Jenner & Block

Amicus Brief: Private Property Acquisitions by Govt for “Economic Development” Unconstitutional

Taking private property for the alleged “economic development” of a community violates the Takings Clause of the Fifth Amendment, according to a Jenner & Block amicus brief filed in a U.S. Supreme Court case that questions whether court decisions that have been interpreted to expand the “Public Use” doctrine of that Amendment have gone too far and erase citizens’ constitutional rights to their property.

The brief was filed in Kelo v. City of New London, No. 04-108, a dispute which arose out of a Connecticut municipality’s attempt to seize non-blighted private land from homeowners in order to make way for a large research facility that would ostensibly expand economic opportunities in the area.

The eminent domain power of the Fifth Amendment, which prohibits the taking of private property unless it is for “public use” and its owners are compensated for the loss, has historically only been wielded by the government to make way for public transportation projects, such as interstate highways, or to help rejuvenate blighted areas and decaying communities.

Critics have charged that local governments are increasingly using the clause to boost local tax revenue and that the practice invites the very abuse of governmental power that the Framers intended to prevent with the Fifth Amendment.

“In practice, the ‘Public Use’ limitation of the Fifth Amendment’s Takings Clause has all but disappeared,” wrote Partner Barry Levenstam, Co-Chair of the Firm’s Appellate and Supreme Court Practice, and Associates Jeremy M. Taylor and John Haarlow, Jr. in the brief.

“Authorities justify these takings by reference to speculative, often illusory, indirect public benefits of higher tax revenues and more jobs,” the brief says.  “These anticipated benefits, however, often are never realized…”

“In addition, ‘economic development’ is so broad a justification that it invites the wealthy and powerful to appropriate the eminent domain power for their own advantage and…to authorize takings of almost any land at any time, from anyone…,” the brief continues.

The brief cites many examples of state and local agencies using eminent domain to take any property those bodies see fit.  For instance, the brief notes a recent case in Nevada where the Las Vegas Redevelopment Agency demolished an otherwise flourishing city block, displacing many small businesses, to make way for a parking lot desired by a number of  politically-connected casinos.  The judge who issued the turnover order, on an ex parte basis because the Agency had given improper notice, was an investor in one of the casinos and another had hired his son.  After seven years of litigation, the Nevada Supreme Court upheld the condemnation, overturning a trial court decision by a different judge that it violated the Takings Clause of the Fifth Amendment.

The brief also notes that modern social science confirms many of the Framers’ ideas about the importance of private property ownership for preserving liberty and the general welfare of citizens.  In addition, the brief says research studies have shown there to be “hidden costs” from certain uses of eminent domain.

One of the most troubling hidden costs of eminent domain use is “the destruction of the community itself,” according to the brief.  “Eminent domain scatters church congregations, grade school classes, and extended family units to the four winds.”  The brief also details some of the largely unreported harmful psychological effects on the former residents of condemned communities and documents how the power of eminent domain may be abused to target minorities or other underprivileged communities.

The Jenner & Block team filed the amicus brief on behalf of a coalition of non-profit, non-partisan groups, including the Better Government Association, a watchdog group that monitors waste and corruption in government that could jeopardize the notion that a “public office is a public trust;” the Citizen Advocacy Center, an organization “dedicated to strengthening American democracy in the 21st century;” the DKT Liberty Project, a groups that promotes civil liberties against government encroachment; the National Institute for Urban Entrepreneurship, a Washington, DC-based corporation that develops programs that “support the growth of viable, sustainable businesses by Blacks, Latinos, and other entrepreneurs of color;” and the Office of the Community Lawyer, which was founded to provide free legal services to individuals at a local and state level.

Please click here to view the amicus brief.