filed a complaint in 1999 with the TLC, claiming he had difficulty in finding a ride in New York City. Mayor Giuliani, who is named as a defendant in the suit, lauded the operation, which promised at the time to cut down on the reputed racial biases of drivers.
A spokesman for the TLC, Allan Fromberg, declined to comment on the lawsuit except to convey a brief statement by current TLC Commissioner, Matthew Daus.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago, and has no effect upon the TLC's successful refusal enforcement efforts which currently have 97% driver compliance," the statement said.
Neither Mr. Fromberg nor a spokeswoman for the New York City Law Department, Kate Ahlers, would discuss the terms or amount of the settlement.
Mr. Ackman said the agreement calls for about 100 drivers who had their licenses revoked to receive payments of $26,000. Those former drivers and another 400 would also receive $121.50 for each day their license was suspended before it was either revoked or returned. Mr. Ackman said the average suspension was 62 days.
The 26-year career of the lead plaintiff, John Padberg, ended quickly, over the course of three blocks in Queens. After noticing a woman hailing him from a full three blocks away, he passed a black man he hadn't noticed but who was signaling for a fare, Mr. Padberg told The New York Sun. After the woman identified herself as an investigator, he was forced to return home without his cab or license. He is now a limousine driver.
--------------------------------------------------------------------------------
THE NEW YORK TIMES
March 8, 2006
New York City to Pay Settlement to Taxi Drivers Accused of Bias
By THOMAS J. LUECK
CORRECTION APPENDED
A long legal fight over a city crackdown on cabdrivers, prompted by a black actor's 1999 complaint of racial bias, has ended in an agreement to pay about 500 cabbies whose licenses were suspended or revoked, lawyers on both sides of the case said yesterday.
Under the agreement, termed a "settlement in principle" by Paula Van Meter, a lawyer for the city, about $7 million from the city will go to the cabbies, who were penalized without having been granted hearings for showing bias toward passengers, refusing to take them to certain locations or other violations.
The cabbies were penalized by the Taxi and Limousine Commission from late 1999 through early 2002 under Operation Refusal, an enforcement tactic begun after the actor Danny Glover complained that five taxis had refused to stop for him because he is black. The accusation attracted national attention.
Operation Refusal remains in force, but a federal judge in Brooklyn ruled a year ago that the city had violated due process by suspending cabbies' hack licenses without first granting hearings. The settlement was reached on Monday in a class-action lawsuit filed on behalf of drivers who claimed financial damages.
Dan Ackman, a lawyer for the cabbies, said former Mayor Rudolph W. Giuliani; the former Taxi and Limousine Commission chairwoman, Diane McGrath-McKechnie; and the commission's current chairman, Matthew W. Daus, were named as defendants, and were expected to testify at a trial that had been scheduled to begin next Monday.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Mr. Daus said, adding that agreement had no effect upon the taxi commission's current enforcement efforts. The agency continues to use about 200 staff officers, posing as civilians, who hail taxis and check for illegal refusals.
Under the settlement, Mr. Ackman said, about 500 drivers will receive $121.50 apiece for each day their licenses were suspended. About 100 of those drivers, whose licenses were revoked after the suspensions, will each receive an additional $26,000, and can apply for new licenses, he said.
Correction: March 10, 2006, Friday An article on Wednesday about a settlement between New York City and about 500 cabdrivers whose licenses were suspended or revoked during a crackdown on racial bias and other violations misstated the timing of a judge's ruling that the city had violated the cabbies' rights. It was in 2002, not a year ago.
Associated Press
NYC to Settle Suit Filed by Cab Drivers
By ELIZABETH LeSURE , 03.06.2006, 11:52 PM
The AP Story was picked up by The LA Times, The Washington Post, The Guardian, Newsday, The Philadelphia Daily News, The Houston Chronicle, The Seattle Post Intelligencer and other papers.
Hundreds of taxi drivers who were accused of discrimination and lost their driving privileges settled a class-action lawsuit against the city, their lawyer said Monday.
The cabbies' licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race, gender or other factors.
The city's effort began in November 1999 after "Lethal Weapon" actor Danny Glover filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.
In the lawsuit, filed in 2000, attorney Dan Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the commission's taxi court was biased and unconstitutional.
A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving the taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.
The city's law department said it had "reached a settlement in principal" and was working to finalize the agreement. Ackman said the settlement must be approved by a federal judge.
Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, Ackman said. The suspensions averaged 62 days, he said.
About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.
The commission also will refund fines it collected from the drivers, he said.
Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the commission said.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts," the commission's chairman, Matthew Daus, said in a statement.
1010 WINS Radio
Posted: Monday, 06 March 2006 10:27PM
NYC to Settle Cab Driver Discrimination Suit
NEW YORK (1010 WINS) -- The city has agreed to settle a class action lawsuit filed on behalf of hundreds of taxi drivers whose licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race.
The cabbies were penalized as part of an anti-discrimination effort that began in November 1999 after "Lethal Weapon'' actor Danny Glover, who is black, filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.
Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, said their lawyer, Dan Ackman. The suspensions averaged 62 days, he said.
About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.
The TLC also will refund fines it collected from the drivers, he said.
In the lawsuit, filed in 2000, Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the TLC's taxi court was biased and unconstitutional.
A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.
The drivers were suspended as part of an enhanced version of a program called Operation Refusal. During the crackdown, the city automatically suspended the licenses of drivers who were accused of discrimination before they appeared in taxi court to answer the charges.
The crackdown was aimed at drivers who did not pick up passengers based on their race or gender or refused to go to certain locations, usually in poor minority neighborhoods or areas outside Manhattan.
The lead plaintiff in the case was John Padberg, who was driving down Queens Boulevard when he was hailed by two undercover inspectors, a white woman and a black man. Padberg picked up the white woman, and when she asked him why he hadn't stopped for the black man he told her she had hailed him first, Ackman said.
About 86 percent of those who were suspended during the crackdown pleaded guilty or were convicted of the allegations against them, he said. Padberg was convicted.
Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the TLC said.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts, which currently have 97 percent driver compliance,'' TLC chairman Matthew Daus said in a statement.
The city's law department said it had "reached a settlement in principal'' and was working to resolve the outstanding legal details and finalize the agreement. Ackman said the settlement must be approved by a judge in federal court in Brooklyn.
Glover has appeared in several movies, including all four "Lethal Weapons,'' ``Grand Canyon'' and ``The Color Purple.''
WNYC Radio
NYC Settles With Taxi Drivers
WNYC Newsroom
NEW YORK, NY, March 07, 2006 — New York City has agreed to settle a class action lawsuit filed for hundreds of taxi drivers whose licenses were suspended or revoked in a crackdown on cabbies who wouldn't pick up passengers because of their race.
The drivers lost their jobs as part of an anti-discrimination effort that began in 19-99 after actor Danny Glover filed a complaint with the Taxi & Limousine Commission because several taxis refused to stop for him.
The drivers' attorney argued that the sweep didn't allow drivers to answer charges made against them, denying them due process of the law. Under the settlement, drivers will be paid damages and those whose licenses were revoked will be allowed to apply for new ones.
The cabbies alleged that the New York City Taxi and Limousine Commission, led by Rudolph Giuliani and its chairwoman Diane McGrath-McKechnie, suspended hack licenses unconstitutionally and revoked them illegally during the course of the TLC’s so-called “Operation Refusal,” the sting operation ordered by the mayor and the chairwoman in the wake of a highly publicized complaint by the actor Danny Glover.
The former mayor and the TLC pretended that cabbies whose licenses were suspended were acting out of “bigotry” or racial bias. Evidence unearthed during discovery proved that this claim was a con. The overwhelming majority of alleged service refusals – then and now – are based on destination and economics, not race. TLC officials, of course, were well aware of this fact.
The cabbies alleged that the revocation of their licenses violated city law, and that the policy was enacted illegally and in secret, without public notice or hearings of any kind. They also allege that McGrath-McKechnie pursued her scheme despite clear warnings that what she was doing is illegal.
The penalties were enforced by TLC judges, in the TLC’s own kangaroo court. That court was systemically biased against drivers, the cabbies allege. The judicial bias claim would have been the key issue for the jury, had the trial gone forward.
Of course, with the settlement, the trial will not go forward.
The settlement, though, is pretty good:
--Cabbies whose licenses were suspended will be paid $121.50 per day for the duration of their suspensions. About 500 cabbies were suspended and the average suspension lasted 62 days.
--Cabbies whose licenses were revoked will be paid an additional $26,000 each.
--The TLC will refund all fines paid during the course of Operation Refusal.
--The City will pay the cabbies attorneys’ fees and court costs.
The settlement received some press attention, both locally and nationally via the AP.
Here is a compendium of the coverage:
NEW YORK DAILY NEWS
Hacks pick up 7M in ride-bias battle
The city agreed yesterday to a $7 million settlement with more than 500 cabbies who charged their licenses were improperly suspended for refusing to pick up minority passengers.
