Commissioners’ Statements and Rebuttals 35Statement on <strong>Eminent</strong> <strong>Domain</strong>By: Dave KladneyNovember 2013The August 12, 2011 briefing on the civil rights implications of eminent domain was my first briefing atthe Commission. After reviewing the background materials and then participating in the briefing itself, Ihave not seen a satisfactory case presented that present-day uses of eminent domain amount todiscrimination or denial of equal protection on the basis of race or ethnicity. 1 Instead, what ourexamination of eminent domain seems to show is that, as with many things, the wealthy are able to takeadvantage of the less well-off.The scope of the U.S. Commission on Civil Rights is clear; we are primarily concerned with color, race,religion, sex, age, disability, national origin. 2 However, this briefing highlighted the fact that economicdisparities in our society frequently influence our charge by affecting the aforementioned classes ofAmericans most severely.The studies presented during our briefing showed that instead of using race as a determinant,"communities are somewhat more likely to pursue redevelopment in poor areas than in more affluentones.” 3 None of the evidence presented in the arguments against eminent domain suggested thatlocalities aimed the particular takings at minority property-owners. Rather, the testimony suggests thatlocal governments singled out these property-holders because they were poor. 4For example, Mr. Beito’s description of the mistreatment experienced by Mr. McCall and Ms. Jonesdoes not stem from racial discrimination or eminent domain laws, per se. In Mr. McCall’s case,government officials razed his property in violation of a court order barring their actions. 5 The law andthe courts did their respective parts to protect Mr. McCall. It was local officials that, according to Mr.Beito, violated Mr. McCall's property rights. Just the same, Ms. Jones’ mistreatment did not stem fromdiscrimination based on her race. Unfortunately, the city’s ineffective record keeping and notificationrequirements resulted in the demolition of her property. 6,7The fact that individuals abused otherwise lawful government power to exercise eminent domain foreconomic development is no reason to eliminate that power. After all, every power has the potential for1 42 USC 1975a(a).2 Beyond attention to these issues, the Commission is also concerned with voting fraud. See: 42 USC § 1975.3 USCCR Briefing Transcript, Aug. 11, 2011 (“Briefing Transcript”) Testimony of Professor Byrne at 25. See also, Id at 84(describing the imprecision of the data used in Victimizing the Vulnerable).4 Briefing Statement of David Beito at 5 (“McCall suspects that wealthy developers are trying to get their hands on theproperty.”)5 Ibid. pp. 40-41.6 Ibid. p. 42.7 When the USCCR held immigration briefing in Birmingham, AL one year after our eminent domain briefing, I asked Mr.Beito what the outcome of these two anecdotal cases were...he did not know at that time.
36 The Civil Rights Implications of <strong>Eminent</strong> <strong>Domain</strong> Abuseabuse. Instead of eliminating eminent domain, affected communities would benefit more fromimplementation of additional procedures that curb abuses and mistakes like the ones experienced by Mr.McCall and Ms. Jones.Beyond miscategorizing this issue as discrimination or denial of equal protection based on race, thisbriefing also failed to demonstrate that eminent domain is relevant as a current civil rights issue. Despitemy requests 8 during the briefing for data about recent instances of eminent domain abuse that fall withinour jurisdiction, none of the witnesses pointed to cases after 1973. Only after they revised theirstatements for the record were any of the witnesses able to point to relevant cases after 1973. 9 Even then,the witnesses arguing against the government’s ability to use eminent domain could only find two recentcases 10 of discrimination. 11 The first case they cite is Poletown Neighborhood Council v. Detroit (1981),where the city of Detroit cleared a neighborhood to make space for a General Motors plant. Theneighborhood in question was mostly White, and the city’s action—which favored the largecorporation—was proposed to save 6,000 jobs. If anything, this case further demonstrates that eminentdomain issues are class-based, rather than racially motivated. The second case, Kaur v. N.Y. State UrbanDev. Corp., 933 N.E.2d 721 (N.Y. 2010)—about Columbia University’s continuing expansion intoHarlem’s Manhattanville neighborhood—has more to do with the erroneous definition of blight andinstitutional power in communities than racial discrimination. 12 Using Kaur v. N.Y. State Urban Dev.Corp., 933 N.E.2d 721 (N.Y. 2010) to describe a recent case of eminent domain abuse is wrong becauseNew York State probably has the most questionable procedures, which have later been ruledconstitutional.Some commentators ascribe to the notion that an area is blighted only if a building or area is dilapidated,dangerous, or disease ridden. For example, one of the witnesses boldly stated it was unbelievable thatthe downtown area of the City of Las Vegas experienced blight. This is consistent with most Americans’idea that Las Vegas only includes the world-famous “strip” of hotels and casinos. In fact, the majorhotels and casinos of the strip do not reside in the City of Las Vegas, but rather outside the city’sjurisdiction in Clark County. 13On the other hand, the downtown area of Las Vegas was first laid out when the city just was a smalltown in the early 1900's, and was once the commercial center of the city. This area of redevelopment,8 Ibid. p. 76.9 Somin at page 31. Shelton at page 40. Beito, whose cases were cited during the briefing, at pages 44-46.10 See Somin written testimony, in the Commission’s <strong>Report</strong> page 31. In the written statement, Beito references the two casesthat he discussed in the briefing (see report, pp.44-45).11 Mindy Thompson Fullilove, Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can DoAbout It, p. 17. Mindy Fullilove is a medical doctor, whose authority to write of the issue of eminent domain is based on herpersonal experiences rather than formal training on the issue. Derek Werner, Note: The Public Use Clause, Common Senseand Takings, 10 B. U. Pub. Int. L. J., 335 (2001). Bernard J. Frieden & Lynn B. Sagalyn, Downtown, Inc.: How AmericaRebuilds Cities, p. 29.12 Professor Byrne cited an instance of eminent domain in Washington, D.C. but stated that it was necessary for theconstruction of “a badly needed private supermarket for an underserved community.” Transcript pp. 22-23.13 These Clark County casinos and hotels where first envisioned in 1946, with the opening of the Flamingo Hotel— which ismore than five miles away from the downtown area.
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