little pink house: a true story of defiance and courage

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LITTLE PINK HOUSE A True Story o Defance and Courage

Je Benedict & Scott Bullock



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Center of the American Experiment

LITTLE PINK HOUSE

A True Story o Defance and Courage Jeff Benedict & Scott Bullock

Jointly Sponsored by

The Federalist Society – Minnesota Lawyers ChapterInstitute for Justice – Minnesota Chapter


Introduction

Beore there were Tea Parties, there was Kelo.Susette Kelo’s name turned into a movement.Her loss o her property was the nal straw orAmericans in 2005. When they heard about theKelo decision, homeowners and small businessesacross this country reused to accept the idea thata well-connected developer could turn city hallinto a real estate broker and orce a hardworking,

honest, middle-aged nurse to leave her homeor the economic benets accruing to a largepharmaceutical company and the political benetsaccruing to a soon-to-be jailed governor.

Just as Howard Beale, in the movie Network,impassionedly galvanized the nation with hisrant, “I’m mad as hell, and I’m not going to takeit anymore,” the Kelo decision united morethan eighty-ve percent o Americans againstthe Supreme Court’s holding. Homeowners and

organizations rom the National Federation o Independent Businesses to the NAACP unitedto say “no more” to city planners and corporatedevelopers who had taken over 10,000 homesnationwide based on thin economic projectionsand promises o more jobs and higher tax revenues;projections which oten were packaged in slickconsulting studies, all seeming to come out o thesame word processor.

More oten than not, those studies were lledwith the same modern planning-speak about theimportance o “redevelopment and revitalization”in a “public transport centric manner” to create a“gateway community” with “upscale amenities” and“large anchors” designed under “smart growth tools”to ensure “sustainability” and conducted under theauspices o a “public-private partnership.”

Well, Susette Kelo personied the opposition to

all o that gobbledygook and Americans knew thatthose words just meant two things or them: thatcorporate welare now extended to land grabs, andlike Susette Kelo, they, too, could lose their homes.Susette’s story has transormed the esoteric andmostly orgotten legal concept o eminent domainto a main street battle cry against over-reachinggovernment. Her story reverberates today.

No one has told Susette Kelo’s story better thanour rst speaker, Je Benedict in Little Pink House.

A native o Connecticut, Je is an award winningjournalist and a best selling author o nine books.His books have been the basis or eatures on 60

Minutes, 20/20, Dateline, HBO’s Real Sports, andthe Discovery channel. He’s been a contributingwriter to Sports Illustrated, the Hartord Current, andthe Los Angeles Times. He’s a proessor at SouthernVirginia University, where he teaches advancedwriting. He holds a law degree, a master’s degree

march 2010



LITTLE PINK HOUSE – A True Story of Defiance and Courage2

in political science, and an undergraduate degreein history.

Our second speaker is my Institute or Justicecolleague Scott Bullock. Scott was the rst personhired at IJ in 1991 by its ounders. Today, he isa senior attorney at the rm. Scott received hislaw degree rom the University o Pittsburgh, andhe holds a B.A. in economics and philosophyrom Grove City College. In addition to arguingthe Kelo case beore the United States SupremeCourt, he has been involved in a number o caseschallenging the use o eminent domain or privatedevelopment, including litigation that saved abeachront neighborhood in Long Branch, New Jersey, a small record label in Nashville, Tennessee,and the home o a amily in Canton, Mississippi.

This is not Scott’s rst trip to Minnesota. He workedwith me to deend the City o Minneapolis’deregulation o the taxi industry. That deregulationhas created over 150 new jobs and increased taxiservices to previously underserved parts o our air city.

Please join me in welcoming Je Benedict and thenScott Bullock.

Lee McGrath

Executive DirectorInstitute for JusticeMinnesota ChapterSeptember 22, 2009

Jeff Benedict: I’m grateul to the three organizationsthat brought Scott and me here. Scott and I havebeen to a lot o places together, and it’s been a realpleasure getting to know him even more than I did

while writing Little Pink House. He’s a great guy, andhe works or a great institution that’s doing reallygood things.

I don’t usually say much about my law practice yearsbecause I don’t really consider mysel an attorney.In my rst year o law school, I made the decisionto go into publishing as opposed to practicing lawand didn’t even take the bar exam ater law school.

