It’s Like Kelo — In More Ways Than One

The blogosphere is atwitter again on a subject closely related to the exercise of eminent domain. The Texas Court of Appeals is hearing oral arguments in the matter of a fellow named H. Walker Royall, a Texas developer who was the beneficiary of a deal with the city of Freeport, Texas, whereby the city would take by eminent domain waterfront property long owned by the Gore family, and turn it over to Royall for redevelopment into a private marina. So far, so bad — it’s the stuff of so many redevelopment controversies all over the country, that have angered the populace and have given eminent domain a bad name. But this controversy has a special twist to it.

A journalist named Carla Main wrote a book entitled “Bulldozed: Kelo, Eminent Domain and the American Lust for Land.” Ms. Main is a knowledgeable lawyer and former opinion editor for the National Law Journal where (full disclosure) she edited your faithful servant’s columns on property rights and takings. Ms. Main’s book covered the history of eminent domain in America, and it also described the Freeport controversy, expressing the opinion that the taking of the Gores’ land for redevelopment was wrong. So Royall sued for defamation, demanding that Main’s book be banned. Incredible as it may seem to First Amendment mavens, his lawsuit was not tossed by the trial court, although it was dismissed as against Professor Richard Epstein of the University of Chicago, who had been sued by Royall for the sin of writing a complimentary book cover blurb.

Ms. Main, represented by the Intitute for Justice, the public law firm that represented Suzette Kelo, has been defending against Royall’s lawsuit, and has appealed the trial court’s refusal to dismiss the defamation action. So stay tuned for the Texas appellate decision which we will report when it comes down.

We write this post, however, to take note of another aspect of the Freeport controversy. It turns out that the redevelopment project in question has gone nowhere, according to the Wall Street Journal. Just like the one in Kelo. In the Journal’s words:

“As for the [Freeport] project itself, the litigation has now come full circle, with Mr. Royall and Freeport suing each other. Mr Royall is suing Freeport for land he says the city promised to sell him. Freeport is suing Mr. Royall for all the marina spending over $6 million (now reported at $100 million and rising).” William McGurn, The Litigious Legacy of Kelo, Wall St. Jour., Sep. 28, 2010, at p. A19.

So if the Wall Street Journal has it right, and just as in Kelo, millions of dollars in public funds have been blown, an unoffending family has been evicted from its lawfully-held land, with nothing concrete to show for it.

We can’t wait to see how it all turns out. In a First Amendment legal regime in which a leader of a major, national religious movement can be falsely depicted in a skin magazine as having had an incestuous relationship with his mother, with the courts extending First Amedment protection to it, one would think that a serious discussion of a pressing, widely debated national problem, by a highly qualified and fully credentialled journalist, would be a slam-dunk for the defense. But the fact that it has not been such in this case reminds us of our long-held belief that when it comes to eminent domain, nothing is sacred and no seemingly settled rule of law can be depended on.

Over a half-century ago, Lewis Orgel, the author of a highly regarded treatise on eminent domain valuation, characterized eminent domain as the “dark corner of the law.”

That it is.

Follow up. You can find a report on the oral argument in this case, and a copy of Ms. Main’s brief, on the Owners Counsel blog — see