<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24723.wais]
S. Hrg. 109-208
THE KELO DECISION: INVESTIGATING TAKINGS OF HOMES AND OTHER PRIVATE
PROPERTY
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 20, 2005
__________
Serial No. J-109-38
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas,
prepared statement............................................. 46
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 4
prepared statement........................................... 54
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 78
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 97
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 99
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Eagle, Steven J., Professor of Law, George Mason University
School of Law, Arlington, Virginia............................. 17
Jenkins, Fred, Pastor, St. Luke's Pentecostal Church, North
Hempstead, New York............................................ 8
Kelo, Susette, New London, Connecticut........................... 6
Merrill, Thomas W., Charles Keller Beekman Professor of Law,
Columbia University School of Law, New York, New York.......... 14
Perez, Hon. Eddie A., Mayor, Hartford, Connecticut, on behalf of
the National League of Cities.................................. 10
Shelton, Hilary O., Director, Washington Bureau, National
Association for the Advancement of Colored People, Washington,
D.C............................................................ 12
QUESTIONS AND ANSWERS
Response of Steven J. Eagle to a question submitted by Senator
Cornyn......................................................... 29
Responses of Eddie A. Perez to questions submitted by Senator
Cornyn......................................................... 34
SUBMISSIONS FOR THE RECORD
Berliner, Dana, Senior Attorney, Institute for Justice,
Washington, D.C., prepared statement........................... 36
Blue, Robert (Bob), Blue Family and Bernard Luggage Company,
Hollywood, California, letter.................................. 42
Brnicevic, Linda and Cameron McEwen, Bound Brook, New Jersey,
letter......................................................... 44
Bryant, Mark, Smith County, Mississippi, letter.................. 52
Dahl, Mark T., M.D., Afton, Minnesota, letter.................... 56
Didden, Bart A., Port Chester, New York, letter.................. 57
Eagle, Steven J., Professor of Law, George Mason University
School of Law, Arlington, Virginia, prepared statement......... 60
Farris, Don and Lynn, Lakewood, Ohio, letter..................... 77
Freier, Dan, Minneapolis, Minnesota, statement................... 79
Gore, Wright, III, Western Seafood Company, Freeport, Texas,
letter......................................................... 81
Hetzel, Michael B., Shady Cove, Oregon, letter................... 83
Institute for Justice, Arlington, Virginia, statement............ 87
Jenkins, Fred, Pastor, St. Luke's Pentecostal Church, North
Hempstead, New York, prepared statement........................ 84
Kelo, Susette, New London, Connecticut, prepared statement....... 94
Littrell, Dorothy E., CPA, Ogden, Utah, letter................... 101
MacCloud, Bruce R., Long Branch, New Jersey, letter.............. 103
Merrill, Thomas W., Charles Keller Beekman Professor of Law,
Columbia University School of Law, New York, New York, prepared
statement...................................................... 106
Morley, Barbara, Lincoln, Nebraska, letter....................... 124
Panday, Gopal K., Long Branch, New Jersey, letter................ 126
Penner, Daryl, American Formal & Bridal, Kansas City, Missouri,
letter......................................................... 127
Perez, Hon. Eddie A., Mayor, Hartford, Connecticut, on behalf of
the National League of Cities, prepared statement.............. 128
Regenold, Daniel P., Chief Executive Officer, Frame USA,
Cincinnati, Ohio, letter....................................... 137
Seravalli, John, Daytona Beach, Florida, statement............... 138
Shelton, Hilary O., Director, Washington Bureau, National
Association for the Advancement of Colored People, Washington,
D.C., prepared statement and attachment........................ 139
S.T.O.P., (Sumner Trousdale Opposing Pipeline), David Baker,
Gallatin, Tennessee, statement................................. 146
Tan, Cheng, Jersey City, New Jersey, statement................... 149
Tranter, Richard B., Attorney, Dinsmore & Shohl LLP, Cincinnati,
Ohio, prepared statement and attachment........................ 154
Zinko, Andrea C., and Jody Carey, San Diego, California,
statement...................................................... 158
THE KELO DECISION: INVESTIGATING TAKINGS OF HOMES AND OTHER PRIVATE
PROPERTY
----------
TUESDAY, SEPTEMBER 20, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Kyl, Sessions, Cornyn,
Brownback and Leahy.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Senate Judiciary Committee will now proceed with a hearing on
the issue of the right to take private property under what is
called the doctrine of eminent domain for public use.
Our hearing is prompted by the recent decision just a few
months ago, in June, by the Supreme Court of the United States
in a case captioned Kelo v. City of New London, where private
property was taken for the use of a private company, Pfizer.
Coincidentally, I have just come from the Judicial
Conference across the street in the Supreme Court. Senator
Leahy is still there and will be joining us shortly. The
Conference is customarily presided over by the Chief Justice,
but with the death of Chief Justice Rehnquist, the next senior
Justice, Justice Stevens, was presiding, and he was talking
about the Kelo case because it has produced a great deal of
criticism.
In a humorous way, he referred to an op ed questionnaire
for the confirmation hearing of Judge Roberts, and one of the
questions was suggested to be, do you think it appropriate to
take Justice Souter's house in the New Hampshire woods for
public use and then call it Camp Liberty?
The writer of the question thought that Justice Souter was
the writer of the opinion and Justice Stevens wanted to point
out that it was he who was the writer of the opinion and he
would prefer that before his opinions were criticized that
people would read them. I told him I thought that was a fair
comment when my turn came to speak, but it opened up the door
for me to comment about opinions of the Supreme Court that I
had read and that I disagreed with, not saying that that
applies necessarily to the Kelo decision, but this is a matter
which requires Congressional analysis and we are going to
proceed with this hearing.
The Fifth Amendment--and it is picked up by the Due Process
Clause of the 14th Amendment--prohibits the government from
taking private property unless it does so for a public use and
with just compensation. There have been a number of exceptions
on public use where the government transfers private property
to public ownership for highways, parks, military bases, or,
second, when the government would take private property for
common carriers to make property available to the general
public--railroads or a public utility company--or a third
situation to eliminate a blight injurious to public health,
safety, morals or welfare.
But the Kelo case goes a significant step further and takes
it for economic development, where there are jobs, increased
taxes and other revenues. The issue which the Congress has
authority to act on--this is not a constitutional issue where
the Supreme Court is the last word--is to determine as a matter
of public policy whether this is a wise, appropriate taking of
private property.
I have spoken a little longer today. I am up to the 3-
minute mark and I have conducted this filibuster to give an
opportunity to my distinguished Ranking Member to arrive so
that he would be right in sequence with his opening statement.
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman. I understand
you did mention your colloquy with Justice Stevens this morning
on the same subject, which I found fascinating, and I could see
a number of the judges sitting around the table sort of making
notes like I have got to go back and re-read that case.
Chairman Specter. Senator Leahy, I forgot to mention one
thing. I told Justice Stevens that we were having this Kelo
hearing and if he had some spare time later this morning to
come on over; we would be glad to hear from him. He didn't
think that was very funny, but all the other judges laughed.
[Laughter.]
Senator Leahy. But I am willing to make an easy bet that
none of them will show up.
Vermont was actually the first State in the Union to
include a takings clause in its constitution. So we in Vermont
stand second to none in our respect for private property
rights. The language of our Vermont Constitution and our U.S.
Constitution makes clear that there are times when private
property can appropriately be used for public purposes, so long
as the taking is for a truly public use and the owners get just
compensation.
Now, the most difficult question is what constraints and
procedures you have. But even when the justification is widely
understood--a needed highway, for example--it does not
alleviate the pain felt by property owners who are in the path
of that highway, and you multiply that pain over and over again
when families are displaced from their homes.
I think of my own home which has been in my family for over
50 years, actually before my wife and I met. There would be no
compensation that could possibly--we turn down offers every
year to buy the place. We just wouldn't do it. It is our home.
Ms. Kelo, I am probably one of millions of Americans who
were distressed when we learned your story. We are concerned
about what happened to you. I want to work with others in this
Committee to fashion some solution, some better, fairer and
more sensible ways for local governments to use and not misuse
the significant powers they have over property owners.
It has been said that tough cases make bad laws. It can
also be said that bad law can lead to bad remedies, and so we
are going to have to figure out the best way to do this. I have
heard about legislative proposals to address this decision
which could potentially benefit land speculators who want to
make a quick buck or major corporations who want to gain more
power to seize more property to install pipelines or create
utility rights-of-way, or even privately owned, for-profit
facilities such as sports stadiums. I will work with Senator
Cornyn--I am delighted, John, to see you here--with respect to
his bill and that of other members of the Committee.
We have to understand that the distress a family suffers
from having their home condemned can be just as painful,
whether it is taken to build a road or to build a school. The
Federal Relocation Act which applies to Federal use of eminent
powers contains some useful ideas that can improve fairness.