I made the oolish mistake o taking the bar examsix or seven years later without a bar review coursewhile writing a book and trying to raise our kids.So it was a little crazy. I did practice or just a littlewhile, but book writing has been my job and mypassion or the last 13 or 14 years. Typically, I’m onthe hunt or stories that can sustain a narrative o 300 to 400 pages.

This case had it. That was clear the rst time Imet Susette Kelo. I was born in New London,Connecticut, so I know this town really well. Thehospital I was born in is ve minutes rom theneighborhood where this all happened. I lived inthe next town in the midst o all this stu.

One day, I drove to Susette’s house to approach her,

just a ew months ater the case had been decided bythe Supreme Court. You know the end o the story,and I knew the end o the story beore I got there.I was really interested in the beginning o the story,ascinated by the question that I always get asked,“How in the world could the Supreme Court decidethis case this way?” I think it’s because—not to beglib—the Supreme Court doesn’t have the luxury o knowing the back story to these cases. They knowwhat’s in the documents presented to them, and, bythen, the real story is a long ways rom there.

I went looking or that story, and here’s what I ound:Susette Kelo, I was told by her adversaries when Istarted this project, was motivated by one o twoactors. Number one, she was a greedy woman whoknew that i she held out longer than everybody else,she’d get more money or her property; and, numbertwo, she was a woman who was motivated by theglare o the spotlight, something that she’d neverhad, and when she got her 15 minutes o ame, she

ound it attractive, so she stayed in it as long as shecould. They’re plausible arguments, I guess, i youdon’t know any better.

So I went to meet Susette. When I knocked on herdoor, I had this pitch that I prepared—i I couldn’tget Susette Kelo, I couldn’t write the Kelo story, soI was pretty rehearsed when I knocked on the dooro her pink house. I’ve knocked on a lot o doors




rom Kobe Bryant’s to governors’ in trouble withthe law, so I’m used to approaching strangers whodon’t want to be interviewed. I didn’t know whatSusette’s reaction would be.

She opened the door, and I said, “Hi. My name is Je Benedict. I’m a writer.”

I was about to tell her what I wanted to do, and sheinterrupted me quite rudely and said, “I know whoyou are!”

“Okay,” I said. “That could be trouble, or it couldbe good, depending on what you think o thingsI’ve written.”

She said, “What took you so long?”

I thought, “I’m in!”

She opened the door and invited me in. It wasprobably the easiest in I’ve ever had. Three hourslater, I was still in. I listened to a lot o things romher. I didn’t record our interview that day. I usuallyrecord everything. I didn’t that day, because thiswas more an inormational session or me to ndout i Susette had what it took to do a book. Therewas a lot riding on this.

I concluded at the end o the three hours that shehad the things I needed. She had a pretty goodmemory. She was truthul. She was airly open.She was unpretentious. When I asked her i shewas a keeper, she said yes. She had eight boxes o documents and letters, and those are importantthings or a guy like me. I asked her i she kept adiary. Would she let me read it? She wasn’t a bigdiary keeper, but she had some journal entries, and

she agreed to let me see them.

So I said to her at the end, “You let me in yourhouse pretty easily here today. The question is, willyou let me in your lie or the next couple o years?In order or me to do what I do, I’m going to get inthere pretty deep, and we’ll need to get into somethings that you probably never have gotten intowith anybody beore, maybe not even with your

lawyers. I want to know all o it. The stories you’veprobably never wanted anybody to know about you,I want to know all those things. I may not need towrite all those things, but I need to know all thosethings. No surprises.”

She agreed and o we went.

Very early on, I interviewed the real estate agentwho sold her the house, because I was trying to getat this answer: What was her motivation?

The realtor was an interesting guy. The rst timeI interviewed him, he was kind o embarrassed,and he said, “Well, actually, I’d never sold a housebeore. I had just changed careers and just got mylicense to sell real estate, and this was my rst sale.

Because I was the low guy on the totem pole, I’m inthe oce on a weekend in the summer when thephone rings and this woman says, ‘This is SusetteKelo. I’d like to look at the house on 8 East Street in New London.’ I didn’t even know where that was. Igrabbed the listing. I looked at the sheet while I hadher on hold. I could see this house was a wreck. It’dbeen on the market a long time. Its value had beendropping. I got back on the phone. ‘When wouldyou like to see it?’ She said, ‘How about today?’ Isaid, ‘Let me give me you directions.’ She said, ‘I’m

here right now standing out ront.’ I said, ‘Wow.’”

