Citizens For A Better Norwood

Tuesday, August 15, 2006

Part I of Susan's interview with attorney Bert Gall of the Institute for Justice

Susan: Bert, congratulations on the Norwood decision, and thank you for taking time for this interview. I want to get your reaction to attorney Richard Tranter’s critique of the Ohio Supreme Court’s decision in the Norwood case. As we all know, he is developer Jeff Anderson’s attorney. Here’s what he told the Cincinnati Enquirer on August 1, five days after the ruling was announced:

"I don’t think they (the Ohio Supreme Court justices) holistically went and addressed the issues. There’s a sense that the Norwood case solved all. It did not. It knocked out "deteriorating," which has been the law for 50 years. And then just when I thought the intellectual heavy lifting was going to start, they stopped the analysis."

Susan: First of all, Bert, do you think the justices failed to do the “intellectual heavy lifting?”

Bert: Mr. Tranter's comments couldn't be more off base: if he couldn't find "intellectual heavy-lifting," then he simply wasn't looking. Indeed, the Court's opinion is an intellectual tour de force that explains -- at great depth and length, and with citations to hundreds of sources -- the history of eminent domain, the constitutional limits on that power as delineated by it and other courts in the past, the legal (and even philosophical) grounding of those limits and the judiciary's necessary role in ensuring that eminent domain is not abused for private gain

Susan: Did the justices’ decision stop short of analysis as Mr. Tranter claims?

Bert: The Court's well-grounded understanding of these topics animates its analysis of the case and will provide solid guidance to lower courts that confront the issue of takings for private development. Mr. Tranter's assertion that the Court "stopped" at declaring private-use condemnations of so-called "deteriorating" areas unconstitutional -- by itself, a very important holding because it also means that vague "blight" laws cannot withstand judicial scrutiny -- is belied simply by glancing at the decision, which also held (1) that economic development is not a public use; (2) that courts must employ "heightened scrutiny" when reviewing uses of eminent domain, especially when property is being taken for another private party; and (3) that the Ohio law preventing property owners' from stopping the demolition of their homes and businesses on appeal is unconstitutional.

Part II of this interview Wednesday