PLF on Eminent Domain

What Would Proposition 99 Do?

by Timothy Sandefur

Many people are under the misimpression that Proposition 99—the ballot initiative supported by a coalition of government groups—would protect homes from seizure through eminent domain. The fact is that it would not, except perhaps in extremely rare circumstances.

Although the initiative declares that government would not be allowed to “acquir[e] by eminent domain an owner occupied residence for the purpose of conveying it to a private person,” another section undoes this protection for almost every conceivable case. It declares that “Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.” And the definitions section states that

“Public work or improvement” means facilities or infrastructure for the delivery of public services such as education...parks, recreation...libraries...streets or highways, public transit...and private uses incidental to, or necessary for, the public work or improvement.

What this means is that a city could condemn land including owner-occupied homes, to construct a shopping center so long as it put a community center or a branch of the local library, in the shopping center. For example, the Victoria Gardens shopping complex in southern California includes a branch of the local library and a community center next to a multimillion dollar collection of stores. If a city decided to construct such a mall, and to seize owner-occupied homes to do so, Prop. 99 would not apply and the homeowners would not be protected. It would therefore be extremely easy for government officials to organize projects to avoid even the small protections provided by this initiative.

Of course, owner-occupied homes are not the typical victims of eminent domain, anyway. Usually, it’s small businesses that are targeted for seizure, since redevelopment projects take place in areas zoned for shopping centers and the like. Thus Proposition 99 would have little effect even aside from this large loophole. But even owner-occupied homes would receive very little protection from this proposal.

An Email from A Bureaucrat

by Timothy Sandefur

This morning, I received the following email from Lee Cameron, executive director of the Economic Development Corporation in Freeport, Texas, and the site of the Western Seafood eminent domain case. Mr. Cameron, writing from a government email account paid for by tax dollars, writes:

You probably don't care but I am going to tell you anyway.  Carla Main's book is a work of fiction.  The truth did not fit her purpose so she eagerly accepted the spoon fed version given her by Wright Gore.  Gore is a master manipulator and has been the antagonist from day one.  Thre would have been no eminent domain proceedings in Freeport if he had not attempted to stop the development.  The Gore family considers the river as their private property and their attack on Freeport is all about greed and power.  It's as simple as that.

Lee Cameron

Well, the public can read Ms. Main's excellent book and judge for themselves whether it is family business owner Wright Gore--or ambitious bureaucrat Lee Cameron--who is really "all about greed and power."

(I tried responding to Mr. Cameron's email, by the way, but he had blocked me.)

Why Prop. 99 Will Do Nothing to Protect Property Rights

The Institute for Justice has prepared an important analysis of California's Proposition 99, the eminent domain initiative sponsored by an alliance of government agencies. You can read it here. IJ concludes,

Prop 99 will provide insubstantial protection against the use of eminent domain for private commercial development. Small business owners will continue to lose not only their buildings, but also their incomes. All farmers and working class renters are at risk.  Homeowners may not even be protected. Californians require real, substantive reform for everyone and Prop 99 does not come close to providing it.

Epstein on the Didden Case

Here's an article by University of Chicago law professor Richard A. Epstein on the awful Didden v. Port Chester case which the Supreme Court declined to hear last year. Here's the brief that Pacific Legal Foundation filed in that case. Excerpt:

[O]ur Supreme Court remains on a constitutional holiday. Over and over the justices blithely assume that conscientious planners acting in good faith are entitled to ample discretion in allocating the costs and benefits of our social life. Sounds great on paper, but the sorry saga of Port Chester shows that when it comes to real estate, we have a government not of laws but of politicians. In matters that they really care about, like race and free speech, judges are quite capable of seeing through airy abstractions to harsh realities. Why can't they do the same for property rights?

More here by Prof. Ilya Somin.

Orange County Eminent Domain Event

by Timothy Sandefur

I will be appearing on a panel tonight at Chapman University School of Law to discuss "Eminent Domain, Property Rights, And Ballot Proposals: Where Do The Government Powers End And Citizens' Rights Begin?" The event is free to the public. For more information, email chapmanfederalist@gmail.com

City of Arnold Attacks The Tourkakis Family

by Timothy Sandefur

The City of Arnold, Missouri, has issued a press release on city letterhead attacking Homer and Julie Tourkakis for daring to defend themselves in the courts when the city decided to condemn their property. You can read that abusive press release here. Today, the city sent this press release by mail to every voter in the city.

In response, I wrote the following letter to the editor of the Jefferson (MO) County Journal:

Dear Editor,

It is a sad day when elected officials not only wield their power to seize the property of law-abiding citizens, but also take the time to denigrate them in public with press releases written and published on the taxpayer's dime. But this is just what the City of Arnold has chosen to do in a press release which it mailed to every voter in the City (at taxpayer expense), and in a recent story in this paper.  In these statements, the City has called Homer Tourkakis a liar and accused him of various wrongful acts in seeking to defend his property from the city’s use of eminent domain.

