Opinions TO THE EDITOR
The TPJ wants to hear from you! The Publications
Committee will poll members
concerning their thoughts on some of the
“hot topics” of the day. During each quarter,
the Committee will draft a question,
which will be distributed to membership,
through the Directors. Each question will
direct you as to where to send your
response. We will print the responses in
the following TPJ, reserving the right to
edit for space considerations. While we
prefer to print a name and city with each
response, we understand that some of you
may prefer that we not print your name.
We will honor this request, so long as the
response is not contrary to the objectives
of the Paralegal Division or the
Publications Committee. We hope that
this column provides a way for PD members
to express themselves, constructively,
on issues that impact our profession, our
communities, and our country.
Question of the Quarter:
On June 23, 2005, the U. S. Supreme
Court issued its opinion in Kelo v. New
London. This ruling held that the “public
use” provision of the “takings clause” of the
5th Amendment of the U.S. Constitution
permits the use of eminent domain for economic
development purposes that provide a
public benefit under a Connecticut statute.
In response to that decision, the Texas legislature
passed SB 7. Do you feel that the
laws passed by the Texas legislature in
response to Kelo are adequate to protect the
individual’s rights? Should individual rights
be subordinate to the “public interest” in
such situations? Do you feel the restrictions
imposed by the Texas legislature will harm
ultimately the economy or do you feel that
the restrictions are fair and balanced? Did
the Supreme Court go too far?
RESPONSE 1: The Texas legislature
succeeded in limiting the taking of property
through the use of eminent domain.
The Bill clearly states that if the purpose of
the use of eminent domain is for a private
benefit to an individual, or by pretext to
confer a private benefit later to an individual, eminient [sic] domain does not apply.
It also makes it clear that private property
can be taken for transportation projects,
etc. Admittedly, I was surprised to see that
private property can be taken for the purpose
of a sports and community venue
project. Whether or not the restrictions
are fair and balanced would have to
depend on the circumstances.
I believe the Supreme Court did go too
far in the Kelo v. City of New London case.
The mere fact that there were dissenting
opinions from a well respected jurist
should raise the red flag that the matter
should be revisited. The 5th Amendment
says that I as a citizen cannot be convicted
of a crime without an indictment of a
Grand Jury, cannot be tried twice for a
crime, or be deprived of my life, freedom
or property without due process of law.
Well, the Supreme Court has ruled that
property can be taken — what next my
freedom?
—Crystal Wilson, Fort Worth
RESPONSE 2: Do you feel that the laws
passed by the Texas legislature in response to
Opinions Kelo are adequate to protect the individual’s
rights?
Yes, and hooray for Texas in standing
up against the Kelo ruling! The homes
condemned in New London, Connecticut
were taken for only one reason: to
improve the general land value in the area
and provide for economic development
(i.e., Private land was reallocated to another
private sector to improve the economy.).
Prior to Kelo, “public use” was used
to clear the way for railroads, highways,
dams and stadiums — real property and
facilities utilized by the public. Kelo has
opened the way for legislatures to try and
courts to allow the condemnation of private
property for private uses. S.B. 7 prohibits
the taking of private property by
eminent domain through public use for
economic development in the State of
Texas.
Should individual rights be subordinate
to the “public interest” in such situations?
Blight or public interest should be the
predominant factors in an eminent
domain taking (the Public Use Clause of
the Fifth Amendment to the U.S.
Constitution). Our “founding fathers” did
not intend for the condition of economic
value, which Kelo now places on the right
to property.
Do you feel the restrictions imposed by
the Texas legislature will harm ultimately
the economy or do you feel that the restrictions
are fair and balanced?
I believe the restrictions are fair and
balanced, and protect the right to property.
Yes, the government should promote
growth, but it does not give them a right
to step on property owners to realize that
end. The absolute protection of rights is
fundamental to American life — as written
so eloquently in the U.S. Constitution
— even if some tax revenue is lost in the
process.
Did the Supreme Court go too far?
Yes, absolutely. In Kelo, the Supremes
forgot that the U.S. Constitution is the
“supreme law of the land” and should be
immune to the opinions of legislatures to
pervert the Public Use Clause for economic
gain of the “haves” (i.e., wealthy property
owners) over the “have-nots” (i.e., poor
property owners). As Justice O’Conner
said in her dissent in Kelo, “While the government
may take their homes to build a
road or a railroad or to eliminate a property...
that harms the public... it cannot
take their property for the private use of
other owners simply because the new
owners may take more productive use of
the property.”
—Kim Messeri, McKinney
RESPONSE 3: I do not see much in
individual rights in relating to eminent
domain in TX. Only the right of monetary
restitution given to that petitioning
individual versus the government that I
see needs to have more looking into. The Kelo [SIC] affirmation of Kelo v. New
London only gives more leeway to the government
and big business to take advantage
of the little guy.
—Dalea Lugo
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