October 24, 2006: The story of humble homesteaders being forced off their land by
the continental expansion of the railroad in the late 1800's has
been told in many a western. Including 1939's "Jesse James",
directed by Henry King with glam king Tyrone Power as Jesse. In
real life Jesse James was more Rat Boy than Robin Hood gone
wrong. Still-- the truth was out there. The Iron Horse did
rampage over many people who were just trying to get along. And
according to Gideon Kanner, Professor of Law Emeritus at the
Loyola Law School in Los Angeles, that rampage still resonates
in our current epidemic of eminent domain abuse.
On October 14th, Professor Kanner, who edits the eminent domain
law periodical Just Compensation, addressed the 10th annual
National Conference on Property Rights in Albany, New York. The
conference was organized by the Property Rights Foundation of
America. Professor Kanner's topic was the past, present and
future of eminent domain-- the constitutional right of government
to take private property for "public use" if "just compensation"
is made. Few people doubt there are appropriate uses for eminent
domain. (Think schools & hospitals.) But the devil is in the
details of "public use" and "just compensation". Professor Kanner
believes both terms tend to be "panoramic expressions" rather
than actual practice. In other words, more like a John Ford
film than a slice of frontier life.
According to Kanner, land takings executed by government in
the late 19th century on behalf of privately owned railroads,
corrupted the use of eminent domain by confusing the relationship
between "public taker" and "end use". As for just compensation,
there was much resistance to paying property owners anything, let
alone what their land was actually worth. Public officials huffed
that hold-outs shouldn't be allowed to embargo the state and
stand in the way of progress. An attitude which translated into
judicial contempt for the claims of people reluctant to leave
homes and businesses, or surrender their property on the cheap.
By the beginning of the 21st century, the government's power of
eminent domain had been enhanced by a string of U.S. Supreme
Court decisions (most recently, Kelo v. City of New London) and
the overall expansion of the state. As government became more
entwined with private enterprise, the definition of public use
continued to blur. With projected "trickle down" economic
benefits substituting for actual public use. But what hasn't
changed is the attitude of public officials-- they still huff
that recalcitrant owners shouldn't be allowed to embargo the
state and stand in the way of progress. A sentiment now echoed
by quasi-public redevelopment agencies, urban planners, and
government backed developers.
The Sweet Here & Now
Professor Kanner also covered the current condition of eminent
domain in New York State. Calling the state "a sewer when it
comes to abuse of eminent domain for private use". Kanner was
preceded by speaker Jim Malatras, Legislative Director to New
York State Assemblyman Richard Brodsky. Jim Malatras had given
a rather upbeat account of efforts in the assembly to reform the
state's eminent domain laws, but Kanner seemed cynical about the
outcome. Reversing the stereotype of jaded New Yorkers and sunny Californians.
Professor Kanner cited a number of factors that make the Empire
State the "sub-basement of eminent domain law". For instance,
eminent domain cases aren't tried before juries. (Would peers
prove too simpatico?) And in other states, judges who hear
eminent domain cases come from rotating pools, giving attorneys
and clients better chances for favorable rulings. Whereas in New
York courts, one judge hears all the eminent domain proceedings.
Professor Kanner also had a few choice words on the general
subject of how New York's justices are chosen. Referencing a
recent New York Times article which essentially depicted local
old boys tapping each other on the shoulder and saying "Hey
podner, wanna be a judge?"
Because of New York's locked-up legal system re eminent domain,
the number of attorneys specializing in contesting abuse is far
smaller than in many other states. A shame because New York State
rates high on the contempt-for-homesteaders meter. Until
recently, governments weren't required to give much notice of an
intended "taking". (A nicety that can still be forgotten in the
heat of a revitalizing moment.) Then there's the greed thing.
Listen up Manhattan dwellers. Professor Gideon Kanner answered
a question oft asked in the canyons: how come so many thriving
neighborhoods get plowed under by eminent domain in the name of
redevelopment? Kanner quoted bank robber Willie Sutton. Who when
asked why he robbed banks replied "because that's where the
But Professor Kanner wasn't all vinegar and no sugar. While he
thought the possibility of eminent domain reform at the judicial
level in New York State was hopeless, he did allow the state
legislature "might be susceptible". Though he mentioned that in
general, legislatures are used to seeing public anger dissipate.