I have one final point. When Congress exercises its power
to impose new conditions on local and State governments in
areas that local and State governments have traditionally
handles, then we should move cautiously so we don't have
unintended consequences. I know that many, many States are
already acting to impose additional restrictions and establish
new procedures governing the use of eminent domain. We should
act carefully, with an awareness of the remedies the States are
also considering.
So I thank the distinguished Senator from Texas for being
here, and I hope that Professor Merrill of Columbia University,
Mayor Perez of Hartford, Connecticut, and Professor Eagle from
George Mason will help the Committee in figuring out where to
go. It is going to be a difficult area.
With that, I will hush up and listen to them, Mr. Chairman.
I will follow your example.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy.
Our first witness is our distinguished colleague, Senator
John Cornyn. He was a Texas State court judge, later a Supreme
Court Justice of the State of Pennsylvania, and elected to--
Senator Leahy. Texas.
Chairman Specter. Texas.
I almost demoted you, John.
He was elected to the U.S. Senate in 2002 and has been a
very active, contributing member to this Committee.
Welcome, Senator Cornyn. Thank you for introducing
legislation on this subject and we are looking forward to your
testimony.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman, and ranking
member, Senator Leahy. I want to congratulate you and thank you
for holding this hearing today about the right of every
American to be protected against government seizure of their
homes and their businesses and their property.
As we know, this week is Constitution Week, a week that is
dedicated to celebrating the great principles of our Nation's
founding document. Without question, private property rights
rank among these important rights contemplated and outlined by
our Founding Fathers. Thomas Jefferson wrote, ``The protection
of such rights is the first principle of association, the
guarantee of everyone to a free exercise of his industry and
the fruits acquired by it.''
Accordingly, these rights were enshrined in the Fifth
Amendment, as the Chairman has already noted. Yet, as the
Chairman observed, the United States Supreme Court has weighed
into this issue in a way that perhaps no one had really
contemplated before, effectively, in my opinion, reading the
public use requirement out of the Constitution.
Justice O'Connor, in a dissent, warned, ``The specter of
condemnation hangs over all property. Nothing is to prevent the
state from replacing any Motel 6 with a Ritz-Carlton, any home
with a shopping mall, or any farm with a factory.'' She further
warned that under the Supreme Court's decision in Kelo, any
property may now be taken for the benefit of another private
party, and the fall-out from this decision will not be random.
Indeed, this is an issue that has brought together people
across the ideological spectrum without regard to party
affiliation. I am proud that Senator Bill Nelson and I have
sponsored some legislation which we filed the week after this
decision came down, and I look forward to working with you, Mr.
Chairman, and all of our colleagues on the Committee to refine
that legislation in a way that meets the goals that I know we
all share. I couldn't agree more with Senator Leahy that we do
need to be deliberate about it and careful in crafting the
appropriate remedy.
To just show the range of individuals and groups with
concerns, an amicus brief filed by the National Association for
the Advancement of Colored People and AARP, among other
organizations, noted, ``Absent a true public use requirement,
the Takings Clause will be employed more frequently. The
takings that result will disproportionately affect and harm the
economically disadvantaged, and in particular racial and ethnic
minorities and the elderly.''
Suffice it to say Kelo was a disappointment to an awful lot
of people. I actually in my office have gotten more telephone
calls concerned about this decision than the decision on the
Ten Commandments and other cases that perhaps you might think
would provoke more controversy.
But, I think the sense is that private property rights
under the rule of law is something that is always protected,
and particularly against the awesome power of the government,
except under the most exacting of requirements, and it has sent
a shock wave in many ways throughout America and caused people
to question whether they are actually secure in those rights or
not.
The Institute for Justice has documented more than 10,000
properties either seized or threatened with condemnation for
private development in the 5-year period between 1998 and 2002.
This is one reason, among others, that I filed Senate bill
1313, entitled the Protection of Homes, Small Businesses and
Private Property Act of 2005. As I noted, Senator Bill Nelson,
of Florida, is the principal cosponsor, but I am happy to
report today that a total of 28 of our colleagues have joined
me as cosponsors of this important legislation.
This bill is intended to be specific and to deal with the
Federal power of eminent domain which, of course, doesn't cover
the whole spectrum, because State constitutions obviously cover
that at the State level. But it is designed to be complementary
of the power of the States to deal with this on a State-by-
State basis and to deal primarily with Federal issues.
It also would deal with the exercise of eminent domain
power by State and local governments using Federal funds. So,
it would extend not only to the Fifth Amendment authority of
the Federal Government to exercise eminent domain, but also
reach the use of Federal funds in State and local government
hands.
In conclusion, Mr. Chairman, the protection of homes, small
businesses and other private property rights against government
seizure and other unreasonable government interference is a
fundamental principle and core commitment of our Nation's
Founders. In the aftermath of Kelo, we must all take necessary
action to restore and strengthen the protections of the Fifth
Amendment. I would ask my colleagues to give me their
consideration of the legislation that we have filed, and pledge
to work together with you, Mr. Chairman, and the ranking
member, Senator Leahy, and all our colleagues to try to achieve
a legislative product which accomplishes the result that I know
we would all like to reach.
Let me just ask, if I may, in closing, Mr. Chairman--I have
a copy of the testimony of Dana Berliner, Senior Attorney for
the Institute for Justice. They were unable to be here today,
but I would ask that his testimony be made part of the record
by unanimous consent.
Chairman Specter. Without objection, the testimony will be
made a part of the record.
Senator Cornyn. Thank you very much.
[The prepard statement of Senator Cornyn appears as a
submission for the record.]
Chairman Specter. Well, thank you very, Senator Cornyn. I
am going to reserve my questions for you until we have our
markup. That is when we all sit down and talk about the bill. I
personally and the Committee generally appreciates your
leadership putting in a bill so promptly after the decision
came down, and 28 cosponsors is a hallmark of a lot of support.
Senator Leahy.
Senator Leahy. Well, I am going to do the same. Of course,
like all of us, I will be having chats with Senator Cornyn
privately on this, but the markup will be the place we will
talk about it. I also commend him for bringing us a vehicle so
we can begin that discussion.
Chairman Specter. Thank you very much, Senator Cornyn.
We now call our witnesses today: Ms. Suzette Kelo, Pastor
Fred Jenkins, Mayor Eddie Perez, Mr. Hilary Shelton, Professor
Thomas Merrill and Professor Steven Eagle. Our lead witness is
the lead plaintiff in this case.
Ms. Kelo, you are now an objective, impartial known noun.
This case will be referred to as ``Kelo'' and they will always
be talking about you.
She is a lifelong resident of southeastern Connecticut, the
mother of five grown sons. She bought her Victorian home on E
Street in Fort Trumbull in July 1997, and from her dining room
on a clear day they can see Otok Point at the top of Long
Island. She has been activist to save the Fort Trumbull
neighborhood since the day before Thanksgiving in 2000, when a
notice was posted on her door by the New London Development
Corporation that she and her family would have to leave their
home in a few months. Despite her loss before the Supreme
Court, she continues to inspire and advocate for a return to
sensible eminent domain policy.
Thank you for what you are doing, Ms. Kelo, and we look
forward to your testimony.
STATEMENT OF SUSETTE KELO, NEW LONDON, CONNECTICUT
Ms. Kelo. I want to thank Chairman Specter and the rest of
the Senate Judiciary Committee for the opportunity to testify
about legislation to cutoff funding to governments that abuse
eminent domain law.
My name is Susette Kelo and I live in New London,
Connecticut. I am the Kelo in Kelo v. City of New London, the
now infamous U.S. Supreme Court case in which the Court ruled
that private property, including my home, could be taken by
another private party who promises to create more jobs and
taxes with the land.
I sincerely hope that Congress will do what judges and
local legislators so far have refused to do for me and for
thousands of people like me across the Nation--protect our
homes under a plain reading of the United States Constitution.
Federal lawmakers should pass legislation that will withhold
Federal development funding for cities that abuse eminent
domain for private development, such as the one that could take
my home which received $2 million in Federal funds. What we
have now at the local, State and Federal level amounts to
government by the highest bidder. That has got to stop.
I would like to tell you a little more of my story so you
can hopefully see why the law needs to be changed. In 1997, I
searched all over for a home and finally found this perfect
little Victorian cottage with beautiful views of the water. I
was working then as a paramedic and was overjoyed that I was
able to find a beautiful little place I could afford on my
salary. I spent very spare moment fixing it up and creating the
kind of home I had always dreamed of, and I painted it salmon
pink because that was my favorite color.
In 1998, a real estate agent came by and made me an offer
on the house on behalf of an unnamed buyer. I explained to her
that I was not interested in selling, but she said that my home
would be taken by eminent domain if I refused to sell. She told
me stories of her relatives who had lost their homes to eminent
domain. Her advice: give up; the government always wins.
