2/24/2005

How Eminent Is A City's Domain? The Hartford (CT) Courant, 2/23/05

By David Lightman

If New London can seize people's homes so private developers can build a hotel and convention center, what will cities do next? several Supreme Court justices asked during arguments Tuesday.

Can a city decide to get rid of the Motel 6 and put up a Ritz-Carlton, asked Justice Sandra Day O'Connor, because the luxury hotel would produce more taxes?

"That would be OK?" she asked.

"Are we saying you can take from A and give to B if B pays more taxes?" asked Justice Antonin Scalia.

Susette Kelo, sitting in the back of the cavernous court chamber, was encouraged by such questions. Kelo is the lead homeowner in a landmark case that pits a group of New London homeowners against a city that sees their property as crucial to its development plans.

Arguing on behalf of New London, attorney Wesley Horton told O'Connor, "Yes, your honor, it would be" appropriate to replace a lower-cost motel with a plush hotel.

A city, in this example, would be exercising its time-honored right of eminent domain, Horton said. The homeowners countered that what was really at stake for New London was whether developers and the city would make more money.

Seven justices heard the case. Chief Justice William H. Rehnquist, who has thyroid cancer, has been absent from the bench since October, and Justice John Paul Stevens did not attend because his plane was delayed.

A ruling is expected in June, and despite Kelo's guarded optimism, it was hard to discern which way the justices were leaning after a lively hour during which six of the seven justices peppered the attorneys with questions. Only Justice Clarence Thomas remained silent.

Kelo left the session pleased, but many other homeowners were less sure. They seemed awed that what began as a dispute with their city had wound up in the nation's highest court.

What unfolded there Tuesday was a drama on two levels.

One involves the plight of the homeowners, who don't want to leave their middle class Fort Trumbull neighborhood.

Many arrived at the court building an hour and a half before the 10 a.m. hearing Tuesday. Some stood smoking cigarettes outside in the cold and worrying whether ordinary folks like them could get a fair hearing.

Ronna Stuller, a New Haven friend and supporter of Kelo and other homeowners, drove 6½ hours to Washington; Amy Hallquist, another friend, took a train. Leading them all was Kelo, a nurse dressed in apricot - the same color as her New London home.

"I'd been to the state Supreme Court, and this was sort of like that," Kelo said quietly after the hearing. `'But it was more formal. There was more security."

The case has the potential to be precedent-setting, shaping eminent domain policy for years to come. It also is the most prominent Connecticut case the court has considered in 40 years.

The Fifth Amendment to the U.S. Constitution bars the taking of private property for public use without compensation; courts have allowed it provided owners are rightfully compensated. But controversy has grown over whether local governments have reached too far, taking property for glitzy projects to rid a neighborhood of lower-income people.

The conflict actually reaches back to the Magna Carta, said Douglas W. Kmiec, professor of constitutional law at Pepperdine University.

Kmiec, who has studied the New London case, noted that since the 13th century, governments have recognized that "eminent domain and securing private property must coexist. Neither can be absolute."

But, Kmiec added, "courts have engaged in a balancing act" for years.

Scott G. Bullock, attorney for the Institute for Justice, a civil liberties firm, argued the case for Kelo and her allies. He agreed that government has the authority to condemn blighted areas and to take other property to meet an obvious public need.

But, Bullock said, "there have to be limits." To simply take property to build the tax base by improving private profits is not necessarily a proper use of eminent domain.

Some justices seemed uncomfortable with that notion. "You want me to make a distinction between blight and economic purpose?" asked Justice Anthony M. Kennedy.

"Do you really want the courts in the business of weighing evidence to see if a hospital will be successful or a road will be successful?" asked O'Connor. Bullock said there could be reasonable standards for taking property. In a 1992 railroad case, Kennedy said it was crucial that "the condemning authorities [be] rational in their positions that some public purpose is served."

The justices were equally tough on Horton, bringing up the question of whether it was proper for a government to condemn a lower-price property so something more glamorous - and tax-producing - could replace it.

Horton argued that "there is a democratic process" that would subject such a change to careful scrutiny, including hearings and regulatory reviews. Cities could not simply make such changes on a whim.

Nonetheless, Scalia seemed concerned that New London wanted private property for a private developer's use in a case where the homeowners did not want to leave. Kelo, he said, "does not want to move. You're just giving it to some private individual who's going to pay more taxes."

The questioning left many of the New London spectators confused as to what the justices would decide. A decision is expected before the court ends its current term, probably in June.

"If nothing else," said Hallquist, "it was interesting to see both sides get their butts chewed a little. I don't know where this decision is going. I'm just going to leave it up to God."


The Hartford Courant: www.courant.com