Burnt Orange Report

Eminently Important

By Karl-Thomas Musselman

First off, check out the story in yesterday's Daily Texan about the continuing efforts of the owners of Player's Restaurant to keep the University of Texas from using it's eminent domain powers to seize the land to make way for it's campus hotel and parking garage.

The petition to Save Players is located here and you can sign it at the actual location if you stop by. As the website says...

The University of Texas at Austin is intending on purchasing Player's and replacing it with a parking garage. Across the street, UT is purchasing the stripmall that includes IT Copy and Radio Shack. Apparently, we really need a hotel there.

IT Copy or Radio Shack- we care not about. The hotel could be a great thing for the campus. However, once they try to take away a Player's Combo with cheese and no tomatoes with a strawberry shake, The University has gone too far.

Of course, the Supreme Court ruled 5-4 today in a case very closely related to this, the Kelo v. New London case. The New York Times has a good report on what happened. In short, the more liberal Justices upheld the taking of property by governmental authorities to redistribute, even to private developers, for demolition and redevelopment.

The majority concluded on Thursday that public use was properly defined more broadly as "public purpose." Justice Stevens noted that earlier Supreme Court decisions interpreting the public use clause of the Fifth Amendment had allowed the use of eminent domain to redevelop a blighted neighborhood in Washington, to redistribute land ownership in Hawaii and to assist a gold-mining company, in a decision by Justice Oliver Wendell Holmes in 1906.

"Promoting economic development is a traditional and long accepted function of government," Justice Stevens said, adding, "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."

In a dissenting opinion, Justice Sandra Day O'Connor objected that "the words 'for public use' do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power."

Justice O'Connor said, "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded."

Justice Stevens, examining the New London plan in light of the majority's general analysis, said the plan "unquestionably serves a public purpose," even though it was intended to increase jobs and tax revenue rather than remove blight.

...

Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy and David H. Souter joined the majority opinion in Kelo v. City of New London, No. 04-108. Justice Kennedy also wrote a separate concurring opinion to emphasize that while there was no suggestion in this instance that the plan was intended to favor any individual developer, "a court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see it if has merit."

On the opposite side is an interesting coalition, with whom I more closely agree, which I'm sure is one of the few cases in which I agree with the likes of Scalia, Thomas, and Rehnquist.

Justice O'Connor's dissenting opinion was joined by Chief Justice William H. Rehnquist and by Justices Antonin Scalia and Clarence Thomas. She wrote that rather than adhering to its precedents, the court had strayed from them by endorsing economic development as an appropriate public use.

"Who among us can say she already makes the most productive or attractive use of her property?" Justice O'Connor asked.

She added: "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."

Both Justice O'Connor and Justice Thomas, who also filed his own dissent, said the decision's burden would fall on the less powerful and wealthy.

"The government now has license to transfer property from those with fewer resources to those with more," Justice O'Connor said. "The founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and dangerous," cited several studies showing that those displaced by urban renewal and "slum clearance" over the years tended to be lower-income minority residents.

"The court has erased the Public Use Clause from our Constitution," he said.

It seems that the Conservatives and I are joined by Ralph Nader of all people. From his press release.

Hundreds of abuses of eminent domain have occurred during the last few decades, with municipalities playing reverse Robin Hood‚ taking from ordinary citizens and giving to powerful individual developers or corporations. In many cases, the alleged public benefit is a transparent cover for what amounts to legalized theft.

With today's decision, the Court has abdicated its role as guardian of the Constitution and individual rights. This decision authorizes courts across the country to allow self- defining misuses of "public use" and "public benefit" requirements.

So Austinites, Save Players. If for anything, to stand up for the little guy and greasy onion rings.