Thank You, Federalism

Posted on September 14, 2005
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Thirteen small business owners in Tempe can rest a little easier today. Late yesterday, Tempe's plan to seize their land for a tax-generating mall was struck down as a violation of the Arizona Constitution by Maricopa County Superior Court judge Kenneth Fields.

The ruling is in stark contrast to the U.S. Supreme Court's Kelo decision permitting cities to take private property to generate more tax revenue.

How can the local court offer more protection than the Supreme Court?

Thanks to our federalist system, the Supreme Court ruling, based on the federal constitution, is a baseline. States can offer more protection of rights, as the Arizona Constitution does.

In deciding whether Tempe's exercise of eminent domain was appropriate, Judge Fields wrote that "Profit, not public improvement, is the motivating force for this redevelopment." Fields found that Tempe's project violates Arizona's constitutional guarantee that "Private property shall not be taken for private use?." Historically, governments have been permitted to take land for exceptional purposes, such as building roads and sewers. But Tempe wanted to take private property with no other purpose than to generate more tax revenue.

Judge Fields also found:

-"No needed public services will be provided by the end use of the property."
-"The property being sought does not appear to be a true 'slum' since the owners are providing legitimate and legal commercial services. The conditions that the plaintiff feels threaten the public safety can readily be addressed by exercise of its police powers without resort to taking private property."

It is the duty of our state judiciary to rigorously protect the liberties enumerated in the Arizona Constitution. Judge Fields has done so. 

Key Links:

- East Valley Tribune: "Tempe can't force out landowners"
-Institute for Justice: "Tempe Property Owners Score Victory Over Eminent Domain Abuse"
-Study: Condemning Condemnation: Alternatives to Eminent Domain 

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