Government Can Take Your Home if Someone Important Wants It

He who dies with the most debt wins.

Duh. Deficit eliminated five years ago. Deficit now at ????

Bush has yet to veto a single spending bill or to pare down the porkbarreling because that is not any part of the reason he is there. If it was, he would have.

Republicans have had control of both houses and the presidency during this period of spending going out the roof and the operational size of government increasing (unless you wish to consider that the Pentagon is a private corporation, which isn't far off from the reality).

Somebody once said that democracy is doomed as soon as politicians discovered they could use the people's money to buy the people's vote.

Debra_Law wrote:

JWK:

You claim to be an constitutional expert who runs his own "American Constitutional Research Service." Accordingly, if you have the slightest idea of the things you are talking about, you should be able to read my posts and understand them.

Making things up, again, Debra? Please post my words in which I claimed to be a “constitutional expert“.

Do you understand what the word “research” means as in American Constitutional Research Service?

. . . Fact is, our federal government personifies a living creature, a predator: it grows, it multiplies, it protects itself, it feeds on those it can defeat, and does everything to expand and flourish, even at the expense of enslaving a nation’s entire population with a national debt which exceeds $50 Trillion. Indeed, the servant has become the master over those who have created a servant, and the new servant pays tribute to a gangster government which ignores our most basic law…our constitutions, state and federal.

John William Kurowski, Founder,

American Constitutional Research Service

“He has erected a multitude of new offices , and sent hither swarms of officers, to harass our people, and eat out their substance” ___Declaration of Independence

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

Fact is the SCOTUS has become America’s public enemy number one and acts in the interests of the rich and powerful.

. . .

JWK
ACRS

Either you're evading or avoiding or you truly don't understand. If it's the former, I'm tired of your hypocritical game. If it's the latter, you truly need to reevaluate the merits of presenting yourself as a constitutional expert.

And where have I presented myself as a “constitutional expert”, Debra? Please post my words to support your claim.

hy·poc·ri·sy ( P ) Pronunciation Key (h-pkr-s)
n. pl. hy·poc·ri·sies

1. The practice of professing beliefs, feelings, or virtues that one does not hold or possess; falseness.

2. An act or instance of such falseness.

* * * *


Here are your professed beliefs:

PROFESSED BELIEF No. 1: The Bill of Rights (including the Takings Clause of the Fifth Amendment) applies to FEDERAL ACTION ONLY. The Takings Clause does not apply to STATE ACTION.

The Bill of Rights contained in our federal Constitution was adopted with the intent of limiting the actions of Congress and the federal government

Here are your professed beliefs:
PROFESSED BELIEF No. 2: The Fourteenth Amendment applies to STATE ACTION, but only when a state seeks to regulate on the basis of race, color, or former condition of slavery.

The Fourteenth Amendment was adopted to prohibit legislation based upon race, color or former condition of slavery and secure the same civil rights [not political rights] as enjoyed by whites. It was intended to carry into effect the first Civil Rights Act and give it the force of constitutional authority.

Here are your professed beliefs:
PROFESSED BELIEF No. 3: Your first two "professed beliefs" are based on your construction of the Constitution which in turn is based on what you believe was the original intent of the framers and ratifiers of the Bill of Rights and Fourteenth Amendment.

My first two beliefs as stated are not based upon my construction of the Constitution, but rather, are based upon, and in accordance with, the most fundamental principle of constitutional law ___ to carry out the intent of the constitution as contemplated by those who framed it and the people who adopted it.

. . . The intents of the workings of the Constitution were open to interpretation from the very beginning. Hamilton stated that clear enough.

From Federalist Paper Number 78.

Quote:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body"

Terri Schiavo: Due Process Denied?

By AMERICAN CONSTITUTIONAL RESEARCH SERVICE

. . .

Bottom line

Terri has been denied due process of law, and there is substantial cause for her case to be reviewed under a 14th amendment appeal as outlined above.

Here are your professed beliefs:
PROFESSED BELIEF No. 4: Whenever the United States Supreme Court applies any of the protections in the Bill of Rights to STATE ACTION (via the Fourteenth Amendment), the Supreme Court is subverting the Constitution, betraying Federalism, committing an act of Tyranny, and becomes a PUBLIC ENEMY.

Whenever the SCOTUS renders a decision contrary to the intent of the Constitution as contemplated by those who framed it and the people who adopted it, the Court is subjugating the will of the people and imposing its own whims and fancies as being the law of the land.

The Louisiana jury-selection system does not disqualify women from jury service, but in operation its conceded systematic impact is that only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service. In this case, no women were on the venire from which the petit jury was drawn. The issue we have, therefore, is whether a jury-selection system which operates to exclude from jury service an identifiable class of citizens constituting 53% [419 U.S. 522, 526] of eligible jurors in the community comports with the Sixth and Fourteenth Amendments.

The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor's claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service. In Peters v. Kiff, 407 U.S. 493 (1972), the defendant, a white man, challenged his conviction on the ground that Negroes had been systematically excluded from jury service. Six Members of the Court agreed that petitioner was entitled to present the issue and concluded that he had been deprived of his federal rights. Taylor, in the case before us, was similarly entitled to tender and have adjudicated the claim that the exclusion of women from jury service deprived him of the kind of factfinder to which he was constitutionally entitled.

Debra_Law wrote:

The Due Process Clause of the Fourteenth Amendment forbids the STATE from depriving persons of life, liberty, or property without due process of law. (Despite JWK's professed beliefs, the Fourteenth Amendment is not limited in its application to STATE regulation on the basis of race, color, or former condition of slavery.)

Seems to me there is a mountain of evidence available to establish the intent of those who framed and ratified the 14th Amendment was to prohibit legislation based upon race, color or former condition of slavery and secure to blacks the same civil rights [not political rights] as enjoyed by whites. It was intended to carry into effect the first Civil Rights Act and give it the force of constitutional authority.

If you have documentation to the contrary, please feel free to post it. But, a research of the House and Senate debates which framed both the 1st Civil Rights Act and the 14th Amendment, which was intended to incorporate the objectives of the Civil Rights Act into the Constitution --- thereby making the first Civil Rights Act constitutional --- does not support the claim that those who framed and ratified it intended it to apply in a very broad manner so as to prohibit state legislation making distinctions beyond race color or previous condition of slavery!

As a matter of fact, there is an abundance of documented evidence the amendment was specifically intended to apply in a very narrow area…to prohibit state authorized discrimination, unequal law, based upon “race, color, or previous condition of slavery…”

As Rep. Shallabarger, a primary supporter of the Fourteenth Amendment stated when it was being debated:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery..It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” Rep. Shallabarger, Congressional Globe, 1866, page 1293

The argument that the wording in the 14th Amendment: (a)“all persons”, (b)"No State shall make any law which shall abridge the privileges or immunities of citizens of United States.", (c) "[N]or deny to any person within its jurisdiction the equal protection of the laws", as being evidence the 14th Amendment was intended to be a universal rule to bar every imaginable type of discrimination, including discrimination based upon sex, physical disabilities, or the current shopping list which is today claimed, falls flat on its face when reading the words of next Amendment to the Constitution! This Amendment (the 15th) prohibits a new type of discrimination which is prima facie evidence the Fourteenth Amendment is not a universal rule to bar every imaginable type of discrimination. The Fifteenth Amendment prohibits discrimination at the voting booth on account of “race, color, or previous condition of servitude.” The intent of the 15th Amendment was unmistakably adopted to enlarge the prohibition on state sponsored discrimination mentioned in the 14th, and extend it to include a new subject matter, but only to the extent that the prohibited discrimination is based upon “race, color or previous condition of servitude”…the People not yet willing to provide the same federally enforceable guarantee to the female gender!

The assertion that the 14th Amendment prohibits a wide variety of discrimination such as discrimination based upon sex, [see Justice Ginsburg’s opinion in the VMI Case], is totally refuted when reading the 19th Amendment which was adopted by the people to specifically forbid yet a new kind of discrimination, discrimination at the voting both based upon sex. Why adopt the 19th Amendment forbidding the right to vote to be “denied or abridged” on account of “SEX.” if the Fourteenth Amendment already prohibited sex discrimination as claimed by Justice Ginsburg?

And finally, why would there have been a proposed so-call “equal rights amendment” offered in the 1980’s for adoption to the Constitution of the United States authorizing Congress to prohibit sex discrimination by appropriate legislation [which was voted down by the People] if the 14th amendment already granted such power to Congress, or such a prohibition already existed in the federal constitution?

The truth is, members of our Supreme Court are subjugating our constitutional system and supplanting their personal whims and fancies as being within the legislative intent of our Constitution as contemplated by those who framed it and the people who adopted it--- such action being a blatant rebellion against our Constitution system and meeting the definition of tyranny!