If eminent domain abuse weren't on the rise, public anger might
indeed diminish as Kanner suggested, and legislators could relax
on their contributions. But more and more people feel threatened
by government land grabs. If meaningful reforms aren't enacted,
the pot could boil over. Speaking of which, Professor Kanner
pointed out that eminent domain abuse in the name of urban
renewal was one of factors which led to the 1960's Watts riots
in Los Angeles.
Then there are all those westerns where humble homesteaders cease
being humble. Including "Jesse James". A movie which inspired
folksinger Woody Guthrie to write the following in a column
published in People's World in 1939: "The railroad racketeers
hired hoodlums and thugs to beat and cheat the farmers out of
their farms-- and make 'em sell for $1 an acre. Frank & Jesse
(James) robbed the train to get even. They robbed it so often
that the engineer was disappointed on days they couldn't get
there." Guthrie went on to pen several new stanzas for the
folk song "The Ballad of Jesse James" stressing the land
grab rebellion aspect.
Professor Gideon Kanner also seems to place some faith in the
will of the people. He recently endorsed California's Proposition
90, aka the "Protect Our Homes" initiative. Roughly one million
Californians have signed petitions to put Proposition 90, an
eminent domain and property rights constitutional reform measure,
on the November ballot. They did so after the California
Legislature blocked three separate, post-Kelo attempts to address
eminent domain abuse via amendment to the state constitution.
Among the groups who lobbied the legislature to reject the
amendments were the League of California Cities, the California
Redevelopment Association, and the California State Association
of Counties. These same powerful eminent domain stakeholders are
now working to defeat Proposition 90.
Proposition 90 deals with more than eminent domain. It also
proposes that just compensation be given to property owners who
lose the full use of their land via regulatory measures
and suffer "diminution of fair market value". This aspect has
raised the hackles of some environmentalists and smart growth
advocates. Whatever one thinks of Proposition 90, it's
instructive to note that if the California Legislature had acted
to reform the state's eminent domain laws, Proposition 90
might never have been born.
History abounds with examples of blocked reforms flowing into
Meanwhile, back in New York State, where ballot initiatives are
forbidden, a major eminent domain show-down is taking place in
Syracuse. One which proves homesteaders aren't the only folks who
get rolled over. The Pyramid Companies, a private corporation
that builds mega shopping malls, wants to use government's power
of eminent domain to overturn the lease rights of 12 stores in
an already existing smaller shopping center. Pyramid plans to
eradicate the existing stores in order to build Destiny USA, the
mother of all malls. The quasi-public Onondaga County Industrial
Development Agency has ceded the right of eminent domain to
Pyramid, and the New York State Supreme Court Appellate Division
has nixed an appeal by the 12 resisting businesses. Who were good
commercial citizens for years and helped establish the shopping
destination Pyramid covets. Their unjust compensation, a cheap
ticket out of town.
Whoo Whoo! Railroad coming through!
Carola Von Hoffmannstahl-Solomonoff
"Yes, Frank and Jesse James was men that was game/To stop that
"The Ballad of Jesse James," Irwin Silber, Songs of the Great
American West, New York, NY, 1967
Sources include but are not limited to:
Press Release: "Eminent Domain Scholar Professor Gideon Kanner
Endorses Proposition 90, the Protect Our Homes Initiative,"
Protect Our Homes Coalition, 10/16/06
"Ruling might clear way for mall expansion," Rick Moriarty,
Syracuse Post-Standard, 09/30/06
"Broken Bench: In Tiny Courts of N.Y., Abuses of Law and Power,"
William Glaberson, New York Times, 09/25/06
About The Salina 29, http://Salina29.com
Property Rights Foundation of America, Inc., http://prfamerica.org
Protect Our Homes Coalition, http://www.90yes.com/
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