A federal judge in Brooklyn had already ruled the policy of confiscating the hack licenses of medallion cab drivers without a hearing was unconstitutional.
After actor Danny Glover publicly complained in November 1999 that he had trouble hailing a cab because he's black, the NYPD launched a crackdown against drivers, using undercover cops trying to hail cabs.
"They threw out the Constitution so they could look good on a hot-button issue," said cabbies' lawyer Daniel Ackman.
Under the settlement, the city will pay drivers $121.50 for each day they were suspended and $26,000 to each driver whose license was revoked while the policy was in effect from November 1999 to April 2002.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Taxi and Limousine Commission Chairman Matthew Daus said in a statement.
He noted that recent tests found a 97% driver-compliance rate in pickups.
John Marzulli
NEW YORK POST
'STUNG' HACKS WIN
By JEREMY OLSHAN
After letting the meters run for six years, the city yesterday agreed to settle a federal class-action lawsuit and pay 100 cabdrivers whose hack licenses were revoked during an aggressive sting operation.
The drivers were targeted as part of Operation Refusal, in which undercover agents posed as minority passengers trying to hail a cab.
Each driver will get $26,000 as part of the settlement.
The lawsuit accused the city's Taxi and Limousine Commission of removing their licenses without a hearing.
But that punishment is normally reserved only for a third offense. Another 500 drivers, whose licenses were suspended an average of 62 days, will receive $121.50 per day, making the total settlement worth $6.3 million.
Beginning in 1999, after actor Danny Glover complained about bias among cabbies, the penalty enforcement was changed to include instant revocation.
"A fair hearing was impossible, as the judges were hired, fired, and paid for by the TLC," said Daniel Ackman, attorney for the drivers.
Operation Refusal is still in effect, although the penalties are now fines for the first two offenses.
NEW YORK SUN
City To Settle Lawsuit Brought by Cab Drivers Caught in TLC Stings
By JOSEPH GOLDSTEIN - Staff Reporter of the Sun
March 7, 2006
The city will pay more than $6 million to settle a lawsuit brought by about 500 cab drivers who claim they were punished unfairly amid allegations they avoided black customers and refused fares.
Former and current cab drivers are represented in the class action lawsuit brought in U.S. District Court in Brooklyn yesterday. The settlement, which has yet to be filed with the court, comes six years after the city's Taxi and Limousine Commission expanded existing sting operations to identify drivers who were avoiding minority customers.
The legal complaint does not dispute that it is often difficult for black men to get a cab. It contends that the TLC courts stripped cab drivers of their constitutional rights.
"I would say there are some racial biases among cab drivers like there are among all people," the attorney representing the drivers, Daniel Ackman, told The New York Sun. "But they never proved anybody had a racial bias. They never attempted to prove it."
The cab drivers had their taxis impounded and their licenses pulled after they allegedly ignored black investigators posing as customers or refused to drive to specific destinations, the complaint accompanying the lawsuit states.
The power exercised by investigators who seized cabs and took licenses exceeded the penalties permitted by New York City law, the complaint states. And the courts of the Taxi and Limousine Commission were stacked against cab drivers, according to the complaint. The TLC legal department held sway over TLC-paid judges who ruled against cab drivers protesting their suspension, the complaint states.
Mr. Ackman estimates that only 15% of his clients were prosecuted in TLC courts after allegedly passing by a black investigator hailing a cab for a white investigator doing the same. The rest were prosecuted for other fare refusals.
The ongoing Taxi and Limousine Commission sting operation, called Operation Refusal, was expanded following a complaint by actor Danny Glover. Mr. Glover, who is black, filed a complaint in 1999 with the TLC, claiming he had difficulty in finding a ride in New York City. Mayor Giuliani, who is named as a defendant in the suit, lauded the operation, which promised at the time to cut down on the reputed racial biases of drivers.
A spokesman for the TLC, Allan Fromberg, declined to comment on the lawsuit except to convey a brief statement by current TLC Commissioner, Matthew Daus.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago, and has no effect upon the TLC's successful refusal enforcement efforts which currently have 97% driver compliance," the statement said.
Neither Mr. Fromberg nor a spokeswoman for the New York City Law Department, Kate Ahlers, would discuss the terms or amount of the settlement.
Mr. Ackman said the agreement calls for about 100 drivers who had their licenses revoked to receive payments of $26,000. Those former drivers and another 400 would also receive $121.50 for each day their license was suspended before it was either revoked or returned. Mr. Ackman said the average suspension was 62 days.