So the realtor jumped in the car and drove overthere. He made an observation that caught myattention right away. He said the tops o Susette’seet were bleeding.

I immediately stopped him and said, “What are youtalking about?”

He said, “Well, it was summertime. It was hot. Shehad on shorts, so her legs and eet were exposed.She had sandals on, no socks. The house wasobscured by a lot o briars and stu. It hadn’t beenaccessed in a long time. She’d brought over somehand clippers and started cutting a pathway to thedoor beore I got there, and she cut the tops o hereet. I pointed that out to her, and it didn’t evenaze her. She didn’t even bother wiping it o.




We got the padlock o the door, and we got inside.I went down into the basement, and I ound a dirtfoor with a boulder that took up hal the basement.This is a disaster. I’ve got to talk her out o buyingthis house. I came back upstairs, and she’s still inthe living room. She hasn’t let it. That’s the rstroom you enter. She never let the room. Sheopened these curtains that looked like they hadn’tbeen opened in years. It let in a lot o sunlight. Youcould see the Thames River where it hits the LongIsland Sound. It was a pretty spectacular view. Iwas ocused on everything that was wrong with thishouse. She was ocused on one thing: the view.She made an oer on the house that day.”

Question: Was this a woman who was motivatedby greed, or was this a woman who was hungry or

something she’d never had? I concluded this was awoman who was hungry, and I wanted to nd outwhy was she so hungry. Why was she hungry enoughto ght or eight years to hold onto this house?

What I ound out was that when she was born,her ather let her beore she got his name. Soshe started her path in lie being raised by a singlemother, who was a waitress in a diner, who had abunch o kids and no money, and who lived in ruralMaine. The kids ran around with socks on their

hands or mittens and ate inadequately and werenot getting educated properly. That’s how Susette’slie started. Then, at 16, lie really started, becauseshe got pregnant. She decided to keep the baby.She had the baby. By 25, she had ve babies. Shewas married to a guy who was not really a perorminghusband. She was basically raising ve boys andtaking care o a guy. They got a divorce. Thus,she was a single mom with ve kids. She didn’tget to go to college. She didn’t get a career. She

was denied a lot o experiences that other adultshave. By the time she was in her early 40s, she wasremarried. The kids had kind o grown up, and thelast kid graduated rom high school.

At 42, she looked around and said, “This marriagedoesn’t have any sizzle. I need to start over. I wantto do something dierent.”

She was a medic, and she drove an ambulance truck.One day she was driving through New London, andshe saw this house with a “or sale” sign danglingnext to it. It was the kind o house that nobodywants. I you’re a single mom and a medic, it’s theonly kind o house you can aord. So she bought it,and she xed it up with her own hands and with thehelp o some riends. She nally got to the pointwhere she could move in. In one o her very rarediary entries, which she let me read and which waswritten on the rst night she slept in the house,long ater she’d bought it, while she was sitting onthe porch in a rocking chair totally alone in the darklistening to the water, she wrote about how it wasthe happiest time o her lie, alone with her house.

That’s one part o the story.

The other part o the story is that there was anotherwoman, Claire Gaudiani, who was as ar away romSusette as the North Pole is rom the South Pole.She was a Ph.D. and a college president. She waspolitically connected. She had degrees in oreignlanguages. She was very smart and politically savvy.She was sexy. She had everything going in her lie.She was the biggest und raiser in the history o Connecticut College.

She was sitting there one day, and the governor’soce called and wanted to meet with her. Why didthey want to meet with her? Because the governorhad decided he wanted to do a big urban renewalplan in New London, and he was a Republican andcity hall in New London was Democratic. Theyhated him, and he hated them. He was looking ora route around them to do a big urban renewal plan.The key to that was this nonprot developmentcorporation in New London that had been dormant

or two decades, and they were looking or someoneto run it. But they wanted someone to run it whothey could control. She was the one, they thought,because she had chutzpah, she was connected, andshe got things done. The city ocials who wereDemocrats trusted her because they were all men,and they liked her legs.




They thought this was going to work. So thegovernor appointed her. She accepted the position.She became president o the developmentcorporation. This was a woman who had neverbuilt a house, and, now, she was going to do a $300million redevelopment in an urban area.

She was given this piece o property to start with. Itwas 24 acres on the waterront. It was right at themouth o the Thames River; it was a block awayrom Susette’s house. The problem with it was,it was badly contaminated with environmentalpollutants in the ground. The pollutants had beenthere or years; that’s why the city couldn’t give itaway. She got this piece as her starting point.

