EDITOR’S NOTE: Attorney Scott G. Bullock, Grove City College Class of ’88 and graduate of the University of Pittsburgh Law School, recently argued the case of Kelo v. City of New London before the U.S. Supreme Court. Despite Bullock’s courageous legal advocacy, the Court, in a 5-4 decision, ruled against his clients, who included homeowner Susette Kelo. They held that New London could use its eminent domain powers to take her private property and the property of others for the purpose of economic development. Grove City College senior pre-law student Eric Tinstman interviewed Bullock, senior attorney with the Institute for Justice (IJ), about the Kelo case for The Center for Vision & Values.
CVV: In Kelo,we saw a clash of a local government with its own citizens and you, employed by the Institute for Justice, seeking to protect those citizens. What was your career path to the Institute for Justice?
Bullock: The reason I went to law school was to practice constitutional law and to work with a public interest group. I thought law was an excellent way to combine both theory and practice. In other words, in litigation you don’t just sit around talking about individual liberty or complaining about the current state of the world. You can actually go out and try to change things for the better. You can sue government officials on behalf of real people and hopefully establish precedents that not only protect the people you represent, but also all Americans. My early interest in and passion for the Constitution was solidified when I took Dr. John Sparks’ constitutional law class. After Grove City College, I went directly to law school at the University of Pittsburgh and never set foot in the school’s placement office or went on a “real” job interview. I knew what I wanted to do and had no interest in the private practice of law. The summer after my first year of law school I worked for the Cato Institute, a libertarian think tank in Washington, D.C. After my second year, I worked for Clint Bolick, one of the Institute for Justice’s (IJ) founders and a great friend, at a public interest firm he used to head. I graduated from law school in May 1991, and IJ opened its doors in September of that same year. I have been here ever since.
CVV: What led to your passion for individual civil liberties?
Bullock: I have been interested in issues related to individual freedom as long as I can remember. I never liked efforts by those in power to control the actions of others. I think I always believed that so long as someone does not harm another person through his actions, he should be free to do as he wishes. I later read the works of such people as Milton Friedman, Thomas Paine, Ayn Rand, Thomas Szasz and others that really provided some intellectual support for these ideas. One of the main reasons I went to Grove City College was to study Austrian School free market economics under Dr. Hans Sennholz, who stressed this same kind of liberty.
CVV: Can you articulate your political philosophy, especially concerning private property?
Bullock: If I had to put a label on it, it would be libertarian, or “classical liberal.” As I mentioned above, it is a philosophy that places great emphasis on individual freedom and autonomy and seeks to limit the role of government in all aspects of people’s lives. Private property is extremely important for protecting individual rights. It really gives definition to many of our rights. Moreover, it is one of the most important rights a person possesses: to be able to enjoy the fruits of one’s labor. Also, property not only holds monetary value for individuals, it has enormous subjective value as well to most folks and certainly to the people we represent in eminent domain cases. A home holds a person’s memories and traditions. To many people it is a place that is, frankly, irreplaceable. That’s why many people fight so hard to hold on to their homes or other property.
CVV: How did the Institute for Justice become involved in the Kelo case?
Bullock: I went to New London because of a letter we received from a local activist about the abuse of eminent domain in the Fort Trumbull neighborhood of that city. The letter attracted IJ’s interest because it contained the three elements we always look for in our cases: an important, cutting-edge constitutional issue; dedicated people willing to stand up for their rights; and an outrageous violation of individual liberty at the hands of arrogant government officials. My visit solidly confirmed our initial impressions.
Governments typically abuse eminent domain in one of two ways. One way is to stretch the definition of “blight” to an absurd degree: that is, to call even a stable area of the city “blighted” so that the properties of private owners can be taken. The second approach is to jettison the blight rationale altogether and use eminent domain powers to further economic development in order to generate more tax revenue. The latter approach was what New London used in Kelo. The City did not rely on blight laws but rather claimed it wanted to take this non-blighted, working-class neighborhood because the new owners could possibly create more taxes for the City than the current homeowners. We were determined to challenge this most expansive definition of eminent domain and take the challenge all the way to the U.S. Supreme Court, which had never ruled on the issue.
During my first meeting with the besieged owners in Susette Kelo’s beautifully restored pink Victorian cottage, I knew that this was a brave and principled group of individuals who would make perfect IJ clients. They had endured so much already and had been told by so many that they had no hope of prevailing, and yet they still soldiered on. They should be considered modern-day patriots.