The 26-year career of the lead plaintiff, John Padberg, ended quickly, over the course of three blocks in Queens. After noticing a woman hailing him from a full three blocks away, he passed a black man he hadn't noticed but who was signaling for a fare, Mr. Padberg told The New York Sun. After the woman identified herself as an investigator, he was forced to return home without his cab or license. He is now a limousine driver.
--------------------------------------------------------------------------------
THE NEW YORK TIMES
March 8, 2006
New York City to Pay Settlement to Taxi Drivers Accused of Bias
By THOMAS J. LUECK
CORRECTION APPENDED
A long legal fight over a city crackdown on cabdrivers, prompted by a black actor's 1999 complaint of racial bias, has ended in an agreement to pay about 500 cabbies whose licenses were suspended or revoked, lawyers on both sides of the case said yesterday.
Under the agreement, termed a "settlement in principle" by Paula Van Meter, a lawyer for the city, about $7 million from the city will go to the cabbies, who were penalized without having been granted hearings for showing bias toward passengers, refusing to take them to certain locations or other violations.
The cabbies were penalized by the Taxi and Limousine Commission from late 1999 through early 2002 under Operation Refusal, an enforcement tactic begun after the actor Danny Glover complained that five taxis had refused to stop for him because he is black. The accusation attracted national attention.
Operation Refusal remains in force, but a federal judge in Brooklyn ruled a year ago that the city had violated due process by suspending cabbies' hack licenses without first granting hearings. The settlement was reached on Monday in a class-action lawsuit filed on behalf of drivers who claimed financial damages.
Dan Ackman, a lawyer for the cabbies, said former Mayor Rudolph W. Giuliani; the former Taxi and Limousine Commission chairwoman, Diane McGrath-McKechnie; and the commission's current chairman, Matthew W. Daus, were named as defendants, and were expected to testify at a trial that had been scheduled to begin next Monday.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Mr. Daus said, adding that agreement had no effect upon the taxi commission's current enforcement efforts. The agency continues to use about 200 staff officers, posing as civilians, who hail taxis and check for illegal refusals.
Under the settlement, Mr. Ackman said, about 500 drivers will receive $121.50 apiece for each day their licenses were suspended. About 100 of those drivers, whose licenses were revoked after the suspensions, will each receive an additional $26,000, and can apply for new licenses, he said.
Correction: March 10, 2006, Friday An article on Wednesday about a settlement between New York City and about 500 cabdrivers whose licenses were suspended or revoked during a crackdown on racial bias and other violations misstated the timing of a judge's ruling that the city had violated the cabbies' rights. It was in 2002, not a year ago.
Associated Press
NYC to Settle Suit Filed by Cab Drivers
By ELIZABETH LeSURE , 03.06.2006, 11:52 PM
The AP Story was picked up by The LA Times, The Washington Post, The Guardian, Newsday, The Philadelphia Daily News, The Houston Chronicle, The Seattle Post Intelligencer and other papers.
Hundreds of taxi drivers who were accused of discrimination and lost their driving privileges settled a class-action lawsuit against the city, their lawyer said Monday.
The cabbies' licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race, gender or other factors.
The city's effort began in November 1999 after "Lethal Weapon" actor Danny Glover filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.
In the lawsuit, filed in 2000, attorney Dan Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the commission's taxi court was biased and unconstitutional.
A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving the taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.
The city's law department said it had "reached a settlement in principal" and was working to finalize the agreement. Ackman said the settlement must be approved by a federal judge.
Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, Ackman said. The suspensions averaged 62 days, he said.
About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.
The commission also will refund fines it collected from the drivers, he said.
Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the commission said.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts," the commission's chairman, Matthew Daus, said in a statement.
1010 WINS Radio
Posted: Monday, 06 March 2006 10:27PM
NYC to Settle Cab Driver Discrimination Suit
NEW YORK (1010 WINS) -- The city has agreed to settle a class action lawsuit filed on behalf of hundreds of taxi drivers whose licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race.
The cabbies were penalized as part of an anti-discrimination effort that began in November 1999 after "Lethal Weapon'' actor Danny Glover, who is black, filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.
Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, said their lawyer, Dan Ackman. The suspensions averaged 62 days, he said.
About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.
The TLC also will refund fines it collected from the drivers, he said.
In the lawsuit, filed in 2000, Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the TLC's taxi court was biased and unconstitutional.
A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.
