Posted: 25 Aug 2009 05:02 AM PDT
In yesterday's New York Daily News, Dana Berliner of the Institute for Justice -- the good folks who brought us Kelo -- published "End eminent domain abuse: N.Y.'s highest court should rule against Bruce Ratner." The latest Atlantic Yards case, Goldstein v. New York State Urban Dev. Corp., which is currently being briefed in the New York Court of Appeals prompts the op-ed:
It has been more than a generation since the state's highest court has interpreted the New York Constitution's provision that property may be taken only for "public use." It's time for the court to take a long, hard look - before more damage is done.
The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent domain for potential job creation, increased taxes or general economic development does not violate the U.S. Constitution. In the firestorm of outrage that followed, 43 states changed their laws to make eminent domain for private development either more difficult or impossible.
New York remains one of only seven that have not.
It is true that, after Kelo, the U.S. Constitution itself gives little or no protection to home or business owners. But that document is a floor for individual rights, not a ceiling. State constitutions can protect rights above that baseline. For instance, when the U.S. Supreme Court refuses to protect people's rights to freedom of speech or freedom from unreasonable searches and seizures, state high courts often step in, finding that state constitutions offer greater protection.
That is exactly what has happened in many states since Kelo. The high courts of Hawaii, Ohio, Oklahoma, Pennsylvania, Missouri, New Jersey and Rhode Island have all ruled that property owners within their borders have greater protections against eminent domain abuse. None has made Kelo the rule under the state constitution.
The New York Court of Appeals should follow this trend.
. . . .