Churlish Obstinacy and Judicial Independence

Many lessons about the ways of the world were on offer to a young Associated Press writer in the early 1980s who, upon finishing the overnight shift at the wire service’s headquarters at 50 Rockefeller Plaza in New York, could then toss back a beer and watch the harsh morning light stream through the windows of Hurley’s Tavern at the corner of Sixth Avenue and 50th Street.  One of them had to do with, of all things, eminent domain.

Alas, both Hurley’s and the AP have since left Rockefeller Center.  But in the 1980s, Hurley’s was still in the little four-story building for which the Rockefellers were forced to carve a corner out of the 70-story RCA Building when the complex was built in the 1930s.  Mr. Hurley had simply refused to sell to Mr. Rockefeller.

As for the relevant legal principle, it was perhaps best stated by Justice Kent of the Maine Supreme Judicial Court, in an 1872 opinion:

As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate. The constitution protects him and his possessions, when held on, even to the extent of churlish obstinacy.

Bangor & Piscataquis R.R. Co. v. McComb, 60 Me. 290, 291 (1872) (gender bias in original).

The AP reporter eventually migrated to New England and left fulltime journalism for the law.  And, not simply by virtue of having served a clerkship at the Maine Supreme Judicial Court, that former Hurley’s patron is having a tough time squaring the notion of “churlish obstinacy” with the U.S. Supreme Court’s June 23 decision in Kelo v. City of New London.

Over the dissenting votes of Chief Justice Rehnquist and justices O’Connor, Scalia and Thomas, the Court decided that the Connecticut city could use its eminent domain power to take private homes and sell them to private developers to put up an office complex and a parking lot. One of the owners had lived in her home since the moment of her birth, in 1918.

Justices O’Connor and Thomas were right when they stated in dissent that Kelo puts the private property of the poor and the powerless at risk.  But that is no excuse for the efforts by right-wing activist Logan Darrow Clements to condemn the Weare home of Justice David Souter to build a hotel as fitting revenge for having voted with the majority.

We used to think up pranks like that, over beer at Hurley’s, musing on the previous news cycle after work.  But such a proposal cannot and should not withstand the harsh morning light.

For one thing, that Yankee churlish obstinacy is still the law in New Hampshire, thanks to the gloss the NH Supreme Court has given the takings clause of the state constitution.  What else to make of our Supreme Court’s declaration that when “the true benefits of [a] project will accrue only to its private sponsors and participants” the “public use” requirement of the state constitution is violated?  See Merrill v. City of Manchester, 127 N.H. 234, 237 (1985) (enjoining the taking of open land for use by private industrial park).

For another, we can leap to the conclusion that it was at the insistence of the sensible Justice Souter that Justice Stephens’ majority opinion in Kelo distinguishes a taking based on an “integrated development plan” from the kind of “one-to-one transfer of property” it would take to transform someone’s homestead into a hotel.  Implicit in Kelo is the understanding that economics is not just about monetary value but involves the creation and allocation of welfare (as in “promote the general welfare” from the Declaration of Independence).  In other words, a taking could confer a monetary benefit only on the ultimate owner of the land and promote the general welfare in addition, giving it a firm grounding in economics if not constitutional law.

The question then becomes what constitutes welfare.  Is it a skyscraper without a divot in the form of a holdout saloon at one corner?  A revitalized industrial waterfront for a city hit by a base closure, as New London was?  A hotel on some country road in Weare?  The answer is arguably “no” in each instance, but it is a policy choice that legislators are at least qualified to make on a grassroots, community-specific basis.

Kelo is probably bad law, replacing the churlish obstinacy the Framers tried to protect in the Takings Clause with a kind of economic Darwinism.  But it is not New Hampshire law, as even cursory research would have revealed to Mr. Clements.  His proposed hotel should therefore be taken for what it is:  a public suggestion to cause a Supreme Court justice to suffer personal revenge as the result of a legal decision he has made.

It might seem funny over a beer at Hurley’s.  But at a time when judicial independence is under siege – two members of a federal judge’s family murdered in Illinois, US senators publicly threatening to rein in the judiciary – it is Mr. Clements, rather than Justice Souter, who deserves condemnation.

Donald M. Kreis is an attorney with the Public Utilities Commission and was an Associated Press newsman from 1981 to 1986. The views expressed here, of course, are his own and do not represent the position of any state agency.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer