Goldwater Institute and NAACP Maricopa County Branch File Arizona Supreme Court Amicus Brief

Posted on November 14, 2005 | Type: Press Release
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PHOENIX -- An Arizona Supreme Court amicus brief filed today, written by the Goldwater Institute and joined by the NAACP Maricopa County Branch, argues for upholding private property protections guaranteed by the Arizona Constitution and asks the Court to uphold the legal standard developed in Bailey v. Meyers that protects property owners against eminent domain abuse by governments. 

On Tuesday, November 29, the Arizona Supreme Court will consider the case of City of Tempe v. Valentine, providing the Court with its first opportunity in over twenty years to clarify the meaning of "public use" in eminent domain cases.  The Goldwater Institute and NAACP filed the brief with a shared understanding that property rights are basic civil liberties requiring the heightened protection promised under the Arizona Constitution.

The Arizona Constitution provides that a municipality can exercise the power of eminent domain for an undertaking that serves a "public use." The question before the Court is whether the city of Tempe's proposed condemnation of private property to clear land for a developer to build a shopping mall meets the constitutional definition of "public use." In Bailey, the appellate court developed a rigorous test to determine whether a project meets the "public use" standard, saying the "public use" requirement is satisfied only when the public benefits of a project "substantially predominate" over the private nature of that use. 

At the trial court, Tempe failed to establish that the Tempe Marketplace project was a "public use."  Instead, the court determined that the anticipated private profit and benefits drove the project, outweighing any potential public benefit. 

The Arizona Supreme Court now has an opportunity to uphold the Bailey standard.  Benjamin Barr, J.D., constitutional policy analyst in the Goldwater Institute Center for Constitutional Government, argues that "the Bailey standard represents the most authentic and historical reading of public use under the Arizona Constitution. Without it, government will have an almost limitless ability to seize private land and sell it to the highest bidder to enrich its tax base."

The Bailey standard affords Arizona property owners greater protection than the standard set by the U.S. Supreme Court this summer in Kelo v. City of New London in which the Court ruled that the U.S. Constitution did not protect property owners from government seizures for redevelopment purposes.

Ann Seiden, Communications Assistant, Goldwater Institute, (602) 462-5000 x 223,

Benjamin Barr, Constitutional Analyst, Goldwater Institute, (602) 462-5000 x 232,

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