Vol.28, No.3, Summer1996

The Urban Lawyer,
Vol. 28, No. 3, Summer 1996

Publication Date: September 4, 1996

Gold, Martin E., The Privatization of Prisons, 28 Urb. Law. 359 (Summer 1996).

Privatizing once publicly owned entities has become a global trend. Conservatives prefer it because it limits the government's role in society. Others believe privatization creates more efficiency and is more conducive to societal goals. However, privatization is not always positive. Many foreign countries have experienced negative repercussions from privatization causing many to want privatized entities returned to governmental control. In some former eastern bloc nations communists are returning to office because of their disdain for the effects of privatization. In the United States, where governments are more experienced with privatization, privatization of prisons is becoming more popular.

Over a century ago, privatization of prisons was very unpopular because many privatized prisons were corrupt adapting to the huge needs for prison labor. However, prisons today exist in a very different environment. There is much more regulation and oversight of prisons, many privatized prisons have great reputations, and there is little demand for prison labor.

Some opponents of prison privatization, such as the author at one time and the American Civil Liberties Union (ACLU), believe that it violates fundamental constitutional principles because it puts private citizens in charge of others' incarceration a fundamental governmental role. However, as the author points out, the government is not relinquishing control of its duty and courts allow the government to contract out fundamental governmental roles. More importantly, the exact structure of the privatization contracts themselves should set forth the proper governmental role and protect against the fears of private control of incarcerated persons. The government is becoming increasingly more experienced in privatization contracts. Guidelines should be followed for effective prison privatization.

First, there must be a relatively large quantity of competing firms of high quality. Competition and mechanisms employed are essential especially in ensuring contracting firms comply with contractual mandates and government prerogatives. Independent consulting and periodic reports of incidents and all important data is necessary. Prison accreditation programs are effective and institute many of these important requirements

Secondly, a system analysis should be implemented to compare private and public operations. This may prove the most useful especially when contract renewals come to term. Contract renewal is a powerful motivational force and must be strictly adhered to. Of course, firms must be truly evaluated before their contracts are renewed. There are many examples of prison privatization where there are increases in efficiency not only in operational costs and decreases in personnel, but improved quality of prisons and design.

With these factors articulated, the author, who once feared prison privatization, concedes that it may be very beneficial to all parties involved. However, he notes that a great potential danger exists that "requires watching" the reliance by the government on one or two firms for its prison contracts. (Ty S. Twibell)

Cholewa, Matthew J. & Helen L. Edmonds, F ederalism and Land Use After Dolan: Has the Supreme Court Taken Takings from the States?, 28 Urb. Law. 401 (Summer 1996).

Although the Takings Clause of the Fifth Amendment of the Constitution provides that "nor shall private property be taken for public use, without just compensation," states have much power in affecting how this clause is put into effect. They are able to "regulate the use of property, [] condition development permits on the dedication of property, the payment of impact fees, or construction of offsite improvements, and [] define what is and what is not property." However, the Supreme Court has sought to strictly enforce the Takings Clause to the benefit of proponents of property rights but in the face of traditional state roles in intergovernmental relations.

The Supreme Court has several principles it sets forth in interpreting Takings Clause issues as applied in land-use regulation. For example, if a state or locality's regulation goes too far in decreasing or affecting property's value, it may be considered a compensable taking. However, zoning ordinances are given a strong presumption of constitutional validity and states still decide what the term "property" means to a very substantial degree. Other principles include the idea that property owners must have the right to exclude others and that is such an important right, it cannot be taken away to any substantial degree without just compensation. Zoning ordinances applied to particular property can effect a taking if it "does not substantially advance legitimate state interests."

The Supreme Court's decision in Dolan v. City of Tigard could profoundly affect takings applications because it placed the burden upon the state in dedication requirements (where property owners are required to "dedicate" part of his property for public use such as a sidewalk) to make individualized determinations that the dedications are "related both in nature and extent to the impact of the proposed development." Further, the government must prove whether the standard has been met. Hence, regulatory actions such as these are subject to a higher level of scrutiny or "intermediate scrutiny" than they once were.

Although this is an example of how the Court is exploring new ways to keep states and municipalities in check "in regards to the Takings Clause and is a victory for property rights advocates," the Dolan decision displays a "mistrust" for state and local decisions. Many commentators feared that it could severely limit states and localities from effectively regulating and administering "comprehensive and sane land use regulation" in today's technical and fast paced "ever-changing" environment.