So why did the city and the New London Development
Corporation want to kick us out? To make way for the luxury
hotel, upscale condos and other private development that could
bring in more taxes to the city and possibly create more jobs.
The poor and middle class had to make way for the rich and
politically connected. As quickly as the NLDC acquired homes in
my neighborhood, they came in and demolished them, with no
regard for the remaining residents who lived there, most of
whom were elderly.
In late 1999 after graduating from nursing school, I became
a registered nurse and began working at Backus Hospital in
southeastern Connecticut. Early in 2000, the public hearings
were eventually held and the Fort Trumbull plan was finalized.
Our home was not part of that plan, and by that time I had met
a man who shared my dreams and the two of us spent our spare
time and money fixing up our home. We got a couple of dogs. We
planted some flowers. I braided rugs. We found a lot of
antiques that were just perfect for our home. Tim, who was a
stone mason, did all kinds of stone work around the house. When
I first bought it, it had been run down. Today, it is a
beautiful home.
On the day before Thanksgiving, in 2000, a sheriff taped a
letter to my door stating that my home had been condemned by
the City of New London and the NLDC. We did not have a very
pleasant holiday, and each Thanksgiving since has been
bittersweet.
Happy that we are still in our homes, but afraid we could
be thrown out any day, the following month the Institute for
Justice agreed to represent us. Without them, none of us would
be here today. None of us could have afforded the tremendous
legal costs that would have been incurred over the years.
A year later, in 2001, we went to trial in New London, and
after hearing ten different reasons for why our homes had been
seized, from so-called park support, to roads, to museums, to
warehousing, the judge decided no one could give him a straight
answer and he overturned the demolition sentences on our homes.
One night in late October of 2002, I was working in the
hospital in the emergency room when a trauma code had been
called and a man who had been in a car accident was wheeled to
the trauma room. To my horror, after several minutes of working
alongside Dr. Wasalik and the nurses, I realized it was my
partner, Tim. For 2 weeks, he lay in a coma and we did not know
if he would live or die. Finally, he pulled through, and
although permanently disabled, it was a miracle he was finally
able to walk out alive 2 months later.
While he was still hospitalized, the Connecticut Supreme
Court heard our case, and a while later after Tim well enough,
we made it official by getting married. We still had no idea if
we would keep our home, as the Connecticut court would take 15
months to reach a decision. When they ruled against us by a
four-to-three decision, we were stunned. Our lives were on hold
for another year as we waited for the U.S. Supreme Court to
hear our case. We had high hopes that the Supreme Court would
protect our homes, but by one vote they let all Americans down.
My neighborhood was not blighted; it was a nice
neighborhood where people were close. Even though many of our
homes had been destroyed, the people remaining are still good
neighbors and good friends, and we don't want to leave. None of
us asked for this. We simply were living our lives, working and
taking care of our families and paying our taxes.
The city may have narrowly won the battle on eminent
domain, but the war remains in Fort Trumbull and across the
Nation. What is happening to me should not happen to anyone.
Congress and State legislatures need to send a message to local
government that this kind of abuse of power will not be funded
or tolerated. Special interests who benefit from this use of
government power are working to convince the public and
legislatures that there isn't a problem, but I am living proof
that there is a problem.
This battle against eminent domain abuse may have started
as a way for me to save my little pink cottage, but has
rightfully grown into something much larger--the fight to
restore the American dream and the sacredness and security of
each one of our homes.
Thank you very much.
[The prepared statement of Ms. Kelo appears as a submission
for the record.]
Chairman Specter. Thank you very much, Ms. Kelo.
Our next witness is Pastor Fred Jenkins, of St. Luke's
Pentecostal Church in North Hempstead, New York. He founded his
church in 1979 and has been in the ministry for 26 years. For
years, the congregation leased basement space and saved money
so that it could buy a church, and in 1997 they bought a piece
of property that included a partially constructed church.
Before they could build, the North Hempstead Community
Development Agency condemned the property for private retail
development.
Pastor Jenkins, I can understand your unhappiness about
that and we are interested in what you have to say about public
condemnation.
STATEMENT OF FRED JENKINS, PASTOR, ST. LUKE'S PENTECOSTAL
CHURCH, NORTH HEMPSTEAD, NEW YORK
Rev. Jenkins. Thank you, Chairman Specter and the rest of
the Senate Judiciary Committee, for the opportunity to testify
about legislation to stop Federal funding to local governments.
My name is Fred Jenkins and I am the pastor of St. Luke's
Pentecostal Church in North Hempstead, New York. After years of
meeting in a rented basement and saving up money, we were able
to find a permanent home for St. Luke's, but it was taken from
us by the North Hempstead Community Development Agency, which
uses funding from HUD for private retail development. Six years
later, the place which we bought was still empty.
I founded St. Luke's in 1979, and over the years our
congregation grew to over 100 parishioners. St. Luke's has
rented in the Prospect Avenue neighborhood of North Hempstead.
In the early 1980s, we began raising and saving money to
purchase a permanent home for our church. For years, members
sacrificed and contributed money and time to our building fund.
We are certainly not a wealthy church, but everyone pitched in.
We looked hard for a perfect place for our church and we
found that home in 1994. Nothing else fit St. Luke's needs like
this building. The size would fit the 100-plus members and the
price was manageable. It was where most of the parishioners
live and in the area where we help people. My congregation has
always been very active in our community. We pay for members'
funerals, help the homeless, assist parishioners with drug and
alcohol abuse, and provide rent money and heating oil to needy
families.
We purchased the land at 822 Prospect Avenue and the
almost-completed church building in December 1997. The
congregation was so excited to finally have a permanent home.
We were eager to start building. People went down to the site
and began cleaning up. We spent a considerable amount of money
preparing to complete the building.
We had completed everything required by the building
department and submitted our application for a new building
permit after we bought the property. We also took out a
mortgage for over $207,000. We still make mortgage payments,
but we don't have the building. For a year-and-a-half, we
applied for permits. Meanwhile, not one person from the town
told us our property was going to be condemned.
In November 1999, we received a letter from the NHCDA
offering to buy our property for $80,000. This was $50,000 less
than what we had paid for the property, and far less than the
mortgage. This was the first time we heard that the town had a
plan to take our property. That March, the town officially
seized our new home. We had no idea that our new building had
been slated for development. In 1994, nobody bothered to tell
us this. While the Commissioner of the Department of Building
told us how excited he was over our redevelopment of this
property, he not once mentioned that the town planned to seize
it.
St. Luke's has always taken care of the community, and in
return we were kicked off our property and it was taken for
retail development. It is now being used to store building
material for the construction going on across the street. We
are back in the basement we rented for years, we are at square
one. But while the congregation is broken-hearted and is still
paying the mortgage on the property that was seized from us, we
have yet to receive compensation.
Chairman Specter. Pastor Jenkins, how many more pages do
you have on your statement?
Rev. Jenkins. Just a little.
Chairman Specter. OK.
Rev. Jenkins. This country is full of people like my
parishioners who work hard and save up to buy something to call
home. I ask you to please stop funding local governments like
North Hempstead that use Federal dollars to take away homes,
businesses and churches for private gain.
I thank you for the opportunity of appearing before this
Committee.
[The prepared statement of Rev. Jenkins appears as a
submission for the record.]
Chairman Specter. Thank you very much, Pastor Jenkins.
Our next witness is the Mayor of Hartford, Connecticut,
Mayor Eddie Perez, elected in 2001. His election followed years
of service to his community, including development of a
revitalization plan as president and executive director of the
Southside Institutions Neighborhood Alliance. He was the
administrator of Trinity College, from which he holds a degree
in economics. He appears here today as the representative of
the National League of Cities.
Thank you for joining us today, Mayor Perez, and the floor
is yours.
STATEMENT OF HON. EDDIE A. PEREZ, MAYOR, HARTFORD, CONNECTICUT,
ON BEHALF OF THE NATIONAL LEAGUE OF CITIES
Mayor Perez. Thank you, Mr. Chairman. Mr. Chairman, I
request insertion of my written statement and attachments into
the record of today's hearing.
Chairman Specter. Without objection, your full statement
will be made a part of the record.
Mayor Perez. Good morning, Mr. Chairman and members of the
Committee. I am Mayor Eddie A. Perez, of Hartford,
Connecticut's capital city. I am testifying this morning on
behalf of the National League of Cities.
The anxiety some people have with eminent domain is real.
The history of how government has used eminent domain is mixed,
but most of it is good. You have heard from some people who
oppose it, but now let me speak for those people, and most
importantly those communities, that but for the use of eminent
domain would have few reasons to dream of a better future.
Since the Court issued the decision last June in Kelo v.
City of New London, the frenzied rhetoric and misinformation
about the use of eminent domain for economic development
purposes has been overwhelming and, most importantly,
disappointing. Once you get past the hype, two important points
stand out.