She was a smart lady, so she said, “We need to get a

Fortune 500 Company to come to that property.”

She recruited the president o Pzer to join herboard as a volunteer with his task being, “Tell ushow we can market this to somebody like you.”Really, what she wanted, was him.

He went to the property with her. When he gotthere, beore he saw anything, he smelled something.It smelled like a toilet bowl. Well, there was a sewerplant next door. It wasn’t properly capped. O

course, all these poor people who lived down therehad been smelling this or years, but nobody cared.It’s a lower-middle-class neighborhood. But, yes,that smelled pretty ripe. That was the neighbor.An adjacent site with tires and oil in the groundand the metal everywhere was a scrap metal yard,about seven acres o property. That was next to thesewer plant. Then, there was this monstrosity thatwas an old ort that Benedict Arnold burned downin the Revolution. Nobody had xed it up since.

So these were the neighbors.

He said, “No one is going to buy this place. NoFortune 500 Company is going to come here.There’s too much liability. Look what’s around you.It’s a non-starter.”

Claire said, “What i the state was willing to truck24 acres o earth out o here and bring 24 acres o

new earth in and remediate the whole site and doit on their dime, and, then, give the property awayor a dollar?”

“Well, that would obviously help,” he said.

“What i they went over and with state undingthey put upgrades on the sewer plant and capped itand got rid o the smell and made it look modern,and you wouldn’t even know it’s there?” “That would be good.”

“What i the state bought out the scrap metal guy,erased that ugly site, got all that junk out o there,and gave you that land, too? That’s another sevenacres, and it abuts yours. You’d get 24 plus seven;

that’s 31.”

“That’s good.”

“The park over here, we could turn into a touristattraction, make it a state park. The state could payto reurbish the whole ort. You could have parkinglots, waterront access, tourists would come, schoolkids on buses.”

“Well, i the state did all o that, then maybe there

would be something to talk about.”

So a couple weeks later, they were in the governor’soice, and they were talking. Now, they were nottalking about some other corporation out there;they were talking about Pizer, his corporationcoming there, and a deal was struck. Then,this deal was taken to the board o directors atPizer in New York. They came back with acounterproposal.

“I you’ll do all those things, we’ll come to NewLondon and build our Global Research andDevelopment headquarters, but there’s one morething. There’s one more thing that we have tohave, or we won’t come.”

“What is it?”




thought what they were doing was right. They wereon a collision course.

There was a day when Susette was in theneighborhood. The city had now acquired abouthal the properties in the neighborhood throughear and other tactics, and because they ownedthe titles, they were ree to do what they wantedwith these properties. But even though there werea lot o people like Susette still living there, theydecided to knock these houses down on a regularold day when people were going to work, grabbingtheir lunches, and hustling around. In came thebulldozers. There was a bulldozer up the block romSusette’s house. The guy was in the yard, and hewas ready to take a bite out o a house. It was goingto be the rst knockdown in the Fort Trumbull

neighborhood.

The mayor drove through the neighborhood thatmorning. They’d had a prayer circle that morningpraying or the neighborhood. All these localactivists would gather every day and they’d do this.It was a ritual. Well, this day, they drove throughthe neighborhood, and the mayor’s wie noticed thebulldozer. She’d had it.

She told him, “Pull the car over. I’m getting out.

Enough is enough. I’m going to go sit in ront o that bulldozer. You’re going to go home and getmy crochet needle and my blanket. My hands areshaking, and I need something to do with them.”

The mayor ran home and got the stu. His wiewent and sat on the ront steps. When the mayorcame back, he saw the guy rom his oce who issuesthe permits or demolition, the guy who promisedhe would tell beore any permits were issued, and

the guy hadn’t told him.

The mayor got out o the car and walked to that guyand said, “Damn you or not telling me!”

Then, he walked by that guy and sat down next tohis wie.

“Here’s your blanket.”

He sat down, and there they were in ront o a bigbulldozer.

A 300-pound woman, who was a local activist inthe community and coached Susette on how tobecome an activist, joined them. Susette wantedto join them, too, but her neighbors grabbed her,literally, and physically stopped her, and said, “Youcan’t go there today.”

They knew what was going to happen.

The guy on the bulldozer—a big, husky, Italiantough guy named Chico Barberi—pulled out hiscell phone. He called the police.

