Paula A. Franzese on Eminent Domain and Goldstein v. Pataki--The Possibility of Heightened Judicial Scrutiny Relating to "Pretext" Public Use Challenge

Paula A. Franzese on Eminent Domain and Goldstein v. Pataki--The Possibility of Heightened Judicial Scrutiny Relating to "Pretext" Public Use Challenge


In Goldstein v. Pataki, 516 F.3d 50, 2008 U.S. App. LEXIS 2241 (2nd Cir. 2008), the City of New York condemned private property to make way for a sporting arena. In an action challenging the condemnation, the Second Circuit noted that a pretext argument could provide a sound basis for a public use challenge under Kelo v. City of New London, 545 U.S. 469 (U.S. 2005). However, the court held that such a claim could not succeed on the facts because a reasonable juror could not conclude that the project’s public purposes were pretextual. In this Emerging Issues Analysis, Paula A. Franzese explains why the Second Circuit's decision in Goldstein is particularly significant in the way it opened the door to the possibility of a new remedy for pretextual declarations of public use. She writes:
 
     The court embraced a posture of judicial restraint, long-applied in this setting, to afford considerable deference to the legislative determination of public use. Thus, under a rational basis standard of review, the governmental plan passed muster. Notably, the court did add that, in appropriate circumstances, a pretext argument could apply and could void the legislative determination of a public use. Striking down the plaintiffs’ pretext argument, the court stated:
 
We reach this conclusion preserving the possibility that a fact pattern may one day arise in which the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of the justification being offered is required. In this area, "hypothetical cases . . . can be confronted if and when they arise.”
 
     Thus, while the opinion reaffirmed the chain of logic that extended from the U.S. Supreme Court’s seminal pronouncements in Berman v. Parker, 348 U.S. 26 (1954) to Kelo v. City of New London, the court opened the door to the possibility of a constitutional remedy, in appropriate circumstances, for pretextual declarations of public use. The court also preserved plaintiffs’ right to file their complaint in state court, despite the filing in federal court. The impact of such right on the normative values served by federalism remains unclear, as plaintiffs have not received an independent resolution of their case based upon a state court’s determinations.
 
     . . . .
 
     Interestingly, the Goldstein court alluded to the possibility that heightened judicial scrutiny might attach if and when warranted by the particular facts and circumstances before the court. While the record before it did not compel application of such heightened review, the court preserved the possibility that a fact pattern may one day arise in which the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of justification being offered is required. The contours and dimensions of such circumstances remain to be seen.
 
(citations omitted)