7/21/2005

John W Dean interviews Dana Berliner: FindLaw.com, 7/1/05

Excerpts from the interview

John W Dean interviewed Dana Berliner of the Institute for Justice, "Second Chair" in presenting the case for the plaintiffs in Kelo v New London before the US Supreme Court.

The following is an excerpt from that interview.

QUESTION: Did any of the questioning by the Justices surprise you?
ANSWER: The only question that truly surprised me was Justice Kennedy's question about scholarly articles relating to just compensation. Since the case was about public use, not just compensation, that one came out of left field.

QUESTION: Nonetheless, have these people been justly compensated, or will they be?
ANSWER: Just compensation isn't the issue. There are some things you can't compensate for. Wilhelmina Dery is in her late 80s and in fragile health. She doesn't want money. She wants to stay in the home where she was born, with her family around her.


QUESTION: From reading the Court's ruling, it seems that New London adopted an economic redevelopment plan to increase jobs and tax revenues by turning over some 115 privately owned properties to a private developer — with many of these properties located on the waterfront of the Thames River and Long Island Sound, along with some 32 acres once occupied by a Federal Government's Naval Undersea Warfare Center. Is it pure speculation by the planners that this proposed project will provide jobs and tax money for this officially "distressed" city?
ANSWER: Certainly the development contract provides no assurance of tax increases or jobs. The property is being leased to the developer for 99 years at $1 per year. One of our arguments was that if the "public use" was economic development, there should at least be contractual and statutory assurances in place at the time of condemnation that created a reasonable certainty that the project would indeed result in the claimed benefits. But the Court rejected that suggestion and held instead that the government can condemn even without any assurances that the supposed economic development will occur.


QUESTION: Explain how developers and big corporations often work with local and state politicians to accomplish land grabs for their private benefit, at the expense of those without the wherewithal to fight back.
ANSWER: The union of private developers and government power comes about in a few different ways, but the result is the same--the threat of eminent domain to get people to sell "voluntarily," and the subsequent use of eminent domain "as a last resort" if anyone refuses to give up their home or business so that someone else can establish a home or business there. Sometimes a particular business or developer will offer to bring more tax dollars to the city by a new development, but only if the city can guarantee the land the developer wants.

Other times, cities bring in big-box stores or other large private developments and then agree to eminent domain as part of a "corporate welfare" package. And still other times, cities market large chunks of land (owned by often unknowing private citizens) to private developers or businesses.

In New London, the City and the NLDC, a private nonprofit development corporation, reached a deal with Pfizer, under which Pfizer would move to New London and the City and the NLDC would redevelop the Fort Trumbull area, which is near the Pfizer facility. The "process" of plans and public hearings and votes all occurred after that agreement had already been reached. It was a done deal before the residents and local businesses could even object.


QUESTION: What has been the reaction of Connecticut's leading political figures to the ruling?
ANSWER: Former Governor John Rowland was a major proponent of this project. His successor, M. Jodi Rell, has said it would be appropriate to review eminent domain legislation in Connecticut because she was concerned about it. She hasn't said anything specific about these homeowners yet.

There was a move to convene a special session of the Connecticut legislature (which is currently out of session) to address eminent domain. That move failed, so the legislature won't be coming to the rescue any time soon.


QUESTION: How many states have adopted statutes similar to that of Connecticut? How many have laws that prohibit the type of taking the High Court has now ruled to be constitutional?
ANSWER: That's a hard question to answer. Around ten states have statutes that look like Connecticut's, but other states have statutes allowing property to be declared "blighted" if it could be more economically productive. And still other states just leave it up to the municipalities to use eminent domain under their general police powers or to create their own ordinances.

Whatever statutory mechanism is used, eminent domain for economic development occurs in almost every state. Nine states, however, have state supreme court decisions barring economic development condemnations: Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina, and Washington. This past year, Utah passed a statute removing the power of eminent domain from redevelopment agencies.

I'm not aware of any other state statutes explicitly prohibiting the use of eminent domain for economic development.


QUESTION: What is the political philosophy underlying your position vis-à-vis cities like New London and laws like that of Connecticut?
ANSWER: Eminent domain is a power of government and it should only be used when truly necessary for public projects like roads and public buildings. It is not a tool for private developers to assemble prime real estate, or for cities to increase their coffers. We believe Connecticut's law violates both the U.S. and Connecticut constitutions. If developers want property, they can buy it just like everyone else.


QUESTION: What, if anything, surprised you about the ruling?
ANSWER: I was surprised that the majority was so willing to throw open the floodgates. I thought if they were going to affirm the Connecticut decision, they would at least create an actual standard for lower courts to use.


QUESTION: Given the fact that Kelo is a 5-4 ruling do you anticipate that it will be overturned if the Court is realigned by Bush appointments?
ANSWER: I anticipate that Kelo will one day be overturned. Its interpretation of the Constitution is just plain wrong. Whether it will be Bush's appointee or someone else's who tips the balance, I don't know. But the last time the Court decided an eminent domain case involving private development, it was 9-0. The case was Berman v. Parker The last time they decided a major public use case, it was also 9-0. That case was Hawaii Housing Authority v. Midkiff. We're moving in the right direction.



The Complete interview is online at:
http://writ.news.findlaw.com/dean/20050701.html