He said, “I’ve got a guy on the ront steps, and he

won’t get o!”

The police came down there. It took them veminutes to get there. They didn’t know it was themayor, because Chico didn’t know the mayor.

The police said, “Oh, you’ve got to be kidding me.It’s Lloyd Beachy, the mayor. We work or thisguy.”

They went up to Lloyd and said, “Lloyd, come on.

You’ve got to come o the steps here.”

Lloyd said, “We’re not coming o the steps.”

“Lloyd, come on. You know these guys havepermits. This is legal. They can do it. You guyshave to move.”

Lloyd’s position was, “It’s not about whetherit’s legal; it’s about whether it’s moral. It’s about

whether it’s right. This isn’t right! And we know it’s not right.”

He said, “So we’re not leaving.”

Now there was a crowd. The whole neighborhoodwas out there.

The police said, “Lloyd, i you don’t come o the




steps, we’re going to have to arrest you in ront o all these people.”

“I guess you’re going to have to arrest us.”

They got the handcus out and they cued the mayorand his wie. The police carried the couple to thecar. They came back to get the 300-pound lady.

She said, “I’ll walk!”

And she did. She walked and got in the car.

She told me: “I’m sitting in the car. I’m looking at themayor and his wie behind me. It was that day thatI knew we weren’t ghting city hall anymore. Thiswas a lot bigger than city hall. It was way beyond

what we thought. I knew that day, we weren’t goingto win. We weren’t going to win.”

The police took them away, and Chico turned hisengine on and in about 15 minutes, he took downa house that probably took a year to build a centuryago. Gone. Then the next one. And then the nextone. He worked his way down to the house rightnext to Susette’s house, which was about eight eetrom her house. There was just an alley betweenthem. When Chico went to bite into that house,

Susette lost it. She came out with a broom to wardo a bulldozer. She had completely lost her wits.She was out there in the path o destruction, andeverybody was yelling at Chico to stop it. Chicocouldn’t hear, because the machine was so loud.He knew she was there, but he didn’t care, and hestarted taking down the house. Glass was fying. Itgot in all o her red hair and everything else.

Finally, her neighbor, a guy named Billy Van

Winkle who would become a plainti with her inthe Institute or Justice case, got her o the steps.He grabbed her and threw her in a car, and he tookher out and got her drunk. Susette gave up drinkinga long time ago because her 17-year-old son got hithead-on by a drunk driver. That’s why she becamea medic. She didn’t drink, but she drank that night,and she drank, and she drank, and she drank. Then,she went home, and she went to bed.

When she woke up in the morning, she lookedout the window. Her street was gone. East Streetwas empty, except or her house on one end andanother house way up at the other end. Everythingin between was gone.

Then she heard a knock at the door. Who was it? Itwas Chico. Chico was standing there with a box o scented soaps. He presented her this package, andhe apologized.

He said, “I’ll never knock your house down.”

To tell you the kind o woman Susette is, she invitedChico into the house and made him a cup o coee.I’ll never orget the day Chico told me they threwtheir arms around each other and he said, “There

was no way ater that that I could ever knock thathouse down.”

These are the things that happened in the story o the Little Pink House. It’s a great story that led to thisepic litigation that has had an impact on propertylaw across the country. By the end o the story, whenthe Institute or Justice got there, a lot had changed.The president o Pzer, who wanted this to happenso badly, was no longer at Pzer. The governor,who was the mastermind behind the development

plan, was in prison. The woman rom ConnecticutCollege, who was the spearhead o the developmentagency, was ousted ater 70 percent o the tenuredaculty at Connecticut College demanded that shebe red over this. So these three pillars o powerrom politics, business, and academia were out, andthis woman, this nurse, was still there.

There was a day at the end, ater the Institute or Justice had argued their case when you might have

started to think maybe they were winning, becausethe people were still there. Now, the whole countrywas watching. They’d been there six months, andtime was ticking away.

The new governor sent an emissary with money, lotso money, “Find a way to buy these people out.”




We got involved in this issue because we saw thepower being abused, and we knew it was in desperateneed o public interest attention. So it had thiscutting-edge legal issue where the law was totallystacked against the property owners.

We got involved in a case like Kelo back in themid 1990s when we represented a woman sort o like an elderly version o Susette Kelo. She was awoman who owned a home along the beachrontin Atlantic City. She’d lived there a long time.She was a widow, and she wanted to keep it. Wethought this might be an excellent case or us tolitigate. This issue had been long neglected in thelaw: the public use clause o the Constitution. So weagreed to represent Mrs. Coking in that case, CasinoReinvestment Development Authority v. Coking .