Here are your professed beliefs:
PROFESSED BELIEF No. 5: FEDERALISM. Unless given explicit authority under the Constitution through one of its delegated, enumerated powers, the federal government is required to keep its nose out of STATE business. In other words, you are a proponent of STATES' RIGHTS.

STATES' RIGHTS? You confuse my being a proponent of the People’s Rights as they have established them by our constitutions, state and federal.

NOW. Given your professed beliefs, the Supreme Court did not have authority to apply the takings clause of the Fifth Amendment to STATE ACTION in the Kelo case via the Fourteenth Amendment.

I would agree with that.

ALSO. Given your professed beliefs, the issue of "public use" with respect to STATE ACTION is a STATES' RIGHTS issue.

No! It’s a state constitutional issue.

ALSO. Given your professed beliefs, the people in the State of Connecticut cannot rely on the takings clause of the Fifth Amendment to provide federal constitutional protection against STATE takings cases; they cannot rely on the federal government via the U.S. Supreme Court to grant them protection they are not entitled to have in our system of federalism, and the people of the State of Connecticut must look to their own democratic political processes of their own state to limit their own state's power of eminent domain.

Exactly so!

ALSO. Given your professed beliefs, you should be thrilled that the United States Supreme Court ruled in favor of the STATE because, AGAIN, according to your professed beliefs, the federal courts did not have jurisdiction to hear this particular grievance and the people's remedy, if any, lies with their own state government.

No Debra. I am not thrilled “…that the United States Supreme Court ruled in favor of the STATE “. The truth is, the Court ruled in favor of state public servants, agreeing they have authority to take the property of one and sell it to another for a profit making venture, and it did so without jurisdiction in the matter. The Court unduly and without constitutional authority, lent its position of authority in the case and sided with one of the litigants in the case.

HOWEVER, DESPITE YOUR PROFESSED BELIEFS, you criticize the Supreme Court for its failure (in you eyes) to properly apply the FEDERAL "public use" doctrine to protect people against the harmful actions of their STATE government.

No Debra. You are making things up again.

I did not “criticize the Supreme Court for its failure . . . to properly apply the FEDERAL "public use" doctrine to protect people against the harmful actions of their STATE government.” I criticized the Court for interfering in a case in which there was no federal question and using it position of authority to improperly side with one of the litigants in the case.

If you think certain members of the SCOTUS are not Americas most formidable domestic enemies and assisting in the subjugation of our laws, and that a number of its members are not using their office of public trust to advance the fortunes of the rich and powerful, I suggest you study the dissenting opinion: KELO et al. v. CITY OF NEW LONDON et al.


Justice O'Connor sums up the tyranny of the majority in the following words:

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

Also see the dissenting opinion of Justice Thomas:
Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. Ante, at 1-2, 8-13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.


JWK
ACRS

The servant has become the master over those who created a servant.

If you think the SCOTUS is not Americas most formidable domestic enemy, and that a number of its members are not using their office of public trust to advance the fortunes of the rich and powerful, I suggest you study the following opinion: KELO et al. v. CITY OF NEW LONDON et al.


Justice O'Connor sums up the tyranny of the majority in the following words:


Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

Also see the dissenting opinion of Justice Thomas:

Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. Ante, at 1-2, 8-13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.


JWK
ACRS

The servant has become the master over those who created a servant.

CONCLUSION: Your current criticism of the United States Supreme Court demonstrates an instance of FALSENESS in the application of your professed beliefs . . . hence: HYPOCRISY. (See definition of HYPOCRISY posted above.)

You still have offered nothing to substantiate your charge of hypocrisy leveled at me, nor presented any statement made by me showing that I have been inconsistent in my position concerning the 14th Amendment. In essences, you have level an unsubstantiated personal attack upon my character which violates the rules of this forum.

Please post a link to your post in which you set forth my “inconsistent construction and application of the Fourteenth Amendment. “

And just what is my current criticism in the case being discussed in this thread? Please post my words and explain how it is hypocritical and inconsistent with what I have posted in the past as you have charged.

I’m waiting, Debra, for you to support your charges which have called my character into question.


JWK

I need clarification. Are you claiming that you're NOT an expert with respect to the Constitution?

