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February 24, 2005
High Court's Choice May Be Sympathy Vs. Precedent
Observers: Justices Want To Help Seven Fort Trumbull Property Owners, But Don't Know How
By KATE MORAN
Day Staff Writer, New London
Published on 2/24/2005
U.S. Supreme Court justices are struggling to weigh their sympathy for seven Fort Trumbull residents who could lose their houses through eminent domain against years of federal precedent that favors the city government that is trying to take the properties.
So said attorneys and law professors who have been tracking the Kelo v. New London property-rights case heard Tuesday by the high court. These experts characterized the court as uncomfortable with the broad reach of governments to seize private property but reluctant to jettison its history of deference to state and local governments.
“The problem is that they know in their heart of hearts that this is a farce, they know it's wrong, but they can't figure out a way to save Ms. Kelo and her friends without intruding into local government,” said Richard A. Epstein, a law professor at the University of Chicago and the author of an amicus brief filed on behalf of the property owners.
At issue is whether the city of New London can take houses in the Fort Trumbull neighborhood and replace them with offices and a hotel that will create jobs and fortify the city's anemic finances. The property owners, represented by the Institute for Justice, have refused to surrender their houses for a project they say will help a private developer while producing only incidental public benefits.
Their argument did not sway the Connecticut Supreme Court, which ruled last March that courts should not interfere when legislative bodies such as a city council have determined that eminent domain is necessary to improve the economy.
On Tuesday the high court also cast a skeptical eye on arguments by the Institute for Justice that the quest for job growth and increased taxes never warrants the taking of private property. Justice Ruth Bader Ginsburg pointed out that economic development might very well be a public purpose in cities like New London that have struggled for years with decline.
“The justices seemed sympathetic to the efforts of local officials to bring renewed hope and prosperity to the people of New London,” said Timothy Dowling, chief counsel for the Community Rights Counsel, a public-interest firm in Washington, D.C. Dowling attended Tuesday's hearing.
“I think there is virtually no chance the court will accept the Institute for Justice's lead argument, which would effectively take economic development off the table as legitimate public use,” he said.
As a fallback position, the Institute for Justice urged the court to police the use of eminent domain more closely. The institute, a law firm that promotes a libertarian ideology, wants governments to present courts with some proof that developments will have a reasonable chance of success before they are allowed to condemn private property.
Justice Sandra Day O'Connor pressed Scott Bullock, the Institute for Justice attorney, for a way to evaluate development projects without stepping too deeply into territory that has traditionally belonged to the legislatures.
Even Justice Antonin Scalia, a conservative who seemed sympathetic to the Fort Trumbull property owners, doubted that courts could force governments to prove all condemnations will produce a real, tangible public benefit.
“Isn't that changing the test for public use to efficient public use?” Scalia asked. “You want us to evaluate the prospects of each condemnation, one by one?”
Several attorneys who have followed the case noted that checks are already in place to prevent governments from seizing private property on a whim.
In the case of Fort Trumbull, said David King, associate dean at the Quinnipiac University School of Law, “there was a foundation for the need for economic development. New London was declared a distressed area by the state legislature. This was not arbitrary. The government had investigated this and determined that economic development was vital to New London's future.”
But the justices also seemed wary of leaving governments with unchecked power to take property from one owner just to give it to another who will generate more tax revenue.
Two justices, Anthony M. Kennedy and Stephen G. Breyer, asked attorney Wesley Horton, representing the city of New London, if property owners might be offered a premium price for their houses or businesses if they had to give them up for a private development.
Many attorneys were surprised that the issue of compensation took a prominent role in Tuesday's hearing, because the Fort Trumbull property owners are contesting the government's very ability to take their homes and not the prices they were offered to leave. Still, the attorneys said better compensation might be one way of offsetting the tremendous sacrifice that eminent domain demands of private property owners.
“The court is looking at these issues in a very broad way and trying to figure out how to construct the legal doctrine,” said John D. Echeverria, the executive director of the Georgetown Environmental Law and Policy Institute “One way of addressing some of the concerns about the use of eminent domain, particularly its impact on homeowners, is to raise the level of compensation without necessarily destroying the power itself.”
© The Day Publishing Co., 2005
Posted by lumi at February 24, 2005 08:19 AM