The Pacific Legal Foundation's Steven Geoffrey Gieseler has an article on The American Spectator's website about the lamentable fact that Congress and the presidential candidates are discussing "saving people's homes" with regard to the home mortgage crisis--but ignoring the need to save their homes from eminent domain. Excerpt:
As stressful as losing a home to foreclosure may be, most such homeowners at a minimum share in the blame for their predicaments. After all, many agreed to loan terms that amounted to little more than gambles that, it turns out, haven't paid off.
In contrast, those who lose their homes to their federal, state, or local governments via eminent domain for private purposes are victims in the truest sense of the word. These people have done nothing wrong other than live on plots of land that more politically connected parties, and the politicians they're connected to, have decided the owners are no longer worthy of keeping.
And now, to add insult to injury, the people running for President are saying nothing about this travesty....
Here’s a good story from Kansas City's channel 4 news (be sure to click on "video") that explains why the Tourkakis eminent domain case is so important. If the Missouri Supreme Court expands the state law known as the TIF Act to allow not only charter cities but all cities, to use eminent domain for redevelopment, homeowners in small towns like Sugar Creek face the condemnation of their homes for the benefit of private developers.
(The news story is a little bit misleading in that it says the question in the Tourkakis case is about whether small non-charter cities can "use eminent domain." Actually, the case is only about whether they can use eminent domain for redevelopment under the TIF Act. All cities have the power to use eminent domain to build roads or schools or other public uses, and this case would not affect that.)
The News-Leader had a great editorial on the Tourkakis case by Dave Roland of the Show-Me Institute. Excerpt:
When the Missouri Supreme Court hears arguments in City of Arnold v. Tourkakis today, it will have to choose between two very different paths. The court could side with the city and its commercial developers, meaning that virtually every home, business, and house of worship in the state could be condemned and given away for the profit of a government-chosen owner. Or the court could turn the tide in favor of individual liberty by deciding that the state Constitution's protections for private property still have meaning. So watch this case carefully — your constitutional freedoms are hanging in the balance.
A while back I discussed the Colorado Supreme Court's decision in the Wheat Ridge case, which held that courts could not compel cities to use eminent domain to transfer land to private developers—but which contained some very disturbing language about the government's power to "redistribute" land through eminent domain.
Today the Ninth Circuit Court of Appeals decided Matsuda, et al. v. Parker, et al., a case coming from Hawaii, that addresses a similar issue. There, a group of individuals asked the government to condemn land and give it to them under Hawaii's abusive eminent domain laws—laws which were addressed in the infamous Midkiff case twenty years ago. After the people had submitted their application, the government decided to repeal its eminent domain ordinance and not condemn the land after all, and Matsuda and others sued, arguing that this decision violated the Contracts Clause of the U.S. Constitution, by revoking the existing agreement. The city responded that it could change its mind, because just as government may not promise that will refrain from using eminent domain, so it cannot promise that it will use eminent domain—the "reserved powers doctrine." The trial court agreed.
The Ninth Circuit's decision, however, disagrees.
the City's contracts with the Lessees do not restrict its ability to exercise its eminent domain power in any way. The contracts reflect the City's voluntary undertaking to use its best efforts to effect a condemnation of the property at Discovery Bay and to convey that property to the Lessees if successful. The contracts do not purport to require the City to refrain from the exercise of any sovereign power, including the power of eminent domain. Instead, the contracts reflect the City's decision to initiate proceedings to exercise its power of eminent domain over the property at Discovery Bay, and to convey the property to the Lessees if successful. This is not the type of agreement to which the reserved powers doctrine applies....
The court therefore remanded the case back to the trial court to determine whether the city's actions violated the Contracts Clause.
It seems reasonable to say that if the government makes an agreement with a developer to use a power—a power I think unconstitutional and illegitimate, but which has been sanctioned by the responsible authorities—and then changes its mind, then the developer should at least get his money back. But I think it is really poor judgment to create any incentive for government to go through with a redistributive condemnation if it chooses not to, or to create obstacles in its path to doing so. The choice to condemn is not on a par with the choice not to condemn—that's why the law creates presumptions and requires strict construction of laws regarding eminent domain. I think courts should make it easy for government to refrain from condemnation.
Gideon Kanner has a negative review of Jeffrey Toobin's book The Nine, at least those portions dealing with the Kelo case. Excerpt:
So how does Toobin explain the country's vigorous reaction to this supposedly ho-hum controversy? It was the doing of "the conservative movement," that's how. It was the likes of Tom DeLay and John Cornyn, and their ilk, says Toobin, that stirred up[ trouble after the Kelo opinion came down. What utter nonsense! Remarkably, Toobin fails to mention that the likes of the ACLU and the NAACP had filed amicus curiae briefs solidly on Suzette Kelo's side. Some conservatives.
On Thursday, January 17, I will be at the Missouri Supreme Court making the argument in Cityof Arnold v. Tourkakis. This is the case in which a small city south of St. Louis is trying to condemn the dentist office of Homer Tourkakis, so that they can construct the Arnold Commons, a retail center featuring a Lowe's, an Office Depot, and other stores.