JWK, FOUNDER, ACRS wrote: “The Bill of Rights contained in our federal Constitution was adopted with the intent of limiting the actions of Congress and the federal government”


That was certainly true when the Bill of Rights was ratified in 1791. I posted the Supreme Court decision that set forth the original intent of the Fifth Amendment:

Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Accordingly, in 1833 (do the math: 172 years ago), the fifth amendment was understood as restraining the power of the General (federal)Government; it was not applicable to the States. Therefore, the Supreme Court acknowledged that it did not have subject matter jurisdiction and dismissed this eminent domain case.

BUT . . . the Barron case was decided long before the passage and ratification of the Fourteenth Amendment in 1868. . . .

This post-civil war amendment certainly was intended to benefit newly-freed slaves, but newly-freed slaves and other black persons were not the exclusive beneficiaries of the sweeping protections of the Fourteenth Amendment. The framers and ratifiers did not expressly limit the application of the amendment only to those situations where the state seeks to regulate on the basis of race, color or former condition of slavery.

The irony of your position is the framers and ratifiers never intended that their varied and indeterminate intentions would be controlling. If you take all the framers and ratifiers of the Constitution, the Bill of Rights, and the Fourteenth Amendment and resurrected them from their graves and asked them what their intentions were when they proposed the amendment or ratified the proposed amendment, you would get thousands of different responses. So . . . whose intentions would be controlling? Among all those who would express their intent, how would we pick and choose?

Read the Fourteenth Amendment:

"Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

I have substantiated your inconsistencies over and over and over and over and over again. Uff-dah.

Case closed.

Bottom line

Terri has been denied due process of law, and there is substantial cause for her case to be reviewed under a 14th amendment appeal as outlined above.

Well? I thought you professed a belief that the Fourteenth Amendment did NOT apply to state action unless the state was depriving an individual of life, liberty, or property on the basis of race, color, or former condition of slavery. Now I'm confused . . . the courts in the State of Florida did not order the removal of Terri Schiavo's feeding tube on the basis of her race, color, or former condition of slavery.

Accordingly, if we give the Fourteenth Amendment the narrow construction that you demand in accordance with your professed beliefs concerning the framers' and ratifiers' intent, then you have no gripe against the Florida courts the same as you have no gripe against the Supreme Court in the Kelo case . . . because, according to you, the Fourteenth Amendment does not apply to vest federal courts with authority/jurisdiction to review the constitutionality of state action except in very limited circumstances.

Your application of the Fourteenth Amendment to the Schiavo case demonstrates another act or instance of FALSENESS in your professed beliefs . . . hence, hypocrisy as defined above.

The Connecticut Supreme Court ruled that taking at issue did not violate the state constitution. The United States Supreme Court does not have authority to reverse the Connecticut Supreme Court's interpretation of its own state constitution.

You are critcizing the U.S. Supreme Court for failing to do what it has no right to do under our system of federalism. And, you purport to be an advocate of federalism

Okay . . . then where's your beef with the United States Supreme Court?

Where, in your previous posts and quotations of the dissenting opinions, do you set forth your criticism of "no federal question?"

Where do you state your "no federal question" criticism in any of your previous posts? Are we supposed to be mind-readers? In your previous posts criticizing the Supreme Court, you merely recite the dissent opinions with respect to the Supreme Court's application of the Fifth Amendments' "public use" clause.

Here is another opinion that seems to side with JWK's position on this one. Professor Epstein beautifully lays out the policy of using bad precedents to make bad decisions. It sort of ties in with my signature line: "Thousands of ethicists and bioethicists, as they are called, professionally guide the unthinkable on its passage through the debatable on its way to becoming the justifiable, until it is finally established as the unexceptional."--Neuhaus

Debra_Law wrote:

I need clarification. Are you claiming that you're NOT an expert with respect to the Constitution?

But Debra, it was you who stated that I claimed to be a constitutional expert, when in fact I never made such a claim. Perhaps you ought to look within yourself for your clarification, especially as to your propensity for pretending about what another has stated. Remember, it was you who made the claim about “expert”, not me. But I see you have decided to once again misdirect the subject matter into an inquiry concerning my background, which seems more important to you than supporting your opinions concerning constitutional issues.

The common usage definition of "fraud" and "deceit"

In common usage, fraud and deceit are synonyms for lying or fooling another person as to the correct identity of a person or thing. . . .