First, eminent domain is a powerful economic development
tool that helps cities create jobs, grow businesses, and most
importantly strengthen neighborhoods. No locally elected
official I know would use eminent domain to undermine the
integrity or confidence in home ownership in his or her
community. For urban America, and communities of color in
particular, home ownership is the ticket to the American dream.
Second, if Congress were to pass legislation to hamstring
State and local governments from using eminent domain in some
of our poorest communities, I believe that we would have fewer
people becoming homeowners, which means fewer participants in
the administration's concept of an ownership society.
The Kelo decision does not expand the use or power of
eminent domain by States or municipalities, nor did the Court's
decision overturn existing restrictions imposed at State and
local levels. The Kelo decision affirmed that eminent domain, a
power derived from State law, is best governed by the States
and their local political subdivisions. The Kelo Court affirmed
federalism and the Tenth Amendment.
Since the opinion's release, State after State, including
my home State of Connecticut, have taken the Court at its word.
Many State legislatures have begun or will begin during the
upcoming legislative session to examine their laws governing
the use of eminent domain through proposed bills and study
commissions.
Regardless of the individual State outcomes, the Court
correctly concluded that eminent domain is not a one-size-fits-
all power, and that States are better suited than Congress to
govern its use. Post-Kelo, the use of eminent domain will
receive increased scrutiny. Cities which generally use eminent
domain as a last resort because of its significant cost in
financial, political and human terms, are under an ever-
increasing spotlight when it comes to the use of eminent
domain.
However, the availability of eminent domain to the city of
Hartford has facilitated economic development and growth in our
community. Projects such as Adriaen's Landing, a $500 million
mixed-used development, including a convention center, hotel,
condominiums and retail, and the Learning Corridor, a $120
million, 16-acre complex of a K-12 magnet school development
developed by a non-profit developer in one of Hartford's
poorest neighborhoods, would not have been possible without the
city having the eminent domain power as a development tool.
The Kelo decision highlights the natural tensions public
officials confront daily between individual rights and
community needs. One of the most important responsibilities of
any local city government is to provide for economic and
cultural growth of that community.
Let me close by saying that municipal officials like me
know from experience what the Supreme Court has affirmed, that
economic development is a public use. Without the ability to
exercise eminent domain judiciously, cities, in particular,
would miss significant opportunities to create jobs, grow their
economies and increase the quality of life for all its
residents.
Urban development projects that have used eminent domain,
ranging from Texas Rangers Stadium, to Lincoln Theater, to the
Baltimore Inner Harbor, have all provided real public benefits
to their communities. Without eminent domain, New Orleans and
Louisiana will not be able to redevelop the devastated areas
caused by Katrina.
The National League of Cities urges a careful examination
of the underlying premise of the anti-Kelo bills pending before
Congress. The National League of Cities also urges Congress
generally, and the Senate in particular during its coming
consideration of the Transportation, Treasury and HUD
appropriations bill for fiscal year 2006 not to use the
appropriations process to legislate eminent domain.
The Kelo decision has justifiably stirred some debate, but
it has--
Chairman Specter. Mayor Perez, how many more pages do you
have of your statement?
Mayor Perez. Three sentences.
Chairman Specter. Go ahead.
Mayor Perez. The Kelo decision has justifiably stirred some
debate, but it has done nothing more than affirmed the status
quo. I urge Congress to avoid taking any hasty action that
would undermine the ability of State and local governments to
thoroughly review this issue and create local solutions. The
best solutions to what works at the local level come from
conversations and compromise at town halls and in neighborhood
living rooms. Let communities develop their own vision of what
they need and let them keep the tools that they need to get
there.
Thank you, Mr. Chairman.
[The prepared statement of Mayor Perez appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mayor Perez.
Our next witness is the Director of the NAACP's Washington
Bureau, Mr. Hilary Shelton. Prior to taking this position, he
has had a very distinguished career with the NAACP, worked with
the United Negro College Fund, and before that the United
Methodist Church on Capitol Hill. Mr. Shelton holds degrees in
political science, communications and legal studies from
Howard, the University of Missouri, in St. Louis, and
Northeastern University in Boston.
Thank you very much for joining us today, Mr. Shelton, and
thank you very much for lending us a very distinguished lawyer,
Hannibal Kamerer, who is on our staff and doing very good work.
STATEMENT OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
WASHINGTON, D.C.
Mr. Shelton. Thank you, Chairman Specter. It is an honor to
be before this Committee. I want to thank Ranking Member Leahy
and the members of the panel for inviting me here to talk about
property rights in a post-Kelo world.
I should mention I am Hilary Shelton, Director of the
NAACP's Washington Bureau, the government affairs office of the
Nation's oldest and largest grass-roots-based civil rights
organization.
Given our Nation's very sorry history of racism, bigotry
and a basic disregard on the part of too many elected and
appointed officials to the concerns and rights of racial and
ethnic minority Americans, it should come as no surprise that
the NAACP was deeply disappointed with the Kelo decision.
Racial and ethnic minorities are not just affected more often
by the exercise of eminent domain power, but we are almost
always affected differently and more profoundly.
The expansion of eminent domain to allow government or its
designees to take property simply by asserting that it can put
the property to a higher use will systematically sanction
transfers from those with less resources to those with more.
The history of eminent domain is rife with abuses
specifically targeting racial and ethnic minority and poor
neighborhoods. Indeed, the displacement of African-Americans
and urban renewal projects are so intertwined that urban
renewal was often referred to as black removal. The vast
disparities of African-Americans or other racial and ethnic
minorities that have been removed from their homes due to
eminent domain actions are well documented. For your
information, I have included examples of these documented
disparities in my written testimony.
The motives behind the disparities are varied. Many studies
contend that the goal of many of these displacements is to
segregate and maintain the isolation of the poor, minority and
otherwise outcast populations. Furthermore, condemnation in
low-income or predominately minority neighborhoods is often
easier to accomplish because these groups are less likely or
are often unable to contest the actions either politically or
in our Nation's courts.
Last, municipalities often look for areas with low property
values when deciding where to pursue redevelopment projects
because it costs the condemning authorities less, and thus the
State or local government gains more financially when they
replace areas of low property value with those with higher
property values.
Thus, even if you dismiss all other motivations allowing
municipalities to pursue eminent domain for private
development, as was upheld in the U.S. Supreme Court in Kelo,
it will clearly have a disparate impact on African-Americans
and other racial and ethnic minorities in our country.
Not only are African-Americans and other racial and ethnic
minorities more likely to be subjected to eminent domain, but
the negative impact of these takings on these men, women and
families is much greater.
First, the term ``just compensation'' when used in eminent
domain cases is almost always a misnomer. The fact that a
particular property is identified and designated for economic
development also certainly means that the market is currently
undervaluing that property or that the property has some
trapped value that the market is not yet recognizing.
Moreover, when an area is taken for economic development,
low-income families are driven out of their communities and
find that they cannot afford to live in the revitalized
neighborhoods. The remaining affordable housing in the areas
are almost certainly to become less so. In fact, one study from
the mid-1980s showed that 86 percent of those relocated by an
exercise of eminent domain power were paying more rent at their
new residence, with the median rent almost doubling.
Furthermore, to the extent that such exercise of the
takings power is more likely to occur in areas with significant
racial and ethnic minority populations, and even assuming a
proper motive on the part of government, the effect will likely
be to upset organized minority communities.
This dispersion both eliminates established community
support mechanisms and has a deleterious effect on those
groups' ability to exercise what little political power they
may have established. The incentive to invest in one's
community financially and otherwise directly correlates with
the confidence in one's ability to realize the fruit of such
efforts.
By broadening the permissible uses of eminent domain in a
way that is not limited by specific criteria, many minority
neighborhoods will be at increased risk of having property
taken, and there will be even less incentive to engage in
community-building and improvement.
In conclusion, allow me to reiterate that by allowing pure
economic development motives to constitute public use of
eminent domain purposes, State and local governments will now
infringe on the property rights of those with less economic and
political power with more regularity. As I have testified
today, these groups--low-income Americans and a disparate
number of African-Americans and other racial and ethnic
minority Americans--are the least able to bear the burden.
I want to thank you again, Chairman Specter, Ranking Member
Leahy and members of the Committee, for allowing me to testify
before you today about the NAACP's position on eminent domain
and the post-Kelo, prepared statement landscape. The NAACP
stands ready to work with the Congress and State and local
municipalities to develop legislation to end eminent domain
abuse while focusing on real community development concerns
like building safe, clean and affordable housing in established
communities with good schools, an effective health care system,
small business development and a significant, available living-
wage job pool.
I thank you very much for the opportunity.
[The prepared statement of Mr. Shelton appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Shelton.
Our next witness is Professor Thomas Merrill, who is the
Beekman Professor of Law at Columbia Law School. He has written
extensively on the Fifth Amendment Takings Clause on eminent
domain. He has a distinguished record, having been of counsel
at the Chicago law firm of Sidley Austin. A graduate of the
University of Chicago Law School, he served as law clerk to
Judge David Bazelon of the District of Columbia Court of
Appeals, and clerked for Justice Harry Blackmun on the Supreme
Court; also, Deputy Solicitor General from 1987 to 1990.