Not only were the legal issues in this case compelling and the homeowners resolute, but also the actions of local officials were ruthless. The City had given its eminent domain authority to a private body—the New London Development Corporation (NLDC). That group proceeded to threaten and then exercise its authority without concern for constitutional rights. The NLDC already had dozens of acres of land available for development, but they wanted our clients’ homes despite the fact that they constituted less than two acres of a 90-acre development area. The NLDC also engaged in psychological warfare against the homeowners. As soon as the NLDC obtained a property, it tore it down as quickly as possible—a not-so-subtle message to the remaining owners that their homes would be next. At the time we filed suit, the NLDC was led by Claire Gaudiani. Gaudiani, a former president of Connecticut College, was almost a parody of a condescending, collectivist academic who justified her attempts to remove our clients from their homes as the pursuit of “social justice.” She compared her work in New London to the work of Dr. Martin Luther King Jr. and Jesus. (As humorist Dave Barry says, I am not making this up.)
CVV: Can you describe the amount of work that goes into preparing this kind of case?
Bullock: A tremendous amount of work and preparation goes into a case like Kelo. The trial in the New London case was on an expedited schedule, so we had to squeeze what should have been over a year’s work into about four months. Also, the litigation was very adversarial. We were always fighting with the other side’s attorneys, who were usually quite resentful that we had made a particular case into a national issue. The other side also did not like the fact that we were very upfront about discussing the case in the media, something many lawyers avoid and are not comfortable doing. The fact that people’s homes and lives were at stake also added to the pressure, but knowing that we were on the right side of a case made the pressure and long hours more bearable.
CVV: What basic position did the Institute for Justice take on behalf of your clients in this case?
Bullock: Our clients, like most Americans, thought of their homes as their castles. They were places where they had raised their children, shared good times and bad, and hoped to live out their remaining years. They faced the loss of the homes they cherished not for a traditional public use such as a road or courthouse, and not even for the removal of so-called blighted conditions. Rather, the City sought to take their homes and turn them over to other private parties in the hope that the City would be able to benefit from whatever those private businesses might produce for the city—more jobs and more taxes. The position most favorable to our clients was for the Supreme Court to reject the use of eminent domain purely for private business development because that is not a “public use” under the Fifth Amendment to the U.S. Constitution. If nothing more is required to constitute a public use than for a city to project increased tax revenue and job growth from new economic development projects, then there is scarcely any protection for private owners and businesses from the power of eminent domain. Homes would always be less “productive” of taxes and jobs than businesses and larger businesses would at least theoretically produce more tax revenue and jobs than smaller businesses. Our fallback position was that even if the Court found that economic development was in some instances a “public use,” courts should require minimum standards to be in place to insure that the property would be taken for reasonably foreseeable uses.
With regard to our fallback position, we were essentially advocating what is known in the law as a “heightened scrutiny” test for economic development condemnations. Economic development condemnations bring enormous social costs in the form of the loss of homes and small businesses and significant risk. At the very least, we argued, there should be reasonable certainty of “public” benefits that are used to justify the takings in the first place. In New London, the condemnations failed miserably under this test. The City and NLDC sought to take our clients’ homes for a private office building that would not be built in the foreseeable future, if ever, and for some other unidentified use.
CVV: What reaction, in either Supreme Court oral argument or the opinion from the Justices, surprised you?
Bullock: During the oral argument, I was first surprised by the number of questions that were asked about “just compensation,” which wasn’t at issue in the case. Under the Fifth Amendment to the Constitution, private property may not be taken for public use unless the government unit pays “just compensation” to the property owner. Furthermore, the surprising, and one of the more frustrating things about the majority opinion, was its emphasis on the fact that New London had a “plan for development” in this area. The majority thought that “having a plan” was significant and that it would place some type of limitation on eminent domain abuse. The problem with that idea, however, is that virtually every abuse of eminent domain is done according to some type of plan. The Court seemed to have a very benign view of the planning process itself where, in the Court’s mind, city councils carefully consider citizens’ views and equal weight is given to everyone’s opinion. Both of these notions are completely disconnected from reality. After being involved in dozens of eminent domain cases and controversies, I can tell you that most city officials know what they seek from day one and that the planning process and hearings are most often “dog-and-pony” shows intended to accomplish the development projects they are advocating. Moreover, the idea that a city council like New London’s gives equal weight to Susette Kelo and a few of her neighbors on one hand, and to a company like Pfizer (a major player in the creation of the development plan) on the other, is an incredibly naïve view of how government decisions are truly made, especially at the local level.
CVV: What was the purpose of the “fallback position”? Was it an attempt to “hedge your bets” to get a majority opinion if the Court was not willing to go as far as you would like it to in making these takings unconstitutional?