Fortunately, state courts, contrary to the horrible fears of legal commentators, have greatly limited the application of Dolan. Although a couple of decisions apply Dolan more strictly in rent control issues because they bear more relation to occupation or physical invasion of the owner's premises. However, for the most part, Dolan is limited.

Courts give state regulations more deference if some sort of physical occupation is not alleged. If such is the case, courts simply determine whether the regulations go too far.

Some Justice of the current Supreme Court may like the federal government to go farther in regulating state law definitions of property and have intermediate scrutiny applicable generally to private property restrictions. However, such a trend would be detrimental to state and local governments. "Most local governments have neither the resources nor the expertise to make individualized determinations of impact for every property that will be affected by a new land use regulation."

The lines between the Courts' protection of individual freedoms and the boundaries of state and local power are "difficult to draw." For the time being, the Court has left significant room for lower courts to apply takings jurisprudence that conforms with historical and local views on property regulation. (Ty S. Twibell)

Brookshire, James E., A Balanced Partnership: The Matrix of Shared Governance, 28 Urb. Law. 447 (Summer 1996).

Many complications have arisen since the time when land-use planners and authorities could mainly focus on local questions. Now, concerns such as "historic preservation, public customary' use of dry sand beaches, open space, and critter protection" add to the questions involved. Further, "planning concerns [have] transcended local jurisdictions, crossed state lines, and sometimes triggered national interests." The federal government has had a play in huge overall environmental concerns such as hazardous waste control. States have mimicked many of the federal government's provisions. With all these important issues at play, local and federal planners encounter many difficulties making it important for consensus to be reached taking into account all the common elements of the forces involved and "mutual respect" for competing goals.

This article specifically analyzes one aspect of consensus on the common understanding of both the authority to act and its limitations. The focus is primarily on the constitutional perspective of the Supreme Court. The Court has deliberately left room in varying levels for strict accommodations for state and federal power. For example, when grants are given to encourage states to conform to desired federal goals, the federal government can require the states to jump through certain hoops to be awarded grant money while states maintain the power to regulate certain aspects of, say, the generation and disposal of low-level wastes according to their own dictates and to elect preemption under federal standards. However, they must be allowed in certain instances to opt out the of the grants altogether. To only allow states only one of two alternatives may be a form of coercion.

The Court has also been careful to let state law prevail whenever possible if it is at all cohabitable with similar federal regulation if the federal regulation does not intend to exclusively regulate or the state law does not contravene the federal law to an appreciable level thus, state law may not contradict the Supremacy Clause. Two discussed federal statutes have built in state roles.

All considered, recent Supreme Court decisions respect the balancing of common values applied in new contexts. As cross-jurisdictional challenges become increasingly complicated, "principled flexibility remains the cornerstone of a balanced partnership." (Ty S. Twibell)

Osenbaugh, Elizabeth M. & Nancy K. Stoner, County Government Movement, 497 Urb. Law. 497 (Summer 1996).

Counties have become increasingly aggressive in asserting what they feel is their supremacy in controlling public lands. Over the past five years "the increasingly vocal and active county supremacy movement" has established itself on the basis of both legal theory and pure force. However, two recent court decisions have posed a deadly hurdle for such counties' views on public lands. Further, the federal government stands at a superior and more legally rational position to effectively combat any illegal actions counties may resort to by mainly administrative resolution, or if such fails, criminal and civil enforcement.

First, illegal action is a symptom of how emotional counties have become and it is symbolic of the seriousness of their position on this issue. For example, proponents have organized acts of civil disobedience. In one case, a county commissioner "personally bulldozed a path in the national forest." "After [the] commissioner [] strayed from the right-of-way, a Forest Service Special Agent [] stood directly in the path of the bulldozer and displayed a sign ordering the commissioner to stop." In another county, "500 people built a fence around a water collection system, which a judge had ordered a rancher to remove from the Humboldt National Forest." Despite severe actions such as these, they are not very common. Major gubernatorial and county organizations call for peaceful resolution of conflicts between counties and the federal government. One in particular mandates "a zero level of tolerance for violence directed against federal employees." Therefore, the main remaining route for counties to assert their notions of supremacy is by legal maneuvering.