Thank you for joining us, Professor Merrill, and the floor
is yours.
STATEMENT OF THOMAS W. MERRILL, CHARLES KELLER BEEKMAN
PROFESSOR OF LAW, COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK,
NEW YORK
Mr. Merrill. Well, thank you, Mr. Chairman, for inviting
me, and I thank the members of the Committee for their
attention. As you pointed out, I have been studying issues
involving eminent domain for a number of years. I should also
indicate that I filed an amicus curiae brief in the Kelo case
on behalf of the American Planning Association and the Congress
of Economic Development.
Given my involvement with this legal issue, I did not find
the Kelo decision especially remarkable. What I did find
remarkable, indeed quite stunning, was the overwhelming
reaction to the decision on the part of the American public. I
certainly don't have to tell the Senators what the American
public thinks of the characterization of the Kelo decision that
has been disseminated since it was decided.
This has really sobered me quite a bit. I have given a
great deal of thought to what it is about the decision that has
caused this reaction, what many of us academics might have been
missing in the eminent domain picture that caused us perhaps to
overlook it. There are many explanations, but I think the nub
of the problem is that the American people believe that
property rights are invested with significant moral
significance. It is not just a measure of value; it is
something that people think has an important moral and
constitutional dimension.
They are sophisticated about this. They do not think it is
an absolute moral right. They recognize that in certain
circumstances, for example, in response to a national disaster
like the Katrina hurricane, they may have to compromise their
rights. They may be forced to evacuate their homes, and in
certain circumstances their property may have to be taken
through eminent domain for some public project.
But I think the overwhelming reaction has been that the
justification for taking people's property, in which they have
important autonomy interests and important aspects of their
personal identity invested, has to be some higher justification
than simply providing a higher valued use to some other owner
or generating more tax revenues for the city. I think the
perception which is nearly universal is that those sorts of
justifications are not adequate to substantiate the exercise of
eminent domain.
Now, I don't think that the Kelo majority intended to
endorse the proposition that anybody's property can be taken
merely on the grounds that someone else is going to put it to a
higher use or that it will generate more tax revenue. I think
the point of the Kelo decision is that the interests in
protecting property that all Americans, I think, recognize are
better served through some institutional mechanism other than
judicial review by the Federal courts. It is better protected
through political processes at the Federal and State level or
by the State judiciary.
I think the fact that we are sitting here today having
these hearings is testimony to the wisdom of the Supreme Court
majority's assessment that, in fact, the political process is
appropriate to protect people's property from eminent domain,
because the people have spoken and I think the political
process is responding.
So the significant question is really how to respond, and I
think very briefly there are three strategies for reform of
eminent domain. One is the prohibitory strategy, which would
simply be to take up the cause of public use review that the
Federal courts have indicated they do not intend to exercise
with great strenuousness and to try to get courts to implement
limitations on the power of eminent domain through some type of
prohibition, such as the prohibition on the use of eminent
domain for economic development.
Another strategy would be to try to improve the processes
by which local communities decide whether to use the power of
eminent domain, to make them more open, more inclusive, and to
require that communities respond more completely to people's
objections to having their property taken by eminent domain.
A third would be to improve the compensation that is
awarded. I think some of the other witnesses have alluded to
the fact that the compensation that the courts have required is
inadequate; it is not full compensation. I think legislative
bodies are well positioned to provide more complete type of
compensation.
I think the prohibitory strategy is the logically tempting
one. You read the decision, you disagree with the decision, you
think it should be changed. We should actually have courts
impose limits on eminent domain rather than having them decline
to do so. But I think it is a temptation that should be
resisted.
First of all--and I don't have time to get into this--the
history of eminent domain does not give one great confidence
that the judiciary is capable of identifying the line that
should be drawn between the permissible and impermissible
exercises of eminent domain. The judiciary struggled with this
issue for 200 years and essentially gave up because they could
not discern the line. Now, maybe the legislature can help them
out with more precise lines, but some of the legislation that
has been introduced so far does not suggest to me that that is
going to be forthcoming.
I also think there are concerns about federalism here. I
think Congress is better suited to impose limits than the
Supreme Court, but property rights have different circumstances
around the country. I think this is an area where State
variation and experimentation ought to be allowed to flourish.
I think we need to remember the lessons of federalism and not
impose a one-size-fits-all limitation on the exercise of
eminent domain.
A third thing that people should be worried about is that
if local governments really want to do something to rearrange
property rights, there is a good chance that they are going to
find some way to do it. And if they can't use eminent domain to
do it, they will be tempted to use other powers like the zoning
power or the power of taxation in order to achieve their
objective.
From a property rights owner's position, it seems to me
that eminent domain, if you look at the various powers of
government, is in a way the most attractive way in which to
have your property rearranged because you get just compensation
if your property is taken through eminent domain. You don't get
just compensation if it is taken through zoning or through the
power of taxation. So we need to worry about displacing the
energies of local government away from eminent domain to other
types of regulation that actually might be more harmful to
property owners.
Let me just mention quickly a couple of practical problems
with the prohibitory strategy.
Chairman Specter. Professor Merrill, at this point could
you summarize the balance of your statement?
Mr. Merrill. I will summarize very briefly. I think there
are some practical problems with trying to legislate
prohibitions. I think the procedural reforms and the just
compensation reforms are more auspicious. I think they are
well-suited to the legislature's capabilities, and I would urge
the Congress to consider intervening in those areas rather than
imposing limits on the use of the eminent domain power by local
governments.
Thank you.
[The prepared statement of Mr. Merrill appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Merrill.
Our final witness is Professor Steven Eagle, who is the
author of the treatise on regulatory takings. He is Professor
of Law at George Mason University Law School. He is Vice Chair
of the Land Use and Environmental Group of the Section of Real
Property, Probate and Trust Law of the American Bar
Association, and a graduate of the Yale Law School.
Which year, Professor Eagle? Which year did you graduate
from the Yale Law School?
Mr. Eagle. 1970, sir.
Chairman Specter. OK, you are one of the new guys.
[Laughter.]
Chairman Specter. We will start the clock at your full 5
minutes, Professor Eagle.
STATEMENT OF STEVEN J. EAGLE, PROFESSOR OF LAW, GEORGE MASON
UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA
Mr. Eagle. Thank you, Mr. Chairman and distinguished
members of the Committee. I think that Professor Merrill, my
distinguished colleague, is absolutely correct when he says
that the American people think that property rights are
invested with moral significance. That has been so since the
founding. That is why we have the Public Use Clause in the
Constitution to begin with.
The rule of law is inconsistent with the notion that
everyone's property is up for grabs. That is why Justice
O'Connor's statement which is now so famous about the Motel 6
being replaced with the Ritz Carlton struck such a resonant
chord in the American people and why Senator Cornyn quoted it
in his testimony earlier today.
Justice Stevens' majority opinion and Justice Kennedy's
concurrence place substantial faith in the ability of courts to
devise tests to detect condemnation abuse and to exercise
vigilance. In fact, however, the Supreme Court's Williamson
County test put an almost insurmountable barrier for regulatory
takings issues to be heard in the Supreme Court. And even apart
from that, lower Federal courts have been notoriously
unreceptive to property rights litigation, which involves the
application of vague tests to heavily fact-bound problems.
Making things worse, the Stevens opinion assumes that
condemnation for economic development is a fairly pristine
enterprise where expert staff utilize professional judgment to
discern the need for redevelopment. Plans subsequently are
formulated with input from all segments of the community, and
only then are private redevelopers and corporations engaged.
This description seems somewhat naive. In most communities,
political, commercial and financial elites are personally well-
acquainted and connected through a multitude of social, civic
and professional relationships. One hand washes the other. This
does not necessarily imply corruption or overt favoritism.
Nevertheless, in the nature of things the well-connected have a
decided advantage. For these groups, the raw material for both
civic and personal gain is often the property of the less well-
off and less well-connected. Mr. Shelton a few minutes ago
spoke eloquently to that situation.
Also, the Stevens and Kennedy opinions place emphasis on
courts' ability to look at pretextual condemnation, or those of
primary benefit to corporations. But here I think Justice
O'Connor had it absolutely right when she said that the trouble
with such redevelopment condemnations is that, by definition,
benefits are merged and mutually reinforcing. Any boon for
Pfizer or the plan's developer is difficult to disaggregate
from the promised public benefits--gains in taxes and jobs.
The fact is, Mr. Chairman, that the quest for the smoking
gun, the explicit quid pro quo between condemnor and subsequent
private owner, not only is elusive, it is irrelevant. Cities
like New London and States like Connecticut primarily care
about their reputations as redevelopment partners. If major
companies like Pfizer are pleased at the way things work out,
the localities will be better redevelopment partners in the
future and more avidly sought by companies. Likewise, if the
corporations are displeased, future relocations become more
difficult. An explicit quid pro quo isn't needed.
