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Greetings from the Kansas Supreme Court and the Kansas Bar Association. This is the second edition of Law Wise for the 2005-2006 school year. The theme of October’s edition of Law Wise is "This Land Isn’t Your Land … Exploring Private Property Rights."
Calendar of Events
Exploring Private Property Rights
A recent U.S. Supreme Court decision originated in the city of New London, Conn., where the city approved a development plan that had been submitted by a development agent. The plan called for construction of a waterfront hotel, restaurants, retail stores, residences, and office space; also, portions of the development area were to be used for marinas and support services. The city authorized the agent to purchase property in the development area or to acquire it by eminent domain. The agent purchased most of the required property, but nine owners refused to sell. The Court found that the development plan served a public purpose and therefore constituted a public use under the Takings Clause of the Fifth Amendment. The plan was not adopted to benefit a particular class of identifiable individuals. Although the owners' properties were not blighted, the city's determination that a program of economic rejuvenation was justified was entitled to deference. There was no basis for exempting economic development from the broad definition of "public purpose." The Court declined to require a reasonable certainty that the expected public benefits would accrue, nor was it proper to second-guess the city's determination of the boundary of the development area.
The Supreme Court's June 23, 2005, decision to allow the city of New London, Conn., to condemn its citizens' homes to generate more municipal tax revenue offended many Americans and became a much debated topic. In a blistering dissent, Justice Sandra Day O'Connor declared, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory." That's the bad news if you disagree with the Court's findings.
On the other hand, the Court's decision does not prevent states and localities from adopting a different approach. "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."
The eminent domain debate now returns to the local and state level, where it ultimately belongs. All states have statutes or constitutional provisions governing the conditions under which governments can take private property. Michigan, New Hampshire, New Jersey, South Carolina, Arkansas, Missouri, Kentucky, and California significantly limit that authority. A 1976 California court opinion describes their approach. Eminent domain "never can be used just because the [city] considers that it can make better use or planning of an area than its present use or plan. ... [I]t is not sufficient to merely show that the area is not being put to its optimum use, or that the land is more valuable for other uses" to justify condemnation of property.
The laws of Kansas, Maryland, Minnesota, New York, North Dakota, and Connecticut, conversely, grant local and state governments much broader leeway.
Virtually everyone agrees that when the government takes private property to build something that clearly and directly benefits the entire community - schools, roads, parks - it is acting for a public purpose. The thorny question, and the one with which the Supreme Court struggled, is what to do when the government seizes private property to create jobs or increase tax revenue or some other economic development objective.
The debate about eminent domain centers on two questions. When can government take private property? What should it pay for that property?
Portions of this article were taken from a posting on www.alternet.org by David Morris, titled "The Politics of Land Grabbing," posted July 7, 2005.
Exploring Property Rights in Kansas
The issue of whether a governmental entity may take private property for economic development came squarely before the Kansas Supreme Court in 2003 when a landowner and his company appealed the taking of property valued at $329,000.
The property consisted of seven acres that were part of a planned 400-acre industrial park on which a huge Target distribution center was to be constructed. The property is now under part of the center's foundation. The decision, which can be found online at http://www.kscourts.org/kscases/supct/2003/20030418/89029.htm, came in the appeal of General Building Contractors L.L.C. and Robert D. Tolbert v. Board of County Commissioners of Shawnee County (Docket No. 89,029).
The Shawnee County Commissioners used their powers under "home rule" to acquire the property and establish the industrial park. The power of "home rule" was granted to counties by the Legislature in 1974 and allows county commissioners to "transact all county business and perform all powers of local legislation and administration it deems appropriate," subject to a list of exceptions including changing any statutes that apply uniformly to all counties.
The landowners unsuccessfully contended that the home rule powers do not expressly permit acquiring property for public purposes. However, the Court held that the exceptions to home rule powers do not prohibit that use of home rule.
In making its ruling, the Supreme Court approved an attorney general's opinion which held that once a county has established an economic development program, it may buy and sell real estate for industrial sites for economic development as long as the purchase and sale are related to the program and serve a public purpose.
The Supreme Court upheld the Shawnee County District Court decision in the case, which awarded Tolbert and his company $329,000 for taking his acreage and the removal of a building that was constructed on the site. The Target distribution center has since been built and is now open for business. Approximately 600 jobs were created by the county's development of the industrial park.
The Kansas Court of Appeals, a 12-member intermediate appellate court, sits in three-judge panels. The court is pleased to have students attend the hearings. The Court of Appeals will be hearing cases in Topeka and Wichita on Oct. 25-26.
The Kansas Supreme Court is the highest court in the state, and includes seven members. Students are also welcome at oral arguments before the Supreme Court. The high court holds its hearings only in Topeka.
If you have any questions concerning the Kansas appellate courts, or if you would like to bring your class to either the Kansas Supreme Court or the Kansas Court of Appeals, teachers may contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, 301 W. 10th Ave., Topeka, KS 66612-1507, (785) 296-4872, for assistance. You can also contact Mr. Keefover via email at email@example.com.
