Institute for Justice (IJ) Files Amicus in Brooklyn Eminent Domain Case

Supreme Court Should Preserve Judiciary's Role in Examining the Question of "Public Use"

ARLINGTON, VA -- Does a city have the power to transfer property from one private owner to another just because the government claims the transfer is for a "public use" or are questions about what defines a genuine public use best answered by an independent judiciary rather than self-interested politicians?  That is the question before the U.S. Supreme Court in Goldstein v. Pataki.  Although the Supreme Court expanded the definition of "public use" in its 2005 decision in Kelo v. City of New London, the Institute for Justice argues in its amicus brief filed with the court that it did not change the process by which courts determine whether a use is "public."

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IJ's brief urges the Court to defend a citizen's right to have a judge examine whether a city's claim of "public use" is actually public use or merely a pretext for transferring property from one private entity to another for the latter's benefit, as is the case in Brooklyn.  IJ's seeks to stop the subversion of the Fifth Amendment and the unconstitutional seizure of homes and small businesses.

Daniel Goldstein, a Brooklyn property owner, along with ten co-plaintiffs, sued the state government of New York, arguing that the state's claim of "public use" when using eminent domain for the (now financially questionable) Atlantic Yards project was simply a pretext for amassing land for the private benefit of developer Bruce Ratner.  A Second Circuit Appeals Court dismissed the case earlier this year, holding that taking property from one person to give to another is constitutional—so long as the government asserts some public purpose.

"Although Kelo clearly expanded the definition of 'public use' to include economic development, the Supreme Court was also clear that government cannot take property simply for the private benefit of another party even if the government claims it is for public use," said Dana Berliner, a senior attorney with the Institute for Justice.  "The court needs to assert that public use is more than just a formality for cities to manipulate to mean whatever they choose."

IJ's brief asks that the court "clarify that Kelo did not remove the federal courts' power to hear and adjudicate—on their merits—claims of bad-faith or pretextual takings under the U.S. Constitution."  Although cities may claim "public use," Goldstein's case questions whether a private citizen has a chance to dispute in court a city's public use claim when there may be clear evidence to the contrary.  According to the brief, there is confusion in the lower courts as to whether there is even any role for the judiciary to examine whether a city's public use claim is true and reflects the actual purpose of an invocation of eminent domain for economic development.

Three years ago, IJ brought the case of New London homeowner Susette Kelo before the U.S. Supreme Court.  Although the court ruled against Kelo, allowing the city of New London to seize her home for a private redevelopment plan, the decision provoked a nationwide backlash.  Since the decision, 42 states have reformed their laws, protecting property owners from having their land seized for economic development.  New York is among the eight states that have blocked eminent domain reforms.

Legal filings on the Brooklyn case, including the Institute for Justice's amicus brief, can be found at:  http://www.dddb.net/php/reading/legal/eminentdomain.

Comments

Thank you Daniel Goldstein, for sticking up for our civil rights.

very interesting article.

"New York is among the eight states that have blocked eminent domain reforms."

That suit is going nowhere. New York is one of the few remaining jurisdictions still operating under the Kelo ruling. Instead of wasting time on this nonsense, the people involved should be trying to get the state of New York to reform its laws and give property owners some protection.

They should give them protection from politicians who keep screwing them with higher and higher property and school taxes. 79 percent higher than any state in the nation. That is a fact.

Daniel is a friend of the community. Thank you.