The question cities ask is not who got the primary benefit,
but whether we got a decent deal, corporations ask whether we
got a decent deal, and the only people who do not get a decent
deal are the condemnees left to suffer the costs because, as we
know, just compensation is not full compensation.
It is not even clear, Mr. Chairman, that condemnation
ultimately benefits the community because, after all, companies
relocate from hometowns that themselves might have been
distressed. Also, of course, many of these subsidies given to
companies only compensate for the fact that naturally speaking
it would have been better for them to locate elsewhere.
I think that a meaningful bill passed by Congress would
have to first limit condemnation to traditional public uses
and, second, I suggest should be accompanied by a grant of
standing to landowners facing condemnations of their homes or
businesses. I am not advocating standing to attack entire
programs, but rather standing to contest the taking of one's
own property.
Condemnation for economic redevelopment empowers every
municipal recruiter for relocating businesses, every corporate
CFO and every real estate developer with the ability to seek
out private lands that could be profitably reconverted. It is
not too much to ask that Congress empower landowners to seek to
vindicate their rights in the courts as well. I think, Mr.
Chairman, only if there is meaningful participation by
individuals will a bill really have a meaningful effect in
reducing condemnations that harm the public.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Eagle appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Eagle.
We will now proceeding to questioning by Senators, five
minutes under our rule.
Mayor Perez, what do you think about Mr. Shelton's
statement that urban renewal is really black removal?
Mayor Perez. Mr. Chairman, we know that urban renewal in
the 1960s and 1970s had the effects that were testified to.
Chairman Specter. Do you agree with what Mr. Shelton says
that urban renewal--
Mayor Perez. I think my experience--
Chairman Specter. Wait a minute--is really black removal?
Mayor Perez. My experience in the city of Hartford is that
when we have used eminent domain, we have used it for economic
purposes in the central business district and in adjoining
neighborhoods, and we haven't had wholesale displacement.
In the case that I worked on, the Learning Corridor, where
we acquired 36 different properties, 17 of those properties
were owned or occupied properties; the others had commercial
and rental tenants.
Chairman Specter. Are you saying that your experience has
been that the taking has not disproportionately affected
African-Americans?
Mayor Perez. Not in Hartford in the recent past. In the
1960s when we had urban renewal that was federally driven, I
think that was an impact, yes.
Chairman Specter. Mr. Shelton, if you are right about it,
is there an answer by having better compensation so that when
the people removed from the neighborhood want to come back to
their neighborhood, they are able to be able to afford it and
that the prices are not twice as much, and if so, they have the
financial means to return to their old neighborhood?
Mr. Shelton. I think that is a very helpful component, just
compensation; that is, compensation that very well meets the
demands of the market, but also planning, a program in which
you have very active involvement from the same people that are
going to be either temporarily or permanently moved into other
communities so that they can begin to reassess issues and
concerns.
Mr. Chairman, one of the issues is when you talk about the
communities that are oftentimes affected, they are poor
communities. They are poor communities where individuals and
families learn to really depend on each other, and once you
disband and disperse them, they have to set up whole new
support networks, things that we have a tendency to take for
granted, things like temporary babysitting, things like helping
each other with keeping up their property.
Chairman Specter. Can adequate compensation pick up those
facets?
Mr. Shelton. It would begin the process.
Chairman Specter. Professor Eagle, when you talk about
standing of the people who are displaced, is that really
practical? It is very expensive, even if you have standing to
go to court, to hire Professor Merrill to defend you, or other
lawyers--a very expensive proposition.
Does standing really solve the problem or begin to solve
the problem?
Mr. Eagle. I don't think, Senator, that it solves the
problem, but I emphasize that the localities involved and
States involved and the Federal Government don't simply have
the resources to devote to solving the problem. And even though
it may be difficult for individuals to attempt to do so
themselves, that at least gives people who are very concerned a
meaningful opportunity to do so.
And I might observe from the very presence of Ms. Kelo here
and her case before the Supreme Court that public interest
organizations such as the Institute for Justice certainly are
available to help in such cases and I think that will have a
great impact.
Chairman Specter. Ms. Kelo, do you have a personal identity
with your property; that is to say, will money compensate for
the taking, as you see it, having been so close to it for so
long?
Ms. Kelo. There are things that you can't--
Chairman Specter. Is money enough to take your property,
Ms. Kelo?
Ms. Kelo. No. There are some things that you just can't put
a price on, sir.
Chairman Specter. Pastor Jenkins, is money sufficient to
take your church?
Rev. Jenkins. Well, our property was not for sale and money
cannot really pay back what we lost.
Chairman Specter. Professor Merrill, is there any issue at
all about our authority to legislate in this field? This is not
a matter decided on constitutional grounds where the Court is
the ultimate authority and we are precluded from coming in on
public policy. Do we have the authority?
It is pretty hard to find Congressional authority generally
here from what we have seen in the Roberts hearings, but do we
have the authority to legislate in this field and establish the
public policy?
Mr. Merrill. Yes, I think you do have the authority in a
couple of fashions. One would be, as Senator Cornyn's bill
suggests, to use the spending power and to condition the
receipt of funds by State and local governments for economic
redevelopment purposes on compliance with certain guidelines
that the Congress would set down. That is one source of
authority.
I think if the Congress simply wanted to overturn the Kelo
decision using Section 5 of the 14th Amendment, that probably
would be unconstitutional under the Boerne v. Flores line of
decisions. However, I think that if the Congress wanted to
legislate on the compensation that is required to qualify as
just compensation under the Eminent Domain Clause or Takings
Clause of the Constitution, it might very well have that
authority under Section 5 of the 14th Amendment.
Chairman Specter. My red light went on during the middle of
your answer, Professor Merrill, so I am out of time. I yield
now to Senator Hatch.
Senator Hatch. Well, first of all, Mr. Chairman, I am
grateful that you have held this hearing on these very
important issues, and I have really been interested in
everybody's point of view here. I have to say that I am very
concerned about the Kelo decision because I don't think it
totally involves justice.
Professor Merrill, let me just begin with you. I found your
testimony, both written and oral, to be very interesting and
very thoughtful. Unfortunately, I found it somewhat disturbing
as well. My first question concerns a statement in your written
testimony to the effect that the Supreme Court in Kelo, quote,
``intimates that the Court in the future may impose a higher
standard of review in public use cases that has prevailed
before,'' end quote.
Now, you base this assertion on Justice Kennedy's
concurring opinion, but unless I missed something, not one
Justice joined in that concurrence. I found Justice Kennedy's
position encouraging in light of the majority opinion, but I do
not believe it, standing alone, suggests that the Court may
impose a higher standard of review in the future.
Would you care to elaborate on this point for the
Committee?
Mr. Merrill. Yes, I would be glad to, Senator. If you read
the Supreme Court's decisions on public use before Kelo--and it
is not just Berman v. Parker and Hawaii Housing Authority v.
Midkiff, but other cases as well--you will see that the Court
had applied the rational basis standard of review for public
use determinations, asking whether there was a conceivable
public purpose furthered by the taking.
One thing I found significant about Kelo is that if you
read the majority opinion carefully, there is not one reference
to rational basis review. Justice Stevens did not rely on
rational basis review in upholding the taking in that case, and
I think the reason for that is that he needed to write an
opinion that would be joined by Justice Kennedy and Justice
Kennedy in his concurrence specifically indicated that he would
like to leave open the possibility of a higher standard of
review that would be applied in a taking and re-transfer that
was designed solely to enhance the value or the tax assessed
value of a particular parcel of property. So I think the Court
was clearly leaving open the possibility of a heightened
standard of review.
The other thing that is significant about Kelo is that
there are express references not just in the Kennedy
concurrence, but also in Justice Stevens' opinion, to what
Professor Eagle has alluded to as pretext review; that the
courts, including Federal courts, could review records in
condemnation cases in order to try to ascertain whether or not
the invocation of a public purpose or public use was merely a
pretext for favoring a particular transferee or favored private
developer. They didn't direct lower courts to do that, but they
certainly left open the possibility that that might be required
in a future case.
So if you look at the development in the case law, there
are at least strong intimations of a higher standard of review
in Kelo than there were in the prior decisions.
Senator Hatch. Well, thank you. I am going to file a bill
by the end of this week that does not speak directly to the
Kelo economic decision, but what it would do is it would--I
call it the Empower Act, which creates a Federal ombudsman to
help property owners in eminent domain cases, give them advice,
a number they can call, a person who really will help them to
understand what the ramifications are. It is based on Utah's
own legislative enactment out there and it has worked really
well in Utah.
Mr. Merrill. Yes. I have met your ombudsman, a very
impressive fellow.