Bullock: We knew that the Court was quite divided and that it tended to issue fairly narrow and often split decisions on important constitutional questions. So, yes, our primary position was that the Court should not allow condemnations for private development at all. However, we also recognized that several of the justices might not be willing to go so far as to prohibit these condemnations outright but might be more interested in adopting some sort of balancing test. As it turned out, and much to the surprise of many Court observers, all of the justices, both those in the majority and those in the dissent, wanted a black-and-white rule that either upheld these condemnations under previous precedents or rejected them.
CVV: What was the condition of those homes which were taken, and were there no other means for them to be saved?
Bullock: All of the homes were in good shape. Some, such as Susette Kelo’s, were very attractive old Victorians. Indeed, Susette’s pink cottage is probably now New London’s most famous landmark and a national symbol of the struggle against eminent domain abuse. The good news in New London is that the homes are still standing, the people are still there, and the governor has called for a moratorium against condemnations and evictions in New London and throughout the state. The NLDC reluctantly agreed to abide by the governor’s demand. As I mentioned, the citizens of New London know that they can still carry out significant economic development in this area without throwing these people, who have struggled so valiantly to protect their rights and the rights of all American homeowners, out of their cherished places.
CVV: Are there cases, in your opinion, that have already misused eminent domain powers? How could the ruling in Kelo affect private property rights?
Bullock: Not many cases have been decided yet because it is too soon, but the floodgates to eminent domain abuse are already opening. I will just give a couple of examples. In her dissenting opinion, Justice Sandra Day O’Connor wrote that under the Court’s ruling, “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.” Some have rebuffed these possibilities and others as hypothetical cases and a parade of horribles. Nothing could be further from the truth.
While a Motel 6 has not yet been taken in favor of a Ritz-Carlton, lower tax-producing businesses are being taken for higher tax-producing ones. Hours after the Kelo decision, officials in Freeport, Texas, began legal filings to seize two family-owned seafood companies to make way for a more upscale business: an $8 million private boat marina. Individual residences are already being taken for shopping malls. In July 2005, Sunset Hills, Mo., voted to allow the condemnation of 85 homes and small businesses—the first step in allowing the private Novus Development Corporation to use eminent domain against the property owners to build a planned $165 million shopping center and office complex. Other examples from across the country demonstrate this disturbing trend. Of course, the good news is that people are furious about this decision and efforts are underway throughout the country to change the law. This case and the Court’s decision focused a spotlight on an ugly and unAmerican practice: taking property from poorer folks to give to wealthier people in the name of economic development. Most cannot believe this is happening in a country that traditionally has placed such a high value on the sanctity of the home and other privately owned property.
CVV: The public’s disapproval seems to have been very positive for your cause. How does the Institute for Justice plan to tap this energy to curtail future governmental abuse?
Bullock: You are right about the outrage. One would be hard pressed to think of any recent Supreme Court decision that has caused such universal outrage across the country and across the political spectrum. Conservative George Will is against the decision and so is liberal columnist Molly Ivins. The first person to denounce the case on the floor of the U.S. Senate was conservative Texas Republican John Cornyn; and the first person on the floor of the House of Representatives was Maxine Waters of inner-city Los Angeles, generally considered to be one of the most liberal members of Congress.
Our response has been very swift. To channel popular outrage into lasting legislative change, the Institute for Justice and its Castle Coalition grassroots arm launched a $3 million “Hands Off My Home” campaign days after the decision was handed down. The campaign supports eminent domain reform at the state and local level and equips ordinary Americans with the means to protect their homes, small businesses and churches from eminent domain for private profit. People can join the Castle Coalition and learn how to get involved in “Hands Off My Home” at www.castlecoalition.org. So far, the reaction has been quite encouraging. More than 40 states have introduced or will introduce legislation that will address eminent domain abuse; and in November 2005, the U.S. House of Representatives passed overwhelmingly a solid bill that would cut off all economic development funds for two years to a state or local government that abuses eminent domain for private development. If passed by the Senate, this could have a very significant impact. So although there are powerful forces on the antiproperty rights side of this issue—in particular, city officials and developers—there is real momentum for changing the law to protect homes and small business owners.
Although the Court provided very little protection to property owners under the Fifth Amendment to the U.S. Constitution, it did recognize that state courts are free to interpret their own state constitutions to provide greater protection to citizens. And many state courts, after years of neglect, have strengthened protections for people challenging eminent domain abuse. Therefore, most of our litigation in the near future will be directed toward state constitutional claims. We are confident that one day, perhaps in the not-too-distant future, the U.S. Supreme Court will overturn this disastrous ruling, consigning it to the same fate as other discredited decisions such as Plessy v. Ferguson (which upheld “separate but equal” treatment of the races) and Korematsu v. U.S. (which upheld the internment of Japanese-Americans during World War II).