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September 22, 2005
Panel Hears Concerns About Eminent Domain
Supreme Court ruling prompts senate hearing on potential restrictions
By TED MANN
Day Staff Writer, Politics/Government
Published on 9/21/2005
Washington — The Senate Judiciary Committee began hearings Tuesday on a proposal that would greatly restrict eminent domain by barring the federal government from taking property for private economic development and by prohibiting Congress from funding any state or local projects that do so.
The hearing was the most concrete move yet by federal lawmakers responding to the U.S. Supreme Court decision last June in Kelo v. New London, which upheld the city's taking of 15 properties in the Fort Trumbull neighborhood for an economic development project intended to complement the construction of a new research headquarters for Pfizer Inc. on an adjoining brownfield.
Addressing a handful of fellow senators in a packed committee room, Sen. John Cornyn, R-Texas, accused the court of “reading the public use requirement (for eminent domain takings) out of the Constitution.” He said he hoped his bill to rein in the federal government's takings power would generate support from across the political spectrum.
“We have to make sure that there are going to be some reasonable limits to that awesome power that government has to seize private property,” he said.
Cornyn was followed by a panel of legal scholars and experts on eminent domain use. They ranged from those, including Hartford Mayor Eddie A. Perez, who have used the takings power to try to breathe life into desperate cities to others in the camp of Susette Kelo, the lead plaintiff in the Fort Trumbull suit who says she simply wants to keep her hard-won house.
The senators who attended the meeting left little doubt they found Kelo's case more compelling.
Cornyn said his office had received more outraged phone calls after the Kelo decision than it had after another recent decision on the display of the Ten Commandments on government property.
Sen. Patrick Leahy, D-Vt., while urging caution in making wholesale changes to the law, said he sympathizes with those who have lost their property under eminent domain.
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The panel's hearing was hard going for witnesses like Perez and Columbia University law professor Thomas Merrill, who defended the right of cities to use eminent domain for development projects. They faced not only skeptical questioning from the senators but also from fellow witnesses who decried the use of eminent domain as all too regularly punishing the poor, African Americans and those without political power to fight back.
“Racial and ethnic minorities are not just affected more often by the exercise of eminent domain power, but we are almost always affected differently and more profoundly,” said Hilary O. Shelton, the director of the Washington bureau of the National Association for the Advancement of Colored People. “The expansion of eminent domain to allow government or its designees to take property simply by asserting that it can put the property to a higher use will systematically sanction transfers from those with less resources to those with more.”
Perez said the legacy of previous takings in urban centers, particularly the so-called “slum clearance” projects of the 1960s and 1970s, unevenly focused on minority and poor neighborhoods. However, he also defended more recent projects, saying the potential for eminent domain use helped to get major redevelopment projects off the ground in Hartford, including the $500 million Adriaen's Landing complex and the magnet schools of the $120 million Learning Corridor.
“Once we get past the hype, two important points stand out,” Perez told the senators. “First, eminent domain is a powerful economic development tool that helps cities create jobs, grow business and, most importantly, strengthen neighborhoods.”
And, he said, that tool can be used to promote home ownership in urban areas — what Perez called the “ticket to the American dream.”
But representatives of the Institute for Justice, the nonprofit law firm that represented the plaintiffs in the Kelo case, see the momentum for legal change swinging in their direction. They say that more and more conservatives and liberals are joining forces to fight eminent domain, with conservatives continuing their effort to preserve property rights and liberals declaiming the displacement of the poor.
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Sen. Orrin Hatch, R-Utah, announced at the hearing that he would introduce legislation to create a federal ombudsman for eminent domain who would handle complaints and requests for advice from affected property owners across the country. The bill is based on a similar law passed in Utah, he said.
Cornyn said he has picked up 28 co-sponsors for his bill so far, including two Democrats, without a concerted lobbying effort. The conservative Republican stood side by side before reporters Tuesday afternoon with Rep. Maxine Waters, D-Calif., who is considered one of the most liberal Democrats in Congress.
While many Republicans have jumped more quickly to the eminent domain issue since the court decision was announced, Waters predicted that her party, too, would soon do the same. The issue, she said, has much more to do with sympathy for individuals forced to battle City Hall than with party affiliation.
“I think it's going to be hard in the final analysis for many legislators to be against stopping the taking of private property,” she said.
When reporters asked if the ongoing recovery from Hurricane Katrina would detract from the attention for eminent domain reform, Waters said she thought the rebuilding effort along the Gulf Coast might lead to more public questioning about the effect of new planning on the poor.
Congress, she said, must “make sure that the shadow government of the rich and the powerful does not end up abusing eminent domain to take property that belongs to poor people in order to get them out of the city. We've already heard those kinds of rumblings, that they want to redo, rebuild New Orleans, but they don't want to rebuild it with the same constituency. They want to get rid of too many poor people.”
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Those concerns are music to the ears of Scott Bullock, a senior attorney at the Institute for Justice who argued the Kelo case before the Supreme Court.
While his organization hopes to persuade individual states to revise their respective statutes, Bullock said that congressional action was “a very important part of the process,” particularly because of the federal government's ability to exert leverage by denying funds.
But for Merrill, a respected scholar of property law who filed a brief on behalf of New London in the court case, the comments of the lawmakers were cause for caution. He said he feared that Congress, in a rush to react to the outrage of voters, might make a change that restricts the ability of cities to improve themselves without clarifying the rights of citizens.
“I think there's a very big desire to pass something so they can tell their constituents that they did act and respond to the Kelo problem,” said Merrill.
But the “great danger,” he said, is that any law passed by Congress could be “largely symbolic and potentially harmful, because it would not actually do anything for the homeowners.”
Staff members of Connecticut Sens. Joseph Lieberman and Christopher J. Dodd said neither had signed on to the Cornyn bill, though both Democrats were following the debate.
“At this time, Senator Lieberman is inclined to believe that reform of eminent domain should be undertaken at the state, not federal level, as was suggested by the Supreme Court,” said Lieberman's press secretary, Casey Aden-Wansbury. “However, he is sympathetic to the concerns raised by the homeowners, and will continue to review the court decision and the Judiciary Committee deliberations on this matter.”
In a written statement, Dodd said he was “not averse to legislation that would more carefully balance the rights of homeowners with the interests of towns and cities that are trying to create jobs. It's a complicated issue and one that deserves careful consideration.”
Cornyn says he expects further action this fall on his bill. No hearing dates have been announced.
A subcommittee of the House Judiciary Committee will begin eminent domain hearings of its own on Thursday.
Posted by lumi at September 22, 2005 09:16 AM