The Webster's New World dictionary contains 4 different definitions of the word "fraud," only one of which is the legal definition. (And even that definition is not sufficiently precise or complete, and is more confusing than enlightening, so we omit it from our discussion.) The non-legal definitions emphasize lying:

Deceit; trickery; cheating;

Something said or done to deceive; trick; artifice

A person who deceives or is not what he presents to be; impostor; cheat.

The dictionary lists "deception" as a synonym.

The dictionary defines the related term of "deceit" as follows:

The act of representing as true what is known to be false; deceiving or lying

A dishonest action or trick; fraud or lie

The quality of being deceitful.

"Deceitful," in turn, is identified as being synonymous with "dishonest," and "deceive" is defined as "mak[ing] (a person" believe what is not true; delude; mislead".

The common usage of "fraud" and "deceit" or their verbs essentially means to lie. While lying is an important part of the legal meaning of fraud and deceit, it is not the entire part of the definition, and it is easy to focus only on the lie miss the fact that there are other elements which must be proven or there will be no claim for fraud.

The legal definition of "fraud"

Fraud as a tort (i.e., a civil wrong exclusive of contract which entitles a plaintiff to recover damages) has recently been defined by the California Supreme Court as follows: (a) misrepresentation (false representation, concealment, or nondisclosure);

(b) knowledge of falsity (or "scienter");

(c) intent to defraud, i.e., to induce reliance;

(d) justifiable reliance; and

(e) resulting damage.



Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 964 Cal.Rptr.2d 843, following the definition in Lazar v. Superior Court (1996) 12 Cal.4th 631, 638,49 Cal.Rptr.2d 377. Most courts will define fraud only with reference to these five elements. As shown below, however, each of these elements in fact has a number of components which require careful analysis, since they are often interrelated which each other and can cause considerable confusion among counsel as to which element is in fact under consideration.

Before doing so, let's compare this legal definition with the common meaning of fraud. Lying, the essence of the common understanding of fraud, is still present in the misrepresentation or concealment requirements, as well as in the requirement that the defendant know the representation is false. (How else would you have a lie?) But there are three additional requirements necessary for a fraud cause of action that do not occur in the everyday use of the word.

First, the "intent to defraud" is actually an intent to induce reliance, to make the other party rely on the false statement. This is different from straight-out lying, where the lie may be simply to protect the liar. If there is a civil cause of action, the lie, if you will, must be told to make the other person change his or her position in the transaction in question.

Next, the party hearing the misrepresentation must actually and justifiably rely on the misrepresentation. This element goes hand in hand with the idea that the misrepresentation must be intended to induce reliance, and requires not only that there be actual reliance, but that there be reasonable reliance. We certainly don't want to clog the courts by "lies" that obviously were never meant to be believed.

Finally, there must be monetary damages caused by the fraud. Damages, as we will see, mean monetary damages which must be linked directly to the misrepresentation.

Other forms of fraud

The fraud we discuss in this article is the most commonly seen form of fraud. It is often called "actual fraud" (inaccurately, by the way) or "intentional misrepresentation" (accurately). Other types of fraud, discussed elsewhere on this web site, include negligent misrepresentation and a promise made without the intention of keeping it (promissory fraud).

To make matters even more complicated, the statutes and the case law distinguish between actual fraud--which is either an intentional misrepresentation, negligent misrepresentation, or promissory fraud--and constructive fraud, which, among other things, includes breaches of fiduciary duty. The different types of actual fraud are treated in this article and in the articles referenced above; we also have an article on what constitutes a breach of fiduciary duty.

Analyzing the elements of fraud

Let's now look at each of the five elements of intentional fraud in greater detail.

1. Misrepresentation

The first requirement is a misrepresentation, but a misrepresentation of what? The misrepresentation must ordinarily be of a present or past fact. An expression of what the person believes will happen in the future can usually not form the basis for a fraud claim. This distinction is easy to draw in theory, but hard to implement in practice. For example, if the seller represents that a piece of property is capable of producing a specified return on the buyer's investment, is that a representation of an existing or a future fact? Both clients and counsel must approach such representations with great care, for the characterization of them can determine whether or not the case or the defense will be successful.

Next, the misrepresentation must be of a material fact. If the realtor lies to you about the color of his mother's eyes, that is hardly a fact that will determine whether or not you will buy the property he is selling. Legally, it is not material to your decision of whether or not to buy, and therefore is not the type of representation which can justify a fraud claim.