Every spring, the Kansas Bar Association Young Lawyers Section (YLS) offers a statewide mock trial competition to high school students. This year's competition will offer two regional tournaments - one in Sedgwick County and one in Johnson County. The top teams from those tournaments will compete at the state tournament in Kansas City. The winner of the state tournament will then compete at the national tournament in Oklahoma City. The YLS will provide financial assistance to the state champion for participation in the national competition.
The National High School Mock Trial competition began in 1984. The competition offers students simulated courtroom experience with real lawyers available to help coach participating teams. Additionally, lawyers and judges act as the judge and jury during the tournaments. Students in debate, forensics, government, speech, drama, gifted programs, or those interested in pursuing a career in law will find the mock trial competition worthwhile and exciting. We encourage educators to seriously consider entering at least one team from his or her school.
Teams for this competition consist of six to eight students. Schools can enter as many teams as they would like. Registration fees are minimal, starting at $50 for the first team and $25 for each additional team. However, in no event is any school required to pay more than $200, regardless of the number of teams entered.
The registration deadline for the competition is Feb. 10, 2006. The case materials and rules will be available later this fall at www.ksbar.org. The regional competitions are scheduled for March 4, 2006. The state competition is scheduled for April 1, 2006. The 2006 National Tournament will take place on May 13, 2006, in Oklahoma City.
The KBA has a VHS tape and a DVD of the final round of the 2005 national competition available to loan out to schools who are interested in seeing a sample round of the competition. Amy Fellows Cline is the coordinator for this year's tournament. Cline can be reached by phone at (316) 630-8100 or by e-mail at firstname.lastname@example.org.
Please contact Amy if you would like an attorney to assist your team in preparing for the competition. These volunteers will offer invaluable advice and real life experience to your teams. Many attorneys have volunteered to assist with practice rounds, and offer advice on opening statements, closing arguments, and examination of witnesses. We encourage teams to take advantage of this valuable resource.
A registration form for the 2006 Mock Trial Competition can be found at http://www.ksbar.org/pdf/mock_trial/reg06.pdf.
The producers of RAISE THE BAR, the documentary based on the 2003-04 National High School Mock Trial Championship, are proud to announce the completion of their film.
Preview copies of RAISE THE BAR, containing selected scenes, are being made available (at no cost!) to all educators and mock trial coaches that are interested.
The price to purchase the film has been reduced to $50. per copy. 10 or more, $40. each.
Please contact Jim Charleston at email@example.com to request a free preview copy or to order the complete film. Be sure to include your address and school/team association.
The Law-Related Education Inventory has the following items that might be useful in working with students on eminent domain issues or states' rights:
The Law-Related Education Inventory has many resources to help teach about law-related topics. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. To order a catalog, call Janessa Akin at the Kansas Bar Association, (785) 234-5696. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8 a.m. to 7 p.m., and Friday, 8 a.m. to 5 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu/.
Authors: Michelle Sale, The New York Times Learning Network, and Tanya Yasmin Chin, The Bank Street College of Education, New York City
Grade Level: 6-12
Overview: In this lesson, students review scenarios relating to a Supreme Court case upholding the practice of eminent domain. They then discuss the complex issue of private property seizure and write letters to a local or state government representative.
Suggested Time Allowance: 1 hour
Objectives: Students will:
"Imagine that you have just been informed that the local government is planning to seize your home and demolish it to make way for a new shopping mall. What do you think and feel? What would you do? How would your response change, if at all, if your family were to be given fair market value for the price of the home, as well as relocation expenses?" After a few minutes, allow students to share their answers.
Then, explain to students that what they are discussing is known as "eminent domain," which is not mentioned specifically in the U.S. Constitution, but the Supreme Court ruled in June that the government can take land for certain types of development use. Review and discuss the following definition and constitutional amendment, focusing on how they relate to the seizure of private property:
For further information, a brief history of eminent domain can be found at http://www.pbs.org/now/politics/domain.html.
Instruct students to examine the issue as it is presented in the article, and brainstorm a list of benefits and drawbacks for the government to exercise the power of eminent domain in this particular situation.
After about 10 minutes, allow pairs time to share their ideas with the class.
Then, as a class, students explore eminent domain in round-table discussion format. Though the discussion will most likely be easily driven by student comments, some guiding questions are offered below. Because the discussion may become heated, the teacher may want to maintain a "speaker's list." Students who wish to add to the discussion raise their hands, and the teacher writes their names on a list. Students will be called on in the order that their names appear on the speaker's list. Students can be added to the list at any time by raising their hand, but students must talk in turn.
Students will be evaluated based on completion of initial journal responses, participation in class and group discussions, and thoughtfully written letters to government officials.
Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyers Trust Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education, it is edited by Crystal Marietta, Pittsburg, (620) 231-5620.
For further information about any projects or articles, contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, Topeka, (785) 296-4872, or Janessa Akin, Public Services Director of the Kansas Bar Association, Topeka (785) 234-5696.
Law Wise is printed at the Kansas Bar Association, 1200 Southwest Harrison, P.O. Box 1037, Topeka, Kansas 66601-1037.