Senator Hatch. Yes, he is, and I have been pretty impressed
with what they have been able to do. This, of course, is short
of trying to outlaw economic development concerns, which nobody
on this panel, I think, has argued for at this point, but some
have thought might be the answer to these problems.
Mr. Merrill. Could I just interject here? I think this is
very much related to the standing point that Senator Specter
and Professor Eagle were discussing. It is very important for
the Congress to understand the way in which most property
owners are able to obtain a lawyer in an eminent domain case.
They hire someone on a contingent fee arrangement, and so it is
critical for people to get legal representation that there be
some money on the table out of which the contingency fee lawyer
can be compensated.
If you just legislate a prohibitory strategy and you don't
do anything else, then unless the Institute for Justice is
willing to come along and represent every person in the United
States that objects to a taking of their property free of
charge, these people are going to have great difficulty finding
a lawyer to represent them because success in that case would
mean no money on the table for the lawyer to be paid.
So I think that is a piece of ultra-realist reality on the
ground that the Congress has to keep in mind, and I think
something like the ombudsman solution or some other creative
solutions that would provide effective representation for these
people is the way to be thinking about this problem rather than
just simply adopting a prohibition without any mechanism
whereby individual property owners can invoke that.
Senator Hatch. Mr. Chairman, I would ask you and Professor
Eagle--both of you are very intelligent in this area--to give
us some assistance, help us to know how we might be able to
resolve these problems in a better way, because I can see this
economic assistance ban that could be a very, very harmful
thing to inner cities. Yet, I have great concerns about what
Mr. Shelton has said, and Ms. Kelo and Pastor Jenkins. These
are real concerns of real people in usually the inner cities.
Mr. Eagle. Well, Senator, of course, from a policy
perspective, Justice Stevens gave a speech at the Clark County,
Nevada, Bar Association recently where he said that he thought
himself as a policy matter that it was far better to let the
market work on economic development than to let a government do
it.
Now, certainly, Congress can have no qualms about letting
the States do what they wish, of course, and cities do what
they wish. But it seems to me that for Congress to be funding
both sides of the bidding wars for economic relocation may not
be something that this Committee would find desirable.
I, too, know the Utah ombudsman and I am very impressed
with his work. But it occurs to me, Senator, that for a person
like that to be able to give meaningful advice to a particular
potential condemnee would mean the ombudsman or somebody else
is going to have to really go into the facts of the situation
very closely because these are very fact-bound determinations.
So, ultimately, the amount of professional time involved in
helping someone really is the equivalent of the professional
time that a lawyer would have to devote, and this might even be
the equivalent of some kind of legal aid mechanism here. But,
surely, as long as groups like the Institute for Justice are at
work there, that at least would tell localities that if they do
interfere with individual rights, there is at least the
potential that the individuals will have the wherewithal to
protect themselves in court.
Senator Hatch. Thank you, Mr. Chairman.
Chairman Specter. Thank you.
Mayor Perez. Senator, if I could just add to that from the
municipal perspective?
Chairman Specter. Mayor Perez.
Mayor Perez. It is important to understand that most
municipal redevelopment plans, including plans to deal with
blight, economic development and even public facilities like
schools, police stations and things of that sort are successful
because there is a lot of discussion at the local level before
we get to court, and most of the cases do not go to court.
In the cases when you go to court, ombudsmen and other
vehicles are probably great vehicles to continue that
discussion. But the economic development discussions usually
have ample discussion in public hearings, how the plans come
up, and there is local attention paid to that. my experience
has been that if the local jurisdiction spends the right time
in planning, as has been discussed, and includes all of the
stakeholders in that planning, most of those issues are dealt
with. There are going to be cases where people do not want to
sell their house and they are going to have to be justly
compensated.
Chairman Specter. Thank you, Mayor Perez.
We will go back to the early bird rule now.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Again, I want to
express my gratitude to you for convening this hearing. I think
we have seen that this is not a simple, straightforward issue
and it is going to take all of our best work and thought to try
to develop some legislation.
The legislation that I have filed, along with Senator
Nelson, which now has 28 bipartisan cosponsors, was intended to
be narrow, recognizing that the States have an important role
to play when it comes to what local governments can do within
their State under their State constitutions. Indeed, we have
limited it, as has already been noted, to use of the Federal
eminent domain power directly and following Federal funds where
they might be used rather than trying to, in my view, overreach
beyond where it would be wise to do so. But, I have certainly
benefited from the testimony we have heard today about some of
the nuance and work that we need to do to refine it further.
Mayor Perez, I know that this is a concern of the cities
and I understand your good-faith testimony about your concerns.
But, certainly, you can understand how property owners like Ms.
Kelo feel and their concerns that perhaps Mr. Shelton and
others have expressed about those that don't feel like they
have much political influence particularly at the local level
when, let's say, a big developer comes in and is very active
politically, let's say, in city council and mayoral elections.
Then Pastor Jenkins' parishioners feel like it is not a fair
fight.
Could you say anything that would sort of help address
those concerns?
Mayor Perez. Senator, I have made a life of empowering
people and I have spent a lot of time with individuals like Ms.
Kelo and the good minister next to me and Mr. Shelton making
sure that people's rights are protected, that they feel a part
of this great system that we call America.
It is true that people who are in marginal circumstances,
whether it is the neighborhood where they live--it is important
that those people are helped and assisted. But I can tell that
if done correctly with a lot of forethought and local input,
eminent domain works. It works because it requires the public
officials to take it seriously from day one.
If they think they are going to use eminent domain, they
are going to do everything in their power not to have to use
it. I have been in cases, whether it is building a major hotel
and convention center or building a school. It is very hard to
convince a lady who rehabbed her Victorian house brick by
brick, wall by wall, to sell her house to a non-profit
development corporation that I ran at the time and ask her to
do it for the public good. I guess I was lucky because that
person happened to be a librarian and her co-owner was a math
teacher in the same city that we were working on.
Down the street, there was a young man who had inherited
his house from his father, and when I went to ask him about
including his house in the project, he emphatically said no. He
was the good kid on the block that got beat up by the gang
members and he was not going to leave that neighborhood just
because we wanted to build a school.
Senator Cornyn. Mayor, I appreciate your sensitivity to
these issues and how you personally have worked with landowners
in your capacity as mayor. Of course, there are a lot other
people other than Mayor Eddie Perez who are going to be engaged
in making these decisions all across the country and we have to
make sure that there are some reasonable limits to that awesome
power that government has to take private property.
Let me just ask in the short time remaining, I believe it
was you--and correct me if I am wrong--someone here, and I
believe it was you, encouraged us not to attach to an
appropriations bill any legislation that had to do with this
issue. But I would ask you, in light of what has happened in
the Gulf region and the massive rebuilding effort that is going
to have to take place as a result of Katrina, it would seem to
me to be an appropriate place for Congress to say where Federal
funds can and cannot be used when it comes to the
reconstruction of that great city, New Orleans, and other
property located throughout the Gulf region.
Do you disagree with that?
Mayor Perez. I don't disagree, but limiting economic
development power for those communities is going to make it
harder for them to put their plans together because that is
going to slow down until you create a new system that is able
to facilitate new legislation that you may put in. It is going
to take time for local officials to figure out how to clean
titles and where to put the levees and things that may be in a
home's way.
Chairman Specter. Thank you very much, Senator Cornyn.
We are about to start a vote, so let us turn promptly to
Senator Brownback.
Senator Brownback. Thanks, Mr. Chairman, and thanks for
holding the hearing. I will just be brief so my other
colleagues can make a statement and ask some questions. Thank
you for holding the hearing.
I want to go to Professor Merrill's point that he made.
Just in commenting on it, you said you were stunned by the
public reaction to Kelo. Certainly, I received a lot of
comments on Kelo. I think all of my colleagues received a lot
of comments.
When I was examining that thought and that set of comments,
it really went at the very core of having the private property
system that we have in the United States where people own
private property and they look at this as my piece of the rock,
my place. And it may not be much to you, but to me it is an
awful lot.
I used to do a lot of legal work for farmers and one of the
things that they would always look at would be this eminent
domain issue because somebody would come across their property
with a big power line or somebody would take it for a lake or
something else. They would say, you know, look, I realize it is
only worth this much as a farm, but this is part of who I am
and now you are taking it from me and you are saying you are
giving me just compensation. One, I don't think you are giving
me enough for it and, number two, it is not for sale, I don't
want to sell it.
It seems like in the Kelo case you really struck at the
people's core inside of them, saying your property is not
sacred, it is not protected under the Constitution; that there
are broader categories than what was previously thought under
which people could take it. I think it really got to a lot of
people and that is why you are seeing these responses by
Congress.
I will just conclude, Mr. Chairman, by saying I do hope we
can move a bill on through to reestablish and re-instill with
the American public the belief that their property does belong
to them and there is some notion of this is part of who I am
and some sacredness to it, as well.