Opinions as such are not statements of fact. In many cases, they are not actionable. Like many doctrines in the law, the rule has nearly been swallowed by the exceptions. If the person stating the opinion holds himself out as possessing superior knowledge or special information about a fact, that opinion may be treated as a statement of fact and hence proper grounds for a fraud action if it is known to be untrue. Or an opinion, if stated as a fact, can also be deemed to be proper grounds for a fraud action. The representation of an opinion therefore requires careful analysis and consideration by both parties of a fraud suit to determine if it is in fact actionable.

Not all misrepresentations are out and out lies, however. Sometimes the fraud is committed by concealing a fact, or by failing to disclose a fact. This presents some of the most complicated and difficult areas of fraud, not the least of which is because the distinction between concealment and nondisclosure is thin.

Concealment. If a person actually conceals facts relevant to the validity of a transaction while under a duty to disclose those facts, the concealment can operate as a fraud. The courts sometimes use the term suppression of facts instead of concealment. There are three types of concealments:

Intentional concealment of known defects in property;

Active prevention of an investigation or discovery of material facts; or

Speaking dishonestly or misleadingly.

The first two examples are self-explanatory, as is the first party ("speaking dishonestly") of the third example. The rest of the third example, speaking misleadingly, applies to the situation where the person is not under a duty to speak, but makes statements which are misleading without full disclosure. This part of the subelement (!) also applies if he disclosed some facts but suppresses others which would place the partially-disclosed facts in context.

Nondisclosure. Sometimes the failure to speak does not quite rise to the level of concealment, but is merely a failure to disclose certain facts. Generally, such nondisclosure is not fraudulent unless there is a fiduciary or confidential relationship between the parties, in which case the fiduciary has an absolute duty to disclose anything which even might be relevant to the transaction.

Even in the absence of a fiduciary or confidential relationship, one party does have a duty to disclose material facts where that persons (1) knows of the facts and (2) knows that the other party doesn't know the fact and cannot readily discovery them. This type of actionable nondisclosure frequently occurs in the sale of real property where the seller fails to disclose conditions which cannot be determined by inspection which would affect the value of the property.

2. Knowledge or scienter

The next requirement for a tort claim for fraud is that the person making the misrepresentation actually know that the statement is false. Courts often refer to this element as "scienter" (pronounced "sigh-en-ter," with the accent on the middle syllable), which comes from the same root as "science" which itself is one of the participles of the Latin verb for "to know." Scienter and knowledge are identical; the only difference is that "knowledge" is clear and concise English and "scienter" is Latinate legalese. Guess which one courts and lawyers like to use.

Knowledge of the falsehood is obviously an important element. The law does not usually punish innocent misrepresentations; the person making the misrepresentation must actually know that the representation is false. Fraud is not a strict liability tort where people are made to guarantee the accuracy of everything they say.

On the other hand, people cannot run around making any representation they please. If the person making the representation acts in reckless disregard of the truth, even the fact fact that he or she may not know the representation to be false will not exculpate them from potential liability. In such cases, the law will deem the reckless representation the same as if the false representation were knowingly made.

3. Intent to defraud/induce reliance

At first blush, the element of intent to defraud seems redundant. How does this really differ from guilty knowledge of the falsity of the representation? Why would anyone make a misrepresentation without intending for it to be acted upon? In fact, isn't the definition somewhat circular, by making one of the elements of the fraud an intent to do the element?

Once again, the standard formulation has become a bit too spare. As the Supreme Court indicated in recent cases, this element is really an intent to make the other party rely on the representation. This element isn't litigated very often, but it can be crucial in formulating a defense or avoiding a dismissal in the right case. It usually arises when the representation was not made directly to the party relying on it. That may seem unusual, but it really isn't: consider a fraudulent misrepresentation made by a seller of a house which is repeated innocently by the buyer when the buyer sells the house 25 years later.

Note that this element has much in common with the materiality of the representation. Once again, the traditional wording of a fraud claim leaves much to be desired since its elements are often composites of factors shared with other, supposedly distinct elements of the tort.

4. Justifiable reliance

This element, too, has multiple components, and even some surprising assumptions. The first is the flip side of scienter, a requirement of lack of knowledge by the person relying on the false representation. Why? As a matter of logic, how can a person rely on a misrepresentation which he knows to be false? The damage in a fraud claim occurs because one of the party thought something was true when it wasn't. Therefore, if the party knows that a statement is false, he can't be harmed by it.

