Grim Toll: A Case Commentary on Kaur v. New York State Urban Development Corp.

Written by Nathaniel Chiaravalloti

Imagine yourself in the position of being an independent small business owner.  Your family worked long hours with minuscule take home pay and no healthcare benefits.  It has taken years of hard work to build your business, and you are finally beginning to reap its benefits.  Now imagine a wealthy private entity has ambitions to buy all the real estate in your neighborhood, including your business.  It is working with the government agency charged with urban development oversight to do so. You do not want to sell your business, and the entity is unwilling to pay you what you feel the property is worth.

This is the story of Gurnham Singh and Parminder Kaur, who owned a family-run gas station for over 25 years in the Manhattanville section of northern Manhattan. In 2010, Kaur v. New York State Urban Dev. Corp., the New York Court of Appeals allowed the government to condemn the gas station property so that Columbia University could expand its campus.  The dealing between Columbia University, the Empire State Development Corporation (ESDC), and the New York City Economic Development Corporation (EDC) (together, the regulators) led the family, after years of failed negotiations, to sue the ESDC to save their property from being taken.

Traditionally, if a private entity wanted to purchase private property, the property owner always had the right to refuse the sale; this is a basic tenant of property law.  The government, the ultimate granter of property rights, is granted a constitutional exception to this general rule through the doctrine of eminent domain, allowing it to take private property for a public use once it provides the land owner with just compensation.

In the last thirty years, however, traditional government takings for public works projects have been popularly replaced by public/private partnerships.  Typically, state or local governments make a determination that a public/private project would benefit the public, and then contract with private developers or investors to complete the project.  These partnerships allow for civic improvements that can be funded without taxpayer dollars, but they create a greater risk of conflicts of interest and favoritism between the government and private business.

As public/private partnerships have become more common, it had initially been unclear whether the government could condemn private property and transfer it to another private entity in accordance with a public/private development arrangement.  The answer to this difficult constitutional question was, in some part, resolved by the Supreme Court in the landmark Kelo v. City of New London decision in 2005.  The Court, while remaining deferential to state and local governments decision making in eminent domain cases, reiterated and insisted that any such taking be made for a public use.  The city of New London, Connecticut, had suffered from hard financial times through the latter half of the 20th Century. To improve the economic prospects of the community, the local government worked with private enterprise to purchase and redevelop waterfront property into a commercial center.  With the promise of new jobs from a forthcoming pharmaceutical facility, the City wanted to create a “river walk” shopping and dining destination that would remake New London into a more dynamic city for its citizens. The Supreme Court narrowly affirmed the City’s taking and reselling to a private developer, but in Justice Kennedy’s decisive 5th vote and accompanying concurring opinion, he warned against unfair dealings, corruption, and favoritism that might arise from public/private takings.

With the Supreme Court’s affirmation of public/private takings, such ventures became more common.  The Kaur case centered on the taking of private properties for the purpose of expanding Columbia University’s campus.  The chief conflict in the case was the appearance of favoritism and preferential treatment by the government towards Columbia University, the very concerns articulated by Justice Kennedy in his concurrence in Kelo.  Columbia University worked very closely with the New York regulatory agencies, including hiring the same consulting firm as was employed by the regulators.

Columbia University sought to justify the takings on the ground that an area is “blighted.”  Columbia University began purchasing land in the neighborhood in 2001, after which time, the University applied little to no maintenance to those properties.  While that act in and of itself is fine, in this context it created significant questions about whether Columbia University was acting in bad faith. Specifically, by allowing the neighborhood to become blighted through years of willful neglect, it cast a pall over the proceedings when Columbia University’s consultant (who happened to also be under contract with the City) determined the entire area to be “blighted” during the proceedings many years later.  Among other things, tactics like willful neglect and sharing consultants, and their ultimate vindication in the courts, set forth a blueprint of how interested private entities might in the future use similar tactics to obtain land they seek.

The purpose of the upcoming note is twofold.  The first is to highlight the purpose of eminent domain doctrine, specifically how takings should always be related to a public use or good.  While Columbia University satisfied that element by expanding its educational facilities, providing space which will be accessible to the public, and continuing to serve the greater New York City community, the value of its contribution may be outweighed by its methods of obtaining the land.

The second is to articulate a functional judicial test that incorporates Justice Kennedy’s articulated concerns expressed in his concurrence in Kelo.  Because Justice Kennedy did not articulate a judicial test by which to apply his concurrence, it has been an easy trapping for courts, notably the New York State Court of Appeals, to either misinterpret or simply disregard the call of his opinion.