Let us get the facts right.  The City decided to take away Dr. Tourkakis's dentist office without his consent, and give it away to a multimillion dollar private development company to construct a shopping center. Unfortunately for every citizen of Missouri, the city succeeded, in the process changing state law so that now every town and village in Missouri, no matter how small, can use eminent domain to seize people's homes and businesses and give the land to favored private interests.

That inexcusable abuse of authority alone indicates the contempt that Arnold's bureaucrats have for the rights of residents. Yet still it was not enough for them; in the meantime, they called Dr. Tourkakis "selfish" for standing up for his constitutional right of private property, and are now accusing him in letters sent to City voters of lying about how much money they "offered" him for his land—"offered," that is, along with the threat of eminent domain. But it does not matter how much the city "offered" him. As an American and a property owner, Homer Tourkakis had the right to refuse any such offers, and to insist on a fair day in court. The city now claims that for him to exercise his constitutional right to due process of law was "wasteful" and a "delay."  Shame on them.

City officials are employees of the public. For them to waste the people's money by attacking Dr. Tourkakis for defending himself in court—as he has a constitutional right to do—is dismal proof of their irresponsibility, lack of professionalism, and contempt for individual rights.

Sincerely,
Timothy Sandefur
Senior Staff Attorney, Pacific Legal Foundation, and attorney for Homer and Julie Tourkakis

PLF's New Website

Today, the Pacific Legal Foundation unveiled its brand new website. We hope it'll be more user-friendly and contain much more helpful information for readers, the media, and our supporters. Check it out!

State Abuses Eminent Domain Law

by Timothy Sandefur

The Springfield (MO) News-Leader has my editorial about the Tourkakis case. Excerpt:

After the U.S. Supreme Court's infamous decision in Kelo v. New London, which allowed government to use eminent domain to seize homes and businesses and give the land to private developers, citizens of Missouri might have hoped that their state courts would understand the need for a restrained interpretation of eminent domain. Unfortunately, the state's highest court chose this week to expand that power even further than the Kelo case did, and in the process, it put every home and business owner, every farmer and church member in Missouri at risk. Now, only an amendment to the state constitution can protect Missourians from the abuse of eminent domain.

(Read the rest...)

Eminent Domain Forum at Chapman University

Chapman University Law School will be hosting a forum on eminent domain, and on California's Propositions 98 and 99, on Monday, April 14, at 5:30 p.m. PLF's Timothy Sandefur will be among the panelists. More information on the Orange Juice Blog here.

Motion for Rehearing in Tourkakis

by Timothy Sandefur

The Pacific Legal Foundation filed a motion for rehearing in the Missouri Supreme Court yesterday, asking the Court to reconsider part of its decision in City of Arnold v. Tourkakis. The petition asks the Court to clarify what procedural mechanism should be employed when the case proceeds in the trial court. Since the TIF Act (the law under which the city claims its eminent domain authority) does not specify any procedure to be followed, we've asked the Court which of the many sets of rules for eminent domain cases ought to apply. You can read the petition here.

What the Next President Can Do for Property Rights

Our friend Prof. Ilya Somin has an excellent article on what the next president can do to protect property rights from eminent domain abuse and other problems.

Atlantic Yards Cert Petition Filed

The property owners in the Atlantic Yards eminent domain case in New York have filed a petition for certioari in the United States Supreme Court. How Appealing has the details and a copy of the brief.

Missouri Citizens for Property Rights

The Columbia Tribune's Politics Blog has an interview with Ron Calzone of Missouri Citizens for Property Rights about the Tourkakis case.

Amend the State Constitution to Protect Property Rights

PLF client Homer Tourkakis has this article in St. Louis Today this morning, explaining why the only hope for protecting property rights in Missouri is to amend the state Constitution. Excerpt:

My wife, Julie, and I opened our dental practice in 1985. We raised two beautiful daughters and sent them to Missouri colleges. We've tried to be good citizens, providing good health insurance to our employees and treating patients who couldn't always afford to pay.

But our contributions to the community didn't count for much when the city of Arnold decided to redevelop the area called the Arnold Triangle where our business is situated. Eminent domain once was limited to public uses such as roads, courthouses and schools, but a 2005 U.S. Supreme Court ruling confirmed the right of local governments to use it to evict property owners like me to make room for other businesses that generate more economic activity and more tax revenue.

