Tuesday, September 09, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: Undermining the Bill of Rights

It's open season on property rights after high court ruling

The state Supreme Court on Monday contributed to the further erosion of vital property rights when it ruled 4-2 that the city of Las Vegas could use eminent domain to seize private land in downtown Las Vegas and turn it over to other private interests.

In the highly publicized case involving the Pappas property -- which the city of Las Vegas redevelopment agency seized so that downtown casino interests could build a parking garage -- the majority meekly goes along with a string of previous court decisions over the past few decades that have greatly enhanced state power at the expense of individual liberty.

The Fifth Amendment's Taking Clause states that no private property "shall be taken for public use without just compensation." Nevada's own constitution concurs.

But the majority justices conclude that because some courts have broadly interpreted the term "public use" to sanction the forced transfer of land from one private party to another -- instead of restricting the use of eminent domain to its more traditional purposes such as acquiring land for highways or other obvious public needs -- the Pappas family is simply out of luck. In essence, the court concludes that "public use" doesn't mean "public use" -- that if done in the name of attacking "blight," there's nothing illegal with a government entity using eminent domain to force a widow to leave her private home so Wal-Mart may build a supercenter.

The majority -- Chief Justice Deborah Agosti and Justices Nancy Becker, Bob Rose and Miriam Shearing -- should have followed the lead of dissenting Justice Myron Leavitt. "The appropriation of a private citizen's property by eminent domain proceedings must be for a `public use' within the meaning of those words in the Constitution," he wrote. "The government's taking of property and giving it to another for a private use is unconstitutional and void."

Justice Leavitt goes on to cite a 1996 federal appeals court case out of the 9th Circuit, in which the justices concluded: "If officials could take private property, even with adequate compensation, simply by deciding behind closed doors that some other use of the property would be a `public use,' and if those officials could later justify their decisions in court merely by positing `a conceivable public purpose' to which the taking is rationally related, the `public use' provision of the Takings Clause would lose all power to restrain government takings."

But that is precisely what a majority of the Nevada Supreme Court has endorsed. By embracing a "broad" reading of "public use," it renders meaningless any real restrictions on eminent domain, undermining the very purpose of the Bill of Rights. Our property rights now depend on the whims of lawmakers and bureaucrats.

In his groundbreaking 1944 defense of freedom and liberty, "The Road to Serfdom," Austrian economist F.A. Hayek wrote that, "The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not."

Unfortunately, that sentiment is lost on four state high court justices -- and the people of Nevada are today the worse for it.