The article explores two main cases which decided two main theories. The legal battles there have resulted from counties passing ordinances limiting federal government control of federal public lands. In one case, the legal theory relied on was the "Legal Footing Doctrine." This doctrine originated during the time of the original thirteen states and gives states rights on land after it has passed through federal hands. The counties asserted that the doctrine only refers to land that existed at that time, not the land in question now. Thus, today's counties "are on a different footing than the original thirteen states." The court found against the county because it applies to the same type of land today and the Supremacy Clause prevents counties from controlling what the federal government already controls.

The Property Clause is another area where states have failed because it invalidates state or local laws that are "hostile to federal interests in public lands." The result of courts interpreting county assertions of supremacy can be understood by the Supreme Court's reasoning on this type of matter when it stated that any "different rule would place the public domain of the United States at the mercy of state legislation." The author concludes by emphasizing the need for county and federal cooperation rather than confrontation, for everyone's benefit. (Ty S. Twibell)

Buchsbaum, Peter A., James E. Brookshire & Roger Platt, The Federal Government and Land Use: The Not So Quiet Evolution Continues, 28 Urb. Law. 517 (Summer 1996).

During recent years, the quiet topic of federal land-use regulation has been brought to the forefront. An aggressive bill passed in the House in 1995 provides for a 20% diminution threshold for property owners to obtain Takings compensation if a wetland or endangered species regulation causes a 20% diminution of value in even a section of one's property, compensation to the owner is required. This article analyzes some recent developments in federal land use controls in three ways with three different authors.

The first author, Deputy Counsel for the National Realty Committee (NRC), which represents real estate owners, builders, lenders, and advisors in Washington discusses congressional developments affecting federal land use controls. He finds that the 104th Congress is systematically reappraising the Nation's environmental and land use laws including risk assessment and private property rights. Bipartisan resolution on some of the issues seems unlikely and is a "major roadblock" to addressing even modest areas of consensus in respect to major federal land-sue laws. To minimize irrelevant congressional deliberations, a careful attempt must be made to consider both property rights and the impact of habitat conversation on those rights.

The second author, Deputy Chief of the General Litigation Section of Environmental and Natural Resources Division of the United States Department of Justice, "updates the policy debate over the wetlands program and specifically over the Clinton Administration's 1993 paper which was discussed in last year's subcommittee report. He feels the debate in federal land use regulation is a healthy one--environmental goals are important as is respect for the landowner. Therefore, a need exists for balancing and flexibility.

The third and final author comments on the "celebrated Endangered Species Act case, Sweet Home Chapter of Communities for a Great Oregon v. Babbitt." This case has constituted the Supreme Court's most important land-use ruling during its 1994-95 term. It sustained federal jurisdiction on the regulation wildlife protection but lessened the scope of that authority. The Court mandated that the government must prove in each prosecution whether the violations of habitat requirements were "clearly, directly and substantially related to a governmental end, namely the prevention of harm to existing populations of wildlife." However, the Court sheds some glimmer of hope for agency deference because agencies are still allowed to define certain terms. For example, they may define what may or may not constitute "harm." The author concludes with a final sentence describing this seeming minimal deference "So the government is not dead yet." (Ty S. Twibell)

With Cases, Statutes, and Recent Developments covering: Government Operations

Seminole Tribe of Florida v. Florida, 116 S. Ct. 114 (1996).
Meghrig v. KFC Western, Inc., 116 S. Ct. 1251 (1996).
Greater New Orleans Broadcasting Ass'n v. United States, 69 F.3d 1296 (5th Cir. 1995).
Equal Employment Opportunity Comm'n v. Commonwealth of Mass., 77 F.3d 572 (1st Cir. 1996).
Longshore v. United States, 77 F.3d 440 (1996).
Association of Pub.-Safety Communications Officials-Int'l v. Federal Communications Comm'n, 76 F.3d 395 (D.C. Cir. 1996).

Environment

Hughey v. JMS Dev. Corp., 78 F.3d 1523 (11th Cir. 1996).

And Books of Note reviewing:

Decision: How the Supreme Court Decides Cases by Bernard Schwartz (Oxford University Press 1996).
The Little Platoons: Sub-Local Governments in Modern History, by George W. Liebmann (Praeger Publishers).

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