The city likes to emphasize that eminent domain law requires compensation. What it doesn't say is that the compensation I would receive doesn't come close to covering the costs of moving. Setting up our dental practice required extensive modifications to our office and the purchase of expensive and fragile equipment. Moving our equipment and setting up a new office would impose tens of thousands of dollars in costs, maybe more, that wouldn't be covered by the city.

But ultimately, this fight is not about money. If a big developer wants land, it should get it the same way I did: by buying it from a willing seller. If I'm not interested in selling — which I'm not — no private business should have the right to force me off my land.

(Read the rest...)

"Unlimited And Practically Absolute"

by Timothy Sandefur

Columnist Paul Jacob has this excellent editorial on the Tourkakis case. Excerpt:

In this case, Arnold v. Tourkakis, the judges one-upped the infamous Kelo decision, ignored the state constitution, and overruled the lower court's good sense.

All to give Arnold the power to abuse eminent domain. This may not sound like much, but Arnold is not a chartered city, and the state's constitution granted eminent domain powers only to chartered cities, leaving it up to the legislature to grant such powers to other entities, like Arnold. The legislature never did that.

Missouri's top judges, however, ruled that by passing legislation on the general subject of eminent domain the legislature mysteriously meant to grant non-chartered cities the power to do anything that chartered cities can.

The court ruled that governments have an "unlimited and practically absolute sovereign power of eminent domain" to take our property at their whim.

(Read the rest...)

Jefferson County Journal on the Tourkakis Case

by Timothy Sandefur

Here's an unusually good story on the Missouri Supreme Court's Tourkakis decision. Excerpt:

With the ruling, Tourkakis said his belief in an individual's right to own property might be a myth. And, while he admits the whole experience has been unpleasant and exhausting, he has no misgivings about what he and his family tried to accomplish.

In fact, the battle with the city of Arnold has taught Tourkakis just how close his family is.

"With a great family unit you can overcome quite a bit, even when things don't turn out how you want," Tourkakis said.

Ron Calzone, chairman for Missouri Citizens for Property Rights, said he was not only disappointed by the court's ruling but also frustrated with the legal rationale behind the decision and that only one judge dissented.

He was quick to add that Tourkakis and his family were not being selfish in the case.

"They were trying to do this for all Missourians," Calzone said. "They're heroes in my book."

Now Tourkakis and his family are looking forward, deciding the best direction for their future.

"It's changed my whole financial picture," Tourkakis said about the case's impact on his life.

He added that when people are forced to leave their homes, spec houses are sometimes built as temporary residences.

"No one is building spec dentist offices," he said.

(Read the rest...)

PLF Press Release on Tourkakis Decision

Here is the Pacific Legal Foundation's press release regarding the Missouri Supreme Court's decision yesterday.

Missouri Supreme Court Allows City to Seize Homer Tourkakis' Land

by Timothy Sandefur

The Missouri Supreme Court yesterday issued a short opinion allowing the third class city of Arnold, Missouri to use eminent domain to condemn land owned by PLF client Homer Tourkakis and transfer it to a private developer to construct a multimillion dollar shopping center. As you can see by comparing the opinion with the brief that PLF filed on Dr. Tourkakis' behalf, the Court paid little attention to our lengthy analysis of the TIF Act, the state law which the city claimed gave it the power to condemn the property. In that brief, we explained that there was no indication that the Act gave third class cities this power, and in fact the Act lacked any mechanism for condemnation. The Court responded to this with a single sentence: "The City is authorized under several statutes, including the TIF Act, to exercise eminent domain."

The decision is very unfortunate, in that the Court has expanded the eminent domain power to allow all Missouri cities, no matter how small, to condemn private property for transfer to politically influential developers. Every citizen of Missouri is now at risk for having his or her home, business, farm, church, or other property taken away and made into a shopping center, or a theater, or a hotel, or whatever else officials think worthwhile.

I am in Kansas today, and will have more to say about the case when I return to PLF's Sacramento headquarters tomorrow.

Here is news coverage from the St. Louis Business Journal, the Springfield News Leader, the St. Louis Post-Dispatch, the Associated Press, the Castle Coalition, and KMMU News.

Americans for Prosperity Conference in Topeka

by Timothy Sandefur

I will also be speaking at the Americans for Prosperity Summit in Topeka, Kansas on Wednesday, March 19. More info here.

M.O.R.R. Conference on Eminent Domain in California

by Timothy Sandefur

I will be speaking at the MORR conference on Redevelopment Abuse in Anaheim on Saturday. That's the Municipal Officials for Redevelopment Reform. Also on the bill are Anaheim Mayor Curt Pringle, Orange County Supervisor Chris Norby, Orange County Register columnist Steven Greenhut, and Dr. Mindy Fullilov, author of Root Shock: How Tearing Up Neighborhoods Hurts America. More info here.