We also had a sympathetic plainti, which is thesecond element o any good public interest case.That’s one o the things we look or. When Imet Susette Kelo, like Je did, in her little pinkhouse along the Thames River in New London,I knew that this was a special person. This wasa woman who wasn’t interested in ame or justgetting a better price or her property. She waswilling to stand up and do the right thing. Shewas in this or the principle o the matter, and

she believed passionately in the issue. We hadthat in Susette Kelo in 2000 and we had that inMrs. Coking in 1996, when we irst got involvedin this issue.

The last thing that every good public interest caseneeds, in addition to a cutting-edge legal issueand a sympathetic plainti, to add to the dramawhether it’s a public interest case or a book, is anevil villain.

You can read Je’s account o the olks in NewLondon who, I think, constitute some o the worstvillains; those who justiy what they’re doing in thename o the public good. They say what they’redoing is or the betterment o the public. WhenClaire Gaudiani was justiying her actions to achurch congregation—she was always great orquotations to the media—she compared the work

that she did in New London to the work o MartinLuther King Jr. and Jesus.

She also said to a reporter, “Anything that’s workingin this country, works because someone let skin onthe sidewalk.”

That was her justication or what she was doing inFort Trumbull.

When we represented Mrs. Coking in AtlanticCity, it would have been hard to nd a better villainthan the one we had in that case. Mrs. Coking washaving her home taken by the Casino ReinvestmentDevelopment Authority to give to a casino so itcould put in a parking lot or limousines. But itwasn’t just any casino. The casino was owned by

none other than The Donald himsel. It’s hard tond a better villain than Donald Trump.

We won that case. It was really the rst time indecades that someone won a case on public usegrounds. Once we won that case, we were inundatedwith requests rom across the country rom olks whowere in similar situations. We realized this isn’t justan issue in Atlantic City or Canton, Mississippi, orStockton, Caliornia. This is a nationwide problem.So we very careully selected cases and put together

a program to litigate this in courts o law, and, justas importantly, in the court o public opinion. Thisall culminated in the Kelo decision itsel.

Let me just talk very briefy about Kelo and thenabout what happened in its atermath. One o thequestions I get all the time is: How did the courtmake this decision? How did they do this? It seemsso illogical. It seems so, rankly, un-American thata vast majority o people were outraged about this

and wanted something done.

I think it’s air to say that what the majority didwas not look at the text o the Constitution. Theydid not look at what the public use provisionactually means. They ocused on the last 50 yearso precedent. Since the 1950s, the Supreme Courthad given a broad reading o the public use clausereally to mean public purpose. What the majority




said in Kelo was i the public use clause meanspublic purpose, then why don’t we extend that tomean public beneft? What are the so-called publicbenets in the Kelo case? Tax revenue, more jobs,and improved economic development. That is whatthe court ocused on, not on the rst principles o the Constitution and its language, but on this broadprecedent. The justices said New London neededmore taxes, more jobs, and an improved economy,and that these were now going to be consideredpublic uses under the Fith Amendment.

Well, the real danger o that precedent is that it’sreally a vision o eminent domain without any sorto limitation. Every home would produce moretax revenue and certainly more jobs i it were abusiness. Every larger business, at least in theory,

produces more jobs and more taxes than smallerbusinesses, and certainly more than homes. So itreally is a justication or the use o eminent domainwithout any type o outer limit, and it gives broadauthority to the government to take property i theyput together a plan that calls or greater taxes andmore job growth. As the Supreme Court noted inKelo, and as we pointed out, all they have to do isproject what the tax revenue increases will be andwhat the job growth will be. Who couldn’t puttogether a better plan or your property than what

you are making o it? That’s the real danger o theKelo decision.

I think it is air to say that the Kelo decision is themost universally despised Supreme Court decisionin modern history. When I say universally despised,I mean the polling on this is o the charts, and itcuts across the usual divides you see in the countrytoday. It doesn’t matter what political party you’rein, what ethnic group you’re a member o, or where

you live in the country: People are overwhelminglyopposed to this decision and want something doneabout it.

One o the best examples o that was in Congress,where the rst person on the foor o the U.S.Senate to denounce the Kelo decision was Sen. JohnCornyn, a good riend o ormer President Bush anda conservative Republican. The rst person to do so

on the foor o the House was Rep. Maxine Waterso Los Angeles, a liberal Democrat.