The test would allow courts to scrutinize the process when public/private partnerships are accused of unfair dealings, corruption, favoritism, or bribery.  On a spectrum, bribery, where an individual or corporation simply paid a public official to facilitate a taking, would be the most obvious and odious infraction, and optimally courts would prevent a taking in such cases.  Moving further down the spectrum, if a court found bad faith by the purchasing enterprise or by the government agency, the court would have discretion to prevent the taking. Examples might include direct conflicts of interest, deliberate denigration of the area, or unreasonably low offers to purchase the land from its owner.  Still further, questions of unfairness or favoritism would weigh against a taking, though a court might still allow the taking if it serves the public interest. The process would allow private property owners to challenge administrative rulings against them, if they are able to demonstrate any of the above bad acts. Courts would then be allowed to review the record de novo to determine if there has been, in fact, bad acts, and determine the appropriate sanction (if any) against the developer.

The judicial framework would create a strong incentive for private enterprise to act in good faith when involved in such dealings, if it was widely known that acting in bad faith could undermine the validity of an entire project.  Further, it would disincentivize bad faith actions such as thinly veiled corruption if parties knew that such behavior could lead to a court granting injunctive relief against them.

The Kaur decision was unfortunate for the family involved, but affords a teachable moment in eminent domain doctrine. By highlighting appearance of bad faith by the pertinent actors, and proposing a workable judicial framework, persons disadvantaged by public/private takings may challenge them and be better protected by courts who could scrutinize such dealings to the level prescribed by Justice Kennedy’s concurrence in Kelo.

Building Off the Misfired Bullet Known as the Deferred Action for Childhood Arrivals

Written by Tom Pfeifers

“They’re Americans in their heart, in their minds, in every single way but one — on paper.”  – President Barack Obama

A Chance at the American Dream

The “American Dream” is a phrase that is often used to describe a desire for prosperity and success. Many Americans take for granted the things that come with citizenship, like healthcare, an American identity, and a job, that bring prosperity and success. These things do not come easy for children who were brought here illegally by their parents through no act of their own. These illegal immigrants here in the United States, also known as childhood arrivals, and are in pursuit of their “American Dream” as well as their dream to be an American. These childhood arrivals dream and desire to call the United States home. At the same time they want access to healthcare, a work permit, and an identification card.

Many of these childhood arrivals are shocked to find out they are not citizens. It might be difficult to imagine not being an American citizen after growing up in Boston; cheering for the Celtics; playing the saxophone; shopping; and graduating from high school. Unfortunately, this is the reality for Oumou Troure and about 1.2 million other children who were taken from their homes and brought to America in search of a better life. Many of these children, still here, are left without hope because they do not have a clear path toward citizenship. For years these individuals, many just like Oumou, have patiently waited for their chance to fulfill the “American Dream.”

What About the DREAM Act?

Those with a desire to become United States citizens needed a vehicle to get there. These dreamers believed that the Development, Relief and Education for Alien Minors Act (DREAM Act) was the chance to fulfill their “American Dream.” (http://www.dhs.gov/deferred-action-childhood-arrivals). The DREAM Act, although amended several times since first introduced in 2001, states that children between 16 and 31 years who (a) were brought here by a parent as a child, (b) have been in the United States for at least 5 years, (c) have not been convicted of a felony, or significant misdemeanor, and d) are willing to go to college or serve in the military are able to become American citizens. This proposed legislation said to the dreamers that with hard work they would be able to earn their citizenship and a place in the fabric of America. However, since 2001 these dreamers have watched as the DREAM Act continuously failed to become law.

Deferred Action for Childhood Arrivals (DACA)

The DACA is an executive order that was issued on June 15, 2012. Right from the start, President Obama acknowledged that this DACA executive order was not a permanent resolution

DACA Eligibility Requirements

The individual must:

1. Be under the age of 31 at the time the order was issued,

2. Have come to the United States before his or her 16th birthday;

3. Have continuously resided in the United States since June 15, 2007;

4. Have been present in the United States on June 15, 2012, and the date of filing the application;

5. Be currently in school or have graduated from a U.S. high school or received a GED or served in the military; and

6. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors and do not otherwise pose a threat to national security or public safety

but rather a temporary action in hopes of making a more efficient and equitable immigration policy. An executive order is exactly what it sounds like, it is an order given by the president to officers of his branch (executive), telling them to alter a policy; stop certain activity; change management practices; take an action; or accept a delegation of authority. The DACA is nothing more than a two-year deportation deferment, which offers no chance of permanent citizenship. In order to be eligible for this deferment, applicants must meet certain criteria that are similar to those of the DREAM Act.