The drivers were suspended as part of an enhanced version of a program called Operation Refusal. During the crackdown, the city automatically suspended the licenses of drivers who were accused of discrimination before they appeared in taxi court to answer the charges.
The crackdown was aimed at drivers who did not pick up passengers based on their race or gender or refused to go to certain locations, usually in poor minority neighborhoods or areas outside Manhattan.
The lead plaintiff in the case was John Padberg, who was driving down Queens Boulevard when he was hailed by two undercover inspectors, a white woman and a black man. Padberg picked up the white woman, and when she asked him why he hadn't stopped for the black man he told her she had hailed him first, Ackman said.
About 86 percent of those who were suspended during the crackdown pleaded guilty or were convicted of the allegations against them, he said. Padberg was convicted.
Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the TLC said.
"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts, which currently have 97 percent driver compliance,'' TLC chairman Matthew Daus said in a statement.
The city's law department said it had "reached a settlement in principal'' and was working to resolve the outstanding legal details and finalize the agreement. Ackman said the settlement must be approved by a judge in federal court in Brooklyn.
Glover has appeared in several movies, including all four "Lethal Weapons,'' ``Grand Canyon'' and ``The Color Purple.''
WNYC Radio
NYC Settles With Taxi Drivers
WNYC Newsroom
NEW YORK, NY, March 07, 2006 — New York City has agreed to settle a class action lawsuit filed for hundreds of taxi drivers whose licenses were suspended or revoked in a crackdown on cabbies who wouldn't pick up passengers because of their race.
The drivers lost their jobs as part of an anti-discrimination effort that began in 19-99 after actor Danny Glover filed a complaint with the Taxi & Limousine Commission because several taxis refused to stop for him.
The drivers' attorney argued that the sweep didn't allow drivers to answer charges made against them, denying them due process of the law. Under the settlement, drivers will be paid damages and those whose licenses were revoked will be allowed to apply for new ones.
Tuesday, February 14, 2006
From The New York Times - OP ED - 2/12/06
February 12, 2006
Op-Ed Contributor
The Price of Justice
By DAN ACKMAN
OVER the past several decades, the scope and clout of the city's administrative law courts have swelled to the point where there are now at least 500 administrative law judges scattered among a dozen agencies.
While the judges hear very different kinds of cases, many of them face a conflict of interest: they are supposed to make independent judgments about the agencies that pay them. Last year, a ballot measure to bring order to these courts was approved by city voters. It's a good start, but more needs to be done.
The administrative courts generally operate under the radar for two reasons: they can't send people to prison and most of the individual cases before them, from tax assessment appeals to parking summonses and health code citations, involve relatively modest fines.
But the stakes add up. According to a 2003 report by the Charter Revision Commission, which proposed the ballot measure, the courts levy more than $600 million in fines and fees a year. More important, the administrative courts have the power to suspend and revoke licenses, which means they can close businesses and wreck livelihoods. For workers and businesses licensed by the city — street vendors, taxi drivers, restaurants, grocery stores and dry cleaners among others — the courts wield tremendous power.
As a journalist and lawyer who has written about and litigated against the Taxi and Limousine Commission, I can attest to the power of its administrative judges.
I can also state without reservation that the taxi drivers I have represented have little confidence in the fairness of the commission's court. This is in large measure because its judges are hired by the commission, and can be fired or have their hours reduced at any time. In short, their paychecks depend on the commission.
The Taxi and Limousine Commission is not alone. The judges at the Department of Health and Mental Hygiene, for instance, also work directly for the agency.
Other administrative courts reside within larger agencies. The Environmental Control Board, for example, is part of the Department of Environmental Protection; the Parking Violations Bureau is overseen by the Department of Finance.
Regardless of the agency, the city's administrative judges have an incentive to serve their own interests, and not those of the public, for one glaring reason: they have no job security. They are not civil servants, have no term in office and no contractual rights. With few exceptions, they work on a part-time or per diem basis. When a judge's income depends on the goodwill of the prosecuting agency, it's too much to expect that he or she will hold the balance of justice clear and true.
The ballot measure that passed in November called on the city to impose its first "codes of professional conduct" on administrative judges. It's a good idea. But the measure gave little guidance as to what the code might include. And it said nothing about the way the judges are hired and how they are paid.
Spurred perhaps by the initiative, Mayor Michael Bloomberg has said he intends to appoint an administrative justice coordinator to work with him, the agency heads and the city's chief administrative law judge to review the entire administrative court system. This effort could lead to genuine reform. The chief administrative law judge, as it happens, works for the Office of Administrative Trials and Hearings, a distinct agency. Judges in this court are hired for five-year terms, serve full time and hear cases only from outside their agency.
