Unfair to blast Supreme Court for eminent domain ruling: Rochester (NY) Democrat & Chronicle, 11/1/05

Guest Essay

By A. Vincent Buzard

There has been a great deal of debate about the impact of Kelo v. New London, the recent U.S. Supreme Court decision on the power of municipalities to take property for economic development purposes under the doctrine of eminent domain.

Both houses of the New York state Legislature are holding hearings on the impact of Kelo. One of the roles of the New York State Bar Association is to aid public understanding of the legal system and to answer unwarranted attacks on the courts. Hopefully these thoughts will help in that effort.

A debate over the role of government in bringing about economic redevelopment, and the circumstances under which it should invoke its eminent domain powers, is entirely appropriate until it rises to the level of provoking attacks on the U.S. Supreme Court based on misreading the Court's decisions.

In Kelo, the U.S. Supreme Court held that New London, Conn., could condemn property for the purpose of economic development even though the property itself was not blighted.

The decision was based on the principle that taking the Kelo property was part of a well-designed, comprehensive economic plan.

One of the parties, Suzette Kelo, owned a home on the New London waterfront, in the heart of a redevelopment zone established by the city to create economic growth in an area that had fallen on tough times. A libertarian organization called The Institute for Justice challenged the city's move on Kelo's behalf.

The Kelo decision has been criticized for creating new law because the "taking" of the Kelo property falls outside the scope of such time-honored uses as building a public park, courthouse, or highway. Yet, the U.S. Supreme Court decided 50 years ago that economic redevelopment could be deemed a valid public purpose. In fact, economic development projects have taken place in Rochester as a result of those earlier decisions.

The redevelopment of the area bounded by Main, State, St. Paul and Andrews streets, which includes two hotels, First Federal Plaza, the Crossroads office building, and other office buildings is all a result of an economic redevelopment project, and some of the property was taken by eminent domain even though it was not blighted.

Unfortunately, Kelo has resulted in a renewal of what appears to be a continuing pattern of misunderstanding, misrepresenting and mistrusting U.S. Supreme Court decisions. In referring to the decision recently, Sen. Trent Lott, R-Miss., stated: "We can fight by getting involved in an effort to confirm judges who will interpret the law rather than make it." Lott went on to further chastise the justices for having "taken it upon themselves to write their own laws, essentially bypassing you and your elected representative."

Sen. Lott has it backward. The U.S. Supreme Court was not making new law, but rather relying on a 50-year-old precedent. Contrary to the senator's statements, Kelo gives state legislatures great latitude in defining the parameters of economic development projects in their states.

The role of eminent domain in the redevelopment of communities is an appropriate issue for debate, but not an appropriate excuse for judge-bashing.

As president of the State Bar Association, I am appointing a task force of experts in the field to review existing and proposed legislation regarding eminent domain in New York and make recommendations regarding appropriate legislative and regulatory considerations.

Hopefully, the work of this task force and the legislative committees that hold hearings can shed public light on the real issues while removing some of the hysteria from the debate process and, above all, stop blaming judges for simply ruling on the law to the best of their abilities.

Rochester Democrat & Chronicle: www.democratandchronicle.com

A. Vincent Buzard is president of the New York State Bar Association