Assault on Private Property Rights

Remember how people got worked up years ago about oil companies trying to force poor landowners out of their land through fraud and deceit? Gee, now they don’t have to strongarm them at all… I’m sure the local government would be happy to have the oil revenue. You know, for the public good.

Here’s the press release from the Institute for Justice, a legal foundation that is devoted to protecting property rights and that I believe supplied lead counsel for the home owners on this case:

INSTITUTE FOR JUSTICE www.ij.org
FOR IMMEDIATE RELEASE: June 23, 2005
Homeowners Lose Eminent Domain Case

Institute for Justice Warns:
Supreme Court Leaves Homeowners Vulnerable
To Tax-Hungry Bureaucrats & Land-Hungry Developers

Washington, D.C.- Today, the U.S. Supreme Court delivered a blow to home and small business owners throughout the country by allowing the government to use eminent domain to take homes so that businesses can make more money off that land and possibly pay more taxes as a result.

The Institute and its clients issued the following statements after learning of today?s decision.

Chip Mellor, the president of the Institute for Justice, said, ?The majority and the dissent both recognized that the action now turns to state supreme courts where the public use battle will be fought out under state constitutions. The Institute for Justice will be there every step of the way with homeowners and small businesses to protect what is rightfully theirs. Today?s decision in no way binds those courts.?

?The Court simply got the law wrong today, and our Constitution and country will suffer as a result,? said Scott Bullock, senior attorney for the Institute for Justice. ?With today?s ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and its corporate allies. The 5-4 split and the nearly equal division among state supreme courts shows just how divided the courts really are. This will not be the last word.?

?One of the key quotes from the Court to keep in mind today was written by Justice O?Connor,? Bullock said. ?Justice O?Connor wrote, ?Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.??

Dana Berliner, another senior attorney with the Institute for Justice, said, ?It?s a dark day for American homeowners. While most constitutional decisions affect a small number of people, this decision undermines the rights of every American, except the most politically connected. Every home, small business, or church would produce more taxes as a shopping center or office building. And according to the Court, that?s a good enough reason for eminent domain.?

Mellor said, ?Today?s decision doesn?t end the Institute for Justice?s fight against abuses of eminent domain. We will work to ensure not only that the property owners in New London keep their homes, but that all home and small business owners are protected from these unconstitutional land grabs by governments and their business allies. This is a terrible precedent that must be overturned by this Court, just as bad state supreme court eminent domain decisions in Michigan and Illinois were later overturned by those courts.?

Susette Kelo, one of the homeowners challenging eminent domain abuse, said, ?I was in this battle to save my home and, in the process, protect the rights of working class homeowners throughout the country. I am very disappointed that the Court sided with powerful government and business interests, but I will continue to fight to save my home and to preserve the Constitution.?

Mike Cristofaro, another one of the homeowners whose family has owned property in Fort Trumbull for more than 30 years, said, ?I am astonished that the Court would permit the government to throw out my family from their home so that private developers can make more money. Although the Court ruled against us, I am very proud of the fight we waged for my family and for the rights of all Americans.?

They’ll take my house over my cold, dead body. Bastards.

This is one of the reasons I love T-Nation. Not only do you get a discussion of training, nutrition and related topics, but you also get an elightened discussion on other timely topics.

When I read the initial report on this decision, I was pretty incensed. Then, after readinig the arguments and the opinions of the Justices, I was even more incensed. I don’t know what’s happening in this country, but our policies are getting more and more draconian.

Besides the obvious abuses that the Justices discussed (i.e., seizing citizen A’s property and giving it to citizen B due to the ability to collect higher taxes), there are other abuses that might manifest themselves. Not to lower this discussion, but what if the city council decides that a parking lot is a better public use of a site than a strip club, they can now simply condemn the strip club, thereby legislating morality without actually passing any legislation. There are many similar types of potential abuses, that is simply a fairly obvious one.

The only saving grace is that individual states may have more stringent eminent domain statutes than the Federal Government. That said, this still incenses me, and it really scares the crap out of me.

[quote]BostonBarrister wrote:
Think about this for a second. Whenever the government thinks it can raise tax revenues, it can force property owners to sell to developers at depressed prices (the result of a forced sale). That is no kind of restraint at all. This does to the Emminent Domain Clause what Wickard v. Filburn did to any restrictions on Congress’ Commerce Clause Power.
[/quote]

BB raises a big point here and I wish I had some statistics at the ready to go along with this, but think about it - what are the chances that local government is going to ACTUALLY pay you a market rate for your home in a takings situation? If it’s been decided that a takings is appropriate, market forces have essentially gone out the window because you have to sell to the government.