Because its judges serve for fixed terms and are not part of the city's regulatory apparatus, this court can rightly boast of its status as independent. As the court says on its Web site, the independence "of the decision maker from the prosecuting agency invites a higher level of confidence in the fairness of the adjudicative process."
This is an example that the city's other administrative courts, prompted by the mayor and renewed public concern, would do well to follow.
Dan Ackman is a lawyer.
Op-Ed Contributor
The Price of Justice
By DAN ACKMAN
OVER the past several decades, the scope and clout of the city's administrative law courts have swelled to the point where there are now at least 500 administrative law judges scattered among a dozen agencies.
While the judges hear very different kinds of cases, many of them face a conflict of interest: they are supposed to make independent judgments about the agencies that pay them. Last year, a ballot measure to bring order to these courts was approved by city voters. It's a good start, but more needs to be done.
The administrative courts generally operate under the radar for two reasons: they can't send people to prison and most of the individual cases before them, from tax assessment appeals to parking summonses and health code citations, involve relatively modest fines.
But the stakes add up. According to a 2003 report by the Charter Revision Commission, which proposed the ballot measure, the courts levy more than $600 million in fines and fees a year. More important, the administrative courts have the power to suspend and revoke licenses, which means they can close businesses and wreck livelihoods. For workers and businesses licensed by the city — street vendors, taxi drivers, restaurants, grocery stores and dry cleaners among others — the courts wield tremendous power.
As a journalist and lawyer who has written about and litigated against the Taxi and Limousine Commission, I can attest to the power of its administrative judges.
I can also state without reservation that the taxi drivers I have represented have little confidence in the fairness of the commission's court. This is in large measure because its judges are hired by the commission, and can be fired or have their hours reduced at any time. In short, their paychecks depend on the commission.
The Taxi and Limousine Commission is not alone. The judges at the Department of Health and Mental Hygiene, for instance, also work directly for the agency.
Other administrative courts reside within larger agencies. The Environmental Control Board, for example, is part of the Department of Environmental Protection; the Parking Violations Bureau is overseen by the Department of Finance.
Regardless of the agency, the city's administrative judges have an incentive to serve their own interests, and not those of the public, for one glaring reason: they have no job security. They are not civil servants, have no term in office and no contractual rights. With few exceptions, they work on a part-time or per diem basis. When a judge's income depends on the goodwill of the prosecuting agency, it's too much to expect that he or she will hold the balance of justice clear and true.
The ballot measure that passed in November called on the city to impose its first "codes of professional conduct" on administrative judges. It's a good idea. But the measure gave little guidance as to what the code might include. And it said nothing about the way the judges are hired and how they are paid.
Spurred perhaps by the initiative, Mayor Michael Bloomberg has said he intends to appoint an administrative justice coordinator to work with him, the agency heads and the city's chief administrative law judge to review the entire administrative court system. This effort could lead to genuine reform. The chief administrative law judge, as it happens, works for the Office of Administrative Trials and Hearings, a distinct agency. Judges in this court are hired for five-year terms, serve full time and hear cases only from outside their agency.
Because its judges serve for fixed terms and are not part of the city's regulatory apparatus, this court can rightly boast of its status as independent. As the court says on its Web site, the independence "of the decision maker from the prosecuting agency invites a higher level of confidence in the fairness of the adjudicative process."
This is an example that the city's other administrative courts, prompted by the mayor and renewed public concern, would do well to follow.
Dan Ackman is a lawyer.
Saturday, January 07, 2006
My First WSJ.com Law Column
This is my inaugural Wall Street Journal Online law column:
State Courts Seek Wiggle Room Around Decision in Kelo
By DAN ACKMAN
THE WALL STREET JOURNAL ONLINE
January 6, 2006
Rearview Mirror, a new feature on the Online Journal's law page1, looks at how judicial decisions from several months ago are playing out in courts and for businesses. If you have an idea for a Rearview Mirror feature, please email us at lawblog@wsj.com2, and please put Rearview Mirror in the subject line.
Last June, when the U.S. Supreme Court decided Kelo v. New London, ruling that local governments could exercise their power of eminent domain even if the land taken ended up in private hands, it boded well for cities and developers. Soon after, though, perceptions of the ruling changed.
For starters, legislation to restrict local government powers was proposed in dozens of states, and was enacted in several. The legislative "backlash" led some municipalities to pull back on controversial projects. Perhaps more surprisingly, now a few state courts seem to be taking a skeptical look at the ruling, trying to figure out whether it meshes with state constitutions, statutes, and procedural rules.