People on opposite sides o the political spectrumare equally outraged about Kelo and are demandingsomething be done about it.

Thankully, we’ve seen what is really an unprecedentedbacklash against a Supreme Court decision. So ar,our state Supreme Courts have rejected the Kelo decision under their own state constitutions, whichis the exact opposite o what usually happens, whereater the Supreme Court issues an opinion, stateSupreme Courts ollow along. The state SupremeCourts under their own state constitutions are goingin the opposite direction. Forty-three states havereormed their eminent domain laws. Due to the

good works o people here in Minnesota, this statehas reormed its eminent domain laws, as well. Abouthal o the state reorms provide strong protectionsagainst eminent domain abuse. The other hal stillneed work, but what they now have is certainly animprovement over what they had beore Kelo.

The climate o public opinion has changed, too.Eminent domain abuse had fown under the radarscreens or decades. Developers and city ocialshad been able to get away with things. Now, just

about every reasonably well-inormed person in thecountry knows about the issue. Property ownerswho are aced with this situation can say, “Hey!What’s happening here is exactly what happenedto that woman in Connecticut! We’ve got to stopthis.” So it’s become much more dicult or cityocials and mayors and planners and developers toget these projects through.

Let me close real briefy with what has happened in

New London. Not surprisingly, ater the decisionwas handed down, the New London governmentreused to compromise. They orced all the peopleout o their homes. The olks who lived therewho were devoted to their neighborhood and didnot want to take the money and run. They stucktogether throughout this entire case until theywere out o legal options. All have now moved outo the City o New London. They all live in other




areas and do not want to live in a city that woulddisrespect their rights and their neighbors’ rights tosuch a great degree.

I am pleased to say that the Little Pink House hasbeen saved. It was moved about a mile away romwhere it was originally. It’s now owned by one o thestrong supporters o the property owners. He livesin it, made it a house o his own. It’s really becomethis historic home. Like Paul Revere’s house inBoston, or Betsy Ross’s house in Philadelphia, it’sa house that transormed the nation or the better.I you’re ever in that area, I encourage you to goby and see it. The person who owns it now did awonderul job o restoring it and really making itlook like the great home it always was.

What’s happened in Fort Trumbull? Ater all o thiscontroversy, ater orcing out over 80 amilies, aterspending over $80 million in state money to acquirethe property and to pay the New London DevelopmentCorporation’s salaries? Absolutely nothing .

That’s really one o the sad legacies o these typeso projects, which not only abuse eminent domainbut rely on massive corporate welare. Otentimes,they ail to live up to expectations. The promisedjob growth and the promised tax revenues never

materialize, or don’t materialize to the extent theywere originally promised, or as in New London, theyare total disasters. That is a lesson that I hope willget through to olks who have supported these typeso projects. You can do economic developmentwhile still protecting the rights o people likeSusette Kelo.

Now, the Fort Trumbull property is a vacant browneld with no new development, no new taxes, and

no new jobs. The development deals ell through.Pzer and the other developers have walked awayrom what they originally said they were going todo. And the place now is becoming a bird sanctuary.Folks rom throughout southeastern Connecticutare going to this area to watch birds.

Ater their remarks, Messrs. Benedict and Bullock

answered questions rom the audience.

Mitch Pearlstein: That was terric. But what’snew with Susette Kelo these days?

Bullock: Susette Kelo lives across the river inGroton, Connecticut, a town that ater the Kelo decision passed an ordinance prohibiting the useo eminent domain or private development. Shebought another house by the water, and she’s nowin a place that won’t abuse her rights in the utureand is doing well.

Gen Olson: Did Pzer not want to live with whatmight be the outcome i they were to take advantageo this evil deed?

Bullock: I think that was a part o it. Certainly, theact that the economy has crashed since that timeplayed a role in it. But I think the major actor is itwas just a bad plan. It was a politically motivatedplan that was put together by olks who were tryingto appease a certain corporate citizen. For instance,there’s no market or high-end oce space in NewLondon, Connecticut. The city has a huge vacancyrate or it. Once Pzer pulled out o its commitmentto the hotel and moved elsewhere, there’s no

market or a luxury hotel in New London, so it wasjust a development plan that was put together bypoliticians and olks in the planning business andwasn’t market driven. The act that the state totallysubsidized it and there were no developers whoactually had skin in the game, as they say, meantthat the city could move on with this development,go to the very end, and not compromise, and, as aresult, they’ve paid the price.