And even beyond that - let’s say you live in a spot where private developers want to snap up your house and throw down some business park and shopping center. Your town wants that development there in a big way, but has not yet made the move to perform a takings. Since that private developer knows its partner in crime (the town) has the ability to force you into this because of Kelo vs. New London, now even that private developer is not going to offer you market rates either. It just has to bide its time a little longer and wait for eminent domain to kick in and you HAVE to sell for cheaper.

And finally (boy, these keep coming to me), if someone like Ms. Kelo has to sell for below market rates as a regular, working class person, will she even be able to afford to purchase another home?

This whole thing just flat out stinks. I don’t care for whatever your flavor of political affiliation may be… this is all about regular people like you and I and your neighbors getting shafted.

[quote]Kuz wrote:
BB raises a big point here and I wish I had some statistics at the ready to go along with this, but think about it - what are the chances that local government is going to ACTUALLY pay you a market rate for your home in a takings situation? If it’s been decided that a takings is appropriate, market forces have essentially gone out the window because you have to sell to the government.
[/quote]

Fair Market Value is what a willing buyer is willing to pay and what a willing seller is willing to accept. Take the ‘willing’ part out of the equation, and somebody’s getting screwed.

I think the USSC has gotten so far away from doing their job of interpreting the constitution and making rulings based on those interpretations, that they are now nothing more than policy-wonks with unapproachable power.

Scary to think about.

[quote]Kuz wrote:
MikeTheBear wrote:
Yup, they flat out got the law wrong. Interestingly, Thomas also dissented in the medical marijuana case saying that the majority’s decision essentially placed no limit on the Commerce Clause. He was right about that, too.

Kuz, do you still practice law or have you moved on to other pursuits?

Interesting question you pose, Mike. I work doing contracts within the Legal department of a big aerospace company. So, while I am CT and NY admitted, I do legal stuff, but do not technically practice law on behalf of the company. Kind of weird, but I’m sure you know what I mean (it is hard explaining it sometimes to people who are non-lawyers).[/quote]

LOL, I’m in a similar situation. I work for LexisNexis. No more billable hours for me.

I think this is absolute Socialism.

Not to bring politics into this but a conservative court would not let this pass. We have activist judges who are determined to interpet the constitution to suit their social agenda. Even so I can’t understand this one, except for the socialism angle.

I am very upset about this ruling.

Let’s run through a short list:

Lawrence v. Texas
Roper v. Simmons
Raich
Kelo

The march of the judge-kings continue.

And to put a finer point on it, this isn’t mainly about corporate power - it is about government power. Gigantic corporations are merely the proxy by which governments can now act unrestrained.

[quote]thunderbolt23 wrote:
And to put a finer point on it, this isn’t mainly about corporate power - it is about government power. Gigantic corporations are merely the proxy by which governments can now act unrestrained. [/quote]

That was exactly the point I was trying to make. Nice post.

To build on what Thunder and Rainjack posted, here’s a libertarian take on the recent trajectory of USSC jurisprudence:

What’s Yours is Mine

The Supreme Court has rendered its verdict in Kelo v. New London, and the widely-expected result has come to pass: a 5-4 loss for property rights. As Raich taught us that growing pot in your backyard for personal consumption is “interstate commerce,” Kelo informs us that taking people’s homes to hand over to private developers building an office complex is a “public use.”

You do wonder: Now that the “liberal” justices on the court have sided with the drug warriors against cancer patients, and with a plan to rob people of their homes for the benefit of wealthy developers, will some court-watchers on the left begin to question the wisdom of having let economic freedom become the red-headed stepchild of modern jurisprudence?

UPDATE: The opinions are here: KELO V. NEW LONDON . As with Raich (in a sense just a reaffirmation of Wickard), we’re just seeing a particularly outrageous confirmation of what was already, in effect, the law. As the majority opinion says, quoting an earlier decision, the “Court long ago rejected any literal requirement that condemned property be put into use for the … public.” Which is to say, they’ve rejected the notion that “public use” means anything more stringent than: “legislators want to do this.” The Court’s view is that any “public purpose” will do, and such purposes apparently include increased tax revenue. The straightforward implication is that any taking of a private residence to hand it over to a business, or just from a poor person to a wealthy person, will be a taking in service of a public purpose: As a general rule, the rich pay more taxes than the poor, and businesses pay more taxes than households.