Kelo involved a development project in New London, Conn., in which the city sought to use the power of eminent domain to force the sale of 15 modest homes. The land on which the homes sat was to be used to build a research facility for Pfizer Inc., the pharmaceutical company, as well as a nearby conference center, marina, and shopping mall, much of which would wind up in private hands. The Court, in a 5-4 decision, found the city's argument -- that the sale of the homes would aid economic development -- persuasive enough to satisfy the Fifth Amendment's "public use" requirement.
The case was one of the most publicized of the 2004-2005 term, and many pundits rose in protest. They rallied behind the charge leveled by Justice Sandra Day O'Connor, in a dissenting opinion, that the Court had abandoned a "long-held, basic limitation on government power" and mused that "all private property is now vulnerable to being taken and transferred to another private owner"—albeit for "just compensation," which the Constitution also requires.
Since the Kelo ruling, 38 states have proposed legislation designed to restrict the power of state and local governments to exercise rights of eminent domain for economic development purposes, according to Dana Berliner, a lawyer with the Institute for Justice, a not-for-profit law firm that represented the homeowners in Kelo. Alabama, Delaware and Texas have enacted laws already. The Michigan legislature voted on an amendment to the state constitution, subject to popular approval in an election in November. "The focus has shifted to the states and that's where it should shift," says David Parkhurst, a lawyer for the National League of Cities, which generally backs the rights of local governments.
In one sense, this is nothing new. In his majority opinion, Justice John Paul Stevens noted that some states had long established stricter eminent domain guidelines, either as a matter of state constitutional law or statute.
While the legislation churns, there have been several court decisions that observers say suggest an unease over the broad power allowed states and cities by the Supreme Court.
On Dec. 16, the Mercer County, N.J. Superior Court rejected an attempt by the City of Trenton to expand a redevelopment area to include an area of what the city planners called "substandard, unsafe, unsanitary, dilapidated" buildings. The county court didn't refer to Kelo and it didn't reject the thrust of the Kelo decision: that the state could use its authority of eminent domain in this manner. But the court decided that the city had failed to present "substantial credible evidence" that the property fell within New Jersey's statutory definition of an area in need of redevelopment: where buildings are sub-standard or unsafe or that the land is increasingly under-utilized.
Timothy Duggan, a partner with Stark & Stark, the New Jersey firm that represented the property owners, says the Kelo case loomed in the background. "State courts now understand their role in protecting property rights," Mr. Duggan says, adding that, given the unsettled statutory definition of blight, New Jersey courts in particular will be less likely to "rubber stamp" the conclusions of local planners.
New Jersey, the nation's most densely populated state with an active development community, has long been "a hotbed of private condemnations," according an Institute for Justice Report. Before the Trenton case, but in the wake of Kelo, two separate New Jersey state courts also rejected cities' plans to take property, citing each city's failure to present "substantial evidence" that the property needed redevelopment.
Several other state courts have reached similar conclusions, also without necessarily citing Kelo. In September, an Arizona trial court found that the use of eminent domain to transfer land to a retail shopping complex failed to satisfy the state's definition of "public use." Other judges have applied Kelo reluctantly. A Missouri Circuit Court judge, ruling for the city of St. Louis in an eminent domain case, compared the Kelo decision to the denial of reinforcements to the Alamo.
And more state court battles loom. One big eminent domain showdown will come in Ohio when that state's highest court hears arguments in the case of Norwood, Ohio, a Cincinnati suburb, where the town fathers want to take middle-class homes to make way for a store and office complex. A few local residents refused to sell to the developer so the city exercised its eminent domain authority, designating the area "blighted." The property owners lost in the lower court, a decision stayed by the Ohio Supreme Court pending appeal. In front of the Court, the residents' lawyers will argue that the "blighted" designation is a fraud and will ask the Court to decide whether Ohio law allows such a taking.
Dan Ackman is a lawyer and Senior Writer at the Institute for Judicial Studies, a think tank that examines the judiciary.
State Courts Seek Wiggle Room Around Decision in Kelo
By DAN ACKMAN
THE WALL STREET JOURNAL ONLINE
January 6, 2006
Rearview Mirror, a new feature on the Online Journal's law page1, looks at how judicial decisions from several months ago are playing out in courts and for businesses. If you have an idea for a Rearview Mirror feature, please email us at lawblog@wsj.com2, and please put Rearview Mirror in the subject line.
