Eminent Property Justice

William Minnich and his nephew Bill were unaware that New York’s Empire State Development Corp. had condemned their building. As owners of Minic Custom Woodwork in East Harlem, a thriving family business for more than 75 years, the Minnichs knew that there was nothing wrong with their building. Nevertheless, the state’s development authority planned to transfer the Minnich family’s property to a private developer, who wanted the land for a Home Depot parking structure.

In Port Chester, N.Y., Bill Brody, a hardware store owner, received no notice when the local development authority condemned his business location. Ironically, Mr. Brody had spent significant sums of money purchasing and renovating four adjacent buildings. Again, there is no public crisis requiring Mr. Brody to surrender his land to the local authority; there is only greed. The Port Chester authorities want his land so they can give it to a businessman who plans to build a Stop & Shop.

Last month, after years of bad publicity and mounting legal challenges, Gov. George Pataki finally signed into law a bill requiring the State of New York, state agencies, municipalities and public authorities to inform property owners via certified letter when the state intends to seize their property. The Fifth Amendment allows government to legally take private property for "public use" to build needed services like bridges and roads; the legal term for the government’s prerogative over private property is "eminent domain." However, until Mr. Pataki signed last month’s bill, a property owner had no way of knowing when his home or place of business had been condemned. Property owners also had no way of knowing that they have the right to fight the arbitrary confiscation of their property. Abuse of eminent domain is a violation of the Fifth Amendment.

Mr. Pataki vetoed a similar bill last year, even though it had passed the legislature with unanimous bipartisan support. New York Attorney General Elliot Spitzer had opposed the law, claiming it would be too costly to use the U.S. mail to inform property owners of their rights. Apparently, Mr. Spitzer favors the practice of publishing cramped, hard-to-read advertisements in the legal notice sections of newspapers. Mr. Spitzer’s preferred methods are certainly more effective from a practical standpoint – it doesn’t require a law degree to understand that one reason the authorities wish to keep property owners from contesting condemnation is because those owners could well prevail in court against abuse of eminent domain.

Laws are not retroactive so the eminent domain cases being litigated are not affected by the new law. Mr. Brody and the Minnichs are fortunate to be championed by New York’s Atlantic Legal Foundation and the Washington-based Institute for Justice (I.J.). These law firms provide free representation and have already succeeded in bringing about an exceptionally favorable settlement for the Minnich family. Though the Brody case is continuing, the tireless work of Atlantic Legal and I.J. ensured that the legislature could no longer ignore the manifest injustice in the notification process.

Eminent-domain abuse is a problem across the country, and I.J. has an especially impressive track record doing battle against it. In New Jersey, I.J. tangled with Donald Trump when his company persuaded state authorities to condemn an elderly widow’s Atlantic City home. Mr. Trump wanted her land for a limousine parking lot for his casino customers. It gets worse. Billionaire Trump’s eminent-domain apprentices tried to force the widow to hand over her land for a fraction of its market value. I.J. stood up to Mr. Trump and protected the widow’s rights. She continues to live in her home.

The U.S. Supreme Court announced three weeks ago that it will hear Kelo vs. City of New London, Conn., a case being litigated by I.J. in which a local authority is using eminent domain to take the homes of working-class folks to build a luxury hotel, health club and conference center. Their reason? They wish to increase the city’s real estate tax base. "People get really angry when their homes are taken so that someone richer can live there," says Dana Berliner, an I.J. attorney. "Every house in the country would generate more tax revenue if it were turned into a bigger house or a Costco."

I.J.’s successful petition to the Supreme Court was supported by a friend-of-the-court brief filed by the Sacramento-based Pacific Legal Foundation. The brief argues that the unconstitutional expansion of the public-use clause in eminent domain has given unfair advantage to rich and powerful interests over poorer property owners. Their brief was joined by two George Mason University economists – James Buchanan, a 1986 Nobel Prize winner, and Gordon Tullock of the Mercatus Center.

Atlantic Legal, Pacific Legal and the Institute for Justice are part of what is known as the freedom-based public-interest law movement, an informal affiliation of some three dozen legal foundations that work diligently to uphold the principles of the U.S. Constitution. These independent organizations work across the legal arena to defend freedom of speech, school choice, worker’s rights, religious liberty and economic rights. They work to ensure that no American is denied the fundamental liberties enshrined in our Bill of Rights.

A new book tells their story. Available this month, "Bringing Justice to the People" (Heritage Books, 2004) chronicles the remarkable 30-year history of the freedom-based public-interest law movement. (Full disclosure: I contributed the chapter on freedom of speech.) An enterprising TV producer will find in this book’s descriptions of landmark cases a veritable blueprint for a "Law and Order"-type television – something on the order of "Freedom and the Law: Stories From the Champions of Individual Rights."

Susette Kelo, one of the New London homeowners, brings to life the importance of their work: "It is going to mean everything in the world if the U.S. Supreme Court saves my home. I’m so happy for myself and my elderly neighbors who just want to stay in their homes."