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Sunday, January 23, 2005
Ind. Law - Taking private property for private development
I read a small blurb in the Indianapolis Star today about HB 1063, authored by Rep. David Wolkins of Winona Lake, which would prohibit the taking of private property by eminent domain for commercial purposes. According to the Sunday Star (page B4), the bill will be heard in the House Judiciary Committee at 9:00 a.m. Wednesaday; however, the calendar on the General Assembly site indicates 10:30 on Monday (tomorrow).
I was interested because the United States Supreme Court will be hearing oral arguments on this issue in the current term. Although three related cases are scheduled, the closest case here is Kelo v. New London, scheduled for argument on Feb. 23, 2005. Access a summary here, along with a link to the lower court opinion.
The Indiana Law Blog has had a number of entires on the "takings for private redevelopment" issue; see 9/27/04, 9/29/04, and 10/13/04.
New this week is an article in the National Law Journal on the upcoming Supreme Court arguments, titled "All Eyes on High Court Property Cases: High stakes in trio of 'takings' actions." Some quotes:
Each case, say government officials, if decided in favor of the property owners, poses the threat of countless and costly lawsuits by businesses, such as Chevron, or private homeowners, such as Susette Kelo, who will claim that federal, state or local governments have "taken" their property in violation of the Fifth Amendment. And each case, they argue, could re-involve federal courts in second-guessing legislative policy choices to a degree not seen since the discredited Lochner era, named for the 1905 [sic.] case, Lochner v. New York (a period when the Supreme Court struck down numerous state and federal laws designed to improve working conditions and an economy devastated by the Great Depression).But each case, counter property rights advocates, offers the opportunity for the high court to give meaning and effect to the limits in the takings clause of the Fifth Amendment -- limits on governmental power largely read out of the clause in recent years by courts giving carte blanche to government takings of all stripes.
The three cases are important because the issues "go down to fundamentals," said land-use scholar Daniel Mandelker of Washington University School of Law in St. Louis. In Kelo, he noted, the justices will examine two old precedents that have been "leading guideposts for years" to determine whether the government's use of eminent domain for private economic development is a "public use" under the Fifth Amendment.
Posted by Marcia Oddi on January 23, 2005 02:08 PM
Posted to Indiana Law