8/10/2004

One Court Tries to Curb the Misuse of Eminent Domain

By James Kilpatrick

On July 19, counsel for Susette Kelo filed a petition for review in the U.S. Supreme Court. On July 30, the Michigan Supreme Court filed a blockbuster opinion in the case of Edward Hathcock and others. We are talking big news here - news of potentially huge importance to property owners, legislators and developers everywhere.

Specifically, we are talking about restraining the power of "eminent domain," the power of a government to take private property for public use. The power is widely abused.

Mrs. Kelo purchased her two-bedroom Victorian house in 1997. Now the New London, Conn., Development Corp. wants to take it away from her. Hathcock is among a dozen property owners in Wayne County, Mich. The county wants to throw them out of their homes - with due compensation, of course - in order to turn their property over to private developers.

At the heart of these cases lies the Fifth Amendment to the Constitution. In words every schoolboy can understand, the amendment says that government may not take private property for "public use" without payment of just compensation. The key words are "public use." They are not difficult words. They are simple words. Their definition requires no law degrees.

Notice that the Constitution does not speak gauzily of "public purpose" or "public benefit." It speaks with perfect clarity of "public use." Except for the power to declare war, the power of eminent domain is the most essential and most dangerous of all powers vested in government. It is perilous precisely because it is most often employed by good men seeking to do good.

Consider the Connecticut case now pending in the Supreme Court. We may give the city fathers of New London credit for wishing to upgrade their Fort Trumbull neighborhood along the Thames River. This is not a slum. The area has nothing in common with the slums of southwest Washington, D.C., that figured famously in the Berman case of 1954. There the city was coping with an area in which 58 percent of the housing had only outside toilets, 60 percent had no baths and 29 percent had no electricity.

No such allegations complicate the New London story. The New London Development Corp., a public entity, wants to grab 90 acres of absolutely unoffending property. The middle-income owners would be compensated, the land would be cleared, and private developers would do what private developers do. They would make money. The city envisions more tax dollars and more construction jobs. Susette Kelo and her neighbors envision eviction. Their homes are their castles. They want to stay put.

In their Supreme Court petition, the owners cite disturbing statistics. Between 1998 and 2000 alone, "there were over 12,000 filed or threatened condemnations that involved private-to-private transfers of property in 41 states." Private to private! The proposals are not for public roads, public schools, public firehouses, public dams or waterworks. One proposal in Atlantic City six years ago involved the condemnation of a widow's home to benefit Donald Trump's casino across the street.

The Institute for Justice in Washington, D.C., is spearheading Mrs. Kelo's petition to the Supreme Court. The institute also participated in the Michigan case of Edward Hathcock and others. The important thing here is that the Michigan Supreme Court unanimously overruled its landmark decision in the Poletown case of 1981. That widely cited opinion "allowed the city of Detroit to bulldoze an entire neighborhood, complete with more than 1,000 residences, 600 businesses and numerous churches, in order to give the property to General Motors for an auto plant." The Poletown opinion was the first to uphold eminent domain for purposes other than public use or necessity.

Speaking for the Michigan court, Judge Robert P. Young Jr. held that Wayne County had abused its power of eminent domain in attempting to seize private property for construction of a 1,300-acre business and technology park. The idea was to transfer the condemned properties to private parties "in a manner wholly inconsistent with the common understanding of 'public use' at the time our Constitution was ratified."

There was ample evidence in the Michigan case that the project would provide a public benefit - it would create jobs in a struggling economy and add to tax revenues - but would it be a project for public use? No way.



Write to James J. Kilpatrick in care of Universal Press Syndicate, 4520 Main St., Kansas City, MO 64111, or via e-mail to kilpatjj@aol.com.


© 2004 The Sun Herald and wire service
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