And one more, on approximately the same lines as the previous one:

http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119543689

[David Bernstein, June 23, 2005 at 12:21pm] 2 Trackbacks / Possibly More Trackbacks

Big Government for Its Own Sake:

A while back, I had a post, “George Bush, liberal darling” stating that liberals should like George Bush for his vast expansion of federal spending. I received many outraged emails, and many links from outraged liberal bloggers, protesting that liberals don’t like Big Government for its own sake, but rather support using the institution of government for wise, liberal ends. I accept that that these protestations were sincere. But consider the lineup in Raich and Kelo. Then consider the legal gymnastics it takes to consider local medical pot part of “interstate commerce,” and to consider taking people’s home and giving them to Pfizer a “public use” in the face of two hundred years of precedent that A to B transfers are illegitimate; and the fact that “liberal ends” were certainly not involved in Raich, nor in Kelo (see Justice Thomas’s dissent); and consider that the liberal Justices are not exactly shy about invalidating laws when it strikes their fancy. I think a good argument can be made that the more liberal Justices on the U.S. Supreme Court do indeed support Big Government for its own sake.

I hope some good Americans take up residence on this lady’s porch with shotguns and rifles. This is something that people are going to have to take a stand on.

Ladies and Gentlemen,

This is one of those issues that I think most people will agree has scary implications.

There is so much fear about “Conservative Activism.”

This is the converse of that.

When we see it in action, it is frightening as hell.

BB, what would the process look like to reverse an unlawful and unconstitutional ruling like this?

Is there a time limit before taking it back up?

Could W.'s new appointments make this one of their first priorities to reverse?

Either way, this must not stand.

Imagine having this sort of power in the hands of a vindictive council.

JeffR

[quote]JeffR wrote:
Ladies and Gentlemen,

This is one of those issues that I think most people will agree has scary implications.

There is so much fear about “Conservative Activism.”

This is the converse of that.

When we see it in action, it is frightening as hell.

BB, what would the process look like to reverse an unlawful and unconstitutional ruling like this?

Is there a time limit before taking it back up?

Could W.'s new appointments make this one of their first priorities to reverse?

Either way, this must not stand.

Imagine having this sort of power in the hands of a vindictive council.

JeffR[/quote]

The only real way to reverse this kind of thing is for local legislatures to pass laws which would ban this kind of taking via eminent domain. The interesting thing is that not every state allows a government taking to then provide the land to another private entity. If you go back to the MSNBC article, I believe Connecticut is one of about 8 states that allow it.

It’s going to take the people of Connecticut getting flat out pissed off over this notion to do something and force our legislature to strike down the laws which allow this. Will that happen? Hard to say. You would think that with high land values and such, people would be verrrry jittery about the possibility of losing it for some far-reaching governmental action such as this… however, if they think it’s only going to happen in poorer areas that are ripe for some sort of “community renewal”, you might not have enough righteous indignation to cause anything to change… and how sad would THAT be?

There’s a great way to reverse this. Camping out with in front of the house, in mass numbers, and refusing to allow it to be taken (yes, I know it has to go in front of the CT SC first). This is a time to loudly and publicly defend our rights. Before they’re all gone.

WSJ’s OpinionJournal.com nails it with their op-ed today.

I do admire the residents of the Fort Trumbull area of New London for their continued fighting spirit here:

http://www.courant.com/news/nationworld/hc-nlfight0624.artjun24,0,7727815.story?coll=hc-big-headlines-breaking

“We’re Not Leaving, Not By A Long Shot,” Residents Insist
By PENELOPE OVERTON
Courant Staff Writer

June 24 2005

NEW LONDON – Bill Von Winkle doesn’t look like a prizefighter, but that’s how he sees himself and his neighbors in their five-year battle to save the Fort Trumbull neighborhood from the wrecking ball.

So the U.S. Supreme Court decision Thursday, which sided with city officials who plan to seize the land through eminent domain for redevelopment, felt like a “crazy left hook out of nowhere.”

“It was a hard blow, but it was no knockout,” said Von Winkle, 49, a retired deli owner who has lived at 31 Smith St. for 21 years. “This is the third round of a 15-round bout. We’re coming out swinging next round. We’re not leaving, not by a long shot.”

Von Winkle’s passion for the cause and disbelief at the court ruling echoed throughout the hodgepodge of homes still occupied in the neighborhood known simply as “the Fort.” Neighbors vowed to continue the crusade, but the venue for the next fight is still uncertain.

