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Bar News - September 9, 2005 ‘New’ Justice Souter Is Not the One I Remember By: Chuck Douglas
This month marks the 20th anniversary of the New Hampshire Supreme Court decision titles Merrill vs. City of Manchester. That case dealt with the question of public use in exactly the same context as did the recent Kelo vs. New London case in the United States Supreme Court. Justice David Souter sat on both cases but came to totally different conclusions. The correct decision was the one handed down in Merrill, which I remember well as it was literally my last day on the New Hampshire Supreme Court. The landowners in the Merrill case has property lying within the boundary of a 109 acre tract sought to be developed as an industrial park by the city of Manchester. As in the Kelo case, the record disclosed that the benefits of taking the landowner’s property would include enhancement of the local economy, new employment opportunities and an increased tax base. But these are always the arguments made in redevelopment cases. Justice Souter concurred in the New Hampshire opinion that said the land involved in the Merrill case posed no threat of harm to the community and thus could not be condemned for redevelopment purposes. Said our Court: “only if it is to be put to use which directly benefits the public, such as for a school, a playground, or utility line, and not to a use which has only an incidental public benefit, such as for the private industrial park contemplated in the instant case.” Our New Hampshire Bill of Rights says that the power of eminent domain may be exercised only if the condemned property is “applied to public uses.” That same “public use” requirement is set forth in the Fifth Amendment to the United States Constitution. Unfortunately, while Justice Souter was a conservative and principled vote in the Merrill case, he forgot his moorings when he came to Kelo 20 years later. Justice Souter turned his back on what he had believed in when looking at the identical “public use” phrase in his role as a New Hampshire Supreme Court judge in 1985. The Kelo case is even more outrageous because while the project is supposed to increase taxes and jobs (the usual mantra), the development authority is a private one. The property at stake in New London involved the classic definition of a home. For instance, in the 1880s the Ciavaglia family moved from Italy to the neighborhood in New London, where in 1901 they purchased a house. In 1918, Wilhelmina Ciavaglia was born in that house and for 60 years after her marriage she and her husband have lived in that home. Next door lives their son Matthew, who obtained his home as a wedding present. Susette Kelo lives nearby in an old Victorian home she renovated overlooking the Thames River. She and her husband love their view. Tim was disabled in a car accident and can no longer work, so Sue has two part-time jobs in addition to her work as a registered nurse just so she can maintain their home. Unfortunately for her, private developers will now take the homes that these families love and have lived in for decades. Our state and federal constitutions were adopted to protect our life, liberty and property. At the rate the United States Supreme Court is going, “public use” does not mean use by the public. It apparently means “use by any member of the public.” We can now take from Peter to give to Paul. The new underlying constitutional principle was well stated by Justice Clarence Thomas, who said, “Those citizens are safe from the government in their homes, but the homes themselves are not.” Under the guise of economic development, it would now be possible to take ten $1 million homes on Lake Winnepesaukee so that they could be bulldozed and ten $10 million homes erected in their place. All of that activity creates jobs, increases taxes and thus confers an “incidental benefit” to the public. Thus the slippery slope that Kelo blesses has essentially no limitation. The phrase “public use” has now been converted, without a constitutional amendment, to read “any incidental benefit.” Different words mean different things. The idea that we now have any public purpose or goal as sufficient to seize someone’s land and give it over to “economic development” has stripped our Constitution of protections we long thought existed. If this can happen in America, then no property is safe. Justice Souter and I got it right 20 years ago. He got it wrong two months ago in Kelo. Chuck Douglas is a former justice on the New Hampshire Supreme Court (1977-85) who now practices law in Concord. |
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