When we had Judge Roberts here and I was questioning him
about this issue, he was saying, look, the legislature can act
now; we didn't block them from acting; they can act. So I think
it is going to be in our court really to try to tighten this
down and to put some of that thought that this property--there
is some sacredness to that. It doesn't matter whether you are
rich or poor or where you are. It belongs to you.
Thank you very much.
Chairman Specter. Thank you very much, Senator Brownback.
Senator Sessions, we are about 3 minutes into the vote, so
I think we will have time for two more questioners.
Senator Sessions. Thank you, Mr. Chairman.
Mr. Eagle, my first concern about this is a concern, I
think, of most people who have complained to me that believe
that the Court was not faithful to the Constitution--something
we talked a lot about in the Roberts hearings. It seems to me
that the words ``public use''--that you could only take the
property for a public use, which would indicate that the city
or the county or some public entity or some substantially
controlled private entity would be the ones to receive the
benefit from it to a public purpose, because in a series of
opinions culminating in Kelo they reached the decision that
almost seemed to say for any public purpose.
To me, the Constitution gives that final bedrock
protection. The city, let's be frank, has a conflict of
interest. The city is going to get a lot more property tax, and
the county and the State will if you have got an expensive home
or an expensive development there than a middle-class home.
So I think, Mr. Merrill, we can't just rely on the
political process. Sometimes, those good mayors out there who
are determined to move their cities forward become less
concerned about a person's constitutional right to their
property and more concerned about making the city a better
place to live, in their idea of what is best.
Professor Eagle, am I correct that this is troubling
primarily because of an erosion of the classical understanding
of what the Constitution has meant?
Mr. Eagle. I entirely agree, Senator. My written testimony
goes into this, and I think the problem is that there were
cases involving blight and involving the need for land reform
to get away from remnants of feudalism where the Supreme Court
used very broad language and very grandiose statements in
explaining what in those cases were much narrower holdings. And
Justice O'Connor certainly goes into that point and now, of
course, takes back what she called her own errant language in
the Midkiff case, where she did precisely that.
Senator Sessions. Well, I think Professor Van Alstein at
Duke said if we love this Constitution and if we really respect
it, we will enforce it just like it is written even if we don't
agree with parts of it, even if we would like to have it say
you can take people's property and kick them out of their homes
to develop a shopping center.
Having represented property owners in condemnation
lawsuits, I would say it is very difficult and expensive for
the property owner, Mayor Perez, to defend the taking. He can
usually get a lawyer that will defend on the value on the
theory that, well, I will have a contingent fee and whatever
you get above the State's or the city's offer for the
property--if you are offered $100,000 and I get $130,000, I get
$10,000, maybe, a third of that increase.
So the property owner can maybe get a lawyer like that, but
to do into a long-term, in-the-trenches battle with the city to
contest the taking may cost $50,000 or $100,000 right out of
their pocket, and most people don't have it. So I think that
constitutional protection is important.
Mr. Chairman, the Mayor may have a brief response. I wanted
to finish early and we have got a minute left.
Mayor Perez. Senator, I think that is one of the reasons
why a lot of this has to be settled at the State and local
level, because those are the kinds of discussions that are
going on in State houses and city halls at this time.
Chairman Specter. Thank you very much, Senator Sessions.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I appreciate this
hearing. I really appreciate the testimony of all of you, and I
am going to make more of a statement here than a question
because of the lack of time.
It seems to me that the nub of the issue if the Court's
confusion historically of public use with public benefit. The
Constitution says public use, not public benefit.
And, Mr. Shelton, you are right on target, in my view, when
you say the expansion of eminent domain to allow the government
or its designee to take property simply by asserting that it
can put the property to a higher use will systematically
sanction transfers from those with less resources to those with
more. I mean, just one follows after the other. That is exactly
what we are trying to prevent here.
To the suggestion that somehow we can reform processes, the
less fortunate are always going to have less of a voice at city
hall than the powerful interests, and that is just a fact of
life. So I don't think that resolves the problem.
Professor Merrill, I really appreciate the spirit with
which you approached your testimony. I am going to be a little
more hard on you than I mean to be here because I really do
appreciate that, but your suggestion here is pretty much the
same as the majority on the Court. The States can always do
this. ``Nothing in our opinion precludes any State from placing
further restrictions on the power.'' And you say it is better
under our Federalist system to let the States reform it.
Justice O'Connor had, I think, the definitive answer to
that in her dissent. She said, ``States play many important
functions in our system of dual sovereignty, but compensating
for our refusal''--meaning the Court's refusal--``to enforce
properly the Federal Constitution, and a provision meant to
curtail State action no less, is not among them.''
In other words, what she is saying is it is the Supreme
Court's duty to enforce constitutional rights. We shouldn't be
passing the buck off to State legislatures to do whatever they
may think is right. I think she is right. By the way, at a
book-signing in Phoenix over the weekend, talking to some
school kids she called the Court decision really scary, and
then she said ``whew'' after that. I think she was right. The
Constitution is for everyone. It is for poor people, it is for
rich people, and it cannot be left up, it seems to me, to the
Court to simply say, well, we will let legislatures deal with
it because we don't want to do that.
To the notion that--and this is where, Mr. Merrill, I want
to be a little hard on you. You said, you know, if it isn't
resolved by condemnation, cities will use their zoning power or
their taxation power to accomplish the same thing. You are
right. I have seen them try to do it. It is wrong. And when you
say at least you get paid in condemnation, I mean my response
is, well, it is like the old thing, well, other than that, Mrs.
Lincoln, how did you like the play? It is not exactly a good
result. It is still taken from you, but you might get paid, not
full value, but at least a just compensation. So that doesn't
seem to me to be the answer.
And then to your final--and I realize this was a
constructive suggestion that compensation reforms and better
process might be a preferable answer. I respectfully disagree.
I don't see how you can constitutionally reform--I mean, we
can't change the Constitution. It says ``just compensation.''
That means what it means and we can't say just compensation
plus 10 percent. So I don't see how we get to it that way.
And with regard to the processes, you heard Mr. Perez talk
about all of the processes the city goes through for its
development plans and all the rest of it. The poor folks whose
land is going to be taken are not the ones that have a big
voice in that. I don't see how you are ever going to resolve it
that way.
So I come back to the conclusion that private property is a
bedrock of who we are. It is part of our freedom in this
country, and these rights should be just as important to us as
any other rights. It ought not to be a rational basis test. It
ought to be a tougher test and there ought to be ways to
redress the grievance. We can't just establish a new right.
There has to be a remedy as well, and I am going to work very,
very hard to see that we do that.
Again, I appreciate your constructive comments. Professor
Eagle, I would have loved to have heard more from you. And Mr.
Shelton and Mr. Perez, I understand your point of view. I
disagree with you. I missed your testimony, Ms. Kelo, but I
heard yours, Pastor Jenkins, and I just think this is a case
where Congress--sure, it is up to the States to do what they
can and they are acting here, but I think Congress has a
responsibility and we can fashion some remedies here that will
do some good. Maybe the most important thing is to send a
message to the Supreme Court that it has got an obligation to
uphold and defend the Constitution and not duck this important
issue.
Enough for my speechifying. If any of you would like to
respond to the last 25 seconds, you are welcome to do so.
Mr. Merrill. Could I just say--
Chairman Specter. Professor Merrill.
Senator Kyl. Since I picked on Professor Merrill, please go
ahead.
Chairman Specter. This has to be brief because we are on
our way to vote.
Mr. Merrill. First of all, I don't think anyone is
suggesting that there should not be an important judicial role
in keeping eminent domain within its confines, but it doesn't
necessarily have to be a role in deciding what is and is not a
public use. I think the courts have flunked the test of whether
or not they can do that properly.
Courts should also enforce the statutory requirements that
have to be satisfied to use eminent domain and they have to
enforce the compensation requirements. If they perform those
roles, I think they will empower the little people and the
property owners. Because of the way they are represented
through contingent fee lawyers and because of the way the
process works, I think that will empower property owners much
more than creating some abstract right limiting the power of
eminent domain which will exist on paper, but will never be
enforced in reality. That is my basic point.
Chairman Specter. Thank you very much, Professor Merrill.
As you can see, this has caused quite a lively discussion
among members; a better attended hearing than many, except that
none of you is up for Supreme Court Justice.
Ms. Kelo and Pastor Jenkins, I am sorry we are going to
have to move ahead because we have got to vote and we don't
want to miss that. Thank you for coming in and providing the
testimony as to what it means to real people who are being
affected by it, and, Mayor Perez, giving us a little different
perspective as to where we are, and, Mr. Shelton, with the
maxim of the day, urban renewal means black removal. And thank
you, Professor Merrill and Professor Eagle, for the erudition
on the technicalities of the law.
That concludes our hearing.
[Whereupon, at 11:35 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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<all>