The national media descended on Fort Trumbull Thursday, and resident Susette Kelo entertained reporters under an umbrella she had set up on what remains of the foundation of the house that once stood next to hers on East Street.

She had a sweeping view southeast toward the Thames River as she talked about what comes next.

“We’ll fight, I know we will. We can’t quit now,” said Kelo, 49, of 8 East St. “We’ve got to talk to the lawyers and we’ll definitely file a motion to reconsider, but that’s a long shot, and we know it. There’s always the issue of just compensation - that could take forever - and maybe even environmental.”

On Thursday, residents talked about possibly filing a lawsuit on environmental grounds, arguing that redevelopment of the Thames River waterfront could endanger wildlife living there.

But it was clear the decision had stunned the remaining Fort Trumbull residents, many of whom have red-and-white “Not For Sale” signs on their houses.

A lawyer for the homeowners, Scott Sawyer, plans to file a motion to reconsider before the Supreme Court. He has 25 days to do so.

But the court seldom grants those motions, and will make its decision by Labor Day. If denied, the city could begin what is expected to be a lengthy eviction process, which both sides predict will include a nasty battle over fair market value for the seized homes.

Matt Dery, of 28 East St., whose family has lived in the neighborhood since 1901, said the homeowners will plan strategy with their lawyer Wednesday.

Sitting next to a stray kitten and a ginger-colored dog she constantly stroked, Kelo, a nurse, was calm.

Her voice remained soft, even as she described the phone calls coming in from across the country - New York, Kentucky, as far away as Los Angeles - from people offering to come to New London to help Kelo and her neighbors defend their homes from the government.

“They’re talking about bringing guns,” she said, shaking her head. “I don’t think these people know what a nerve they’ve struck. That’s crazy, but it shows how deep this thing goes.”

Kelo’s home is a cozy, antiques-filled haven in what appears to be an urban wasteland. The city has already bought or seized scores of homes and businesses, many of which have been partially razed or are boarded up, giving the neighborhood an abandoned look.

But Kelo and neighbors say it wasn’t always like this.

Turning the area into a slum was just one of the tactics that residents say the city used to tarnish the neighborhood’s image and run them out of town. The city has set aside $1.6 million to buy the 15 remaining homes from the seven property owners.

Richard Beyer bought a home and a building lot on Goshen Street in 1994, when the Fort Trumbull neighborhood appeared to be on the edge of a residential revitalization. Beyer, 37, a home restorer, said the property was a dream come true - affordable waterfront building lots.

“This is Connecticut. You can’t find that kind of bargain anywhere, so I jumped on it, and I’ve been sinking money into it ever since,” Beyer said. He thought he would be a leader in revitalizing the area, but instead the city has told him that he over-invested in his properties, he said.

Beyer was so confident the owners would prevail that he was at one of his Goshen Street houses installing granite countertops Thursday when his wife called with news of the ruling.

“I can tell you this right now. We may be the first, but we’re not going to be the last,” he said. “They started here, but New London’s already looking across the river at the homes there and every depressed city in the country is just waiting to pounce. Nobody’s safe.”

“Most cities are dying for somebody like me to come into an area like this and pour money into it. But not New London,” Beyer said. “Here, I’m treated like I’m trying to take them for a ride. If you saw what they were offering me, you’d know who was getting taken for a ride.”

The stress of the five-year battle with the New London Development Corp. has soured marriages, bankrupted families, resulted in lost jobs and left the neighborhood on edge.

On Thursday, a man on a bicycle rode through the neighborhood with a video camera. Residents watched him warily until they saw the sign on the back of his bike: “[Expletive] the NLDC.”

As he rode by, Kelo gave him a thumbs-up.

“We’re still here, at least for today.”

Socialism would be taking land to build a school or hospital or something that only goes to the common good.

This is nothing but capitalism run amok with people being forced to sell property not primarily for only the common good, but primarily to help private enterprises make more money.

And that is what this is all about. This ruling will help corporations obtain land for less money and thus increase their profits.

In this case, Pfizer could have obtained the land without strongarming the landowners. They just would have had to “overpay” for the property.

But the local government doesn’t want that to happen apparently…

I hope the voters in any area where garbage like this is taking place remember this stuff come voting day and never re-elect politicos that help line the pockets of companies like Pfizer at the expense of the average Joe.

What makes you think that a new appointment by W would go against the interests of big business?

I also admire these residents a great deal also.

The Supreme “Imperial Court” should not be making laws. Time to reduce the power of this court. They should be serving the people…not screwing them.