Eminent Domain - Good or Bad Decision?

The following appeared as a guest column in the Rochester, Minnesota Post Bulletin, August 11, 2005

The recent Supreme Court decision, Kelo v. New London, confirmed the power of governments to use eminent domain to force the involuntary sale by landowners for economic development purposes. Critics have charged that the Supreme Court decision is an egregious abuse of our property rights, and there is much foment in Congress and some state capitols to restrict the purported stretch of the opinion. These efforts may be ill advised in light of the facts of the case and the actual holding of the opinion.

In 2000, the City of New London, Connecticut approved an economic development plan that was intended to create an estimated 1000 new jobs, increase tax revenues to the city, and revitalize an economically distressed waterfront area. The plan included a public park, a marina, various office and commercial buildings, and residential housing.

The City, through its development arm, purchased numerous sites in the redevelopment area and attempted to acquire the remaining sites through negotiation. When several of the owners refused to sell, the City proceeded to acquire the property through eminent domain. Without the acquisition of all of the property the redevelopment plan could not be accomplished.

Several land owners sued to block the eminent domain proceedings on the basis that the taking of their property was not for a “public purpose” as required by the 5th Amendment to the Constitution of the United States because part of the redevelopment would include selling the property acquired back to private individuals or businesses. They argued that the forced relinquishing of property from one private party to another private party cannot constitute a public purpose.

The majority, in ruling for the city, emphasized that the taking was in accordance with a detailed development plan, which would potentially enhance the value of the area to the City and create much needed jobs. They held that the economic development which would result was sufficient “public purpose” to meet the requirements of the 5th Amendment even though some of the property would be turned back to other private interests.

The dissenting Justices concluded that taking property for economic development purposes provides only a tangential value to the public; and, therefore, does not meet the 5th Amendment standard for a “public purpose.” With the exception of the park, much of the redeveloped area would not be available to the general public. The dissent also made the point that the position of the majority would potentially put the property of every citizen at risk if a governmental body concluded that it could get a “higher” use from the property. The majority’s emphasis on the existence of a detailed development plan was an attempt to mitigate this argument.

This case involves competing values, both of which have validity. The city wanted to create an attractive area for its citizens and visitors, create additional jobs, and increase revenues to the city. Without the power of eminent domain, the redevelopment plan could not be put into place. The property owners wanted the continued right to enjoy their homes and businesses without interference from the government.

In Minnesota, city governments have the power to exercise eminent domain so long as the taking is for a public purpose, the taking is necessary to achieve the public purpose, and fair value is paid for the property. The City of Rochester has the kind of power the Supreme Court ratified in the Velo Case, but has used it very sparingly. In almost all cases, the City has been able to negotiate satisfactory solutions with landowners.

Rochester is currently engaged in an economic redevelopment planning effort for the downtown area. If its efforts to negotiate the purchase of properties to make the plan work are not successful, should the City of Rochester use its powers of eminent domain to accomplish the objective of a revitalized downtown area? Should Rochester exercise its power to force the sale of the property of a landowner so that it can resell the property for a “higher” use to another private owner to make the development plan a reality?

These are questions which may come before the Rochester City Council in the weeks and months ahead. Let us hope that the council has the wisdom of Solomon in deciding these difficult questions, if presented. The answers are not nearly so clear-cut as the rhetoric regarding the Supreme Court’s decision would indicate.

Mr. Cheney - Will He Last?

Six months ago, I suggested to a friend that Dick Cheney might be replaced as Vice-President before the end of Bush’s second term. We discussed the possibility that Cheney’s health might be used as the reason for leaving the Administration. Recently, we have heard that Mr. Cheney has visited the hospital on a couple of occasions with a health issue related to his heart. Is this real or is it feigned? Only time will tell.

Why would the President’s handlers want to ease Mr. Cheney out? Several possible reasons come to mind. Except with regard to the hard right, Mr. Cheney is seen as the dark image of the administration. His well-publicized support of an exception for the CIA to the ban on torture and inhumane treatment has received very negative publicity. The indictment of Scooter Libby out of Mr. Cheney’s office in the CIA/Valerie Plame affair will also continue to result in negative publicity for the Vice-President with possible increased disclosures about Mr. Cheney’s participation in the vindictive activity of outing Ms. Plame. Mr. Cheney could well be considered a negative in the perception of the President by the general populace.

Perhaps, the most important reason for easing Mr. Cheney out might be the presidential election of 2008. The most logical candidate to succeed a term-limited President is the Vice-President. While there have been some feelers about backing off his statements that he would not be a candidate in 2008, it is reasonable to assume that Mr. Cheney would not be the GOP candidate, particularly with his high negatives. The rise in stature of Senator McCain, who has been a thorn in the side of the Bush Administration, particularly on the conduct of the Iraq invasion, and who has been increasingly mentioned as the GOP candidate for president in 2008, may also be a consideration.

Easing Mr. Cheney out and appointing someone to the Vice-Presidency who would be given some highly visible responsibilities would provide that person a leg up for the GOP nomination for President in 2008. That would allow the Bush supporters to maintain control of the Republican Party, if not the entire country if the GOP candidate wins. On, the other hand, a nomination by the Republicans of McCain or someone from the more moderate wing of the GOP would probably mean the demise of the influence of the Bush supporters, even if the GOP candidate won the election.

For these reasons, easing Mr. Cheney out would make good political sense. However, it would be politically dangerous if it is perceived by the Republican right that it is being done. Hence, it is necessary to cover the exorcism with a reasonable basis to keep the Republican right in check. Poor health would be a politically defensible basis for the resignation of the Vice-President.

The next few months and the fate of Mr. Cheney as Vice-President will be fascinating to watch. If he leaves the office, the selection of a successor will be very interesting. If he remains in office, his continuing role will also be very interesting. Let us wait and see.