Imagine those hopeful dreamers hearing the news that President Obama issued an executive order called the Deferred Action for Childhood Arrivals (DACA), which grants a two year deportation deferral and work permit to those applicants who meet the necessary requirements. Many questions and concerns undoubtedly ran through their minds after hearing the news:

1.  “What is an executive order? Is it a law?”

2. “This is only a two year deferment, why am I going to risk future deportation not only for myself but for members of my family as well?”

3. “I’m not eligible for healthcare benefits, but I can still receive a work visa and an identification card, so there’s a start.”

4. “I don’t know how I’m going to provide residency documentation, I’ve lived an undocumented life in the United States.”

Many dreamers probably found out that an executive order is a loose form of a law that can be overturned at any time. They also probably found out that states like Arizona are denying identification cards to eligible applicants. Additionally, they probably laughed when they wondered if their employer would admit to employing illegal immigrants in order to help them meet the residency requirement.

Why We Need a Road Toward Permanent Citizenship

Implementation of the DACA executive order, which is loosely based on the Dream Act, is counterproductive unless further action is taken because it fails to provide a permanent solution for the

“Among the 1.26 million prospective beneficiaries who are ages 15 and over, 58 percent (close to 740,000) were engaged in the labor force.”

dreamers here in the United States. The DACA executive order creates several problems that discourage individuals from applying. The first problem is there is now more uncertainty than predictability. This is because the order only grants a two-year deferment.  Successful applicants are only given a work permit and an identification card after a costly, lengthy application process. The work visa will allow those successful applicants to ply their skills in the workforce and in turn, pay taxes on their income. However, why should applicants apply for the temporary work visa when the executive order isn’t permanent and they are already working without paying taxes? We can assume from these numbers (58% were engaged in the labor force) that they were either already paying taxes, which means there is no upside to handing over their information for a two-year deferral, or they are working “under the table” not paying taxes, still with no upside to handing over their information to the government.

The second problem is there is no access to healthcare benefits for successful applicants. This is unjust because on the one hand, you are telling these successful applicants that they will have a chance to become part of the workforce and in turn will pay taxes on their income, but at the same time they will not be eligible for some of the public benefits that come along with their hard work. The right to healthcare for United States citizens should be given to those in pursuit of the “American Dream” because every citizen has the right to life, liberty, and the pursuit of happiness. Although successful applicants will be deemed “lawfully present” in the United States, they will remain blocked from benefits and subsidies, including the Affordable Care Act (Obamacare).

The third problem is the risk for future deportation. The thought of handing over everything to the government is nerve racking, because the order can be overturned at any time. Regardless of whether an applicant is successful or not, there is still fear over what will happen with the information they provide to the government. Access to personal information is a major concern that has created skepticism, particularly since this is the first executive order of its kind.

The final problem is the order does not have a provision that protects applicants’ employers when they verify employment, thus leading to little hope in establishing a paper trail. The burden of proof rests upon the dreamers to put together a paper trail establishing their continued residency for the last five years. The government issued a list of items that may be used to establish this residency. However the one that seems most likely to assist the residency requirement is employment records (pay stubs and W-2 forms). A major obstacle in establishing a paper trail is the unwillingness of employers to verify applicant’s employment. It is understandable why employers would be unwilling to admit, without government immunity, that they currently employ or employed workers who were in the country illegally.

The Solution

In order to solve this problem, the 2010 DREAM Act should be enacted with an added healthcare benefits provision, as well as a provision safeguarding the employers of the potential applicants. This is necessary to provide certainty and assist eligible applicants in establishing their residency. The DACA executive order must be built upon in order to provide certainty for the dreamers here in the United States. The DACA executive order is a positive step in an area of legislation that has been at a standstill since 2001, but it cannot be the final one. The DREAM Act proposed in 2010, along with provisions securing health care and employer protection, must be enacted to create a path toward permanent citizenship. As mentioned, these added provisions are necessary because the 2010 DREAM Act, if passed today, does not protect these childhood arrivals. The reality of the situation in the United States is that there are millions of immigrants here illegally. By providing a path toward permanent citizenship for those who were brought here through no acts of their own, we can boost the economy instead of continuing to allow these individuals to be a burden. The window to enact this concrete legislation is open right now, and the proposed legislation should be passed just like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed following executive orders. Think of dreamers like Oumou Troure, who are looking to make a positive impact in the country they have called home for as long as they can remember.