Benedict: Just to be clear, Pzer is there. Theydid build their $300 million acility. That was builtwith their own money. They didn’t use governmentmoney. They did get the land or ree, and theygot other benets. Their building was up and goingbeore the lawsuit was even led. They’re in, andthey’ve been there. What’s been unortunate romtheir perspective is now, instead o looking at whatthey considered tenement housing, they now look




at no housing. They look at brown eld, like Scottdescribed, which is pretty ugly, but they’re stuck withit. [Note: In November 2009, Pzer announcedthat it was closing its New London acility entirelyby 2011 and leaving the city.]

Pearlstein: As a writer and a lawyer, were yousurprised by the intellectual reaction, the politicalreaction, the visceral reaction, as well as at whatthe states have done subsequently?

Bullock: I have to say that I was not. I was surprisedmaybe by the extent o it, but I knew how stronglypeople elt about this. This is the old cocktail partytest, where you test this out on people who aren’tpart o your circles and that sort o thing. You tellthem what you’re working on, and the reaction by

people has inevitably been: “You can’t do that inAmerica. You’re kidding me. You’re talking abouttaking someone’s home and giving it to a condodeveloper? That happens in China. That doesn’thappen in the United States.” I said: “I there’s away to get this message out to everybody throughoutthe country, there’s going to be a huge reaction.” Ialways thought i we could raise awareness o it, thebacklash would ensue. It’s been really encouragingto see it to the extent that it actually occurred.

Alan Shilepsky: I’ve always had mixed eelingsabout eminent domain, and I think sometimes itis necessary, especially with linear acilities like gasand oil pipelines and highways. I’m wondering howa prohibition on eminent domain would aect theconstruction o necessary acilities. Now, we evenhave talked about privatizing highways. I there wasa strong prohibition on eminent domain, couldn’ta holdout keep some o these acilities rom beingbuilt?

Bullock: It’s a good question. Even Justice ClarenceThomas—he wrote a separate dissent that reallylooked at this rom an original understanding o theConstitution—recognized that the Constitutiondoes contemplate eminent domain. The positionin the Kelo dissent was not that eminent domaincould never be used, but it should be connedto true public uses, like roads, reservoirs, public

buildings. Justice Thomas even noted that thingslike utility lines and railroads, things that are notpublicly owned in the sense that there’s privateinvolvement in them, are very strictly controlledby public entities: The rates are set, everybody hasto have access to the railroads and utility lines, andthat sort o thing. So that would still be justiedunder even the dissenting opinion in Kelo.

Doug Tice: Review or us how much the court haschanged since this decision was made, and wheredo you think the court is now on property rightsissues with Justice Sonia Sotomayor and other newjustices since then?

Bullock: The two justices who let the court, Chie Justice Rehnquist and Justice O’Connor, were in the

dissent. Sandra Day O’Connor in particular, whowrote one o the dissents, is no longer on the court.Immediately, there would be no change, becausethe olks who were in the majority are still on thecourt. But we’re condent that at some point Kelo will be overturned, as it’s not one o these decisionsthat’s long or the history books.

It was one o the last opinions that Justice O’Connorwrote. It was a very passionate dissent. JusticeO’Connor was a justice who always was known

or her very moderate and sometimes hairsplittingtypes o opinions. This was not that at all. Thiswas a very passionate, very ery dissent that thecountry responded to and or which she will beremembered.

It’s always impossible to get into the minds o thejustices, and I don’t pretend to try to speak or them.But perhaps one o the reasons she wrote the wayshe did is because she had been a state legislator.

She knew how state legislators operate and how,perhaps, city councils operate. I don’t know whetherthe other justices o the Supreme Court have evereven been to a city council meeting. Their viewso the process seemed to be very pristine, almostthis civics-book type o approach to how decisionsare made at the local level. I think she rightullywas a lot more skeptical about that process and sawhow easily power can be abused at the local level. I




think that’s perhaps one o the reasons why she eltso strongly about this, in addition to the act thatshe elt that she was right on the law, too.

Pearlstein: I would suspect the act that she’s romthe West also had something to do with it.

Gentlemen, on behal o the Minnesota outposts o the Institute or Justice and the Federalist Societyas well as American Experiment, this truly has beenexcellent. Thank you. n



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