Actual reliance. Assuming, then, that the victim of the fraud doesn't know that the representation is false, he must next demonstrate actual reliance on the representation. "Actual reliance," like so many of the terms used by lawyers, is a word of art. The Supreme Court defines it thusly:

"Reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff's conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction."

Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, 44 Cal.Rptr.2d 352. This element often causes confusion among lawyers and clients alike. It requires an allegation that without the representation, the plaintiff would not have entered into the transaction in question. The allegation is necessary to show reliance, but many lawyers mistakenly believe that it applies to damages as well. After all, they argue, if the plaintiff wouldn't have entered into the transaction, shouldn't he get back everything he invested in the transaction?

Such analysis confuses damage with reliance, and leads to no end of trouble for those who fail to distinguish between the two. Damages, as we will see below and in another article, depend on the remedy being chosen. The purpose of the reliance allegation is simply to demonstrate that the plaintiff entered into the transaction on the basis of the facts as represented by the defendant. If the plaintiff entered the transaction because he liked the deal, not because of anything the defendant said, how could there be any liability for fraud? This method of pleading is a necessary element in order to show that the plainitff's injuries flow from the alleged misrepresentations.

Not the sole cause. There is another factor about actual reliance that should be noted. California case adopted the Restatement, 2d view that the misrepresentation need not be the only cause that made plaintiff enter into the transaction:

"It is not ... necessary that [a plaintiff's] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct.... It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision." (Rest.2d Torts, § 546, com. b, p. 103.)

Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977, 64 Cal.Rptr.2d 843. This makes perfect sense. After all, the plaintiff would probably not be entering into the transaction if there were not economic reasons for doing so, and the misrepresented fact may not be the sole reason for the transaction. It must, however, be a substantial reason. Note that this is closely akin to the reasoning of

Justifiable reliance. So we have a plaintiff who didn't know the truth, and actual causation, i.e., the plainitff would not have done the deal had he known the true facts. There is yet a third requirement, that of justifiable reliance. Depending on the facts, the plainitiff's reliance on the representation may not be reasonable or justifiable under the circumstances.

"Under the circumstances" means that this is almost always a question of fact for the jury to decide, based on the skill, knowledge, education and experience of the plaintiff. Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503, 198 Cal.Rptr. 55. However, there are a few cases where the courts have found that there could be no justifiable reliance. Typical among these are cases that involve lawyers. Hence, the courts have held that a lawyer could not rely on the statements of her riding instructor that a liability waiver was meaningless and unenforceable (Guido v. Koopman (1991) 1 Cal.App.4th 837, 2 Cal.Rptr.2d 437). Or, in one of the more interesting cases, the court held that a plaintiff could not justifiably rely on representations by a lawyer representing an adversary in negotiations (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 231 Cal.Rptr. 355).

Duty to investigate? However, there may be a duty of inquiry. While this rarely rises to the level that a defendant can get a fraud case thrown out before trial, it is a defense that a plaintiff cannot afford to ignore, and which the defendant must always consider. At trial it can kill a fraud case, since a plaintiff will be held to have known everything that a reasonable investigation would have revealed. As with all other aspects of fraud, there are many exceptions.

Fiduciary relationship exception to duty to investigate. A major exception to the rule of justifiable reliance occurs when there is a fiduciary or confidential relationship with the defendant. In those cases, there is no duty of inquiry. "The nature of the relationship is such as to cause the plaintiff to rely on the fiduciary, and awareness of facts which would ordinarily call for investigation does not excite suspicion under these special circumstances. " Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 921, 259 Cal.Rptr. 117.

5. Damages

Damages in a fraud claim are so complex in California that they merit an entire article unto themselves, which we provide elsewhere on this web site. Particularly in California, careful attention must be given to seeing if there are any damages which are recoverable. For example, emotional distress damages are usually not allowed in a fraud claim involving the purchase, sale, or exchange of property. Moreover, unless the remedy is to rescind the contract and recover what has already been paid, the damage must be monetary.

The other issue involved in damages is causation. The Supreme Court in its definition in Engalla described the element as "resulting damages," "resulting" meaning that the damages flowed from the misrepresentation. Although this element is not often litigated, courts can be strict in requiring plaintiffs to show a causal connection between the alleged misrepresentations and the damages plaintiffs claim to have suffered. As one court expressed it, "Deception without resulting loss is not actionable fraud." Hill v. Wrather (1958) 158 Cal.App.2d 818, 825, 323 P.2d 567.

