Petitioners' Opening Brief filed with US Supreme Court in Eminent Domain Abuse case — The Institute for Justice, 12/6/04

In a case with nationwide implications to halt the abuse of eminent domain, the Institute for Justice filed its opening brief today with the U.S. Supreme Court in Kelo v. City of New London. This landmark constitutional case will decide whether the “public use” requirement of the U.S. Constitution allows the government to use eminent domain to take one person’s home or small business so a larger business can make more money off that land and pay more taxes as a result.

“This case will determine whether government officials and big businesses have a blank check to condemn homes and small businesses for private development,” said Scott Bullock, senior attorney at the Washington, D.C.-based Institute for Justice, which represents the homeowners in the case. “If the ‘public use’ requirement of the Constitution means anything, it means that the government may not take a person’s home only to give that land over to another private party who may employ more people and produce more tax revenue.”

Dana Berliner, an Institute for Justice senior attorney and co-counsel in the case, explained, “Eminent domain abuse is a nationwide plague. The Supreme Court must place firm limits on government’s power to take private property for private gain.”

The Supreme Court’s decision will affect homeowners throughout the nation. According to a report issued last year by the Institute for Justice, in just five years, more than 10,000 properties were either taken or threatened with condemnation for private parties.

Chip Mellor, president of the Institute for Justice, added, “Development happens all over the country, every day, with land purchased voluntarily and not through government force. That’s the way our nation was built, and that’s what our Constitution requires.”

The Institute for Justice’s brief argues that condemning the homes at issue in this case for the sole purpose of “economic development” — the mere possibility of more taxes and jobs—violates the public use clause of the Fifth Amendment. As the brief states, “[T]he ordinary benefits that derive from private enterprise cannot constitute a public use under the Fifth Amendment. If all private business development is a ‘public use,’ it will be virtually impossible to distinguish a public use from a private one.”

The brief also argues the particular condemnations at issue are unconstitutional because they lack immediate or reasonably foreseeable uses: “[The City and the New London Development Corporation] seek to take [the property owners’] homes for an office building that will not be built in the foreseeable future, if ever, and for some other, unidentified use.”

A copy of the brief is available online at: www.ij.org/kelo

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Institute for Justice: www.ij.org