Last June, when the U.S. Supreme Court decided Kelo v. New London, ruling that local governments could exercise their power of eminent domain even if the land taken ended up in private hands, it boded well for cities and developers. Soon after, though, perceptions of the ruling changed.
For starters, legislation to restrict local government powers was proposed in dozens of states, and was enacted in several. The legislative "backlash" led some municipalities to pull back on controversial projects. Perhaps more surprisingly, now a few state courts seem to be taking a skeptical look at the ruling, trying to figure out whether it meshes with state constitutions, statutes, and procedural rules.
Kelo involved a development project in New London, Conn., in which the city sought to use the power of eminent domain to force the sale of 15 modest homes. The land on which the homes sat was to be used to build a research facility for Pfizer Inc., the pharmaceutical company, as well as a nearby conference center, marina, and shopping mall, much of which would wind up in private hands. The Court, in a 5-4 decision, found the city's argument -- that the sale of the homes would aid economic development -- persuasive enough to satisfy the Fifth Amendment's "public use" requirement.
The case was one of the most publicized of the 2004-2005 term, and many pundits rose in protest. They rallied behind the charge leveled by Justice Sandra Day O'Connor, in a dissenting opinion, that the Court had abandoned a "long-held, basic limitation on government power" and mused that "all private property is now vulnerable to being taken and transferred to another private owner"—albeit for "just compensation," which the Constitution also requires.
Since the Kelo ruling, 38 states have proposed legislation designed to restrict the power of state and local governments to exercise rights of eminent domain for economic development purposes, according to Dana Berliner, a lawyer with the Institute for Justice, a not-for-profit law firm that represented the homeowners in Kelo. Alabama, Delaware and Texas have enacted laws already. The Michigan legislature voted on an amendment to the state constitution, subject to popular approval in an election in November. "The focus has shifted to the states and that's where it should shift," says David Parkhurst, a lawyer for the National League of Cities, which generally backs the rights of local governments.
In one sense, this is nothing new. In his majority opinion, Justice John Paul Stevens noted that some states had long established stricter eminent domain guidelines, either as a matter of state constitutional law or statute.
While the legislation churns, there have been several court decisions that observers say suggest an unease over the broad power allowed states and cities by the Supreme Court.
On Dec. 16, the Mercer County, N.J. Superior Court rejected an attempt by the City of Trenton to expand a redevelopment area to include an area of what the city planners called "substandard, unsafe, unsanitary, dilapidated" buildings. The county court didn't refer to Kelo and it didn't reject the thrust of the Kelo decision: that the state could use its authority of eminent domain in this manner. But the court decided that the city had failed to present "substantial credible evidence" that the property fell within New Jersey's statutory definition of an area in need of redevelopment: where buildings are sub-standard or unsafe or that the land is increasingly under-utilized.
Timothy Duggan, a partner with Stark & Stark, the New Jersey firm that represented the property owners, says the Kelo case loomed in the background. "State courts now understand their role in protecting property rights," Mr. Duggan says, adding that, given the unsettled statutory definition of blight, New Jersey courts in particular will be less likely to "rubber stamp" the conclusions of local planners.
New Jersey, the nation's most densely populated state with an active development community, has long been "a hotbed of private condemnations," according an Institute for Justice Report. Before the Trenton case, but in the wake of Kelo, two separate New Jersey state courts also rejected cities' plans to take property, citing each city's failure to present "substantial evidence" that the property needed redevelopment.
Several other state courts have reached similar conclusions, also without necessarily citing Kelo. In September, an Arizona trial court found that the use of eminent domain to transfer land to a retail shopping complex failed to satisfy the state's definition of "public use." Other judges have applied Kelo reluctantly. A Missouri Circuit Court judge, ruling for the city of St. Louis in an eminent domain case, compared the Kelo decision to the denial of reinforcements to the Alamo.
And more state court battles loom. One big eminent domain showdown will come in Ohio when that state's highest court hears arguments in the case of Norwood, Ohio, a Cincinnati suburb, where the town fathers want to take middle-class homes to make way for a store and office complex. A few local residents refused to sell to the developer so the city exercised its eminent domain authority, designating the area "blighted." The property owners lost in the lower court, a decision stayed by the Ohio Supreme Court pending appeal. In front of the Court, the residents' lawyers will argue that the "blighted" designation is a fraud and will ask the Court to decide whether Ohio law allows such a taking.
Dan Ackman is a lawyer and Senior Writer at the Institute for Judicial Studies, a think tank that examines the judiciary.
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