How can such a thing happen, that there can be a false statement which caused no damages? The full explanation, alas, must await our discussion of fraud damages in another article. For now, we simply alert you that plainitiff must not only show actual damages, but damages caused by the misrepresentations. There is no claim for being lied to unless the lies caused actual monetary damages.

Conclusion

Although the legal definintion of fraud can be stated in five elements, this reduced version hides a large number of related concepts. Fraud is dramatically more complex and difficult to deal with than simply regurgiating the elements. In fact, a mechanical following of the "easily identified" elements will lead a plaintiff to perdition faster in a fraud claim than just about any other kind of claim this side of antitrust or RICO. Counsel and client must insure that they have both thoroughly examined and thought through difficulties they are likely to encounter before brining such an action.

Well in defense of John, he didn't say he wasn't an expert.

JWK, FOUNDER, ACRS:

You have established yourself as a constitutional expert.

By JOHN TIERNEY
Published: July 5, 2005
PITTSBURGH — Two questions I'd like to ask candidates for Sandra Day O'Connor's job:

1. Does the Constitution forbid the government from seizing your home and giving it to someone else?

2. If you're not sure, would you be willing to tour Pittsburgh before taking this job?

Justice O'Connor had no problem with the first question. Noting that the Fifth Amendment allows property to be taken only for a "public use" like a road, she rejected arguments that it could be given to a developer just because the public could benefit from new jobs and tax revenues. By that logic, she argued in one of her last opinions, no one's home or business would be safe from anyone with a better use in mind for it.

But her side was outvoted, 5 to 4, by justices not inclined to be too literal about the Bill of Rights. They were pragmatists, arguing that land grabs like this had previously been allowed, which is quite right. And that's why I recommend a trip to my hometown to see the long-term effects.

Pittsburgh has been the great pioneer in eminent domain ever since its leaders razed 80 buildings in the 1950's near the riverfront park downtown. They replaced a bustling business district with Gateway Center, an array of bland corporate towers surrounded by the sort of empty plazas that are now considered hopelessly retrograde by urban planners trying to create street life.

At the time, though, the towers and plazas seemed wonderfully modern. Viewed from across the river, the new skyline was a panoramic advertisement for the Pittsburgh Renaissance, which became a national model and inspired Pittsburgh's leaders to go on finding better uses for private land, especially land occupied by blacks.

Bulldozers razed the Lower Hill District, the black neighborhood next to downtown that was famous for its jazz scene (and now famous mostly as a memory in August Wilson's plays). The city built a domed arena that was supposed to be part of a cultural "acropolis," but the rest of the project died. Today, having belatedly realized that downtown would benefit from people living nearby, the city is trying to entice them back to the Hill by building homes there.

In the 1960's, the bulldozers moved into East Liberty, until then the busiest shopping district outside downtown. Some of the leading businessmen there wanted to upgrade the neighborhood, so hundreds of small businesses and thousands of people were moved to make room for upscale apartment buildings, parking lots, housing projects, roads and a pedestrian mall.

I was working there in a drugstore whose owners cursed the project, and at first I thought they were just behind the times. But their worst fears were confirmed. The shopping district was destroyed. The drugstore closed, along with the department stores, movie theaters, office buildings and most other businesses.

You'd think a fiasco like that would have humbled Pittsburgh's planners, but they just went on. They kicked out a small company to give H. J. Heinz more room. Mayor Tom Murphy has attracted national attention for his grand designs - and fights - to replace thriving small businesses downtown and on the North Side with more upscale tenants.

The city managed to clear out shops and an office building to make room for a new Lazarus department store, built with $50 million in public funds, but Lazarus did not live up to its name. It has shut down and left a vacant building. Meanwhile, the city's finances are in ruins, and businesses and residents have been fleeing the high taxes required to pay off decades of urban renewal projects and corporate subsidies.

Yet the mayor still yearns for more acquisitions. He welcomed the Supreme Court decision, telling The Pittsburgh Post-Gazette that eminent domain "is a great equalizer when you're having a conversation with people." Well, that's one way to describe the power to take people's property.

But I think a future Supreme Court justice would have a different view of eminent domain after touring Pittsburgh's neighborhoods, especially those that escaped urban renewal: the old-fashioned business districts with crowded sidewalks and the newly gentrified neighborhoods with renovated homes and converted warehouses. The future justice would quickly see what sets the success stories apart from Gateway Center and East Liberty. No politicians ever seized those homes and businesses for a "better use."