1/26/2005

Eminent domain abuses before Supreme Court — (Yuma AZ) Sun, 1/26/05

Editorial

This spring the U.S. Supreme Court will look at an important case involving private property rights and the government's ability to violate those rights.

The issue before the court concerns the city of New London in Connecticut and whether it has the power to use eminent domain to take land from property owners and convert it to public use under a municipal redevelopment plan. This will be a closely watched ruling because it could have widespread impact, including on our own community.

The courts have held that eminent domain is a proper use of government power under the 5th Amendment to the the U.S. Constitution, which states that private property cannot "be taken for public use without just compensation."

The devil is in the details, specifically what is "public use" and what is "just compensation." Some have interpreted "public use" to including taking private property from one owner and giving it to another private owner, such as a large business. In Arvada, Colo., for example, the city tried to use eminent domain to acquire private property for a Wal-Mart. The justification for this is that the "public good" is served by having a robust economy (and, incidentally, additional revenue sources for government).

It is these "public good" issues that are the concern more than the use of eminent domain for public roads and buildings, which the courts seem to have accepted, although even these can involved abuse of power. The government's power to condemn and forcibly take a person's private property, even if compensation is paid, isn't something to be taken lightly or used in a frivolous or indiscriminate way.

The right to one’s property is a bedrock American principle. It should be waived only under narrow and rare circumstances — and when the power of eminent domain is invoked, for a clearly recognizable public benefit.

Private property rights are today under siege in many ways. Thanks to the publication of Steven Greenhut's “Abuse of Power: How the Government Misuses Eminent Domain,” we now have the most comprehensive, up-to-date look yet at this problem.

Greenhut is a senior editorial writer and columnist at the Orange County Register. He casts a wide net in trying to get a handle on a national problem. “Eminent domain creates an avenue for corruption,” Greenhut points out, “as government officials get to play God with other people’s neighborhoods and businesses, and can therefore punish enemies and reward friends.

“Eminent domain's use for private advantage is so outrageous because it strikes at the root of American freedom,” Greenhut writes. “We are not particularly free if our life’s labors can be taken on the whim of a government official, acting on behalf of a private party.”

The author outlines in “Abuse of Power” sensible recommendations about what can be done to curb government’s land-grabbing enthusiasms. They include: requiring that any condemning agency undertake a rigorous cost-benefit analysis before using eminent domain; providing pre-taking appraisals to property owners; ensuring judicial review of whether the taking is truly for a “public use”; making jury trials available in contested cases; and requiring full compensation for a defendant's legal fees.

These steps would go a long way to eliminating frivolous takings, and we hope the Supreme Count offers support for going in that direction.


The Sun: http://sun.yumasun.com