Bar News - November 3, 2006
We Need Question 1 To Protect Our Individual Rights
By: Chuck Douglas
On November 7 voters can decide whether the rich, the powerful and the connected can go to the government to get what they do not want to pay a high price for—your property.
Some may say we do not need to amend the NH Constitution but, unfortunately, we do; for a simple reason: judges can change their minds.
In 1985, on my last day on the New Hampshire Supreme Court, we decided the case of Merrill v. City of Manchester. That case dealt with the question of public use in exactly the same context as did last year’s Kelo v. New London case in the United States Supreme Court. Justice David Souter sat on both cases but came to totally different conclusions 20 years apart.
The correct decision was the one handed down in Merrill. The landowners in the Merrill case had 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 or economic “benefit” cases.
Twenty-one years ago, Justice Souter concurred in the New Hampshire opinion that said that the land involved 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 state Bill of Rights says that the power of eminent domain may only be exercised 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, Justice Souter changed his mind and was the fifth vote in Kelo.
Our state Supreme Court has no members who sat on Merrill. What if they decide, as in Kelo, that “use” means “benefit” or “purpose” to help some part of the “public”? We, then, are stuck with a loss of protection to one of our precious rights of life, liberty, and enjoyment of our property.
Under Kelo we can now take from Peter to give to Paul. The new underlying constitutional principle was well-stated by one dissenter who said, “citizens are safe from the government in their homes, but the homes themselves are not.”
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 a protection we long thought existed.
Statutes can be amended, suspended, or repealed. But our rights need to be protected from such a moving target. While it may be belt and suspenders to amend our laws and our Constitution, that one little sentence in Question 1 is worthy of support.
Charles G. “Chuck” Douglas is a former Justice on the NH Supreme Court (1977-85) who now practices law at Douglas Leonard & Garvey in Concord.