Expositor, not creator, of fundamental law

This wasn't supposed to happen here

[Reprinted from Issues & Views November 1, 2004]

It began with Poletown. The 1981 court decision, called "infamous" by its victims, set the precedent for the ensuing abuse of eminent domain that continues today. Before this decision, few people questioned the meaning of the Constitution's stipulation that government can take property from citizens only for "public use."

In two separate articles in The Eco-logic Powerhouse magazine (October 2004), Jacob Sullum and Jenny Noland describe how the land that comprised Poletown, a lower-middle-class section of Detroit, was targeted by General Motors Corporation for a new mega-plant that would span 1,300 acres. We also learn how the city government and the Roman Catholic Archdiocese cooperated with GM to bring about the razing of almost 1,400 homes and 140 businesses.

Photographs from the period convey the sadness of Poletown residents as they watch the first wrecking balls swing through the front wall of the Immaculate Conception Church, to begin the awful process of turning the massive structure into rubble.

Although many Poletown residents decided to sell their properties, rather than get involved in litigation, others fought to retain their homes and businesses. They fought their case all the way up to Michigan's Supreme Court. Father Joseph Karasiewicz, pastor of Immaculate Conception, opposed his Church's concession to the state, and was a leading figure in trying to prevent the bulldozing of Poletown, which also included the destruction of smaller churches and a seminary. A 29-day sit-in at Immaculate Conception brought in the national media, and the support of Ralph Nader and his Raiders.

It was all to no avail, and in March, 198l, "in a shameful capitulation," writes Sullum, the Michigan Supreme Court ruled that Poletown's demolition was a "legitimate exercise" of the city's eminent domain powers. Since then, throughout the years, the Poletown case has prompted courts across the country to endorse forced transfers of land from one set of private citizens to another set, who happen to have more money and political clout. [See "Judicial vandalism" and "Winning some battles in Leviathan's war"]

Then, in 2003, another developer eyed a chunk of land in the Detroit area, and there was no reason to doubt that this company, with the help of the city, would succeed in removing the existing residents. Once again, home and business owners balked, and took it to the courts. This year, when the Michigan Supreme Court was set to rule on the case, most observers believed that the outcome would be in favor of the developer -- that the court would uphold its original 1981 Poletown decision.

Instead, in a dramatic reversal, the Court, in County of Wayne v. Hathcock, not only ruled in favor of the landowners, but overruled its previous, notorious decision, stating: "We overrule Poletown, in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

All seven judges unanimously overruled the Poletown decision. In addition, they offered their views on the promises of social and economic benefits, which usually are made by governments, to justify their attempts to seize the private property of citizens:

Poletown's "economic benefit" rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity. If one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, "megastore," or the like.

Dana Berliner, an attorney with the public interest law firm, Institute for Justice, was co-author of a brief urging repudiation of the Poletown decision. She asserts that the case has profound national implications. "Poletown was the first major case allowing condemnation of areas in the name of jobs and taxes. It is cited in every property textbook in the country. The Court literally rewrote the book with this decision."

Scott Bullock, also an IJ attorney, describes further the poisonous impact of that original court decision: "Poletown gave cities and developers an incentive to make outrageous, wildly inflated predictions of the impact of the project. It was the worst possible incentive. The Poletown project itself also didn't come close to living up to the promises. In all likelihood, it destroyed more jobs than it created."

And in yet another stunning move this year, the same Michigan Supreme Court came down on the side of a Detroit homeowner, in the case, Wayne County Stadium Authority v. Alibri. Frida Alibri had been warned by the city that her property would be condemned if she refused to sell "voluntarily." After she was assured that the property would be used for appropriate public use and would not be re-sold to a private party, she agreed to sell. Of course, the city had lied, and immediately sold her property to a private company.

When Mrs. Alibri sued to get her land back, the Michigan appellate court ruled in the government's favor. In a surprise move, however, the Michigan Supreme Court rejected the decision, and Mrs. Alibri's property was returned to her.

In these two rulings, we see the efforts of many people vindicated, especially those of Justice James Ryan who, in the original Poletown decision in 1981, was the lone voice of dissent. Today, the Court behaves as if it is finally catching up with Judge Ryan's warning that permitting the confiscation of small landowners' property "seriously jeopardized the security of all private property ownership."

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