NLDC Attorney Sees Eminent Domain Issue As A Two-sided CoinThe (New London CT) Day, 10/6/04

Horton jumps legal fence on Fort Trumbull lawsuit

by Matthew J Malone
When attorney Wesley Horton appears before the U.S. Supreme Court on behalf of the city in its eminent domain lawsuit, he will, in a sense, be arguing against himself.

In 2001, Horton, an appellate lawyer from Hartford, petitioned the Supreme Court to save the homes of four elderly Bristol residents facing eviction to make way for an industrial park. This January, he will make an argument that could put Fort Trumbull homeowners who are in a similar predicament out on the street.

The Institute for Justice, the advocacy firm representing the property owners in the Fort Trumbull development area, even cited the Bristol case in its brief to the high court.

As a lawyer, Horton said, a commitment to advocacy, not ideology, dictates his approach to a case. "That's the life of a lawyer," he said in a telephone interview Tuesday. "We're advocates, not judges."

In the Bristol case, the city's development authority decided to condemn several houses to clear land for the industrial park. The city sought to take the land using the eminent domain power established by the Fifth Amendment, which allows government to take land for a "public use" so long as it properly compensates the landowner. The stated "public use" of the industrial park project was to spur economic growth and increase tax revenues.

After the Connecticut Court of Appeals turned down the residents' attempts to stop the condemnations, Horton asked the U.S. Supreme Court to decide the case, Bugryn v. City of Bristol. In his brief, Horton argued that when a private interest would directly benefit from a government's powers of eminent domain, the court should require a higher level of review to "ensure that we do not allow the power to condemn private property to become a tool of private entities in the name of jobs and industrial expansion."

He also argued that state courts offered wildly different interpretations of the Fifth Amendment, and that clarity from the Supreme Court was desperately needed.

The Supreme Court declined to hear that case, and it is now closed.

In the Fort Trumbull case, the residents want the court to define what, if any, protections the Fifth Amendment gives homeowners when a city wants to condemn homes solely for "economic development" and not to remove blight.

Horton said that when he sat down to make the city's case, he dusted off the Bristol brief and tried to pick apart his reasoning. In his New London brief, he wrote that no earlier decisions by the court "even hinted at the need for a more searching level of scrutiny" in eminent domain cases, unless the city's purpose in taking the land was "palpably without reasonable foundation."

Horton also wrote that the residents' lawyers were "manufacturing a massive conflict among the states" regarding the use of eminent domain, the very same conflict he sought to highlight in the Bristol case.

Horton said that while the two eminent domain cases offer a particularly high-profile illustration of the quirks of legal advocacy, deconstructing both sides of an argument is what lawyers do every day. And one need only look at prosecutors who become defense lawyers to see that in law, switching sides is as common as carrying a briefcase.

There are, of course, some scenarios that stretch the bounds of the possible, Horton said. He remembered being in moot court competitions in law school, where students are required to argue one side of the case one day and the opposing side the next.

"It's an almost impossible experience," he said.

Then there was the time early in Horton's career when he realized that he was scheduled to argue opposite sides of the same point, in two different cases, before the same judge, in the same day. Horton said he decided to "overlook" one of the files and was able to argue it on another day.

Ultimately, though, Horton said, since both eminent domain cases aren't going on at the same time, taking different sides posed no ethical dilemma. Several lawyers and one legal ethicist interviewed supported Horton's view.

Scott Bullock, the Institute of Justice attorney who brought Horton's involvement in the Bristol case to The Day's attention, said that non-lawyers might not appreciate the difference between advocating for a client's position and taking a personal stand. Bullock suggested that Horton was a "hired gun," but he stopped short of claiming that his adversary was acting inappropriately.

"There's nothing ethically wrong with it," Bullock said.

---

The Day: www.theday.com